Landlord a last aforesaid, until and upon, &c. to wit, at, &c. aforesaid. gainst tenant. Yet the said CD not regarding his said last-mentioned promise and undertaking, but contriving and fraudulently intending to deceive and injure the said A B, did not, nor would, during the continuance of the said last-mentioned tenancy, use the said last-mentioned messuage, garden and premises, with the appurtenances, in a tenant-like and proper manner. But on the contrary thereof, he the said C D during the continuance of the said last-mentioned tenancy, so improperly behaved and conducted himself in that behalf, and used the said last-mentioned messuage, garden and premises, with the appurtenances, and the trees therein, in so untenant-like and improper a manner, that by reason thereof the said last-mentioned mes suage, garden and premises, with the appurtenances, then and there became, and were, and still are, ruinous, broken down, destroyed, prostrated, foul, miry and greatly dilapidated, and the trees of the said A B growing in and upon the said lastmentioned premises became and were greatly damaged and spoiled, to wit, at, &c. aforesaid. 38. By tenant (p) * 139 For that whereas before and at the several times hereinafter against landlord on impli- mentioned, the said CD held a certain messuage and premied contract, to indemnity ses, with the appurtenances, situate, &c. as tenant thereof, to tenant against one E F, at and under a certain yearly *rent, to wit, &c. paypayment of ground rent. able by the said C D to the said E F, to wit, at, &c. and thereupon heretofore, to wit, on, &c. at, &c. in consideration that the said A B, at the special instance, &c. had become and was tenant to the said C D of the said messuage and premises, with the appurtenances, at and under a certain yearly rent, to wit, &c. therefore payable by the said A B to the said C D, he the said CD undertook, &c. during the continuance of the said last-mentioned tenancy, to indemnify and save harmless him the said A B, from and against the payment of the said yearly rent so payable to the said E F as aforesaid, and from and (p) As to declarations for not indemnifying, see ante, 88. A stran ger whose goods have been distrain ed, may support assumpsit for mo ney paid, 8 T, R. 308. against any distress or action, costs, charges, damages or ex- Tenant apenses, which should, or might be made, brought, arise or ord gainst landhappen, for or by reason of the non-payment thereof. And although the said tenancy of the said A B was and continued for a long time after the making of the said promise and undertaking of the said CD, to wit, thence hitherto. Yet the said A B in fact saith, that the said C D, not regarding, &c. but contriving, &c. did not, nor would, during the continuance of the said tenancy of the said A B as aforesaid, indemnify,. or save harmless, him the said A B according to his said promise and undertaking, but wholly neglected so to do, to wit, at, &c. aforesaid, and by reason thereof, after the making of the said promise and undertaking of the said C D, and during the continuance of the said respective tenancies, and whilst the said AB occupied and enjoyed the said messuage and premises, with the appurtenances, as such tenant as aforesaid, to wit, on, &c. a certain distress was made by and on the behalf of the said E F, on certain goods and chattels of the said A B then in and upon the said messuage and premises, for a certain sum of money, to wit, the sum of —. of lawful, &c. then due and in arrear to the said E F, for and in respect of the said yearly rent so payable to him as aforesaid, and by means of the premises he the said A B was not only put to and suffered great trouble and inconvenience, but was forced and obliged to, and did necessarily pay the said sum of -. together with the charges of the distress, in the whole amounting to a large sum of money, to wit, the sum of 1. and was, and is, by means of the premises, otherwise greatly injured and damnified, to wit, at, &c. aforesaid. [Add the count for money paid-account stated-and breach.] * 140 141 III. DECLARATIONS IN DEBT. 1. Declaration J. BEGINNING AND CONCLUSION. Markham and Le Blanc. in debt, in K. latitat.(a) Thursday(b) next after fifteen days of St. Middlesex, (to wit.)(c) A B complains of C D, being in B. by bill or the custody of the marshal(d) of the marshalsea of our lord the now king, before the king himself, of a plea that he render to the said A B, the sum of —.(e) of lawful money of Great Britain, which he owes to and(f) unjustly detains from him. For that whereas, &c. [Here state the subject matter(g) of the debt, the breach as post, 144. and conclude as follows :] To the damage of the said AB of (h) and therefore he brings his suit, &c. Pledges, &c. (a) For the forms in C. P. and the Exchequer, see the Forms of Courts. (b) As to the title of the term, see ante, 1. n. (a), tors suing in that character, in general it must be in the detinet only, see Com. Dig. Pleader, 2 D. 1, 2. 2 W. 8. 1 Saund. 1. 112. n. 1. 216. S (c) As to the venue, see vol. 1. In East, 2. Lord Raym. 698. So in dex, tit. Venue. (d) Ante, 1. n. (c). (e) This sum is to be the aggregate of all the sums mentioned in the different counts. In debt on simple contract, the plaintiff may prove and recover less than the sum demanded in the commencement, or in each count, 1 H. Bl. 251. 547. Vin. Abr. tit. Miscasting. (f) Debt is in general to be in the debet and detinet, Com. Dig. Pleader, 2 W. 8. Gilbert on Debt, 399, 400, 401. 359. but in actions by or against executors and administra the detinet for goods, Gilbert on Debt, 400, 401. 359. husband and wife are to be sued in the debet and detinet, Gilb. 402. Omission of both the debet and detinet, is demurrable, 6 Mod. 306. (g) As to declarations in debt in general, sce Com. Dig. Pleader, 2 W. 7. &c. (h) This sum is in general merely nominal. If there be a demand for interest, insert a count for the same, in debt, as ante, 42. As to the conclusion in debt qui tam, sec ante, & 11. (9). *11. ON SIMPLE CONTRACTS. And whereas also the said CD afterwards, to wit, on, &c. at,(*) &c. aforesaid, was indebted to the said A B in the sum of. of like lawful money, for, &c. [Here state the subject matter of the debt, whether for land, goods, work or money, precisely as in assumpsit, ante, 7 to 44. and then proceed as follows :] And to be paid by the said CD to the said A B, when he the said CD should be thereunto afterwards requested,(/) whereby and by reason of the said last-mentioned sum of money, being and remaining wholly unpaid, an action hath accrued to the said A B to demand and have of, and from the said CD, the said sum of. parcel of the said sum above demanded. Common counts. 1. Form of the indebita tus conut in debt.(i) 2. Form of the quantum meruit count And whereas also afterwards, to wit, on, &c, aforesaid, at &c. aforesaid, in consideration that the said A B, at the like special instance and request of the said C D, had before that in debt.(m) time, (i) This form is usually adopted: formerly the count did not state that the defendant was indebted, &c. but was as follows: " and whereas also the said CD, oh, &c. at, &c. bought of the said AB, certain, &c. for, to be therefore paid by him the said CD to the said A B, when he the said CD should be thereunto requested;" and then the other counts followed, omitting the "whereby," &c. in the above precedent, and averring at the end of the last count, "that all the sums mentioned in the different counts together amount to the sum first demanded;" see Aston's Ent. 209, 210. 2 Mallory's Ent. 177. Fortes. 198. But in the declaration in Emery v. Fell, 2 T. R. 28. [* Here state the subject matter of the debt, as in the quantum meruit counts in assumpsit, ante, 7 to 42., and then proceed as follows:] He the said CD undertook, and then and there agreed to pay to the said A B, so much money as he therefore reasonably deserved to have of the said C D, when he the said CD should be thereunto afterwards requested. And the said A B avers, that he therefore reasonably deserved to have of the said CD, the further sum of. of like lawful money, to wit, at, &c. aforesaid, whereof the said C D afterwards, to wit, on, &c. aforesaid, there had notice, whereby an action hath accrued to the said AB, to demand and have of and from the said CD, the said last-mentioned sum of 7. other parcel of the said sum above demanded. And whereas also the said A B afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, at the like special instance and request of the said C D, lent to the said CD, and the said C D then and there borrowed of the said A B, a large sum of money, to wit, the sum of . of like lawful money, to be paid by the said CD to the said A B, when he the said CD, should be thereunto afterwards requested,† whereby and by reason of the said lastmentioned sum of money being and remaining wholly unpaid, an action hath accrued to the said A B, to demand and have of and from the said CD, the said last-mentioned sum of →. other parcel of the said sum above demanded. And whereas also the said A B afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, hath paid, laid out and expended, a certain other sum of money, to wit, the sum of —. of like lawful money, for the said C D, and at his like special instance and request, and to be paid by the said CD to the said AB, when he the said C D should be thereunto afterwards requested, whereby, &c. [same as above, from the obelisk to the end.] (n) This is according to the old forms, Ast. Ent. 209. 2 Mall. 177, 178. but the count may state that the defendant was indebted, &c. See |