EMPLOYING. retain or employ her in such service, at the wages aforesaid, or other- 12. FOR NOT wise howsoever, but wholly neglected and refused so to do, whereby the said A. B. not only lust and was deprived of all the profits and emoluments which might and would otherwise have arisen and accrued to her from entering into the service of the said C. D. but also lost and was deprived of the means and opportunity of being retained and employed by and in the service of divers other persons, and remained and continued wholly out of service and unemployed for a long space of time; to wit, for the space of three months then next following, and was and is otherwise greatly injured and damnified, to wit, at, &c. aforesaid, &c. For that whereas heretofore, to wit, on, &c. at, &c. by a certain 13. On a agreement then and there made by and between the said A. B. and the building agreement said C. D. it was agreed, that the said C. D. should take down a cer- for nor pertain messuage or dwelling-house, situate at, &c. and should build two forming part of the work, *other messuages or dwelling-houses for the said A. B. agreeably to and for percertain plans thereof, then in the possession of the said C. D. and ac- forming the cording to the particulars and in nranner following: that is to say, that tificially (m). the said old house should be taken down, and the bricks cleaned and worked up, &c. [Set out the agreement verbatim.] And the said agreement being so made afterwards, to wit, on, &c. at, &c. [Mutual promises as antes115 (n).] And although the said A. B. hath always, &c. [State plaintiff's general performance of the agreement, and special performance of any precedent condition.] Yet the said A. B. in fact saith, that the said C. D. contriving, and wrongfully and unjustly intending to injure the said A. B. did not, nor would perform the said agreement, nor his said promise and undertaking, but thereby craftily and subtly deceived the said A. B. in this, to wit, that the said C. D. wholly neglected and, omitted to do and perform certain works which were requisite and necessary to be done and performed under and by virtue of the said agreement, and according to the tenor and effect, true intent and meaning thereof, that is to say, to pull down, &c. [Here specify the breach, according to the fact.] And the said C. D. also thereby craftily and subtly deceived the said A. B. in this, to wit, that the said C. D. afterwards, to wit, on, &c. and on divers other, &c. did and performed certain other works which were requisite and necessary to be done and performed under and by virtue of the said agreement, in a residue inar [133] PERFORMING WORKS. Second count on same " contract. [134] " 13. FOR NOT bad, inartificial, and unworkmanlike manner, contrary to the form and effect of the said agreement, and of his said promise and undertaking to wit, at, &c. aforesaid. And whereas also heretofore, to wit. on, &c. aforesaid, at, &c. aforesaid, in consideration that the said A. B. at the special, &c. of the said C. D. had then and there retained and employed him the said C. D. to take down a certain other messuage or dwelling-house, with the appurtenances, and to erect and build divers, to wit, two other messuages on dwelling-houses, with the appurtenances in lieu thereof, for the said. A. B. agreeable to certain plans and particulars then and there made and agreed upon by and between the said A. B. and C. D. for certain reasonable reward to the said C. D. in that behalf, he the said C. D. undertook, and then and there faithfully promised the said A. B. to erect and build the said last-mentioned messuage or dwelling-house, with the appurtenances, agreeable to the said last mentioned plans and particulars, with good and proper materials, and in a sound, substantial, and workmanlike manner, and although the said C. D. did afterwards, and before the commencement of this suit, erect and build the said last-mentioned messuages or dwelling-houses, with the appurtenances, for the said A, B. to wit, at, &c. aforesaid. Yet the said C. D. not regarding, &c. but contriving, &c. did not, nor would, erect or build the said last-mentioned messuages or dwellinghouses, with the appurtenances, for the said A. B. agreeable to the last mentioned plans and particulars, with good and proper materials, and in a sound, substantial, and workmanlike manner, but wholly neglected and refused so to do, and on the contrary thereof, he the said C. D.. erected and built the said last-mentioned messuages or dwelling-houses, with the appurtenances, different from and contrary to the said last-mentioned plans and particulars, and with bad and improper materials, and in a slight, weak, inartificial, and unworkmanlike manner, contrary to the form, and effect of his said last-mentioned promise and undertaking, to wit, at, &c. aforesaid. [Add another, count similar to the last, omitting the words in italics, and such other counts as may be applicable to the case. 14. Against an attorney for negligent For that whereas heretofore; to wit, on, &c. at, &c. in *consideration that the said A. B. at the special instance and request of the said C. D. ly conducting had then and there retained, and employed the said C. D. as an attorney of the court of our said lord the king, before the king himself, to prosecute and conduct a certain action of trover in the same court, by a cause to trial without (2) Declarations against auctioneers, agents, &c. of every description, may be framed on the same principle as this form. See precedents of declarations against attorneys, &c. for neglect, in the Index to the 2d vol. of Wentworth. The law implies a contract on the part of an attorney, and others employed for reward, to conduct the business of another, to perform their duty, in relation to their employment.-As to the liability of an attorney, see 4 Burr. ATTORNEYS. and at the suit of the said A. B. against one E. F. for taking away and 14. AGAINST converting to his own use certain goods and chattels, claimed by him the said A. B. to be his own proper goods and chattels, for certain reasonable fees and reward, to be therefore paid by the said A. B. to the said C. D., he the said C. D. undertook, &c. to prosecute and conduct the said action in a proper skilful and diligent manner (o) Nevertheless the said C. D. not regarding his said promise and undertaking, but contriving, &c. did not nor would prosecute or conduct the said action in a proper skilful or diligent manner, but on the contrary thereof, prosecuted and conducted the same action to trial in so improper, unskilful, and negligent a manner [in not having a certain instrument before then prepared by the said C, D. and purporting to be a sale and assignment of the said goods and chattels, by the said E. F. to the said *A. B. stamped according to law, so that the same might have been given [136] in evidence on the said trial of the said action,]() that the said A. B. by the said neglect and default of the said C. D. in that behalf, was hindered and prevented from giving the same instrument in evidence upon the trial of the said cause, and by reason thereof, was afterwards, to wit, on, &c. at, &c. aforesaid, compelled to suffer himself the said A. B. to be nonsuited in the said action, whereby he the said A. B. was not only hindered and prevented from recovering his damages from the said E. F. by reason of his taking away and converting the said goods and chattels as aforesaid, but hath also been forced and obliged to pay and hath paid to the said E. F. a large sum of money, to wit, the sum of L for his costs and charges in and about his defence of the said action; and hath also paid to the said C. D. another large sum of money, to wit, the sum of L., for his costs and charges for the prosecution and conduct of the said action, to wit, at, &c. aforesaid.-[Add such other special counts as may be applicable to the case.] 2061. 2 Wils. 325. 1 Saund. 312. n. 2. and of others, and of the distinction, where there is no reward, 5 T. R. 143. 7 T. R. 171. 1 Hen. Bla. 158. Though usual, it is not in general necessary nor advisable to allege that the party against whom the action was depend ing, was indebted, &c. but the declaration may be without any inducement, and may commence with the statement of the retainer. See Peake, C. N. P. 119. Variance in stating proceedings, 2 Esp. R. 726, 7. (0) It is in general proper, at least in one count, to declare generally on the duty of the agent, Rep. T. H. 309. In (p) The statement of the particular 15. NOT ACCEPIING GOODS. For that whereas heretofore, to wit, on, &c. at, &c. the said C. D. bargained for and bought of the said A. B. and the said A. B. at the 15. For not special instance and request of the said C D. then and there sold to accepting the said C. D. a large quantity, to wit, ten loads of wheat, at the rate wheat (q). or price of L. for each and every load thereof, to be delivered [137] by the said A. B. to the said C. D. in a week then next following, at -, and to be paid for by the said C. D. to the said A. B. on the delivery thereof, as aforesaid, and in consideration, thereof, and that the said A. B. at the like special instance and request of the said C. D. had then and there undertaken and faithfully promised the said C. D. to deliver the said wheat to him the said C. D. in the time and at the place aforesaid, he the said C. D. undertook, and then and there faithfully promised the said A. B. to accept the said wheat, of and from him the said A B and to pay him for the same on the delivery thereof, to him the said C. D. as aforesaid. And although the said A. B. afterwards, and within a week next after the making of the said promise and undertaking of the said C. D. to wit, on, &c. at, &c. aforesaid, was ready and willing, and then and there tendered and offered to deliver the said wheat to him the said C. D. and then and there requested the said C. D. to accept the same, and to pay him for the same as aforesaid (r). Yet the said C. D. not regarding his said premise and undertaking, but contriving, and craftily and subtly intending to deceive and defraud the said A. B. in this behalf, did not, nor would, at the said time when he was so requested as aforesaid, or at any time before or afterwards, accept the said wheat, or any. part thereof, of or from him the said A. B. or pay him for the same, as aforesaid, but then and there wholly neglected and refused so to do. [If the article sold has been re-sold, as it may be, (9) 1 Salk. 113. see (9) Vide Sands and Crump v. Taylor and Lovett, 5 Johns. Rep. 395. CEPTING GOODS. Morgan, 126. a precedent, and a loss have arisen, or if there have been 15. NOT ACany expense in re-housing the goods, here state such damage. Add counts for goods bargained *and sold, ut ante, 52, and the account stated and breach.] [⚫ 138] For that whereas heretofore, to wit, on, &c. at, &c. the said A. B. 16. For not deat the special instance and request of the said C. D. bargained with within a spelivering wheat the said C. D. to buy of him the said C. D. and the said C. D. then cified time,, and there sold to the said A. B. a large quantity, to wit, ten loads of and at a particular place wheat at the rate or price of L., for each and every load thereof, ($).. to be delivered by the said C. to the said A. B. in a week then next following, at, and to be paid for by the said A. B. to the said C. D. on the delivery thereof as aforesaid; and in consideration thereof, and that the said A. B. at the like special, &c. had then and there undertaken and faithfully promised the said C. D. to accept and receive the said wheat, and to pay him for the same at the rate or price aforesaid; he the said C. D. undertook, &c, to deliver the said wheat to him the said A. B. as aforesaid; and although the said time for the delivery of the said wheat, as aforesaid, hath long since elapsed, and the said A. B. hath always been ready and willing to accept and receive the said wheat, and to pay for the same at the rate or price aforesaid, to wit, at, &c. aforesaid; yet the said C. D. not regarding, &c. but contriving, &c. to deceive and defraud said A. B. in this behalf, did not nor would within the time aforesaid, or at any time afterwards, deliver the said wheat, or any part thereof for the said A. B. at, &c. aforesaid, or elsewhere, but wholly neglected and refused so to do, where [139] by the said A. Bhath lost and been deprived of divers great gains and profits, which might and otherwise would have arisen and accrued to him from the delivery of the said wheat to him the said A. B. as aforesaid, to wit, at, &c. aforesaid [Add one or more special counts, varying the statement and at least one count like that in 1 East. 203 -and an account stated. See the old forms, 1 Lil. Ent. 16. to 19-1 Rich. C. P. 542. The price of the goods must be stated, 13 East. 102. 2 B. and P. 452. If there was a special written agreement, begin with a count thereon, stating mutual promises.-See a precedent, 1 East, 203; which, with the addition of an averment of notice of the plaintiff's readiness to pay, will be found useful-It is advisable in most cases in one count to set out the whole contract; in a second, to state VOL. II. the contract to be to deliver on request, |