Narrationes modernæ, or, Modern reports begun in the now upper bench court at VVestminster in the beginning of Hillary term 21 Caroli, and continued to the end of Michaelmas term 1655 as well on the criminall, as on the pleas side : most of which time the late Lord Chief Justice Roll gave the rule there : with necessary tables for the ready finding out and making use of the matters contained in the whole book : and an addition of the number rolls to most of the remarkable cases / by William Style ...

Style against Tullye.

Trin. 1651, Banc. sup.

Hill. 24. Car. rot. 587.

SIr Humphrey Style brought a writ of Error to reverse a Iudgement gi∣ven against him in an Action of debt upon an obligation in the Common pleas for Tullye and Acton Executors of the last Will and Testament of one William Tullye.* 1.1 The case was this, Sir Humphrey Style, and one Thomas Brook were joyntly and severally bound unto William Tullye, in an obligation of 120 l. for the payment of 60 l. at a certain day. After the day of payment, and the mony not paid, Thomas Brook makes his Will, and makes Mary Brook his wife his Executrix, and dyes, afterwards William Tullye makes his will, and makes Tullye and Acton the Defendants in the writ of Error his Executors, and dyes, and by his will he releases unto Mary Brook all the debts, which Thomas Brook her husband, did owe unto him at the time of his death. Tullye and Acton prove this will, and after bring an Action of debt against Sir Humphrey Style in the Common pleas, upon the obligation of 160 l. Sir Humphrey Style demurs to the Declara∣tion, and for cause shews that William Tullye by his will, had released the Debt to Mary Brooks, and upon this demurrer Iudgement was given a∣gainst Sir Humphrey Style, and thereupon he brings his writ of Error; wherein the question was, whether the debt was released by the will or no? Latch of Councel for Sir Humphrey Style argued, that here was an actual release, and he cited 21 E. 4. f. 8. and a case Trin. 10. Car. and said that a will amounts to a release, although it be not made of incorporeal things, and the assent of Mary the Executor is not necessary here, for this is not like the assent to the accepting of a Legacie, and a debt due upon an Obliga∣tion made to the Testator, is not assets in the hands of an Executor, untill it be recovered, and this is more than in the nature of a Legacy, and here was a great personal Estate, and no other creditors are deceived by this release, and a devaslavit cannot be here supposed, 19 H. 8. Dyer 8 E. 4. f. 5. Dyer 139, Cranmers Case, and here is only an exoneration of a thing,

and no donation of any thing by this release, Serjeant Hen. Clark of Coun∣cel on the other side argued, that the debt was not discharged by the will, be∣cause this release made by the will cannot take effect till after the death of the Testator, and so not at all; and such a release was revokeable by the Te∣stator during his life, and therefore it cannot be said that it was ever an absolute release; But if this release had been in the realty, it might per∣adventure have béen otherwise; but it is not so here; for the debt now rests in the Executor, and it is a devastavit in the Executor to release it, for this is but a Legacie, and it may be there are debts owing, which are to be paid before Legacies, and here doth not appear to be any assets in the Executors hands, besides this debt, and if the Testator would have relea∣sed it, he ought to have done it by a deed. Roll chief Iustice, What shall the Executor do in this case? I conceive it is a strong case for the Executor; and that it is very unreasonable that the Testator should make such a devise, and here is no consent of Mary the Executor expressed to this release, be∣sides a will cannot release a thing created by deed, and so discharge Credi∣tors. Nicholas and Ask Iustices concurred; But Ierman Iustice doubted. For a fault in the writ of Error, and imperfection in the record certifyed, the Iudgment was not then affirmed. Afterward Sir Humphrey Style preferred his bill in Chancery to be releived herein, and obteyned an injunction till hearing; but upon a hearing at the Rolls could get no relief; but was ordered to pay 100 l. or else the injunction to be dissolved. Q. Nota.

Notes

• * 1.1

  Error to re∣verse a Iudg∣ment in debt upon an ob∣ligation.