TRIBU PARTYWALLS. FOR CON- Wall, before then built at the expense of the said E. F. in his life-time, agreeTIONS TO ably to the directions of the said Statute, between a certain messuage or building, situate and being within the weekly bills of mortality, and certain ground there also situate next to and adjoining the said last-mentioned party-wall, and which said last-mentioned party-wall had before then been cut into and made use of by the said defendant, who, before and at the time of cutting into and making use of the same, was the owner of, and person entitled to the improved rent of such last-mentioned ground, and being so indebted, &c. undertook, &c.—[Add common counts as directed ante, 248.] TO PAY MONEY FOR FORBEAR ANCE TO DEFEND ANT. On a promise to pay the costs of an action within a week, in considera tiff staying proceedings (2). XV. TO PAY MONEY FOR FORBEARANCE TO DEFENDANT. For that whereas before the making of the promise and undertaking of the said defendant hereinafter next mentioned, *a certain action had been commenced and prosecuted by and at the suit of the said plaintiff against the said defendant, in the court of our said lord the now king, before the king himself (m), (or if in C. P. say " in the court of our lord the king, before his Mation of plain- jesty's justices of the bench at Westminster,") for the recovery of a certain sum of money, to wit, the sum of £- then and at the time of the making of the promise and undertaking of the said defendant hereinafter next mentioned, *252 ] due and owing from the said defendant to the said plaintiff. And which said action, at the time of the making of the said promise and undertaking of the said defendant hereinafter next mentioned, was depending in the said court, to wit, at, &c. (venue) aforesaid, whereof the said defendant then and there had notice. And thereupon heretofore, to wit, on, &c. (day of promise, or about it,) at, &c. aforesaid, in consideration of the premises, and that the said plaintiff, at the special instance and request of the said defendant, would(n) cease to prosecute the said action, and would stay all further proceedings therein(1), he the said defendant undertook, and then and there faithfully promised the (1) See forms, Plead. A. 95, 127. See a form, ante, 245, against an executor, on his promise to pay a legacy in consideration of forbearance. For bearance to sue is a good consideration for a premise where it is absolute only, Cro. Jac. 683; or for a definite portion of time, Cro. Jac. 47; or a reasonable time, 1 Roll. Abr. 24, pl. 33; forbearance for a title, 1 Roll. Abr. 23, pl. 5; or for some time, id. pl. 26, is not sufficient. Forbearance to sue seems an insufficient consideration, unless a right of action be known to have existed, 4 East, 455.-1 New Rep. 172. Assumpsit in consideration that the plaintiff, at the request of the defendant, would consent to suspend proceedings against A. On a cognovit, defendant promised to pay 301. on account of the debt (for which the cognovit was given) on the 1st of April then next. Averment that the plaintiff did suspend the proceedings on the cognovit. The plaintiff, at the trial, proved the following agreement in writing:-"The plaintiff having at my request consented to suspend proceedings against A. I do hereby, in consideration thereof, personally promise to pay 301. on account of the debt, on the Ist day of April next;" held, that as the request must have preceded the consent to suspend proceedings, the contract might be declared on as an executory contract, and, consequently, that there was no variance. Secondly, that the consideration for the promise was sufficient, because it must be taken as a consent to suspend proceedings, at least until the 1st of April. Thirdly, that after verdict, the averment that plaintiff had suspended proceedings, without specifying for what period, was sufficient. 7 Bar. & Cres. 423.-1 M. & R. 708, S. C. It is not necessary to state the subject-matter of the debt, Com. Dig. Action on the case on Assumpsit. F. 8. H. 3.-Hob. 18. Though it must be shown that there was some cause of action against the defendant, or some other person, 4 East, 455.-1 New Rep. 172.-4 Taunt. 177.-Post, 253, note. (m) The court must be accurately described, S M. & S. 166. (n) When it suffices to declare on an executory consideration, though the contract was in its terms on an executed consideration, see 7 Bar. & Cres. 423. 1 Mo. & Ry. 708, S. C.-Ante, 251, note. (1) It is unnecessary to allege that the plaintiff promised to forbear. 10 Mass. Rep. 230. 237. TO PAY MONEY FOR ANCE TO ANT. said plaintiff to pay the costs of commencing and prosecuting the said action, in a week then next following. And the said plaintiff avers, that he, confiding FORBEARin the said promise and undertaking of the said defendant, did then and there cease (o) to prosecute the said action, and hath thence hitherto stayed all further proceedings therein; and that the costs of commencing and prosecuting the said action amounted to a large sum of money, to wit, the sum of £(state enough) of lawful money of Great Britain, whereof the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. (venue) had notice. And although a week from the time of the making the said promise and undertaking of the said defendant hath long since elapsed, to wit, at, &c. (venue) aforesaid; yet the said defendant, not regarding the said promise and undertaking, but contriving and intending to deceive and defraud the said plaintiff in this respect, hath not as yet paid the said costs of commencing and prosecuting the said action, or any part thereof, (although he the said defendant afterwards, and after the expiration of a week from the time of making his said promise and undertaking, to wit, on, &c. (any day before the title of declaration) at, &c. aforesaid, was requested by the said plaintiff so to do.) But he so to do hath hitherto wholly neglected and refused, and still doth neglect and refuse, to wit, at, &c. (venue) aforesaid.-[If any doubt as to the exact nature of the promise, add another or more special counts accordingly. Add a count on the original debt-money paid--the account stated—and the usual breach applicable to those counts only.] XVI. TO PAY MONEY FOR FORBEARANCE TO THIRD PERSONS. For that whereas one E. F. before and at the time of the making of the promise and undertaking of the said defendant hereinafter next mentioned, was indebted to the said plaintiff in a certain sum of money, to wit, the sum of £— *(state enough) of lawful money of Great Britain(q), to wit, at, &c. (venue); and thereupon heretofore, to wit, on, &c. (day of guarantee or about it) at, &c. (0) See id. (P) Observe the notes to the preceding form. See forms, Morg. 152, 166.-Plead. A. 129.-Rob. Ent. 100.-2 Went. 405, &c. and Index to ditto.See also post, 314, precedent for declaration on guarantee for goods sold. The mere promise of a third person to pay the debt of another, without a stipulation by the plaintiff to forbear, or some other new consideration, is not valid, 1 Saund. 211 a.-Com. Dig. Action on the case on Assumpsit, B. 1, 2. The promise of an heir, who has no assets by descent, to pay the debt of his ancestor in consideration of forbearance, is not binding (2 Saund. 137.-Com. Dig. Action of Assumpsit, F. 8.-4 East, 455; Sed vide, 4 Johns. Rep. 237, 239. see the form of declaring against an heir, 2 Saund. 135); but a promise by an executor, in consideration of forbearance, is valid, though he have no assets at the time, because by the forbearance the plaintiff is precluded from obtaining judgment of assets, quando acciderint, 2 Saund, 137. -Ante, 245, notes; and see a form, ante, 245. See form of declaration by baron and feme on 848. As to what is, or is not a collateral promise within the Statute, see 3 Chit. Com. Law, 318 to 322; 1 Chit. Coll. Stat. 369; 1 B. & A. 297. (q) It is not necessary to state the subject-matter of the debt, though some demand recoverable at law or in equity, must be stated, 4 Taunt. 117.Ante 251, n. (1). It is better not to state it with unnecessary particularity, Peake's Rep. 117.— Though a larger sum be stated under a videlicet to be due, it need not be proved, 8 Taunt. 197.2. J. B. Moore, 114, S. C. *253 ] TO PAY MONEY FOR FORBEAR ANCE TO THIRD PERSONS. On a promise, that if plaintiff would withdraw dis tress for rent on the goods of a third person, defendant would pay the rent (w). in consideration of the premises, and that the said plaintiff, at the special in- For that whereas before the making of the said distress hereinafter next mentioned, one J. S. held, occupied, and enjoyed certain premises, with the appurtenances, as tenant thereof to the said plaintiff, by virtue of a certain demise thereof before then made, at a certain rent, to wit, the rent of (£20) per annum, to wit, at, &c. (venue) and because a certain sum of money, to wit, the sum of £10, of the aforesaid rent, at the time of making the distress hereinafter mentioned, was then and there due and owing from the said J. S. to the said plaintiff, he the said plaintiff, during the said tenancy, and before the making of the promise and undertaking of the said defendant, hereinafter last-mentioned, to wit, on, &c. (day of distress, or about it) to wit, at, &c. (venue) took and distrained divers goods and chattels of the said J. S. then being in and upon the said demised premises, as a distress for the (r) See 7 B. & C. 423.—1 M. & R. 708, S. C. Ante, 251, n. (8) Though the promise must, under the stat. 29 Car. 2. c. 3. s. 4, be in writing, and the whole consideration must be stated in such writing, see 4 B. & A. 595. 5 East, 10.-6 J. B. Moore, 86; it need not be so stated in the declaration, 1 Saund. 276, n. 1. See Bing. 529. (t) From Cro. Jac. 500.-Cro. Eliz. 85, 91.-2 Hen. Bla. 131.-it seems necessary to aver this request. Sed quære, and sec 1 Stra. 88, 9. If it be not necessary to state it, the statement will not require to be proved, see Plowd. 128. (u) It should seem, from 1 Sid. 178.-2 Roll. 738, 1. 15, that this averment of the non-payment by the principal is unnecessary, and that it suffices to aver merely a non-payment by the defendant. said sum of money, to wit, the said (w) A promise of this nature, whether the distress was begun or not, is not within the Statute of Frauds, and need not be in writing. 3 Burr. 1886. 2 Wils. 308, S. C.; and see 4 Taunt. 117.— 3 Esp. 86. As to what is a sufficient commencement of a distress, see 5 Bingh. 10. 8 B. & Cres. 456.; and see a declaration on a promise that in consideration plaintiff would give up his lien on goods for debt of third person, defendant promised to pay debt. Clancy v. Piggott, 4 Nev. & M. 496. On a promise that in consideration that plaintiff would withdraw distress made on effects of a bankrupt, defendant, being his assignee, promised that the amount of distress should be paid to plaintiff out of the produce of the same effects distrained on. Stephens v. Pell, 4 Tyr. 6: and see pleas and law, id. > (1)In a declaration on a promise to pay, in consideration that the plaintiff would forbear to sue another, it is sufficient to state that other to be indebted, without averring that the debt was then pavable. Jones v. Potter, 5 Serg. & Rawle, 519. sum of £10, so then due and owing to the said plaintiff as aforesaid, and the said plaintiff then intended, after the expiration of five days after the making of the said distress, to sell the said distress, according to the form of the Statute in such case made and provided, &c. whereof the said defendant then and there had notice; and thereupon, heretofore, to wit, on the day and year aforesaid, at, &c. (venue) in consideration that the said plaintiff, at the special instance and request of defendant, would withdraw the said distress, and forbear to proceed on such distress, he the said defendant undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of £10 in one month then next following-(let this be according to the promise.) And the said plaintiff avers, that he, confiding in the said promise and undertaking of the said defendant, did then and there withdraw the said distress, and forbear to proceed in such distress, and hath thence hitherto forborne to proceed on the same, to wit, at, &c. (venue.) And although a month from the making of the said promise and undertaking hath long since elapsed, and although the said J. S. afterwards, to wit, on, &c. (any day before the title of the declaration) at, &c. (venue) aforesaid, was requested(x) by the said plaintiff to pay him the said sum of £10, yet the same still wholly remains due and unpaid by him, of all which said premises the said defendant then and there had notice. Nevertheless, the said defendant, not regarding his said promise and undertaking, but contriving and intending to deceive and defraud the said plaintiff in this behalf, hath not paid to the said plaintiff the said sum of £10 or any part thereof, and the said sum of £10 still remains wholly due and unpaid to the said plaintiff, to wit, at, &c. (venue) aforesaid.-[Add another count more general, depending on the nature of the agreement, and commencing at once with the statement of plaintiff's having distrained, without stating the terms of tenancy. If there be any doubt as to the distress having been actually commenced, merely state defendant's intention to distrain, and that defendant promised to pay the rent if he would forbear doing so.-Add counts for money paid, had and received, account, and a breach applicable thereto.] ΤΟ ΡΑΥ ANCE TO PERSONS. *XVII. TO PAY MONEY IN CONSIDERATION OF MARRIAGE. [ *254 ] For that whereas heretofore, to wit, on, &c. (day of promise, or about it) at, &c. in consideration that the said plaintiff, at the special instance and (1) This request does not seem necessary. (y) See other forms, 2 Wentw. 491, 2. 1 Mod. Ent. 128.-Pl. A. 51, 137.-Morg. 143. And see form of declarations on mutual promises to marry, post, 321.-2 Went. 487, 8, 9. Pl. A. 47, 99.-2 Rich. C. P. 128.-1 Sid. 180. When action lies.-An action will lie on a contract or promise to pay money in consideration of marriage, Cro. Eliz. 63. If the promise be to pay 20 French pieces, it is sufficiently certain, and shall be intended to mean French crowns, Cro. Car. 194. So if it be to pay 1007. at a time to come, and in the mean time, after the rate of 81., the promise is good and not usurious. 1 Vin. Ab. 297, pl. 15.—2 Sid. 116. S. P. So if a man promises an TO PAY MONEY IN CONSIDERATION OF MARRIAGE. On a promise to pay other, in consideration of his marrying his daughter, 2001. if A promise by a father after his daughter's mar- TO PAY MONEY IN RATION OF MARRIAGE. Second count, to pay in a reasonable time. request of the said defendant, would marry one E. F. he the said de.end CONSIDE undertook, and faithfully promised the said plaintiff to pay him the sum of of lawful money of Great Britain, whenever after such marriage he the 'd defendant should be thereunto requested; and the said plaintiff in fact saith, at he, confiding in the said promise and undertaking of the said defendant, afterwards, to wit, on, &c. at, &c. aforesaid(2), did marry the said E. F. whereof the said defendant, afterwards, to wit, on, &c. at, &c. aforesaid had notice; yet the said defendant, not regarding his said promise and undertaking so by him in manner and form aforesaid made, but contriving and craftily and subtly intending to deceive and defraud the said plaintiff in this respect, hath not yet paid the said sum of money, or any part thereof, to the said plaintiff, although he the said defendant, afterwards, to wit, on, &c. and oftentimes afterwards, to wit, at, [*255] &c. was requested by the said *plaintiff to pay him the same, but the said defendant, to pay the same, or any part thereof to the said plaintiff, hath hitherto wholly refused, and still doth refuse, to wit, at, &c. aforesaid. And whereas also afterwards, to wit, on the day and year first above-mentioned, at, &c. aforesaid, in consideration that the said plaintiff, at the like special instance and request of the said defendant, would marry the said E. F. he the said defendant undertook, and then and there faithfully promised the said plaintiff, within a reasonable time after such marriage should have taken place, to pay unto him the said plaintiff, the sum of £— of like lawful money; and the said plaintiff, in fact says, that he, confiding in the said last-mentioned promise and undertaking of the said defendant, afterwards, to wit, on, &c. at, &c. aforesaid, did marry the said E. F. whereof the said defendant, afterwards, to wit, on, &c. at, &c. aforesaid, had notice; yet the said defendant, not regarding his said last-mentioned promise and undertaking, but contriving and fraudulently intending, craftily and subtly to deceive and defraud the said plaintiff in this respect, hath not yet paid the said last-mentioned sum of money, or any part thereof to the said plaintiff, although a reasonable time for that purpose since the said lastmentioned marriage so took effect as aforesaid, hath long since elapsed; and although the said defendant afterwards, to wit, on, &c. last aforesaid, and oftentimes afterwards, at, &c. aforesaid, was requested by the said plaintiff to pay him the same, but the said defendant, to pay the same or any part thereof hath hitherto wholly refused, and still doth refuse, to wit, at, &c. aforesaid.-[Another count may be added upon an executed consideration.] may have the action, for she is the meritorious cause Form of Declaration.-An inducement of a riage is unnecessary, and is usually omitted in modern pleadings; a promise to the plaintiff must be shown in express terms: an allegation that the defendant asserted and published that he would give 100l. to whoever should marry his daughter, is too indefinite and uncertain, 1 Rol. Ab. 6 M. pl. 1.Noy, 11. Cro. Jac. 4. The marriage need not be stated to have taken place, ad instantiam defendentis, for that will be intended, Cro. Car. 194. Indebitatus assumpsit will not lie, 1 Vent. 268. (z) The words "at the special instance and request of the defendant" are unnecessary here, Cro. Car. 194. |