to the characfer. &c. Profert.(z) V. Relating fore he brings his suit, &c. And the said A B 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 A B is executor of the last will and testament of the said E F deceased, and hath the execution thereof, &c. 90. Counts on promises to the plain tiff as executor.(a) * 57 Pledges, &c. And whereas also, the said C D afterwards, and in the life-time of the said E F deceased, to wit, on, &c. aforesaid at, &c. aforesaid, was indebted to the said E F in the further sum of. of like lawful money, for the work and labour, care and diligence, of the said EF, by him the said E F before that time done, performed and bestowed, *in and about the business of the said C D, and for the said C D, and at his special instance and request, and also in the further sum of. of like lawful money, for divers goods, wares and merchandise, by the said E F, before that time sold and delivered to the said CD, 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 C D, 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 CD, before that time had and received, to, and for the use of the said E F. And the said CD being so indebted, and the said several sums of money being and remaining wholly due and owing, unpaid and unsatisfied, he the said CD, in consideration thereof, afterwards, and after the death of the said E F, to wit, on, &c. at, &c. aforesaid, undertook, and then and there faithfully promised the said A B, as executor as aforesaid, to pay him the said (2) If the profert be omitted in a declaration even in scire facias, the defendant may demur specially, see 4 and 5 Ann. c. 16. s. 1. 2 Saund. 9. 1.1. Com. Dig. Pleader, O. 3. 17. 2 i), 1. The pledges are added after the profert, and if as sometimes happens in the common pleas, a profert of a deed be stated at the end of a declaration, the profert of the letters testamentary follows it. (a) These counts are to be inserted at the obelisk in the last precedent; they are proper whenever on account of the statute of limitations, &e, it may be expedient to rely on any promise or acknowledgment. since the death of the testator. See 2 East, 409. Willes, 29. In sapport of these counts, the plaintiff should, on the trial, produce the probate. 2 Saund. 47. k. ted. * 58 sum of money in this count mentioned, when he the said C D v. Reluting should be thereunto afterwards requested.(6) And whereas to the charac ter, &c. also the said CD afterwards, to wit, on, &c. last aforesaid, at, Account sta&c. aforesaid, accounted with the said A Bas(c) executor aforesaid, of and concerning divers other sums of money from the said CD to the said A B, as executor as aforesaid, before that time due and owing, and then in arrear and unpaid.And upon that accounting the said CD was then and there found to be in arrear and indebted to the said A B as executor as aforesaid, in the further sum of . of like lawful money, and being so found in arrear and indebted, he the said CD in consideration thereof, afterwards, to wit, on, ke. last aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said A B as executor as aforesaid, to pay him the said sum of money last-mentioned, whenever afterwards he the said CD should be thereunto requested. Yet the said CD not regarding his said several three(d) Breach. 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 A B, as executor as aforesaid, in this respect hath not 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 A B, executor as aforesaid, (although often requested so to do.) But the said C D to pay the same, or any part thereof, hath hitherto altogether refused, and still doth refuse. To the damage, &c. (as ante, page 56. adding profert.) tor. [In an action at the suit of a surviving executor, describe 91. By a su him accordingly in the beginning and conclude as follows:] living execu. Yet the said CD not regarding, &c. but contriving, &c. to deceive and defraud the said E F in his life-time, and the said (b) 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 plain- (c) As to this word, see 5 East, 150. (d) This depends on the number of counts in which the promises are laid to the executor. to the charuc ter, &c. 5. Relating A B and one G H in his life-time, now deceased, and whom the said AB hath survived, (which said A B 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 A B, 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 A B as surviving executor as aforesaid.(e) To the damage of the said A B 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 A B 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 A B will verify that the said G H is deceased, and that he the said A B hath thereby become, and is the surviving executor of the last will and testament of the said E F deceased, and hath the execution thereof, &c. * 59 Special profert and veriBeation. 92. By baron and feme exceutrix, be Pledges, &c. (to wit.) A B and C his wife, (which said C is executrix of the last will and testament of D deceased,) comfore marriage. plain of E F being, &c. For that whereas the said E F, on, &c. at, &c. was indebted, &c. [as in the common case at the suit of an executor.] Yet the said Fnot regarding, &c. but contriving, &c. to deceive and defraud the said D in his lifetime, 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 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 A B and C his wife, (e) It may be advisable to add executor, as in the last precedent. counts on promises to the plaintiff as to the charac ter, &c. axecutrix as aforesaid, or to either of the1. To the damage V. Relating of the said A B and C his wife, as exec trix as aforesaid, of - and therefore they bring their suit. [Add profert and pledges.] [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 Band Chis 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 AB and C his wife, executrix as aforesaid, or to either of them. To the damage of the said, &c. [As in the last precedent adding profert.] 93. By baron and feme ex ecutrix, after marriage. * 60 Markham and Le Blanc. Hilary Term, 47 Geo. III, an executor , (to wit.) A B complains of C D, executor of the 94. Against last will and testament of E F deceased, being in the custody, for work, &c. kc(f) For that whereas the said E F in his life-time, to for testator, on promises wit, on, &c. at, &c. was indebted, &c. and being so indebt- by him. ed, &c. (laying the promises by the testator.) Yet the said EF in his life-time, and the said C D, executor as aforesaid since the death of the said E F, not regarding, &c. but contriving, &c. have not, nor hath either of them as V. Relating to the character, &c. * 61 95. Against an executor yet paid the said several sums of money, or any, or either of them, or any part thereof to the said A B, (although often requested so to do.) But to pay the same or any part thereof to the said A B, the said E F in his life-time wholly refused, and the said CD executor as aforesaid, hath ever since the death of the said E F hitherto wholly refused and still refuses so to do. [See note, ante, 56. 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, &c. *And whereas also the said E F, deceased, in his life-time, on promises to wit, on, &c. aforesaid, at, &c. aforesaid, was indebted to the by him. in that said AB in the further sum of. of like lawful money, for capacity. the work and labour, care and diligence of the said A B, by him the said A B before that time done, performed and bestowed in and about the business of the said E F, and for the said E F, and at his special instance and request, and also in the further sum of-7. of like lawful money, for divers goods, wares, and merchandise by the said A B 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 A B 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 7. 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 A B. 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 CD as executor as aforesaid, in consideration thereof, afterwards, and after the death of the said E F, to wit, on, &c. at &c. aforesaid, undertook, and then and there faithfully promised the said A B to pay him the said sums of money in this count mentioned, when he the said C D as executor as aforesaid, should be thereunto afterwards requested. And whereas also the said CD, as executor as aforesaid, after wards, to wit, on, &c. last aforesaid, at, &c. aforesaid accounted, with the said A B of and concerning divers other sums of money from the said CDas executor as aforesaid to the said A B, before Account stated by defendant as execu for. |