to the character, &c. V. Relating of E F deceased, at the time of his death, who died intestate being, &c. For that whereas the said E F, in his life-time, to wit, on, &c. at, &c. was indebted, &c. (laying the promises by the deceased.) Yet the said E F, in his life-time, and the said C D, administrator as aforesaid, after the death of the said E F, not regarding, &c. but contriving, &c. to deceive and defraud the said A B, in this behalf, have not, nor hath 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 A B the said E Fin his life-time wholly refused, and the said C D, administrator as aforesaid, hath ever since the death of the said EF 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, 60, 61.] To the damage of the said A B of —I. and therefore he brings his suit, &c. * 68 105. Against a surviving administra tor. N. B. In an action against an administrator durante minore atate, 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. In an action against a surviving administrator, describe him accordingly at the beginning, and conclude as follows: Yet the said E F, in his life-time, and the said C D, and one G H in his life-time, now deceased, and whom the said CD hath survived, and which said C D 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 CD, surviving administrator as aforesaid, after the death of the said G H, not regarding, &c. but contriving, &c. have not, nor hath 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 A B, the said E F, in his life-time, and the said CD and G H, administrators 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 CD, surviving administrator as aforesaid, hath ever since the death of the said G H hitherto wholly refused, and still refuses so to do. To V. Relating the damage, &c. to the churacler, &c. 106. Against trator de bo an adminis -, (to wit.) A B complains of CD, administrator of all and singular the goods, chattels and credits, which were of E F deceased, at the time of his death left unadministered nis nan. by G H in his life-time, now also 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,) with the will of the said E F annexed, being, &c. For that whereas the said E F in his life-time, to wit, on, &c. at, &c. was indebted, &c. Yet the said E F in his life-time, and the said G H in his life-time, now deceased, after the death of the said E F, 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 C D, administrator as aforesaid, after the death of the said G H, not regarding, &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 AB the said E Fin his life-time, and the said G H, executor as aforesaid, in his life-time and after the death of the said E F respectively refused, and the said C D, administrator 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. (to wit.) A B complains of C D, and E his wife, which said E is administratrix, &c. of G H deceased, at the time of his death, who died intestate, being, &c. For that whereas the said G H, in his life-time, to wit, on, &c. at, &c. was indebted, &c. Yet the said G H, in his life-time, and the said E, administratrix as aforesaid, after the death of the said GH and whilst she was sole and unmarried, and the said C D, and E his wife, (which said E is administratrix as aforesaid,) since their intermarriage not regarding, &c. 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 A B the said G H in his life-time, and the said E, administratrix as aforesaid, after the death of the said G H, and whilst she was sole and unmarried * 69 107. Against feme, administratrix before marriage. baron and 108. Baron and feme, ad- As in the last precedent to the conclusion, which is as fol lows: Yet the said G H in his life-time, and the said CD, and E his wife, which said E is administratrix as *aforesaid, since the death of the said G H not regarding, &c. 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 A B the said G H in his life-time wholly refused, and the said C D, and E-his wife, which said E is administratrix as aforesaid, have ever since the death of the said G H hitherto wholly refused, and still refuse so to do. To the damage, &c. *II. SPECIAL COUNTS. * 71 1. On a policy of insurance on goods lost by capture, at the suit of the broker.(k) The policy. FOR that whereas the said A B,() heretofore, to wit, on, &c.(m) at, &c.(n) according to the usage and custom of merchants, caused to be made a certain policy of insurance,(0) purporting thereby and containing therein, that the said AB (or if effected by an agent for the plaintiff, say, "that the said E F")() as well in his own name, as for and in the name (k) By observing the following notes, this precedent may be applied to a policy on ship or freight, &c. or to an action by the principal. (1) This action may be brought in the name of the person interested, or of the person in whose name the policy was effected, Park. 403. Marshal, 589. If brought in the name of the party interested, on a policy effected in the name of an agent, the declaration states that the plaintiff "by one E F his agent in that behalf," made, &c. and sometimes shews that the requisites of the stat. 28 Geo. III. c. 56. have been complied with, as in 1 B. & P. 345. Marshal, 212. and note (t) post, 72. (m) The date of the policy in the margin, Park. 27. Marshal, 241. (n) The venue where the cause is to be tried. (0) The statute 35 Geo. III. c. 63. s. 11. enacts, that the instrument shall be called a "policy of insurance." (p) The word agent, needs not be inserted in the policy, 1 B. & P. 346. morandum. * 72 and names of all and every other person or persons to whom I On Poli the same did, might, or should appertain in part, or in all, did cies. make insurance and cause, &c. [here set out the policy in the past tense to the words, in witness," &c. which are to be omitted and then proceed as follows :(4)] And by a certain memoran- Common me dum thereunder written, corn, fish, salt, fruit, flour and seed, were warranted free from average, unless general, or the ship should be stranded; sugar, tobacco, hemp, flax. hides and skins, were warranted free from average, under 57. per cent. and all other goods; also the ship and freight were warranted free from average, under 31. per cent. unless general, or the ship *should be stranded.(r) And by a certain other memorandum there- Insurance on under written, it was declared, that the said insurance was on goods. goods.(s) As by the said policy of insurance and memoranda, Reference to policy. reference being thereunto had, will more fully and at large appear. And the said A B in fact saith, that the said policy of insurance and memoranda, were so made by him the said A B, as aforesaid, as the agent of one E F, and for his use and benefit, and that he the said AB did receive the order for, and effect the said policy of insurance as such agent as aforesaid, to wit, at, &c. as aforesaid.(1) Of all which said premises he the Notice to desaid CD afterwards, to wit, on, &c.(u) at, &c. aforesaid, had (9) This instrument has always been considered as ill-framed, 4 T. R. 210. Burr. 348. 1555. 3 East, 578. The policy is to be set forth with the blanks, 1 Went. 409. See the general rule as to construing it, 4 East, 135. (r) This is the common memoraudum at the foot of the policy, see Park, 20, 21. 101. Marshall, 240. as the memorandum is part of the policy, its contents may be so stated with out adopting the word dum." 66 memoran (*) The general terms of the insurance in the printed part of the policy, are qualified by the insertion, either in the body or at the foot of the policy, of the words "on ship," VOL. IF or on goods," or on freight," &c. (t) When the declaration is at the (u) The date of the defenda t's subscription at the foot of the policy [9] Policy made by plaintiff as agent. fendant. 1. On Poli cies. Mutual mises. * 73 pro notice. And thereupon afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, in consideration that the said A B, at the special instance and request of the said C D, had then and there paid to the said CD a certain sum of money, to wit, the sum of 57. 58. of lawful money of Great Britain, as a premium or reward for the insurance of 100%. of and upon the said goods, in the said ship or vessel, in the said voyage, (or "on the premises,") in the said policy of insurance mentioned, and had then and there undertaken and faithfully promised the said CD to perform and fulfil all things in the said policy of insurance, contained on the part and behalf of the insured, to be performed and fulfilled, he the said C D undertook, and then and there faithfully promised the said A B that he the said C D would become and be an insurer to the said A B of the said sum of 1007. upon the said goods,(x) in the said ship or vessel, in the said voyage, in the said policy of insurance mentioned, and would perform and fulfil all things in the said policy of insurance mentioned, on his part and behalf as such insurer of the said sum of 1007. to be performed and fulfilled. And the said CD then and there became and was an insurer to the said A B and then and there duly subscribed (or if by agent, "by one G H his agent in that behalf duly subscribed") the said policy of insurance, as such insurer of the said sum of 1002. upon the said goods, in the said ship or vessel, in the said Goods ship- voyage to wit, at, &c. aforesaid. And the said A B further saith, that heretofore, to wit, on, &c.(y) aforesaid, divers goods of great value, had been and were shipped and loaded at London aforesaid,(z) in and on board of the said ship or vessel in the said policy of insurance mentioned,(a) to be carried and conveyed therein, in the said voyage, to wit, at, &c. aforesaid. Interest of in- And that the said E F, (or if at the suit of the principal, that Defendant's subscription of the policy. ped. sured. (x)" Or freight of the said ship or vessel, in the said voyage." (y) This averment is omitted when the insurance is on ship. Sometimes it is stated that the goods were put on board after the making of the policy, and which allegation needs not be proved as laid, 5 f. R. 496. but the averment, in the above precedent seems preferable. (z) Or any other port from which the insurance was to take effect. As to this averment, see 2 B. & P. 153. (a) If the insurance were on freight, here say, "to be carried and conveyed on freight in and on board aforesaid ship or vessel in the said voyage." |