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XII. For not afterwards, to wit, on, &c. at, &c. aforesaid, requested the said
employing.
CD to receive her the said AB into the service of her the
said CD in the capacity aforesaid, and to retain and employ
her in such service at the wages aforesaid. Yet the said CD,
not regarding her said promise and undertaking, but contri-
ving, and fraudulently intending craftily and subtly to deceive
and defraud the said A B in this behalf, did not, nor would, at
the said time when she was so requested as aforesaid, or at any
time afterwards, receive the said A B into the service of her
the said CD, or retain or employ her in such service at the
wages aforesaid, or otherwise howsoever, but wholly neglected
and refused so to do, whereby the said A B not only lost and
was deprived of all the profits and emoluments which might
and would otherwise have arisen and accrued to her from en-
tering into the service of the said C D, but also lost and was
deprived of the means and opportunity of being retained and
employed by and in the service of divers other persons, and
remained and continued wholly out of service and unemployed
for a long space of time, to wit, for the space of three months
then next following, and was and is otherwise greatly injured
and damn fied, to wit, at, &c. aforesaid, &c.

15. On a building agreement for not performing part of the work, and for performing the residue inartificially. (m)

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For that whereas, heretofore, to wit, on, &c. at, &c. by a certain agreement then and there made by and between the said A B and the said C D, it was agreed, that the said CD should take down a certain messuage or dwelling-house, situate at, &c. and should *build two other messuages or dwelling-houses for the said A B, agreeably to certain plans thereof then in the possession of the said CD, and according to the particulars and in manner following: that is to say, that the said old house should be taken down, and the bricks cleaned and worked up,

(m) The terms of the agreement are to be stated as in the agreement. The precedents which may be classed under this head are very numerous, see the Index to'2 Wentw. When the action is founded on a written agreement, it is usual to set the same out, as to which, see 6 East, 569. If

the declaration be framed as in the
second count of the above precedent,
it must either be shewn that the de-
fendant was to have a reward for the
work to be performed, or that he ac
tually performed it, and unskilfully, 5
T. R. 143.

performing works.

&c. [Set out the agreement verbatim.] And the said agree- XIII. For not ment being made afterwards, to wit, on, &c. at, &c. [Mutual promises as ante, 76.] And although the said AB hath always, &c. [State plaintiff's general performance of the agreement, and special performance of any precedent condition.]Yet the said AB in fact saith, that the said CD contriving, and wrongfully, and unjustly intending, to injure the said A B, did not, nor would perform the said agreement, nor his said promise and undertaking, but thereby craftily and subtly deceived the said AB, in this, to wit that the said CD wholly neglected and omitted to do and perform certain works which were requisite and necessary to be done and performed under and by virtue of the said agreement, and according to the tenor and effect, true intent and meaning thereof, that is to say, to pull down, &c. [Here specify the breach, according to the fact.] And the said C D also thereby craftily and subtly deceived the said A B in this, to wit, that the said CD afterwards, to wit, on, &c. and on divers other, &c. did and performed certain other works which were requisite and necessary to be done and performed under and by virtue of the said agreement, in a bad, inartificial, and unworkmanlike manner, contrary to the *form and effect of the said agreement, and of his said promise and undertaking, to wit, at, &c. aforesaid. And Second count whereas also heretofore, to wit, on, &c. aforesaid, at, &c. aforesaid, in consideration that the said A B, at the special, &c. of the said CD, had then and there retained and employed him the said CD to take down a certain other messuage or dwelling-house, with the appurtenances, and to erect and build divers, to wit, two other messuages or dwelling-houses, with the appurtenances in lieu thereof, for the said AB, agreeable to certain plans and particulars then and there made and agreed upon by and between the said A B and the said C D, for certain reasonable reward to the said C D, in that behalf, he the said CD undertook, and then and there faithfully promised the said A B to erect and build the said last-mentioned messuage or dwelling-house, with the appurtenances, agreeable to the said last-mentioned plans and particulars, with good and proper materials, and in a sound, substantial, and workmanlike manner, and although the said C D did afterwards and before the commencement of this suit, erect and build the said last-mentioned

* 95

on same contraet.

performing

works.

XIII. For not messuages or dwelling-houses, with the appurtenances, for the said A B, to wit, at, &c. aforesaid. Yet the said CD, not regarding &c. but contriving, &c, did not, nor would, erect or build the said last-mentioned messuages or dwelling-houses, with the appurtenances, for the said A B, agreeable to the last-mentioned plans and particulars, with good and proper materials, and in a sound, substantial and workmanlike manner, but wholly neglected and refused so to do, and on the contrary thereof, he the said C D erected and built the said last-mentioned messuages or dwelling-houses, with the appurtenances, different from und contrary to the said last-mentioned plans and particulars, and with bad and improper materials, and in a slight, weak, inartificial and unworkmanlike manner, contrary to the form and effect of his said last-mentioned promise and undertaking, to wit, at, &c. aforesaid. [Add another count similar to the last, omitting the words *in italics, and such other counts as may be applicable to the case.]

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14. Against an attorney for negligently

(n)

For that whereas heretofore, to wit, on, &c. at, &c. in consideration that the said A B, at the special instance and reconducting a cause to trial quest of the said C D, had then and there retained and employwithout pro- ed the said CD as an attorney of the court of our said lord per evidence. the king, before the king himself, to prosecute and conduct a certain action of trover in the same court, by and at the suit of the said A B against one E F, for taking away and converting to his own use, certain goods and chattels, claimed by him the said A B to be his own proper goods and chattels, for certain reasonable fees and reward, to be therefore paid by the said A B to the said CD, he the said C D undertook, &c. to

"

(n) Declarations against auctioneers, agents, &c. of every description, may be framed on the same principle as this form. See precedents of declarations against attornies, &c. for neglect, in the Index to vol. 2. of Wentw. The law implies a contract on the part of an attorney, and others employed for reward, to conduct the business of another, to perform their duty, in relation to their employment. As to the liability of an attorney, see

4 Burr. 2061. 2 Wils. 325. 1 Saund. 312. n. 2. and of others, and of the distinction, where there is no reward, 5 T. R. 143. 7 T. R. 171. 1 H. Bl. 158. Though usual it is not in general necessary nor advisable to allege that the party against whom the action was depending, was indebted, &c. but the declaration may be without any inducement, and may commence with the statement of the res tainer. See Peake, C. N. P. 119.

Attornies.

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prosecute and conduct the said action in a proper, skilful and XIV. Against diligent manner.(0) Nevertheless the said C D, not regarding his said promise and undertaking, but contriving, &c. did not nor would prosecute or conduct the said action in a *proper, skilful, or diligent manner, but on the contrary thereof, prosecuted and conducted the same action to trial in so improper, unskilful, and negligent a manner, [in not having a certain instrument before then prepared by the said CD, and purporting to be a sale and assignment of the said goods and chattels, by the said E F to the said A B, stamped according to law, so that the same might have been given in evidence on "the said trial of the said action,](/) that the said A B by the said neglect and default of the said CD in that behalf, was hindered and prevented from giving the same instrument in evidence upon the trial of the said cause, and by reason thereof, was afterwards, to wit, on, &c. at, &c. aforesaid, compelled to suffer himself the said A B to be nonsuited in the said action, whereby he the said A B was not only hindered and prevented from recovering his damages from the said E F, by reason of his taking away and converting the said goods and chattels as aforesaid, but hath also been forced and obliged to pay and hath paid to the said E F a large sum of money, to wit, the sum of . for his costs and charges in and about his defence of the said action; and hath also been forced and obliged to pay, and hath paid to the said C D, another large sum money, to wit, the sum of -. for his costs and charges, for the prosecution and conduct of the said action, to wit, at, &c. aforesaid. [Add such other special counts as may be applicable to the case.]

of

(0) It is in general proper, at least in one count, to declare generally on the duty of the agent, Rep. temp. Hardw.309. In some cases it is advisable here to state the particular act, which it was the duty of the defendant to perform, and which allegation may be introduced in the following way: "and although it was the duty of the

said CD, under and by virtue of his
said retainer, and his said promise
and undertaking, to," &c. (stating
the particular duty,) and then pro-
ceed, "Nevertheless," &c.

(p) The statement of the particu-
lar neglect of duty, must necessarily
depend on the circumstances of each
particular case.

15. For not accepting wheat.(9) * 98

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For that whereas heretofore, to wit, on, &c. at, &c. the said CD bargained for and bought of the said A B, and the said A Bat the special instance and request of the said C D, then and there sold to the said C D a large quantity, to wit, ten loads of wheat, at the rate or price of -7. for each and every load thereof, to be delivered by the said A B to the said C D in a week then next following, at and to be paid for by the said CD to the said A B on the delivery thereof, as aforesaid, and in consideration thereof, and that the said A B, at the like special instance and request of the said C D, had then and there undertaken and faithfully promised the said C D to deliver the said wheat to him the said C D in the time and at the place aforesaid, he the said CD undertook, and then and there faithfully promised the said A B, to accept the said wheat of and from him the said A B, and to pay him for the same, on the delivery thereof to him the said CD as aforesaid. And although the said A B afterwards, and within a week next after the making of the said promise and undertaking of the said C D, to wit, on, &c. at, &c. aforesaid, was ready and willing, and then and there tendered and offered to deliver the said wheat to him the said CD, and then and there requested the said CD to accept the same, and to pay him for the same as aforesaid.() Yet the said C D not regarding his said promise and undertaking, but contriving, and craftily and subtly intending to deceive and defraud the said A B in this behalf, did not,

to

(7) See the precedents in Index 2 Wentw. For not accepting stock, East, 607. If there were a special written agreement between the parties, a count may be framed thereon, stating mutual promises. As the plaintif may recover on the counts, for goods bargained and sold, although the goods have been resold, (see & Esp. Rep. 251. 1 East, 194. 1 Vezzy, jun. 550. 7 T. R. 67.) this count is not absolutely necessary. It is usual, however, to declare specially, and this is necessary, in order to recover any special damage, by rehous ing, &c. it is also necessary to declare specially, when the payment was to

be in bills of exchange, &c. See ante, 85. as to the count for goods bargained and sold, ante, 17.

(r) If by the terms of the contract, it were not incumbent on the vendor, to deliver at any particular place, but on the vendee to fetch the goods away from the plaintiff's premises, as is generally intended, when it is not otherwise agreed, (5 T. R. 409.) the contract should be stated accordingly, and the defendant's engagement to fetch away within a specified time, or a reasonable time, will be stated, and in such case it will be sufficient to aver the plaintiff's readiness to deliver.

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