TO THE CHARACTER, which said C. whilst she was sole and unmarried, and after the death 5. RELATING of the said D. to wit, on, &c. at, &c. administration, &c. (as ante, 104,) in due form of law was granted ;) and the said A. B. and C. his wife, which said C. is administratrix as aforesaid, since their intermarriage in this behalf, hath not as yet paid, &c. . &c. As in the last precedent to the conclusion, which is as follows:Yet 127. By Baron and Feme, adthe said E. F. not regarding, &c. but contriving, &c. to deceive and de- ministratrix fraud the said D. in his lifetime and the said A. B. and C. his wife, after after marthe death of the said D. (to which said G. after the death of the said D. riage. to wit, on, &c. at, &c. administration, &c. [as before] in *due form of [*107]. law was granted), in this behalf hath not as yet paid, &c. strator. (to wit.) A. B. complains of C. D. administrator of all and 128. Against singular the goods and chattels, rights and credits (f) of E. F. de. an adminiceased, at the time of his death, who died intestate, being, &c. For that whereas the said E. F. in his lifetime, to wit, on, &c. at, &c. was indebted, &c. (laying the promises by the deceased.) Yet the said Breach. E. F.in his lifetime, and the said C. D. administrator as aforesaid, after the death of the said E. F. not regarding, &c, but contriving, &c. to deceive and defraud the said A. B. in this behalf, have not nor hath 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 E. F. in his lifetime wholly refused, and the said C. D. administrator as aforesaid, hath ever since the death of the said E. F. hitherto wholly refused, and still refuses so to do. [It may here be expedient to insert counts on promises by the defendant as administrator, as in an action against an executor, see ante, 101] To the damage of the said A. B. of L., and therefore he brings his suit, &c. . N. B. In an action against an administrator durante minore ætate of an executor or next of kin, the same mode of description is to be adopted as in an action at the suit of such an administrator. administrator In an action against a surviving administrator, describe him accord- 129. Against ingly at the beginning, and conclude as follows:Yet the ssid E. F. a surviving 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, and which said C.. D. and G. H. in the lifetime of the said G. H. were administrators 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, after the death of the said E. F. and the said C. D. surviving administrator as aforesaid, after the death of the said G. H. not regarding, &c. but [103 TO THE CHARACTER, &c. 5. RELATING Contriving, &c. have not, nor hath 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 E. F. in his lifetime, and the said C. D. and G. H. administrators 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 administrator 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. 130. Against an admini strator de bo-. -, (to wit.) A. B. complains of C. D. administrator of all and singular the goods, chattels, and credits, which were of E. F. deceased, nis non, with at the time of his death left unadministered by G. H. in his lifetime, will annexed. now also 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. annexed, being, &c. For that whereas the said E. F. in his lifetime, to wit, on, &c. at, &c. was indebted, &c. Yet the said E. F. in his lifetime, and the said G. H. in his lifetime, now deceased, after the death of the said E. F. 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 C. D. administrator as aforesaid, after the death of the said G. H., not regarding, &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 E. F. in his lifetime, and the said G. H. executor as aforesaid, in his lifetime and after the death of the said E. F. respectively refused, and the said C. D. administrator 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. 131. Against Baron and Feme, administratrix be fore mar riage. 109] (to wit,) A. B. complains of C. D. and E. his wife, which said E. is administratrix, &c. of G. H. deceased, at the time of his death, who died intestate, being, &c. For that whereas the said G. H. in his hfetime, to wit, on, &c. at, &c. was indebted, &c. Yet the said G. H. in his lifetime, and the said E. administratrix as aforesaid, after the death of the said G. H. and whilst she was sole and unmarried, and the said C. D. and E. His wife, (which said E. is administratrix as aforesaid) since their intermarriage, not regarding, &c. 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 G. H. in his lifetime, and the said E. administratrix as aforesaid, after the death of the said G. H. and whilst she was sole and unmarried respectively refused, and the said C. D. and E. his wife, administratrix as aforesaid, have ever since their intermarriage hitherto wholly refused, and still refuse so to do. To the damage, &c. TO THE CHARACTER, &c. As in the last precedent to the conclusion, which is as follows:- 5. RELATING Yet the said G. H. in his lifetime, and the said C. D. and E. his wife, which said E. is administratrix as aforesaid, since the death of the said G. H. not regarding, &c. bút contriving, &c. have not, nor have nor 132. Baron and Feme, hath any or either of them as yet paid, &c. (although often requested administraso to do.) But to pay the same or any part thereof to the said A. B.trix after the said G. H. in his lifetime wholly refused, and the said C. D. and marriage. E. his wife, which said E. is administratrix as aforesaid, have ever since the death of the said G. H. hitherto wholly refused, and still refuse so to do. To the damage, &c. *II. SPECIAL COUNTS. 1. ON POLI. CIES. of insurance on For that whereas the said A. B. (h) heretofore, to wit, on, &c. (i) at, 1. On a policy &c. (4) according to the usage and custom of merchants, caused to goods lost by be made a certain policy of insurance (, purporting thereby and con- capture, at the taining therein, that the said A. B. (or, if effected by an agent for the suit of the broker (g). plaintiff, say that the said E. F.") (m) as well in his own name, as The policy. for and in the name and names of all and every other person or per- [110] sons fo whom the same did, might, or should appertain in part, or in all, did make insurance and cause, &c. [Here set out the policy in thè past tense to the words," in witness, &c." which are to be omitted, and then proceed as follows, (n) :] And by a certain memorandum there- Common me under written, corn, fish, salt, fruit, flour, and seed, were warranted morandam. (g) By observing the following notes, this precedent may be applied to a policy on ship or freight, &c. or to an action by the principal. (h) The action may be brought in the name of the person interested, or of the person in whose name the policy was effected. Park. 403. Marshal. 683. [Vide Ruan v. Gardner. C. C. U. S. P. 2 Condy's Marsh, 680. n. (112.)]. If brought in the name of the party interested, on a policy effected in the name of an agent, the declaration states that the plaintiff "by one E. F. his agent in that behalf," made, &c. and sometimes shews that the requisites of the Stat. 28 Geo. 3. c. 56. have been complied with, as in 1 B. & P. 345. Marshal. 312. and note q. post. 111. (i) The date of the policy in the margin. Park. 27. Marshal. 337. (4) The venue where the cause is to be tried. (1) The Stat. 35 Geo. 3. c. 63. s. 11, enacts, that the instrument shall be called a 66 policy of insurance." (m) The word agent need not be inserted in the policy, 1 B. & P. 346. (2) This instrument has always been considered as ill-framed, 4 T. R. 210. Burr. 348. 1555. 3 East. 578. The policy is to be set forth with the blanks, 1 Went. 409. See the general rule as to construing it. 4. East. 135. [Vide Coit & Pierpoint . Commercial Im. Copy 7 Johns. Rep. 385.] 1. ON POLI- free from average, unless general, or the ship should be stranded; CIES. [111] Insurance on by plaintiff as fendant. mises. sugar, tobacco, hemp, flax, hides and skins were warranted free from average, under L.5 per cent. and all other goods, also the ship and freight were warranted free from average, under L.3 per cent. unless general, or the ship should be stranded (o). And by a certain other memorandum thereunder written, it was declared that the said insurance was on goods (#). As by the said policy of insurance, and memoranda, reference being thereunto had, will more fully, and at large appear. And the said A. B. in fact saith, that the said policy of insurance and memoranda were so made by him the said A. B as aforesaid, as the agent of one E. F. and for his use and benefit, and that he the said A. B. did receive the order for, and effect the said policy of insurance as Notice to de- such agent as aforesaid, to wit, at, &c. aforesaid (9). Of all which said premises he the said C. D. afterwards, tò wit, on, &c. (r) at, &c. aforeMutual pro- said, had notice. And thereupon afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, in consideration that the said A. B. at the special instance and request of the said C. D. had then and there paid to the said C. D. a certain sum of money, to wit, the sum of L.5. 58. of lawful money of Great Britain, as a premium or reward for the insurance of L.100, of and upon the said goods, in the said ship or vessel, in the said voyage, (or "on the premises,") in the said policy of insurance mentioned, and had-then and there undertaken and faithfully promised the said C. D. to perform and fulfil all things in the said policy of insurance contained, on the part and behalf of the insured, [⚫M2] to be performed and fulfilled, he the said C. D. undertook, and then and there faithfully promised the said A. B. that he the said C. D. would become and be an insurer to the said A. B. of the said sum of L.100, upon the said goods (r), in the said ship or vessel, in the said voyage, in the said policy of insurance mentioned, and would perform and fulfil al things in the said policy of insurance mentioned, on his part and behaff as such insurer of the said sum of L.100, to be per (0) This is the common memorandum at the foot of the policy, see Park. 20, 1. 101. Marshal. 223. as the memorandum is part of the policy, its contents may be so stated without adopting the word "memorandum." (p) The general terms of the insurance in the printed part of the policy, are qualified by the insertion, either in the body or at the foot of the policy of the words "on ship," or "on goods," or "on freight, &c." and when inserted at the foot, such memorandum is described as in the above precedent. (q) When the declaration is at the suit of the principal, this averment is formed and fulfilled. And the said C. D. then and there became and 1. ON POLI CIES. was an insurer to the said A. B., and then and there duly subscribed (or, Defendant's if by agent, "by one G. H. his agent, in that behalf duly subscribed,") subscription the said policy of insurance, as such insurer of the said sum of L.100, of the policy. upon the said goods, in the said ship or vessel, in the said voyage, to wit, at, &c. aforesaid. And the said A. B. further saith, that hereto- Goods shipped. fore to wit, on, &c. (s) aforesaid, divers goods (1) of great value, had been and were shipped and loaded at London aforesaid (u), in and on board of the said ship or vessel in the said policy of insurance mentioned (w), to be carried and conveyed therein, in the said voyage, to wit, at, &c. aforesaid. And that the said E. F. (or if at the suit of the Interest of principal, that "he the said A. B.") was then and there, and from thence continually afterwards, until and at the time of the loss hereafter mentioned, interested in the said goods in the said policy of insurance and memoranda mentioned, and so shipped on board the said ship as aforesaid, to a large value and amount, to wit, to the value and amount of all the monies by him ever insured or caused to *be insured thereon, to wit, at, &c. aforesaid (). And the said A. B. in fact further saith, that heretofore, to wit, on, &c. (y) the said ship or vessel, with the Ship sails. said goods on board thereof, departed and set sail from (=) insured. [113] (s) This averment is omitted when the insurance is on ship. Sometimes it is stated that the goods were put on board after the making of the policy, and which allegation need not be proved as laid, 5 T. R. 496. but the averment in the above precedent seems preferable. the risk. 2 B. & P. 155. 4 East 400. If (t) When the insurance is on particular goods, it seems more proper to shew that such goods were put on board. 2 New. Rep. 77: (u) Or any other port from which therence v. Van Horne. 1 Caine's Rep. 276.] insurance was to take effect. As to this averment, see 2 B. & P. 153. (w) If the insurance were on freight, here say, "to be carried and conveyed on freight in and on board the said ship or vessel in the said voyage." (x) As to this averment, see Marshal. 682. &c. 2 Saund. 202. g. n. 17. Quere if it be in any case necessary? 2 East. 392. 4 East. 400. 1 Saund. 276. a. n. 2. If the interest be stated, it should be alleged, that the insured was interested in the goods, not only at the time of the loss, but also at the time of making the insurance and at the commencement of In a declaration on a policy on a foreign (y) This seems preferable to the al- (2) The place from which the voyage was to commence, 2 B. and P. 153. |