PROPERTY. 1. RESPEC- sary for the pulling down of a certain old party-wall between the said several TING REAL buildings, before then pulled down by and at the expense of the said plaintiff, agreeably to the direction of the said act of parliament. And being so indebted," &c. (Conclude as ante, 37.) (1). [*55] For goods or cattle sold and delivered to the defendant (r). *II. RESPECTING PERSONAL PROPERTY. The indebitatus count is as ante, 37, inserting these words, "for divers goods, wares, merchandize, and chattels (s), (or, when for live animals, say, ' horses, mares, geldings, bulls, cows, oxen, sheep, cattle, goods, and chattels,' as the case may be,) by the said plaintiff, before that time sold and delivered to the said defendant, and at his special instance and request (t), and being so indebted," &c. (Conclude as ante, 37.)—The quantum valebant thereon is as ante, 38, inserting as follows, "had before that time sold and delivered divers other goods, wares, merchandize (2), and chattels, (or, ‘horses, mares, geldings, bulls, cows, oxer, sheep, cattle, and chattels,') to the said defendant, he the said defendant undertook, and then and there faithfully promised the plaintiff to pay him so much money as the said last mentioned goods, wares, and merchandize, (or, horses, &c. as supra,) at the time of the said sale and delivery thereof, were reasonably worth (u), when he the said defendant should be thereunto afterwards requested. And the said plaintiff avers, that the said lastmentioned goods, wares, merchandize, and chattels, (or, horses, mares, &c. as before) at the time of the said sale and delivery thereof, were reasonably worth *56] the *further sum of £ of like lawful money, to wit, at, &c. (venue) aforesaid, whereof the said defendant afterwards, to wit, on the day and year aforesaid, there had notice. For goods The indebitatus count is as ante, 37, inserting these words, "for divers goods, bargained wares, and merchandize, (or, horses, mares, &c. as ante,) by the said plaintiff, and sold to defendant, (r) As to this count, when it lies, and its Chit. Gen. Pract. 94, 95; 4 B. & A. 206. (s) It is not necessary to say, "of the plaintiff," Bul. N. P. 139; and those words should, according to the decision, 5 Esp. 31, 2, be omitted, if the action be at the suit of a broker, factor, &c. But see 6 Taunt. 65, 67, that this is not material. () As the word "sold," (like the word "hired," 6 Taunt. 389) implies a contract, perhaps the omission of the words "at the special instance and request of the defendant," would not be material, 2 T. R. 30. (u) This count is not available where there has been a contract for a sum certain, Stra. 648. But see 6 Taunt. 108; see ante, 38. (w) This count, though usual, is not necessary; the delivery may be stated to have been to the defendant, 8 T. R. 328. Stra. 127. Sed vide Bul. N. P. 136. 1 Selw. (1) Act of 24 Feb. 1721. 15 April, 1782. Purd. Dig. 884, (Edit. 1831.) Ingles v. Bringhurst, Dall. 341. Hart v. Kucher, 5 Serg, & Rawle, 1. } (2) That it is unnecessary to allege that the plaintiff promised to sell and deliver, see 10 Mass. Rep. 237, 238. PECTING PERSONAL TY. before that time bargained and sold to the said defendant, and under and by 2. RESvirtue of that bargain and sale delivered to one E. F. at the special instance and request of the said defendant; and being so indebted," &c. (Conclude PROPERas ante, 37.)-The quantum valebant thereon is as ante, 37, inserting as follows, “had before that time bargained and sold divers other goods, &c. to the said defendant, and had, under and by virtue of the said last-mentioned bargain and sale, delivered the same to the said E. F. he the said defendant undertook," &c. (Conclude as ante, 38.) and sold to The indebitatus count is as ante, 37, inserting these words, "for divers goods, For goods wares, and merchandize, by the said plaintiff, before that time bargained and bargained sold to the said defendant, and at his special instance and request, and being defendant so indebted," &c. (Conclude as ante, 37.)-The quantum valebant thereon is generally (x). as ante, 37, inserting as follows, "had *before that time bargained and sold to [57] the said defendant divers other goods, wares, and merchandize, he the said defendant undertook," &c. (Conclude as ante, 38.) The indebitatus count is as ante, 37, inserting these words, "for a certain For a crop crop of grass, (or, ' turnips,' as the case is,) of the said plaintiff, before that of grass or turnips, time bargained and sold by the said plaintiff to the said defendant, and at his &c. barspecial instance and request, and by the said defendant, under and by virtue of gained and sold (y). that bargain and sale before that time accepted, mowed, cut down, (or, if for a crop of turnips, &c. 'accepted, gathered,') had, taken, and carried away; and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time bargained and sold to the said defendant a certain other crop of grass (or, turnips') of the said plaintiff, and that the said defendant had, under and by virtue of the said bargain and sale, accepted, mowed, and cut down, the said last-mentioned crop of grass, (or, if for a crop of turnips, accepted and gathered the said lastmentioned crop of turnips,') and had taken and carried away the same, he the said defendant undertook," &c. (Conclude as ante, 38.) N. P. 6th edit. 300. If the defendant be sued on a collateral liability to pay for goods sold to another, the count must be special, Saund. 211 b. See form, post, 314. Plead. Assist. 11, &c. (x) See form, Plead. Ass. 10. Distinction between this count and the one for goods sold and delivered, 19 Ves. 609. This count is proper where there has not been an actual delivery of the goods, ante, vol. i. 303. When it will not suffice, id. See form of declaration for not accepting goods, post, 264. The defendant cannot be held to bail for goods bargained and sold, see 12 East, 399. { And see Atkinson v. Bell, 8 B. & Cresw. 277, cited in Lathrop v. Bryant, 1 Bing. N. C. 430, as to when a special count is necessary. } (y) See, as to this count, 1 B. & P. 397. As to what crops agreed to be taken by incoming against outgoing tenant, are re coverable under this count, 3 B. & C. 357, Sec 2. RESPEC SONAL *The indebitatus count is as ante, 37, inserting these words, "for meat, TING PER- drink, washing, lodging, and other necessaries, and goods and chattels, by the PROPERTY. said plaintiff before that time found and provided for the said defendant, and at For neces- his special instance and request; and being so indebted," &c. (Conclude as found and ante, 37.)—The quantum meruit thereon is as ante, 37, inserting as follows, provided "had before that time found and provided other meat, drink, washing, lodging, for defend- and necessaries, goods and chattels, for the said defendant, he the said defendant undertook," &c. (Conclude as ante, 38.) saries ant (z). For neces saries found ded for third per The indebitatus count is as ante, 37, inserting these words, "for meat, drink, washing, and lodging, goods and chattels, and other necessaries, by the said and provi- plaintiff before that time found and provided, at the special instance and request of the said defendant, for one E. F. and divers persons; and being so sons. (a) indebted," &c. (Conclude as ante, 37.)—The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time found and provided other meat, drink, washing, lodging, goods and chattels, and necessaries, for the said E. F. and divers other persons, he the said defendant undertook," &c. (Conclude as ante, 38.) For horsemeat and stabling (b). For the of cattle The indebitatus count is as ante, 37, inserting these words, "for horse-meat, stabling, care, and attendance, by the said plaintiff before that time found, provided, and bestowed for, in, and about the feeding and keeping of divers horses, mares, geldings, and cattle, of and for the said defendant, and at his special instance and request; and being so indebted," &c. (Conclude as ante, 37.) -The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time found, provided, and bestowed other horse-meat, stabling, care, and attendance, for, in, and about the feeding and keeping divers other horses, mares, geldings, and cattle, of and for the said defendant, he the said defendant undertook," &c. (Conclude as ante, 38.) The indebitatus count is as ante, 37, inserting these words, "for the agistagistment ing, depasturing, and feeding of divers cattle, *by the said plaintiff before that (c). time agisted, depastured, and fed in certain pastures and premises of the said [60] plaintiff for the said defendant, and at his special instance, &c.; and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time agisted, depastured, and fed divers other cattle in certain other pastures and premises of the said plaintiff, for the said defendant, he the said defendant undertook," &c. (Conclude as ante, 38.) For the hire of goods, horses, &c. ships, furniture, &c. (d). The indebitatus count is as ante, 37, inserting these words, "for the use and hire of divers [horses, mares, and geldings, cattle, bridles, saddles, and har (z) See the form, ante, 48, and forms, Plead. Assist. 224. Morgan, 29. (a) See forms, 2 Rich. C. P. 89.-Lil. Ent. 31. 39.-As to the necessity for this count see ante, 56.-Stra. 127.-8 T. R. 328.-Bul. N. P. 136. (b) See note, ante, page 45.-Plead. Assist. 41.-Morg. 30.-Where vendor lia ble for, when contract of sale rescinded, 2 Chit. Rep. 416.-2 Camp. 82.-2 Moore, 106, 582.-8 Taunt. 535; and see post, 279, n. (c) See note, ante, page 45.-Morg. 27. (d) As to this count, see 1 Com. Rep. 116.-6 Taunt. 389.-Plead. Assist. 5.-1 Rich. C. P. 210.-Lil. Ent. 28. SPECTING ness, and of divers chaises and other carriages, or,' of certain lighters and 2. REother vessels,' or, of certain plate, linen, china, furniture,' as the case may PERSONAL be] goods and chattels, by the said plaintiff before that time let to hire and de- PROPERTY. livered to the said defendant, and at his special instance and request, and by the said defendant, under and by virtue of that letting to hire, before then had and used; and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time let to hire and delivered to him the said defendant divers other [horses, mares, and geldings, cattle, bridles, saddles, and harness, and divers other chaises and other carriages, or, certain other lighters and other vessels,' or, certain plate, linen, china, furniture,' as the case may be,] goods and chattels, and that the said defendant had, under and by virtue of the said last-mentioned letting to hire, before then had and used the same, he the said defendant undertook," &c. (Conclude as ante, 38.) mares. The indebitatus count is as ante, 37, inserting these words, "for the use of For covering divers stallions of the said plaintiff before that time had and used, by and with the permission of the said plaintiff, in and for covering of divers mares of and for the said defendant, and at his special instance and request; and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time suffered and permitted certain other stallions of the said plaintiff to cover certain other mares of and for the said defendant, and that the said last-mentioned *stallions had accord- [ *61 ] ingly covered the said last-mentioned mares, he the said defendant undertook," &c. (Conclude as ante, 38.) The indebitatus count is as ante, 37, inserting these words, "for the use of For bulling cows. divers bulls of the said plaintiff, before that time used for the bulling of divers cows of the said defendant, by the permission of the said plaintiff, and at the special instance and request of the said defendant; and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, “had before that time permitted divers other bulls of the said plaintiff to bull divers other cows of the said defendant, and that the said last-mentioned bulls had accordingly bulled the said last-mentioned cows, he the said defendant undertook," &c. (Conclude as ante, 38.) The indebitatus count is as ante, 37, inserting these words, "for certain freight For [primage, and average] before that time, and then due and payable from the freight, (e) As to who may sue for freight, see ante, vol. i. 5.-3 Chit. Com. Law, 416, 421.-Lil. Ent. 33, 54.-Plead. Ass. 70.Morg. 23, and the law, 3 M. & S. 482.-4 Id. 141.-6 Taunt. 608. 2 Marsh. 309. 4 Campb. 337.1 Marsh. 122. 4 Taunt. 125.3 Chit. Com. Law, 407; and see Abbott, on shipping, index "freight." The usual form is more particular, but it seems less subject to variance to say, "in and on board of divers ships and vessels, for the said defendant, and at his request," as in the above precedent, without stating the VOL. II. 6 name of the ship, voyage, &c. This common count will suffice, even in primage, average (e). 2. RE PERSONAL PROPERTY. said defendant to the said plaintiff, upon, for, and in respect of the carriage SPECTING and conveyance of divers goods, merchandize, and chattels, by the said plaintiff before that time carried and conveyed, in *and on board of divers ships [ *62] and vessels (ƒ), from divers ports and places to divers other ports and places, and there, to wit, at the said last-mentioned ports and places delivered by the said plaintiff for the said defendant, and at his special instance and request; [and for the care and attendance of the said plaintiff and his servants, in and about the loading and unloading of the said goods, merchandize, and chattels, and the delivery thereof as aforesaid"] (g). (Conclude as ante, 37.)The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time carried and conveyed certain other goods, merchandize, and chattels in and on board divers other ships and vessels, from divers other ports and places to divers other ports and places, and there, to wit, at the said lastmentioned ports and places, had delivered the same for the said defendant [and had bestowed other his care and attendance in and about the loading and unloading of the said last-mentioned goods, merchandize and chattels, and the delivery thereof as aforesaid], he the said defendant undertook," &c. (Conclude as ante, 38.—Add a count for the use and hire of ships, &c. as ante, 60.) For gene ral aver age (h). The indebitatus count is as ante, 37, inserting these words, "for certain general average before that time, and then and there due and payable from the said defendant, upon, for, and in respect of divers goods, merchandizes, and chattels, of the said defendant, having been, before that time, carried and conveyed by the said plaintiff in and on board divers other ships or vessels, in and during divers voyages for the said defendant, and at his special instance and request, and in respect of certain losses, damages, and expenses by the said plaintiff incurred, in and about the preservation of the said ship and cargo, and the said last-mentioned goods, merchandizes, and chattels, from damage and loss during the said last-mentioned voyage. And being so indebted," &c. (Conclude as ante, 37.)—The quantum meruit thereon is as ante, 37, inserting these words, "had before that time carried and conveyed divers other goods, merchandizes, and chattels of the said defendant, in and on board divers other ships or vessels, and during certain other voyages, and the said defendant undertook, and then and there faithfully had incurred certain other losses, damages, and expenses in and about the preservation of the said last-mentioned ship and cargo, goods, merchandizes, and chattels, during the said last-mentioned voyages, he the said defendant undertook," &c.-(Conclude as ante, 38.-Add a count for money paid, and account stated.) cially if there be a promise to pay it. Holt, (f) They may be laid to be the vessels of the plaintiff, though he be only captain, 6 Taunt. 65. (g) If only for freight, leave out these words between brackets. (h) See special counts, post. 216, 219; for law, see Abbott on Ship. 5th edit. 342, &c.— 3 Chit. Com. Law, 433. Hughes on Insurance, 284 to 300. |