TORS. will verify that the said G. H. is deceased, and that he the said plaintiff hath BY EXECU 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. (Omit the Pledges if in C. P.) band and riage. (to wit.) A. B. and C. his wife, (which said C. is executrix of the By huslast will and testament of D. deceased,) complain of E. F. being, &c. (or if wife, execin C. P. or Exchequer, state the commencement accordingly.) For that utrix, bewhereas the said defendant, on, &c. at, &c. was indebted, &c. [as in the fore marcommon case at the suit of an executor as ante, 101.] Yet the said de- Breach. fendant not regarding his said promises and undertaking, but contriving to deceive and defraud the said D. in his life-time, 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 as 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 to do this hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said plaintiffs, or to either of them. To the damage of the said A. B. and C. his wife, as executrix as aforesaid, of -and therefore they bring their suit. [Add profert and pledges, as ante, 102.] wife exec [As in the last precedent to the conclusion, which is as follows:]-Yet By husthe said E. F. not regarding, &c. but contriving, &c. to deceive and defraud band and the said D. in his life-time, and the said A. B. and C. his wife, as executrix utrix after as aforesaid, [if there be another cxecutor, say, "and the said G. and the marriage. said A. B. and C. his wife, as exccutor and executrix as aforesaid,"] since [ *106 ] 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 plaintiffs or either of them, To the damage of the said, &c.-As in the last precedent, adding profert.] Ellenborough. Michaelmas Term, 1 Will. 4. AGAINST EXECUTORS.. an execu (to wit.) A. B. complains of C. D. executor of the last will and Against testament of E. F. deceased being in the custody, &c. (if the action be in tor for C. P. begin the form as directed in note (m), infra.) For that whereas work, &c. the said E. F. in his life-time, to wit, on, &c. (n), at, &c. was indebted to on promis (1) See in general as to how a debt due to the wife in the representative character is to be stated, Mod. 376. Com. Dig. Pleader, 2 A. 1. 2 (m) See a form, 2 Rich. C. P. 83, 94, and 1 Saund. 112, n. 1, 2. It does not seem necessary to declare as surviving executor. Stark. 356.; 4 B. and A. 374.; 6 J. B. Moore, 332.-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 :" VOL. II. 10 though if introduced it is no ground of de- (n) It is usual to insert a day before the es by testator (1). EXECUTORS. AGAINST the said plaintiff in the sum of-l. for the work and labor, care, and diligence of the said plaintiff by him before then done, performed, and bestowed, for the said E. F. and at his special instance and request, and being so indebted, he the said E. F. in consideration thereof, afterwards, and in his life-time to wit, on the day and year aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money when he the said E. F. should be thereunto afterwards requested. (Add other counts as the claim may suggest, and an account stated, on the same principle as the count for promises by the testator) state the breach thus: -Yet the said E. F. in his life-time, and the said defendant as executor as aforesaid, since the death of the said E. F. not regarding his said several promises and undertakings of the said E. F. but contriving to deceive and defraud the said plaintiff in this respect, have not, nor hath either of them as yet Breach. paid the said several sums of money, or any or either of them, or any part thereof, to the said plaintiff, although often requested so to do. But to pay the same, or any part thereof, to the said plaintiff, the said E. F. and the said defendant, have hitherto wholly refused, and the said defendant still refuses so to do. [See note, ante, 102, n. b. 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. of £— and therefore he brings his suit, &c. in that ca [ *107 ] *And whereas also the said E. F. deceased, in his life-time, to wit, on the Against an day and year aforesaid, at, &c. aforesaid, was indebted to the said plaintif executor, on promis in the further sum of 1. of like lawful money, for the work and labor, care, es by him and diligence of the said plaintiff, by the said plaintiff before that time done. pacity (1). performed, and bestowed, in and about the business of the said E. F. and for him, and at his special instance and request, and also in the further sum of —l. of like lawful money, for divers goods, wares, and merchandize, by the said plaintiff 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 7. of like lawful money, for money by the said plaintiff before that time lent and advanced to, and paid, laid out, and expended for the said E. F. and at his like special instance and request, and also in the further 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 plaintiff. And the said E. F. since deceased, in his life-time, being so indebted, and the said several sums of money in this count mentioned, being and remaining wholly due and unpaid, the said defendant, as executor as aforesaid, in consideration thereof, afterwards, and after the death of the said E. F. to wit, on (o), &c. at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sums of money in this count mentioned, when he the said defendant, as executor as aforesaid, should be thereunto afterwards requested. And whereas also the said defendant, as executor as aforesaid, afterwards, to wit, on the day and year last aforesaid, at, &c. aforesaid, accounted with the said plaintiff of and concerning divers other sums of money from the said defend Account stated by defendant as executor (p)(2). (0) It is usual to state a day after the death of the testator, but any day before the title of the declaration will suffice. (1) 12 Johns. 349. (p) As to this count see Forest's Rep. 98. 1 Taunt. 322. 6 East. 406.; 7 Taunt. 580.; 1 J. B. Moore, 305.; 2 Saund. 117 d, e, n. (2) That these counts cannot be joined, see Reynolds v. Reynolds' Admr. 3 Wend. 244. AGAINST EXECUTORS. ant as executor as aforesaid, and at the time of the said accounting to the said plaintiffs due and owing, and then in arrear and unpaid, and upon that accounting, the said defendant, as executor as aforesaid, was found to be in arrear and indebted to the said plaintiff in the further sum of £- of like lawful money, and being so found in arrear and indebted, he the said defendant, as executor as *aforesaid, in consideration thereof, afterwards, to wit, on the day and year [108] last aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money last mentioned, whenever afterwards he the said defendant, as executor as aforesaid, should be thereunto afterwards requested. Yet the said defendant, as executor as Breach(q). aforesaid, not regarding his several promises and undertakings, so by him in Inanner and form aforesaid made, but contriving and fraudulently intending, craftily and subtly to deceive and defraud the said plaintiff in this respect, hath not as yet paid the several sums of money in the said last (three) counts inentioned, or any or either of them, or any part thereof, to the said plaintiff (although often requested so to do); but the said defendant, to pay the same, or any part thereof, hath hitherto wholly refused, and still doth refuse, To the damage of the said plaintiff of £- and therefore he brings his suit, &c. Pledges, &c. executor. In an action against a surviving executor describe him accordingly at Against a the beginning, and conclude as follows, "Nevertheless the said E. F. in his surviving life-time, and the said defendant, and G. H. in his life-time, now deceased, and whom the said defendant hath now survived (which said defendant 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 defendant surviving executor as aforesaid, since the death of the said G. H. not regarding the said several promises and undertakings of the said E. F. but contriving to deceive and defraud the said plaintiff in this behalf, have not, nor hath any or either of them, as yet paid the said several sums of money, or any or either of them, or any part thereof, to the said plaintiff (although often requested so to do.) But the said E. F. in his life-time, and the said defendant and G. H. executors 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 defendant, surviving executor 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. and wife *A. B. complains of C. D. and E. his wife, (which said E. is executrix of [ *109 ] the last will and testament of F.-G. deceased,) being, &c. (ante 12, or, if Against in C. P. or Exchequer, alter the form accordingly.) For that whereas husband the said F. G. in his life-time, to wit, on, &c. at, &c. was indebted, &c. [as executrix, in the usual form against an executor, as ante, 105.] Yet the said F. G. before in his life-time, and the said E. executrix as aforesaid, after the death of the marriage (r). said F. G. and whilst she was sole and unmarried, and the said defendants since their said intermarriage, not regarding the said several promises and undertakings of the said F. G. but contriving to deceive and defraud the said plaintiff in this respect, have not, nor have, nor hath any or either of them, as yet paid the said plaintiff the said several sums of money, or any of them, (9) See form, Plead. A. 31, 83. (r) See a form in debt on bond, 1 Wentw. 870, and Plead. A. 31. As to what may be EXECUTORS. AGAINST or any part thereof (although often requested so to do.) But to pay the same, or any part thereof, to the said plaintiff, the said F. G. in his lifetime, and the said E. executrix as aforesaid, after the death of the said F. G. and whilst she was sole and unmarried, respectively refused, and the said defendants ever since their said intermarriage, have hitherto wholly refused, and still refuse so to do, To the damage, &c. Against husband and wife riage (s). [As in the last precedent to the conclusion, which is as follows:]-Yet the said F. G. in his life-time, and the said C. D. and E. his wife, executrix executrix, as aforesaid, since the death of the said F. G. not regarding the said several after mar- promises and undertakings of the said F. G. 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 plaintiff, the said F. G. in his life-time wholly refused, and the said C. D. and E. his wife, (which said E. is executrix as aforesaid,) have, ever since the death of the said F. G. hitherto wholly refused, and still refuse so to do, To the damage, &c. ADMINIS- By an ad- tor on Fifthly. Administrators. [Commencement by an administrator, as ante, 35, and then proceed thus:]-For that whereas the said defendant, heretofore, and in the lifetime promises to of the said E. F. to wit, *on, &c. at, &c. (u) was indebted to the said E. F. the intes in the sum of £- of lawful money of Great Britain, for the work and labor, tate(t). care, and diligence of the said E. F. by him before then done, performed. [ *110] and bestowed, for the said defendant, and at his special instance and request, and being so indebted he the said defendant, in consideration thereof, afterwards, and in the life-time of the said E. F. to wit, on the day and year aforesaid, at, &c. aforesaid, undertook, and then and there faithfully prom-ised the said E. F. to pay him the said sum of money when he the said defendant should be thereunto afterwards requested.-(Add other counts as the claim may suggest, and as account stated, on the same principle as the above count, laying the promises to the said E. F., and the breach will be as follows:] Yet the said defendant not regarding his said several promises and undertakings, but contriving, &c. to deceive and defraud the said E. F. in his life-time, and the said plaintiff as administrator as aforesaid. after the death of the said E. F. (to which said plaintiff after the death of the said E. F., to wit, on, &c. (date of grant) at, &c. aforesaid, administration 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, by (Christian name of the grantor of the letters of administration) by Divine Providence, Archbishop of Canterbury, Primate of all England, and Metropolitan, in due form of law was granted (y), in this behalf, hath not as yet paid the said sums of money, or any part thereof to the said E. F. Breach. (w). Grant of administration (x). (s) See a form, Plead. A. 31. (t) As to this form, see 3 Wils. 380.; Ante, 35. (u) It is usual to insert a day before death of the intestate, but any day before the title of the declaration will do. (w) See a form, Plead. A. 34. (x) See forms, ante, 35, 6. (y) This is to be taken from the form of the grant of the letters of administration. The words "cui pertinuit" are not necessary. Lutw. 408. ISTRATORS. in his life-time, or to the said plaintiff since the death of the said E. F. (al- BY ADMINthough often requested so to do; but he so to do hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said. plaintiff [It may be sometimes advisable here to add counts on promises to the administrator as such, and which will run precisely as in the precedent, ante, 102, using the word "administrator," instead of ехесиtor," but unless there be some substantive promise or cause of action arising to the plaintiff as administrator after the intestate's death, it is best not to insert such counts as they in all cases render the plaintiff liable to costs if he does not succeed, and which he would not otherwise be liable to. 9 B. & C. 667; and K. B. June, 1830. Tidd, 9th edit. 973, conclude thus:]-To the damage of the said plaintiff as administrator as aforesaid, of-l. and therefore he brings his suit, &c. And the said plaintiff brings into court here the letters of administration of the said archbishop, or, "bishop," &c. (as the grant is) which give sufficient evidence to the said court here, of the grant of administration to the said plaintiff as aforesaid, the date whereof is a certain day and year therein mentioned, to wit, the day and year in that behalf above-mentioned, &c. Pledges, &c. Profert (z). ministrator If the plaintiff be an administrator, with the will annexed, or durante By an adminore ætate of an executor or next of *kin, he must be described accord- durante ingly, as in the letters of administration, and, in the latter case, at the minore end of the declaration, there must be an averment that the executor or ætate. next of kin is under age. ministra [ *111] In an action at the suit of a surviving administrator, describe him ac- By a surcordingly throughout, and conclude as follows:-Yet the said defendant viving adnot regarding, &c. but contriving, &c. to deceive and defraud the said E. F. tor. in his life-time, and the said plaintiff and one G. H. in his life-time, now deceased, and whom the said plaintiff hath survived (to which said plaintiff and G. H. in the life-time of the said G. H. and after the death of the said E. F. to wit, on, &e. at, &c. aforesaid, administration of all, &c. as in the last precedent), and after the death of the said E. F. and the said plaintiff as surviving administrator as aforesaid, since the death of the said G. H. in this behalf, hath not as yet paid 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 so to do hath hitherto wholly refused and still refuses to pay the same, or any part thereof, to the said plaintiff surviving administrator as aforesaid, To the damage of the said plaintiff, 25 surviving administrator as aforesaid, of £- and therefore he brings his Fait, &c.-[Add profert of letters of administration, with averment, as in the case of a surviving executor, unte, 105.] tor de bonis [Commencement as ante, 35, and proceed thus:]-For that whereas the By an adaid defendant on, &c. at, &c. was indebted, &c. (as in other cases, laying ministrathe promises to the intestate, as ante, 109. State the breach thus.) Yet non, with the said defendant not regarding, &c. but contriving to deceive and defraud will annex (=) The omission of the profert of the letfers of administration is aided after verdict by 16 & 17 Car. 2. c. 8. s. 1. and upon a gen eral demurrer, by the 4 Anne, c. 15, but it is ed. |