PARTICULAR PARTIES. Do. in C. P. Profert by an executor in K. B. Conclusion of (to wit.) C. D. administrator, &c. (as above), was attached, (or, "ummoned,") to answer unto A. B. administrator, &c. of a plea, &c. And the said A. B. brings into court here, the letters testamentary of the said 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. (To the end of all the counts in the declaration).—Yet the said a declaration C. D. not regarding his said promises and undertakings, but contriving by an admin- ' istrator in and intending to deceive and defraud the said E. F. in his lifetime, and K. B.. the said A. B. as administrator, as aforesaid, after the death of the said E. F. (to which said A. B. after the death of the said E. F. to wit, on, &c. at, &c. aforesaid, administration of all and singular the goods, chattels, and credits, which were of the said E. F. deceased, at the time of his death, who died intestate, by Charles, by Divine Providence Archbishop of Canterbury, primate of all England, and metropolitan in due form of law was granted,) in this behalf hath not as yet paid the said sums of money, or any part thereof, to the said E. F. in his lifetime, or to the said A. B. administrator as aforesaid, since the death of the said E. F. (although often requested so to do ;) but he so to do hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said A. B. administrator as aforesaid, to the damage of the said A. B. as administrator as aforesaid, of therefore he brings his suit, &c. in K. B. ; and Pledges, &c. Profert by an (To the end of the declaration to the word suit, &c. ut supra.)administrator. And the said A. B. brings into court here the letters of administration 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. Pledges, &c. *DECLARATIONS IN ASSUMPSIT. [35] 1 I. COMMON COUNTS. form of the Indebitatus Assumpsit And whereas also (a) the said C. D. afterwards, to wit, on the day 1. The usual and year last (b) aforesaid, in London aforesaid, in the parish and ward aforesaid, was indebted to the said A. B. in the further sum of L.of like (c) lawful money, for, &c. (Here the subject matter of the debt must be stated, as that the plain- and at his special instance and request, and being so indebted, he the count.. form of the Quantum me *And whereas also afterwards, to wit, on the day and year last afore- 2. The usual said, in London aforesaid, in the parish and ward aforesaid, in consideration that the said A. B. at the like special instance and request of ruit count (d). the said C. D. had before that time, &c. (Here insert the subject matter of the debt, as in the following counts, and then proceed as follows :) (b) If there be a special count preceding the indebitatus count, it is proper, especially in declarations on bills or notes, to insert in the common counts a day as recent as possible, with reference to the title of the declaration, so that the common breach may appear to (c) If the words "lawful money of (d) As the plaintiff may recover on the indebitatus count, though no contract for a specific price be proved, the quantum meruit, or valebant count seems unnecessary, and where the declaration is otherwise long, should be omitted. 2 Saund. 122. n. 3. [Ante vol. 1. 337. 392.] [* 36 ] COMMON 3. The usual form of the Quantum vale he the said C. D. undertook, and then and there faithfully promised the said A. B. to pay him so much money† as he therefore reasonably deserved to have of the said C. D. when he the said C. D. should. be thereunto afterwards requested. And the said A. B. avers that he therefore reasonably deserved to have of the said C. D. the further sum of L., of like lawful money, to wit, in London aforesaid, in the parish and ward aforesaid, whereof the said C. D. afterwards, to wit, on the day and year last aforesaid, there had notice. (Same as the above quantum meruit to the dagger(†), and then proceed as follows:) bant count (e). as the said last-mentioned goods, wares, and merchandize, at the time of the said sale, and delivery thereof, were reasonably worth, when the said C. D. should be thereunto afterwards requested. And the said A. B. avers, that the said last-mentioned goods, wares and merchandize, at the time of the said sale and delivery thereof were reasonably worth the further sum of L., of like lawful money, to wit, in London aforesaid, in the parish and ward aforesaid, whereof the said C. D. afterwards, to wit, on the day and year last aforesaid, there had notice, 1. RESPECT ING REAL PROPERTY. hold estate sold and conveyed. [* 37.] *1. RESPECTING REAL PROPERTY. The indebitatus count is as ante, 35, inserting these words, "for a cer1. For a free- tain messuage or tenement and premises, with the appurtenances of the said A. B. situate, lying and being in the parish of —, in the county of, (ƒ) before that time bargained, sold and released (g) by the said A. B. to the said C. D. and at his special instance and request. And being so indebted, &c. (Conclusion as ante, 35.)—— The quantum meruit thereon is as ante, 36, inserting as follows, "had before that time bargained, sold and released to the said C. D. a certain other messuage, or tenement, and premises, with the appurtenances of the said A. B. situate, &c. he the said C. D. undertook," &c. (Conclusion is as ante, 36.) (1) 2. For a copyhold estate surrendered. The indebitatus count is as ante, 35, inserting these words," for certain lands, and tenements, with the appurtenances, situ messuages, ate, &c. (4) before that time bargained, sold and surrendered by the (e) This count is not in practice adopted, except when the demand is for goods sold and delivered, or, bargained and sold, and the quantum meruit count appears to be in all cases sufficient. (f) It is usual but unnecessary to state the situation, 6 East. 348. If misstated the variance may in some cases be a ground of nonsuit, 1 Esp. Rep. 273.-1 Taunton. 570, 13 East. 9. (g) This allegation will depend on the nature of the conveyance as whether it were by lease and release, feoffment, &c. If not conveyed, only state the sale. (h) Ante, note (ƒ)· (1) Vide Nelson v. Swan, 13 Johns. Rep. 483. ING REAL PROPERTY. said A. B. to and for the said C. D. and at his special instance, &c. 1. RESPECTAnd being so indebted," &c. (Conclusion as ante, 85.) The quantum meruit thereon is as ante, 36, inserting as follows," had before that time bargained, sold and surrendered to and for the said C. D. certain other messuages, lands and tenements, with the appurtenances, situate, &c, he the said C. D. undertook," &c. (Conclusion is as ante, 36.). The indebitatus count is as ante, 35, inserting these words, " for cer- 3. For a leasehold estate [38] tain messuages, lands and tenements, with the appurtenances, situate, sold and as(1) &c. before that time bargained, sold and assigned by the said A. B. signed. to the said C. D. and at his special instance and request, for the remainder of a certain term of years then to come and unexpired therein, And being so indebied," &c. (Conclusion as ante, 35.)The quantum meruit thereon is as ante, 36, inserting as follows," had before that time bargained, sold and assigned certain other messuages, &c. with the appurtenances, situate, &c. for the remainder of a certain term of years then to cone and unexpired therein, he the said C. D. undertook," &c. (Conclusion is as ante, 36.) The indebitatus count is as ante, 35, inserting these words, " for the 4. For the good-will of a certain public-house, commonly called or known by the good will of a public-house, name or sign of ——, situaţe, (j) &c. and the business of him the said and the plainA. B. of a victualler therein, before that time, relinquished and given tiff's business therein (*). up by the said A. B. to and in favour of the said C. D. and at his special, &c. And being so indebted," &c. (a quantum meruit may be readily framed.) The indebitatus count is as ante, 35, inserting these words "for the 5. For the use and occupause and occupation of a certain messuage, (or, " of a certain messuage, tion of a house buildings, farm and land,") with the appurtenances of the said A. B. and land (). situate, &c. (m) by the said C. D. and at his special instance and re (i) Id. Ibid. (j) Ante, 37. n. (ƒ). (*) See post. 42. (4) This count is founded on 11 Geo. 2. c. 19. s. 14. but the statute is not usually referred to in the declaration. It is unnecessary in debt or assumpsit for use and occupation to state where the premises lie, or any of the particulars of the demise, 6 East: 348. though the venue may be local when the de. mise was not to the defendant, the same as against the assignee of the lessee in covenant, 1 Saund. 241. n. 5. This count is sufficient, though the de fendant may not himself have occupied the premises, 8 T. R. 327. The defend- New. Rep. 104-Ld. Raym. 1503. (m) It is not necessary or advisable ⚫ING REAL [39] 1. RESPECT quest, and by *the sufferance and permission of the said A. B. for a long time before then elapsed (n), had, held, used, occupied, possessed and enjoyed. And being so indebted," &c. (Conclusion as ante, 35.)— The quantum meruit thereon is as ante, 36, inserting as follows, “had before that time suffered and permitted the said C. D. to have, hold, use, occupy, possess and enjoy a certain other messuage, (or, “a certain other messuage, buildings, farm, and land,") with the appurtenances of the said A. B. situate, &c. And that he the said C. D. had, according to the said last-mentioned sufferance and permission of the said A. B. holden, used, occupied, possessed and enjoyed the same for a long space of time then elapsed, he the said C. D. undertook," &c. (Conclusion is as ante, 36.) 6. For the use and occupa The indebitatus count is as ante, 35, inserting these words, "for the tion of a fish. use and occupation of a certain fishery, and the right of fishing in a ery. 7. For the use of a way. [40] in the county of certain river called the The indebitatus count is as ante, 35, inserting these words, "for the use of a certain way, or passage for divers cattle, waggons, and other carriages, loaded with timber, wood and bark, in, through, over and along certain closes of the *said A. B. before then had, used and enjoyed by the said C. D. and at his request, and by the sufferance and permission of the said A. B. for a long time then elapsed, and being so indebted," &c. (Conclusion as ante, 35.)The quantum meruit thereon is as ante, 36, inserting as follows, " had before that time suffered and permitted the said C. D. by himself and his servants and other persons, and with cattle, waggons and other carriages, to fetch, draw, take, and carry away divers large quantities of timber, wood and bark, through, over and along certain other closes and parcels of land of the said A. B. and that the said C. D. had accordingly by the said permission of the to state the local situation, ante, 37. n. (n) In Rich. C. P. 1. and Morgan. 17. the time is stated under a videlicet, but this is not necessary. |