AGAINST EXECU Account as execu -And whereas also the said defendant, as executor as aforesaid, afterwards, to wit, on the day and year last aforesaid, at, &c. aforesaid, accounted with the said plaintiff of and concerning divers other sums of money from the stated by said defendant as executor as aforesaid, and at the time of the said accounting to the said plaintiff's due and owing, and then in arrear and unpaid, and tor(p)(1). upon that accounting, the said defendant, as executor as aforesaid, was found to be in arrear and indebted to the said plaintiff in the further sum of £— of like lawful money, and being so found in arrear and indebted, he the said defen[*108] dant, as executor as *aforesaid, in consideration thereof, afterwards, to wit, on the day and year last aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money last mentioned, whenever afterwards he the said defendant, as executor as aforesaid, should be thereunto afterwards requested. Yet the said defendant, Breach (4). as executor as aforesaid, not regarding his said several 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 in this respect, hath not as yet paid the several sums of money in the said last (three) counts mentioned, 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 wholly refused, and still doth refuse, To the damage of the said plaintiff of £— and therefore he brings his suit, &c. executor. Pledges, &c. Against a In an action against a surviving executor describe him accordingly at the surviving beginning, and conclude as follows, "Nevertheless the said E. F. in his life-time, and the said defendant, and G. H. in his life-time, now deceased, and whom the said defendant hath now survived (which said defendant 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) after the death of the said E. F. and the said defendant surviving executor as aforesaid, since the death of the said G. H. not regarding the said several promises and undertakings of the said E. F. but contriving to deceive and defraud the said plaintiff in his behalf, have not, nor hath any or 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 the said E. F. in his life-time, and the said defendant and G. H. executors as aforesaid, after the death of the said E. F. and in the life-time of the said G. H. wholly refused, and the said defendant, surviving executor as aforesaid, hath, ever since the death of the said G. H. hitherto wholly refused, and still refuses so to do. To the damage, &c. *A. B. complains of C. D. and E. his wife, which said E. is executrix of 580.-1 J. B. Moore, 305.-2 Saund. 117 d, e, n. (P) As to this count, see Forest's Rep. 98. 1 Taunt. 322. 6 East, 406.-7 Taunt. (q) See form, Plead. A. 31. 33. (1) That these counts cannot be joined, see Reynolds v. Reynolds' Adm., 3 Wend. Rep. 244.} EXECU and wife the last will and testament of F. G. deceased,) being, &c. (ante, 12, or, if in C. AGAINST P. or Exchequer, alter the form accordingly.) For that whereas the said F. G. TORS. in his life-time, to wit, on, &c. at, &c. was indebted, &c. [as in the usual form against an executor, as ante, 105.] Yet the said F. G. in his life-time, executrix, and the said E. executrix as aforesaid, after the death of the said F. G. and before marwhilst she was sole and unmarried, and the said defendants since their said riage(r). intermarriage, not regarding the said several promises and undertakings of the said F. G. but contriving to deceive and defraud the said plaintiff in this respect, have not, nor have, nor hath any or either of them, as yet paid the said plaintiff the said several sums of money, or any of them, or any part thereof (although often requested so to do.) But to pay the same, or any part thereof, to the said plaintiff, the said F. G. in his life-time, and the said E. executrix as aforesaid, after the death of the said F. G. and whilst she was sole and unmarried, respectively refused, and the said defendants ever since their said intermarriage, have hitherto wholly refused, and still refuse so to do, To the damage, &c. husband and wife after mar riage(s). [As in the last precedent to the conclusion, which is as follows:]-Yet the Against said F. G. in his life-time, and the said C. D. and E. his wife, executrix as aforesaid, since the death of the said F. G. not regarding the said several executrix, promises and undertakings of the said F. G. but contriving, &c. have not, nor have, nor hath any or either of them, as yet paid, &c. (although often requested so to do.) But to pay the same, or any part thereof to the said plaintiff, the said F. G. in his life-time wholly refused, and the said C. D. and E. his wife, (which said E. is executrix as aforesaid,) have, ever since the death of the said F. G. hitherto wholly refused, and still refuse so to do, To the damage, &c. Fifthly.-Administrators. ADMINIS TRATORS, tor on pro [Commencement by an administrator, as ante, 35, and then proceed thus:]— By an adFor that whereas the said defendant, heretofore, and in the life-time of the said ministra. E. F. to wit, *on, &c. at, &c. (u) was indebted to the said E. F. in the sum mises to of ✰ of lawful money of Great Britain, for the work and labor, care, and the intestate(t). diligence of the said E. F. by him before then done, performed, and bestowed, [*110], for the said defendant, and at his special instance and request, 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.-[Add other counts as the claim may suggest, and an account stated, on the same principle as the above count, laying the promises to (r) See a form in debt on bond, 1 Wentw. 370, and Plead A. 31. As to what may be joined, 3 B. & A. 101.-Ante, vol i. 47. (s) See a form, Plead. A. 31. (1) As to this form, see 3 Wils. 380.Ante, 35. (u) It is usual to insert a day before the death of the intestate, but any day before the title of the declaration will do. ISTRA TORS. BY ADMIN- the said E. F., and the breach will be as follows:] Yet the said defendant not regarding his said several promises and undertakings, but contriving, &c. to deceive and defraud the said E. F. in his life-time, and the said plaintiff as Breach (10). administrator as aforesaid, after the death of the said E. F. (to which said Grant of plaintiff after the death of the said E. F. to wit, on, &c. (date of grant) at, adminis- &c. aforesaid, administration of all and singular the goods, chattels, and credtration(x). its, which were of the said E. F. deceased, at the time of his death, who died intestate, by (Christian name of the grantor of the letters of administration) by Divine Providence, Archbishop of Canterbury, Primate of all England, and Metropolitan, in due form of law was granted (y)), in this behalf, hath not as yet paid the said sums of money, nor 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 so to do hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said plaintiff. [It may be sometimes advisable here to add counts on promises to the administrator as such, and which will run precisely as in the precedent, ante, 102, using the word “administrator," instead of "executor," but unless there be some substantive promise or cause of action arising to the plaintiff as administrator after the intestate's death, it is best not to insert such counts, as they in all cases render the plaintiff liable to costs if he does not succeed, and which he would not otherwise be liable to, 9 B. & C. 667; and K. B. June, 1830. Tidd, 9th edit. 978, conclude thus:]-To the damage of the said plaintiff as Profert (z). administrator as aforesaid, of ―l. and therefore he brings his suit, &c. And the said plaintiff brings into court here the letters of administration of the said archbishop, (or, "bishop," &c. as the grant is) which give sufficient evidence to the said court here, of the grant of administration to the said plaintiff as aforesaid, the date whereof is a certain day and year therein mentioned, to wit, the day and year in that behalf above-mentioned, &c. By an administra tor durante minore ætate. [*111] ministra tor. Pledges, &c. If the plaintiff be an administrator, with the will annexed, or durante minore ætate of an executor or next of kin, he must be described accordingly, as in the letters of administration, and, in the latter case, at the end of the declaration, there must be an averment that the executor or next of kin is under age. By a surIn an action at the suit of a surviving administrator, describe him accordviving ad- ingly throughout, and conclude as follows:-Yet the said defendant not regarding, &c. but contriving, &c. to deceive and defraud the said E. F. in his lifetime, and the said plaintiff and one G. H. in his life-time, now deceased, and whom the said plaintiff hath survived (to which said plaintiff and G. H. in the life-time of the said G. H. and after the death of the said E. F. to wit, on, &c. at, &c. aforesaid, administration of all, &c. as in the last precedent), and after the death of the said E. F. and the said plaintiff as surviving administra (w) See a form, Plead. A. 34. (y) This is to be taken from the form of (z) The omission of the profert of the letters of administration is aided after verdict by 16 & 17 Car. 2. c. 8. s. 1. and upon a general demurrer, by the 4 Anne, c. 16, but it is bad on special demurrer. ISTRA- tor as aforesaid, since the death of the said G. H. in this behalf, hath not as BY ADMINyet paid 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 so to do hath hitherto wholly refused and still refuses to pay the same, or any part thereof, to the said plaintiff, surviving administrator as aforesaid, To the damage of the said plaintiff, as surviving administrator as aforesaid, of £-and therefore he brings his suit, &c.-[Add profert of letters of administration, with averment, as in the case of a surviving executor, ante, 105.] tor de bonis non, with will an nexed. adminis [Commencement as ante, 35, and proceed thus:]-For that whereas the said By an addefendant on, &c. at, &c. was indebted, &c. (as in other cases, laying the ministra promises to the intestate, as ante, 109. State the breach thus.) Yet the said defendant not regarding, &c. but contriving to deceive and defraud the said E. F. in his life-time, and the said G. H. in his life-time, now deceased, and which said G. H. in his life-time, and at the time of his death, was executor of the last will and testament of the said E. F. deceased, and the said plaintiff after the death of the said G. H. (to which said plaintiff, after the respective Grant of deaths of the said E. F. and G. H. to wit, on, &c. at, &c. aforesaid, adminis- letters of tration of all and singular the goods, chattels, and credits, which were of the tration. said E. F. deceased, at the time of his death, left unadministered by the said G. H. deceased, executor as aforesaid, with the will of the said E. F. annexed, by *Charles, by Divine Providence, Archbishop of Canterbury, Primate of all [*112] England, and Metropolitan, in due form of law was granted) 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 so to do hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said plaintiff, administrator as aforesaid, To the damage of the said plaintiff, as administrator as aforesaid, of £ and therefore he brings his suit, &c. [Add profert of letters of administration, as ante, 36.] band and wife, administratrix, before marriage. Breach. (to wit.) A. B. and C. his wife, which said C. is administratrix of all By husand singular the goods, chattels, rights, and credits, which were of D. deceased, at the time of his death, who died intestate, complains of E. F. being, &c. For that whereas the said defendant on, &c. at, &c. was indebted, &c. (as in the common case at the suit of an administrator.) Yet the said defendant not regarding, &c. but contriving, &c. to deceive and defraud the said D. in his life-time, and the said C. after the death of the said D. and whilst she was sole and unmarried, (to which said C. whilst she was sole and unmarried, and after the death of the said D. to wit, on, &c. at, &c. administration, &c. (as ante, 110) in due form of law was granted); and the said A. B. and C. his wife, which said C. is administratrix as aforesaid, since their intermarriage in this behalf, hath not as yet paid, &c. [As in the last precedent to the conclusion, which is as follows:]-Yet the said defendant not regarding, &c. but contriving, &c. to deceive and defraud the said D. in his life-time, and the said plaintiffs, after the death of the said D. (to which said C. after the death of the said D. to wit, on, &c. at, &c. adVOL. II. 11 By baron and feme, adminis tratrix, af riage. ter mar BY ADMIN- ministration, &c. (as ante, 110) in due form of law was granted), in this behalf, hath not as yet paid, &c. ISTRA TORS. Against an administrator. (to wit.) A. B. complains of C. D. administrator of all and singular the goods and chattels, rights, and credits (a) of E. F. deceased, at the time of his death, who died intestate, being, &c. For that whereas the said E. F. in [*113] his life-time, to wit, on, &c. at, &c. was indebted, &c. (laying the promises Breach. by the deceased.) Yet the said E. F. in his life-time, and the said defendant, administrator as aforesaid, after the death of the said E. F. not regarding, &c. but contriving, &c. to deceive and defraud the said plaintiff in this behalf, 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. in his life-time wholly refused, and the said defendant hath, ever since the death of the said E. F. hitherto wholly refused, and still refuses so to do, [It may here be expedient to insert counts on promises by the defendant "as" administrator, as in an action against an executor, see ante, 107.] To the damage of the said plaintiff of £— and therefore he brings his suit, &c. minore ætate, &c. trator. In an action against administrator durante minore ætate, of an executor or next of kin, the same mode of description is to be adopted as in an action at the suit of such an administrator, see ante, 110. Against a [In an action against a surviving administrator describe him accordingly at surviving the beginning, and conclude as follows:] Yet the said E. F. in his life-time, adminis- and the said defendant, and one G. H. in his life-time, now deceased, and whom the said defendant hath survived, and which said defendant and G. H. in the life-time of the said G. H. were administrators of all and singular the goods, chattels, and credits, which were of the said E. F. deceased, at the time of his death, who died intestate after the death of the said E. F. and the said defendant surviving administrator as aforesaid, after the death of the said G. H. not regarding the said several promises and undertakings, but contriving and intending to deceive and defraud the said plaintiff in this respect, have not, nor hath either of them, as yet paid the said plaintiff the said several sums of money, or any or either of them, or any part thereof (although often requested so to do). But to pay the same, or any part thereof, to the said plaintiff, the said E. F. in his life-time, and the said defendant and G. H. administrators as aforesaid, after the death of the said E. F. and in the lifetime of the said G. H. wholly refused, and the said defendant hath, ever since the death of the said G. H. hitherto wholly refused, and still refuses so to do, To the damage, &c. Against (to wit.) A. B. complains of C. D. administrator of all and singular an admin- the goods, chattels, and credits, which were of E. F. deceased, at the time of his death, left unadministered by G. H. in his life-time, now also deceased istrator de bonis non, with will annexed. [ *114 ] (a) This description is sufficient, 2 Stra. 781. |