faid action thereof against the faid J. S.; becaufe they say that the faid promife and undertaking in the faid laft Count mentioned, was not made by the faid J. S. together with the faid J. R. T. B. T. B. and J. M. in manner and form as by the fame plea is above alledged; and this the faid A. R. and J. R. pray may be enquired of by the country; and the faid J. S. doth the like. G. S. HOLROYD. to And as to the faid plea of the faid A. R. and J. R. by them Rejoinder, de above in reply pleaded to the faid plea of the faid J. S. by him murting genefecondly above pleaded in bar, he the faid J. S. fays, that the faid rally to replicaplea fo in reply pleaded, and the matters therein contained, are tion to 2d plea, not fufficient in law for the faid A. R. and J. R. to have or main- the replication tain their faid action against the said J. S. to which faid plea fo in to the 3d plea. reply pleaded in manner and form as the fame is above made and pleaded, he the faid J. S. hath no need, nor is he bound by the law of the land to answer; and this, &c.; wherefore for want of a fufficient replication in this behalf the fad J. S. prays judgment, and that the faid A. R. and J. R. may be barred from having and maintaining their said action thereof against him, &c. EDMONSON, ADMINISTRATOR, V. LAWES. to that debt, AND the faid Alfred, the Plea, ft, Tefat the fuit of now defendant, by A. B. his tatornon-assumpHARRISON. attorney, comes and defends fit and fimiliter; 2d, a boud-debt the wrong and injury, when, &c. and fays, that the faid A. E. outstanding and deceased, in his lifetime, did not undertake and promife in man- plene adminiftraner and form as the faid Daniel hath above thereof complained vit præter 51 against him; and of this he puts himself upon the country; and which are liable the faid plaintiff doth the like, &c.: And for further plea in this and not fuf behalf, the faid defendant by leave of, &c. according to, &c. fays ficient to fatisfy (actio non); because he fays that the faid A. E. now deceafed, in it. his lifetime, to wit, on, &c. at, &c. by his certain writing-obligatory, fealed with his feal, and as his deed delivered for a juft and true debt, became held and firmly bound to one R. L. and one J. D. in the fum of four hundred pounds, to be paid to the faid R. L. and J. D. when the faid A. E. now deceafed, fhould be thereunto afterwards requested, which faid writing-obligatory, at the time of the death of the faid A. E. now deceafed, was and ftill remains in full force, unpaid and uncancelled: And the faid Alfred, the now defendant, further fays, he has fully adminiftered all and fingular the goods and chattels which were of the faid A. E. now deceased, at the time of his death in his hands to be adminif tered, except goods and chattels to the value of five pounds, to wit, at, &c.; and that he hath not, nor at the time of exhibiting the bill aforefaid of the faid Daniel, nor at any time fince, had any goods and chattels which were of the faid A. E. now deceafed, at the time of his death in his hands to be adminiftered, except the faid goods and chattels to the value of five pounds, and which are not 3d Plea, plene adminiftravit generally. not fufficient to fatisfy the debt aforefaid, and which are fubject and liable to the fatisfaction thereof; and this, &c.; wherefore, &c. if, &c. And for further plea in this behalf, the faid A. E. the now defendant, by like leave of, &c. according to, &c. fays (actio non); because he says that he has fully administered all and fingular the goods and chattels which were of the said A. E. now deceased, at the time of his death, which have ever come to or been in his hands to be adminiftered, to wit, at, &c.; and that the faid Alfred, the now defendant, hath not, nor had he at the time of exhibiting the bill of the faid Daniel, nor hath he at any time fince any goods and chattels which were of the faid A. E. now deceased, at the time of his death, in the hands of him the faid Alfred, the now defendant, to be adminiftered; and this, &c.; wherefore, &c. if, &c. W. BALDWIN. Replication to And the faid Daniel, as to the faid plea of the faid Alfred, the the 2d plea, now defendant, by him fecondly above pleaded, inafmuch as the taking judg- faid Daniel cannot deny the feveral matters therein mentioned, but ment of affets in admits the fame to be true, prays judgment and his damages by futuro, with ftay of proceedings reafon of the non-performance of the faid feveral promifes and untill trial of the dertakings in the faid declaration mentioned to be adjudged to him, iffues. Unica taxatio. to be levied of the goods and chattels which were of the faid A. E. deceased, at the time of his death, and which, after fatisfying the debt in the faid fecond plea mentioned, fhall hereafter come to the hands of the faid Alfred, the now defendant, to be adminiftered; therefore it is confidered that the faid Daniel do recover against the faid Alfred, the now defendant his damages to be levied in form aforefaid; but because it is convenient and neceflary that there be but one taxation of damages in this fuit, and because it is uncertain whether or not the faid Alfred, the now defendant, will be convicted upon the faid pleas by him firftly and lastly above pleaded; therefore let all further proceedings upon the faid plea of the faid Alfred, the now defendant, by him fecondly above pleaded, be stayed until the determination of the faid To 3d plea of other pleas by him firftly and laftly above pleaded. And as to the plene adminfira faid plea of the faid A. E. the now defendant, by him laftly above vit, taking iffue pleaded, the faid Daniel faith, that he, by reafon of any thing by on it. the faid Alfred, the now defendant, in that plea above alledged, ought not to be barred from having and maintaining his aforefaid action thereof against him; because he fays that the faid Alfred, the now defendant, hath and at the time of the exhibiting the said bill of the faid Daniel, had divers goods and chattels which were of the faid Alfred, deceased, at the time of his death, in the hands of him the faid Alfred, the now defendant, to be administered, to wit, at, &c.; and this he the faid Daniel prays may be enquired of by the country; and the faid Alfred, the now defendant, doth the like; therefore, as well to try this iffue as the faid other iffue above joined between the faid parties, let a jury come before our lord the king at Westminster, on, &c. by whom, &c. who neither neither, &c. to recognize, &c. because as well, &c. the fame day is given to the faid parties there, &c. GREEN adminiftratrix ; the causes of AND the faid Robert, Plea to action of by James Garth his attor- affumpfit, by an WARREN, ADMINISTRATRIX, &c. ney, comes and defends the it, non-ufjumpwrong and injury, when, &c. and fays, that he did not undertake and and iffue; promife in manner and form as the faid Margaret, adminiftratrix 2d, bankruptcy in as aforefaid, hath above thereof complained against him; and of defendant after this he puts himself upon the country, &c.; and the said Marga- action accrued, ret, adminiftratrix as aforefaid, doth the like, &c.: And for fur- and iffue. ther plea in this behalf, the faid Robert, by leave, &c. (altio non); because he fays that he the faid Robert, fince the fourteenth day of May, which was in the year of Our Lord 1729, to wit, on the feventeenth day of January, in the year of Our Lord 1778, to wit, at Manchester in the faid county of Lancaster, became a bankrupt within the feveral ftatutes made against bankrupts: And the faid Robert, according to the form of the ftatute in fuch cafe made and provided, further pleads and fays, that the feveral caufes of action, in the declaration aforefaid above specified refpectively accrued before the faid time that he the faid Robert so as aforefaid became a bankrupt; and of this he the faid Robert puts himself upon the country, &c.; and the faid Margaret, adminiftratrix aforefaid, doth the like, &c. And for further plea 3d Plea, non-afin this behalf, the faid Robert, by leave of the court here to him jumpfis infra jem for this purpose first granted according to the form of the ftatute annos. in fuch cafe made and provided, fays, (actio non); because he says that he the faid Robert did not at any time within fix years before the exhibiting the bill of the faid Margaret, adminiftratrix as aforefaid, undertake and promise in manner and form as the faid Margaret hath above thereof complained against him; and this he the faid Robert is ready to verify; wherefore he prays judgment if the faid Margaret, adminiftratrix as aforefaid, ought to have money due from or maintain her aforefaid action thereof against him, &c.: And 4th Plea, to 1ft, for further plea in this behalf, by like leave, &c. (actio non); be- 2d, 3d, and 4th cause he fays that the faid Samuel, in his lifetime, and at the Counts fet off, time of his death, was indebted to him the faid Robert in more teftator; and to money than is owing from him the faid Robert to the faid Mar- 5th, 6th, 7th, garet, administratrix as aforefaid, and by virtue of the feveral and 8th Counts promises and undertakings in the firft, fecond, third, and fourth of money due Counts of the faid declaration mentioned, that is to fay, in the to defendant as fum of five hundred pounds of, &c. for, &c. and which faid feveral fums of money laft-mentioned, fo due and owing from the faid Samuel, in his lifetime, to the faid plaintiff, are ftill due and owing and unpaid to the faid Robert; and alfo that the faid Margaret, adminiftratrix as aforefaid, before and at the time of exhibiting the bill of the faid Margaret, was and ftill is indebted to the faid Robert in more money than is due and owing from the faid Robert to the faid Margaret, adminiftratrix as aforesaid, by virtue of adminiftratrix. Replication to 3d plea, that de fendant did pro of the promifs and undertakings in the fifth, fixth, seventh, and laft Counts of the faid declaration mentioned, that is.to fay, in the fum of five hundred pounds of like lawful money, for, &c. which faid feveral and refpective fums of money, or fo much thereof as fhall be neceffary in this behalf, the faid Robert hath been ready and willing to fet off an now fets off against any demands due and owing to the faid Margaret, as adminiftratrix as aforefaid, by virtue of the fevera! promifes and undertakings in the faid feveral Counts of the faid der aration mentioned, according to the form of the ftatute in fuch cafe made and provided; and this he the faid Robert is ready to verity: wherefore he prays judgment if the faid Margaret, adminiftratrix as aforef id, ought to have or maintain her aforefaid action thereof against him, &c. WARREN, ADMINISTRATRIX, against GREEN. WILLIAM MANLEY And the faid Margaret, as to the faid plea of the faid plea of the faid Robert by him mife within fix thirdly above pleaded in bar, fays, that by reafon of any thing by years, and iffue. the faid Robert in that plea alledged, the the faid Margaret; ad miniftratrix as aforefaid, ought not to be barred from having or maintaining her aforefaid action thereof againtt him the faid Robert; because the fays that he the faid Robert did, within fix years next before the day of exhibiting the bill of the faid Margaret, adminif tratrix as aforefaid, undertake and promife in manner and form as the faid Margaret, adminiftratrix as aforefid, hath above thereof complained against him the faid Robert, to wit, at Manchester aforefaid, in the county of Lancafter; and this the the faid Margaret prays may be enquired of by the country; and the faid Replication to Robert doth the like, &c.: And as to the faid plea of the 4th plea, nil de- faid Robert by him laftly above pleaded in bar fhe the faid bet and iffue. Margaret, adminiftratrix as aforefaid, fays, that fhe, by reason of any thing by the faid Robert in that plea alledged, ought not to be barred from having and maintaining her aforefaid action thereof against him the faid Robert; because he fays that neither the faid Samuel, in his lifetime, nor fhe the faid Margaret, after his death, as fuch adminiftratrix as aforefaid, were indebted to the faid Robert in manner and form as the faid Robert hath above in his faid laft-mentioned plea alledged; and this fhe prays may be enquired of by the country; and the faid Robert doth the like, &c. THOMAS BARROW. AND the faid Chriftopher, as to the faid plea of the said Ann Replication of Michaelmas by her lattly above pleaded, fays, that the faid Chriftopher ought Term to plea of not by reafon of any thing therein contained to be precluded from plene aumini ra- having and maintaining his aforefaid action thereof against her; be * cause ne fays that this action was laft continued from the day of after the laft continuance of plea, affets came to defendant's hands, with opinion as to the propriety of fuch replication. *The day of putting in the plea, if in term; if not, the laft day of Hilary. vit of Hilary, protefting that in in Hilary term laft paft, on which day the faid laft-mentioned plea was pleaded; and that though true it is that the faid Ann, at the faid time of pleading the faid laft-mentioned plea, had not any goods or chattels which were of the faid Thomas Jones deceased, at the time of his death, in her hands to be adminiftered, for replication in this behalf the faid Christopher fays, that after the said day of , from which day the faid action was laft continued as aforefaid, and before this day, to wit, on the day of, to wit, at London aforefaid, in the parish and ward aforefaid, divers goods and chattels which were of the faid Thomas Jones deceased, at the time of his death, of a large value, to wit, of the value of pounds, came to the hands of the faid Ann as administratrix as aforefaid, to be administered; and this he the faid Chriftopher is ready to verify: wherefore he prays judgment and his debt aforefaid, together with his damages by him fuftained on occafion of the detaining the faid debt, to be levied as to the value of the faid laft- If they are inmentioned goods and chattels, part thereof of the jaid goods and chat- fufficient to pay. tels which came to the hands and poffeffion of the faid Ann, as such adminiftratrix as aforefaid; and as to the refidue thereof to be levied of the goods and chattels which were of the faid Thomas Jones deceased, and which hereafter fhall come to the hands of the faid Ann, as fuch adminiftratrix as aforefaid, to be adminiftered, THOMAS BARROW. I have confidered the cafe with much attention, and have had con. fiderable doubts refpecting the proper Rep to be taken. Three questions arife, Whether to take judgment of affets quando acciderunt, or to reply puis darrein continuance that affets have come to defendant's hands fince plea pleaded, or to move the court to enter a judgment (that is to fay, of the term in which the plea was put in) pro nunc ? on a fuppofition that judgments of affets in future would only attach upon affets which hereafter come to defendant's hands to be administered (as is the language of the modern form of fuch judgment); or for a fpecial judgment of affets which have come to defendant's hands fince the plea pleaded, as far as they will extend to fatisfy, and for the refidue out of future affets quando acciderunt. As to the firft a confiderable question arises in my mind, Whether a general judgment of affets quando acciderunt (admitting the plea), would reach the intermediate affets ac crued between the plea and the judg- tator; 2d, fet AND the said Jane, by John Jones, her attorney, comes and Plea, ft, nondefends the wrong and injury, when, &c. and fays, that the faidampfit by tefoff; 3d, plene adminiftravit; 4th, outstanding debts on JUDGMENT RECOVERED, and on COVENANTS for the payment of ANNUITIES, with plene adminiftravit præter. VOL. III. Thomas |