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AGAINST
AGENTS,

&c.

stance and request of the said defendant, had delivered to the said defendant FACTORS, divers other goods and chattels of great value, to wit, of the value of £- to be sold and disposed of by the said defendant for the said plaintiff, he the said defendant undertook, and then and there faithfully promised the said plaintiff to render a just and reasonable account of the said last-mentioned goods and chattels to the said plaintiff, whenever afterwards he the said defendant should be thereunto requested; yet the said defendant not regarding his said lastmentioned promise and undertaking, but contriving and intending to injure and defraud the said plaintiff in this respect, hath not rendered to the said plaintiff a just and reasonable or other account of the said last-mentioned goods and chattels, or any part thereof (although the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, was requested by the said plaintiff so to do), but the said defendant hath hitherto wholly refused, and still wholly refuses so to do.-[Add counts for money had and received, the [ *344 ] account stated, and breach, if there be any reason to suppose *the goods have been lost or injured by carelessness, add the general count, as ante, 341.]

Against

agent for

goods consigned at different times for sale(l).

For that whereas heretofore, to wit, on, &c. (day of first consignment, or not account- about it) at, &c. (venue) in consideration that the said plaintiff, at the special ing for instance and request of the said defendant had sent and consigned to the said defendant divers goods and chattels of the said plaintiff of great value, to wit, of the value of £-in order that the said defendant might sell and dispose of the same for the said plaintiff, for commission and reward to the said defendant in that behalf, he the said defendant undertook, and then and there faithfully promised the said plaintiff to endeavor to sell and dispose of the said goods and chattels for and on the account of the said plaintiff, and to render a just and reasonable account of the said sales thereof to the said plaintiff in a reasonable time then next following, and to pay over the proceeds of such sales to the said plaintiff, when he the said defendant should be thereunto reasonably requested by the said plaintiff; and although the said defendant then and there had and received the said goods and chattels, for the purpose aforesaid, and afterwards, to wit, on the day and year aforesaid, and on divers other days and times afterwards, and before the commencement of this suit, sold the same, for and on account of the said plaintiff, for a large sum of money, to wit, the sum of £to wit, at, &c. (venue) aforesaid (m); and although a reasonable time for the said defendant to render such account as aforesaid, and paying over the produce of the said sales to the said plaintiff hath long since elapsed; yet 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, (although he was afterwards, to wit, on, &c. (any day before the title of declaration), at, &c. (venue) requested by the said plaintiff so to do,) as yet rendered to the said plaintiff a just and reasonable account of the said sale, or paid over the proceeds thereof to the said plaintiff, but hath hitherto wholly neglected

(1) See ante, 342, note.

(m) Quare, If this should not aver the receipt of the money. 6 Taunt. 45.-2 Esp. Rep. 710.

It should seem not, for the promise is merely to account for the sale, and not for the proceeds only.

and refused so to do, to wit, at, &c. (venue) aforesaid.—[Add a count like the last preceding form, and the counts there directed.]

AGAINST
AGENTS,
FACTORS,
&c.

person em

ployed to amount of a certain debt due to plaintiff, from a

settle the

third person, for not acmonies recounting for

ceived by

him.

*For that whereas heretofore, to wit, on, &c. at, &c. (venue) in considera- [ *345 ] tion that the said plaintiff, at the special instance and request of the said defend- Against a ant, had authorized and empowered the said defendant to settle the amount of a certain debt then due and owing from one E. F. to the said plaintiff, and to obtain payment and satisfaction of the said debt from the said E. F. he, the said defendant, undertook, and then and there faithfully promised the said plaintiff to render a just account to the said plaintiff of all monies, and securities for money, which he the said defendant should receive for and on account of the said debt, and to pay and deliver all such monies and securities to the said plaintiff when he the said defendant should be thereunto afterwards requested; and although the said defendant did afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, receive(n) divers large sums of money, and also divers securities for money, under and by virtue of the said power and authority, for and on account of the said debt; yet the said defendant not regarding his said promise and undertaking, but contriving and intending to injure and defraud the said plaintiff in this behalf, hath not rendered a just and reasonable or other account, to the said plaintiff of the said monies or securities for money so received by the said defendant as aforesaid, or any part thereof (although to do this, he the said defendant was requested by the said plaintiff afterwards, to wit, on the day and year aforesaid, and oftentimes, afterwards, to wit, at, &c. (venue) aforesaid,) but he, to do this, hath hitherto wholly refused, and still refuses so to do. [Add money counts and accounts stated.]

For that whereas heretofore, to wit, on, &c. (day of relainer or about it), at, &c. (venue) in consideration that the *said plaintiff, at the special instance and request of the said defendant had retained and employed the said defendant to sell and dispose of, for cash, or any approved bill(p), at a short date, certain goods and merchandizes, to wit, [fifty hides, and twenty-six,] of the said plaintiff, of great value, to wit, of the value of £— of lawful money of Great Britain, for commission and reward to the said defendant in that behalf; he the said defendant undertook, and then and there faithfully promised the said plaintiff to endeavor to sell and dispose of the same, but not otherwise than for cash, or an approved bill, at a short date; yet the said defendant, not regarding his said promise and undertaking so by him made as aforesaid, but contriving, and fraudulently intending, craftily and subtly, to deceive and defraud the said plaintiff in this behalf, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) sold and disposed of the said goods and merchandizes of the said plaintiff for a

(n) This seems a necessary averment, sce 6 Taunt. 45.-2 Esp. Rep. 710.

(0) A factor or broker may in general, sell on credit, unless prohibited by the express or implied terms of his employment, or by usage of trade. Willes, 406. 3 B. & P. 489.-6 Bro. P. C. 287.Cowp. 395. He cannot sell stock on credit, as that is contrary to the usual course of business. 1 Campb. 258. An auctioneer is liable if he sells otherwise than for ready money. 2 Chit. Rep. 353.

See also 12 Mod. 5, 14.-Winch, 53-5 Taunt.
749.-If the vendee be not in reputed good circum-
stances the agent would be liable.-Sec 6 Bro. P.
C. 287.-Beawes, 43.-Moll. 239.-The time of
credit must in all cases be reasonable and custom-
ary.-Bulst. 103.-Moll. 328; and the security
also.-Bulst. 104.-Yelv. 202.-Winch, 53.

(p) As to what is an approved bill, see 2 Campb.
532.-2 H. Bla. 573.-3 Mod. 273.-3 Stark. Evid.
1636.-1 M. & P. 656.

Against an

agent for selling goods

on credit, and other

wise than good bill, contrary to

for cash or a

orders(0).
[ *346 ]

AGAINST
AGENTS,

&c.

Second

count for

not selling
for ready
money, or a
good bill of
exchange
(pp).

large sum of money, to wit, the sum of £- otherwise than for cash, or an apFACTORS, proved bill, at a short date, to wit, for a disapproved and bad and insufficient bill of exchange, which hath become and is of no use or value to the said plaintiff, and which said sum of money is wholly unpaid to the said plaintiff; and by reason of the premises, he, the said plaintiff, is likely to lose the same, to wit, at, &c. (venue) aforesaid. And whereas also, heretofore, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration that the said plaintiff, at the like special instance and request of the said defendant, had retained and employed the said defendant to sell and dispose of certain other goods and merchandizes of the said plaintiff, to wit, goods and merchandizes of the like number, quantity, quality, description, and value, as those in the said first count mentioned, the said defendant undertook, and then and there faithfully promised the said plaintiff that he would not sell or dispose of the said last-mentioned goods and merchandizes otherwise than for ready money, or a good bill of exchange; yet the said defendant contriving and fraudulently intending to deceive and defraud the said plaintiff in this behalf, did not perform or regard his last-mentioned promise and undertaking, but craftily and subtly deceived and defrauded the said plaintiff in this, to wit, that the said defendant did not sell or dispose of the said goods and merchandizes for ready money, or for a good bill of exchange, but, on the contrary thereof, afterwards, to wit, on the day and year aforesaid, sold and disposed of the same, for a bad bill of exchange, and which became, and was of no use or value to Third count, the said plaintiff, to wit, at, &c. (venue) aforesaid. And whereas also, heretofore, to wit, on the day and year aforesaid, at, &c. (venue) the said defendant, good bill of under and by virtue of the retainer and authority of the said plaintiff, had, for exchange in payment ac- commission and reward to him in that behalf, sold and disposed of certain other cording to promise. goods and merchandizes of the said plaintiff, of the like quantity, number, quality, description, and value, as those in the said first count mentioned, for and on the behalf of the said plaintiff, for a certain sum of money, to wit, the sum of £- and in consideration thereof, and that the said plaintiff, at the special instance and request of the said defendant, would accept and receive for and on account of the said goods and merchandizes, of and from the said defendant a certain bill of exchange, to wit, a bill dated, &c. and made and drawn by one G. H. upon one I. K. and whereby the said G. H. requested the said I. K. after the date thereof, to pay to the said plaintiff or order £156, the said defendant undertook, and then and there faithfully promised the said plaintiff that the said bill of exchange was a good bill of exchange; and the said plaintiff avers that he, confiding in the said promise and undertaking of the said defendant, afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) did accept and receive, for and on account of the said last-mentioned goods and merchandizes, the said last-mentioned bill of exchange of and from the said defendant; yet the said defendant, contriving and fraudulently intending to deceive and injure the said plaintiff in this behalf, did not perform or regard his said last-mentioned promise and undertaking, but craftily and subtly deceived and defrauded the said plaintiff in this, to wit, that the said last-mentioned bill

for not obtaining a

(pp) See a form, Ferrers v. Robins, 1 Gale Rep. 70.

AGAINST

AGENTS,
FACTORS,

&c.

the sale of

of exchange was not a good bill of exchange, but on the contrary thereof, then was and still is a bill of exchange of no use or value; and although the time for payment of the said sum of money therein specified, according to the tenor and effect of the said last-mentioned bill of exchange, hath long since elapsed, and the said plaintiff hath endeavored to obtain payment thereof, yet the said plaintiff hath been and is wholly unable to procure payment of the same or any part thereof, and the *same remains wholly due and unpaid to the said plaintiff, [ *347 ] to wit, at, &c. (venue). And whereas also, heretofore, to wit, on the day and Fourth year aforesaid, at, &c. (venue) in consideration that the said plaintiff, at the count, for not using like special instance and request of the said defendant, had retained and em- due care in ployed him for commission and reward, to him in that behalf, to sell and dispose goods. of certain other goods and merchandizes, of the said plaintiff, of the like number, quantity, quality, description, and value, as those in the said first count mentioned, the said defendant undertook, and then and there faithfully promised the said plaintiff to use due care in and about the sale of the said last-mentioned goods and merchandizes; and although the said defendant afterwards, to wit, on the day and year aforesaid, to wit, at, &c. (venue) sold the said *last-men- [ *348] tioned goods and merchandizes for and on account of the said plaintiff, for a large sum of money, to wit, the sum of £- yet the said defendant, not regarding his said last-mentioned promise and undertaking, did not use due care in and about the sale of the said last-mentioned goods and merchandizes, but wholly neglected and refused so to do, and wrongfully and unjustly took, accepted, and received, in payment of the said last-mentioned goods and merchandizes, a certain bill of exchange of no use or value to the said plaintiff, and by reason of the premises, he, the said plaintiff, is likely to lose the price of the said lastmentioned goods and merchandizes, to wit, at, &c. (venue) aforesaid.-[It would be as well to insert another count like this, merely stating that defendant undertook to sell the goods at the best price he could get for the same, but that he sold them under the best price he could have gotten.]

to be respon

(q).

And whereas also, heretofore, to wit, on the day and year aforesaid, at, &c. Fifth count (venue) in consideration that the said plaintiff, at the special instance and re- on promise quest of the said defendant, had retained and employed the said defendant for sible according to del commission and reward to him in that behalf, to sell and dispose of certain credere other goods and merchandizes of the like number, quantity, quality, description, commission and value, as the said goods and merchandizes in the said first count mentioned, the said defendant undertook, and then and there faithfully promised the said. plaintiff to be responsible to him for the prices of the said last-mentioned goods and merchandizes; and although the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. (venue) sold and disposed of the said last-mentioned goods and merchandizes for a large sum of money, to wit, the sum of £, and although a reasonable time for the payment thereof has long since elapsed, to wit, at, &c. (venue) yet the said defendant not regarding his said promise and undertaking, but contriving and intending to deceive and defraud

(q) See ante, 342, note.-1 J. B. Moore, 279, and a form there, and the common count, 14 East,

578.-8 Taunt. 371.-2 J. B. Moore, 420, S. C.
ante, 78, note.

AGAINST
AGENTS,

&c.

the said plaintiff in this respect, hath not as yet paid, or caused and procured to FACTORS, be paid, the said last-mentioned sum of money, or any part thereof, to the said plaintiff, although he afterwards, to wit, on the day and year aforesaid, had notice of the premises, and was requested by the said plaintiff so to do, to wit, &c. (venue) aforesaid.-[Add counts for not rendering a just account, as ante, 342, 4, also counts for goods sold, money counts, account stated, and breach.]

Against a factor instructed to sell for rea

dy money, for selling upon credit

to a person

who afterwards became insol

vent(r).

[ *349 ] Against a

shopman for selling on

trary to express orders.

For that whereas heretofore, to wit, on, &c. at, &c. (venue) in consideration that the said plaintiff, at the special instance and request of the said defendant, had caused to be delivered to the said defendant certain goods and chattels, to wit, one hogshead of tallow of the said plaintiff, of great value, to wit, of the value of £— of lawful money of Great Britain, to be sold and disposed of for ready money, by the said defendant, for certain commission and reward, to be therefore paid by the said plaintiff to the said defendant, he the said defendant undertook, and then and there faithfully promised the said plaintiff not to sell or dispose of the said goods and chattels to any person or persons whatsoever, otherwise than for ready money; yet the said defendant not regarding his said promise and undertaking, but contriving and intending to injure and defraud the said plaintiff in this respect, did afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, sell and dispose of the said goods and chattels upon credit, and otherwise than for ready money, that is to say, to one R. H. at and for a certain sum of money, to wit, the sum of £- and which said sum of £ is still wholly unpaid to the said plaintiff, and the said R. H. having since become insolvent, he the said plaintiff is likely to lose the same, to wit, at, &c. (venue) aforesaid.—[Add counts as directed in the last form.]

*For that whereas the said plaintiff, before the making of the promises and undertakings of the said defendant in this and the two next succeeding counts, was, and from thence hitherto hath been, and still is, a linen draper, and the credit, con- trade and business of a [linen draper], during all that time exercised and carried on, to wit, at, &c. (venue): and thereupon, heretofore, to wit, on, &c. at, &c. (venue) aforesaid, in consideration that the said plaintiff, so being such linen draper as aforesaid, at the special instance and request of the said defendant, had then and there retained and hired the said defendant to serve the said plaintiff as a servant and shopman in his said trade and business, for certain wages and reward, to be therefore paid by the said plaintiff to the said defendant, and also in consideration that the said plaintiff, at the like request of the said defendant, had then and there agreed to find and provide board and lodging for the said defendant, whilst he the said defendant should continue to serve the said plaintiff as aforesaid, the said defendant then and there undertook and promised the said plaintiff that he the said defendant would not, whilst he should continue to be the servant and shopman of the said plaintiff as aforesaid, sell or deliver any goods or merchandizes of the said plaintiff on credit, or otherwise than for ready money, to any person or persons, without the consent or approbation of the said plaintiff, and that in case he the said defendant should sell and deliv

(r) See note to last precedent, and the form in Ferrers v. Robins, I Gale's Rep. 70. ›

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