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V. Relating of E F deceased, at the time of his death, who died intestate or the charac- being, &c. For that whereas the said & 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 F in his life-time wholly refused, and the said CD, ad
ministrator as aforesaid, 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 de-
fendánt as administrator, as in an action against an executor,
*see ante, 60, 61.] To the damage of the said 4 B of
and therefore he brings his suit, &c.

* 68

N. B. In an action against an administrator durante minore etate, of an executor or next of kin, the same mode of de. scription is to be adopted as in an action at the suit of such an administrator.

105. Against a surviving 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 CD, and one G H, in his life-time, now deceased, and whom the said C D 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 C D, 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 GH, 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

se :

G H hitherto wholly refused, and still refuses 50 to do. the damage, &c.

To V. Relating to the churac.

&c.

by

(to wit.) - A B complains of CD, administrator 106. Against

an adıninis. of all and singular the goods, chattels and credits, which were trator de buof E F deceased, at the time of his death left unadministered nis nan.

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

* 69 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 testa, ment 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 A B the said E F in 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 bis 107. Against wife, which said E is administratrix, &c. of G H deceased, at feme, admi. the time of his death, who died intestate, being, &c. For that

nistratrix bea

fore marriage 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, administrațrix as aforesaid, after the death of the said G H 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

V. Relating respectively refused, and the said C D, and E his wife, administo the charac- tratrix as aforesaid, have ever since their intermarriage hitherto wholly refused, and still refuse so to do.

To the damage, &c.

ler, &c.

[blocks in formation]

As in the last precedent to the conclusion, which is as follows: Yet the said G H in his life-time, and the said C D, 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.

* 71

*II, SPECIAL COUNTS.

1. On a policy

FOR that whereas the said A B,(?) heretofore, to wit, on, of insurance &c.(m) at, &c.(n) according to the usage and custom of meron goods lost by capture, at chants, caused to be made a certain policy of insurance, (o) purthe suit of the broker.(k) porting thereby and containing therein, that the said A B(or if

effected by an agent for the plaintiff, say, “ that the said The policy.

E F,)(1) as well in his own name, as for and in the name

(k) By observing the following shews that the requisites of the stat. notes, this precedent may be applied 28 Geo. III. c. 56. have been comto a policy on ship or freight, &c. or plied with, as in 1 B. & P. 345. Mar to an action by the principal.

shal, 212. and note (1) post, 72. (1) This action may be brought in (m) The date of the policy in the the name of the person interested, or margin, Park. 27. Marshal, 241. of the person in whose name the po (n) The venue where the cause is licy was effected, Park. 403. Mar. to be tried. shal, 589. If brought in the name of (6) The statute 35 Geo. III. c. 63. the party interested, on a policy ef. s. 11. enacts, that the instrument shall fected in the name of an agent, the be called a “policy of insurance." declaration states that the plaintiff (P) The word agent, needs not be " by one E F his agent in that be- inserted in the policy, 1 B. & P. 346. half,” made, &c. and sometimes

* 72

and names of all and every other person or persons to whom 1. On Polis 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 :(9)] And by a certain memoran- Common me.

morandum, 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, fax, hides and skins, were warranted free from average, under 5l. 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 reference being thereunto had, will more fully and at large ap

policy. pear. And the said A B in fact saith, that the said policy of Policy, made insurance and memoranda, were so made by him the said A B, agent.

by plaintiff as as aforesaid, as the agent of one E F, and for his use and benefit, and that he the said A B did receive the order for, and effect the said policy of insurance as such agent as aforesaid, to wit, at, &c. as aforesaid.(l) Of all which said premises he the Notice to de

fendant. said C D afterwards, to wit, on, &c.(u) at, &c. aforesaid, had

(9) This instrument has always or "on goods,” or “on freight,” &c. been considered as ill-framed, 4 T. and when inserted at the foot, such R. 210. Burr. 348. 1555. 3 East, memorandum is deseribed as in the 578. The policy is to be set forth precedent. with the blanks, 1 Went. 409. See (6) When the declaration is at the the general rule as to construing it, suit of the principal, this averment is 4 East, 135.

to be omitted.

As to this averment, (T) This is the common memo see 28 Geo. III. c. 56. 1 B. & P. 317. raudum at the foot of the policy, see 315. If the policy be effected in the Park, 20, 21, 101. Marshall, 240. as name of a firm, it may be expedient the memoranduin is part of the poli to aver, that it is the usual firm of the cy, its contents may be so stated with plaintiffs, as in i B. & P. 317, 345. out adopting the word “

As, however, at common law, these dam."

requisites did not exist, it seems that (*) The general terms of the in- they need not be averred in plearing. surance in the printed part of the 1 Saund. 276. a. 11. 2. Sir T. Rayo. policy, are qualified by the insertion, 450. either in the body or at the foot of (1) The date of the defenda t's the policy, of the words “on ship,” subscription at the foot of the policy VOL. IK

[9]

memoran.

1. On Poli- notice. And thereupon afterwards, to wit, on, &c. last áforecies. Mutual

pro

said, at, &c. aforesaid, in consideration that the said A B, at the mises.

special instance and request of the said C D, had then and there paid to the said C D a certain sum of money, to wit, the sum of 51. 58. of lawful money of Great Britain, as a premium or reward for the insurance of 1001. 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 C D to perform and fulfil all things in the said policy

of insurance, contained on the part and behalf of the in* 73

sured, "to be performed and fulfilled, he the said C D under took, and then and there faithfully promised the said A B that he the said CD would become and be an insurer to the said A B of the said sum of 1001. 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 1001. to be performed and Defendant's fulfilled. And the said C D then and there became and was an inBubscription of the policy. surer 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

100l. upon the said goods, in the said ship or vessel, in the said Goods shipped.

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 sured.

were op

(r) “ Or freight of the said ship or (z) Or any other port from which vessel, in the said voyage.”

the insurance was to take effect. As (y) This averment is omitted when to this averment, see 2 B. & P. 53. the insurance is on ship. Sometimes (a) If the insurance it is stated that the goods were put on freight, here say, “to be carried and board after the making of the policy, conveyed on freight in and on board and which allegation needs not be aforesaid ship or vessel in the said proved as laid, 5 C. R. 496. but the voyage.” averment, in the above precedent seems preferable.

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