ING MONIES. IV. RESPECT- made and entered into by the plaintiff and the defendant to the award, order and determination of G. H. and I. K. of and concerning all matters in difference then depending between the plaintiff and the defendant, and thereby empowering the said G. H. and I. K. in case they should not agree in making such award, to appoint a third person to award, determine and finally settle the said matters in difference, and whereupon the said G. H. and I. K. not agreeing in making their award in the premises, they by virtue of the aforesaid power, and by and with the consent and approbation of the plaintiff and defendant, nominated and appointed the said E. F. as an umpire, to award, order and finally determine of and concerning all matters in difference between the plaintiff and the defendant; and upon and by virtue, &c. [Conclude as in the last precedent. For stock sold Commencement of count as ante, 36.] For certain, to wit, £, interest and transferred. or share in the joint stock of £3 per cent, Annuities, transferable at the Bank (1) of England, called the Consolidated £3 per cent. Annuities, then sold and caused to be transferred by the plaintiff to the defendant, at his special instance and request, and by the defendant then, to wit, on the same day and year aforesaid, duly accepted. [Conclude as ante, 36. By a surviving partner, on a promise to both partners. (m) Breach. (9) Conclusion where the declaration contains a count on a note, bill or check. V.-RELATING TO THE CHARACTER IN WHICH THE PLAIN- First-SURVIVING PARTNERS. Commencement, ante, 18.] For that whereas the defendant, in the lifetime of the said E. F., since deceased, (n) to wit, on &c. (o) was indebted to the plaintiff and the said E. F. in £-(p) for the price and value of work then done and materials for the same provided [or "for money paid," &c. according to the fact,] by the plaintiff and the said E. F. for the defendant, and at his request, and in £- for money found to be due from the defendant to the plaintiff and the said E. F. on account then stated between them; and whereas the defendant afterwards, on the day and year aforesaid, in consideration of the premises respectively, then promised the plaintiff and the said E. F. to pay them the said several monies respectively on request. Yet he hath disregarded his promises, and hath not paid any of the said monies, or any part thereof, To the damage of the plaintiff of £, and thereupon he brings suit, &c. If there be no common count to be added, insert breach as above; but if there was any consideration between the plaintiff and the deceased partner and the (1) See form, Mortimer v. M'Callan, 7 M. (m) See forms, Lil. Ent. 34; Plead. A. 4. (n) According to Underhill v. Hurney, 3 Dowl. 495, the omission of the words "since deceased," in a declaration, is no ground of demurrer. (0) It is usual to insert a day before the death of the deceased partner; but the precise day, whether before or after the death, is immaterial. (P) Any sum enough to cover the real demand. (9) See forms, Plead. Assist. 35. defendant for the note or bill, after setting forth the count on the note, bill or check, V. RESPECTING add counts as follows:] And whereas also the defendant, on the A. D. day of [a day just before the death of E. F.], was indebted to the plaintiff and E. F. deceased, in £, for &c. [state the consideration, and add an account stated as in the last precedent.] And whereas the defendant, afterwards, and in the lifetime of the said G. H. deceased, to wit, on the day and year last aforesaid, in consideration of the premises respectively, promised the plaintiff and the said E. F., since deceased, to pay them the said last-mentioned monies respectively [or "last-mentioned sum of money"] on request. Yet he hath disregarded his promises, and hath not paid any of the said monies, or any part thereof, To the plaintiff's damage of £—, and therefore he brings suit, &c. If the deceased partner has been dead six years, or it may on any other account be advisable for the plaintiff to avail himself of a promise or acknowledgment to himself separately since the death of his partner, insert before the breach the following counts, or such one as may be applicable. See 3 East, 409. CHARACTER,&c. Counts on pro- the death. And whereas also the defendant in the lifetime of the said E. F. deceased, to wit, on the day and year aforesaid, was indebted to the plaintiff and the said E. F. in £, for the price and value of work, &c. [State the subject-matter of the debt as ante, 66.] And thereupon the defendant, in consideration of the premises respectively, and that the said last-mentioned monies respectively still remained unpaid and unsatisfied, afterwards, and after the death of the said E. F., to wit, on &c., (q) promised the plaintiff to pay him the said Promise after several last-mentioned monies respectively on request. Yet he hath disre- death. garded his promises, and hath not paid any of the monies, or any part Breach. thereof, To the plaintiff's damage of £, and thereupon he brings suit, &c. If the plaintiff declare in other counts, as he may (1 B. & A. 29; 2 Chit. Rep. 436; 3 T. R. 433; 5 T. R. 493; 1 Esp. Rep. 47; 2 T. R.476; 6 T. R. 582;) for money due to him after the death of his partner, and on a contract merely with himself, insert counts applicable therereto just before the breach, commencing as follows:] And whereas also the defendant, on &c., was indebted to the plaintiff, &c. [Proceed in the usual form at the suit of one plaintiff only, not noticing the deceased partner, and conclude with a general breach applicable to the whole, as supra. Counts on promises for work, &c. by the plaintiff only. for work done, Commencement, ante, 19.] For that whereas the defendant and the said Against a surE. F. in his lifetime, now deceased, to wit, on &c., (s) were indebted to the viving partner plaintiff in £, for the price and value of work then done and materials &c. (r) for the same provided [or "money paid" &c., according to the fact] by the plaintiff for the defendant and the said E. F., at their request; and in £—— (q) It is usual to insert a day after the death of the deceased partner, but any day before the date of the writ will do. (r) See forms, 2 Rich. C. P. 92; Lil. Ent. 34; against one partner after outlawry of the other, ib. 44; ante, 18. As to these counts, Comb. 383; Vin. Ab. Partners, D.; 2 T. R. 478; 6 T. R. 363; 4 Camp. 34. A de- (s) It is usual to insert a day before the V. RESPECTING for money found to be due from the defendant and the said E. F. to the CHARACTER,&c. plaintiff, on an account then stated between them. And thereupon the de fendant and the said E. F., in consideration thereof, afterwards, and in the lifetime of the said E. F., to wit, on the day and year aforesaid, promised the plaintiff to pay him the said several sums of money respectively on Breach by both. request. Yet the defendant and the said E. F., in the lifetime of the said E. F., and the defendant since the death of the said E. F., have disregarded their said promise, and have not, nor hath either of them, paid the said several monies or any part thereof, To the plaintiff's damage of £-, and therefore he brings suit, &c. Conclusion where declara tion contains a bill or check. If there be no common count to be added, insert breach as above; but if there was any consideration between the plaintiff and the defendant and his deceased count on a note, partner for the note, bill or check, after setting forth the count on the note, bill or check, add counts as follows:] And whereas the defendant and the said E. F. in the lifetime of the said E. F., to wit, on &c., were indebted to the plaintiff in £- for &c. [state the consideration and add an account stated, as in the last precedent.] And whereas the defendant and the said E. F. since deceased, afterwards, to wit, on the day and year last aforesaid, in consideration of the premises respectively, promised the plaintiff to pay him the said last-mentioned monies respectively on request. Yet the defendant and the said E. F. in the lifetime of the said E. F., and the defendant since the death of the said E. F., have disregarded their promises, and have not, nor hath either of them, paid the said monies, or any part thereof, To the plaintiff's damage of £, and therefore he brings suit, &c. Breach. Counts on pro fendant after the death of his partner. To be inserted after the breach to the other counts.] And whereas also the mise by the de- defendant and the said E. F., in the lifetime of the said E. F., now deceased, to wit, on the day and year aforesaid, were indebted to the plaintiff in £-, for &c. [Describe the subject-matter of debt concisely.] And thereupon, in consideration of the premises, and that the said last-mentioned monies remained wholly due and unpaid, the defendant afterwards, and after the death of the said E. F., to wit, on &c., promised the plaintiff to pay him the said last-mentioned monies on request. Yet the defendant hath disregarded his said last-mentioned promise, and hath not paid the said lastmentioned monies, or any part thereof, To the plaintiff's damage of £and thereupon he brings suit, &c. Breach. By husband and If there be any cause of action arising against defendant otherwise than as surviving partner, insert it after the breach to the other counts, not noticing the deceased, and conclude with another breach applicable to "the last-mentioned monies" and "to the plaintiff's damage," &c. Secondly-Husband and Wife. Commencement, ante, 19.] For that whereas the said defendant, whilst the (t) Whenever the wife joins, her interest in the debt or claim must appear, 2 Bla. Rep. 1236. How to sue, and when husband and wife may join, see ante, vol. i. See a form at the suit of baron and feme sole trader, 1 Wentw. 381; ante, 22. said C. was sole and unmarried, to wit, on &c., (u) was indebted to the said V. RESPECTING C. in £, for the price and value of work then done and materials for CHARACter,&c. the same provided by the said C. for the defendant, at his request, And in £, &c. [So stating the other matters of plaintiff's claim as arising to the wife before marriage.] And thereupon the defendant, in consideration of the premises, afterwards, and whilst the said C. was sole and unmarried, to wit, on the day and year aforesaid, promised the said C. to pay her the said several monies respectively, on request. Yet the defendant hath disregarded Breach. his promise, and hath not as yet paid the said several monies, or any part thereof, (x) To the damage of the plaintiffs of £-, and thereupon they bring suit, &c. where the de claration contains a count on a note, bill or check. If there be no common count to be added, insert breach as above; but if there Conclusion was any consideration between the parties for the note, bill or check, after setting forth the count on the note, bill or check, add counts as follows:] And whereas also the defendant, whilst the said C. was sole and unmarried, to wit, on &c., was indebted to the said C. in £, for &c. [Stating the consideration for the note, bill or check.] And in £, for money found to be due from the defendant to the said C. on an account then stated between them: And whereas the defendant afterwards, to wit, on the day and year last aforesaid, in consideration of the premises respectively, promised the said C. whilst she was sole and unmarried, to pay her the said last-mentioned monies respectively, [or "last-mentioned sum of money,"] on request: Yet the defendant hath dis- Breach. regarded his promises, and hath not paid any of the said monies, or any part thereof, To the damage of the plaintiffs of £, and therefore they bring their suit, &c. Against hus band and wife for work, we done for wife before marriage. (y) Commencement, ante, 19.] For that whereas the said E., whilst she was sole and unmarried, to wit, on &c., was indebted to the plaintiff in £, for the price and value of work then done and materials for the same provided by the plaintiff for the said E., and at her request; (a) and in &c. [So proceeding to state the other causes of action recoverable under the common counts, laying the causes against her only.] And thereupon the said E., in con- Promise by the sideration of the premises, afterwards, and whilst she was sole and unmarried, wife. to wit, on the day and year aforesaid, promised the plaintiff to pay him the said several monies respectively on request. Yet the defendants have dis- Breach. regarded the said promises, and have not, nor hath either of them, paid the said monies respectively, or any part thereof, To the damage of the plaintiff of £, and thereupon he brings suit, &c. where the de If there be no common count to be added, insert breach as above, but if Conclusion there was any consideration between the parties for the note, bill or check, setting forth the count on the note, bill or check, add count as follows:] whereas also the said E., whilst she was sole and unmarried, to wit, on &c., (u) It is usual to insert a day before the marriage, but any day before the date of the writ will suffice. (1) As to the language of the breach, see 3 Wils. 208; 1 Ld. Raym. 284; 1 Vent. 119; 2 Rich. C. P. 293. after claration conAnd tains a count on a note, bill or (y) See form, Lil. Ent. 27. No count on a promise by the feme, or by the husband during the coverture, should be added; 1 Taunt. 212; Palm. 313. (a) This is a material averment; 3 J. B. Moore, 303; 1 J. B. Moore, 126. check. CHARACTER,&c. V. RESPECTING was indebted to the plaintiff in £—, for &c. [stating the consideration for the note, bill or check] and in £—, for money found to be due from the said E. to the plaintiff on an account then stated between them. And whereas the said E., in consideration of the last mentioned premises, afterwards, and while she was sole and unmarried, to wit, on the day and year last aforesaid, promised the plaintiff to pay him the said last-mentioned monies respectively on request. Yet the said defendants have disregarded the said promises, and have not, nor hath either of them, paid the said monies or any part thereof, To the plaintiff's damage of £, and thereupon he brings suit, &c. Breach. By assignees of a bankrupt for work, &c. before the bankruptcy. (b) Promise to bankrupt. Breach. Conclusion where the declaration con tains a count on a note, bill or check. Thirdly-BY ASSIGNEES OF BANKRUPTS OR INSOLVENTS. Commencement, ante 19.] For that whereas the defendant, before the said E. F. became a bankrupt, to wit, on &c., (c) was indebted to the said E. F. (d) [the bankrupt] in £-(e) for the price and value of work then done and materials for the same provided by the said E. F. for the defendant at his request; and in £, &c. [So proceeding to state the other causes of action recoverable under the common count, alleging them to have arisen to the bankrupt only.] And thereupon, in consideration of the premises, afterwards, and before the said E. F. became bankrupt, to wit, on the day and year aforesaid, the defendant promised the said E. F. to pay him the said several monies respectively on request. Yet the defendant hath disregarded his promises, and hath not paid the said several monies respectively, or any part thereof, To the damage of the plaintiffs, as assignees as aforesaid, of £ and thereupon they bring suit, &c. If there be no common count to be added, insert breach as in last form, but if there was any consideration between the parties for the note, bill or check, after setting forth the count on the note, bill or check, add counts as follows:] And whereas also the defendant, before the said E. F. became bankrupt, to wit, on &c., was indebted to the said E. F. in £ for &c. [stating the consideration for the note, bill or check], and in £ for money found to be due from the defendant to the said E. F. on an account then stated between them. And whereas the said defendant afterwards, and before the said E. F. became bankrupt, to wit, on the day and year last aforesaid, in consideration of the premises respectively, promised the said E. F. to pay him (b) See Form, Plead. A. 44. This form of declaring, without setting out the petitioning creditor's debt, commission, &c. is settled to be good; Lutw. 274, 277; 2 Lord Raym. 1548; Carth. 29. When an assignee has been removed, the last assignee may sue as assignee generally, without naming the former assignee; 6 Geo. 4, c. 16, s. 67; 10 East, 61. When assignees should declare without naming themselves assignees; see Cowp. 569; ante, vol. i. As to joinder of different demands, see T. R. 433, 779; ante, vol. i. The assignees of two persons may describe themselves as assignees of one for a separate demand, 3 Camp. 399; and as to how assignees should describe themselves, see ante, vol. i. Where the plaintiffs sue as assignees of several bankrupts, for money had and received, and some of the money was received before the bankruptcy of either of the parties, and some after the bankruptcy of one, and before that of the others, the counts must be framed accordingly, 3 B. & P. 465; and see a form of commencement of declaration by assignees of several bankrupts, under several fiats, to recover a debt due to the joint estate, ante, 20. (c) It is usual to insert a day before the bankruptcy, but any day before the date of the writ will suffice. (d) The bankrupt might be described throughout under the terms of " the said bankrupt," or if there he several, "the said bankrupts," and in the latter case, for the sake of brevity, it would be desirable. (e) Any sum enough to cover the real claim. |