EXECUTORS, &C. Plene administravit præter. BY AND AGAINST of the commencement of this suit, there was and still is due and owing to the said L. M. upon and by virtue of the said last-mentioned judgment, a large sum of money, to wit, the sum of £-to wit, at, &c. (venue) aforesaid⚫. And the said defendant further saith, that he hath fully administered all and singular the goods and chattels which were of the said E. F. deceased, at the time of his death, which have ever come to his hands to be administered, except goods and chattels of small value, to wit, of the value of £10, and that he the said defendant hath not, nor on the day of exhibiting the bill of the said plaintiff in this behalf, [or, in C. P. or by original, " at the time of the commencement of this suit,"] or at any time since, had any goods or chattels which were of the said E. F. at the time of his death, in his hands to be administered, except the said goods and chattels of the value aforesaid, which are not sufficient to satisfy the several debts aforesaid, due and owing on the said judgments and writing obligatory (according to the fact) and which are subject and liable to satisfy the said several debts. And this, &c.-[Conclude with a verification, as ante, 907, sixth precedent .] a As to this allegation, see ante, 946, n. 948, n. As to this allegation, see ante, 947, n. с Formerly this plea was con cluded with an averment of the intestate's being the same person as mentioned in the bond and record of judgment, but it is not material, and is now omitted, 1 Saund. 334, n. 8. PLEAS IN DEBT. In the King's Bench, (or, " C. P." or, " Exchequer.") GENERAL ISSUES, &c. And the said defendant by E. F. his attorney, Nil debet gene b A. B. comes and defends the wrong and injury, when, &c. rally. This form of plea of nil debet will be the same as the preceding one, omitting the word "owe," and instead of it say "detain." C. D. ats. A. B. 4 Nil debet in action by or against an executor or admi nistrator. And the said defendant by E. F. his attorney, Nil debet to debt, comes and defends the wrong and injury, when, &c. qui lame. See forms, 1 Rich. C. P. 147,512.-Morg. 529.-2 Rich. C. P. 307, 316. As to this plea in general, see ante, vol. i. Index," Debt (pleas in)." It is a proper plea to debt on simple contract, or for an escape, or on a penal statute, or when the deed is mere inducement to the action; but not when the action is founded on a specialty, as on a bail bond, &c. or on a record, Ld. Raym. 1500.Com. Dig. Pleader, 2 W. 17. See a plea of non detinet. 1 Rich. C. P. 147.Post, 1023.-Ante, vol. i. Index, "Debt (pleas in)." If the sum be specified strictly, the plea should apply to all the sums demanded; thus, where a declaration in debt demanded £2000, and contained several counts, each of which stated a debt of £224, and the defendant pleaded that he did not owe the said sum of £224, it was decided that the plaintiff might sign judgment as for want of a plea, 3 B. & P. 174, but in a later case such a mistake was considered immaterial, and the amount was rejected as surplusage, 1 D. & R. 473, and see 1 M. & P. 276, acc. See the form, 7 Wentw. Index, 632, 3.-1 Rich. C. P. 147.-Lil. Ent. 223. The 4 & 5 Anne does not allow double pleas in a penal action, 2 Wils. 21. The plea of not guilty would suffice, 1 T. R. 462.— Ante, vol. i. Index, "Debt (pleas in)." d It is sufficient in a qui tam action, to intitule the plea with the names of the parties, without the addition of " qui tam, &c." to the plaintiff's name, 7 East, 333. GENERAL ISSUES, &C. and says that he does not owe to our said lord the king, [or," to the poor of ths parish of in the county aforesaid,"] and to the said plaintiff who sues as aforesaid, or to either of them, the said sum of money [or," the said sum of £" above demanded, or any part thereof, in manner and form as the said plaintiff, who sues as aforesaid, hath above thereof complained against him, and of this the said defendant puts himself upon the country, &c. Non est factum c. C. D. The like by an executor or administratore. ats. A. B. And the said defendant by E. F. his attorney, comes and defends the wrong and injury, when, &c. and says that the said supposed writing obligatory [or, "indenture," or, "articles of agreement," according to the fact,] is not his deed, and of this he puts himself upon the country, &c. C. D. ats. And the said defendant, executor [or, "adminisA. B. trator,"] as aforesaid, by E. F. his attorney, comes The plea in this respect should be conformable to the declaration, and where, in an action qui tam, the plea stated that the defendant did not owe to the plaintiff, omitting," and to our lord the king," it was beld insufficient, Hob. 328.— Bac. Ab. Action, qui tam, D. and Reg. Plac. 302, but it would be sufficient to say he doth not owe generally modo et forma, &c. without specifying to whom. b Ante, 951, n. b. C See form, 1 Rich. C. P. 146. 641, 2; but see 1 Stark. 294; 5 Moore, 164.-4 Campb. 20, semb. contrà. And the defendant, to take advantage of a variance, should not crave oyer, and set out the deed, whereby he would in effect deny the deed set out in his plea, and not that in the declaration, see 4 B. & C. 741.-7 D. & R. 249. 2 B. & A. 765.-Post, 953, n. d When the defendant means to dispute the validity of the deed, it should seem that the plea should refer to it, merely by the term "writing,” or “supposed writing obligatory," "indenture," &c. and should not say," writing obligatory," &c. generally, because such admission would be inconsistent with the proposed defence, 1 Saund. 291 a, n. 1; see the precedents, Lil. Ent. 166.-Co. Ent. 145 b. Rast. Ent. 181 b, 182 a.-10Co. 126 b.--Lutw. 464, 467, which say only" writing." As to this plea, see Com. Dig. Pleader, 2 W. 3.—10 Co. See form, 1 Rich. C. P. 120. and defends the wrong and injury, when, &c. and says that the said supposed writing obligatory [or, "indenture," or, "articles of agreement," according to the fact, as in declaration,] is not the deed of the said G. H. deceased, and of this he puts himself upon the country, &c. C. D. ats. And the said defendant by E. F. his attorney, A. B. comes and defends the wrong and injury, when, &c. and craves oyer of the said supposed writing obligatory, in the said declaration mentioned, and it is read to him, &c. he also craves oyer of the condition of the said supposed writing obligatory, and it is read to him in these words, "Whereas," &c. [here set forth the recitals, if any, and the conditions, verbatim], which being read and heard, the said defendant says, that the said supposed writing obligatory is not his deed, and of this he puts himself upon the country, &c. GENERAL ISSUES, &c. Non est factum, after craving oyer of bond and condition". It is not usual to plead non est factum, setting out the condition on oyer, unless where the defendant pleads double. If the defendant be desirous of taking an advantage of a variance in the deed, as stated in the declaration, he should not crave oyer, and set it out, and plead non est factum, for by that the deed so set out becomes a part of the declaration, and the only question upon the trial of that issue is whether the deed set out was executed by the defendant. 4 B. & C. 741. 7D. & R. 249, S. C. and see 2 B. & Ald. 765. b See ante, 952, noted. Though it is usual in practice not to set forth the bond, but to say, "and it is read to him," &c. and then to pray oyer of the condition, and set it forth in hæc verba, yet it is said that regularly the bond ought to be entered at large, as well as the condition, but if no use is intended to be made of the bond in pleading, note 1. Oyer must be demanded of the condition, to entitle the defendant to it, 1 Saund. 290, note 2. e The whole condition or deed must be set forth upon oyer, and if there be any misrecital, the plaintiff may either sign judgment as for want of a plea, or he may, by his replication, pray that the deed may be enrolled, and procure it to be enrolled and demur, 1 Saund. 9 b, n.1.-4 T.R. 370. Tidd, 9th edit. 565, 589. f This refers to the bond or deed, as set out on oyer, and not to the bond or deed set out in the declaration. 4 B. & Cres. 741. 7 D. & R. 249, S. C. supra. GENERAL ISSUES, &c. The like of an indenture. [ 954 ] Non est factum, and nil debet, to debt on bond and simple contract joined in same declaration. Plea to debt on simple contract law wager, or nil debet per legem c. C. D. ats. And the said defendant by E. F. his attorney, A. B. S comes and defends the wrong and injury, when, &c. b and craves oyer of the said supposed indenture, in the said declaration mentioned, and it is read to him in these words, [here set out the indenture verbatim], which being read and heard, the said defendant says, that the said supposed indenture is not his deed, and of this he puts himself upon the country, &c. ats. C. D. C. D. ats. A. B. And the said defendant in his own proper person, comes and defends the wrong and injury, when, &c. and says, that he doth not owe to the said plaintiff the said sum of £ above demanded, or any part thereof, in manner and form as the said plaintiff hath above complained against him; and this he is ready to defend against the said plaintiff and his suit, however the court of our lord the king here shall consider, &c. a See the notes to the preceding form. This mode of pleading non est factum, is only customary when the defendant also pleads a special plea, and it may be necessary for the defendant, to avail himself of the non-performance by the plaintiff of some condition precedent, &c. as a ground of defence. b See ante, 952, noted. See a form, Lil. Ent. 467, Mod. Ent. 242, Co. Lit. 295, and Rast. Ent. 153, where the origin and use of this plea are discussed. It is still in force. See 1 New R. 293. As to the appointment of compurgators in, see 2 B. & C. 538.-4 D. & R. 3, S. C. |