| 1469.126 |
1469 |
Common Pleas |
Debt |
|
| Mich. |
9 |
Edw. 4 |
37 |
47a-47b |
Bryan, Thomas Sjt Brian (for P?)
Yelverton, William JKB Sir W. Yelverton feoffee of testator (mentioned)
Catesby, John Sjt (for D cardinal)
Danby, Robert CJCP
Bryan, Thomas Sjt Brian
Littleton, Thomas JCP
Catesby, John Sjt (mentioned)
Nedeham, John JCP Nedham
Danby, Robert CJCP
Moyle, Walter JCP Moile
Littleton, Thomas JCP
Pygot, Richard Sjt Pigot |
|
|
|
|
|
Oldhal or Oldehall', Sir William, testator
Yelverton, Sir William, feoffee to the use of Sir William Oldhall
B., buyer
W., creditor & payee
London, Serjeant of
H., sheriff of
Graisbrooke, party in cross-reference |
L.
London (Londres)
King's Bench |
|
Fitzherbert Executours 37, Corpus cum causa 17
Brooke Privileges 24, Travers 129 (not in margin), Executor 90 (not in margin) |
Prior proceeding 1469.096 = Mich. 9 Edw. 4, pl. 7, fol. 33a-33b
Mich. 19 Hen. 6 in Debt against an executor
Hil. 9 Edw. 4, per Littleton
case Graisbrooke, Plowden, Commentaries 180
22 Hen. 6, fol. 10
18 Hen. 6, fol. 22
15 Hen. 7, fol. 12
3 Hen. 6, fol. 39
3 Hen. 7, fol. 14
14 Hen. 7, fol. 6
5 Edw. 4, fol. 44
10 Hen. 6, fol. 11
34 Hen. 6, fol. 15
16 Edw. 4, fol. 8 |
|
| Pluis de det envers le Cardinal, &c. @ Brian. dit, que le dit Sir W. Oldhal nosma en son testament |
49 |
Plaintiff (?) replied that the testator knight had named defendant cardinal and the other defendants in his testament, and the testator knight had wanted all his lands and tenements that he had or that others had to his use, to be sold by the executors, and the money to be disposed of for the testator knight's soul, and that Yelverton JKB and others were enfeoffed of certain tenements of testator knight, and that defendant cardinal, before refusing to administer as executor, had sold the tenements to another for 200 pounds and (gave) 10 pounds of this payment to one to whom the testator knight was in debt.
Defendant cardinal's counsel argued that even if defendant cardinal had administered at one time, when defendants refused the administration, it would be understood that defendant cardinal always administered as ordinary.
Plaintiff said that defendant cardinal could have made such administration as plaintiff had alleged, that is, to make feoffment of land, as ordinary.
Littleton JCP argued that plaintiff could choose to sue defendant cardinal as executor or as ordinary. |
Danby CJCP: de comon droit l' Ordinary doit veier que le volunte le mort soit performe, & nul devoit medler ovesque les biens forsque l' Ordinary, ou ceux queux sont admittes per luy s. executors per probate de lour testament ou administrators, &c.
Littleton JCP dit, que devant eux home apparust 'per cepi corpus', & trova mainprise, & devant le jour quil aver, il fuit arreste en Londres & per corpus cum causa il fuit amesne en Bank le Roy, a quel jour icy le plaintiff fuit nonsue, & tamen le defendant fuit dismis de le serjant de Londres, car les pleints pur que il suit arrest fuere prise, pur ceo que il fuit en prison ciens, mes s' ils ussent estre pris, & il arrest pur eux devant, donques il duist aver estre remis, &c.
Sjt Pygot: Home arrest per latitat hors de Bank le Roy & fuit dismisse per pleint, car home ne poet estre en prison en deux courts, &c. issint cel arrest ore fuit bon quant il fuit arrest devant, pur que latitat fuit voide
Et fuit touche que home avera privilege per son chival & son servant que vient ove luy, &c. |
|
Thomas Bourgchier was Archbishop of Canterbury from 23 Apr. 1454 to 30 Mar. 1486 and was Cardinal from 18 Sep. 1467. |
unrelated speeches by Littleton JCP and Sjt Pygot about Privilege and Latitat
Sjt Catesby (for D cardinal): as if two administered of their own wrong, and then the administration is committed to one of them, it will be understood that he administered always as administrator, and he ought to be named thus
Danby CJCP: perhaps in this case there would be a distinction where the cardinal alone was made executor, and where he (defendant cardinal) and others were (made executors), and he (defendant cardinal) administered jointly with them at one time, etc.
Sjt Bryan (for P?): the cardinal cannot have made such administration as we (plaintiff) have alleged, that is, to make feoffment of land, as ordinary
Littleton JCP: it seems to me that the case that Sjt Catesby has put is not law, because if one administers of his (own) wrong, and then administration is committed to him, he who wants to sue can choose by which name he wants to sue him, because by his own act he had given the plaintiff such advantage to name him this, etc., as if I have cause to have a writ (of Entry) in the per and the cui, and the tenant alienates so that now the writ will be in the post, and then (the tenant) retakes the estate, I can chose to have a writ against him in the post or in the per and cui, and so in the other case, etc. and more strongly (a pluis fort) in this case, because the defendants were made executors in fact and administered jointly, etc.; and Sir, they could administer without probate (prover) of their testament, but they cannot use an action before it (the testament) be probated (prove), etc.; an deven though it appeared on the back (endorsement) 'that the testament is probated' (quod testamentum est probatum) if this was not probated in fact, yet the party will not have a traverse of this, but the issue will be whether he (defendant cardinal) was executor or not, but not whether it (the testament) be probated or not, etc., because the testament did nothing but make the party answerable, like a deed in Formedon in the remainder, etc.
Nedeham JCP (in agreement): because they can well justify the taking of the goods before the probate (devant probate), etc.; if the one (executor) probate the testament and the other (executor) does not, yet he (the other executor) can occupy (the testator's goods) if he wants, etc.
Danby CJCP: if executors occupy and administer the goods without probate of their testament, they do this 'of their own wrong, because (as a matter) of common right the ordinary ought to see that the will (volunte) of the deceased (mort) be performed, and no one ought to meddle with the goods (of the deceased) except the ordinary, or those who are admitted by him, that is, executors, by probate of their testament or administration, etc.
Moyle JCP: when one is administered 'of his own wrong', yet he will be called before the ordinary and render account, and also the ordinary can make process against an executor to probate their testament, and if they do not appear they will be excommunicated, and if they appear and refuse, the ordinary ought to do all that he can to perform the will (volunt) of the deceased, etc., but in this case it seems that the ordinary ought not have admitted this refusal, inasmuch as they had the administration of the goods of the deceased jointly, because otherwise an executor could covert the goods to his own use, and then refuse, so no one will ever have recovery against him, which would be unreasonable, so in this case the ordinary ought to compel him to probate the testament on pain (peine) of excommunication, etc. so it seems here that this refusal was not good, etc.
in 1469.126 = Mich. 9 Edw. 4, pl. 37, fol. 47a-47b, it was stated that in Mich. 19 Hen. 6, in Debt against an executor, who pleaded that before the writ was purchased, the administration was commited to him, etc, so he ought to have been named administrator, judgment of the writ; and the plaintiff replied that after the testator's death and before committal of the administration, the defendant administered, etc. and on this the parties were at issue, etc.
Littleton JCP: one appeared before them (Common Pleas) 'by Cepi corpus', and found mainprise, and before the day that he had, he was arrested in London and by Corpus cum causa he was brought into King's Bench, at which day here the plaintiff was nonsuited, and yet the defendant was dismissed from the Serjeant of London, because the plaintiffs (les pleints) who had him arrested were taken (prises, arrested), because he was in prison here, but if they had been taken (pris, arrested), and he (had been) arrested by them beforehand, then he ought to have been remanded, etc.
Sjt Pygot: one (was) arrested by Latitat out of King's Bench and was dismissed by (a) plaintiff (per pleint), because one cannot be in prison in two courts, etc., so this arrest now was good when he was arrested beforehand, so the Latitat was void
and it was touched that one will have privilege for his horse and for his servant who came with him, etc. (same point in 1449.052abr = Hil. 27 Hen. 6, Statham Privelege 4, Fitzherbert Privilege 4 and 1455.094 = Mich. 34 Hen. 6, fol. 28, pl. 15a-15b)
and Hil. 9 Edw. 4, Littleton JCP said that one who was the sheriff of H. who came to bring the king's writs to his master's Court and to receive other (writs), etc. was arrested and was found by examination that he came for the said cause, etc.; and he was dismissed for Privilege, because now he was attendant at Court, etc.
a Sir William Oldhall was mentioned (as indicted felony defendant?) in 1452.034abr = Trin. 30 Hen. 6, Statham Processe 16, fol. 139r |
|
|
1469.126 = Mich. 9 Edw. 4, pl. 37, fol. 47a-47b
|
|
Cardinal
Knight
Name
Testament
Tenements
Use (use)
Sale (vendus)
Executor
Money (l' argent
Provision (provenant)
Disposition
Soul (l' alme)
Feoffment
Certainty
Refusal
Payment
Testator
Indebtedness
Plea
No Plea
Administration
Time
Refusal Of Administration
Understanding (entende)
Ordinary
Administration As Ordinary
Always
De Son Tort Demesne
Of His Own Wrong
Wrong (tort)
Committal
Administrator
As Administrator
Perhaps (Paraventure)
Case
Distinction (divers)
Sole
Making Executor
Joint
Joint Administration
As Ordinary
Allegation
Making Feoffment
Seeming
Suit
Choice (eslier)
Advantage
Giving Advantage
Naming
Cause
Per
Cui
Writ In The Per And Cui
Entry In The Per And Cui
Tenant
Alienation
Post
Writ In The Post
Entry In The Post
Retaking
Estate
Strength (a pluis fort)
Stronger Case
In Fact
Probate
Without Probate
Probate Of Testament
Usage (user)
Appearance
Back (dorse)
Endorsement
Testamentum Est Probatum
Party
Traverse
Issue
Answerable (respoignable)
Deed (fait)
Formedon
Remainder
Formedon In The Remainder
Ad Idem
Justification
Taking
Goods
Occupation
Common Right
Of Common Right
Sight (veier)
Will (volunte)
Deceased (mort)
Performance
Meddling
Admittance
Executor By Probate
Calling (appelle)
Summons (appelle)
Account
Rendering Account
Process
Nonappearance
Excommunication (excommenges)
Appearance
Conversion
To His Own Use
Recovery
Reason
Unreasonable
Compulsion
Pain (peine)
Penalty (peine)
Bad Refusal
Purchase Of Writ
At Issue
Cepi Corpus
Finding
Mainprise
Finding Mainprise
Day
Arrest
Corpus Cum Causa
Bringing (amesne)
King's Bench
Nonsuit
Tamen
Dismissal
Serjeant
Plaint
Prison
Imprisonment
Remand (remis)
Latitat
Good Arrest
Void Latitat
Voidance
Touch
Privilege
Horse
Servant
Sheriff
King
King's Writ
Master
King's Court
Receipt
Finding
Examination
Cause
Attendance |
|
