TO THE &c. consideration thereof afterwards, to wit, on, &c. last aforesaid, at, &c. 5. RELATING aforesaid, undertook, and then and there faithfully promised the said CHARACTER, A. and B. as assignees as aforesaid, to pay them the said sum of money last-mentioned, whenever afterwards he the said C. D. should be thereunto requested. Yet the said C. D. not regarding his said several Breach. three (m) last-mentioned promises and undertaking, but contriving and fraudulently intending craftily and subtilely to deceive and defraud the said A. and B. as assignees as aforesaid in this respect, hath not yet paid the said several sums of money in the last three counts mentioned, or either of them, or any part thereof to the said A. and B. assignees as aforesaid (although often requested so to do.) But the said C. D. to pay the same or any part thereof hath hitherto altogether refused and still doth refuse. To the damage of the said A. and B. as assignees as aforesaid, of L.- -, and therefore they bring their suit, &c. Pledges, &c. nee. [94] If the plaintiff be a surviving assignee, call him so throughout, and 110. By a surconclude as follows" Yet the said E. F. not regarding, &c. but viving assigcontriving, &c. to deceive and defraud the said C. D. before he became bankrupt, and the said A. and one B. in his lifetime, now deceased, and whom the said A. hath survived (which said A. and B. in the lifetime of the said B. were assignees of the estate and effects of the said C. D. according to the force, form, and effect of the several statutes concerning bankrupts) after the said C. D. became bankrupt, and the said A. aš surviving assignee as aforesaid, since the death of the said B. hath not as yet paid to them, or any or either of them, the said several sums of money, &c. (as in the precedent 108, page 90.) A. B. and C. D. (which said C. D. is assignee of the estate and ef. 111. By one fects of E. F. a bankrupt, according to the force, form, and effect of partner and the assignee the several statutes concerning bankrupts) complain of G. H. being, of another, &c. For that whereas the said G. H. on, &c. at, &c. was indebted to being bankrupt, for work the said A. B. and E, F. before the said E. F. became bankrupt, in and labour bethe sum of L, of lawful, &c. for the work and labour, &c. by the fore the banksaid A. B. and E. F. before that time done, &c. and being so indebted," ruptcy (n). he the said G. H. in consideration thereof afterwards, and before the . (m) According to the number of (n). See 12 Mod. 447. & T. R. 140. counts in which the promises are laid to the assignees 10 East. 418. TO THE CHARACTER, &c. 5. RELATING the said E. F. became bankrupt 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 to do this hath hitherto wholly refused and still refuses to pay the same or any part thereof to the said A. B. and C. D. (which said C. D. is assignee as aforesaid.) To the damage of the said A. B. and to the said C. D. as assignee as aforesaid of L., and therefore they bring their suit, &c. [95] 112. By an executor for work, or goods sold, &c. on promises to the testator. *Fourthly-Executors. . *,`(to wit.), A. B. executor of the last will and testament of E. F. deceased, complains of C. D. being, &c. For that whereas the. said C. D. on, &c. (o) at, &c. was indebted to the said E. F. in his lifetime, in the sum of L., of lawful, &c. for the work and labour of the said E. F. by the said E. F. before that time done, &c. and being so. indebted, &c. (laying the promise to the said E. F. in his lifetime.) The quantum meruit is as follows: “And whereas also afterwards, and in the lifetime of the said E. F. to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said E. F. had before that time done, &c. And the said A. B. executor as aforesaid, avers, that the said E. F. in his lifetime, therefore reasonably deserved to have, &c. whereof, &c. Yet the said C. D. not regarding, &c. but contriving, &c. to deceive and defraud the said E. F. în his lifetime; and the said A, B. as executor as aforesaid, since the death of the said E. F. in this behalf, hath not as yet paid the said several sums of money, or any or either of them, or any part thereof, to the said E. F. in his lifetime, or to the said A. B. executor as aforesaid, since the death of the said E. F. (although often requested to do so;) but he to do this hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said A. B. executor as aforesaid.t. To the damage of the said A. B. as executor as Profert (p). aforesaid, (3) of L., and therefore he brings his suit, &c. And the Breach. (0) Some day just before the death (p) See the form, 2 Saund. 209. ., and 5 Ann. c. 16, s. 1.—2 Saund. 9. n. 12. C. D. Pleader. O. 3. 17. 2. D. 1. The pledges are added after the profert, and if, as sometimes happens in the Common Pleas, a profert of a deed be stated at the end of a declaration, the profert of the letters testamentary follows it. (3) The words as executor as aforesaid, are unnecessary. 5 Binney 16. 21. see post. 96. n. r. TO THE CHARACTER, &c. said A. B. brings into court here, the letters testamentary of the said 5. RELATING E. F. deceased, whereby it fully appears to the said court here, that the said A. B. is executor of the last will and *testament of the said E. F. deceased, and hath the execution thereof, &c. Pledges, &c. [* 96] And whereas also, the said C. D. afterwards, and in the lifetime of 113. Counts on promises indebted to the said E. F. in the further sum of L., of like lawful tiff as execumoney, for the work and labour, care and diligence, of the said E. F. tor (9). by him the said E. F. before that time done, performed and bestowed, in and about the business of the said C. D. and for the said C. D. 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 E. F. before that time sold and delivered to the said C. D. 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 E. F. before that time lent and advanced to, and paid, laid out, and expended for the said C. D. 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 C. D. before that time had and received, to and for the use of the said E. F." the said E. F. deceased, to wit, on, &c. aforesaid, at, &c. aforesaid, was to the plain And the said C. D. being so indebted, and the said several sums of money being and remaining wholly due and owing, unpaid, and unsatisfied, he the said C. D. 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. as executor as aforesaid (r), to pay him the said sum of money in this count mentioned, when he the said C. D. *should be thereunto afterwards requested (s). And whereas also the said C. D. afterwards, to wit, on, Account stated (t) &c. last aforesaid, at, &c. aforesaid, accounted with the said A. B. (4) These counts are to be inserted at the dagger (†) in the last precedent, they are proper whenever on account of the Statute of Limitations, &c. it may be expedient to rely on any promise or acknowledgment since the death of the testator. See 3 East. 409. -Willes. 29. [ante, vol. 1. 204, 205. 5 Binney 573.] In support of these counts, the plaintiff should, on the trial, produce the probate. 2 Saund. 47. k. 63. f. g. 117. d. 208. (r) The words "as executor" are here omitted in 2 Saund. 208. [Et. vide 5 Binney 16. 21.] VOL. II. (s) If the plaintiff in the character of executor has sold goods to the defendant, or paid money for him, here add counts for goods sold, &c. by the plaintif as executor, 6 East. 405.— 3 East. 104. And if the defendant has received money since the death of testator, add a count for money had and received, to the plaintiff's use, as executor. (t) This count may be joined with a count for goods sold by testator. 1 Taunton's Rep. 322.--6 East. 406. 403. -5 East 154. [97] TO THE CHARACTER, &c. Breach. 5. RELATING as (u) executor as aforesaid, of and concerning divers other sums of of money from the said C. D. to the said A. B. as executor as aforesaid, before that time due and owing, and then in arrear and unpaid; and upon that accounting the said C. D. was then and there found to be in arrear, and indebted to the said A. B. as executor as aforesaid, in the further sum of L.- of like lawful money; and being so found in arrear and indebted, he the said C. D. in consideration thereof, afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said A. B. as executor as aforesaid, to pay him the said sum of money last mentioned, whenever afterwards he the said C. D. should be thereunto requested. Yet the said C. D. not regarding his said several (w) three last-mentioned 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. as executor as aforesaid, in this respect, hath not yet paid the several sums of money in the said three last-mentioned counts specified, or any or either of them, or any part thereof, to the said A. B. executor as aforesaid, (although often requested so to do.) But the said C. D. to pay the same, or any part thereof, hath hitherto altogether refused, and still doth refuse. To the damage, &c. (as ante, page 95, adding profert.) 114. By a executor. *[In an action at the suit of a surviving executor, describe him accordingly in the beginning, and conclude as follows:] Yet the said C. D. not regarding, "&c. but contriving, &c. to deceive and defraud the said E. F. 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, (which said A. B. 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 A. B. as surviving executor as aforesaid, since the death of the said G. H. 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 to do this hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said A. B. as surviving executor as aforesaid (x): To the damage of the said A. B. surviving executor as aforesaid, of L., and therefore he brings his Special pro- suit, &c. And he brings into court here the letters testamentary of fert and veri- the said E. F. deceased, whereby it fully appears to the said court here, that the said A. B. 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; with this that the said A. B. will verify that the said G. H. is deceased, fication. (u) As to this word, see 5 East. 150. to the executor. -2 Saund. 208. (w) This depends on the number of counts in which the promises are laid (x) It may be advisable to add counts on promises to the plaintiff as executor, as in the last precedent. TO THE and that he the said A. B, hath thereby become and is the surviving 5. BELATING executor of the last will and testament of the said E. F. deceased, and CHARACTER, hath the execution thereof, &c. Pledges, &c. &'c. ron and Feme [99] -,(to wit.) A. B. and C. his wife, (which said C. is executrix 115. By Baof the last will and testament of D. deceased,) complain of E. F. be-executrix, being &c. For that whereas the said E. F. on, &c. at, &c. was indebted, fore marriage. &c. [as in the common case at the suit of an executor.] Yet the said E. F. not regarding, &c. but contriving to deceive and defraud the said D. in his lifetime, and the said C. as *executrix as aforesaid, after the death of the said D. and whilst she was sole and unmarried, and the said A. B. and C. his wife, as executrix aforesaid, since their intermarriage, in this behalf, hath not as yet paid to them, or any or either of them, the said several sums of money, or any part thereof, (although often requested so to do.) But he to do this hath hitherto wholly refused, and still refuses to pay the same, or any part thereof to the said A. B. and C. his wife, executrix as aforesaid, or to either of them. To the damage of the said A. B. and C. his wife, as executrix as aforesaid, of L., and therefore they bring their suit.-[Add profert and pledges.] [As in the last precedent to the conclusion, which is as follows:] 116. By Ba Yet the said E. F. not regarding, &c. but contriving, &c. to deceive ron and Feme executrix afand defraud the said D. in his lifetime, and the said A. B. and C. his ter marriage wife, as executrix as aforesaid, [if there be another executor say “ and (y). the said G. and the said A. B. and C. his wife, as executor and executrix as aforesaid," since the death of the said D. 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 to do this hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said A. B. and C. his wife, executrix as aforesaid, or to either of them. To the damage of the said, &c. [As in the last precedent, adding profert.] (y) How a debt due to the wife in stated, see 4 Mod. 376.-Com. Dig. *the representative character is to be, Pleader, 2 A. L. |