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nor would, at the said time, when he was so requested, as aforesaid, or at any time before or afterwards, *accept the said wheat, or any part thereof, of or from him the said A B, or pay him for the same, as aforesaid, but then and there wholly neglected and refused so to do. [If the article sold has been resold, as it may be, 1 Salk. 113. and a loss have arisen, or if there have been any expense in rehousing the goods, here state such damage. Add counts for goods bargained and sold, ut ante, 17, and the account stated-and breach.]

For that whereas heretofore, to wit, on, &c. at, &c. the said A B, at the special instance and request of the said CD, bargained with the said CD to buy of him the said CD, and the said CD then and there sold to the said A B a large quantity, to wit, ten loads of wheat at the rate or price of 1. for each and every load thereof, to be delivered by the said CD to the said A B in a week then next following, at, and to be paid for by the said A B to the said CD on the delivery thereof as aforesaid; and in consideration thereof, and that the said A B at the like special, &c. had then and there undertaken and faithfully promised the said CD to accept and receive the said wheat, and to pay him for the same at the rate or price aforesaid; he the said CD undertook, &c. to deliver the said wheat to him the said A B as aforesaid; and although the said time for the delivery of the said wheat, as aforesaid, hath long since elapsed, and the said AB hath always been ready and willing to accept and receive the said wheat, and to pay for the same at the rate or price aforesaid, to wit, at, &c. aforesaid ;

XV. For not accepting goods.

* 99

16. For not wheat within delivering a specified

time, and at a particular place. ($)

* 100

(3) If there were a special written agreement, insert a count thereon, stating mutual promises. See a precedent, 1 East, 203. which, with the addition of an averment of notice of the plaintiff's readiness to pay, will be found useful. It is advisable in most cases in one count to set out the whole contract; in a second, to state the contract to be to deliver on request, averring a particular request;

VOL. II.

and in a third count, to state the con-
tract to be to deliver within a rea-
sonable time, averring that a reason-
able time has elapsed. In each count
a readiness to pay the price must be
alleged, 1 East, 203. 2 B. & P. 447.
2 Saund. 352. n. 3.
When the con-
tract is to deliver generally, or on re-
quest, a special request by the plain-
till must be averred, 5 T. R. 409

[ 12 ]

XPI Not delivering goods.

17. On a war-
Panty of a
horse to be
sound.(t)
* 101

yet the said CD not regarding, &c. but contriving, &c. to deceive and defraud the said AB in this behalf, did not nor would, within the time aforesaid, or at any time afterwards, deliver the said wheat, or any part thereof for the said A B, at, &c. aforesaid, or elsewhere, but wholly neglected and refused so to do, whereby the said A B hath lost and been deprived of divers great gains and profits, which might and otherwise would have arisen and accrued to him from the delivery of the said wheat to him the said A B as aforesaid, to wit, at, &c. aforesaid. [Add counts for money had and received—and on an account stated.]

For that whereas heretofore, to wit, on, &c. at, &c. in consideration that the said A B, at the special instance and *request of the said CD, would buy of him the said C D, a certain horse, at and for a certain price or sum of money, to wit, the sum of . to be therefore paid by him the said A B, he the said C D undertook, and then and there faithfully pro

(t) As to actions for breaches of warranties in general, see 1 Vin. Abr. tit. Actions Case, Deceit, P. b. 1. Com. Dig. Action on the Case for a Deceit, A. 8. 2 East, 446. It was formerly more usual to declare in case than in assumpsit; but of late assumpsit is most usual, see 2 East, 451, 452. but if it be doubtful whether the defendant has a partner, it is advisable to declare in ease, to avoid a plea in abatement, 3 East, 62. see the form, in case, post, and S Wils. 40. A warranty on the sale of a personal chattel as to the right thereto, is generally implied, 2 31. Com. 451. 3 Id. 160. 3 T. R. 57. Peake, C. N. P. 94. but not as to the right to real property, (Doug. 654. 2 B. & P. 13. 3 B. & P. 166.) if a regular conveyance has been executed, 6 T. R. 606. Nor is a warranty of soundness, goodness, or value of a horse or other personalty ever implied, 2 East, 314. 2 Bl. Com. 451. 3 Bl. Com. 165. 2 Roll. Rep. 5. F.

N. B. 94. acc. See 2 Wooddes. 415.
3 Id. 199. cont. It is not necessary
for the purchaser to return the horse,
&c. unless it be expressly stipulated
that he should do so, 2 H. Bl. 572.
2T. R. 745. If not so stipulated an
action for the breach of warranty
may be supported without returning
the horse, or even giving notice of
the unsoundness, and although the
purchaser have resold the horse, 1 H.
Bl. 17. 1 T. R. 136. 2 T. R. 745.
But unless the horse, &c. be return-
ed as soon as the defect is discovered,
or if the horse has been long worked,
the purchaser cannot recover back
the purchase-money on the count for
money had and received, 1 T. R. 156
5 East, 449. 7 East, 274. 1 New Rep.
260. and in these cases, or when the
purchaser has doctored the horse, he
has no defence to an action by the
vendor for the price, but must pro-
ceed in a cross action on the warranty.
Id. ibid.
3 Esp. Rep. 82. 4 Esp
Rep. 95.

mised the said AB that the said horse then was sound (u) XVII. On Warranties. and the said A B avers, that he, confiding in the said promise and undertaking of the said CD, did afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, buy the said horse of the said CD and then and there paid him for the same the said sum of nevertheless, the said CD, contriving and fraudulently intending to injure the said A B, did not perform or regard his said promise and undertaking, so by him made as aforesaid. but thereby craftily and subtly deceived and defrauded the said AB in this, to wit, that the said horse, at the time of the making of the said promise and undertaking of the said CD, was not sound, but on the contrary thereof, was at that time unsound,(x) whereby the said horse became and was of no use or value to the said A B; and he the said A B hath been put to great charges and expense of his monies in and about the feeding, keeping and taking care of the said horse, in the whole amounting to a large sum of money, to wit, the sum of - to wit, at, &c. aforesaid.

* 102

And whereas also afterwards, to wit, on, &c. aforesaid, at Second count. &c. aforesaid, in consideration that the said A B, at the like special instance and request of the said C D, had then and there bought of him the said C D, a certain other horse, at and for a certain other price or sum of money then *and there agreed upon between him the said A B and the said CD, he the said CD undertook, and then and there faithfully promised the said A B that the said last-mentioned horse, at the time of the said sale thereof, was sound; nevertheless, the said CD, contriving, &c. (as in the first count,) in this, to wit, that the said last-mentioned horse, at the time of the said sale thereof, was not sound, whereby the same horse then and there became, &c. [As in the first count, and add counts for horse-keep, if there were any contract to that effect—and the money counts.]

() This form may readily be applied to any description of warranty, as that the horse was "free from vice," &c.

(x) The particular description of unsoundness needs not be stated, it

being a rule in pleading, that the
breach may in general be assigned in
the negative of the words of the con-
tract, Com. Dig. Pleader, C. 45. 2
Saund. 181. b. 3. T. R. 307.

18. On a warranty of soundness on

of horses.

For that whereas heretofore, to wit, on, &c. at. &c. in consideration that the said A B, at the special instance, &c. would the exchange deliver to the said CD a certain horse of him the said AB, of great value, and would also pay to him the said C D a certain sum of money, to wit, the sum of. of lawful, &c. in exchange for a certain mare of him the said CD, he the said C D undertook, &c. that the said mare of him the said C D, was then and there sound; and the said A B avers that he, confiding in the said promise and undertaking of the said C D, did afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, deliver to the said C D, the said horse of him the said A B, and did also then and there pay to him the said C D the said sum of. in exchange for the said mare, of him the said C D. Yet the said CD, contriving and fraudulently intending to injure the said A B, did not perform or regard his said promisc and undertaking; but thereby craftily and subtly deceived the said A B in this, to wit, that the said mare, at the time of the making of the said promise and undertaking of the said CD as aforesaid, was not sound, but on the contrary thereof, was at that time unsound, whereby the said mare became and was of no use or value to the said A B, to wit, at, &c. aforesaid; and whereby also, (state special damage by expense of feeding, Second count. &c. as ante, 101.) And whereas also afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said A B, at the *like special, &c. had then and there delivered to the said CD a certain other horse of him the said A B, of great value, and had also paid to him the said CD, a certain other sum of money, to wit, &c. in exchange for a certain other mare of him the said CD, he the said C D then and there undertook, &c. that the said last-mentioned mare, at the time of such last-mentioned exchange, was sound; yet the said C D contriving, &c. did not perform or regard his said last-mentioned promise and undertaking; but thereby craftily and subtly deceived the said A B in this, to wit, that the said last-mentioned mare, at the time of the said last-mentioned exchange, was not sound, but was at that time unsound, and thereby became and was of no use or value to the said A B, to wit, at, &c. aforesaid. [As to the statement of the damage and the com mon counts, ante, 101.]

* 103

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servations.

In Coggs v. Bernard, 2 Lord Raym. 912, 913. Holt, Ch. J. General obstates, that there are six sorts of bailments; but Sir William Jones, in his Work on Bailments, 35, 36. arranges them under five heads: 1. Depositum, or the delivery of goods to the bailee to be kept for the bailor without reward. 2. Mandatum, or commission when the bailee undertakes without reward to do some act about the thing bailed, or to carry it. 3. Commodatum, or loan for bailee's use without reward to bailor. 4. Pignori acceptum, where goods are pawned to bailee. 5. Locasum, or hiring, which is always for reward; and which is either, 1st. Locatio rei, or use of the thing by bailee paying reward to the bailor. 2dly. Locatio operis faciendi, when work and labour, or care and pains are to be performed or bestowed on the thing delivered. 3dly. Locatio operis mercium vehendarum, when goods are delivered to a public carrier, or a private person to be carried. The respective liabilities of these seve ral bailees are considered in the authorities above referred to, and in 1 H. Bl. 158. 1 Saund. 312. n. 2. In the following pages a *precedent is given under each of the heads that usually occur in practice, except that of Mandatum, as to which see a declaration, 1 H. Bl. 158. 5 T. R. 143.

For that whereas heretofore, to wit, on, &c. at, &c. in consideration that the said A B, at the special, &c. had caused to be delivered to him the said CD certain goods and chattels, to wit, &c. of great value, to wit, of the value of -. to be taken care of, and safely and securely kept by the said CD for the said ♬ B, he the said C D undertook, &c. to take due and proper care of, and safely and securely keep the said goods and chattels for the said A B, and to redeliver the same to him the said A B,

* 104

Depositum, ante, 103.

19. Against bailee without reward for not

taking care of,

and redeliver

ing goods eneare.()

trusted to his

(y) This description of bailment is called a depositum, or a bailment of goods to be kept by the bailee for the bailor, without reward to the bailee, 2 Lord Raym. 912. Sir W. Jones, 35, 36, 2 Stra. 1099. and the bailee

is not liable for loss or damage, un-
less it be attributable to a degree of
neglect, of which a prudent man
would not be guilty in the care of his
own property. Id. ibid.

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