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EXECUTORS,

&c.

BY & AGAINST tration 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 above-mentioned, &c.

18. Against baron and feme on a

bond given by teme before coverture.

Pledges, &c.

-, (to wit.) A. B. complains of C. D. and E. his wife, being, &c. of a plea that they render to him the sum of L., of good and lawful, &c. which they owe to and unjustly detain from him. For that whereas the said E. whilst she was sole and unmarried, to wit, on, &c. at, &c. by her certain writing obligatory, sealed with her seal, and now [207] shewn to the court of our said lord the king, before the *king himself here, the date whereof is the day and year aforesaid, acknowledged herself to be held and firmly bound to the said A. B. in the said sum of L., above demanded, to be paid to the said A. B. Yet the said E. whilst she was sole and unmarried, and the said C. D. and E. his wife, since their intermarriage, (although often requested so to do,) have not nor hath either of them as yet paid the said sum of L.—, above demanded, or any part thereof to the said A. B. but they to pay the same, or any part thereof, to the said A. B. have hitherto wholly neglected and refused, and still do neglect and refuse so to do. To the damage of the said A. B. of L.10, and therefore brings his suit, &c. Pledges, &c.

19. Against an

executor or administrator (s).

[The commencement in K. B. by original, is as ante, 9; by bill as ante, 13; in the Common Pleas as ante, 17; and in the Exchequer as ante, 20; describing the defendant as "executor of the last will and testament of E. F. deceased," or as "administrator of all and singular the goods, chattels, and credits of E. F. deceased."]

For that whereas the said E. F. in his lifetime, to wit, on, &c. at, &c. by his certain writing obligatory, sealed with his seal, and now shewn to the court of our said lord the king, before the king himself here, the date whereof is the day and year aforesaid, acknowledged himself to be held and firmly bound to the said A. B. in the said sum of L.-, above demanded, to be paid to the said A. B. Yet the said E. F. in his lifetime, did not pay nor hath the said C. D. executor (or, "administrator,") as aforesaid since the death of the said E. F. as yet paid the said sum of L.-, above demanded, or any part thereof, to the said A. B. (although often requested so to do,) but the said E. F. in his lifetime so to do wholly refused, and the said C. D. executrix as aforesaid, ever since the death of the said E. F. hitherto hath wholly refused, and still doth refuse to pay the same, or any part thereof, to the said A. B. to wit, at, &c. aforesaid, to the damage, &c. (Conclusion as usual.)

(s) See the form against an executor in C. P. 2 Saund. 216.

AGAINST HEIRS,

&c.

20. Against an

heir on the

(u) A. B. complains of C. D. heir of E. F. (w) deceased, being in the custody of the marshal of the Marshalsea of our lord the now king, before the king himself, of a plea that he render to him the said A. B. the sum of L.—, of good and lawful money of Great Britain, bond of his which he owes to (a) and unjustly detains from him. For that whereas ancestor (1). the said E. F. in his lifetime, whose heir the said C. D. is, to wit, on, [* 208] &c. at, &c. by his certain writing obligatory, sealed with his seal, and now shewn, &c. [state the profert or excuse, as ante, 195, 6, 7,] acknowledged himself to be held and firmly bound to the said A. B. in the said sum of L.-, above demanded, to be paid to the said A. B. whenever he the said E. F. should be thereunto afterwards requested, for which payment to be well and truly made, he the said E. F. bound himself and his heirs (y) firmly by the *said writing obligatory. Nevertheless, the said E. F. in his lifetime, and the said C. D. since the death of the said E. F. (although often requested so to do.) have not, nor hath either of them as yet paid the said sum of L.-, or any part thereof, to the said A. B. but the said E. F. in his lifetime, and the said C. D. since his decease, have hitherto wholly refused, and the said C. D. still wholly refuses so to do. To the damage, &c.

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(t) See the precedents, 7 Went. Index. As to the liability of an heir and the declaration in general against him, see the valuable note, 2 Saund. 7. n. 4. C. D. Pleader, 2 E. 2. Vin. Abr. tit. Heir, K. 2. Bac. Abr. Heir and Ancestor. (F) Plowd. 439, 440. He is not chargeable unless he be expressly named in the deed, C. D. Pleader, [Vol. i. 39. n.] 2. E. 2. Vin. Abr. Heir, K. 2. or have legal assets by descent from the obligor. A reversion is assets, but an equity of redemption is not, id. ibid. Com. Dig. Assets, A. and B. Barnes, 164. Cro. Car. 151. Carth. 126. 3 Bos. and Pul. 643. In the latter case, the obligee must proceed in equity, 2 Saund. 7. n. 4.

(u) As to the venue, see Vin. Ab. Heir, K. 2 Hob. 37. it. appears to be transitory.

(2) The defendant must be described as heir, and in the old precedents he is so described in the body of the declaration, as well as in the commencement, see Rast. Ent. 172. In general it need not be shewn how he became heir, whether as son, grandson,

&c. that matter not lying in the plain-
tiff's knowledge, 2 Saund. 7. n. 4. C.
D. Pleader, 2 E. 2. 1 Salk. 355. Vin.
Abr. Heir, K. 2; but if the action be
against the heir of an heir of the obli-
gor, the declaration must state that fact
specially, for if the declaration were
against him as heir generally to the
obligor, and the defendant should plead
riens per descent, the plaintiff would
fail, Cro. Car. 151. 2 Saund. 7. n. 4.
Vin. Abr. tit. Heir, K. 2 pl. 16. It need
not be averred that the defendant had
assets by descent, Dy. 344. b.

(x) The declaration must be in the
debet and detinet, C. D. Pleader, 2 E.
2. Vin. Ab. Heir, K. 2; [Vide Spots-
wood v. Price, 3 Hen. & Mun. 123] but
the omission of the debet will be aided
by verdict, id. ibid. 3 East. 2. 2 Saund.

7. n. 4.

(y) It must be shewn in the declaration that the heir was expressly bound, for otherwise he is not chargable, C. D. Pleader, 2 E. 2. Vin. Abr. tit. Heir, K. 2. 2 Saund. 134. n. 1. 136, &c. [Vol. 1. 39. n.}

AGAINST HEIRS, &C.

21. Against an heir and the

devisee of the obligor (z).

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A. B. complains of C. D. and E. F. which said C. D. is heir of G. H. deceased, and which said E. F. is devisee of the said G. H. of divers lands and tenements of the said G. H. deceased, by his last will and testament, being in the custody, &c. of a plea that they render to him the said A. B. L.-, of lawful, &c. which they owe to and unjustly detain from him. For that whereas the said G. H. of whom the said C. D. is heir, and the said E. F. is devisee as aforesaid, in his lifetime, to wit, on, &c. at, &c. by his certain writing obligatory, sealed with his seal, and to the court, &c. (profert as ante, 195,) acknowledged himself to be held and firmly bound unto the said A. B. in the said sum of L., above demanded to be paid to the said A. B. when he the said G. H. should be thereunto requested, and for which payment well and truly to be made the said G. H. did, by the said writing obligatory, bind himself and his heirs to the said A. B. Nevertheless, the sail G. H. in his lifetime, and the said C. D. his heir, and the said E. F. devisee as aforesaid, (although often requested so to do) have not nor hath either of them, as yet paid the said sum of L-, above demanded, or any part thereof, to the said A. B. but to pay the same to the said A. B. have wholly neglected and refused, and the said C. D. and E. F. still neglect and refuse to pay the same, or any part thereof, to the said A. B. To the damage, &c.

Markham and Le Blanc. (a)

next after

(b) in

Trinity Term, 51 Geo. 3.

22. On a bail

bond by the assignee against the

principal or bail, where the first suit was in K. B. by bill.

(to wit.) (c) A. B. assignce of E. F. esquire, sheriff (d) of
-, according to the form of the statute (e) in such

the county of
case made and provided, complains of C. D. being in the custody, &c.

The devisee must be sued jointly with the heir in equity, as well as at law. Id. Ibid. As to suing a devisee where no heir can be discovered, see 7 East. 128. 133.

(z) See the precedents, Clift. Ent. 243. pl. 19. Lill. Ent. 145.-Id. 529, 530. 2 Rich. C. P. 241. 5 Wentw. 374, Index, vol. vii. 539. 2 Mall. Ent. 186, 7. In some of the precedents, the date and substance of the will, and that the (a) This action, whether in the name obligor died seized, are stated, see 2 of the sheriff or the assignee of the Mall. Ent. 186, 7. 2 Rich. C. P. 241. bond, must be brought in the court from Lill. Ent. 145, 529, 530; but in others which the process in the original acthese facts are not stated, see Clift. tion issued, 2 Saund. 61. b. 8 T. R. Ent. 243. 5 Went. 374, see vol. xviii. 152. acc. 1 H. Bla. 631. cont. [Vide MSS. 35, where the declaration was Haswell v. Bates T Lansing, 9 Johns.Rep. holden good on demurrer, and this ac- 80. 12 Johns. Rep. 459, where actions cording to the principle in 1 Salk. 355. on bail-bonds, taken in inferior courts, 2 Saund. 7. n. 4. seems sufficient. the process of which was insufficient The liability of the devisee depends on stat. 3 W. & M. c. 14. see the constructions on this statute, 2 Saund. 7. n. 4. Bac. Abr. Heir. Vin. Abr. Heir, Z. d.

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to reach all the parties to the bond, were sustained.] The defendant cannot take the objection under the plea of non est factum, 2 Campb. 396. On a bail

of a plea that he render to the said A. B. as assignee as aforesaid, the ON BAIL sum of L.-, (the penalty,) of lawful money of Great Britain, which

BONDS.

he owes to and unjustly detains from him. For that whereas the said The writ. A. B. heretofore to wit, on, &c. (ƒ) in the year of the reign of

our lord the now king, sued and prosecuted out of the court of our said lord the king, before the king himself, (the same court then (g) and still being holden at Westminster, in the county of Middlesex,) [*211] against the said C. D. (h) [or, if the declaration be against one of the bail, say "against one G. H."] a certain writ of our said lord the king, called a latitat, directed to the sheriff of "" (i) (or if a bill of Mid

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to answer

dlesex, say,
"a certain precept called a bill of Middlesex, whereby the
Sheriff of Middlesex was commanded to take, &c.") by which said writ
our said lord the king commanded the said sheriff to take the said C.
D. if he should be found in his bailiwick, and him safely keep, so that
he might have his body before our said lord the king, at Westminster,
in the county of Middlesex, on
next after
unto the said A. B. of a plea of trespass, and also to a bill of the said
A. B. against the said C. D. for L., upon promises according to
the custom of his said Majesty's court, before his said Majesty to be
exhibited, and that the said sheriff should then have there that writ,
(or, if the arrest was on a bill of Middlesex, say, "precept,"). Which
said writ, (or "precept,") afterwards and before the delivery thereof
to the said sheriff of the said county of
to be executed as is
hereinafter mentioned, to wit, on the (j)
aforesaid, was duly marked and indorsed for bail for L.-, by virtue
of an affidavit (k) of the cause of action of the said A. B. in that behalf

note.

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day of, in the year

bond taken by sheriff of County Pala- but the first is preferable; see the next
tine of Lancaster, see 5 Went. 474.
Other precedents, 1 Rich. C. P. 455. 2
Rich. C. P. 248. 7 Wentw. Index,
530, 1.

(b) If the bond was assigned after the first day of term, the declaration must be entitled specially, or will be demurrable, 1. T. R. 116-7 T. R. 474. ante, 12. n. a.

(c) The venue is transitory, Fortes. 366. Stra. 727. Ld. Raym. 1455.

(d) In Middlesex the two officers constitute only one sheriff, and the declaration would be demurrable if they be described as sheriffs. Bac. Abr. Sheriff, K. 162. 2 Ld. Raym. 1135.

(e) 4 & 5 Ann c. 16. s. 20. see the constructions thereon in 2 Saund. 59, a. b. n. 3. Tidd. 248. 3 Bla. Com. 290.

(f). This may be the teste of the writ, or the day it is actually issued,

(g) This allegation is unnecessary,
and if the writ be stated to be sued out
in vacation, would render the declara-
tion demurrable, 5 Burr. 2586. 3 T. R.
184. 1 Saund 300. b. n. 7.

(h) As to misnomer, 2 Campb. 270.
(i) It may be stated to have been di-
rected to the sheriff by name. 2 Campb.
525.

(j) The date of the indorsement, but
this is immaterial.

(*) It is not necessary to aver that it was by virtue of an affidavit; but if the averment be introduced, though unnecessarily, the affidavit must in some cases be produced in evidence, 1 B. & P. 280. 1 Burr. 330. It is, therefore, in general advisable, merely to state the indorsement for bail, without referring to the affidavit.

Indorsement

for bail.

ON BAIL

BONDS.

Delivery to the sheriff.

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The arrest.

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before then made, and duly affiled of record, in the said court of our said lord the king, before the king himself, according to the form of the statute in such case made and provided (?); and which said writ (or "precept,") so indorsed, afterwards, and before the said return thereof, to wit, on the day of, in the year aforesaid (m), to wit, *at, &c (n) was delivered to the said E. F. who then and from thence, until and at and after the time of the arrest, and the making of the writing obligatory hereinafter mentioned, was sheriff of the said county of in due form of law to be executed.† By virtue of which said writ, (or "precept,") the said E. F. so being sheriff as aforesaid, afterwards, and before the said return of the said writ, (or "precept,") to wit, on the day and year last aforesaid, and within his bailiwick as such sheriff, to wit, at in the county of -, aforesaid (0), took and arrested the said C. D. by his body (), and then and there had and detained him in his custody, as such sheriff, at the The bail bond. suit of the said A. B. for the cause aforesaid. And the said C. D. being so arrested, and in custody of the said E. F. so being sheriff as aforesaid, by virtue of the said writ, (or “precept,") at the suit of the said A. B. as aforesaid, the said E. F. afterwards, and before (9) the said return of the said writ, to wit, on the day and year last aforesaid (r), and within his bailiwick, as such sheriff, to wit, at, &c. aforesaid (8), took bail for the appearance of the said C. D. at the return of the said writ, (or "precept,") according to the form of the statute in such case made and provided (t); and on that occasion the said C. D. (or, if the action be against one of the bail, "the said C. D. as bail and surety for the said G. H.") then and there to wit, on the day last aforesaid, at, &c. aforesaid (u), by his certain writing obligatory, commonly called a bail bond, sealed with the seal of the said C. D. and now shewn to the court of our said lord the king, before the king himself here, the date whereof is the same day and year last aforesaid, acknowledged himself to be held and firmly bound to the said E. F. so being then sheriff of the said county of as aforesaid, as such sheriff, by the name, description, and addition of county of

[213]

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sheriff of the

in the penal sum of L., of good and lawful money of Great Britain, to be paid to the said sheriff, or his certain attorney,

(7) 12 Geo. 1. c. 29.

(m) This day is not material; it is
usual to insert the date of the bail bond,
so as to avoid an unnecessary statement
of different days.

(n) The venue in the action.
(0) Some place in the county in
which the party was arrested.

(p) This allegation is unnecessary,
and is not traversable, 2 Saund. 59. b.
(9) The bond is void if taken after

the return-day of the writ, 2 Saund. 60. a. 1 L. Ray. 352.

(7) The date of the bail bond.

(8) The place before named being in the county where the party was arrested.

(t) 23 H. 6. c. 9. 2 Saund. 59. 61. c. d. n. 5.

(u) The place within the county where the arrest was made.

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