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that is not proved by the oath of three witneffes (at the least) that were prefent at the making thereof, nor unless it be proved that the teftator at the time of pronouncing the same, did bid the perfons prefent, or fome of them to bear witness that fuch was his will, or to that effect, nor unless such nuncupative will were made in the time of the laft fickness of the deceased, and in the house of his or her habitation or dwelling, or where he or she had been refident for the space of ten days or more, next before the making of fuch will; except where fuch person was unexpectedly taken fick, being from home, and died before he or she returned to the place of his or her habitation.

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4th. That no will in writing, concerning any goods, chat. tels or personal eftate fhall be repealed, nor fhall any clause or bequest therein be altered or changed by any words or will, by word of mouth only, except the fame be in the lifetime of the teftator, committed to writing and read to the tef tator, and allowed by him in the prefence of three credible witneffes at the leaft. Provided always, That notwithstanding this act, any foldier being in actual military service, or any mariner or feaman being at fea, may difpofe of his moveables,. wages, and other perfonal eftate, as he might have done before the making of this act.

The Form of a Will, with the Devife of a Real Eftate, Leafehold, &c.

N the name of God, Amen. (Or, Be it remembered, That)

perfect mind and memory (or you may fay thus, confidering the uncertainty of this mortal life, and being of found, &c.) blelled be Almighty God for the fame, do make and publish this my laft will and teftament, in manner and form following, (that is to fay) Firft, I give and bequeath unto my be-loved wife J. B. the fum of I do alfo give and be

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queath unto my eldeft fon G. B. the fum of I do alfo give and bequeath unto my two younger fons J. B. and F. B. the fum of a piece. I alfo give and bequeath to my daughter in law S. H. ingle woman, the fum of which faid feveral legacies or fums of money, I will, and order shall be paid to the faid refpective legatees, within fix months after

my deceafe. I further give and devife to my eldeft fon G.. B. his heirs and affigns, All that my meffuage or tenement, fituate, lying and being in, &c. together with all my other freehold cftate whatfoever, to hold to him the faid G. B. his heirs and affigns forever. And I hereby give and bequeath to my faid younger fons J. B. and F. B. all my leasehold eftate of and in all thofe meffuages or tenements, with the: appurtenances, fituate, &c. equally to be divided. between them. And lastly, as to all the reft, refidue and remainder of my perfonal estate, goods and chattels, of what kind and nature foever, I give and bequeath the fame to my faid beloved wife, J. B. whom I hereby appoint fole executrix of this my laft will and teftament; hereby revoking all former wills by me made.

In witness whereof 1-have-bereunto fet my hand and feal the in the year of cur Lord

day of

Signed, fealed, published and declared by the above named A. B. to be his laft will and teftament, in the prefence of us, who at his request and in his.prefence have hereunto fubfcribedour names as witneffes to the fame,

A. B. (Seal.)

R. S.
W.T.

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T.W..

A Codicil to a Will, that is to fay, a Supplement or

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Addition to it.

day of

A. B. of, &c. do this.. make and publish this codicil to my laft will and teftament, in manaer following, (that is to fay) give to my niece M. S. one gold watch, one large diamond ring, and one filver coffee pot. And whereas in and by my last will and teftament I have given and bequeathed to my daughter in law the fum of

I do hereby order and declare, that my will is that only the fum of be paid unto her in full of the faid legacy I have as aforefaid given and bequeathed unto her; and that the remaining part of the faid legacy be given and paid to my nephew E. H. And lastly, It is my defire, that this my prefent codicil be annexed to and made a part

of

my

laft will and teftament, to all intents and purposes. In witnefs whereof I have hereunto fet my hand and feal this

day of

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Signed, fealed, published and declared by
the above named A. B. as a codicil to
be annexed to his laft will and tefta-
ment in the prefence of

R. S

W. T.

T. W..

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A. B. (Seal.)

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A WRIT is a precept ifiued from a court or by fome law

ful authority commanding fomething to be done touch

ing a fuit or action:

It is an

A declaration is that part of a writ which fhews the caufe of complaint of the plaintiff against the defendant, wherein the party is fuppofed to have received fome wrong. expofition of the writ,, with the addition of time, ftances, &c. and must be true, clear and certain; Court is not to take things in it by implication.

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for the

Sum. Laws Eng.

The plaintiff's declaration ought to be plain and certain, as it compels the defendant to make anfwer to it; otherwife the jury would be at a lofs in giving their verdict, and the jadges be uncertain in their judgment, &c. for they all depend upon the certainty and fufficiency of the declaration. It muft fet forth the plaintiff's and defendant's names; the caufe or matter of complaint; in what manner the action did arife; the time and place the injury was done; and the damage thereby fuftained. Att. Pract

In action, of debt, upon a bond, the plaintiff muft allege a place where the bond was made, or his declaration will be ill, for the injury fhould come from that place. If action of the cafe be brought on an affumpfit, the plaintiff is to declare upon the whole promife made, and not on part of it; or up-on the trial he will be non-fuited.

In covenant there needs no more of the deed to be mentioned in the declaration, than only fo far as in the covenant where the breach is to be affigned. And in flander no more inducement is required than is neceffary. But for words, the declaration must lay them exprefsly and pofitively, not to the effect following, &c. And it is fafeft that they be laid falfe and malitiofe, &c. though when malitiofe has been omitted it hath been held good, if the words themfelves were malicious and flanderous.

In actions upon general fiatutes, that the defendant hath committed fuch an act, against the form of the ftatute in fuch cafe made and provided is enough without reciting the whole act; but particular ftatutes must be recited at large, and an attefted copy produced at the trial. Att. Pract. It is good to lay fufficient damages in all declarations according to the value of the thing demanded in the action, and the nature and heinoufnefs of the offence. It is ufual in England to lay in debt, cafe, amount of the injury received. for what is not contained in the what is materially alleged.

c. double to the debt or Damages cannot be given declaration; and only for

In an action of the cafe, the jury may find lefs, but they

cannot more.

Ibid.

The forms of writs are generally established by law. Thofe which iffue from the clerk's office in any of the courts of law, are to be under the feal of the court, to bear teft of the firft juftice of the court, who is not a party, and be figned by the court..

Conft. of Ma

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Court writs and fuch as iffue from a Justice of the Peace, are commonly printed with blank fpaces to be filled up with the names of the parties, time of trial, declaration, &c. as occafion and the nature of the action fhall require. Being figned and fealed in this ftate, they are thus procured by plaintiffs or their attornies, and completed by filling up the blanks, and especially inferting the declaration according to the nature of the action which is to be commenced.

All original proceffes iffuing from the courts of common pleas must be fe ved and executed fourteen days before the day of the fetting of faid courts, and if against any bodies. corporate, towns, precincts, parishes or villages, or against the proprietors of any common or undivided lands, or other

eftate, thirty days; and a copy thereof must be left with the clerk or fome principal member of fuch body COFporate, or with the clerk of fuch town, precinct, parish or village, or proprietors, or one or more of the inhabitants or proprietors, refpectively. Such as iffue from a Juftice of the Peace, muft be ferved feven days at the leaft, before the day therein fet for trial. Maj. Laws.

All writs iffuing out of the fupreme judicial court, or court of common pleas, muft, before they be ferved, be indorfed on the back thereof, by the plaintiff or plaintiffs, or one of them, with his chriftian or furname, his or their agent or attorney, or if they be not inhabitants of the commonwealth, by fome refpectable perfon who is an inhabitant. Maff. Laws. The actions commonly brought and profecuted'in our courts for the recovery of rights and damages, for injuries. fuftained, and for the doing justice between one fubject and 'another, are the following, viz.

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2 Ift. Of Debt. 2d. On the Cafe. 3d. Of Account. 4th. Of Covenant broken. 5th. Of Trover. 6th. Of Slander. 7th. Of Trefpafs, including Affault and Battery. Sth. Of Ejectment. 9th. Of Replevin.

I. OF ACTION OF DEBT.

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AN action of debt, is a fuit given by law where a man oweth another a certain fum of money by obligation or bargain for a thing fold, or by contract, &c. and the debtor will not pay the debt at the day agreed.

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The ufual action of debt, which confifts of divers branches, lies in the following cafes, viz. ft. For money due on bond. 2d. For rent due from tenants. 3d. For goods or money delivered. 4th For an attorney's expenfes. 5th. For permitting a prifoner to escape. 6th. Upon a judgment or arbitrament. 7th. On a ftatute.

C.

ft. A Declaration in Debt, upon a Bond.

To the fheriff, &c. ATTACH the goods or eftate of C. D. &c. to anfwer unto A. B. &c. In a plea of debt, for that the faid C. D. on the faid by his certain writing obligatory, commonly called

day of

at

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