The Queen and The Bishop of Yorks Case
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1687 |
| Date | 01 January 1687 |
| Court | Court of Common Pleas |
English Reports Citation: 74 E.R. 207
IN THE COMMON PLEAS.
Quare Impedit. Collation gains not the Patronage of the King. Plenurty no Plea against the King.
1 LEONARD, 226. THE QUEEN AND THE BISHOP OF YORKS CASE 207 such sale is assets. And see 9 Eliz. 264. Dyer. A man devised his lands to be sold by his executors, and that the money thereof coming shall be disposed in payment of legacies expressed in his will, the land is sold ; by Catlin, Dyer and sanders, The money thereof coming is assets : but 4 & 5 Ph. & Mar. Dyer 152. the law was otherwise taken. Where a man devised that his executors should sell his land, and that his daughters should have such portions out of the monies thereof coming, the land is sold accordingly, the daughters sued the executors in the Spiritual Court. In that case a prohibition lieth, for it is not a legacy testamentary, but, out of the land, &c. And also in the principal case, the lands are not devised to be sold ; but there is only a request to his wife, that she would pay his debts, without any condition, or express direction, or limitation, 30 H. S. Land devised to executors to sell, and the money thereof coming to be divided between his children : the money shall not be assets, and if it he not assets by the common law, but special assets by a special law, the [226] plaintiff ought to have shewed the same in his declaration, and then to have maintained against the defendant the said special assets upon the statute : as if in debt upon an obligation, the defendant will plead, non est factum, and give in evidence the statute of 23 H. 6. the same shall not maintain his plea of non est factum ; but he ought to have pleaded the special matter in bar. And see 4 II. 7. 8. So the plaintiff here ought to have in her replication shewed the especial matter upon the statute. Anderson and Walmesly conceived, that the same is assets within the stat. and that the defendant is chargable as executrix, otherwise there is no remedy, and the act confirms her to be executrix, and ordains, that she shall take upon her the charge of payment of debts, and that the goods and all the monies which come by sale of the lands and woods shall be assets. And because that by the said act the money coming by sale of woods and lands are joyned together with the goods of the testator in the same plight, all are in the same degree, and both equally assets. Periam did not speak to that ; but Windham held, that these...
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