the said last mentioned monies respectively on request. Yet the defendant V. RESPECTING CHARACTER,&c. hath disregarded his promises and hath not paid any of the said monies or any part thereof, To the plaintiff's damage as such assignee as aforesaid of Breach. £, and thereupon he brings suit, &c. As to the joinder of different counts in an action by assignees, see ante, vol. i. Joinder in Action. When there has been any distinct promise or acknowledgment to the assignees, or cause of action accruing after the act of bankruptcy, it may be expedient to declare as in the following counts; and a count on an account stated with the plaintiffs as assignees should be added, when the evidence will support it. To be inserted after the promises in the other counts.] And whereas also The like on prothe defendant, before the said E. F. [the bankrupt] became bankrupt, to mises to the assignees after the wit, on &c., (g) was indebted to the said E. F. in £- -, for the price and bankruptcy.(ƒ) value of goods then sold and delivered by the said E. F. to the defendant, at his request; and in &c. [Proceed as in first count, and then state the promise thus:] And the said defendant being so indebted, and the said Promise to the several sums of money in this count mentioned remaining wholly unpaid, the assignees. defendant, in consideration of the premises, afterwards, and after the said E. F. became bankrupt, to wit, on the day of ‚(g) A. D. , pro mised the plaintiffs, as (i) assignees as aforesaid, to pay them the said monies in this count mentioned on request. (i) Yet the defendant hath disregarded Breach. his said promises, and hath not paid the several monies respectively, or any part thereof, To the damage of the plaintiffs, as assignees as aforesaid, of Conclusion. €, and thereupon they bring suit, &c. To be inserted after the promises in the other counts.] And whereas also The like on causes of action the defendant, after the said E. F. became bankrupt, to wit, on &c., (1) was arising after the indebted to the plaintiff, as assignee as aforesaid, in £ for the price and bankruptcy. (k) value of goods then sold and delivered by the plaintiff, as assignee as aforesaid, to the defendant, at his request; and in &c. [So proceeding to state the other causes of action to the plaintiff recoverable under the common count, and insert the usual breach, as supra, last precedent, which, it will be observed, is applicable to the whole declaration. If the plaintiff be a surviving assignee, call him so throughout, and insert the By a surviving usual breach, as supra. Commencement, ante, 19.] For that whereas the defendant, before the said L. M. became bankrupt, to wit, on &c., (n) was indebted to the said (f) When not necessary; Cowp. 569; Wightw. 65. (g) It is usual to insert a day before the bankruptcy, but any day before the date of the writ will suffice. (i) See Forms, Lil. Ent. 42; Plead. Assist. 311. If the assignees have in that character sold goods to the defendants, or he has, since the bankruptcy, received money for their use, here add counts for goods sold by them as assignees, or for money had and received to their use as assignees, as in form, post, 72; as to the propriety of which counts, see 2 Show. 250; 6 East, 405. It is now not un assignee. By one partner and the assignee of another, (k) As to the propriety of these counts, see (n) It is usual to insert a day before the V. RESPECTING E. F. and L. M. in £for the price and value of goods then sold and CHARACTER,&c. delivered by them to the defendant, at his request [state the subject-matter of the cause of action recoverable under the common count :] And thereupon the defendant, in consideration of the premises, afterwards and before the said L. M. became bankrupt, to wit on the day and year aforesaid, promised the said E. F. and L. M. to pay them the said several monies respectively on request. Yet the defendant hath disregarded his said promise, and hath not paid the said several monies, or any part thereof, To the damage of the said A. B. and C. D. as assignees as aforesaid, and also of E. F., of £and thereupon they bring suit, &c. Breach. By the assignee of an insolvent debtor on promises to insolvent. (0) Breach. Conclusion where the declaration con check. Commencement, ante, 20.] For that whereas the defendant, heretofore and before the granting of any orders by the Court for the Relief of Insolvent Debtors for vesting the estate and effects of the said E. F. according to the form of the statute in such case made and provided, and before the estate and effects of the said E. F. became vested in the plaintiff as such assignee as aforesaid, to wit, on (p) &c., was indebted to the said E. F. in £, for &c. [here state the subject-matter of the debt to the insolvent, and conclude as follows:] And thereupon the defendant, in consideration of the premises, afterwards and before the granting of the said order and vesting of the said estate and effects of the said E. F. in the plaintiff as assignee as aforesaid, to wit, on the day and year aforesaid, promised the said E. F. to pay him the said several monies respectively on request. Yet the defendant hath disregarded his said promises, and hath not paid the said several monies, or any part thereof, To the damage of the plaintiff, as assignee as aforesaid, of £, and thereupon he brings suit, &c. If there be no common count to be added, insert breach as in the last form ; but if there was any consideration between the parties for the note or bill, tains a count on after setting forth the count on the note, bill or check, add counts as follows :] a note, bill or And whereas also the defendant, heretofore, and before the granting, &c. [as in last form] to wit, on &c., was indebted to the said E. F. in £for &c. [stating the consideration for the note, bill or check], and in £for money found to be due from the defendant to the said E. F. on an account then stated between them: And whereas the defendant in consideration of the premises respectively, afterwards and before the granting of the said order and the vesting of the said estate and effects of the said E. F. in the plaintiff as such assignee as aforesaid, to wit, on the day and year last aforesaid, promised the said E. F. to pay him the said last-mentioned monies respectively on request. Yet the defendant hath disregarded his promises, and hath not paid any of the said monies or any part thereof, To the plaintiff's damage as assignee as aforesaid of £, and therefore he brings his suit, &c. Breach. Counts on causes of action arising to the assignee after the making of the vesting order. And whereas also the defendant, after the making of the said order, and after the estate and effects of the said E. F. became vested in the plantiff as (0) The acts now in force relative to insolvent debtors are the 48 Geo. 3, c. 123, usually called the Small Debtors' Act; the 1 Vict. c. 110 (which is the principal act); and the late statute of 5 & 6 Vict. c. 116. As to the vesting of the estate in the assignee, see 1 Vict. 110, ss. 37 and 45. (p) It is usual to insert a day before the petition, but any day before the issuing of the writ will suffice. such assignee as aforesaid, to wit, on &c., (q) was indebted to the plaintiff, V. RESPECTING as assignee as aforesaid, in £, for the price and value of goods then sold CHARACTER,&c. and delivered by the plaintiff, as assignee as aforesaid, to the defendant, at his request; and in £—, for &c. [inserting such other debts as may be necessary to cover the plaintiff's claim, and add promise and breach, thus:] And thereupon the defendant, after the making of the said order, and after the estate and effects of the said E. F. became vested in the plaintiff as such assignee as aforesaid, to wit, on the day and year last aforesaid, in consideration of the premises respectively, promised the plaintiff, as assignee as aforesaid, to pay him the said several last-mentioned monies respectively on request. Yet the defendant hath disregarded his said promises, and hath Breach. not paid any of the said several monies respectively, or any part thereof, To the damage of the plaintiff, as assignee as aforesaid, of £, and thereupon he brings suit, &c. Fourthly.-EXECUTORS. By an executor for work, &c. on a promise to testator. (r) Commencement, ante, 20.] For that whereas the defendant, in the lifetime of the said E. F., to wit, on &c., (s) was indebted to the said E. F. in £for the price and value of goods then sold and delivered by the said E. F. to the defendant at his request, and in £, for &c. [so stating any other debt to the testator recoverable under a common count :] And thereupon the defendant, in consideration of the premises, afterwards and in the life-time of the said E. F., to wit, on the day and year aforesaid, promised the said E. F. to pay him the said several monies respectively on request. Yet the defendant hath disregarded his said pro- Breach. mise, and hath not paid the said monies respectively, or any part thereof, To the damage of the plaintiff, as executor as aforesaid, of £—, and thereupon he brings suit, &c. And the plaintiff brings into Court here the Profert. () letters testamentary of the said E. F. deceased, whereby it fully appears to the said Court here that the plaintiff is executor of the said last will and testament of the said E. F. deceased, and hath the execution thereof, &c. claration con a note, bill or check. If there be no common count to be added, insert breach as in the last form; Conclusion but if there was any consideration between the parties for the note or bill, after where the desetting out the count on the note or bill, add counts as follows:] And whereas tains a count on also the defendant, in the life-time of the said E. F., deceased, to wit, on &c., was indebted to the said E. F. in £—, for &c., [stating the consideration] and in £for money found to be due from the defendant to the said E. F. on an account then stated between them. And whereas the defendant, in consideration of the premises respectively, afterwards, in the life (q) Any day before the issuing of the writ. (r) See Forms, Lil. Ent. 50, 83; Plead. Assist. 9. As to the joinder of demands by, and rights of executors, &c. to sue, see ante, vol. i. (s) Some day just before the death of the testator, but the precise time is not material, Cro. Car. 130, and any day before the issuing of the writ will suffice. (t) See other forms of profert, ante, 22. See form, 2 Saund. 209 a ; it concludes, “ ad ministrators," instead of "executors thereof," Breach. V. RESPECTING time of the said E. F., to wit, on the day and year last aforesaid, promised CHARACTER,&C. the said E. F. to pay him the said last-mentioned monies respectively on request. Yet the defendant hath disregarded his said promises, and hath not paid any of the said monies or any part thereof, To the plaintiff's damage, as executor as aforesaid, of £-, and therefore he brings his suit, &c. [Profert as in last form. Count on a promise to the plaintiff as executor. (u) The following counts may be added after the counts on the promises to the deceased, and before the breach.] And whereas also the defendant, in the life-time of the said E. F., deceased, to wit, on the day and year aforesaid, was indebted to the said E. F. in £, for the price and value of goods by the said E. F. then sold and delivered to the defendant, at his request; and in &c. [stating the several causes of action.] And thereupon the defendant, in consideration of the premises and the said last-mentioned debts being and remaining wholly due and unpaid, afterwards, and after the death of the said E. F., to wit, on &c., (x) promised the plaintiff, as executor as aforesaid, (y) to pay him the said several last-mentioned monies respectively Account stated. on request. (2) And whereas also the said defendant, afterwards, to wit, on (a) the day and year last aforesaid, accounted with the plaintiff, as (b) such executor as aforesaid, of and concerning divers sums of money from the defendant to the plaintiff, as executor as aforesaid, before that time due and owing, and then in arrear and unpaid; and upon that accounting the defendant was then found to be in arrear, and indebted to the plaintiff as executor as aforesaid, in the sum of £--, and thereupon the defendant, in consideration of the premises, then promised the plaintiff, as executor as aforesaid, to pay him the said last-mentioned sum of money on request. Yet the defendant hath disregarded his said promises, and hath not paid the several monies respectively, or any part thereof, To the damage of the plaintiff as such executor, and thereupon he brings suit, &c. [Add profert as ante, 73. Breach. (c) By a surviving executor. (d) Commencement, ante, 21. State the cause of action, promise and breach as (u) This count is proper, whenever on account of the statute of limitations, &c. it may be expedient to rely on any express promise or acknowledgment since the death of the testator. See Sarell v. Wine, 3 East, 409; Ward v. Hunter, 6 Taunt. 210; Short v. M'Carthy, 3 B. & A. 631. The defendant may plead non assumpsit to this count, Timmins v. Platt, 2 M. & W. 720; Gilbert v. Platt, 5 Dowl. 748. The 3 & 4 W. 4, c. 42, s. 31, subjects executors and administrators, when plaintiffs, to costs, unless the Court or judge otherwise directs. As to when an executor or administrator is entitled to relief from costs under the act, see Engler v. Twisden, 2 Bing. N. C. 263; Southgate v. Crewley, 1 Bing. N. C. 518; Wilkinson v. Edwards, id. 301; Godson v. Freeman, 2 Cromp. M. & Ros. 585; Prole v. Wiggins, 3 Bing. N. C. 235. As to the judge's order in such a case being final, see Maddock v. Phillips, 3 Ad. & El. 198; Lakin v. Massie, 4 Dowl. 239. (a) It is usual to insert a day after the death of the testator, but any day before the date of the writ will suffice. (y) The words "as executor" were omit ted in 2 Saund. 208, but improperly so; see 5 East, 150. (*) 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 plaintiff's use as executor. Since whenever the money recovered will be assets, the counts may be joined in the declaration; 2 W. Saund. 117; 3 Doug. 34; see ante, vol. i. (a) See Form, Lil. Ent. 84. This count may be joined with a count for goods sold by testator; 1 Taunt. 322; 6 East, 406, 403; 5 East, 154. (b) As to the necessity of this word, see 5 East, 150; 2 Saund. 208; Tidd. Pr. 13, 9th edit. (c) See Form, Plead. Assist. 33. (d) See Form, Lil. Ent. 83; and see a form by the executor of a surviving executor against an executor, Co. Ent. 1. in the ordinary case of an executor suing, see ante, 73.] To the damage of V. RESPECTING CHARACTER, &C. the plaintiff, as such surviving executor, of £—, and therefore he brings suit, &c. [Add profert as ante, 22. Breach. before or after Commencement, ante, 21.] For that whereas the said defendant, on &c., By husband and was indebted, &c. [state the cause of action, the promise and breach as in the wife executrix common case at the suit of an executor, ante, 73.] To the damage of the said marriage. (e) A. B. and C. his wife, as executrix as aforesaid, of £, and thereupon they bring suit, &c. And the plaintiffs bring here into Court the letters Profert. testamentary of the said E. F., deceased, whereby it fully appears to the said Court here that the said C. is executrix of the last will and testament of the said E. F., deceased, and that the plaintiffs, in right of the said C., have the execution thereof. Commencement, ante, 20.] For that whereas the said E. F., in his life- Against an exe. time, to wit, on &c., (g) was indebted to the plaintiff in £for the price &c. on promise cutor for work, and value of work then done and materials for the same provided by the by testator. (f) plaintiff for the said E. F. and at his request; and in &c. [so continuing to state any other cause of action to testator recoverable under the common count.] And thereupon the said E. F., in consideration thereof, then promised the plaintiff to pay him the said monies respectively on request. Yet the said Breach. E. F. in his life-time, and the said defendant, as executor as aforesaid, since the death of the said E. F. respectively, have disregarded the said promise of the said E. F., and have not, nor hath either of them, paid the said several monies respectively, or any part thereof, To the damage of the plaintiff of £, and thereupon he brings suit, &c. claration con tains a count on a note, bill or check. If there be no common count to be added, insert breach as in the last form, but Conclusion if there was any consideration between the parties for the note or bill, after set- where the deting forth the count on the note or bill, add counts as follows:] And whereas also the said E. F. in his life-time, to wit, on &c., was indebted to the plaintiff in £ for &c. [stating the consideration for the note, bill or check], and in £- for money found to be due from the said E. F. to the plaintiff on an account then stated between them: And whereas the said E. F., in consideration of the promises respectively, promised the said plaintiff to pay him the said last-mentioned monies respectively [or "last-mentioned sum of money"] on request. Yet the said E. F. in his life-time, &c. [as in the last form. And whereas also the defendant, as executor as aforesaid, after the death Against an exe (e) See in general how a debt due to the wife in the representative character is to be stated, 4 Mod. 376; Com. Dig. Pleader, 2 A. 1. (f) See a form, 2 Rich. C. P. 83, 94; and 1 Saund. 112, n. 1, 2. The form against an executor de son tort is the same as above; 1 Saund. 265. In debt, whether by or against an executor or administrator, omit the words "owes to and," though, if introduced, it is no ground of demurrer; Collett v. Collett, 2 Dowl. 211. |