1. RESPECT ING REAL PROPERTY. 21. For tolls The indebitatus count is as ante, 35, inserting these words, "for divers tolls and duties due and of right payable by the said C. D. to the said bailiffs, &c. for the passage of divers loaded waggons, and loaded on loaded car- carts of the said C. D. before that time drawn over a certain bridge, riages passing over a bridge situate, &c. which said bridge the said bailiffs, &c. and their predeces sors by their said several names of incorporation from time whereof, &c. have from time to time, repaired, and supported, and have been used and accustomed to repair and support, and being so indebted, &c. (Conclusion as ante, 35.)—No quantum meruit count is to be added. (x). 22 For toll on goods brought to market and weighed in plaintiff's beam (y). 23. For tolls due for having brought into a market live cattle and sold therein, at the suit of the farmer (x). [48] 24. Second in debitatus count for same tolis. The indebitatus count is as ante, 35, inserting these words, "for toll due and of right payable by the said C. D. to the said mayor and burgesses, &c. for weighing at a certain beam of them the said mayor and burgesses divers goods, wares and merchandize of the said C. D. before that time brought by the said C. D. to the said market of and in the said borough, to be there sold, and by the said mayor and burgesses, at the special instance and request of the said C. D. weighed at the said beam, and being so indebted," &c. (Conclusion as ante, 35.)-No quantum meruit count is to be added. The indebitatus count is as ante, 35, inscrting these words, “ for divers reasonable tolls before that time and then due, and of right payable by and from the said C. D. to the said A. B. as the farmer and proprietor of a certain market called the cattle-market, situate, &c. and of the dues, duties, tolls, and privileges thereto belonging and aceruing and arising thereby and therefrom, from a certain time now elapsed, for and in respect of his the said C. D. having whilst he the said A. B. was such farmer and proprietor as aforesaid, brought into the said market and sold therein divers live cattle, to wit, bullocksbulls-oxen-cows-heifers and calves, and being so indebted, he the said C. D. in consideration," &c. (Conclusion as ante, 35.)-No quantum meruit count is to be added. The indebitatus count is as ante, 35, inserting these words, " for divers other tolls and duties before that time and then due, and of right payable by and from the said C. D. to the said A. B. for and in respect of his the said C. D. having brought into the said market and sold therein divers other live cattle, to wit, &c. (as before,) and being so indebted," &c. (Conclusion as ante, 35.) (x) This general count is sufficient, 1 T. R, 616. 1 B. & P. 102. For tolls for passing over a manor with cattle, 1 Wentw. 180. () As to this count, 4 T. R. 104. and when the plaintiff must declare spe cially, see 6 East. 438. (z) See a precedent for tolls for goods pitched and exposed to sale in Newgate-market, 1 Wentw. 153. For toll on wool bought in a market, see 1 Wentw. 156. ING REAL tolls due for The indebitatus count is as ante, 35, inserting these words, " for di- 1. RESPECT. vers tolls before that time due and payable by the said C. D. to the PROPERTY. said A. B. as farmer and renter duly made and appointed, according 25 By the to the form of the statute in such case made and provided, of the tolls farmer for due and payable according to the form of the statute in such case passing thro' made and provided, at a certain turnpike-gate at, duly erected a turnpike and placed upon a certain turnpike-road, and at certain cranes, en- gate (a). gines, and weighing-machines also erected upon and near to the said turnpike-road, according to the form of the statute in that case made and provided, (or, instead of the preceding statement, say "constituted and appointed according to the form of the statute in such case made and provided, of the tolls due and payable for carriages and cattle travelling upon a certain turnpike-road, in the county of, and through a certain gate erected upon the said road, according to the form of the said statute ;") for divers cattle and carriages of the said C. D. which before that time had travelled upon the said turnpikeroad, and through the gate aforesaid, and for divers other carriages *of the said C. D. which had before that time travelled upon the said turnpike-road, and been weighed at the said cranes, engines, and weighing-machines, and being so indebted," &c. (Conclusion as ante, 35.)-No quantum meruit count is to be added. [49] indebitatus count there. The indebitatus count is as ante, 35, inserting these words, " for di- 26. Second vers other tolls and duties before that time due and of right payable by the said C. D, to the said A. B. for divers other cattle and carriages on. of the said C. D. which before that time had travelled upon a certain other turnpike-road, of which said last-mentioned tolls and duties the said A. B. was then and there renter and collector in that behalf duly constituted and appointed, and being so indebted, &c. (Conclusion as ante, 35.)—No quantum meruit count is to be added. toms. The indebitatus count is as ante, 35, inserting these words, "for so 27. Petty cua much money due and payable to the said mayor, &c. for petty customs, for divers goods, wares, and merchandize, by the said C. D. before that time imported into the port of &c. (Conclusion as ante, 35.) and being so indebted," on shares in a bridge. The indebitatus count, after declaring specially, is as ante, 35, insert- 28. For calls ing these words, " for monies payable and due, and owing from the said C. D. to the said company, for and in respect of divers, to wit, shares of which the said C. D. was proprietor, and which he held in the said bridge, by virtue of divers calls before then duly made by the said committee for the time being of the said -bridge, (a) N. B. This, though on a local act, will serve as a general precedent. See 1 Wentw. 180. See also a prece- 1. RESPECT for the said monies. And being so indebted," &c. (Conclude as ING REAL PROPERTY. 29. The like, in another way. [ 50 ] 30. For calls under a roadact. 31. For con tribution to a party-wall ante, 35.) The indebitatus count, after declaring specially, is as follows," and whereas also the said C. D. afterwards, to wit, on, &c. at, &c. was indebted to the said A. B. who then, and at the several times in this count mentioned, was and still is such treasurer as aforesaid, in the further sum of L.- of like lawful money, for money due and payable from the said C. D. to the said A. B. as such treasurer for *a certain call or sum, to wit, the sum of L., duly called for and required by five or more of the commissioners for putting in execution the powers and authorities by the said act given and granted, to be paid by the said C. D. to the said A. B. so being treasurer to the said commissioners, at a certain time before then elapsed, upon and in respect of a certain sum, to wit, the sum of L., which the said C. D. had, before the passing of the said act, subscribed and agreed to advance, for the purposes in such act mentioned. And being so indebted, &c. (Conclusion as ante, 35.) The indebitatus count as ante, 35, inserting these words, "for and in respect of his the said C. D. having before then subscribed a certain sum of money, to wit, the sum of L.- for and towards the making of the said road, in the said act mentioned, and which said sum of L.he the said C. D. hath been duly required to pay in pursuance of the said act at certain times now past, but hath neglected to pay the same, and being so indebted," &c. (Conclusion as ante, 35.) The indebitatus count is as ante, 35, inserting as follows, "for part of the expense of building a certain party-wall, before then built at the expense of the said A. B. agreeably to the directions of the said act of parliament, between a certain other messuage, or building, of him the said A. B. situate and being in the parish aforesaid, in the county aforesaid, and a certain other messuage, or building, adjoining thereto; and which said last mentioned party-wall had before then been made use of by the said C. D. who before and at the time of building and finishing the same was the owner of and person entitled to the improved rent of such messuage, or building, and also for part of certain other expenses which were necessary for the pulling down of a certain old party-wall between the said several buildings, before then .pulled down by and at the expense. of the said A. B. agreeably to the direction of the said act of parliament. And being so indebted," &c, (Conclusion as ante, 35.) *II. RESPECTING PERSONAL PROPERTY. 2. RESPECT ING PERSON AL PROPER- sold and de defendant. [ * 51 ] The indebitatus count is as ante, 35, inserting these words, "for divers goods, wares, and merchandize (6), by the said A. B. before that time sold and delivered to the said C. D. and at his special instance 32. For goods and request (c), and being so indebted," &c. (Conclusion as ante, 35.) livered to the -The quantum valebant thereon is as ante, 36, inserting as follows, "had before that time sold and delivered divers other goods, wares, and merchandize, [1] to the said C. D. he the said C. D. undertook and then and there faithfully promised the said A. B. to pay him so much money as the said last-mentioned goods, wares, and merchandize, at the time of the said sale and delivery thereof, were reasonably worth (d), when he 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, at, &c. aforesaid, whereof the said C. D. afterwards, to wit, on, &c. aforesaid, there had notice. sold to defen (e). The indebitatus count is as ante, 35, inserting these words, "for divers 33. For goods goods, wares, and merchandize, by the said A. B. before that time bar- bargained and gained and sold to the said C. D., and under and by virtue of that bar- dant, and degain and sale delivered to one E. F. at the special instance, &c. of the livered to a third person said C. D. 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 and sold divers *other goods, &c. to the said C. D., and had under and by virtue of the said last-mentioned bargain and sale, delivered the same to the said E. F. he the said C. D. undertook," &c. (Conclusion as ante, 36.) [52] The indebitatus count is as ante, 35, inserting these words, "for 34. For goods divers goods, wares, and merchandize, by the said A. B. before that bargained and (b) It is not necessary to say "of the plaintiff," Bul. Ni. Pri. 139; and those words should be omitted if the action be at the suit of a broker, factor, &c. 5 Esp. 31, 2. (c). As the term "sale" implies a contract, perhaps, the omission of the words, " at the special instance and request of the defendant," would not be material, 2 T. R. 30. necessary; the delivery may be stated (f) This count is proper where there has not been an actual delivery of the goods, 1 East. 194. 1 Vez. J. 530 7 T. R. 67 It is usual, though not absolutely necessary, to declare specially, 4. Esp. Rep. 251. What is a delivery, see 3 B. & (e) This count, though usual, is not P. 582. Peake, 56. B. N. P. S6. [1 Johns, (d) This count is not available where there has been a contract for a sum certain, Stra. 648. See ante, 36. [1] That it is unnecessary to allege that the plaintiff promised to sell and de. liver, see 10 Mass. Rep. 237. 238. sold to defendant generally (f). AL PROPER TY. 2. RESPECT time bargained and sold to the said C. D. and at his special instance, ING PERSON- &c. 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 and sold to the said C. D. divers other goods, wares, and merchandize, he the said C. D. undertook," &c. (Conclusion as ante, 36.) 35. For a crop The indebitatus count is as ante, 35, inserting these words, " for a of grass, or certain crop of grass, (or, "turnips,") of the said A. B. before that turnips, &c. bargained and time bargained and sold by the said A. B. to the said C. D. and at his sold (g). special instance, &c. and by the said C. D. under and by virtue of that bargain and sale before that time accepted, mowed, cut down, (or, if for a crop of turnips, "accepted, gathered,") had, taken and carried away. 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 and sold to the said C. D. a certain other crop of grass, (or, "turnips,") of the said A. B. and that the said C. D. had under and by virtue of the said bargain and sale accepted, mowed, and cut down, the said last-mentioned crop of grass, (or, if for a crop of turnips, "accepted and gathered the said last-mentioned crop of turnips,") and had, taken and carried away the same, he the said C. D. undertook," &c. (Conclusion as ante, 36.) 36. For tithes [53] *The indebitatus count is as ante, 35, inserting these words, "for bargained and certain tithes, whereof the said A. B. was the farmer and proprietor, sold (h). issuing and arising from and out of and upon certain lands and premises in the occupation of the said C. D. by the said C. D. before that time, and at his special instance and request, and by the permission of the said A. B. had, taken, and retained, to his the said C. D.'s own use. And being so indebted," &c. (Conclusion as ante, 35.) The quantum meruit thereon is as ante, 36, inserting as follows," had before Rep. 15. 16. 17. 18.] The defendant (8) A sale of a growing crop of grass freehold, and by the contract is to be separated, such contract is not within the statute. 3 Day. 484] As to this count, see 1 B. & P. 397. (h) As to this count, 1 Lev. 141. Sid. 223. as to the evidence, 4 T. R. 366, 7. This action is not sustainable unless there be evidence of a composition in lieu of tithes. If such evidence be doubtful, the declaration should be in debt, on the statute, for not setting out the tithe with a count in debt, for tithes bargained and sold, see B. N. P. 188 to 191. |