COMMON COUNTS. *II. ON SIMPLE CONTRACTS. And whereas also the said defendant afterwards, to wit, on, &c. at,(s) &c. 1. Form of (venue) aforesaid, was indebted to the said plaintiff in the sum of £—, of like lawful money, for, &c. [Here state the subject-matter of the debt, whether relative to real property, personal property, work, services, &c. or money, precisely as in assumpsit, ante, 39 to 90, and then proceed as follows:] And to be paid by the said defendant to the said plaintiff when he the said defendant should be thereunto afterwards requested (u); whereby and by reason. of the said last-mentioned sum of money, being and remaining wholly unpaid, an action hath accrued to the said plaintiff to demand and have of and from the said defendant, the sum of £- parcel of the said sum above demanded. And whereas also afterwards, to wit, on, &c. aforesaid, at, &c. (venue) aforesaid, in consideration that the said plaintiff, at the like special instance and request of the said defendant, had before that time, &c. the indebitatus count in debt(t). 2. Form of the quantum meruit count in debt (v). *[ Here state the subject-matter of the debt, as in the quantum meruit counts [ *386 ] in assumpsit, ante, 39 to 87, and then proceed as follows:-] He the said defendant undertook, and then and there agreed to pay to the said plaintiff so much money as he therefore reasonably deserved to have of the said defendant when he the said defendant should be thereunto afterwards requested. And the said plaintiff avers, that he therefore reasonably deserved to have of the said defendant the further sum of £— of like lawful money, to wit, at, &c. (venue) aforesaid, whereof the said defendant afterwards, to wit, on, &c. aforesaid, there had notice, whereby an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said last-mentioned sum of £— other parcel of the said sum above demanded. (s) This is sufficient, see 2 T. R. 28. (t) See forms, 5 Wentw. 145. See also ante, vol. i. 310, 97, 8. See also ante, vol. i. 310, 97, 8. This form is usually adopted: formerly the count did not state that the defendant was indebted, &c. but was as follows: "And whereas also the said defendant on, &c. at, &c. bought of the said plaintiff certain, &c. for 1., to be therefore paid by the said defendant to the said plaintiff, when he the said defendant should be thereunto requested;" and then the other counts followed, omitting the "whereby," &c. in the above precedent, and averring, at the end of the last count, "that all the sums mentioned in the different counts together amount to the sum first demanded," see Ashton's Ent. 209, 210.-2 Mallory's Ent. 177.Fortesc. 198.-Rast. Ent. 176; but in the declaration in Emery v. Fell, 2 T. R. 28. and MSS. prec. 23. V. 127. (which contained counts for goods sold, work and labor, and all the money counts) each count began with the statement," that the defendant was indebted," &c. as above, omit- (u) This appears to be unnecessary, see supra, (v) As to this count, see vol. i. 310, 97, 8. See form, 5 Wentw. 145, 150. The count must not contain the words "undertook and faithfully promised, &c." 3 B. & A. 208, but the words "undertook and agreed" are proper. 2 Smith's Rep. 618.-3 Smith's Rep. 114. The quantum meruit count seems in no case to be necessary, ante, 37, n. (d)-1 Hen. Bla. 249-Vin. Ab. tit. "Miscasting," and is in general better omitted. This is the form usually adopted, but it may be framed stating, "that the said defendant bought," &c. Fortesc. 198. And whereas also the said plaintiff afterwards, to wit, on, &c. aforesaid, at, &c. (venue) aforesaid, at the like special instance and request of the said defendant lent to the said defendant, and the said defendant then and there borrowed of the said plaintiff a large sum of money, to wit, the sum of £— of like lawful money, to be paid by the said defendant to the said plaintiff, when he the said defendant should be thereunto afterwards requested,* whereby and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said last-mentioned sum of £― other parcel of the said sum above demanded. Money paid And whereas also the said plaintiff afterwards, to wit, on, &c. aforesaid, at, *387 ] &c. (venue) aforesaid, had paid, laid out, *and expended a certain other sum of money, to wit, the sum of £— of like lawful money, for the said defendant, and at his like special instance and request, and to be paid by the said defendant to the said plaintiff when he the said defendant should be thereunto afterwards requested, whereby, &c.-[Same as the last, from the asterisk to the end.] Money had (y). And whereas also the said defendant afterwards, to wit, on, &c. aforesaid, at, and received &c. (venue) aforesaid, had and received a certain other sum of money, to wit, the sum of £- of like lawful money, to and for the use of the said plaintiff and to be paid by the said defendant to the said plaintiff when he the said defendant should be thereunto afterwards requested, whereby, &c.-[Same as above, from the asterisk to the end.] Account stated(z). Breach(j). And whereas also the said defendant afterwards, to wit, on, &c. aforesaid, at, &c. (venue) aforesaid, accounted with the said plaintiff of and concerning divers other sums of money, before that time and then due and owing, and in arrear and unpaid, from the said defendant to the said plaintiff, and upon that accounting the said defendant was then and there found to be in arrear and indebted to the said plaintiff in the further sum of £- of like lawful money, to be paid by the said defendant to the said plaintiff, when he the said defendant should be thereunto afterwards requested, whereby and by reason of the said last-mentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said last-mentioned sum of £— residue of the said sum above demanded. Yet the said defendant (although often requested so to do,) hath not as yet paid the said sum of £—(a), above demanded, or any part thereof, to the said (w) See the forms in Rich. C. P. 118. Morg. (y) Ante, 376, n. -5 Wentw. 146. (a) This is the same sum as mentioned in the (2) As to this count, see Aston's Ent. 209, 210. commencement of the declaration, being the aggre-2 Mall. 177. gate of all the sums. See ante, 384, n. (a). plaintiff. But he to do this hitherto wholly refused, and still doth refuse, to the damage of the said plaintiff of £- (b), and therefore he brings his suit, &c. *I. ON PROMISSORY NOTES. Pledges, &c. [ *388 ] ON PROMIS SORY NOTES. against ma For that whereas the said defendant heretofore, to wit, on, &c. (day of notice) Payee at, &c. (place where made,) that is to say, at, &c. (venue) made his certain ker of a promissory note in writing, bearing date a certain day and year therein mention- promissory note(c). ed, to wit, the day and year aforesaid, and then and there delivered the said note to the said plaintiff, by which said note he the said defendant then and there promised to pay, [two] months after the date thereof, to the said plaintiff or order, the sum of £50, for value received, (cc) by means whereof, and by force of the Statute in such case made and provided, the said defendant then and there became liable to pay to the said plaintiff the said sum of money in the said promissory note specified, according to the tenor and effect of the said promissory note; and although the said sum of money, in the said promissory note specified, hath been long since due and payable, according to the tenor and effect of the said note, yet the said plaintiff in fact saith, that the said defendant, (although often requested so to do) did not nor would pay the said sum of £— in the said note specified, or any part thereof, to the said plaintiff, in manner aforesaid, or otherwise howsoever, but hath hitherto wholly neglected and refused so to do, whereby an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said sum of £— in the said note specified, parcel of the said sum above demanded.—[Add counts upon the consideration of the notes, money counts, account stated, and common conclusion, as ante, 386,7.] II. ON BILLS OF EXCHANGE. For that whereas, the said plaintiff, heretofore, to wit, on, &c. (date of bill) at, &c. (place where made) that is to say, at, &c. (venue) according to the and custom of merchants, from time immemorial used and approved of usage within this kingdom, made his certain bill of exchange in writing, bearing date (b) The sum here to be inserted is in general 10/., or any other sum, though less than the real demand. If there be a demand for interest then let this sum be enough to cover it, and also insert a count in debt for the same, as ante, 88. (c) See other forms, 4 Morg. 548.-5 Went. 148.-Chitty on Bills, 7th ed. 511.—2 B. & P. 78. See notes, ante, 115 to 142, as to variances, &c. which will be here applicable. When debt lies on bills and notes, see Chitty on Bills, 7th edit. 427 to 429. This action may be supported by the payee of a promissory note against the maker, when expressed to be for value received, 2 B. & P. 78, or by the drawer against the acceptor of a bill of exchange expressed to be for value received, 1 Bar. & Cres. 681, 3 D. & R. 165, S. C. or by the payee of a foreign or inland bill expressed to be for value received against the drawer, 2 B. & P. 82. Skin. VOL. II. 39 346, and by the first indorsee against the first in- (cc) Semble, that the words "value received" (d) See the preceding note. That debt lies by the drawer of a bill against the acceptor, when payable to the drawer's own order, and expressed to be for value received, or value received in goods, see 1 B. & Cres. 681.-3 D. & R. 165, S. C. 3 Dowl. 243; 2 Dowl. 635. > ON BILLS OF Debt by bill, against drawer of a the ассерtor(d). EXCHANGE. ON BILLO OF a certain day and year therein mentioned, to wit, the day and year aforesaid, and thereby then and there requested the said defendant [two] months after the date thereof, to pay to the said plaintiff or his order, the sum of (£100) for value received in goods, (as in bill) which said bill of exchange the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in the county aforesaid, upon sight thereof, accepted, according to the said usage and custom of merchants; by means whereof, and according to the said usage and custom of merchants, he the said defendant then and there became liable to pay to the said plaintiff the said sum of money in the said bill of exchange specified, according to the tenor and effect of the said bill of exchange, and of his the said defendant's said acceptance thereof; and being so liable, he the said defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, agreed to pay to the said plaintiff the said sum of money in the said bill of exchange specified, according to the tenor and effect of the said bill of exchange, and of the said defendant's said acceptance thereof; and although the said sum of money in the said bill of exchange specified, hath been long since due and payable, according to the tenor and effect of the said bill, and the said defendant's said acceptance thereof; yet the said plaintiff in fact saith, that the said defendant hath not, although often requested so to do, yet paid the said sum of £100, in the said bill specified, or any part thereof, to the said plaintiff, according to the tenor and effect of the said bill of exchange, and the said defendant's said acceptance thereof, or otherwise howsoever, but hath hitherto, wholly neglected and refused so to do, whereby an action hath accrued to the said plaintiff, to demand and have, of and from the said defendant the said sum of £100, in the said bill specified, parcel of the said sum above demanded.-[Add usual counts on the original consideration, money counts, account stated, and breach, as ante, 386, 7.] By the payFor that whereas, the said defendant, on, &c. (date of bill) at, &c. that is to ce of a bill against the say, at, &c. (venue) according to the usage and custom of merchants, from time drawer, on immemorial used and approved of within this kingdom, made his certain bill of payment by exchange in writing, bearing date the day and year aforesaid, and thereby then default of the accep tor(e). and there requested one E. F. two months after the date thereof, to pay to the said plaintiff or order, the sum of £50, value received, and then and there delivered the said bill of exchange to the said plaintiff, which said bill of exchange the said E. F. afterwards, to wit, on the day and year aforesaid, at, &c. (venue) upon sight thereof, accepted, according to the said usage and custom of merchants; and the said plaintiff avers, that afterwards, when the said bill of exchange became due and payable, according to the tenor and effect thereof, to wit, on, &c. (day when it fell due) at, &c. (venne) aforesaid, the said bill of exchange so accepted as aforesaid, was duly presented and shown to the said E. F. for payment thereof, according to the said usage and custom of merchants, and the said E. F. was then and there requested to pay the said sum of money in the said bill of exchange specified, according to the tenor and effect thereof, but that the said E. F. did not nor would, when the said bill of exchange was so presented and shown to him for payment thereof as aforesaid, or (e) See note to the precedent, ante, 387. EXCHANGE. at any time afterwards, pay the said sum of money therein specified, or any ON BILLS OF part thereof, but then and there wholly neglected and refused so to do; of all which said several premises the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, had notice; by means whereof, and according to the said usage and custom of merchants, he the said defendant then and there became liable to pay to the said plaintiff the said sum of money, in the said bill of exchange specified, when he the said defendant should be thereunto afterwards requested; and being so liable, he the said defendant, in consideration thereof, afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, agreed to pay to the said plaintiff the said sum of money in the said bill of exchange specified, when he the said defendant should be thereunto afterwards requested; whereby, and by reason of the said sum of money in the said bill of exchange specified, being and remaining wholly unpaid, an action hath accrued to the said plaintiff, to demand and have, of and from the said defendant, the said sum of money in the said bill of exchange specified, parcel of the said sum above demanded.—[Add counts on consideration of the bill between plaintiff and defendant, the money counts, account stated, and breach, as ante, 386, 7.] *III. FOR ROAD OR CANAL CALLS. [ *390 ] FOR ROAD Against a for making a For that whereas, before the making of a certain act of parliament, made in the 47th year of the reign of our lord the late King George the Third, intituled, “An act for making and maintaining a road from Foxley Hatch, in the parish of Croydon, into the town of Riegate, in the county of Surrey," to wit, on, road, for his subscription &c. at, &c. (venue) the said defendant did subscribe a certain sum, to wit, the (f). sum of £- for and towards the making of the said road in the said act mentioned; and the said plaintiff further says, that after the making of the said statute, to wit, on, &c. at, &c. (venue) aforesaid, at a certain meeting of the said trustees, then and there duly holden in pursuance of the said act, by and before upwards of seven of the said trustees, to wit, &c. the major part of the trustees at the meeting (to wit), G. H., &c. did by writing under their respective hands, require the said defendant to pay the sum of £-, parcel of the said sum of £-, (the other part thereof, to wit, the sum of £-, having been satisfied unto I. K. of Croydon aforesaid, gentleman, their clerk, whom they the said last-mentioned trustees did thereby authorize to receive the same in the parts and proportions following; that is to say, one half of the said sum on or before the 10th day of May, then instant, and the remaining half-part thereof on or before the day of then instant, of which said request, order, and direction, the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, had notice; and by reason of the premises, he the said defendant then and there became liable, and ought to have paid to the said I. K. the said sum of £-, in the part and proportion afore (f) This declaration is founded on the 47 Geo. 3. sess. 1. c. 25. See other forms, 7 T. R. 36. See the forms in assumpsit, ante, 53.-13 East, |