FOR SER VICES IN "had before that time done, performed, and bestowed other his work and labor, GENERAL. care, diligence, journies, and attendance as a surgeon and apothecary, in and about the healing and curing of the said defendant and divers other persons of divers other diseases, disorders, and maladies under which they had before then respectively labored and languished, and also in and about the endeavoring to heal and cure the said defendant and divers other persons of divers other diseases and disorders under which they had before then also respectively labored [*84] and languished, and had also at the like special instance and *request of the said As a surgeon, apotheca ry, and man-mid wife (w). defendant, before that time found and provided, administered, delivered, and applied divers other medicines, chattels, and necessary things on those last-mentioned occasions for the said defendant, he the said defendant undertook," &c. (Conclude as ante, 38.)-[Add counts for work and labor, and journies-for goods sold-money paid-account stated-and breach.] The indebitatus count is as ante, 37, inserting these words, "for the work and labor, care, diligence, and attendance of the said plaintiff, by the said plaintiff before that time done, performed, and bestowed as a surgeon, apothecary, and man-midwife, at the special instance and request of the said defendant, in about the visiting and attending upon (x) a certain female then pregnant and laboring with child, and languishing under divers sicknesses and maladies, and in and about the delivering of the said female of the child with which she was then pregnant, and in and about the healing and curing of the said female of divers disorders, sicknesses, and maladies with which she was during the time aforesaid and afterwards afflicted, and for divers medicines, chattels, and other necessary things before that time found and provided, and used and applied by the said plaintiff in and about the healing and curing the said female of the said sicknesses, disorders, and maladies, at the like 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 done, performed, and bestowed other his work and labor, care, and diligence as a surgeon, apothecary, and man-midwife, in and about the visiting and attending upon the said female then pregnant and laboring with child, and languishing under divers sicknesses and maladies, and in and about the delivering of the said female of the child with which she was then pregnant, and in and about the healing and curing of the said female of divers other disorders, sicknesses, and maladies with which she was, during the time last aforesaid, and afterwards afflicted, and had also at the like special instance and request of the said defendant, before that time found and provided, and used and applied divers other medicines and necessary things in and about the healing and curing of the said female of the said last-mentioned sicknesses, disorders, and maladies, he the said defendant undertook," &c. (Conclude as ante, 38.)-[Add one indebitatus count for work generally-one ditto for goods sold-money paid-account stated-and breach.] 10. (w) See forms, Plead. Assist. 63.-Morg. (x) A misnomer seems immaterial, 2 Marsh. Rep. 159, but it may be advisable not to mention the name, and it is as well not to state the female was the defendant's wife. GENERAL. The indebitatus count is as ante, 37, inserting these words, "for the work FOR SERand labor, care, and diligence of the said *plaintiff, by the said plaintiff before VICES IN that time done, performed, and bestowed as a nurse for the said defendant, As a and at his special instance and request, in and about the nursing, attending, nurse. and taking care of the said defendant and of divers persons, whilst he and they were sick and laboring under divers diseases, disorders, and maladies, and being so indebted," &c. (Conclude as ante, 37.)-The quantum meruit thereon is as ante, 37, inserting as follows, "had before that time done, performed, and bestowed other her work and labor, care, and diligence as a nurse, in and about the nursing, attending, and taking care of the said defendant and divers other persons, whilst they were sick and laboring under divers other diseases, disorders, and maladies, he the said defendant undertook," &c. (Conclude as ante, 38.) dertaker of funerals The indebitatus count is as ante, 37, inserting these words, "for the work and As an unlabor, care, diligence, and attendance of the said plaintiff as an undertaker of funerals, before that time done, performed, and bestowed by the said plaintiff (y). and his servants, in and about the funeral of one E. F. (or a certain person deceased) on the retainer, and at the special instance and request of the said defendant, and for divers hearses, coaches, horses, materials, chattels, and other necessary things used and applied in and about the furnishing and conducting of the said funeral by the said plaintiff before that time found and provided for the said defendant, and at his like 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 done, performed, and bestowed, other his work and labor, care, diligence, and attendance, as an undertaker of funerals, by himself and his servants, in and about the funeral of the said E. F. (or of a certain other person deceased) and had also at the like special instance and request of the said defendant, before that time found and provided divers other hearses, coaches, horses, materials, chattels, and necessary things for the said defendant, and used and applied the same in and about the furnishing and conducting of the said last-mentioned funeral, he the said defendant undertook," &c. (Conclude as ante, 38.)-[Add one indebitatus count, for work and labor generally-one ditto for goods sold-one for the use and hire of hearses, coaches, and horses, goods, Sc.-money paid-account stated—and breach.] *The indebitatus count is as ante, 37, inserting these words, "for the work and labor, care, diligence, and attendance, of the said plaintiff by the said plaintiff, before that time done and performed, and bestowed, in preaching and celebrating divine service in the parochial church of 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 (y) See forms, 1 Rich. C. P. 362.-Lil. Ent. 27, 31. When husband liable for, 1 Hen. Bla. 90; when representatives liable for, Toller, 4th edit. 246, 247. An executor is even liable to pay for the funeral as far as he has assets for that purpose, although he gave no orders for it, the funeral being (z) See Cowp. 437.-Dougl. 142.-1 T. [ *86 ] As a cu rate (z). FOR SER- GENERAL. For com para pers. as follows, "had before that time done and performed, and bestowed other his work and labor, care, diligence, and attendance, in preaching and celebrating divine service in the parochial church of aforesaid, 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 work posing and labor, care, and diligence of the said plaintiff by the said plaintiff, before graphs for that time done, performed, and bestowed, in and about the composing and newspa- writing of certain paragraphs for the said defendant, and at his special instance and request, and for the insertion and publication of such paragraphs by the said plaintiff, in a certain newspaper called the for the said defendant, and at his like 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 done, performed, and bestowed other his work and labor, care, and diligence, in and about the composing and writing certain other paragraphs for the said defendant, and had also at the like special instance and request of the said defendant, before that time inserted and published such last-mentioned paragraphs in the said newspaper called the for the said defendant, he the said defendant undertook," &c. (Conclude as ante, 38.) For book. The indebitatus count is as ante, 37, inserting these words, "for the work ing, receiv- and labor, care, diligence, and attendance of the said plaintiff by the said ing, and keeping plaintiff, before that time done, performed, and bestowed, in and about the passengers taking an account of places for passengers, and the booking and keeping of and par cels, and parcels, to be carried and conveyed, in and by certain coaches of the said dethe use of fendant, and for the use of a certain shop, in and parcel of a certain dwellinga shop. house of the said plaintiff, before that time occupied and used by and with the [*87] *said passengers and parcels, by and with the sufferance and 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 done, performed, and bestowed other his work and labor, care, diligence, and attendance, in and about the taking an account of places for divers other passengers, and the booking and keeping divers other parcels, to be carried and conveyed in and by certain other coaches of the said defendant, and had suffered and permitted a certain other shop of the said plaintiff to be occupied and used, and that the same had accordingly been occupied and used by and with the said last-mentioned passengers and parcels, he the said defendant undertook," &c. (Conclude as ante, 38.) For money lent (a). IV. RESPECTING MONIES. The indebitatus count is as ante, 37, inserting these words, "for so much money by the said plaintiff before that time lent and advanced to the said de (a) See Lil. Ent. 29.-Plead. A. 1.Rich. C. P. 119.-Morg. 6.-This form will suffice, though the loan was made in foreign coin, 1 Marsh. 33. 5 Taunt. 228. As to fendant, at his special instance and request, and being so indebted," &c. RESPECT(Conclude as ante, 37.) ING MO- The indebitatus count is as ante, 37, inserting these words, "for so much For money paid (b). money by the said plaintiff before that time paid, laid out, and expended, to and for the use of the said defendant, at his like special instance and request. And being so indebted," &c. (Conclude as ante, 37.) had and The indebitatus count is as ante, 37, inserting these words, "for so much Money money by the said defendant before that time *had and received to and for received the use of the said plaintiff. And being so indebted," &c. (Conclude as (c). ante, 37.) The indebitatus count is as ante, 37, inserting these words, "for so much money before that time and then due and payable from the said defendant to the said plaintiff, for interest upon and for the forbearance of divers large sums of money before then [lent and advanced by the said plaintiff to the said defendant, at his special instance and request, and by him the said plaintiff forborne to the said defendant, for divers long spaces of time, before then elapsed, at the like special instance and request of the said defendant, and also for other money, before that time and then due and payable from the said defendant to the said plaintiff, for interest upon and for the forbearance of when this count lies, see fully, ante, vol. i. 304. For law relating to contracts of loan, see 3 Chit. Com. Law, 309. Chit. jun. on Contr. 2 edit. 464 to 466. (b) See Form, Plead. A. 1 Morg. 6.-Lil. Ent. 31. 43.-See fully, ante, vol. i. as to when this count lies, 304, 5; and see Chit. jun. Contr. 2 edit. 466 to 474. (c) See Forms, Lil. Ent. 23, 24.-Plead. A. 2. 245. As to the application of this count, see fully, ante, vol. i. 305. Chit. jun. Contr. 2 edit. 474 to 503. (d) 1 Ventr. 198.-1 Wentw. 196.-5 T.K. 533.-Palm. 291.-2 Rol. Rep. 240. As to when a special count for, is necessary, see ante, vol. i. 308. It is a general rule that the law does not imply a contract on the part of the debtor to pay interest on the sum he owes, although the payment of the principal or debt may have been frequently demanded.-1 Campb. 50. 2d Id. 420.-1 B. & P. 307. 4th Id. 472.-Chit. jun. on Contr. 195. But after a lapse of time and repeated demands, and wrongful withholding the debt, a jury may give interest as damages, see 3 Bingh. 353; sed vide 9 B. & Cres. 380. When recoverable on bills, see Chit. on Bills, 7th ed. 420. 5 B. & A. 204. 40.-2 Chit. R. 234.-1 D. & R. 16.-Interest is not recoverable on a debt for goods sold, even on limited credit. (12 East, 419. -2 Campb. 429; but see 2 B. & P. 337.3 Wils. 205.-2 Bla. Rep. 761. S. C. 1 H. Bla. 305.-1 Campb. 51.) but in some cases it is recoverable where the vendee neglects to give a bill in payment, 13 East, 98.-It is not recoverable for work and labor (1 H. Bla. 305.-3 Wils. 205.-2 Bla. Rep. 761. S. C. 1 Campb. 51.); but damages in the nature of it might, under circumstances, be given, 9 Price, 134.-It is not recoverable for money had and received, lent, or on account stated (15 East, 223.-1 Rose, 399.3 Campb. 496.-4 Taunt. 346); or for money paid, (3 Stark. 132); unless there was a course of dealing allowing it, or some other implied or express contract to pay it, or unless the defendant made use of the money he received, and did not merely withhold it. (5 B. & A.815.-3 Campb. 103.-1 B. & P. 306.-1 Campb. 50. 129. 2 Campb. 426.) Bankers and merchants, by custom, are allowed interest upon an account stated (see 15 East, 223.-4 Taunt. 298. 346.) Money awarded to be paid on a particular day carries interest from that day if duly demanded.-3 Camp. 468.-When recoverable on affirmance of judgment in error, 4 Taunt. 346.-2 J. B. Moore, 195, 206.-7 Taunt. 458, 592.-1 J, B. Moore, 322, 481.-8 Taunt. 245.-1 Jac. & Walk. 168. auctioneer is not in general liable to pay interest on a sum deposited in his hands on a sale by auction.-8 Taunt. 45.-A bond conditioned for the payment of money, without naming any day, carries interest from the date, 7 T. R. 124.—15 East, 225; when interest stops, Chit. on Bills, 7th edit. 422; as to the amount of, see Id. 76, 83 to 89.-3 Chit. on Com. Law, 316; and see more fully, Chit. jun, on Contr. {2d edit. 503. 3 & 4 W. 4. c. 42. s. 28. 1 Chitt. Gen. Pract. 498.} An [*88 ] For inter est (d). ING MO- RESPECT- divers other large sums of money before then](e) due and owing from the said defendant to the said plaintiff, and by the said plaintiff forborne to the said defendant, for divers long spaces of time, before then elapsed, at the like special instance and request of the said defendant, and being so indebted, he the said defendant," &c. (Conclude as ante, 37.) [89] ney counts in one *The indebitatus count is as ante, 37, inserting these words, "for the work For work, and labor, care and diligence of the said plaintiff by the said plaintiff, before goods sold, and that time done, performed, and bestowed, in and about the business of the on the mo- said defendant, and for the said defendant, and at his special instance and request, and also in the further sum of £ of like lawful money, for divers count (f) goods, wares and merchandize, by the said plaintiff, before that time sold and (1). delivered to the said defendant, and at his special instance and request, and also in the further sum of £— of like lawful money, for money by the said plaintiff, before that time lent and advanced to, and paid, laid out, and expended for the said defendant, and at his like special instance and request, and also in the further sum of £- of like lawful money, for other money by the said defendant, before that time had and received to and for the use of the said plaintiff, and being so indebted, he the said defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said several sums of money in this count mentioned, when he the said defendant should be thereunto afterwards requested." On an award The indebitatus count is as ante, 37, inserting these words, "upon and by virtue of a certain award made by E. F. upon and by virtue of a certain submade by an arbitra- mission before that time made by the said plaintiff and the said defendant to tor (g). the award, order, and determination of the said E. F. of and concerning all matters in difference then depending between the said plaintiff and defendant, and upon and by virtue of which said reference, the said E. F. had then and there awarded that the said defendant should pay a certain sum of money, to wit, the said last-mentioned sum of money to the said plaintiff, and being so indebted, he the said defendant, in consideration thereof," &c. (Conclude as ante, 37.) [*90] On an *The indebitatus count is as ante, 37, inserting these words, "upon and by virtue of a certain award or umpirage made by one E. F. upon and by virtue umpirage of a certain submission before that time made and entered into by the said (h). award or (e) If brevity be desired leave out the (f) This count is usually used immedi- indebitatus count is applicable, may be in- (g) This count is frequently added to the (h) See the note to the last count. (1) { See Rathbun v. Emigh, 6 Wend. Rep. 409, 410. } |