of the defendant next mentioned, the plaintiff was a schoolmaster, and carried on the profession and business of a schoolmaster, upon, amongst other terms, the terms that no scholar should be removed from the school of the plaintiff until the expiration of a quarter's notice of the intention of the parent or other person placing the scholar at such school to remove him therefrom, * [this must correspond with the usual printed prospectus of the terms of the school-if there were none, and the plaintiff relies upon a special agreement between the parties, omit the statement of terms between the asterisks. If the terms be in the alternative, viz. to give notice or pay for a quarter's tuition, add "or pay the amount payable for the tuition, board and lodging of a scholar at such school for a quarter of a year ;"] and thereupon heretofore, to wit, on [&c.] in consideration that the plaintiff, at the request of the defendant, would admit and receive one L. into the school of the plaintiff, by him conducted as such schoolmaster, and would instruct the said L. in reading, writing and arithmetic, and in certain languages and other necessary and useful accomplishments and qualifications, and find and provide for the said L. reasonable and sufficient board and lodging whilst he should be at such school at and for certain reward, to wit, £- - per annum, to be paid by the defendant to the plaintiff, to wit, quarterly, the defendant then promised the plaintiff to continue the said L. at the said school, to be instructed and boarded and lodged by the plaintiff as aforesaid, until the expiration of a quarter's notice of his, the defendant's, intention to take the said L. away from the said school [if in the alternative, add, "or that he, the defendant, would pay the plaintiff a certain sum, to wit, £- being the amount payable for the tuition, board and flodging of a scholar at such school for a quarter of a year;"} and the plaintiff avers, that he, confiding in the said promise of the defendant, did afterwards, to wit, on the day and year aforesaid, admit and receive the said L. into the said school of the plaintiff, and did instruct the said L. in reading, writing and arithmetic, and in the said languages and other necessary and useful accomplishments and qualifications, and find and provide such reasonable and sufficient board and lodging for the said L. for a certain space of time, to wit, until the said L. was removed from the school as hereinafter mentioned, and hath always been ready and willing to instruct and board and lodge the said L. as aforesaid, and thereof the defendant hath always had notice, yet the defendant, not regarding his said promise, afterwards, to wit, on &c. [the quarter-day upon which the scholar was removed,] wrongfully and injuriously removed and took away the said L. from the said school of the said plaintif before the expiration of a quarter's notice given by the defeudant to the plaintiff of the defendant's intention to take the said L. away from the said school, and without giving the plaintiff any such notice as aforesaid, and hath thence hitherto wholly neglected and refused to continue the said L. at the said school to be instructed, or boarded or lodged by the plaintiff, [when the contract is in the alternative, see supra, here add, "nor hath the defendant paid to the plaintiff the said sum of £,"] whereby he the plaintiff hath wholly lost and been deprived of all the benefits, profits and advantages, which he otherwise might and would have derived and acquired from instructing the said L., and finding and providing him with board and lodging as aforesaid. [Add Form 1, if any sum be due for instruction whilst the scholar was at the school. Add account stated and breach, ante, 42. STOCK. Against the Purchaser of Spanish Certificates for not accepting them, whereby Plaintiff sustained a loss on a resale. (i) For that whereas heretofore, to wit, on. [&c.] the plaintiff, at the request of the defendant, bargained with the defendant to sell and sold to him, and the defendant then agreed to buy and bought of the plaintiff divers, to wit, fifteen new Spanish five per cent. certificates, [or "certain foreign stock, to wit, Spanish stock, to the amount of £,"] amounting in the whole to a large sum of money, to wit, the sum of £1020, at and after a certain rate or price then agreed upon between them in that behalf, to wit, the then market-price of the said certificates, that is to say, the rate or price of £66 10s. for every £100 of the said amount of the said certificates, the twhole price of the said certificates at the rate aforesaid being a large sum of money, to wit, the sum of £678 6s., such certificates to be delivered to the defendant, and paid for by him at the rate aforesaid, on the day of —, A. D. ———, and in consideration thereof, and that the plainiiff, at the request of the defendant had then promised the defendant to deliver to him the said certificates on the said [&c.] the defendant then undertook and promised the plaintiff to accept and receive the same of and from the plaintiff on the said [&c.], and then to pay the plaintiff for the same according to the rate or price aforesaid; and although the plaintiff was, before, and upon, and after the said ——— day of ————————, a. D. -, ready and willing to deliver the said certificates to the defendant, * [and afterwards, to wit, on the day and year last aforesaid, tendered and offered the said certificates to the defendant, and requested him to receive and accept the same, and to pay the plaintiff for them according to the rate or price aforesaid, (k)] yet the defendant not (i) Chit. jun. Contr. 2d. ed. 553; Henderson v. Bise, 3 Stark. R. 158; Paterson n. Powell, 2 M. & Sc. 399; 9 Bing. 320, S. C. (k) If there has been no tender or request, and the defendant has dispensed with them, omit this allegation, and proceed as follows from the asterisk-whereof the defendant then had notice, yet the de fendant, disregarding his said promise, then wrongfully declared and caused to be declared to the plaintiff, that he the said defendant, would not, on the said day of —————, A. D. —, or at any other time, accept the said certificates or either of them, or pay for the same according to the said contract, and then wrongfully discharged the plaintiff from tendering the said certifi regarding his said promise did not nor would, on the said day of , A. D. - or at any other time, accept the said certificates of or from the plaintiff, or pay the plaintiff the amount of the same at the rate or price aforesaid, or any part thereof, but wholly neglected and refused so to do, whereby the plaintiff not only lost and was deprived of the gains and profits which might and would otherwise have accrued to him from the completion of the said contract, but was afterwards, to wit, on [&c.] obliged to resell, and did resell the said certificates at a great loss, that is to say, for certain sums of money, amounting in the whole to a much less sum of money, to wit, the sum of £300 less than the aforesaid price of the said certificates. [Add account stated, and breach, ante, 42. TITHES. (/) 1. Special declaration in Assumpsit by a Rector, or Lessee of Tithes, against an Occupier of Lands, for a composition for one year for the Tithe, under an agreement not under seal. For that whereas the plaintiff before and at the time of the making of the defendant's promise hereafter mentioned, was and from thence hitherto thath been and is rector of the rectory of the parish church of ——, in the county of, and as such rector of the said rectory, the plaintiff was for and during all the time intituled to all and singular the [great] tithes arising, growing and happening upon and from a certain farm and lands situate, lying and being in the parish of -, in the county of aforesaid, [or "For that whereas the plaintiff before and at the time of the making the defendant's promise hereinafter next mentioned was and from thence hitherto hath been and still is farmer and proprietor of all and singular the tithes arising, growing and happening upon and from certain lands situate, lying and being in the parish of ——, in the county of —;”] and whereas the defendant before and at the time of making his promise hereinafter mentioned was and from thence hitherto hath been and still is the possessor and occupier of the said farm and lands, and whereas the plaintiff so being entitled to the said tithes, and the plaintiff so being cates to the defendant, and requesting him to accept, take and pay for the same, and then neglected and refused, and thence hitherto hath neglected and refused, in any respect to perform the said contract on his the defendant's part, by means whereof, &c." conclude as above. (1) As to an agreement for a composition, see Chit. jun. Contr. 2d ed. 370; 2 Eagle on Tithes, 20. It is good, though by parol, if for no more than a year, as it operates as a mere annual license to retain the tithe instead of setting it out in kind. As sumpsit or debt lies on the composition.The common indeb. count suffices, see next form; but it may often be better to declare specially. The remedy is an action on statute, 2 & 3 Ed. 6, c. 13, for the treble value of the tithe, if the occupier neglect to set it out, and there be no binding composition, see Debt, "Tithes." A count on the statute and another count on a composition for the same tithe, cannot be joined in the declaration. This has been decided at chambers upon the New Rules. the possessor and occupier of the said farm and lands as aforesaid, heretofore, to wit, on [&c.] in consideration that the plaintiff, at the request of the defendant, would suffer and permit the defendent to have, take and retain to his own use the said tithes to arise, grow and happen upon and from his said lands for the year then following, instead of setting out such tithes in the kind, he the defendant undertook and then promised the plaintiff to pay him the sum of £ for the same; and the plaintiff avers that he, confiding in the said promise and undertaking of the defendant did permit and suffer the defendant to have, take and retain to his own use, and he accordingly had, took and retained to his own use, the tithes which arose, grew and happened upon and from the said farm and lands for the said space of one year, instead of setting out the said tithes in kind, yet the defendant hath not paid the said sum of £- or any part thereof. [Add account stated and breach, as ante, 42. 2. Indebitatus Count upon a Composition for Tithes not under Seal. (m) Commencement as ante, 42, to the asterisk.] For certain tithes whereof the plaintiff was the proprietor, issuing and arising from and out of and upon and in respect of certain lands and premises in the occupation of the defendant, by the defendant, before that time and at his request, and by the permission of the plaintiff, had taken and retained to his the defendant's own use; and in [Add account stated, &c. as ante, 43, TILLAGES. (n) Indebitatus Count for Tillages left by an outgoing Tenant. Commencement as ante, 42, to the asterisk.] For money due and payable from the defendant to the plaintiff, for and in respect of the plaintiff having before then relinquished and given up to and in favor of the defendant, and at his request, and for and in respect of the defendant having received the benefit and advantage of certain work done and materials provided and moneys expended by the plaintiff in and about the ploughing, harrowing, manuring, sowing and otherwise cultivating and improving divers lands, before then ploughed, harrowed, manured, (m) See note (/). (n) See form for "Crops," ante, 102; form in case of a valuation, ante, 102. The above form will suffice, although the tillages have been taken upon a valuation by appraisers, ante, 102, note (d). The claim to tillages by the outgoing against the incoming tenant of a farm, may be supported by express agreement or custom of the country; see cases, Chit. jun. Cont. 2d ed. 293; see special form, &c. Dalby v. Hirst, 3 Moor, 536; 1 B. & B. 224, S. C.; Senior v. Armytage, Holt, N. P. R. 197; Earl of Falmouth r. Thomas, 1 C. & M 89. sown and otherwise cultivated and improved as tenant thereof, and the benefit whereof the plaintiff had not received, nor any equivalent thereto, on entering the said lands; and in [&c. Account stated 'and breach, ante, 43. TOLLS. (0) 1. By a Company for Rates or Tonnage for passing along a Tramroad. Commencement as ante, 42, to the asterisk.] For rates, tolls and duties due from and of right payable by the defendant to the plaintiffs for the tonnage of divers goods and chattels, carried and conveyed by and for the defendant upon the rail-way or tram-road of the plaintiffs mentioned in the statute in such case made and provided; and in [Account stated and breach, ante, 43. 2. For Stallage. (p) Commencement as ante, 42, to the asterisk.] For stallage duties and moneys due from and of right payable by the defendant to the plaintiffs, as the proprietors of a certain ancient market and market-place, with the appurtenances, situate in the county of Norfolk, and of the stallage and other profits, privileges, and emoluments thereto belonging and accruing therefrom, for and in respect of the defendant having erected, put, placed, and kept in the fsaid market and market-place of the plaintiffs certain stalls, stands, and erections for the purpose of putting and placing and exposing to sale divers goods and chattels therein and thereon, and upon, for, and in respect of the defendant having put and placed and exposed to sale therein and thereon divers goods and chattels to be sold in the said market and market-place on divers days whereon the said market was held, and for and in respect of the defendant having brought into the said maket and exposed to sale therein divers other goods and chattels; and in [add account stated and breach, as ante, 43. (0) An indebitatus count in debt or assumpsit lies for tolls, without proof of any actual contract; Seward v. Baker, 1 T. R. 616; Mayor of Newport v. Saunders, 3 B. & Ad. 411; The Mayor of Carmarthen v. Lewis, 6 C. & P. 608. See other forms, &c. 1 Wentw. 153, 156, 180; Peacock v. [+176] " Harris, 10 East, 104; Duke of Bedford v. (p) See Mayor of Newport v. Saunders, 3 B. & Ad. 411; Mayor of Carmarthen v. Lewis, 6 C. & P. 608. |