| 1489.008 |
1489 |
Chancery |
Subpoena |
Executor
Authorite |
Fyneux, John Sjt Fineux (for Ds?)
Morton, John LC Chancelier
Fyneux, John Sjt Fineux
Morton, John LC
Moreton, Chancellor |
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Fitzherbert Sub pena 17
Brooke Conscience 7 |
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| Un Subpoena in le Chancery fuit sue, pur ceo que deux executors furent, & un release sans |
22 |
Plaintiff's Subpoena surmised that defendant executor had released to defendant debtor, who had been indebted to defendant executor's testator, without the assent of the other executor, so that the testator's will could not be performed.
Sjt Fyneux (counsel for defendants?) said that plaintiff's complaint was not remediable, because the release made by defendant executor was good.
Morton LC (the Chancellor) said that it was unreasonable that one executor could make a release on his own.
Sjt Fyneux (counsel for defendants?) said that what defendant executor did was a matter for defendant executor's conscience and his confessor.
Morton LC (the Chancellor) said that |
l' assente de son compagnon a un qui fuit endette a lour testator; Et fuit surmis que sa volonte pur cest cause ne poet estre performe, & 'Subpoena' fuit sue vers l' executor qui release, & cesti a qui le releas fuit fait, &c.
Sjt Fyneux (for Ds?) dit que n' est remediable: car chescun executor ad entier pouvoir aperluy, & un poit faire tout cest que son compagnon puissoit faire, & issint le releas fait per luy bon
Morton LC (Chancelier): 'Nullus recedat a Curia Cancellariae sine remedio' (= no one goes away from the Court of Chancery without a remedy), & est enconter reason que un executor aura touts les biens, & fera un releas sole
Sjt Fyneux (for Ds?): Sir, donc 'si nullus recedat sine remedio, Ergo nullus indiget esse confessus': mes Ri, la Ley de l' terre est pur mouts choses, & moults choses sont estre sues icy qui ne sont remediables a le Comon Ley, & assez sont in conscience parentre un homme & son confesseur, & issint est cest chose, &c.
Morton LC (Chancelier): Sir, jeo scay bien que chescun Ley est, ou de droit doit estre accordant al' Ley de Dieu, et le Ley de Dieu est, que un executor qui est de male disposition ne expendera touts les biens, &c.; Et jeo scay bien si issint soit, & ne fait amendes, ou ratification, si il soit de pouvoir, ou n' est voulant a faire restitution, si il fuit de pouvoir, il sera damne in Hell, &c. est a faire remedy pur tiel chose come jeo entende est bien fait accord al' conscience, &c.; Et le testament est, 'constituo tales esse executores meos, ut ipsi disponant', &c. et issint le pouvoir d'eux est joyntment & nemy severalment: et issint si un fait un acte sans sonn compagnion, il cest fait sans ascun garrante: et auter est 'pro salute animae meae', &c. mes si ils 'mispendent' ceo n' est ove leur garrante, &c.; Et Sir, jeo scay bien in vostre Comon Ley, si vous faites commissiond' enquerir per le paix: vous ne purres arreiner les felons; Et in un lettre d' atturney pur delivre seisine d' un acre de terre, si il delivre deux , il est sans garrante, & 'nihil operatur'; Sir, in le cas icy le testament est lour pouvoir, & derraine volonte de lour testator, & s' ils excedent & font contrary, &c. il est bon estre remedy, come jeo entende, &c. mes jeo voile ore cest arguer, &c. |
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John Morton, Archbishop of Canterbury, was Chancellor (Fifoot note) |
a Subpoena in the Chancery was sued, because there were two executors, and one (executor) released without the assent of his companion (fellow executor) to one (debtor) who was indebted to their testator; and it was surmised that for this reason (cause) his (the testator's) will could not be performed, and a Subpoena was sued against the executor who release, and (against) him to whom the release was made, etc.
Sjt Fyneux (for Ds?) said that it (plaintiff's complaint) was not remediable, because every executor has complete (entier) power (pouvoir) by himself, and one (executor) can do everything that his companion (fellow executor) can do, and so the release made by him is good
Morton LC (the Chancellor): 'no one goes away from the Court of Chancery without a remedy' and it is unreasonable (enconter reason) that one executor will have all the goods, and will make a release alone (sole)
Sjt Fyneux (for Ds?): Sir, then 'if no one goes away without a remedy, therefore (Ergo) no one needs to be confessed' ('nullus indiget esse confessus'), but Sir, the law of the land is for many things, and many things are to be sued here that are not remediable at the common law, and are (remediable) enough (assez) in conscience between one and his confessor, and so is this thing, etc.
Morton LC (the Chancellor): Sir, I know well that every law is, or of right ought to be in accord with the law of God, and the law of God is that an executor who is of evil (male) disposition (ill disposed) will not expend all (the testator's) goods, etc.; and I know well (that) if it be so, and he (an ill-disposed executor) does not make amends, or ratification (?), if it be in his power (de pouvoir), or if he does not want to make restitution, if it was in his power (de pouvoir), he (ill-disposed executor) will be damned to hell, etc., and to make a remedy for such a thing, as I understand, is well done according to the conscience, etc.; and the testament was 'I constitute such to be my executors, etc. and so the power of these two (executors) is joint and not several, and so if one (executor) does an act without his companion (fellow executor), he does this without any warrant, and it is otherwise (if one executor does something) 'for the health of my (the testator's) soul' (pro salute animae meae), etc. but if they (executors) misspend this it is not with their warrant, etc.; and Sir, I know well (that) in your common law, if you make a commission to inquire for the peace, you cannot arraign the felons; and in a letter of attorney to deliver seisin of one acre of land, if he delivers two (acres), it is without warrant, and avails nothing (nihil operatur); Sir, in the case here the testament is their power (pouvoir), and deraigned (?) will of their testator, and if they exceed and are contrary, etc. it is to be a good remedy, as I understand, etc. but I want to argue this now, etc.
Morton LC: I know well that every law is, or of right ought to be according to the Law of God |
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Fitzherbert Sub pena 17, fol. 188r, dated this Mich. 1488
Cooper's Practice Cases 545-546, 47 Eng. Rep. pp. 643-644: Subpoena against executor releasing without his co-executor, and also against the releasee. A subpoena in Chancery was sued: for that there were two executors, and one released, without the assent of his companion, to one who was indebted to their testator: and it was suggested that his will for this cause could not be performed: and a subpoena was sued against the executor who released, and him to whom the release was made, &c. Fineux said that the matter was not remediable: for each executor has entire power of himself: and one can do all that which his companion could do, and therefore the release made by him is good. Chancellor [Cardinal Morton]. 'Nullus recedat a cancellaria sine remedio', and it is against reason that one executor shall have all the goods, and shall make a release sole. Fineux. Sir, then 'si nullus recedat sine remedio, ergo nullus indiget esse confessus': but, Sir, the law of the land is for many things: and many things are sued here which are not remediable at the common law, and are sufficiently [remediable] in conscience between, a man and his confessor, and so is that matter, &c. ... The Chancellor. Sir, 1 -know that every law is, or of right ought to be, according to the law of God: and the law of God is, that an executor, who is of evil disposition, shall not expend all the goods, &c.: and I know well if it is so, and he does not make amends or satisfaction, if he is able or is not willing to make restitution, if he is able: he shall be damned in hell, &c.: [Cooper's Practice Cases 546] and it is, as I think, well done to provide a remedy for such things according to conscience: and the testament is, 'Constituo tales esse executores meos, ut ipsi disponant', &c.: and so their power is joint and not several and therefore if one does an act without his companions, he does it without any authority: and [the testament] is besides 'pro salute animae meae', &c. but if they misapply, that is [47 Eng. Rep. p. 644] not within their authority, &c.: and, Sir, I know well in your common law if you issue a commission to inquire of the king's peace, you cannot arraign felons: and in a letter of attorney to deliver seisin of an acre of land, if he delivers two, it is without authority, 'et nihil operatur'. Sir, in the case here, the testament is their power, and the last will of their testator, and if they exceed and do the contrary, &c. it is good there be remedy, as I think, &c;, but I desire now to argue it, &c. Year Book, 4 Hen. 7, 4. (Cooper noted: 'Pluribus autem executoribus deputatis, an omnes simul agere est necesse?' &c. John de Athona, p. 108.) |
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C.H.S. Fifoot, History and Sources of the Common Law (London, Stevens & Sons 1949), pp. 326 (Anon.) (dated 1489)
Cooper's Practice Cases 545-546, 47 Eng. Rep. pp. 643-644 |
Subpoena
Suit
Executor
Release
Assent
Without Assent
Companion
Fellow
Indebtedness
Testator
Surmise
Will (volonte)
Cause
Performance
Making Release
Remedy
Remediable
Complete (entier)
Entirety
Whole
Power (pouvoir)
By Itself (aperluy)
Good Release
Receding
Going Away
Court Of Chancery
Without Remedy
Nullus Recedat A Curia Cancellariae Sine Remedio
Unreasonableness
Reason
Against Reason
Goods
Solely
Sole Release
Ergo
Nullus Indiget Esse Confessus
Confession
Need (indiget)
Law Of The Land
Thing
Many Things
Sufficiency (assez)
Conscience
In Conscience
Between
Confessor
Knowledge
Knowing Well
Right
Of Right
Accordingly
Law Of God
Disposition
Ill Disposition
Evil (male)
Bad (male)
Bad Disposition
Ill Disposed
Expenditure
Spending
Amends
Making Amends
Ratification
Restitution
Making Restitution
Damnation
Hell
Damned To Hell
In Hell
Making Remedy
Understanding (entende)
Well Done
Accordingly
According To Conscience
Testament
Constituting
Constituo Tales Esse Executores Meos
Ut Ipsi Disponant
Joint Power
Several
Jointly
Severally
Act
Doing An Act
Without His Companion
Warrant (garrante)
Health (salute)
Soul (animae)
For His Soul's Sake
Misspending
Your Law
Common Law
Commission
Making Commission
Inquiry
Peace
For The Peace
Arraignment
Felon
Letter Of Attorney
Letter
Attorney
Delivery
Seisin
Acre
Without Warrant
Nihil Operatur
Unavailing
Deraignment
Exceeding
Contrary
Good Remedy
Argument\ |
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