IV. On Parol awards. * 82 5. On a promise to pay the costs of an action with said AB, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to wit, at, &c. aforesaid. [Add counts on the plaintiff's original demand referred to arbitration-the account stated-and breach.](x). *For that whereas before the making of the promise and undertaking of the said CD, hereinafter next mentioned, a cerin a week, tain action had been commenced and prosecuted by and at the in considera- suit of the said A B against the said CD, in the court of our tion of plainlord the now king, before the king himself, for the recovery tiff staying proceedings. of a certain sum of money, to wit, the sum of -. then and at the time of the making of the promise and undertaking of the said CD, hereinafter next mentioned, due and owing from the said CD to the said A B.(y) And which said action at the time of the making of the said promise and undertaking of the said CD hereinafter next mentioned, was depending in the said court, to wit, at, &c. aforesaid, whereof the said CD then and there had notice. And thereupon heretofore, to wit, on, &c. at, &c. aforesaid, in consideration of the premises, and that the said A B at the special instance and request of the said CD would cease to prosecute the said action, and would stay all further proceedings therein, he the said CD undertook, and then and there faithfully promised the said AB to pay the costs of commencing and prosecuting the said action in a week then. next following. And the said A B avers, that he, confiding in the said promise and undertaking of the said CD, did then and there cease to prosecute the said action, and hath thence hitherto stayed all further proceedings therein. And that the costs of commencing and prosecuting the said action amounted to a large sum of money, to wit, the sum of —l. of lawful, &c. whereof the said C D afterwards, to wit, on, &c. at, &c. had notice. And although a week from the time of the ma (r) It has been decided, that the award, when there is a parol submission, may in most cases be given in evidence under the common count founded on the original debt, or on the account stated, Peake, C. N. P. 227. 1 Esp. Rep. 194. 5 T. R. 6.. (y) It is not necessary to state the subject matter of the debt, Com. Dig, tit. Action on the Case on Assumpsit, H. 3. though it must be shewn that there was some cause of action against the defendant, or some other person, 4 East, 455. I New Rep. 172. n king the said promise and undertaking of the said CD hath F. Forbearance of delong since elapsed, to wit, at, &c. aforesaid. Yet the *said fendant. * 83 CD not regarding, &c. hath not as yet paid the said costs of commencing and prosecuting the said action, or any part thereof, (although he the said CD afterwards, and after the expiration of a week from the time of making his said promise and undertaking, to wit, on, &c. at, &c. aforesaid, was requested by the said A B so to do.) But he so to do hath hitherto wholly neglected and refused, and still doth neglect and refuse, to wit, at, &c. aforesaid. [Add a count on the original debt-money paid-the account stated-and the usual breach applicable to those counts only.] For that whereas one E F before and at the time of the making of the promise and undertaking of the said C D hereinafter next mentioned, was indebted to the said AB in a certain sum of money, to wit, the sum of. of lawful, &c.(a) to wit, at, &c. and thereupon heretofore, to wit, on, &c. at, &c. in consideration of the premises, and that the said A B at the special instance and request of the said CD would forbear and give time to the said E F for the payment of the said sum of day of -,(6) he the said C D un . until the dertook, and then and there faithfully promised(c) the said A B to pay him *the said sum of —. on, &c. And the said A B 6. On a promise to pay the debt of a third person, in considera tion of forbearance.(z) * 84 (z) See precedents of these declarations, 2 Wentw. 405. &c. and Index to ditto. (a) It is not necessary to state the subject matter of the debt, though a demand recoverable at law or in equity, must be stated; ante 82. n. (y). (b) The mere promise of a third person to pay the debt of another, without a stipulation by the plaintiff to forbear, or some other new consideration, is not valid, 1 Saund. 211. a. Com. Dig. Action on the Case on Assumpsit, B. 1, 2. The promise of an heir, who has no assets by descent, to pay the debt of his ancestor on consideration of forbearance, is not binding, 2 Saund, 137. Com. Dig Action of Assumpsit, F. 8. 4 East, See the form of declaring (c) Though the promise must, under the stat. 29 Car. II. c. 3. s. 4. be in writing, and the whole consideration must be stated in such writing, see 5 East, 10. it needs not be so stated in the declaration, 1 Saund. 276. A. 1. VI. Forbear avers, that he, confiding in the said promise and undertaking of ance of third the said C D, so made as aforesaid, did forbear and give time to person. the said E F for the payment of the said sum of 7. until the said day of, to wit, at, &c. aforesaid, whereof the said C D afterwards, to wit, on the day and year last aforesaid, there had notice, and thereby and according to the tenor and effect of his said promise and undertaking, he the said CD. became liable to pay to the said A B the said last-mentioned sum of. on the said day of to wit, at, &c. aforesaid. [Add counts for money had and received-and on an account stated.] 7. On a pro For that whereas heretofore, to wit, on, &c. at; &c. in consimise to pay deration that the said A B at the special instance and request of money in consideration of the said CD would deliver to him the said CD, a certain the exchange of horses. horse of him the said A B, of great value, in exchange(d) for a certain horse of him the said C D, he the said CD undertook, and then and there faithfully promised the said A B to deliver the said horse of him the said C D to him the said A B, and to pay him a certain sum of money, to wit, the sum of. of lawful money of Great Britain, in exchange for the said horse of the said A B, and the said A B avers, that he, confiding in the said promise and undertaking of the said C D, did afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, deliver to the said CD the said horse of him the said A B, and although the said CD in part performance of his said promise and undertaking, did then and there deliver to the said AB the said horse of him the said C D in exchange for the said horse of him the said A B. Yet the said CD not further regarding his said promise and undertaking, hath not although often requested so to do, as yet paid to him the said A B the said sum of. or any part thereof, but hath hitherto wholly neglected and refused, and still wholly neglects and refuses so to do, to wit, at, &c. aforesaid. [Add a count" for horses, mares and geldings, bargained and sold," and "for horses, &c. sold and delivered," and the account stated-and breach.] * 85 (d) For the distinction between a Com. 446. 3 Salk. 157. sale and an exchange, see 2 B1. change in payment for goods sold.(e) For that whereas heretofore, to wit, on, &c. at, &c. in con- 8. For not delivering a sideration that the said A B, at the special instance and request bill of exof the said C D, would sell and deliver to him the said CD, a certain quantity, to wit, 100 sacks of malt, at a certain rate or price, then and there agreed upon between the said A B and the said CD, to wit, at the rate or price of -. for each and every of the said sacks of malt, amounting in the whole. to a large sum of money, to wit, the sum of. of lawful moRey of Great Britain, he the said CD undertook, and then and there faithfully promised the said A B to pay him for the said malt by a good bill or bills of exchange, payable in four months from the delivery of the said malt, to him the said CD, whenever after such delivery, he the said CD should be thereto requested, and the said A B in fact saith, that he confiding in the said promises and undertaking of the said CD, did afterwards, to wit, on, &c. at, &c. aforesaid, sell and deliver the said quantity of malt, to the said CD, on the terms aforesaid, and although the said CD in part performance of his said promise and undertaking, afterwards, to wit, on, &c. at, &c. aforesaid, paid to the said A B by a certain *bill of exchange, a part of the said price of the said malt, to wit, the sum of 1007. and although the said A B afterwards and before the expiration of four months from the delivery of the said malt as aforesaid, to wit, on, &c. aforesaid, at, &c. aforesaid, requested the said CD, to pay him the said AB, the residue of the said price of the said malt, by such bill or bills of exchange as aforesaid, yet the said CD not regarding his said promise and undertaking, but contriving and wrongfully and unjustly intending, craftily and subtly to deceive and defraud the said AB in that behalf, did not nor would when he was so requested as aforesaid, or at any time before or afterwards, pay the said A B the residue of the said price of the said malt or any part thereof, * 86 (e) When goods are sold on a credit not elapsed at the time of declaring, and on the terms that the defendant should deliver a bill of exchange to the plaintiff, or accept a bill in his favour, it is necessary to declare specially for not delivering or accepting the bill, as in this prece dent, 4 East, 147. but if the credit VIII. Not de- by a good bill or bills of exchange, payable in four months livering a bill of exchange. from the delivery of the said malt as aforesaid or otherwise, howsoever, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, and by reason thereof, he the said AB hath lost and been deprived of the use and benefit of the bill or bills of exchange, which he the said CD ought to have delivered to the said A B as aforesaid, to wit, at, &c. aforesaid. [If there be any doubt as to the terms of the contract, add another special count, stating the facts as they will probably be proved. Add two counts for goods bargained and sold-and sold and delivered-and the account stated.] 9. On a pro mise to be as For that whereas heretofore, to wit, on, &c. at, &c. in consicountable for deration that the said A B at the special instance and request goods sold to of the said CD, would sell and deliver to one E F *on credit, a third person.(f) all such goods as he the said EF should have occasion for * 87 and require of the said A B in the way of his the said A B's trade and business of a hemp merchant, he the said C D, undertook, and then and there faithfully promised the said A B to be accountable to him the said A B for whatever goods he the said A B should sell and deliver to the said E F as aforesaid. And the said A B avers, that he, confiding in the said promise and undertaking of the said C D, did afterwards, to wit, on, &c. at, &c. aforesaid, sell and deliver to the said E F on certain credit, then and there agreed upon between the said A B and E F, certain goods of great value, which he the said EF, then and there had occasion for and required of the said A B in the way of his the said A B's said trade and business, and at and for certain reasonable prices then and there agreed upon by and between the said A B and the said E F, (or if no stipulated price, say, "at and for certain reasonable sums of (f) Whenever the defendant is collaterally liable to pay for goods, &c. furnished to a third person (for the criterion of which, see 2 T. R. 80, 81.) his undertaking must be in writing under the 29 Car. II. c. 3. s. 4. and must state the consideration of the defendant's undertaking, 5 East, 10. 1 Saund. 211. a. and the declara tion must be special as above, and not merely for goods sold and delivered to the defendant, or bargained and sold to him, and delivered to a third person at his request, 1 Saund. 211. a b. but the declaration needs not state that the contract was in writing, 1 Saund. 276. n. 1. |