Beginnings, pass on the case, &c.(d) For that whereas, &c.(e) [here set forth the cause of action, whether in assumpsit, case, or trover, and conclude as follows:](ƒ) To the damage of the said A B of. and therefore he brings his suit, &c. Pledges(g) to prosecute, John Doe, and Richard Roe. Markham and Le Blanc. Thursday next after fifteen days of St. Middlesex, (to wit.) A B complains that CD, being in the custody of the sheriff of -, by virtue of a certain precept called a bill of Middlesex, (or "writ of our lord the king, called a latitat,") issued out of the court of our said lord the king, before the king himself, against the said C D, in this suit, and returnable in the same court, on same term:(i) of a plea of trespass on next after —, in this the case, &c. for that whereas, &c. [here state the cause of action, and conclude as in the preceding precedent.] (d) In debt, covenant, &c. the form varies; see the sheet of forms of court, &c. (e) A declaration by bill in trespass, stating, that whereas, or wherefore, the defendant did the act complained of, is bad on special demurrer, see vol. 1. chapter on Declarations, 1 Stra. 621. 2 Stra. 1151. 1162. but not so by original, or in C. P. when the writ is recited, 1 Wils. 99. 2 Wils. 203. (f) The conclusion in debt, qui tam, runs as follows: "And therefore as well for our said lord the king," (or "for the poor of the said parish of -,") "as for himself in this behalf, he brings his suit," &c. A common informer is not entitled to damages. 4 Burr. 2021. 2490. The . (g) The omission of pledges is not material. 3 T. R. 157. (h) See ante, 1. n. (a) as to the title. (i) As to this form, see vol. 1. title Declaration. In this case since the 4 & 5 W. & M. c. 21. s. 3. if the declaration do not shew at whose suit the defendant is in custody, it will be bad on general demurrer, 2 Lord Raym. 1362. 1 Wils. 119, 120. but this form is not necessary when the plaintiff has proceeded by special original, Imp. K. B. 618. Tidd, 311. In the King's Bench. Thursday next after fifteen days of St. Beginnings, &c. of decla rations. of the defendants has been in outlawed tion. the same ac Middlesex, (to wit.) C D and E F were attached to answer 3. When one A B of a plea of trespass on the case, &c. and thereupon the said A B, by G H, his attorney, comes and gives the court here to understand and be informed, that since the suing out of the original writ in this cause, and before this day, to wit, on, &c. the said E F was duly outlawed in the same court here in this suit, as by the record of the said outlawry remaining in the said court in full force, more fully appears; and hereupon the said A B, by his attorney aforesaid, complains against the said CD, in the plea aforesaid, for that whereas, &c. [stating the promises by both the defendants.] N. B. This declaration must be entitled after the outlawry is complete, 1 Wils. 78. 1 East, 133.—it must state an outlawry in the present suit, 3 East, 144.-but need not refer to the record of outlawry, 7 East, 50. As to the plea denying the outlawry, see 1 East, 133. 634. II. IN THE COMMON PLEAS In the Common Pleas." Hilary Term, 47 Geo. III.(k) * 4 4. In the Middlesex, (to wit.) C D() was attached to answer *.A_B_of a plea of trespass on the case, &c.(m) and thereupon the said Common Pleas. () As to the title of this declaration, see ante, 1. n. (a), and the observation at the end of this precedent. (k) As perhaps a common capias may be issued before the cause of action arose, as in K. B. see 1 B. & P. 342. 2 B. & P. 235. it may therefore be advisable to entitle the declaration specially, as in K. B. ante, I. n.(a). (1) The addition needs not be stated in the declaration, 3 B. & P. 395. (m) As to the distinction betweenthe words attached and summoned, and as to this short recital of the nature of the action, sce Saund. 518. n. 3. Beginnings, AB, by E F, his attorney, complains, (2) for that whereas, &c. Esc. of declarations. [here state the cause of action and conclude(0) as follows:] Wherefore the said A B saith that he is injured, and hath sustained damage to the value of . and therefore he brings his suit, &c.(^) 5. In the Ex. thequer. III. IN THE EXCHEQUER. In the Exchequer of Pleas. Omit pledges. Hilary Term, 47 Geo. III. Middlesex, (to wit.) A B, a debtor to our sovereign lord the now king, cometh before the barons of his majesty's Exchequer, on the -day of -, in this same term, by E F, his attorney, and complains by bill against CD, present here in court the same day, of a plea of trespass on the case, &c. (or as the form of action may be :) for that whereas, &c. [here set out the cause of action and conclude as follows:] to the damage of the said A B of —. whereby he is the less able to satisfy our said lord the king the debts (or if at the suit of an executor or administrator, "the debts of the said E F,”) which he owes his majesty at his said Exchequer; and therefore he brings his suit, &c. Pledges to prosecute, John Doe, and Richard Roe. (n) The omission of these words, though untechnical, is not demurrable. 1 B. & P. 366. (9) In debt, qui tam, the conclusion is as in K. B. omitting pledges. In trespass it runs as follows: "And other wrongs to the said A B then and there did, to the great damage of the said A B, and against the peace of our lord the now king; (1) This it is observable varies from the conclusion in K. B. 5 II. DECLARATIONS IN ASSUMPSIT. I. COMMON COUNTS. form of the And whereas also(9) the said C' D, afterwards, to wit, on the 1. The usual day and year last(r) aforesaid, in London aforesaid, in the pa- indebitatus rish and ward aforesaid, was indebted to the said A B in the assumpsit. further sum of . of like(s) lawful money, for, &c. [Here the subject matter of the debt must be stated, as that the plaintiff had sold land or goods, to the defendant, or done work for him, or had lent money, &c. as in the following counts, 2 Saund. 350. n. 2. and, except in the counts for money had and received, it must be alleged that the debt was incurred at the defendant's request, 1 Saund. 264. n. 1. the count then proceeds as follows:] and at his special instance and request, and being so indebted, he the said C D in consideration thereof, afterwards, to wit, on the day and year last aforesaid, in London aforesaid, undertook, and then and there faithfully promised the said AB to pay him the said last mentioned sum of money, when he the said CD should be thereunto afterwards requested. count. (9) If there be no special count preceding the first indebitatus count, the form immediately after the commencement of the declaration runs thus: For that whereas the said CD on the - day of in the year of our lord, at, in the county of —, was indebted," &c. (r) If there be a special count preceding the indebitatus count, it is proper, especially in declarations on bills or notes, to insert in the com mon counts a day as recent as possi- () if the words "lawful money of The usual form of the quantum me *And whereas also afterwards, to wit, on the day and year last aforesaid, in London aforesaid, in the parish and ward aforeruit count.(t) said, in consideration that the said A B, at the like special instance and request of the said CD, had before that time, &c. [Here insert the subject matter of the debt as in the following counts, and then proceed as follows:] he the said CD undertook, and then and there faithfully promised the said A B to pay him so much money* as he therefore reasonably deserved to have of the said CD, 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 -1. of like lawful money, to wit, in London aforesaid, in the parish and ward aforesaid, whereof the said CD, afterwards, to wit, on the day and year last aforesaid, there had notice. 3. The usual form of the [Same as the above quantum meruit to the asterisk, and then quantum va- proceed as follows:] lebant count. as the said last mentioned goods, wares, and merchandise, at (u) the time of the said sale, and delivery thereof, were reasonably worth, when he the said CD should be thereunto afterwards requested. And the said A B avers, that the said last mentioned goods, wares, and merchandise, at the time of the said sale and delivery thereof were reasonably worth the further sum of -. of like lawful money, to wit, in London aforesaid, in the parish and ward aforesaid, whereof the said C D afterwards, to wit, on the day and year last aforesaid, there had notice. (t) As the plaintiff may recover on the indebitatus count, though no contract for a specific price be proved, the quantum meruit, or valebant count seems unnecessary, and where the declaration is otherwise long, should be omitted, 2 Saund, 122. n. (a). (u) This count is not in practice adopted, except when the demand is for goods sold and delivered, or bargained and sold, and the quantum meruit count appears to be in all cases sufficient. |