TO ANOTHER. 9. TO PAY FOR as he the said E. F. should have occasion for and require of the said GOODS SOLD A. B. in the way of his the said A. B.'s trade and business of a hemp merchant, he the said C. D. undertook, and then and there faithfully promised the said A. B. to be accountable to him the said A. B. for whatever goods he the said A. B. should sell and deliver to the said E. F. as aforesaid. (7) And the said A. B. avers that he confiding in the said promise and undertaking of the said C. D. did afterwards, to wit, on, &c. at, &c. aforesaid, sell and deliver to the said E. F. on certain credit, then and there agreed upon between the said A. B. and E. F. certain goods of great value, which he the said E. F. then and there had occasion for and required of the said A. B. in the way of his the said A. B.'s said trade and business, and at and for certain reasonable prices then and there agreed upon by and between the said A. B. and the said E. F. (or, if no stipulated price, say, “at and for certain reasonable sums of money amounting, &c.") amounting in the whole to a large sum of money, to wit, the sum of L.———, of lawful money of Great Britain, and that although the said credit and the time for payment of the price of the said goods, by the said E. F. to the said A. B. hath long since elapsed, yet the said E. F. hath not (although He was afterwards, to wit, on, &c. at, &c. aforesaid requested by the said A. B. so to do) (ƒ), as yet paid the said sum of L.——— or any part thereof, but hath hitherto wholly neglected and refused so to do, to wit, at, &c. aforesaid, of all which said premises the said C. D. afterwards, to wit, on, &c. aforesaid, there had notice. Yet the said C. D. not regarding his said promise and undertaking, but contriving, &c. hath not as yet accounted to him the said A. B. or paid him the said sum of money, or any part thereof, for the said goods, or any part thereof, (although he the said C. D. afterwards, to wit, on, &c. at, &c. aforesaid, was requested by the said A. B. so to do,) and hath hitherto wholly neglected and refused, and still wholly neglects and refuses so to do, and the said sum of L.- still remains wholly due and unpaid to the said A. B. to wit, at, &c. aforesaid.-[Add such special counts as may be necessary, varying the statement of the promise, and of the averments, so as to meet the evidence, and if there be any doubt whether the defendant be immediately liable, add counts for goods bargained and sold-and sold and delivered-money had and received -and on an account stated.] [127] (f) Cro. Jac. 500. Cro. Eliz. 85, 91. 2 Hen. Bla. 131. 1 Stra. 88. (7) Where the guaranty is simultaneous with the original undertaking, and they form but one transaction, it is unnecessary to state the consideration in the memorandum; the consideration passing between the creditor, and the principal debtor, is alone sufficient to support the promise of the guaranty, and may bo proved by parol. 8 Johns. Rep. 29. 11 Johns. Rep. 221. NIFY. the accommo. dation of de For that whereas heretofore, to wit, on, &c. at, &c. in consideration 10. TO INDEMthat the said A. B. for the accommodation and at the special, &c. of 10. By accepthe said C. D. would accept a certain bill of exchange in writing, tor of a bill of bearing date the day and year aforesaid, and made and drawn by the exchange for said C. D. on the said A. B. and whereby the said C. D. required the said A. B. two months after the date thereof, to pay to the order of him fendant for not the said C. D. the sum of 4.50. as for value received (h), and would providing money for pay. deliver the same so accepted, to the said C. D. in order that he the ment thereof, said C. D. might negotiate the same for his own proper use and &c. (8 · benefit, he the said C. D undertook, and then and there faithfully [128] promised the said A. B. to provide money for the payment of the said bill of exchange when the same should become due and payable, and to indemnify and save harmless the said A. B. from any loss or damage, for or by reason of his acceptance of the said bill of exchange as aforesaid. And the said A. B. avers, that he, confiding in the said promise and undertaking of the said C. D. did afterwards, to wit, on, &c. at, &c. aforesaid, accept the said bill of exchange, and deliver the same so accepted to the said C. D. for the purpose aforesaid; and although the said bill of exchange, so accepted as aforesaid, was afterwards, to wit, on, &c. aforesaid, a &c. aforesaid, negotiated by the said C. D. for his own proper use and benefit, and the same hath long since become due and payable, to wit, at, &c. aforesaid; yet the said C. D., not regarding his said promise and undertaking, but contriving and fraudulently intending craftily and subtly to deceive, &c, in this behalf, did not, nor would provide money for the payment of the said bill of exchange when the same became due and payable, nor indemnify or save harmless him the said A. B, from any loss or damage, for or by reason of his acceptance of the said bill of exchange as aforesaid, but wholly neglected and refused so to do. By means and in consequence whereof, the said A. B. as such acceptor of the said bill of exchange as aforesaid, afterwards, to wit, on, &c. at, &c. aforesaid, ર (g) See a similar action and the plead ings, 3 Wils. 346.—A contract to indemnify is generally implied, as on the part of a defendant to indemnify a person who becomes bail for him, 3 Wils. 262.; or surety for him at his request, 2 T R. 105. 7 T. R. 568. 2 B. and P. 268.-If the thing to be done be obviously illegal, no contract to indemnify can be implied, but otherwise where the act is not apparently illegal, 8 T. R. 186. When the debt of the princi. pal has been paid by the surety, a common count for money paid is sufficient. [8 Johns, Rep. 206. 252.] but when a VOL. II. surety has not actually paid the debt in (h) The bill of exchange may be des- N NIFY. 10. TO INDEM- Was called upon, and forced, and obliged to pay, and did then and there pay to one the holder thereof, the said sum of money in the said bill of exchange specified, together with certain interest thereon, and the costs of a certain action before then brought in the court of our lord the king, before the king himself (i), on the said bill of exchange by the said against the said A. B., in the whole amounting to a large sum of money, to wit, the sum of *L., of lawful, &c. and by means of the said several premises the said A. B. hath been and is damnified to the amount thereof, to wit, at, &c. aforesaid. [Add® all the money counts, and account stated, and common breach applicable to those counts.] [⚫ 129] 11. For not marrying. First count, to marry upon For that whereas heretofore, to wit, on, &c. (x) at, &c. in consideration that the said A. B: being then and there sole and unmarried, at the special, &c. of the said C. D. had then and there undertaken, and request (y). faithfully promised the said C. D. to marry him the said C. D. when she the said A. B. should be thereunto afterwards requested, he the said C. D, undertook, and then and there faithfully promised the said A. B. to marry her the said A. B. when he the said C. D. should be thereunto afterwards requested. And the said A. B. avers, that she, confiding in the said promise and undertaking of the said C. D., hath always from thence hitherto remained and continued, and still is, sole and unmarried, and hath been, for, and during all the time aforesaid, and still is, ready and willing to marry him the said C. D., to wit, at, &c. aforesaid. And although the said A. B., after the making of the said promise and undertaking of the said C. D., to wit, on, &c. at, &c. aforesaid, requested the said C. D. to marry her the said A. B.; yet the said C. D. not regarding his said promise and undertaking, but, contriving and fraudulently intending, craftily and subtly to deceive and injure the said A. B. in this respect, did not, nor would, at the said time when he was so requested as aforesaid, or at any time before (i) According to the fact. All these costs, &c. are recoverable. 1 Atk. 262. (x) This day is not material. See the precedents in 2 Wentw. 487 to 492. and Index to vol. ii. This action is sustainable only where the contract to marry is mutual, 1 Rol. Ab. 22. 1. 5. 1 Sid. 180.. 1 Lev. 147. Carth. 467.-But though one of the parties be an infant, yet the contract to marry will be obligatory on the other side, 2 Stra. 937. Bac. Ab. Infant The action is sustainable by a mau 4 against a woman, Carth. 467. 1 Salk. *or afterwards, marry her the said A. B., but hath hitherto wholly ne- 11. FOR NOT glected and refused, and still doth neglect and refuse so to do. (8) MARRYING. [130] man. If the defendant have married another woman, no request need be Second count, averred, but the count is as the last as far as the dagger (†), except for marrying another woin the statement that the plaintiff still is ready to marry defendant," and then concludes with the following allegation: "Yet the said C. D. not regarding, &c. but contriving, &c. after the making of his said promise and undertaking, to wit, on, &c. at, &c. aforesaid, wrongfully and injuriously married a certain other person, to wit, one con trary to his said promise and undertaking, to wit, at, &c. aforesaid." reasonable And whereas also heretofore, to wit, on, &c. aforesaid, at, &c. afore- Third count, said, in consideration, that the said A. B. being then and there unmar- to marry in a ried, at the like special instance and request of the said C. D. had time. then and there undertaken, and faithfully promised the said C. D. to marry him the said C. D., he the said C. D. undertook, and then and there faithfully promised the said A. B. to marry her the said A. B. in a reasonable time then next following. And the said A. B. avers, that she, confiding in the said last-mentioned promise and undertaking of the said C. D., hath always hitherto remained and continued, and still is, sole and unmarried, and hath been for and during all the time last aforesaid, and still is ready and willing to marry the said C. D., to wit, at, &c. aforesaid; and although a reasonable time for the said C. D. to marry her the said A. B. hath clapsed since the making of the said last-mentioned promise and undertaking of the said C. D. Yet the said C. D. not regarding his said last-mentioned promise and undertaking, but contriving, and fraudulently intending craftily and subtly to deceive and injure the said A. B. in this behalf, did not, nor would, within such reasonable time as aforesaid, or at any time afterwards, marry her the said A. B. but hath hitherto wholly neglected and refused so to do, to wit, at, &c. aforesaid, in the county aforesaid. [131] And whereas also heretofore, to wit,, on, &c. at, &c. *aforesaid, in Fourth count, consideration that the said A. B. being then and there sole and un- to marry gemarried, at the like special instance, &c. had then and there undernerally. taken, and faithfully promised the said C. D. to marry him the said C. D., he the said C. D. undertook, and then and there faithfully promised the said A. B. to marry her the said A. B. And the said A. B. avers, that she, confiding in the said Jast-mentioned promise and undertaking of the said C. D. hath always from thence hitherto re (8) It is not in all cases necessary for the plaintiff to prove an offer to marry the defendant. Johnson v. Caulkins, 1 Johns. Gas. 116. MARRYING. 11. FOR NOT mained and continued, and still is, sole and unmarried, and hath been for and during all the time last aforesaid, and still is ready and willing to marry him the said C. D., to wit, at, &c. aforesaid; and although a reasonable time for the said C. D. to marry the said A. B. hath elapsed since the making of the said fast-mentioned promise and undertaking of the said C. D.; and although the said A. B. after the making of the said last-mentioned promise and undertaking of the said C. D., to wit, on, &c. at, &c. aforesaid, requested the said C. D. to marry her, the said A. B., yet the said C. D. not regarding his said last-mentioned promise and undertaking, but contriving, and fraudulently intending craftily and subtly to deceive and defraud the said A. B. in this respect, did not, nor would, at the said time when he was so requested, as last aforesaid or at any time before or afterwards, marry the said A: B., but on the contrary thereof, he the said C. D. at the said time when he was so requested as last aforesaid, wholly refused then or ever to marry her the said A. B., to wit, at, &c. aforesaid. To the damage &c. 12. For not receiving a hied servant into defen. dant's ser. vice (o). [132] For that whereas heretofore, to wit, on, &c. at, &c. in consideration that the said A. B. at the special, &c. had then and there agreed with the said C. D. to enter into the service of the said C. D. as a lady's maid, and would serve her the said C. D. in that capacity, at certain wages, after the rate of L. a year, to be therefore paid by the said *C. D. to the said A B. during her continuance in such service, she the said C. D. undertook, and then and there faithfully promised the said A. B. to receive her into the service of the said C. D. in the capacity aforesaid, and to retain and employ her in such service at the wages aforesaid. And the said A. B. avers, that she, confiding in the said promise and undertaking of the said C. D. hath always been ready and willing to enter into the service of the said C. D. in the capacity aforesaid, and to serve her the said C. D. in that capacity for the wages aforesaid. And although the said A. B. afterwards, to wit, on, &c. at, &c. aforesaid, requested the said C. D. to receive her the said A. B. into the service of her the said CD. in the capacity aforesaid, and to retain and employ her in such service at the wages aforesaid, Yet the said C. D. not regarding her said promise and undertaking, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said A. B. in this behalf, did not, nor would, at the said time when she was so requested as aforesaid, or at any time after- . wards, receive the said A. B. into the service of her the said C. D. or (0) See precedents, 2 Wentw. 505 to 531-Index to 2d vol.--Where the service has been actually performed, the declaration may be for work and labour generally, Fitz. 302.-but where the defendant has refused to employ the plaintiff, the declaration must be special. 2 East. 145. Cowp. 437. 4 Esp. Rep. 77. |