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5. RELATING

TO THE

CHARACTER, &c.

N. B. If the plaintiff declare in other counts, as he may, (5 T. R. 493. 1 Esp. Rep. 47. 2 T. R. 476. 6 T. R. 582.) for money due to him after the death of his partner, and on a contract merely with himself, 103. Counts insert those counts after the conclusion to the others, at the dagger(†), or on promises for work, &c. if the last set of counts be also inserted, introduce the following counts by the plaintiff immediately before the last account stated.

only.

And whereas also the said C. D. after the death of the said E. F. to [87] wit, on, &c. at, &c. was indebted to the said *A. B. &c. [Proceed in the usual form at the suit of one plaintff only, making the conclusion to these counts only, and not noticing E. F.]

104. Against a

Middlesex, (to wit.) A. B. complains of C. D. being, &c. For that surviving part- whereas the said C. D. and one E, F. in his lifetime, now deceased, ner for goods sold, &c. (d). and whom the said C. D. hath survived, on, &c. at, &c. were indebted to the said A. B. &c. for the work and labour, &c. of the said A. B. by the said A. B. before that time done, &c. for the said C. D. and E. F. and at their special instance, &c. and being so indebted, they the said C. D. and E. F. in consideration thereof, afterwards, and in the lifetime of the said E. F. to wit, on, &c. aforesaid, at, &c. aforesaid, undertook, &c. Quantum meruit as follows: "and whereas also afterwards, and in the lifetime of the said E. F. 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. and E. F. had before that time done, &c. for the said C. D. and E. F. they the said C. D. and E. F. undertook, &c. and the said A. B: avers, that he therefore reasonably deserved to have of the said C. D. and E. F. the further sum, &c. whereof the said C. D. and E. F. afterwards, and in the lifetime of the said E. F. on, &c. aforesaid, there had notice. Nevertheless the said C. D. and E. F. in the lifetime of the said E. F. and the said C. D. since the death of the said E. F. not regarding their said several promises, &c. but contriving, &c. have not, nor hath either of them as yet paid, &c. (although often requested so to do.) But to pay the same, or any part thereof, to the said A. B. the said C. D. and E. F. in the lifetime of the said E. F. wholly refused, and the said C. D. hath ever since the death of the said E. F. hitherto wholly refused and still refuses so to do." [See the N. B. at the dagger(†), ante page 85.—It may be advisable here to insert the following counts on promises by the surviving partner, which may be joined (e).] To the damage, &c.

Breach.

(d) As to these counts, Comb. 383. Vin. Ab. tit. Partners. D.-2 T. R. 478. 6 T. R. 363. [1 Johns. Cas. 405.]

(e) 5 T. R. 493. 1 Esp. R. 47. 2 T. R. 476. 6 T. R. 582.

TO THE

And whereas also the said C. D. and E. F. afterwards, and in the 5. RELATING lifetime of the said E. F. now deceased, to wit, on, &c. aforesaid, at, CHARACTER, &c. aforesaid, were indebted to the said A, B. in the further sum of &c. L., of like lawful money, for the work and labour, care and dili- 105. Counts on gence of the said A. B. by him the said A. B. before that time done, defendant promises by performed, and bestowed in and about the business of the said C. D. after the death and E. F. and for the said C. D. and E. F. and at their special instance of his partner. [⚫88] and request, and also in the further sum of L., of like lawful money, for divers goods, wares, and merchandize, by the said A, B. before that time sold and delivered to the said C. D. and E. F. and at their like special instance and request, 'and also in the further sum of L., of like lawful money, for money by the said A. B. before that time lent and advanced to, and paid, laid out, and expended for the said C. D. and E. F. and at their like special instance and request, and also in the further sum of L., of like lawful money, for other money, by the said C. D. and E. F. before that time had and received to and for the use of the said A. B. and being so indebted, and the said several sums of money, in this count mentioned being and remaining wholly due and owing, unpaid and unsatisfied, he the said C. D. in consideration thereof afterwards, and after the death of the said F. F. to wit, on, &c. at, &c. aforesaid, undertook, and then and there faithfully promised the said A. B. to pay him the said sum of money in this count mentioned when he the said C. D. should be thereunto afterwards requested (ƒ). *

Secondly, Husband and Wife.

and Feme for work, &c. or goods sold by the Feme be fore marriage

(8).

(to wit.) A. B. and C. his wife, complain of D. E. being, 106. By Baron &c. For that whereas the said D. E. whilst the said C. was sole and unmarried, to wit, on, &c. at, &c. was indebted to the said C. in the sum of L.- of lawful, *&c. for the work and labour of the said C. by her the said C. before that time done, &c. for the said D. E. and at his special instance, &c. (or, "for divers goods, wares, and merchandize, by the said C before that time sold and delivered to the said D. E." &c.) and being so indebted, he the said D. E. in consideration thereof afterwards, and whilst the said C. was sole and unmarried, to wit, on, &c. aforesaid, at, &c. aforesaid, undertook, &c. the said C. to

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(ƒ) If there be any demand for goods, &c. sold to the defendant since the death of his partner, here insert counts accordingly, not noticing the deceased, [2 Johns. Rep. 213.] and conclude with the account stated and breach applicable only to the counts founded on the

defendant's promise alone.

(g) Whenever the wife joins, her interest must appear. 2 Bla. R. 1236. [Ante, vol. i. 20.] See a form at suit of Baron and Feme sole trader, 1'Wenf: 381, Ante, 22.

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pay her the sum of money when he the said D. E. should be thereunto afterwards requested.- -The quantum meruit thereon is as follows:-And whereas also afterwards, and whilst the said C. was sole and unmarried, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said C at the like special instance, &c. had before that time done, &c. he the said D. E. undertook, &c. the said C. to pay her so much money, &c. as she, &c. And the said A. B. and C. his wife, aver that the said C. whilst she was sole and unmarried, therefore reasonably deserved to have, &c. whereof, &c. (Add the money counts -and the accounts stated-with the feme before marriage.) Yet the said D. E not regarding, &c. but contriving, &c. to deceive and defraud the said C. whilst she was sole and unmarried, and the said A. B. and C. his wife, since their intermarriage, in this' behalf, hath not as yet paid the said sums of money, or any part thereof, to the said C. whilst she was sole and unmarried, or to the said Á. B. and C. his wife (h) or either of them, since their intermarriage, (although often requested so to do.) But he to do this hath hitherto wholly refused, and still doth refuse to pay the same, or any part thereof, to the said A. B. and C. his wife. [It may be advisable, in some cases, here to add counts on promises since the marriage,] To the damage of the said A. B. and C. his wife, of L.- and therefore they bring their suit, &c. Pledges, &c...

(to wit.) A. B. complains of C. D. and E. his wife being, &c. For that whereas the said E. whilst she was sole and unmarried, to wit, on, &c. at, &c. was indebted, &c. for the work and labour, &c. before that time done, &c, for the said E. and at her special instance, &c. and being so indebted, she the said E. in consideration thereof afterwards, and whilst she the said E. was sole and unmarried, to wit, on, &c. aforesaid, at, &c, aforesaid, undertook, &c. The quantum meruit thereon is as follows :-And whereas also afterwards, and whilst the said E. was sole and unmarried, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said A. B. at the like special instance, &c. had before that time done, &c. for the said E. she the said E. undertook, &c. &c. and the said A. B. avers that he therefore reasonably deserved to have of the said E. whilst she was sole and unmarried, the further sum, &c. whereof the said E. afterwards, and whilst she was sole and unmarried, to wit, on, &c. there had notice. (Add the monies and account stated by the feme before marriage.) Yet the said E. whilst she was sole and unmarried, and the said C. D. and E. since their intermarriage, not regarding the said several promises and undertakings of the said E. but contriving, &c. have not nor hath either

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(h) As to the language of the breach, 3 Wils. 208. 1 Lord Raym. 284. 1 Vent. 119. 2. Rich. C. P. 293.

(i) No count on a promise by the feme, or by the husband during the coverture, can be added. 1 Taunton. 212

TO THE

&c.

of them as yet paid, &c. (although often requested so to do) but to pay 5. RELATING the same or any part thereof to the said A. B. the said E. whilst she CHARACTER, was sole and unmarried, wholly refused, and the said C. D. and E. his wife have ever since their intermarriage, hitherto wholly refused, and still refuse so to do. [It may be advisable, in some cases, here to add counts on promises since the marriage.] To the damage of the said A.

B. &c.

"

Thirdly,Assignees.

the bank.

ruptcy (k).

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(to wit.) A. and B. assignees of the estate and effects of C. 108. By the D. a bankrupt, according to the force, form and effect of the several assignees of a bankrupt, for statutes concerning bankrupts, *complain of E. E. being, &c. For that work before whereas the said E. F. on, &c. at, &c. was indebted to the said C. D. before he became bankrupt, in the sum of L., of lawful, &c. for the work and labour, &c. of the said C. D. by the said C. D. before that time done, &c. for the said E. F. and at his special instance, &c. and being so indebted, he the said E F. in consideration thereof, afterwards, and before the said C. D. became bankrupt, to wit, on, &c. aforesaid, at, &c. aforesaid, undertook, &c.- -The quantum meruit is as follows :—And whereas also, afterwards, and before the said C. D. became bankrupt, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said C. D..at the like special, instance, &c. had be-. fore that time done, &c. and the said A. and B. assignees as aforesaid, aver that the said C. D. before he became bankrupt, therefore reasonably deserved to have, &c. whereof, &c. Yet the said E. F. not regard- Breach ing, &c. but contriving, &c. to deceive and defraud the said C. D. before he became bankrupt, and the said A. and B. as assignees as aforesaid, since the said C. D. became bankrupt, in this behalf, hath not as yet paid the said several sums of money, or any, or either of them, or any part thereof, to the said C. D. before he became bankrupt, or to the said A. and B. assignees as aforesaid, or either of them, since the said C. D. became bankrupt (although often requested so to do.) But he to do this hath hitherto wholly refused, and still refuses to pay the same, or any part thereof, to the said A. and B. åssignees as aforesaid†. To the damage of the said A. and B. as assignees as aforesaid, of L., and therefore they bring their suit, &c. Pledges, &c.

(*) This form of declaring without generally, without naming the former setting out the petitioning creditor's, assignee, 5 Geo. 2. c. 30. s. 31, 10 East. debt, commission, &c. is settled to be 61. good, Lutw. 274. 277. and 1. B. & P. 448. 2 Ld. Raym. 1548. Carth. 29. When an assignee has been removed the last assignee may sue as assignee

When assignees should declare without naming themselves assignees, see Cowp. 569. As to joinder of different demands, see 3 T. K. 433. 779. ante, 1 vol, 16.

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5. RELATING

As to the joinder of different counts in an action by assignees, *see 3 T. R. 433. 779. When there has been any promise, or acknowledge. ment to the assignees, or cause of action accruing after the act of bank[92] ruptcy, it may be expedient at the dagger(†) to add the following counts

TO THE CHARACTER, &c.

109. The like And whereas also the said C. D. before the said E. F. became bankon promises to the assignees rupt, to wit, on, &c. at, &c. was indebted to the said E. F. in the furafter the bank. ther sum of L.- of like lawful money for the work and labour, ruptcy. care and diligence of the said E. F. by him the said E. F. before that time done, performed, and bestowed, in and about the business of the said C. D. and for the said C, D. and at his special instance and request, and also in the further sum of L.of like lawful money,

Account stated.

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for divers goods, wares, and merchandize, by the said E. F. before that time sold and delivered to the said C. D. and at his like spécial instance and request, and also in the further sum of L.- -, of like lawful money, for money by the said E. F. before that lent and advanced to, and paid, laid out and expended for the said C. D. and at his like special instance and request, and also in the further sum of L., of like lawful money, for other money, by the said C. D, before that time had and received, to and for the use of the said E. F. and being so indebted, and the said several sums of money in this count mentioned, being and remaining wholly due and unpaid, he the said C. D. in consideration thereof aftewards, and after the said E. F. became bankrupt, to wit, on, &c. at, &c. aforesaid, undertook, and then and there faithfully promised the said A. and B. as assignees as aforesaid, to pay them the said several sums of money in this count méntioned, when he the said C. D. should be thereunto afterwards requested ().And whereas also the said C. D. afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, accounted with the said A. and B. as assignees as aforesaid, of and concerning divers other sums of money from the said C, D. to the said A. B. as assignee, as aforesaid, before that time due and owing and then in arrear and unpaid, and upon that accounting the said C. D. was then and there found to be in arrear, and indebted to the said A. and B. as assignees as aforesaid, in the further sum of L., of like lawful money, and being so found in arrear and indebted, and the said last-mentioned sum of money be ing and remaining wholly unpaid and unsatisfied, he the said C. D. in

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