subsequent departure in the rejoinder be made; where, to an action of debt on a bond given to secure an annuity, the deft. pleaded no such memorial was enrolled as required by the statute, and the replication stated that a memorial was enrolled containing the particulars which the statute directs, and the rejoinder alleged that the memorial in the replication mentioned did not truly set forth the consideration on which the annuity was granted, it was held that this was a departure from the plea: Praed v. Duchess of Cumberland, 4 T. R. 585; Duchess of Cumberland v. Praed, 2 H. Bla. 280; sed vide Fisher v. Pimbley, 11 East,

188.

Replication.] See the replications and rules relating to, in "Debt," "Covenant," &c. The usual replication to a plea, that no memorial was enrolled according to the act, is setting out the memorial verbatim, and stating it was duly enrolled. Such replication usually concludes with a verification by the record, but this seems unnecessary.

Precedents.

DECLARATION IN DEBT ON AN ANNUITY-DEED, FOR ARREARS OF ANNUITY. (Commencement in debt as usual, see "Debt.") For that whereas, heretofore, to wit, on, &c., at, &c., by a certain indenture then and there made between the said plt. of the one part, and the said deft. of the other part (which said indenture, sealed with the seal of the said deft., the said plt. now brings into court, the date whereof is the day and year aforesaid), he, the said deft., for the consideration therein mentioned, did grant, &c. (Here state, in the past tense, the grant of the annuity and the defendant's covenant to pay it, and proceed as follows:) by the said indenture, reference being thereunto had, will, amongst other things, more fully and at large appear. Nevertheless, the said plt. in fact saith, that after the making of the said indenture, and during the natural life of the said E. F., to wit, on, &c., at, &c., aforesaid, a large sum of money, to wit, the sum of £—, of lawful, &c., of the said annuity or yearly rent-charge, for one year and a quarter of a year, which expired on the day and year last aforesaid, then elapsed, became and was due and owing from the said deft, to the said plt., and still is in arrear and unpaid, contrary to the form and effect of the said indenture and of the said covenant of the said deft. so by him in that behalf made as aforesaid, to wit, at, &c., aforesaid, whereby an action hath accrued to the said plt., to demand and have of and from the said deft. the said sum of £-, being the said sum above demanded. Yet, &c. (Conclusion as usual: see "Debt.")

See form of declaration in debt on the bond, stating condition and breach, 2 Chit. Pl. 442; in covenant, Readshaw v. Balders, 4 Taunt. 57, 3 Went. 318, Hope v. Colman, 1 Wils. 211; by surviving partners, Leycester v. Lockwood, 1 M. & S. 527; by executrix, 5 Went. 527; by devisee, Duppa v. Mayo, 1 Saund. 276; by husband, 2 Mod. Ent. 244, 5 Went. 457; by hushand and wife against husband and wife, Lil. Ent.177. Forms of declaration in assumpsit against deft. on guarantee of payment of, Sandilands v. Marsh, 2 B. & A. 673, 2 Went. 211; to allow plt. an annuity in consideration of past cohabitation, Gibson v. Dickie, 3 M. & S. 463, Binnington v. Wallace, 4 B. & A. 650; against executor on parol agreement of testator to bequeath plt. annuity, Fenton v. Emblers, 3 Burr. 1278.

PLEA TO DEBT ON ANNUITY-BOND, THAT NO MEMORIAL WAS ENROLLED UNDER 53 G. 3 c. 141.

[86] ،، "(First non est factum after craving oyer of the bond and condition, as post, "Bond;" and, for a further plea of onerari non, as usual, post, "Debt.") Because he says, that no memorial of the said writing, in the said declaration mentioned, was enrolled in the High Court of Chancery within thirty days after the execution thereof, according to the directions of a certain act of Parliament, made and passed in the fifty-third year of the reign of his late majesty, King George the Third, (or if there was a defective memo rial, then say, that no such memorial of the said writing in the said declaration mentioned, as was and is required by a certain act, &c., made, &c., was enrolled, &c.); whereby the said

writing obligatory, in the said declaration mentioned, was and is null and void. And this, &c. (Conclude with a verification and onerari non, as usual: see "Debl.")

PLEA OF PAYMENT AFTER THE DAYS.

And for a further plea, &c. (Actio non, as usual: see "Debt.") Because he says that he, the said deft., after the making of the said writing obligatory, and before the exhibiting the bill of the said plt. in this behalf (or if in C. P. or by original, before the commencement of this suit), to wit, on, &c., at, &c., aforesaid, paid to the said E. F. all and every the sums of money which had at any time before then become due and owing upon or by virtue of the said writing obligatory and the said condition thereof, after each of the said several respective sums of money became and were due and owing under and by virtue of the said writing obligatory and the condition thereof. And this, &c. (Conclude with a verification, as usual: see "Debt.")

See form of plea of no memorial of names of witnesses, 3 Chit. Pl. 975, payment ad diem, ib.; that in the assurances the consideration-money is stated to have been paid by the grantee, but that it is not stated that the sum was advanced by an agent of the grantee, Horwood v. Underhill, 3 M. & S. 82. See form of plea to action on deed for payment of annuity on demand, no demand: 1 Wils. 221.

Replication.] See form of stating a memorial, 3 Chit. Pl. 1175.

Rejoinder.] See form of, that the consideration is untruly alleged by the memorial to be paid to both the obligors: Praed v. Duchess of Cumberland, 4 T. R. 588.

Evidence for Plaintiff.

The evidence must, like other cases in action on specialties, depend on the plea pleaded.

On non est factum.] Plt. must be prepared to prove the execution of the deed as usual, see "Deed," and what is in arrear. There does not seem any actual necessity for proving that the grantor or person on whose life the annuity is granted, is living (deft. not having denied it by pleading), though usual so to do. If, indeed, the action is on the bond, and breaches are suggested in pursuance of the 8 & 9 W. 3, then such proof would be necessary.

No Memorial, &c.] The presumption is, that the annuity-deed is valid, and has been duly memorialized; it is not, therefore, incumbent on the plt. to prove the due enrolment of the memorial, unless, indeed, deft. plead no memorial, &c., when plt. should be prepared to support his replication by showing the enrolment within the proper time: Doe d. Griffin v. Mason, 3 Camp. 7. If deft. does not, in his rejoinder, deny the record of the enrolment, an examined copy of the enrolment, completely recorded, should be produced and proved: see post, "Record." The date of the enrolment, endorsed by the clerk [*87] of the enrolment, is, it seems, conclusive evidence of the date: Rex v. Happer, 3 Price, 495.

Other Issues.] Plt. should be prepared to support his replication. If the burden of proof lies on deft., plt. should be prepared to disprove the subject of such proof.

Damages.] Plt. should be prepared to prove the amount of the arrears due.

In Action to recover money had and received, if annuity-deed be defective, post, "Money Had and Received."

Evidence for Defendant.

This must depend on the plea or rejoinder, which deft. must be prepared to support: post, "Payment," "Usury." "Usury." An annuity transaction is not in general affected by the usury laws, unless it be very colourable: "Usury." If deft. plead a defective memorial, he should be prepared to point out and prove the defect: Doe d. Griffin v. Mason, 3 Campb. 7.

ANSWER IN CHANCERY.

See "CHANCERY."

APOTHECARY AND SURGEON, ACTIONS BY AND AGAINST. ACTIONS BY, For their Bill.

Form of Remedy and Pleadings, 87.

Precedents, ib.

Indebitatus for Work, &c., as Apothecary, ib.

Evidence for Plaintiff, 88 to 90.

Evidence for Defendant, 90, 91.

Form of Remedy and Pleadings.

THE form of remedy by an apothecary or surgeon, for his bill for medicines and attendance, is by action of assumpsit or debt: see "Assumpsit," "Work and Labour." There is nothing peculiar relating to the form of the declaration. The plt. may, in general, recover under the common indebitatus count for work and labour, and materials, post, "Work and Labour;" but it is usual to insert a special indebitatus count, disclosing the nature of the work done. In such count, if the action be for the cure of a loathsome disease, the name of such disease should not be mentioned: anon. 2 Wils. 20; see further, post, "Work and Labour."

Precedents.

COUNT FOR WORK AND LABOUR AS AN APOTHECARY OR SURGEON, AND FOR MEDICINES. The Commencement of the count is as post, “Assumpsit," "Debt," inserting the words, “for the work and labour, care, diligence, journeys, and attendances of the said plt., by him, the

said plt., before that time done, performed, given, and bestowed, as a surgeon and apothecary of the said deft., at his special instance, &c., in and about the healing and cur

ing and "relieving of the said deft. [ated ivers other persons] of divers sicknesses, [*88]

diseases, disorders, and maladies, under which they had before then respectively laboured and languished, and in and about the endeavouring to heal and cure the said deft. [and divers other persons] of divers other diseases, sicknesses, disorders, and maladies, under which he [or they] had before then respectively] laboured and languished, and for divers medicines and other necessary things before.that time found and provided, administered, delivered, and applied by the said plt. on those occasions, for the said deft., and at his like special instance and request, and being so ind bred, &c. (Conclusion as post, "Assumpsit." "Debt." The quantum meruit thereon is as post, Assumpsit," inserting as follows:) had, before that time, done, performed, given, and bestowed other his work and labour, care, diligence, journeys, and attendances as a surgeon and apothecary, in and about the healing and curing and relieving of the said deft. [and divers other persons] of divers other diseases, sicknesses, disorders, and maladies, under which he [and-they] had before then [respectively] laboured and languished, and also in and about the endeavouring, &c., and had also at the like, &c., before that time found and provided, administered, delivered, and applied, divers other medicines and necessary things on those last mentioned occasions for the said deft., he, the said deft., undertook, &c. (Conclusion as post, "Assumpsit ;” add counts for work and labour and journeys, for goods sold, money paid, and the account stated.) See form in 2 Chit. Pl. 84, for inoculating a child, and ib. 84, and for acting as a manmidwife.

Evidence for Plaintiff.

The plt. must, in this action, prove his retainer; his being a regular apothecary or surgeon; the work done, and medicines supplied; and the reasonableness of the charges.

Proof of Retainer.] The plt. must prove his retainer, as in other actions for work and labour, &c.: post, "Work and Labour." If the retainer was in writing, the same should be produced and proved, post, "Handwriting," "Secondary Evidence;" if by parol, then it should be proved by witnesses present when given. If deft. has made any admissions of his liability, the same should be proved: see "Admissions." In general, where the plt.'s claim is to recover the expenses of attending, &c., a pauper, it should be observed, that such action should be brought against the overseer of the parish where the accident, or other thing occasioning the illness, happened, Tomlinson v. Bentall, 5 B. & C. 738, Gent v. Tomkins, cited ib. 745, Lamb v. Bunce, 4 M. & S. 275; provided the plt. can prove that the overseer or deft. authorized the plt.'s employment, &c., by an express promise, or by an implied one, as by standing by, and seeing him perform his operations, &c., without any objection, or the like. Where a pauper, being casually in the parish of A., met with an accident which disabled her, and which required immediate medical assistance, the constable of that parish improperly removed her to her own (which was the adjoining) parish, and sent for the surgeon of that parish to attend her, it was held, that it was the duty of the parish officers of A. to have taken the pauper to the nearest convenient, house in A., and to have provided medical attendance there; and that they could not, by improperly removing her to another parish, relieve themselves from the liability which the law had, in the first instance, cast upon them; and that they were therefore liable to pay the

plt. a surgeon's bill: Tomlinson v. Bentall, 5 B. & C. 738. Where an action was brought, not against the overseers of the parish in which the accident happened, but against the overseer of the parish to which the pauper belonged, the court intimated a very strong opinion, that it

was not properly brought against the overseer of the latter par[*89] ish: Gent v. Tomkins, cited *5 ib. 745. In some cases, the overseer of the parish to which the pauper is removed will be liable: as, where a pauper had his leg accidentally fractured in one parish, and was conveyed to the next house in an adjoining parish, and was confined there, and visited by the overseer, and attended by the plt., a surgeon, who attended the parish poor, with the knowledge of the overseer, it was held, such overseer was liable for the plt.'s expenses in the cure for the overseer's knowing of, and not repudiating the plt.'s attendance, was equivalent to a request: Lamb v. Bunce, 4 M. & S. 275. A pauper residing in one parish received during illness a weekly allowance from another parish, where he was settled; and it was held, that an apothecary, who had attended the pauper, might maintain an action for the amount of his bill against the overseer of the latter parish, who had expressly promised to pay: Wing v. Mill, 1 B. & A. 104.

Proof of Plaintiff being an Apothecary, &c.] By 55 G. 3, c. 194, s. 21, explained and amended by 6 G. 4, c. 133, s. 5, it is enacted, that no apothecary shall be allowed to recover any charges claimed by him in a court of law, unless he shall prove at the trial that he was in practice prior to or on the 1st of August, or that he has obtained a "certificate," &c., to practise as such from the Apothecaries' Company, in the manner pointed out by the act, and by the 6 G. 4, c. 133, s. 5. The apothecary must prove that he was in practice on the 1st August, 1815, Apothecaries' Company v. Roby, 5 B. & A. 949, or else that he had obtained a certificate. The act does not affect physicians, chemists, or druggists, or the privileges vested in the College of Surgeons: sec. 28, 29. The plt. failing to bring himself within the above act, cannot recover even for the vials in which the medicines were contained: Steed v. Henley, 1 C. & P. 574.

If the plt. relies on showing he was in practice, he must prove it strictly. Evidence of merely having administered medicines on many occasions to different patients, previous to and on the 1st of August, 1815, will not be sufficient evidence; but he must show that he exercised the duties of an apothecary under the 5th section of the prior act; as, in making up the prescriptions of physicians, &c.: Apothecaries' Company v. Warburton, 3 B. & A. 40. Nor will it be sufficient if plt. prove that he attended as an apothecary, while he was an assistant in the house of another apothecary, though the patients paid the plt., and not the person he was assistant to: Brown v. Robinson, 1 C. & P. 264.

If the plt. relies on his certificate, the same must be proved. By 6 G. 4, c. 133, s. 7, it is expressly declared, that the common seal of the Apothecaries' Company is sufficient proof that the person named therein. is qualified to practise. But plt. must prove that the seal affixed is the genuine seal of the company, as the act does not make the seal prove itself: Chadwick v. Bunning, R. & M. 307; 2 C. & P. 106, s. c.

It