5. RELATING Markham and Le Blanc.

TO THE

CHARACTER, &c.

117. Against

an executor

for work, &c.

on promises by him.

[⚫ 100 ]

118. Against

an executor on promises by him in

that capacity (4).

[* 101 ]

Trinity Term, 51 Geo. 3.

(to wit.) A. B. complains of C. D. executor of the last will and testament of E. F. deceased, being in the custody, &c. (z) For that whereas the said E. F. *in his lifetime, to wit, on, &c. at &c. was indebted, &c. and being so indebted, &c. (laying the promises by the testator). Yet the said E. F. in his lifetime, and the said C. D. executor as aforesaid, since the death of the said E. F. not regarding, &c. but contriving, &c. have not, nor hath 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 A. B. (although often requested so to do). But to pay the same, or any part thereof, to the said A. B. the said E. F. in his lifetime wholly refused, and the said C. D. executor as aforesaid, hath ever since the death of the said E. F. hitherto wholly refused, and still refuses so to do. [See note, ante, 95, 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 dam. age of the said A. B. &c.

And whereas also the said E. F. deceased, in his lifetime, to wit, on, &c. aforesaid, at, &c. aforesaid, was indebted to the said A. B. in the further sum of L., of like lawful money, for the work and labour, care and diligence of the said A. B. by him the said A. B. before that time done, performed and bestowed, in and about the business of the said E. F. and for the said E. F. 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 A. B. 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 L., of like lawful money, for money by the said A. B. 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 of L-, 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 A. B. And the said E. F. since deceased, in his lifetime, being so

indebted, and the said several sums of money in this count mentioned, 5 RELATING being and remaining wholly due and unpaid, the said C. D. as execu- CHARACTER,

TO THE

&c.

fendant as

tor as aforesaid, in consideration thereof, afterwards, and after the death of the said E. F. to wit, on, &c. at, &c. aforesaid, undertook, and then and there faithfully promised the said A. B. to pay him the said sums of money in this count mentioned, when he the said C. D. as executor as aforesaid, should be thereunto afterwards requested. And whereas also the said C. D. as executor as aforesaid, afterwards, Account to wit, on, &c. last aforesaid, at, &c. aforesaid, accounted with the said stated by deA. B. of and concerning divers other sums of money from the said E. executor (a). F. in his lifetime, and at the time of the said accounting to the said A. B. due and owing, and then in arrear and unpaid, and upon that accounting the said E. F. in his lifetime, and at the time of his death, was found to be in arrear and indebted to the said A. B. in the further sum of L, of like lawful money, and being so found in arrear and indebted, and the said last-mentioned sum of money being and remaining wholly unpaid, he the said C. D. as executor as aforesaid, in consideration thereof afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said A. B. to pay him the said sum of money last-mentioned whenever afterwards he the said C. D, as executor as aforesaid, should be thereunto requested. Yet the said C. D. executor as aforesaid, not regard- Breach. ing his said several promises and undertakings, so by him in manner and form aforesaid made, but contriving and fraudulently intending, craftily and subtly to deceive and defraud the said A. B. in this respect, hath not yet paid the said several sums of money in the said last three counts mentioned, or *any or either of them, or any part thereof, to the said A. B. (although often requested so to do); but the said C. D. executor as aforesaid, to pay the same, or any part thereof, hath hitherto wholly refused, and still doth refuse. To the damage of the said A. B. of L.- , and therefore he brings his suit, &c."

Pledges, &c.

[* 102 ]

executor.

In an action against a surviving executor, describe him accordingly 119. Against at the beginning, and conclude as follows, "Nevertheless the said E. a surviving F. in his lifetime, and the said C. D. and one G. H. in his lifetime, now deceased, and whom the said C. D. hath survived (which said C. D. and G. H. in the lifetime 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 C. D. 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, &c. to deceive

(a) As to this count, see Forest's Rep, in Exchequer, 98.-1 Taunton. 322,6 East. 406.

TO THE

CHARACTER, &c.

5. RELATING, and defraud the said A. B. 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 A. B. (although often requested so to do. But the said E. F. in his lifetime, and the said C. D. and G. H. as executors as aforesaid, after the death of the said E. F. and in the lifetime of the said G. H. wholly refused, and the said C. D. 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.

Baron and

Feme, executrix before marriage (6)

[ ⚫ 103]

120. Against A. B. complains of C.D. and E. his wife, (which said E. is executrix of the last will and testament of F. G. deceased,) being, &c. For that whereas the said F. G. in his lifetime, to wit, on, &c. at, &c. was indebted, &c. [as in the common case against an executor.] Yet 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, and the said C. D. and E. his wife, (executrix as aforesaid,) since their marriage, not regarding the said several 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 A. B., 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 C. D. and E. his wife, executrix as aforesaid, have ever since their intermarriage, hitherto wholly refused, and still refuse so to do. To the damage, &c.

121. Against

Baron and

Feme, executrix after marriage.

[As in the last precedent to the conclusion, which is as follows:] Yet the said F. G. in his lifetime, and the said C. D. and E. bis wife, executrix as aforesaid, since the death of the said F. G. not regarding the said several 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 A. B., the said F. G. in his lifetime, 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 refuses so to do. To the damage, &c.

122. By an administrator

(c).

FifthlyAdministrators.

(to wit.) A. B. administrator of all and singular the goods and chattels, rights and credits, which were of E. F. deceased, at the time of his death, who died intestate, complains of C. D. being, &c.

(b) See a form in debt on bond, 1 Wentw. 370.

(c) As to this form, see 3 Wils. 380. Ante, 34.

TO THE

[104]

For that whereas the said C. D. on, &c. at, &c. was indebted to the said 5. RELATING E. F. in his lifetime, &c. and being so indebted," &c. [laying the pro- CHARACTER, mises to the said E. F. in his lifetime, and the breach will be as follows:] &c. Yet the said C. D. not regarding, &c. but contriving, &c. to deceive and Breach. defraud the *said E. F. in his lifetime, and the said A. B. as administrator, as aforesaid, after the death of the said E. F. (to which said A. B. after the death of the said E. F. to wit, on, &c. at, &c. aforesaid, administration of all and singular the goods, chattels, and credits, which Grant of administration. were of the said E. F. deceased, at the time of his death, who died intestate, by Charles, by Divine Providence, Archbishop of Canterbury, primate of all England, and metropolitan, in due form of law was granted) (d) in this behalf hath not as yet paid the said sums of money, or any part thereof, to the said E. F. in his lifetime, or to the said A. B. administrator as aforesaid, since the death of the said E. F. (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 A. B. administrator as aforesaid. [It may be advisable here to add counts" on promises to the administrator as such, and which will run precisely as in the precedent, ante, 95, using the word "administrator," instead of executor.] To the damage of the said A. B. as administrator as aforesaid, of L; and therefore he brings his suit, &c. And the said Profert (e). A. B. brings into court here the letters of administration of the said Archbishop (or, " Bishop," &c.) which give sufficient evidence to the said court here, of the grant of administration to the said A. B. as aforesaid, the date whereof is the day and year in that behalf abovementioned, &c.

Pledges, &c.

If the plaintiff be an administrator with the will annexed, or durante 123. By an administrator minore ætate of an executor or next of kin, he must be described acdurante minore cordingly as in the letters of administration, and in the latter case, at ætate. 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 ac- 124. By a surcordingly throughout, and conclude as follows:-Yet the said C. D. viving administrator. not regarding, &c. but contriving, &c. to deceive and defraud the said [105] E. P. in his lifetime, and the said A. B. and one G. H. in his lifetime, now deceased, and whom the said A. B. hath survived (to which said A. B. and G. H. in the lifetime of the said G. H. and after the death of the said E. F to wit, on, &c. at, &c. aforesaid administration, &c. as in the last precedent,) after the death of the said E. F. and the said

(d) The words "cui pertinuit” are not after verdict by 16 & 17 Car. 2. chap. 8. necessary, Lutw. 408. §. 1 and upon a general demurrer by the 4 Ann.c. 16.

(e) The omission of the profert of the of the letters of administration is aided