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IV. On Pa- said A B, but hath hitherto wholly neglected and refused, and rol awards.

still neglects and refuses so to do, to wit, at, &c. aforesaid. [Add counts on the plaintiff's original demand referred to ar

bitration the account stated and breach.](x). * 82

*For that whereas before the making of the promise and unmise to pay the costs of an dertaking of the said C D, hereinafter next mentioned, a cere in a week, tain action had been commenced and prosecuted by and at the in considera suit of the said A B against the said C D, in the court of our tion of plaintiff staying

lord the now king, before the king himself, for the recovery proceedings.

of a certain sum of money, to wit, the sum of -. then and at the time of the making of the promise and undertaking of the said C D, hereinafter next mentioned, due and owing from the said C D to the said A B.(y) And which said action at the time of the making of the said promise and undertaking of the said C D hereinafter next rentioned, was depending in the said court, to wit, at, &c. aforesaid, whereof the said CD then and there had notice. And thereupon heretofore, to wit, on, &c. at, &c. aforesaid, in consideration of the premises, and that the said A B at the special instance and request of the said C D would cease to prosecute the said action, and would stay all further proceedings therein, he the said C D undertook, and then and there faithfully promised the said A B to pay the costs of commencing and prosecuting the said action in a week then next following. And the said A B avers, that he, confiding in the said promise and undertaking of the said C D, did then and there cease to prosecute the said action, and hath thence hitherto stayed all further proceedings therein. And that the costs of commencing and prosecuting the said action amountcd to a large sum of money, to wit, the sum of -l. of lawful, &c. whereof the said C D afterwards, to wit, on, &c, at, &c. had notice. And although a week from the time of the ma

(2) It has been clecided, that the (y) It is not necessary to state the award, whou there is a parol submis- subject matter of the debt, Com. sion, may in most cases be given in Dig, tit. Action on the Case on Asevidence under the common count sumpsit, H. 3. though it must be founded on the original debt, or on shewn that there was some cause of the account stated, Peake, C. N. P. action against the defendant, or some 227. 1 Esp. Rep. 19, 5 T. R. 6. other person, 4 East, 455. i New

Rep. 179

king the said promise and undertaking of the said C D bath v. Forbearlong since elapsed, to wit, at, &c. aforesaid. Yet the *said fendant.

ance of deC D not regarding, &c. hath not as yet paid the said costs of

* 83 commencing and prosecuting the said action, or any part thereof, (although be the said CD afterwards, and after the expiration of a week from the time of making his said promise and undertaking, to wit, on, &c. at, &c. aforesaid, was requested by the said A B so to do.) But he so to do hath hitherto wholly neglected and refused, and still doth neglect and refuse, to wit, at, &c. aforesaid. [Add a count on the original debt-money paid-the account stated--and the usual breach applicable to those counts only.]

For that whereas one E F before and at the time of the ma- 6. On a pro

mise to pay king of the promise and undertaking of the said C D herein- the debt of

tbird person, after next mentioned, was indebted to the said A B in a cer

in considera tain sum of money, to wit, the sum of . of lawful, &c.(a) to tion of for

bearance.(:) wit, at, &c. and thereupon heretofore, to wit, on, &c. at, &c. in consideration of the premises, and that the said A B at the special instance and request of the said C D would forbear and give time to the said E F for the payment of the said sum of -. until the day of (6) he the said C D undertook, and then and there faithfully promised(c) the said A B to pay him *the said sum of -leon, &c. And the said A B

* 84

(3) See precedents of these decla- Action of Assumpsit, F. 8. ^ East, rations, 2 Wentw. 405. &c. and In- 455. See the form of declaring der to ditto.

against an heir, 2 Saund. 135. but a (a) It is not necessary to state the promise by an executor, in considera. subject matter of the debt, though a tion of forbearance, is valid, though demand recoverable at law or in equi- he have no assets at the time, because ty, must be stated ; ante 82. n. (y). by the forbearance the plaintiff is

(6) The mere promise of a third precluded from obtaining judgment
person to pay the debt of another, of assets, quando acciderint. Id.
without a stipulation by the plaintiff ibid.
to forbear, or some other new con (c) Though the promise must, un-
sideration, is not valid, 1 Saund. 211. der the stat. 29 Car. II. c. 3. 3. 4. be
4. Com. Dig. Action on the Case on in writing, and the whole considera.

Assumpsit, B. 1,2. The promise of tion must be stated in such writing,
an heir, who has no assets by descent, see 5 East, 10. it needs not be so sta-
to pay the debt of his ancestor on ted in the declaration, 1 Saund. 276.
consideration of forbearance, is not n. 1.
binding, 2 Saund. 137. Com. Disa

VI. Forbear. avers, that he, confiding in the said promise and undertaking of ance of third person,

the said C D, so made as aforesaid, did forbear and give time to the said E F for the payment of the said sum of --. until the said day of, to wit, at, &c. aforesaid, whereof the said C D afterwards, to wit, on the day and year last aforesaid, there had notice, and thereby and according to the tenor and effect of his said promise and undertaking, he the said CD became liable to pay to the said A B the said last-mentioned sum of -i on the said

to wit, at, &c. aforesaid. [Add counts for money had and received and on an account stated.]

day of

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7. On a pro

For that whereas heretofore, to wit, on, &c. at; &c. in consi. mise to pay deration that the said A B at the special instance and request of money in consideration of the said C D would deliver to him the said CD, a certain the exchange of horses. horse of him the said A B, of great value, in exchange(d) for

a certain horse of him the said C D, he the said C D undertook, and then and there faithfully promised the said 4 B to deliver the said horse of him the saici C D to him the said A B, and to pay him a certain sum of money, to wit, the sum ofl. of lawful money of Great Britain, in exchange for the said horse of the said A B, 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, deliver to the said C D the said horse of him the said A B, and although the said C D in part performance of his said promise and undertaking, did then and there deliver to the said AB the said horse of him the said C D in exchange for the said horse of him the said A B. Yet the said C D not further regarding *his said promise and undertaking, hath not although often requested so to do, as yet paid to him the said A B the said sum of. or any part thereof, but hath hitherto wholly neglected and refused, and still wholly neglects and refuses so to do, to wit, at, &c. aforesaid. [Add a count“ for horses, mares and geldings, bargained and sold,” and “for horses, &c. sold and delivered," and the account stated--and breach.]

* 85

(d) For the distinction between a Com. 446. 3 Salk. 157. sale and an exchange,

see ! B1.

For that whereas heretofore, to wit, on, &c. at, &c. in con- 8. For not sideration that the said A B, at the special instance and request bill of sex of the said C D, would sell and deliver to him the said C D, change in pay.

ment for goods a certain quantity, to wit, 100 sacks of malt, at a certain rate sold. (e) or price, then and there agreed upon between the said A B and the said CD, to wit, at the rate or price of -. for each and every of the said sacks of malt, amounting in the whole to a large sum of money, to wit, the sum ofl. of lawful moRey of Great Britain, he the said C D undertook, and then and there faithfully promised the said A B to pay him for the said malt by a good bill or bills of exchange, payable in four months from the delivery of the said malt, to him the said C D, whenever after such delivery, he the said C D should be thereto requested, and the said A B in fact saith, that he confiding in the said promises and undertaking of the said CD, did afterwards, to wit, on, &c. at, &c. aforesaid, sell and deliver the said quantity of malt, to the said C D, on the terms aforesaid, and although the said C D in part performance of his said promise and undertaking, afterwards, to wit, on, &c. at, &c. aforesaid, paid to the said A B by a certain *bill of exchange, a part of the said price of the said malt, to wit, the sum of 1001. and although the said A B afterwards and before the expiration of four months from the delivery of the said malt as aforesaid, to wit, on, &c. aforesaid, at, &c. aforesaid, requested the said CD, to pay him the said A B, the residue of the said price of the said malt, by such bill or bills of exchange as aforesaid, yet the said C D not regarding his said promise and undertaking, but contriving and wrongfully and unjustly intending, craftily and subtly to deceive and defraud the said A B in that behalf, did not nor would when he was so requested as aforesaid, or at any time before or afterwards, pay the said A B the residue of the said price of the said malt or any part thereof,

* 86

(e) When goods are sold on a cre- dent, 4 East, 147. but if the credit dit not elapsed at the time of de- be elapsed at the time of declaring, claring, and on the terms that the de. though after the writ issued, and affendant should deliver a bill of ex ter the first day of term, the plaintiff change to the plaintiff, or accept a may recover on the common counts, bill in his favour, it is necessary to de- the declaration being entitled spe. clare specially for not delivering or cially of a day after the credit, elap aceepting the bill, as in this prece- sed, 4 East, 75.

VIII. Not de by a good bill or bills of exchange, payable in four months livering a bill of exchange.

from the delivery of the said malt as aforesaid or otherwise, howsoever, but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, and by reason thereof, he the said A B hath lost and been deprived of the use and benefit of the bill or bills of exchange, which he the said CD ought to have delivered to the said A B as aforesaid, to wit, at, &c. aforesaid. (If there be any doubt as to the terms of the contract, add another special count, stating the facts as they will probably be proved. Add two counts for goods bargained and sold—and sold and delivered—and the account stated.]

9. On a pro

For that whereas heretofore, to wit, on, &c. at, &c. in consimise to be aoconntable for deration that the said A B at the special instance and request goods sold to of the said CD, would sell and deliver to one E F *on credit, a third person.(S) all such goods as he the said E F should have occasion for * 87

and require of the said A B in the way of his the said A B's trade and business of a hemp merchant, he the said C D, undertook, and then and there faithfully promised the said A B to be accountable to him the said A B for whatever goods he the said A B should sell and deliver to the said E F as aforesaid 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. at, &c. aforesaid, sell and deliver to the said EN on certain credit, then and there agreed upon between the said A B and E F, certain goods of great value, which he the said E F, then and there had occasion for and required of the said A B in the way of his the said A B's said trade and business, and at and for certain reasonable prices then and there agreed upon by and between the said A B and the said E F, (or if no stipulated price, say, “at and for certain reasonable sums of

(S) Whenever the defendant is tion must be special as above, and not collateraliy liable to pay for goods, merely for goods sold and delivered &c. furnished to a third person (for to the defendant, or bargained and the criterion of which, see 2 T. R. sold to him, and delivered to a third 80, 81.) his undertaking must be in person at his request, 1 Saund. 211. a. writing under the 29 Car. II. c. 3. s. b. but the declaration needs not state 4. and must state the consideration of that the contract was in writing, I the defendant's undertaking, 5 East, Satınd. 276. n. 1. 10. 1 Saund. 211. a. and the deelara

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