LANDLORD AGAINST trary to im plied contract (e). For that whereas the said C. D. heretofore, to wit, on, &c, at, &c. had become and was tenant to the said A. B. of a certain messuage, 38. Against garden, and premises, with the appurtenances, situate, &c.; and in tenant, for consideration thereof, he the said C. D. then and there undertook, &c. keeping and that he the said C. D. would, during the continuance of the said tenleaving the premises out ancy, keep the same messuage, garden, and premises, with the apof repair, con- purtenances,, in tenantable repair, order, and condition. And the said A. B. avers, that the said C. D. was, and continued tenant to the said A. B. of the said messuage, garden, and premises, with the appurtenances, for a long space of time, to wit, from the time of, making his promise and undertaking aforesaid, until and upon, &c. Nevertheless the said C. D. not regarding his said promise and undertaking, but contriving, &c. did not nor would, after the making of his said promise and undertaking, and during the continuance of the said tenancy, keep the said messuage, garden, and premises, with the appurtenances, in tenantable repair, order, and condition, according to his said promise and undertaking; but on the contrary thereof, he the said C. D. after the making of his said promise and undertaking, and during the continuance of his said tenancy, to wit, on the day and year first above mentioned, and from thence until and upon the said, &c. wrongfully and unjustly suffered and permitted the said messuage, garden, and premises, with the appurtenances, to be and continue, and the same were. for and during all that time ruinous, prostrate, foul, and in bad and untenantable repair, order, and condition, for want of needful and necessary repairing, cleansing, and amending thereof. And afterwards, to wit, on the said, &c. he the said C. D. wrongfully and unjustly yielded and delivered up to the said A. B. the said premises so ruinous, prostrate, broken down, foul, and in bad and untenantable order, repair, and condition, as aforesaid, contrary to his said promise and Second count, undertaking, to wit, at, &c. aforesaid. And whereas also heretofore, for using the to wit, on, &c. at, &c. aforesaid, in consideration that the said C. D. premises in an untenant-like had become, and then was, tenant to the said A. B. of a certain other messuage, garden, and premises, with the appurtenances, he the said *[* 181 ] manner. (e) In this case also, if there were an express contract, or written agreement, it should be declared upon, as stated in the note to the precedent, ante, 177, in note. When plaintiff may declare as upon a demise, see 13 East. 18. If the action be for not taking care of furniture, &c. see a precedent, ante, 109. The law implies a contract on the part of a tenant from year to year, to keep the premises in tenantable repair, and not to commit waste, 1 Saund. 323. b. n. 7. Co. Lit. 57. a.; but he is not bound to make substantial repairs in main beams, &c. 2 Esp. Rep. 590.— Case also may be supported against a tenant from year to year, for permissive as well as voluntary waste, see 2 Saund. 252. c.--and the precedents there given; but case cannot be supported for permissive waste against a mere tenant at will, 1 New. Rep. 290. 1 Saund. 323. b. -As to what fixtures a tenant may remove, and at what time, see 2 East. 88. 3 East. 38. AGAINST C. D. undertook, &c. to use the said last-mentioned messuage, gar- LANDLORD den, and premises, with the appurtenances, in a tenant-like and proper manner, for and during the continuance of the said last-mentioned tenancy. And although the said last-mentioned tenancy did continue and endure for a long space of time, to wit, from the day and year last aforesaid, until and upon, &e. to wit, at, &c. aforesaid. Yet the said C. D. not regarding his said last-mentioned promise and undertaking, but contriving, and fraudulently intending to deceive and injure the said A. B., did not nor would, during the continuance of the said lastmentioned tenancy, use the said last-mentioned messuage, garden, and premises, with the appurtenances, in a tenant-like and proper manner. But on the contrary thereof, he the said C. D., during the continuance of the said last-mentioned tenancy, so improperly behaved and conducted himself in that behalf, and used the said last-mentioned messuage, garden, and premises, with the appurtenances, and the trees therein, in so untenant-like and improper a manner, that by reason thereof the said last-mentioned messuage, garden, and premises, with the appurtenances, then and there became, and were, and still arc, ruinous, broken down, destroyed, prostrated, foul, miry, and greatly dilapidated, and the trees of the said A. B. growing in and upon the said last-mentioned. premises became and were greatly damaged and spoiled, to wit, at, &c. aforesaid. [182] to indemnify tenant against For that whereas before and at the several times hereinafter men- 39. By tenant tioned, the said C. D. held a certain messuage and premises, with the against landlord on imappurtenances, situate, &c. as tenant thereof, to one E. F. at and un- plied contract, der a certain yearly rent, to wit, &c. payable by the said C. D. to the said E. F. to wit, at, &c.; and thereupon heretofore, to wit, on, &c. at, payment of &c. in consideration that the said A. B. at the special instance, &c. ground rent (f). had become and was tenant to the said C. D. of the, said messuage and premises, with the appurtenances, at and under a certain yearly rent, to wit, &c. therefore payable by the said A. B. to the said C. D. he the said C. D. ndertook, &c. during the continuance of the said lastmentioned tenancy, to indemnify and save harmless him the said A. B. from and against the payment of the said yearly rent so payable to the said E. F. as aforesaid, and from and against any distress, or action,. costs, charges, damages, or expenses, which should or might be made, brought, arise, or happen, for or by reason of the non-payment thereof. And although the said tenancy of the said A. B. was and continued for a long time after the making of the said promise and undertaking of the said (f) As to declarations for not indemnifying, see ante, 127 8. When the declaration must be special, see 11 East. VOL II. 52. A stranger whose goods have been C. D. to wit, thence hitherto; yet the said A. B. in fact saith, that the 1. Declaration in debt, in K. B. by bill or latitat (a). Middlesex, (to wit.) (c) A. B. complains of C. D. being in the custody of the Marshal (d) of the Marshalsea of our lord the now king, before the king himself, of a plea that he render to the said A. B. the sum of L.(e), of lawful money of Great Britain, which he (a) See the form by bill, ante, 13. The form in K. B. by original, ante 9. In C. P. ante 17. In Exchequer, ante, 20. (b) As to the title of the term, see ante, '12. n. a. (c) As to the venue, see vol. i. Index, tit. Venue. (d) Ante, 12. n. c. (e) This sum is to be the aggregate of all the sums mentioned in the different counts. In debt the plaintiff owes to (ƒ) and unjustly detains from him. For that whereas, &c. Here state the subject matter (g) of the debt and the breach as post. 187, and conclude as follows: [To the damage of the said A. B. of L.- −(h), and therefore he brings his suit, &c. COMMON COUNTS. Pledges, &c. *II. ON SIMPLE CONTRACTS. [* 185] of the indebitatus And whereas also the said C. D. afterwards, to wit, on, &c. at (k), 1 Form of &c. aforesaid, was indebted to the said A. B. in the sum of L.like lawful money, for, &c. , [Here state the subject matter of the debt, whether for land, goods, work, or money, precisely as in assumpsit, ante, 37 to 83, and then proceed as follows:-] count in debt (i). may prove and recover less than the the defendant was indebted, &c, but (f) Debt is in general to be in the debet and detinet, C. D. Pleader. 2 W. 8: -Gilbert on Debt, 399, 400-1, 359.; but in actions by or against executors and administrators suing or sued in that character, in general it must be in the detinet only, see C. D. Pleader. 2 D.. 1. 2. 2 W. 8. 1 Saund. 1. 112. n. 1. 216. 3 East. 2. Lord Raym. 698.-So in the detinet for goods, Gilbert on Debt, 400-1, 359.-Husband and wife are to be sued in the debet and detinet, Gilb. 402-Omission of both the debet and deti net, is demurrable, 6. Mod, 306. (g) As to the declarations in debt in general, see Com. Dig. Pleader, 2 W. 7. &c. (h) This sum is in general merely nominal. 2 Selw. N. P. 468. If there be a demand for interest, insert a count for the same, in debt, as ante, 81. As to the conclusion in debt qui tam, see ante, 16 and 19. (i) This form is usually adopted: formerly the count did not state that was as follows: "And whereas also (b) This is sufficient, see 2 T. R. 28. COMMON COUNTS. 2. Form of the quantum meruit count in debt (m). [186] Money lent (n). Money paid (0). And to be paid by the said C, D. to the said A. B. when he the said C. D. should be thereunto afterwards requested (1); whereby and by reason of the said last-mentioned sum of money, being and remaining wholly unpaid, an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said sum of L.said sum above demanded. parcel of the And whereas also afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said A. B at the like special instance and request of the said C. D. had before that time *[Here state the subject matter of the debt, as in the quantum meruit counts in assumpsit, ante, 37 to 81, and then proceed as follows :-) He the said C. D. undertook, and then and there agreed to pay to the said A. B. so much money as he therefore reasonably deserved to have of the said C. D., when he the said C, D. should be thereunto afterwards requested. And the said A. B. avers, that he therefore reasonably deserved to have of the said C. D. the further sum of L, of like lawful money, to wit, at, &c. aforesaid, whereof the said C. D. afterwards, to wit, on, &c. aforesaid, there had notice, whereby an action hath accrued to the said A. B. to demand and have of and from the said C. D. the said last-mentioned sum of L.other parcel of the said sum above demanded. And whereas also the said A. B. afterwards, to wit, on, &c. aforesaid, åt, &c. aforesaid, at the like special instance and request of the said C. D. lent to the said C. D. and the said C. D. then and there borrowed of the said A. B. a large sum of money, to wit, the sum of L———, of like lawful money, to be paid by the said C. D. to the said A. B. when he the said C. D. 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 A. B. to demand and have of and from the said C. D. the said last-mentioned sum of L.- 2 other parcel of the said sum above demanded. And whereas also the said A. B. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, had paid, laid out, and expended a certain other (1) This appears to be unnecessary, "that C. D. bought," &c. Fortes. see note i. (m) As to this count, see vol. i. Index, tit. Debt. The quantum meruit count seems in no case to be necessary, ante, 36, n. d. 1 H. B. 249. Vin. Ab. tit. Miscasting. This is the form usually adopted, but it may be framed stating, 198. (n) See the precedents in Ast. Ent. 209. 2 Mall. 177-8.-The count may state that the defendant was indebted, &c. See ante, 185, note i. (0) Id. ibid. |