EES OF IN- aforesaid, but contriving to deceive and defraud the said plaintiff, as assignee BY ASSIGNas aforesaid, in this respect, hath not as yet paid the said plaintiff the said last-mentioned (two) sums of money, or any part thereof, although often requested so to do, but he so to do hath hitherto wholly neglected and refused, Breach. and still doth neglect and refuse, To the damage of the said plaintiff, as assignee as aforesaid, of £- and therefore he brings his suit, &c. Fourthly,-Executors. BY EXECU- work, &c. Commencement as ante, 34, then proceed thus:-For that whereas the said By an exedefendant heretofore and in the life-time of the said E. F. on, &c. (x) at, &c. cutor for was indebted to the said E. F. in the sum of £-— of lawful money of Great on promiBritain, for the work and labor of the said E. F. by him, before that time ses to testator (w). done, &c. and being so indebted, he the said defendant, in consideration thereof, afterwards, and in the life-time of the said E. F. to wit, on the day and year aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said E. F. to pay him the said sum of money, when he the said defendant should be thereunto afterwards requested. The quantum meruit is as follows: :-"And whereas also afterwards, and in the life-time of the said E. F. to wit, on the day and year aforesaid, at, &c. aforesaid, in consideration that the said E. F. had before that time done, &c. he the said defendant undertook, &c. And the said plaintiff avers, that the said E. F. in his lifetime, therefore reasonably *deserved to have, &c. whereof the said defendant, [ *02 ] in the life-time of the said E. F. to wit, on the day and year aforesaid, to wit, at, &c. had notice. Yet the said defendant, not regarding his said several Breach. promises and undertakings, but contriving to deceive and defraud the said E. F. in his life-time, and the said plaintiff, as executor as aforesaid, since the death of the said E. F. in this behalf, hath not as yet paid the said several sums of money, or any or either of them, or any part thereof to the said E. F. in his life-time, or to the said plaintiff since the death of the said E. F. (although often requested so to do ;) but he to do this hath wholly refused, and still refuses to pay the same, or any part thereof, to the said plaintiff, * To Profert(y). the damage of the said plaintiff, as executor as aforesaid (1), of £— and therefore he brings his suit, &c. And the said plaintiff brings into court here the letters testamentary of the said E. F. deceased, whereby it fully appears to the said court here, that the said plaintiff is executor of the said last will (w) See Forms, Lil. Ent. 50, 83.-Plead. A. 9. As to the joinder of demands by, and rights of executors, &c. to sue, see ante, vol. i. 12. (x) Some day just before the death of the testator, but the precise time is not material, Cro. Car. 130, and any day before the title of the declaration will suffice. y) See other Forms of Profert, ante, 35. See Form, 2 Saund. 209 a, it concludes, "administrators," instead of "executors there of," &c. but either way will suffice. If the (1) The words as executors as aforesaid, are unnecessary. 5 Binney, 16. 21. VOL. II. 10 BY EXECU- and testament of the said E. F. deceased, and hath the execution thereTORS. of, &c. Pledges, &c. (if in C. P. omit pledges.) Counts on to the And whereas also, the said defendant afterwards, and in the life-time of the promises said E. F. deceased, to wit, on the day *and year aforesaid, at, &c. aforeplaintiff as said, was indebted to the said E. F. in the further sum of £- of like lawful executor money, for the work and labor, care and diligence, of the said E. F. by the *103] said E. F. before that time done, performed, and bestowed, in and about the (z). business of the said defendant, and for the said defendant, and at his special instance and request, and also in the further sum of £- of like lawful money, for divers goods, wares, and merchandize, by the said E. F. before that time sold and delivered to the said defendant, and at his like special instance and request, and also in the further sum of £. of like lawful money, for money by the said E. F. before that time lent and advanced to, and paid, laid out, and expended for the said defendant, and at his like special instance and request, and also in the further sum of £― of like lawful money, for other money by the said defendant before that time had and received, to and for the use of the said E. F.-And the said defendant being so indebted, and the said several sums of money being and remaining wholly due and owing, unpaid, and unsatisfied, he the said defendant, in consideration thereof, afterwards, and after the death of the said E. F. to wit, on, &c. (a) at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff, as executor as aforesaid (b), to pay him the said sum of money in this count mentioned, when he the said defendant should be thereunto afterwards reAccount quested (c). And whereas also the said defendant, afterwards, to wit, on the stated (d). day and year last aforesaid, at, &c. aforesaid, accounted with the said plaintiff as (e) executor as aforesaid, of and concerning divers other sums of money [*104] from the said defendant to the said plaintiff, as executors as *aforesaid (ƒ), (z) These counts are to be inserted at the asterisk in the last precedent; they are proper whenever, on account of the Statute of Limitations, &c. it may be expedient to rely on any promise or acknowledgment since the death of the testator. See 3 East, 409. -6 Taunt. 455.-Willes, 29. [5 Binn. 573.] But unless there be some substantive promise or cause of action, arising to the plaintiff after the death of his testator, it is best not to insert them, as they in all cases render plaintiff liable to costs if he do not succeed, and which he would not otherwise be liable to. See 9 B. & Cres. 667. and K. B. June, 1830, Tidd, 9th edit. 978. 1 Barn. & Adolph. 6. In support of these counts, the plaintiff should, on the trial, produce the probate; and even under the general issue it should seem, that as to these counts the inadequacy of stamp would constitute no objection. 2 M. & S. 553.-2 Saund. 47 k. 63 f. g. 117 d. 208. The 3 & 4 W. 4. c. 42. s. 31, however, now subjects executors and administrators, when plaintiffs, to costs, unless the court or judge otherwise directs, without regard to the form of declaration; and see I Hodges' Rep. C. P. 1; 10 Bing. 563; 1 Adol. & El. 338; see fully Chitt. Gen. Pract. 2d edit. 530. (a) It is usual to insert a day after the death of the testator, but any day before the title of the declaration, will do. (b) The words "as executor," are here omitted in 2 Saund. 208, but such omission is bad; see 5 East, 150. {See 5 Binn. 16. 21.} (c) If the plaintiff, in the character of executor, has sold goods to the defendant, or paid money for him, here add counts for goods sold, &c. by the plaintiff as executor. 6 East, 405.-3 East, 104. And if the defendant has received money since the death of testator, add a count for money had and received, to the plaintiff's use as executor. (d) See form, Lil. Ent. 84. This count may be joined with a count for goods sold by a testator. 1 Taunt. 322.-6 East, 406, 403.-5 East, 154. (e) As to this word, see 5 East, 150. 2 Saund. 208. (f) In 8 J. B. Mo. 103, it seems to have been considered, that if, instead of those words, "to the said plaintiff as executor, &c." the averment was, "to the said E. F. TORS. before that time due and owing, and then in arrear and unpaid; and upon BY EXECU that accounting the said defendant was then and there found to be in arrear, and indebted to the said plaintiff, as executor as aforesaid, in the further sum of £ of like lawful money; and being so found in arrear and indebted, he the said defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff, as executor as aforesaid, to pay him the said sum of money last-mentioned, whenever afterwards he the said defendant should be thereunto requested. Yet the said defendant, not regarding his said several Breach(g). three (h) last-mentioned promises and undertakings, so by him in manner and form aforesaid made, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said plaintiff, as executor as aforesaid, in this respect, hath not as yet paid the several sums of money in the said (three) last-mentioned counts specified, or any or either of them, or any part thereof, to the said plaintiff, (although often requested so to do.) But the said defendant, to pay the same, or any part thereof, hath hitherto altogether refused, and still doth refuse. To the damage, &c. as ante, page 102, adding profert. Breach. [In an action at the suit of a surviving executor, describe him accordingly By a surin the beginning, as “plaintiff, surviving executor of the last will and testa- viving executor (i). ment of E. F. deceased, complains," &c. (or, if in C. P. or Exchequer, state the commencement accordingly.)—State the breach thus:]-Yet the said defendant, not regarding his promises and undertakings, but contriving to deceive and defraud the said E. F. in his life-time, and the said plaintiff and one G. H. in his life-time, now deceased, and whom the said plaintiff hath survived, (which said plaintiff and G. H. in the life-time of the said *G. H. [ *105 ] were executors of the last will and testament of the said E. F. deceased,) after the death of the said E. F. and the said plaintiff, as surviving executor as aforesaid, since the death of the said G. H. in this behalf; hath not as yet paid to them, or any or either of them, the said several sums of money, or any or either of them, or any part thereof, (although often requested so to do,) but he to do this hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said plaintiff, surviving executor as aforesaid (k), To the damage of the said plaintiff, as surviving executor as aforesaid, of £— and therefore he brings his suit, &c. And he brings into court here the letters testamentary of the said E. F. deceased, whereby it fully appears to the said court here, that the said plaintiff, and G. H. in the life-time of the said G. H. were executors of the last will and testament of the said E. F. deceased; with this, that the said plaintiff will verify that the said G. H. is deceased, and that he the said plaintiff hath thereby become and is the surviving in his life-time," the plaintiff would not, on nonsuit or otherwise, be subject by such a count to costs; but this was held otherwise in K. B. June, 1830. 1 Barn, & Adol. 6. 893. (g) See Form, Plead. A. 33. (h) This depends on the number of counts in which the promises are laid to the execu tor. (i) See Form, Lil. Ent. 83; and see a form by the executor of a surviving execu- (k) It may sometimes be advisable to add Special profert and verifica tion. BY EXECU• executor of the last will and testament of the said E. F. deceased, and hath the execution thereof, &c. TORS, Pledges, &c. (omit the pledges if in C. P.) (to wit.) A. B. and C. his wife, (which said C. is executrix of the last will and testament of D. deceased,) complain of E. F. being, &c. (or, if in C. P. or Exchequer, state the commencement accordingly.) For that whereas the said defendant, on, &c. at, &c. was indebted, &c. [as in the common case at the suit of an executor, as ante, 101.] Yet the said defendant not regarding his said promises and undertaking, but contriving to deceive and defraud the said D. in his life-time, and the said C. as executrix as aforesaid, after the death of the said D. and whilst she was sole and unmarried, and the said A. B. and C. his wife, as executrix as aforesaid, since their intermarriage, in this behalf, hath not as yet paid to them, or any or either of them, the said several sums of money, or any part thereof, (although often requested so to do.) But he to do this hath hitherto wholly refused, and still refuses to pay the same, or any part thereof to the said plaintiffs, or to either of them. To the damage of the said A. B. and C. his wife, as executrix as aforesaid, of — and therefore they bring their suit.—[Add profert and pledges, as ante, 102.] [As in the last precedent to the conclusion, which is as follows :]-Yet the said E. F. not regarding, &c. but contriving, &c. to deceive and defraud the said D. in his life-time, and the said A. B. and C. his wife, as executrix as aforesaid, [if there be another executor, say "and the said G. and the said A. B. and C. his wife, as executor and executrix *as aforesaid,”] since the death of the said D. in this behalf, hath not as yet paid to them, or any or either of them, the said several sums of money, or any or either of them, or any part thereof, (although often requested so to do.) But he to do this hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said plaintiffs or to either of them, To the damage of the said, &c.—[As in the last precedent, adding profert.] AGAINST Ellenborough. EXECU Against an Michaelmas Term, 1 Will. 4. (to wit.) A. B. complains of C. D. executor of the last will and tesexecutor tament of E. F. deceased, being in the custody, &c. (if the action be in C. P. begin the form as directed in note (m), infra.) For that whereas the said E. for work, promises by testator (1). &c. on (1) See in general as to how a debt due to the wife in the representative character is to be stated, 4 Mod. 376. Com. Dig. Pleader, 2 A. 1. (m) See a form, 2 Rich. C. P. 83, 94, and 1 Saund. 112, n. 1, 2. It does not seem necessary to declare as surviving executor. 2 Stark. 356.-4 B. and A. 374.-6 J. B. Moore, 332.-The form against an executor de son tort is the same as above, 1 Saund. 265. In debt, whether by or against an exe cutor or administrator, omit the words "owes to and;" though if introduced it is no ground of demurrer. Collett v. Collett, 3 Dougl. 211. In the common Pleas the form runs thus:"(to wit.) C. D. executor of the last will and testament of G. H. deceased, was attached to answer A. B. of a plea of trespass on the case, upon promises, and thereupon the said A. B. by his attorney, complains. For that whereas," &c. EXECU TORS. F. in his life-time, to wit, on, &c. (n), at, &c. was indebted to the said plain- AGAINST tiff in the sum of -l. for the work and labor, care, and diligence of the said plaintiff by him before then done, performed, and bestowed, for the said E. F. and at his special instance and request, and being so indebted, he the said E. F. in consideration thereof, afterwards, and in his life-time, to wit, on the day and year aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money when he the said E. F. should be thereunto afterwards requested. (Add other counts as the claim may suggest, and an account stated, on the same principle as the count for promises by the testator) state the breach thus :-Yet the said E. F. in his life- Breach. time, and the said defendant as executor as aforesaid, since the death of the said E. F. not regarding his said several promises and undertakings of the said E. F. but contriving to deceive and defraud the said plaintiff in this respect, have not, nor hath either of them, as yet paid the said several sums of money, or any or either of them, or any part thereof, to the said plaintiff, (although often requested so to do.) But to pay the same, or any part thereof, to the said plaintiff, the said E. F. and the said defendant, have hitherto wholly refused, and the said defendant still refuses so to do. [See note, ante, 102, n. b. as to the propriety of here adding the following counts on promises by the executor as such, to take the case out of the Statute of Limitations, &c.] To the damage of the said A. B. of £— and therefore he brings his suit, &c. an execu *And whereas also the said E. F. deceased, in his life-time, to wit, on the [*107] day and year aforesaid, at, &c. aforesaid, was indebted to the said plaintiff in Against the further sum of -l. of like lawful money, for the work and labor, care, and tor, on diligence of the said plaintiff, by the said plaintiff before that time done, per- promises by him in formed, and bestowed, in and about the business of the said E. F. and for him, that capaand at his special instance and request, and also in the further sum of -l. of city (1). like lawful money, for divers goods, wares, and merchandize, by the said plaintiff before that time sold and delivered to the said E. F. since deceased, and at his like special instance and request, and also in the further sum of of like lawful money, for money by the said plaintiff before that time lent and advanced to, and paid, laid out, and expended for the said E. F. and at his like special instance and request, and also in the further sum of -l. of like lawful money, for other money by the said E. F. before that time had and received, to and for the use of the said plaintiff. And the said E. F. since deceased, in his life-time, being so indebted, and the said several sums of money in this count mentioned, being and remaining wholly due and unpaid, the said defendant, as executor as aforesaid, in consideration thereof, after wards, and after the death of the said E. F. to wit, on (o), &c. at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sums of money in this count mentioned, when he the said defendant, as executor as aforesaid, should be thereunto afterwards requested. (n) It is usual to insert a day before the death of the testator, but any day before the title of the declaration will do. (0) It is usual to state a day after the death of the testator, but any day before the title of the declaration will suffice. (1) 12 Johns. Rep. 349. |