&e. bond, and a judgment against defendant (0). Judgment against deceased. Bond outstanding. [⚫ 504] BY EXECUTORS, the recovery of the judgment against the deceased in the King's Bench, Common Pleas, or Exchequer, whether in assumpsit or debt, &c. precisely as in the precedents, ante, 232 to 234, and conclude as in those precedents with a reference to the record, and an allegation that the judgment is still in force; see the precedent in 1 Saund. 329. and then proceed as follows :]— And the said C. D. further saith, that the said F. in bis lifetime, to wit, on, &c. at, &c. aforesaid, by his certain writing obligatory, sealed with his seal, became held and firmly bound to one J. K. in the sum of L., of lawful *money of Great Britain, to be paid to the said J. K. when he the said E. F. should be thereto afterwards requested, which said writing obligatory was so made as aforesaid, for securing the payment of a just debt (9), and at the time of the death of the said E. F. was and still is in full force and effect, not in anywise cancelled, annulled, paid off, or satisfied, and before and at the time of the commencement of this suit, there was and still is due and owing to the said J. K. upon and by virtue of the said writing obligatory, a large sum of money, to wit, the sum of L.—, to wit, at, &c. aforesaid (r).—And the said C. D. further saith, that one L. M. after the death of the said E. F. to wit, in Judgment against defendant (s). term, in the — year of the reign of our lord the now king (1), by bill without the writ of our said lord the king, impleaded the said C. D. as executor of the and year when, and the court in (0) See the precedents 3 Wentw. (9) This allegation is usual though it is not necessary. If the debt were not a just one, the plaintiff might shew it in his replication, 1 Saund. 330. n. 4. 333. n. 6. and an erroneous. judgment is sufficient, 1 Stra. 407. (r) The defendant may plead the penalty as the outstanding debt, or may shew what is really due, and the latter mode is recommended; and sometimes it is proper to set forth the condition of the bond as ante, 501. 5 T. R. 309. 1 Saund. 333. n. 7. judgment against the defendant as executor and administrator, see 1 Saund. 329. n. 3. 330. n. 4. 331. n. 5. formerly it was the practice in all cases to set forth the bond or other debt, upon which the judgment was founded, and the pleadings in the action, 1 Saund. 329. n. 3. but the present mode of pleading, in assumpsit, a judgment obtained against an execu. tor, or administrator, is as above, not stating the nature of the debt, or the proceedings, and though it is stated in 1 Saund. S31. n. 5. to be proper to set forth the declaration or pleadings in the action this is not usual: but in a plea to an action of debt on specialty, it is still necessary to shew that the debt on which the judgment was recovered was a specialty, or to aver, that the judgment was recovered before the defendant had notice of the plaintiff's demand, see 1 T. R. 690. (t) This is necessary, see ante, () As to the mode of pleading a 503. n. p. läst will and testament of the said E. F. deceased, (or, “as adminisirator of all and singular the goods and chattels, rights and credits, which were of the said E. F. at the time of his death, who died intestate,") in the court of our said lord the king, before the king himself, at Westminster, in the county of *Middlesex, in a certain plea of debt (u) for the sum of £-, due and owing to the said L. M. from the said E. F. in his lifetime, and at the time of his decease, and such proceedings were thereupon had in the said court of our said lord the king, before the king himself, at Westminster aforesaid, in that plea, that the said L. M. afterwards, to wit, in that same- -term, in the year aforesaid, by the consideration and judgment of the said court, recovered against the said C. D. as executor (or “as administrator,”) as aforesaid, his said debt of £, and also, which by the same court were adjudged to the said L. M. for his damages which he had sustained, as well on occasion of the detaining of that debt as for his costs and charges by him about his suit in that behalf expended, to be levied of the goods and chattels which were of the said E. F. at the time of his death in the hands of the said C. D. to be administered, if he had so much thereof in his hands to be administered, and if he had not so much thereof in his hands to be administered, then the sum of £, parcel of the damages aforesaid, being the amount of the costs and charges aforesaid, to be levied of the proper goods and chattels of the said C. D. Whereof the said · C. D. was convicted, as by the record and proceedings thereof remaining, in the said court of our said lord the king, before the king himself at Westminster aforesaid, more fully appears. Which said judgment so had and obtained as aforesaid, was had and obtained by a true and just debt, due and owing to the said L. M. from the said E. F. in his lifetime, and at the time of his death (x), and still remain in full force and effect, not in any wise reversed, annulled, discharged, or satisfied (y); and before and at the time of the commencement of this suit, there was and still is due and owing to the said L. M. upon and by virtue of the said last-mentioned judgment, a large sum of money, to wit, the sum BY EXECU TORS, &c. [*505] (u) The judgment is to be described according to the fact, whether in assumpsit, debt, or covenant, see the mode of stating the judgment, ante, (x) This is not necessary, see ante, 504, n. q. (y) This is unnecessary, 1 Saund. 330. n. 4. præter BY EXECU- of £, to wit, at, &c. aforesaid *(z). And the said C. D. further TORS, &c. saith, that he hath fully administered all and singular the goods (*506) Plene admi- and chattels which were of the said E. F. deceased, at the time of nistravit his death, which have ever come to his hands to be administered, except goods and chattels of small value, to wit, of the value of £10 (a), and that he the said C. D. hath not, nor on the day of exhibiting the bill of the said A. B. in this behalf, (or, in C. P. or by. original, “at the time of the commencement of this suit,”) or at any time since, had any goods or chattels which were of the said E. F. at the time of his death, in his hands to be administered, except the said goods and chattels of the value aforesaid, which are not sufficient to satisfy the several debts aforesaid due and owing on the said judgments and writing obligatory, (according to the fact,) and which are subject and liable to satisfy the said several debts. And this, &c. [Conclude with a verification, as ante, 470, sixth precedent (b).] [*507] *PLEAS IN DEBT. GENERAL ISSUES, &c. Nil debet generally (a) In the King's Bench, (or " C. P." or "Exchequer.") 1 C. D. ats. Term, 51 Geo. 3. And the said C. D. by E. F. his attorney, comes and defends A. B. the wrong and injury, when, &c. and says that he does not owe the said sum of money, (or "the said sum of £—”) (b), above demanded, or any part thereof, in manner and form as the said A. B. hath above thereof complained against him, and of this he the said C. D. puts himself upon the country, &c. () As to this allegation, ante, 502, tract, or for an escape, or on a penal n. l. 504. n. r. statute, or when the deed is mere in(a) As to this allegation, see ante, ducement to the action, but not when 503. n. (b) Formerly this plea was concluded with an averment of the intestate's being the same person as mentioned in the bond and record of judgment, but it is not material, and is now omitted, 1 Saund. 334. n. 8. (a) As to this plea in general, see ante, Vol. 1. Index, tit. nil debet. It is a proper plea to debt on simple con the action is founded on a specialty, as on a bail bond, &c. or on a record, Ld. Raym. 1500. Com. Dig. Pleader, 2 W. 17. (b) If the sum be specified, care must be taken that the plea applies to all the sums demanded, thus where a declaration in debt demanded 2000, and contained several counts, each of which stated a debt of 224., and the C. D. ats. GENERAL debt, qui [*508] And the said C. D. by E. F. his attorney, comes and de- ISSUES, &c. A. B. (d)) fends the wrong and injury, when, &c. and says that he Nil debet to does not owe to (e) our said lord the king, (or, "to the poor of said tam (e). parish of, in the county aforesaid,") and to the said A. B. who sues as aforesaid, or to either of them, the said sum of money, (or, "the said sum of £-") (f), above demanded, or any part thereof, in manner and form as the said A. B. who sues as aforesaid, hath above thereof complained against him, and of this he puts himself upon the country, &c. C. D. D.And the said C. D. by E. F. his attorney, comes and defends Non est fac ats. A. B. the wrong and injury, when, &c. and says that the said supposed, (h) writing obligatory (or, "indenture," or, "articles of agreement," according to the fact,) is not his deed, &c. of this he puts himself upon the country, &c. C. D. tum (g). an executor ats. And the said C. D. executor (or "administrator,") as afore- The like by A. B. said, by E. F. his attorney, comes and defends the wrong and or adminiinjury, when, &c. and says that the said supposed writing obligatory strator (i). (or, "indenture," or, "articles of agreement," &c. according to the defendant pleaded that he did not owe the said sum of 2241., it was decided that the plaintiff might sign judgment, as for want of a plea, 3 Bos. & Pul. 174. (c) See the precedents, 7 Wentw. Ind. 632-3. The 4 & 5 Ann. does not allow double pleas in a penal action, 2 Wils. 21. The plea of not guilty would suffice, 1 T. R. 462. Ante, 1 Vol. 481. (d) It is sufficient in a qui tam action, to intitle the plea with the names of the parties, without the addition of "qui tam, &c." to the plaintiff's name, 7 East. 333. (e) The plea in this respect should be conformable to the declaration, and where, in an action qui tam, the plea stated that the defendant did not owe to the plaintiff, omitting, "and to our lord the king," it was held insufficient, Hob. 328.-Bac. Ab. Action qui tam, D. & Reg. Plac. 302. but it would be sufficient to say he doth not owe generally modo and formá, &c. without (ƒ) Ante, 507. note b. (g) When this plea is necessary or proper, see ante, Vol. 1. Index, tit. non est factum, 2 Ld. Raym. 1500. Com. Dig. Pleader, 2 W. 18. (h) When the defendant means to dispute the validity of the deed, it should seem that the plea should refer to it, merely by the term "writing," or, "supposed writing obligatory," "indenture,” &c. and should not say "writing obligatory," &c. generally, because such admission would be inconsistent with the proposed defence, 1 Saund. 291. a. n. 1. see the precedents, Lil. Ent. 166.-Co. Ent. 145. b. -Rast. Ent. 181. b. 182. a.-10 Co. 126. b.-Lutw. 464. 467. which say only “writing.” (i) As to this plea, see Com. Dig. Pleader, 2 W. 3.-10 Co. 120. GENERAL fact,) is not the deed of the said G. H. deceased, and of this he puts ISSUES, &c. himself upon the country, &c. Non est fac- C. D. tum, after ats. craving oyer A. B. of bond and And the said C.D. by E. F. his attorney, comes and defends the wrong and injury, when, &c. and craves oyer of the said supcondition (k) posed (1) writing obligatory, in the said declaration mentioned, and it [*509] is read to him (m), *&c. he also craves oyer of the condition (n) of the said supposed writing obligatory, and it is read to him in these words, Whereas, &c. (here set forth the condition, with the recitals, if any, verbatim, (o), which being read and heard, the said C. D. says that the said supposed writing obligatory is not his deed, and of this he puts himself upon the country, &c. The like of C. D. an indenture ats. (p). And the said C.D. by E. F. his attorney, comes and defends A. B.Jthe wrong and injury, when, &c. and craves oyer of the said supposed (q) indenture, in the said declaration mentioned, and it is read to him in these words, (here set out the indenture verbatim,) which being read and heard, the said C. D. says that the said supposed indenture is not his deed, and of this he puts himself upon the country, &c. C. D. ats. And the said C. D. by E. F. his attorney, comes and defends A. B. the wrong and injury, when, &c. and as to the said first count of the said declaration, says that the said supposed (r) writing obligatory therein mentioned is not his deed, and of this he puts himself (k) It is not usual to plead non est factum, setting out the condition on oyer, unless where the defendant pleads double. (1) Vide supra, n. h. (m) Though it is usual in practice not to set forth the bond, but to say, " and it is read to him," &c. and then to pray oyer of the condition, and set it forth in hæc verba, yet it is said that regularly the bond ought to be entered at large, as well as the condition, but if no use is intended to be made of the bond in pleading, there is no occasion to crave oyer of it at all, or to enter any such prayer, for it is sufficient to pray oyer of the condition only, 1 Saund. 9. b. n. 1. (n) Oyer must be demanded of the condition, to entitle the defendant to it, 1 Saund. 290. n. 2. (0) The whole condition or deed must be set forth upon oyer, and if there be any misrecital, the plaintiff' may either sign judgment as for want of a plea, or he may by his replication pray that the deed may be enrolled, and procure it to be enrolled and demur, 1 Saund. 9. b. n. 1. 4 T. R. 370. (p) See the notes to the last precedent. This mode of pleading non est factum, is only customary when the defendant also pleads a special plea, and it may be necessary for the defendant to avail himself of the nonperformance by the plaintiff of some condition precedent, &c. as a ground of defence. (q) Ante, 508. n. h, |