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V. Relating fore he brings his suit, &c.' And the said A B brings into court to the charac. ter, &c.

here, the letters testamentary of the said E F deceased, whereProfert.(?)

by it fully appears to the said court bere, that the said A B is execuior of the last will and testament of the said EP deceased, and hath the exccution thercof, &c.

Pledges, &c.

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90. Counts And whereas also, the said C D afterwards, and in the life-time

prouise's to the plain- of the said E F deceased, to wit, on, &c. aforesaidi at, &c. aforesaid, tiff as execu

was indebted to the said E F in the further sum of .oflike lawtor.(a)

ful money, for the work and labour, care and diligenco, 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 CD, and for the said CD, and at his special instance and request, and also in the further sum ofl. of like lawful money, for divers goods, wares and merchandise, by the said E F, before that time sold and delivered to the said C.D, and at his like special instance and request; and also in the further sum of

. of like lawful money, for money by the said EF, 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 C D 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

(:) If the profert he omitted in (a) These counts are to be inserta c!eclaration even in scire facias, the ed at the obelisk in the last prececlefi'ndant may derour specially, see dent; they are proper whenever on and 5 Ann, c. 16. s. 1. 2 Saond. 9. account of the statute of limitations, 1.1.. Coin. Dig. Plcauer, 0. 3. 17. 2 &c, it may be expedient to rely on 1.1. The periges are added after any promise or achnow ledgment the profert, and if as sometimes hap- since the death of the testator. See pens in the common pleas, a profert 2 East, 409. Willes, 29. of a deeri be stated at the end of a port of these counts, the plaintiff deeration the profert of the letters should, on the trial, produce the pretestamentary follows it.

bate. 2 Saund. 47. k.

In sap

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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 churac.

ter, &c. also the said C D afterwards, to wit, on, &c. last aforesaid, at, Account sta

tod, &c. aforesaid, accounted with the said A B as(c) executor aforesaid, of and concerning divers other sums of money from the said C D 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 esecutor as aforesaid, in the further sum of -. of like lawful money, and being so found in arrear and indebted, he the said C D 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 C D should be thereunto requested. Yet the said C D 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 intend. ing 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.)

[In an action at the suit of a surviving executor, describe 91. By a suu.

viving execu him accordingly in the beginning and conclude as follows :) tor: Yet the said C D not regarding, &c. but contriving, &c. to deceive and defraud the said E F in his life-time, and the said

(6) If the plaintiff in the charac- money had and received, to the plainter of executor has sold goods to the tiff's use, as executor. defendant, or paid money for him, (c) As to this word, see 5 East, here add counts for goods sold, &c. 150. by the plaintiff as executor. 6 East, (c) This depends on the number 405. 3 East, 104. And if the de- of counts in which the promises are fendant has received money since the laid to the executor. deaths of testator, add a count for

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7. Kelating

A B and one G H in his life-time, now deceased, and whom to the charuc

the said A B 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 1 B as surviving executor as

aforesaid.(e) To the damage of the said A B as surviving * 59

executor as aforesaid, of -. and therefore he brings his Special pro.

suit, &c. *And he brings into court here the letters testamenfert and veri. Heation.

tary 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.

Pledges, &c. 02. By baron -, (to wit.) A B and C his wife, (which said (' is and feme, es- executrix of the last will and testament of D deceased,) comceutrix, before 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 # F not 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 10 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,

(C) It may be advisable to add executor', as in the last precedent. counts on promises to the plainvil as

sxecutrix as aforesaid, or to either of th“). To the damage v. Relaling

to the charac of the said A B and C his wife, as exec trix as aforesaid, of -. and therefore they bring their suit. [Add profert and fledges.]

ter, c.

[As in the last precedent to the conclusion, which is as fol. 93. By baron lows :] Yet the said E F not regarding, &c. but contriving, ecutrix, after &c. 10 deceive and defraud the said D in his life-time, and the marriage. said A B and C his wife, as executrix as aforesaid, [if there be abother executor, say, “and the said G and the said 1 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 A B 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.

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Markham and Le Blanc.

Hilary Term, 47 Geo. III,

an executor

(to wit.) A B complains of C D, executor of the 94. Agains last will and testament of E F deceased, being in the custody, for work, &c. &c. (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 E F in his life-time, and the said CD, 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

(f) See 1 Saund. 112. n. 1. 2. tor of the last will and testament of The form against an executor de son Gideceased, was attached (or, tort is the same as above, 1 Saund. - summoned,") to answer A B of m 265. In deh!, whether by or against plea of trespass on the case, &c. (or: an executor or administrator, onuit as the plea is ;) and thereupon the the words, “ owes to und." In the said A B by his attorney, comcommon pleas the form runs as fute plains that whertas, &c.

(to mil.) ( D exken

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V. Relating yet paid the said several sums of money, or any, or either to the charac of them, or any part thereof 10 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.

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95. gainst *And whereas also the said E F, deceased, in his life-time,
an iecutor
on promises to wit, on, &cc, aforesaid, at, &c. aforesaid, was indebted to the
by hia in that
capacity.

said A B in the further sum of m. of like lawful money, for
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-l. of like lawful money, for divers goods, wares, and mer-
chandise 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 mo-
ney, for money by the said A B before that timę lent and ad-
vanced to, and paid, laid out and expended for the said EF,
and at his like special instance and request, and also in the fur-
ther sum ofl. 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 mo-
ney in this count mentioned, being and remaining wholly due
and unpaid, the said C D as executor as aforesaid, in considera-
tion 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
inoney in this count mentioned, when he the said C D as exe-

cutor as aforesaid, should be thereunto afterwards requested. Account sta- And whereas also the said C D, as executor as aforesaid, after. ted by defendant as execu- 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 c Dasexecutor as aforesaid to the said A B, before

(or.

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