ING MON plaintiff and the said defendant to the award, order, and determination of G. RESPECTH. and I. K. of and concerning all matters in difference then depénding be- IES. tween the said plaintiff and the said defendant, and thereby empowering the said G. H. and I. K. in case they should not agree in making such award, to appoint a third person to award, determine, and finally settle the said matters in difference, and whereupon the said G. H. and I. K. not agreeing in making the said award, and by virtue of the aforesaid power, by and with the consent and approbation of the said plaintiff and defendant, nominated and appointed the said E. F. as an umpire, to award, order, and finally determine of and concerning all matters in difference between the said plaintiff and the said defendant; and upon and by virtue," &c. (Conclude as in the last precedent.) And whereas also the said defendant afterwards, to wit, on the day and year last aforesaid, at, &c. (venue) aforesaid, accounted with the said plaintiff of and concerning divers other sums of money from the said defendant to the said plaintiff, before that time due and owing, and then in arrear and unpaid, and upon such accounting the said defendant was then and there found to be in arrear and indebted to the said plaintiff in the further sum of £— of like lawful money, and being so found in arrear and indebted, he the said defendant undertook, &c. (Conclude as ante, 37.) On an account stated (i). Nevertheless the said defendant not regarding his said several promises and Common breach (k). undertakings, but contriving and fraudulently intending craftily and subtly to deceive and defraud the said plaintiff in this behalf, hath not as yet paid the said several sums of money, or any or either of them, or any part thereof, to the said plaintiff (although often requested so to do (1)) (or, “ although he the said defendant, afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, was requested by the said plaintiff so to do," (m); but the said defendant to pay him the same hath hitherto wholly neglected and refused, and still doth neglect and refuse, To *the damage of the said plaintiff of £— and therefore [*91] he brings his suit, &c. [Or if in C. P. omit the pledges.] (i) See forms, Plead. A. 3, 4. Morg. 7. Of its utility and form in general, ante, vol. i. 308. (k) See forms, Plead. A. 32, 3.-Rich. C. P. 119.-Morg. 8.-This breach, from the language of it, is obviously only applicable to counts on promises to pay money. If the declaration be at the suit of several, it does not seem necessary to aver, that the defendant did not pay either of the plaintiffs, 1 By a surviving partner, ses to both part ners (n). V. RELATING TO THE CHARACTER IN WHICH THE PLAINTIFF SUES, OR THE DEFENDANT IS SUed. First,-Surviving Partners. The commencement is as in ordinary cases, see the forms, ante, 12 to 20. State the subject-matter of complaint thus, "For that whereas the said defendon promi- ant in the life-time of one E. F. since deceased (o), to wit, on, &c. (v) at, &c. (venue) was indebted to the said plaintiff and the said E. F. in the sum of £-(p) of lawful money of Great Britain, for the work and labor, care, and diligence, of the said plaintiff and E. F. by the said plaintiff and E. F. before that time done, performed, and bestowed for the said defendant, and at his special instance and request. (Any other debt,' as for goods sold,' &c. is to be described in the same manner.) And being so indebted, he the said defendant in consideration thereof, afterwards, and in the life-time of the said E. F. to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, undertook," &c. (laying the promises to both the partners, as ante, 37.)—The quantum meruit is as follows, "and whereas also afterwards, and in the life-time of the said E. F. since deceased, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration that the said plaintiff and E. F. at the like special instance and request of the said defendant, had before that time done, &c. [*92] [Here state the *subject-matter of the debt, and the promise to have been made Breach (q). to both the partners.] And the said plaintiff avers, that he and the said E. F. in (n) See forms, Lil. Ent. 34.-Plead. A. 4. As to this count in general, see 2 Saund. 121, 122.-5 Esp. Rep. 32.-Vin. Ab. Partners, D.-3 T. R. 433.-5 T. R. 493.Ante, vol. i. 11, 183.-The plaintiff must sue as surviving partner, 4 B. & A. 374.6 J. B. Moore, 332.-2 Stark. 356.-See 2 Marsh. 319.-6 Taunt. 597. S. C. Ante, vol. i. 11.-The survivor may include a demand due in his own right, ante, vol. i. 12, 183. (0) It would be fatal in an affidavit, and untechnical in a declaration, merely to de scribe the party as late partner, without showing his death. See i Harr. & Wol. 108; but according to Underhill v. Hurney, 3 Dowl. 495, the omission of the words "since deceased," in a declaration, is no ground of demurrer. (v) It is usual to insert a day before the death of the deceased partner, but the precise day, whether before or after the death, is immaterial. (p) Any sum enough to cover the real demand. (1) See forms, Plead. A. 35. VING PART If the debt be considerable, or the deceased partner has been dead six years; RY SURVI counts. NERS. partner to pay debts due before the death, And whereas also the said defendant afterwards, and in the life-time of the Counts on promises said E. F. deceased, to wit, on the day and year aforesaid, at, &c. (venue) to the aforesaid, was indebted to the said plaintiff and E. F. in the further sum of surviving £— of like lawful money, for the work and labor, care, and diligence, of the said plaintiff and E. F. by them before that time done, performed, and bestow ed for the said defendant, and at his special instance and request; and also in the further sum of £- of like lawful money, for divers goods, merchandize, and chattels, by the said plaintiff and E. F. before that time sold and delivered to the said defendant, *and at his like special instance and request; and also [*93 ] in the further sum of £-of like lawful money, for money by the said plaintiff and the said E. F. 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 the money by the said defendant before that time had and received, to and for the use of the said plaintiff and the said E. F. And the said defendant being so indebted, and the said several sums of money in this count mentioned, being and remaining wholly due, unpaid, and unsatisfied, he the said defendant in consideration thereof afterwards, and after the death of the said E. F. to wit, on, &c. (r) 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.-[Add the account stated with the plaintiff of monies due to him only, and in the breach refer only to the counts in which the promises are stated to have been made to the plaintiff alone, and conclude as usual.] To the damage of the plaintiff of £- and therefore he brings his suit, &c. for work, If the plaintiff declare in other counts, as he may (1 B. & A. 29. 2 Chit. Counts on Rep. 436. 3 T. R. 433. 5 T. R. 493. 1 Esp. Rep. 47. 2 T. R. 476. 6 T. promises R. 582.) for money due to him after the death of his partner, and on a con- &c. by the tract merely with himself, insert those counts after the conclusion to the others, plaintiff only. at the asterisk, or if the last set of counts be also inserted, introduce the following counts immediately before the last count stated. And whereas also the said defendant, to wit, on, &c. at, &c. was indebted to the said plaintiff, &c. [Proceed in the usual form at the suit of one plaintiff only, making the breach to these counts only, and not noticing the deceased parties.] *[Commencement as usual as in forms, ante, 12 to 20.] "For that whereas [94] the said defendant and one E. F. in his life-time, now deceased, and whom Against a (r) It is usual to insert a day after the death of the deceased partner, but any day VOL. II. 9 surviving partner for goods sold, before the title of declaration will do. PART NER. AGAINST A the said defendant hath survived, on, &c. (1) at, &c. were indebted to the said SURVIVING plaintiff for the work and labor, care, and diligence, of the said plaintiff, by the said plaintiff before that time done, performed, and bestowed, for the said defendant and E. F. at their special instance and request; and being so indebted, they the said defendant and E. F. in consideration thereof, afterwards, and in the life-time of the said E. F. to wit, on the day and year aforesaid, at, &c. aforesaid, undertook," &c. (as ante, 37.)—Quantum meruit as follows: "And whereas also afterwards, and in the life-time of the said E. F. to wit, on the day and year aforesaid, at, &c. aforesaid, in consideration that the said plaintiff, at the like special instance and request of the said defendant and E. F. had before that time done, performed, and bestowed other his work and labor for the said defendant and E. F. they the said defendant and E. F. undertook, and then and there faithfully promised the said plaintiff to pay him so much money as he therefore reasonably deserved to have of the said defendant and E. F.; and the said plaintiff avers, that he therefore reasonably deserved to have of the said defendant and E. F. the further sum of £whereof the said defendant and E. F. afterwards, and in the life-time of the said E. F. on the day and year aforesaid, there had notice. Nevertheless the said defendant and E. F. in the life-time of the said E. F. and the said defendant, since the death of the said E. F. not regarding the said several promises so by them made as aforesaid, but contriving to deceive and defraud the said plaintiff, have not, nor hath either of them as yet paid the said several sums of money, or any or either of them, or any part thereof to the said plaintiff (although often requested so to do). But to pay the same, or any part thereof, to the said plaintiff, the said defendant and E. F. in the life-time of the said E. F. wholly refused, and the said defendant hath ever since the death of the said E. F. hitherto wholly refused, and still refuses so to do." [See observations, ante, 92. It may be advisable here to insert the following counts on promises by the surviving partner, which may be joined (u).] Breach. of his partner. Counts on And whereas also the said defendant and E. F. afterwards, and in the life- Ent. 34. against one partner after outlawry Rep. 406. [Johns. Ca. 406.] (t) It is usual to insert a day before the death of the deceased partner, but any day before the title of the declaration will do. (u) 5 T. R. 493.-1 Esp. Rep. 47.-2 T. R. 476.—6 T. R. 519 — A. 29. F A SURVI- PART NER. and request; and also in the further sum of £ of like lawful money, for AGAINST other money by the said defendant and E. F. before that time had and received to and for the use of the said plaintiff, and being so indebted, and the said several sums of money in this count mentioned being and remaining wholly due and owing, unpaid and unsatisfied, he the said defendant in consideration thereof afterwards, and after the death of the said E. F. to wit, on, (v) &c. at, &c. aforesaid, undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of money in this count mentioned when he the said defendant should be thereunto afterwards requested. (Add an account stated, and breach.) [If there be any cause of action arising against defendant otherwise than as surviving partner, insert it, not noticing the deceased, and conclude with the account stated, and breach.] Secondly,-Husband and Wife. BY HUS BAND AND WIFE. band and fore mar (to wit.) A. B. and C. his wife, complain of D. E. being, &c. (or if By husin C. P. or Exchequer, state the commencement as in forms, ante, 17, 20.) wife for For that whereas the said defendant, whilst the said C. was sole and unmarried, work, &c. to wit, on, &c. (x) at, &c. was indebted to the said C. in the sum of £- of by wife belawful, &c. for the work and labor of the said C. by the said C. before that riage (w). time done, performed, and bestowed for the said defendant, and at his special instance and request (or, for divers goods, wares, and merchandize, by the said C. before that time sold and delivered to the said defendant, &c.) and being so indebted, he the said defendant in consideration thereof afterwards, and whilst the said C. was sole and unmarried, to wit, on the day and year aforesaid, at, &c. aforesaid, undertook, and then and there faithfully promised the said C. to pay her the sum of money when he the said defendant should be thereunto afterwards requested. The quantum meruit thereon is as follows :-And whereas also afterwards, and whilst the said C. was sole and unmarried, to wit, on the day and year aforesaid, at, &c. aforesaid, in consideration that the said C. at the like special instance and request of the said defendant, had before that time done, performed, and bestowed other her work and labor for the said defendant, he the said defendant undertook, and then and there faithfully promised the said C. to pay her so much money, as she therefore reasonably deserved to have of the said defendant; and the said plaintiff's aver, that the said C. whilst she was sole and unmarried, therefore reasonably deserved to have of the said defendant the sum of, &c. whereof, &c. (As ante, 38. Add the money counts, and the account stated with the feme before marriage.) Yet the Breach. said defendant not regarding his said promise and undertaking, but contriving and intending to deceive and defraud the said C. whilst she was sole and un (v) See ante, n. (a), p. 93. (w) Whenever the wife joins, her interest must appear, 2 Bla. Rep. 1236. How to sue, and when husband and wife may join, sce ante, vol. i. See a form at the suit of Baron and Feme, sole trader, 1 (x) It is usual to insert a day before the |