day of testament(u) in writing, and thereby constituted and appoint- By executors, &'c. ed the said C D executor thereof, and afterwards, to wit, on the A. D. -, at, &c. aforesaid, the said E F died, without revoking or altering his said will; after whose death the said C D duly proved the said will, and took upon himself the burthen of the execution thereof, to wit, at, &c. aforesaid; and the said CD further saith, that he hath fully administered all and singular the goods and chattels which were of the said E F at the time of his death, and which have ever come to the hands of him the said C D to be administered, except goods and chattels of small value, to wit, of the value of 10%.(x) and that he hath not, nor on the day of exhibiting the bill aforesaid, (or if in C. P. or by original, "at the time of the commencement of this suit,") or at any time afterwards, had any goods or chattels which were of the said E F deceased, at the time of his death, except the said lastmentioned goods and chattels, of the value aforesaid, which are not sufficient to pay or satisfy the monies due and owing to the said C D as aforesaid, and which he the said CD retains in his hands, towards and in part satisfaction and payment thereof, and this, &c. [conclude with a verification, as ante, 422. sixth precedent.] [Actio non, as ante, 421. first precedent.] Because he says, Judgment rethat one G H heretofore, and in the life-time of the said *E F, to wit, in(z) term, in the (u) In an action against an administrator, it is not necessary, in his plea of retainer, to state the letters of administration, 6 T. R. 550. but it is otherwise in the case of an executor, who pleads a retainer in that character, 1 Mod. 208. but see 6 T. R. 550. 2 Stra. 1106. and therefore the above allegation of the will and appointment of the defendant as executor, is in general advisable; and if in an action against a person sued as executor, he plead a retainer as administrator, the letters of administration should be stated, Sir T. Jones, 23. 6 T. R. 551. year of the reign of our (x) Some value ought to be stated, though the precise amount is neither material nor traversable, 1 Saund. 333. p. 7. (y) See the precedents, 3 Wentw. Index, 26 to 33. 1 Saund. 329 to 339. Lutw. 446, 447. Lil. Ent. 159. 111. and as to the form of a plea of this nature in general, 1 Saund. 329 to $39. in the notes. (z) The plea must state the term and year when, and the court is in which the judgment was obtained, 1 Saund. 329. n. 1. and as to the mode of sta ting a judgment recovered against the deceased, id. ibid. n. 2. gainst testator, an outstanding bond, and a judg ment against defendant.(y) * 455 covered a &c. Judgment against decea sed. Bond outstanding. By executors, lord the now king, in the court of our said lord the king, before the king himself, [state the recovery of the judgment against the deceased in King's Bench, Common Pleas, or Exche quer, whether in assumpsit or debt, &c. precisely as in the precedents, ante, 181 to 183. and conclude as in those precedents, with a reference to the record, and an allegation that the judg ment is still in force; see the precedent in Saund. 329. and then proceed as follows:] And the said CD further saith, that the said E F in his life-time, to wit, on, &c. at, &c. aforesaid, by his certain writing obligatory, sealed with his seal, became held, and firmly bound unto one J K in the sum of 1. of lawful money of Great Britain, to be paid to the said J K, when he the said E F should be thereto afterwards requested, which said writing obligatory was so made as aforesaid, for securing the payment of a just debt,(a) and at the time of the death of the said E F, was and still is in full force and effect, not in any wise cancelled, annulled, paid off, or satisfied, and before and at the time of the commencement of this suit, there was and still is due and owing to the said J K, upon and by virtue of the said writing obligatory, a large sum of money, to wit, the sum of. to wit, at, &c. aforesaid.(b) And the said CD further saith, that one L M, after the death *of the said E F, to wit, in term, in the year of the reign of our lord the now king, (d) by bill without the writ of Judgment a gainst defend ant.(c) *456 (a) This allegation is usual, though it is not necessary. If the debt were not a just one, the plaintiff might shew it in his replication, 1 Saund. 330. n. 4. 333. n. 6. (b) The defendant may plead the penalty as the outstanding debt, or may shew what is really due, and the latter mode is recommended; and sometimes it is proper to set forth the condition of the bond, as ante, 453. 5 T. R. 309. 1 Saund. 333. n. 7. (c) As to the mode of pleading a judgment against the defendant as executor or administrator, see 1 Saund, 329. n. 3. 530. n. 4. 331. n. 5.. Formerly it was the practice in all cases, to set forth the bond or other debt upon which the judgment was &c. our said lord the king, impleaded the said C D as executor, By executors, of the last will and testament of the said E F, deceased, [or "as administrator of all and singular the goods and chattels, rights and credits which were of the said E F, at the time of his death, who died intestate,”] in the court of our said lord the king, before the king himself, at Westminster, in the county of Middlesex, in a certain plea of debt,(e) for the sum of - due and owing to the said L M from the said E F in his life-time, and at the time of his decease, and such proceedings were thereupon had in the said court of our said lord the king, before the king himself, at Westminster aforesaid, in that plea, that the said L M, afterwards, to wit, in that same — term, in the year aforesaid, by the consideration and judgment of the said court, recovered against the said CD, as executor, for "as administrator,") as aforesaid, his said debt of ~/. and also. which by the same court were adjudged to the said LM for his damages which he had sustained, as well on occasion of the detaining of that debt, as for his costs and charges, by him about his suit in that behalf expended, to be levied of the goods and chattels, which were of the said E F, at the time of his death, in the hands of the said C D to be administered, if he had so much thereof in his hands to be administered, and if he had not so much thereof in his hands to be administered, then the sum of parcel of the damages aforesaid, being the amount of the costs and charges afores. id, to be levied of the proper goods and chattels of the said C D. Whereof the said CD was convicted, as by the record and proceedings thereof remaining, in the said court of our said lord the king, before the king himself, at Westminster aforesaid, more fully appears, Which said judgment so had and ●btained as aforesaid, was had and obtained for a true and just debt, due and owing to the said L M, from the said E Fin his life-time, and at the time of his death,(ƒ) and sull remains in * 457 (e) The judgment is to be described according to the fact, whether in #ssumpsit, debt, or covenant, see the mode of stating the judgment, ante, (f) This is not necessary, see " By executors, full force and effect, not in any wise reversed, annulled, dis તું. Plene admi ter. charged, or satisfied ;(g) and before and at the time of the commencement of this suit, there was and still is due and owing to the said L M, upon and by virtue of the said lastmentioned judgment, a large sum of money, to wit, the sum of. to wit, at, &c. aforesaid.(h) · And the said C D further nistravit pre-saith, that he hath fully administered all and singular the goods and chattels which were of the said E F deceased, at the time of his death, which have ever come to his hands to be administered, except goods and chattels of small value, to wit, of the value of 101.() and that he the said CD hath not, nor on the day of the exhibiting the bill of the said A B in this behalf, (or in C. P. or by original,“ at the time of the commencement of this suit,") or at any time since, had any goods or chattels, which were of the said E F at the time of his death, in his hands to be administered, except the said goods and chattels of the value aforesaid, which are not sufficient to satisfy the several debts aforesaid, due and owing on the said judgments, and writing obligatory, (according to the fact,) and which are subject and liable to satisfy the said several debts. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.(k)] * 458 (g) This is unnecessary, 1 Saund. 3.30. n. 4. (h) As to this allegation, ante, 453. a. (t), 455. n. (b). (i) As to this allegation, see ante, 454. (x). (k) Formerly this plea was coNcluded with an averment of the intestate's being the same person as mentioned in the bond and record of judgment, but it is not material, and is now omitted, 1 Saund. 334. n. 8. led, & due adi the s *PLEAS IN DEBT. In the King's Bench, (or "C. P." or "Exchequer.") General sues, &c. Term, 48 Geo. III. he T betal CD ats. And the said CD, by E F his attorney, comes and deAB. fends the wrong and injury, when, &c. and says, that he does not owe the said sum of money, (or "the said sum of -.")(b) above demanded, or any part thereof, in manner and form as the said A B hath above thereof complained against him, and of this he the said CD puts himself upon the country, &c. C D Nil debet generally.(a) And the said CD, by E F his attorney, comes and de- Nil dehet ti A B.(c) fends the wrong and injury, when, &c. and says, that debt, qui tam. (d) he does not owe to(e) our said lord *the king, (or "to the poor * 460 of the said parish of, in the county aforesaid,”) and to the said AB who sues as aforesaid, or to either of them the said (a) As to this plea in general, see ante, vol. 1. Index, tit. Nil Debet.. It is a proper plea to debt on simple contract, or for an escape, or on a penal statute, or when the deed is mere inducement to the action, but not when the action is founded on a specialty, as on a bail-bond, &c. or on a record, Ld. Raym. 1500. Com. Dig. Pleader, 2 W. 17. (b) If the sum be specified, care must be taken that the plea applies to all the sums demanded; thus where a declaration in debt demanded 2,000l. and contained several counts, each of which stated a debt of 2247. and the defendant pleaded that he did not owe the said sum of 2247. it was decided that the plaintiff might sign judgment, as for want of a plea, 3 B. (e) It is sufficient in a qui tam (d) See the precedents, 7 Wentw. Index, 632, 633. (e) The plea in this respect should be conformable to the declaration, and where, in an action qui tam, the plea stated that the defendant did not owe to the plaintiff, omitting" and to our lord the king," it was held insufficient, Hob. 328. Bac. Abr. Action, qui tam, D. and. Reg. Plac. 302. but it would be sufficient to say he doth not owe generally, modo and forma, &c. without specifying to whom |