or next of kin, he must be described accordingly, as in the letters of administration; and, in the latter case, at the end of the declaration, there must be an averment that the executor or next of kin is under age. In an action at the suit of a surviving administrator, describe him [*502] accordingly throughout, and *conclude as in the precedent, ante, 501, at the suit of a surviving executor, mutatis mutandis.

BY AN ADMINISTRATOR DE BONIS NON, WITH WILL ANNEXED.

(to wit.) A. B., administrator of all and singular the goods, chattels, and credits, which were of E. F., deceased, at the time of his death, left unadministered by G. H. in his lifetime, now deceased, and which said G. H. in his lifetime, 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., deceased, annexed, complains of C. D., being, &c., for that whereas the said deft, on, &c., at, &c., was indebted, &c. (as usual); yet the said deft., not regarding, &c., but contriving, &c., to deceive and defraud the said E. F. in his lifetime, and the said G. H. in his lifetime, now deceased, and which said G. H. in his lifetime, and at the time of his death, was executor of the last will and testament of the said E. F., deceased, and the said plt., after the death of the said G. H. (to which said plt., after the respective deaths of the said E. F. and G. H., to wit, on, &c., 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 left unadministered by the said G. H., deceased, executor as aforesaid, with the will of the said E. F. annexed, by Charles, by divine Providence, Archbishop of Canterbury, primate of all England, and metropolitan, in due form of law, was granted), 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 so to do hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said plt., administrator as aforesaid, to the damage of the said plt., as administrator as aforesaid, of £; and therefore he brings his suit, &c. (Add profert of letters of administration.)

See forms of indebitatus assumpsit by a surviving executor, 2 Chit. Pl. 104; by husband and wife, executrix before marriage, ib., 105; by husband and wife, executrix after marriage, ib.; by a surviving administrator, ib., 110; by administrator durante minore ætate, ib., 110; by husband and wife, administratrix, &c. ib., 112; declaration by an executor to recover expenses of a party-wall, ib. 250. See, also, forms of declaration by an executor or administrator of payee of a note against the maker, ib., 140; and the like on a promise after the death, ib.; by executor or administrator of payee, &c., against acceptor, ib., 165; by executor of payee against drawer, where bill due after the death, ib., 166.

DECLARATION BY EXECUTOR OF OBLIGEE OF A BOND AGAINST OBLIGOR. Middlesex (to wit.) A. B., executor of the last will and testament of E. F., deceased, complains of C. D., of a plea, that he render to him the sum of £100, of lawful money of Great Britain, which the said C. D. unjustly detains (ante, 498) from him; for that whereas the said deft., in the lifetime of the said E. F., since deceased, to wit, on, &c., at, &c., by his certain writing obligatory, sealed with his seal, and now shown to the court of our said lord the king, before the king himself here, the date whereof is the same day and year aforesaid, acknowledged himself to be held and firmly bound to the said E. F. in the said sum of £100 above demanded, to be paid to the said E. F., or his certain attorney, executors, administrators, or assigns, when he, the said deft., should be thereunto afterwards requested. Yet the said deft. (although often requested so to do), hath not as yet paid the said sum of £100, above demanded, or any part thereof, to the said E. F. in his lifetime, or to the said plt., executor as aforesaid, since the death of the said E. F., but to pay the same, or any part thereof, to the said E. F. in his lifetime, or the said A. B., executor as aforesaid, since the death of the said E. F., the said deft. hath hitherto wholly refused, and still doth refuse, to pay the same, or any part thereof, to the said plt., executor as aforesaid, to the damage of the said plt., as executor as aforesaid, of £; and therefore he brings his suit, &c. (Add profert and pledges see ante, "Bond.")

[*503] See declaration in debt by an administrator of the obligee, 2 Chit. Pl. 466.

COUNT BY EXECUTOR IN TROVER, AND CONVERSION BEING AFTER TESTATOR'S DEATH. And whereas, also, the said plt., as executor as aforesaid, afterwards, and after the death of the said E. F., to wit, on, &c., at, &c., was lawfully possessed of divers other goods and chattels, to wit, goods and chattels of the like number, quantity, quality, description, and value, as those in the said first count mentioned, as of his property, as such executor as aforesaid; and, being so possessed thereof, he, the said plt., afterwards, to wit, on the day and year aforesaid, at, &c., aforesaid, casually lost the said last-mentioned goods and chattels out of his possession, and the same then and there came to the possession of the said deft. by finding. Yet the said deft., well knowing the said last-mentioned goods and chattels to be the property of the said plt., as such executor as aforesaid, and of right to belong and apper

tain to the said plt., as such executor, but contriving and fraudulently intending to deceive and defraud the said plt., as such executor as aforesaid, in this behalf, hath not as yet delivered the said last-mentioned goods and chattels, or any part thereof, to him, the said plt. (although often requested so to do), and hath hitherto wholly neglected and refused, and still wholly neglects and refuses, so to do, and afterwards, to wit, on, &c., last aforesaid, at, &c., aforesaid, converted and disposed of the said last-mentioned goods and chattels to his own use.

See other counts on a troyer and conversion in testator's lifetime, 2 Chit. Pl. 838; on a trover in his lifetime, and conversion after the death, ib.; and see form for trover by an ad ministrator, ib., 840.

Evidence for Plaintiff.

The cause of action must be proved as in ordinary cases: as to evidence in ejectment by, see ante, 460-1.

The plt.'s character of executor or administrator must be proved, except where it is admitted by the deft.'s plea, as by non-assumpsit to an action on promises to the intestate, when the production of the letters of administration cannot be insisted on, even though they be not properly stamped, Thynne v. Protheroe, 2. M. & S. 553; nor, after such plea, will the deft. be allowed to show that the supposed intestate has made a will, Marsfield v. Marsh, 2 Ld. Raym. 824; and the plea of non est factum on a bond to the intestate admits plt.'s title as administrator: Gidley v. Williams, 1 Salk. 38; Com. D. Pleader, 2 D. 10. This admission only arises, however, where the title of the executor or administrator is sufficiently stated, as the plea merely admits the title as alleged: Adams v. Savage, 6 Mod. 134. The plea of the general issue will not be an admission of the title of the executor, if the cause of action have accrued subsequently to the letters of administration being granted, as in trover, on the possession of the testator, and conversion in the time of the plt.: Hunt v. Stephens, 3 Taunt. 113; see, however, Watson v. King, 2 Camp. 272. In such case, strict proof of title will be necessary, Mearsfield v. Marsh, 2 Ld. Raym. 824, except where the executor has actual possession of the goods, which alone is prima facie evidence of property: Blackham's case, 1 Salk. 290; Basset v. Maynard, Cro. E. 819; 2 Saund. 47. If the executor sue in his own right, no proof of his being executor need be adduced, Com. D. Pleader, 2 D. 1, Homsay v. Dimmocke, Vent. 119, Wallis v. Lewis, 2 Ld. Raym. 1215; the naming himself as executor, when he sues in his own right, will be surplusage, Com. D. Pleader, 2 D. 1; though, if the action be in his own name, but he claim in his representative character, he must adduce proof of his title: Marsfield v. Marsh, 2 Ld. Raym. 824.

The plt.'s character of executor may be proved by the probate of the will nominating him executor: Coe v. Westernham, 2 Selw. N. P. 730. An examined copy of the probate will be evidence that the party therein. named is executor: Hoe v. Nelthorp, 3 Salk. 154; 1 Ld. Raym. 154, s. c.; R. v. Staines, Skin. 584. In the case of the loss of the probate, an exemplification under the seal of the court will be [*504] granted in lieu thereof: Shepherd v. Shorthose, 1 Str. 412; ante, 446.

*

The title of the administrator may be proved by the letters of administration, or by the original book of acts, which directs the grant of the letters with the surrogate's fiat: Elden v. Kiddell, 8 East, 187;

Garrett v. Lister, 1 Lev. 25; B. N. P. 246; 2 M. & S. 567. If, on production of the letters, they appear to be improperly stamped, they will be void, Hunt v. Stevens, 2 Taunt. 113; or, if they be granted by a bishop, or other inferior judge, not having jurisdiction so to do, Com. D. Admin. B. 5; but see Comber's case, 9 P. Wms. 767, 1 Saund. 275, a.; or, if there be no bona notabilia within the province of the archbishop granting them, Shaw v. Staughton, 2 Lev. 86, Com. D, Admin. B. 3; but, if the letters of administration be merely voidable, the plt. will not be precluded from recovering, as, where the metropolitan of a province grants the letters of administration, when the bona notabilia are within a diocese of that province, the power to grant letters in such case being properly vested in the bishop of such diocese: 3 Bac. Ab. 37; Com. D. Admin. B. 3. Where an intestate has bona notabilia in two dioceses within the same province, neither diocesan has power to grant administration, but it must be done by the metropolitan of the province; though, if they be within one diocese of one province, and another diocese in another province, the case is different: per curiam, Stokes v. Bate, 5 B. & C. 493; Com. D. Admin. B. 3. If a man have bona notabilia (that is, to the value of £5.) in several dioceses of the same province, there must be a prerogative administration; if in two of Canterbury, and two of York, there must be two prerogative adniinistrations; and if in one diocese of each province, each bishop must grant one: B. N. P. 141; Salk. 39. Debts on recognizances, statutes, or judgments, are bona no tabilia, where they are acknowledged or given, Com. D. Admin. B. 4; but simple contract debts are such in the province in which the residence of the debtor was when the death of the testator happened: ib., Yeomans v. Bradshaw, Carth. 373; and specialty debts are such in the province where they were found at the death of the testator: Com. D. Admin. B. 4; Cro. E. 472. A lease for years is bona notabilia where the land is situate: ib. Though letters of administration, granted by an inferior judge, have been deemed void, yet, if he grant a probate, it has been considered voidable only: Comber's case, 1 P. Wms. 767; 1 Saund. 275, a.

.

Competency of Witnesses.

A paid legatee is a competent witness to increase the estate: Clarke v. Gannon, R. & M. 31. A person having an unsatisfied demand the insolvent estate of the testator or intestate, is not a competent witupon ness for the plt. (executor), as he has no means of obtaining any sort of satisfaction for his debt, unless the plt. succeed in the action, when a fund will be created, out of which he may be satisfied: Craig v. Cundel, 1 Camp. 381. In an action by an executor or administrator, for a debt due to the intestate, a creditor of the intestate is a good witness to prove it: Paul v. Brown, 6 Esp. Rep. 34. A creditor is a competent witness for an administrator, to prove due administration by payment of a debt to himself: Stark. Ev. 776.

B