whereas the faid defendant, at the time of the making of the.
note hereinafter mentioned, to wit, on, &c. at, &c. aforefaid, was
a goldfmith, and a trader in that bufinefs, and a perfon there trad-
ing and ufing commerce in the receiving and paying of money; and
on the fame day and year, and long before and afterwards, one
Richard Wood was the fervant of the faid defendant, and was by
him employed and entrusted in the keeping and writing of books
and bills or notes concerning fuch receipts and payments; and
the faid R. W. fo being the fervant of the faid defendant as afore-
faid, and fo being employed and entrusted as aforefaid, he the faid
R. W. on the faid nineteenth of September in the year aforefaid,
at, &c. aforefaid, according to the said cuftom, made a certain note
in writing, bearing date the fame day and year, fubfcribed with
the proper hand and name of the faid R. W. and by that note the
faid R. W. promised to pay to the faid plaintiff, by the name, &c.
of, &c. or bearer, on demand, two hundred and thirty pounds for
the faid defendant (then being his mafter as aforefaid); whereby
the said defendant, according to the faid cuftom, became liable to
pay to the faid plaintiff on demand the said two hundred and thirty
pounds mentioned in the faid note, according to the tenor of the
faid note, and according to the said cuftom; and being fo liable,
the faid defendant, in confideration, &c. undertook, &c. and al-
though the said plaintiff afterwards, to wit, on, &c. at, &c. afore-
faid, fhewed and prefented the said note fo made by the said R. W.
as aforefaid to the faid defendant, aud demanded the payment of the
faid fum of two hundred and thirty pounds therein specified of the
faid defendant, yet the faid defendant, not regarding, &c. (common
conclufion. Then add a Count for two hundred and thirty
pounds, as if the faid note had been paid by defendant himself;
money lent; money had and received; and common conclufion
to three laft Counts.)

ner,

MIDDLESEX, T. W. adminiftratrix, &c. of S. T. de- Adminiftraceafed, with the last will and teftament of S. T annexed, against trix cum J. L. 'for that whereas before and at the time of the making teftamento of the promises and undertakings hereafter mentioned, and after- annexo of wards, the said defendant and one M. C. now deceased, and whom Payee athe said defendant hath furvived, were partners and joint dealers gift a furviving Parttogether in trade and commerce, to wit, at, &c. and the faid demaker. fendant and M. C. being fuch partners and joint dealers together, the said defendant, in the lifetime of the faid M. C. and alfo in the lifetime of the faid S. T. (plaintiff's teftator,) to wit, on, &c. at, &c. aforefaid, for himself and the faid M. C. his faid partner, made and figned a certain note (&c. as in declaration ante, fo. 343. Payees, &c. against Drawers, partners, on note made by one of them, till you have stated the delivery of the note, then proceed as follows): whereby, and by reafon, &c. and by force of the ftatute, &c. the faid defendant and M. C. in the lifetime of the faid M. C. and alfo in the lifetime of the said S. 7. (plaintiff's tefta

tor,)

Partner,

tor,) became liable to pay to the faid S. T. the faid fum of money in the faid note fpecified, according to the tenor and effect of the faid note; and being so liable, they the said defendant and M. C. in their respective lifetimes of the faid M. C. and S. T. to wit, on, &c. at, &c. undertook, &c. And whereas, &c. (the ufual Conclufion in common Counts, and the following conclufion): Yet the faid deaffumpfit at fuit of Ad- fendant and M. C. (deceafed partner,) in the lifetime of the faid miniftratrix M. C. and the faid defendant, after his decease, not regarding, against a &c. but contriving, &c. to deceive and defraud the faid S. T. furviving (plaintiff's teflator,) and the faid plaintiff, to whom adminiitration of all and fingular the goods and chattels, rights and credits, which were of the faid S. T. deceased, at the time of his death, with the will of the faid S. T. after the death of the faid S. T. to wit, on, &c. át, &c. was by, &c. in due form of law committed,) after his death, in this behalf have not, nor hath either of them, paid the faid feveral fums of money in fuch promifes and undertakings mentioned, or any or either of them, or any part thereof, either to the faid S. T. in his lifetime, or to the faid plaintiff, adminiftratrix as aforefaid, fince his death, although (a) to pay the fame the faid defendant and M. C. were requested by the faid S. T. in the lifetime of the faid S. T. and alfo in the lifetime of the faid M C. to wit, on the aforefaid day of in the year aforefaid, and often afterwards, as was the faid defendant by the faid S. T. in his lifetime, aud by the faid plaintiff, adminiftratrix as afore. faid, after the death of the faid S. T. and after the death of the faid M. C. to wit, at Weitmialter aforefaid; but they the faid defendant and M. C. to pay the same have, and each of them hath, always wholly refuted, and the faid defendant Aill refuses to pay the fame to the faid plaintiff, adminiftratrix as aforefaid, to the damage of the faid plaintiff, as fuch administratrix as aforefaid, of 1. fuit, &c. And fhe alfo brings into court here the letters of adminiftration of the faid S. T. bearing date the day and year in that behalf above mentioned, with the will of the faid S. T. annexed, which fufficiently teftify to the Court here the granting the administration aforefaid to the faid plaintiff.

Declarati

(a) The facts of this averment cannot be material, though it is ufual .to make it agreeable to the real circumftances of the cafe if they are

known. This averment is drawn upon the idea of defendant's partner having died before plaintiff's teftator.

LONDON, to wit. J. H. efquire, adminiftrator, &c. of on by Admi M. B. efquire, deceased, limited until the original laft will and airator, limited until teftament of the faid deceased, or an attefted copy thereof, the original fhould be brought into and left in the registry of the court will, or a of the Archbishop of Canterbury, Primate of all England, and copy there- metropolitan, and letters of administration to the will annexed, of

af fhould be

brought into the Archbishop's court, of Payee of a note of hand, Carolina currency, againit Maker for non payment.

all

Drawer.

all and fingular the goods and chattels and credits of the deceased fhould be applied for and granted by the faid court, but no further or otherwife, or in any other manner; complains of Sir J. W. Payer abart. being, &c. for that whereas the said Sir J. after the first day gainst of May, which was in the year of Our Lord 1705, that is to fay, on the seventh of December 1774, at Sufannah in Georgia, that is to fay, at London, &c. made his certain note in writing, commonly called a promiffory note, his own proper hand being thereto fubfcribed, bearing date the fame day and year last aforefaid, and then and there delivered the faid note to the faid M. in his lifetime; and by the fame note then and there faithfully promised to pay to the faid M. in his lifetime by the name of, &c. or order, on or before the first of February next following the date of the said note, eight thousand eight hundred and two pounds five fhillings South Carolina currency, with intereft from the date thereof, for value received; by reafon whereof, and by force of the flatute in fuch cafe made and provided, the said Sir J. became liable to pay to the faid M. in his lifetime the faid fum of money mentioned in the faid note, according to the tenor and effect of the faid note; and being fo liable, (affumpfit, &c.) And the faid J. N. avers, that the faid eight thoufand eight hundred and two pounds five fhillings South Carolina currency, at the time of making the faid note, was and from thence hitherto hath been, and fill is, of the value of, &c. to wit, at, &c. (Goods fold, &c. Another Count on the note, and prefentment after it became due, &c.) Yet the faid defendant, not regarding, &c. to the faid Jofeph, after the death of the faid M. to which faid J. adminiftration of all and fingular the goods, chattels, and credits which were of the faid M. at the time of his death, limited until the original will, &c. to the da mage, &c. with this, that the faid J. will verify that the original laft will and teftament of the faid deceased, or an authentick or other copy thereof, hath not yet been brought into or left in the registry of the court of the archbishop, and letters of adminiftration with the fame annexed of all and fingular the goods, chattels, and credits of the faid deceafed been applied for or granted by the fame court, and the faid letters of adminiftration are now in full force and effect. GEO. WOOD.

Maker,

where part

WHEREAS, &c. (State all the circumstances of the note, Declaration with the liability and affumpfit to pay as the cafe fhall require; against the theu infert the following averment and conclufion): And the faid plaintiff avers, that although the faid defendant hath paid a part of of the many the money mentioned in the aforefaid note, that is to fay, the fum has been paid ef, &c. to the faid plaintiff; to wit, at, &c. aforefaid; yet the faic (4),

(a) The only part of this Piecedent that was worth preferving is the averment and conclufion, though they are feldom or never ufed; the practice being to take no notice of a payment in part, it coming properly from the

defendant,

other fide; and the breach of the Af-
fumpfit on which the action is brought
being of fuch a nature as not to re-
quire proof in toto, but of any part
merely.

(a) Payce

ker, on a

note payable when

age.

defendant, not regarding, &c. but contriving, &c. hath not as yet
paid the refidue of the said fum in the faid note specified, or any
part thereof, to him the faid plaintiff, (although fo to do the faid
defendant was requested by the faid plaintiff,, as well at the
end of the time appointed for the payment of the money in the faid
note specified, to wit, on the(b)
day of
in the
year aforefaid, as afterwards, to wit, at, &c. aforefaid,) but, &c.
hath hitherto wholly refufed and neglected, and ftill refufes fo to
do, to wit, at, &c. aforefaid.

(b) Day of payment, including days of grace.

THAT whereas on the twenty-feventh day of June A.D.1730, against Ma- at, &c. made and figned his certain note, &c. and thereby acknowledged himself to have borrowed and received, on the faid twenty-feventh of June in the year 1730 aforefaid, of the faid defendant's plaintiff, the fum of one thousand pounds, being for the purchafwife came of ing for himself a lieutenant's commiffion in the first regiment of foot guards, under the command of the right honourable the Duke of Marlborough, and which faid one thoufand pounds he the faid defendant, in and by the faid note, promised to pay on demaud, as foon as his wife fhould attain the age of twenty-one years, and then and there delivered, &c.; whereby, and by reason, &c. and by force of the ftatute, he the faid defendant became liable to pay, &c. according to the tenor and effect of the faid note; and beAverment ing fo liable,. &c. (affumpfit accordingly). And whereas the that wife faid defendant heretofore, to wit, on the day and year aforefaid, has attainat, &c. aforefaid, (indebitatus affumpfit for money "borrowed and received of plaintiff by defendant;" affumpfit to pay when F. the then and now wife of the faid defendant, should attain the age of twenty-one years; another Count for money lent, and like affumpfit, and a general infimul computaffet; then introduce the following averment): And the faid plaintiff in fact faith, that although the faid F. the wife of the said defendant, at the time of mak

ed her age

of twenty

one years.

(a) There are doubts whether the note be within the ftatute or not, though it will be good evidence under either of the common Counts. It seems to depend upon a contingency that may never happen, as the defendant's wife may never attain the age of twenty-one. It will however ferve as a precedent for notes payable upon a (a) certain event, as death or the like. A note made payable certainly and at all events is good within the ftatute 3. and 4. Anne; fecus, if it be (b) contingent, and (c) uncertain whether it fhall ever be paid or not. A note given to an (d) infant payable when he fhall come of age is of the former kind. 1 Burr. 24&c. A note payable on the

making of the faid note herein before mentioned, and alfo at the
time of the making of the three feveral promifes and undertakings
first above mentioned, after the making of fuch promises and under-
takings, to wit, on the eighteenth of January 1732, did attain
the age of twenty-one years, to wit, at, &c. Yet, &c. (common
conclufion) that the faid plaintiff did not, (1) upon his faid wife's (1) Burr.
attaining the age of twenty-one years, pay, nor hath he at any other 226.
time whatsoever paid, &c, although, &c. (Lay the requeft as well
when his faid wife attained her age of twenty-one years as afore-
faid as afterwards) to wit, at, &c. aforefaid; but he fo to do
hath wholly refufed and neglected, and ftill, &c.

Drawer on

a note made

THAT whereas the faid defendant, on the twenty-fourth of (a) Payee July A. D. 1733, at, &c. [infimul computaffent] promife to pay againft "when requefied." 2d Count, [infimul computaffent] promife to pay, twenty-fourth July 1734 (when the note became payable). by the drazu And whereas the faid defendant, on the faid twenty-fourth of er's wife us July in the year 1733 aforefaid, at, &c. aforefaid, (note made bis fervant. by himself.) And whereas heretofore, to wit, on the said twentyfourth day of July in the year 1733 aforefaid, at, &c. aforefaid, one Mary Ferrers, then and there being the fervant of the faid defendant, in that behalf for him the faid defendant, made and figned a certain note, &c. bearing date, &c. and thereby for the faid defendant, promised to pay to the faid plaintiff, by the name and defcription of, &c. or order, twelve months after the date of the faid note, forty pounds for value received, and then and there delivered, &c. whereby, and by reason, &c. and by force of the ftatute, &c. the faid defendant became liable to pay, &c. according to the tenor and effect of the faid last-mentioned note; and being fo liable, &c. (affumpfit accordingly). [Add the ufual common Counts, except the infimul computaffent, which is already directed; and common conclufion.]

All the Counts may remain, tho' the first and the third are unneceffary. The first is inconfiftent with the fact, and the third is included in the

fourth, which is upon the real cafe.
It might alfo be as well were they
tranfpofed, and the Count upon the
note put first.

note

zorong date.

FOR that whereas faid defendant, on the twenty-eighth of Ja Declaration nuary A. D. 1742, at, &c. made and figned his certain note in on writing, commonly called, &c. bearing date the twenty-eighth of bearing a January 1724, when in truth and in fact the faid note was meant, intended, and understood to bear date the twenty.eighth day of January 1742; and by the faid note defendant promised, &c. (as in other cafes).

FOR