TIONS TO PARTY FOR CON ing a certain party-wall, before then built at the expense of the said E. TRIBU- F. in his life-time agreeably to the directions of the said Statute, between a certain messuage or building, situate and being within the weekly bills of WALLS. mortality, and certain ground there also situate next to and adjoining the said last-mentioned party-wall, and which said last-mentioned party-wall had before then been cut into and made use of by the said defendant, who before and at the time of cutting into and making use of the same, was the owner of, and person entitled to the improved rent of such lastmentioned ground, and being so indebted, &c. undertook,, &c.-[Add common counts as directed ante, 248.] TO PAY FOR ANCE TO DEFEND ANT. mise to pay the costs of an action within a XV. TO PAY MONEY FOR FORBEARANCE TO DEFENDANT. For that whereas before the making of the promise and undertaking of the said defendant hereinafter next mentioned, a certain action had On a pro- been commenced and prosecuted by and at the suit of the said plaintiff against the said defendant, in the court of our said lord the now king, before the king himself (m), (or if in C. P. say "in the court of our lord the king, before his Majesty's justices of the bench at Westminster,") for the week, in recovery of a certain sum of money, to wit, the sum of -7. then and at considera- the time of the making of the promise and undertaking of the said defendant hereinafter next mentioned, due and owing from the said defendplaintiff ant to the said plaintiff. And which said action, at the time of the makstaying proceeding of the said promise and undertaking of the said defendant hereinafter ings (1). next mentioned, was depending in the said court, to wit, at, &c. (venue) [*252] aforesaid, whereof the said defendant then and there had notice. tion of And thereupon heretofore, to wit, on, &c. (day of promise, or about it.) at, &c. aforesaid, in consideration of the premises, and that the said plaintiff, (1) See forms, Plead. A. 95, 127. See a Assumpsit in consideration that the plain- to ceedings against A. I do hereby, in con- (m) The court must be accurately described, 3 M. & S. 166. TO PAY FOR DEFEND- at the special instance and request of the said defendant, would (n) cease to prosecute the said action, and would stay all further proceedings therein (1), he the said defendant undertook, and then and there faithfully pro- 'FORBEARmised the said plaintiff to pay the costs of commencing and prosecuting ANCE TO the said action, in a week then next following. And the said plaintiff avers, that he, confiding in the said promise and undertaking of the said defendant, did then and there cease (0) 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 amounted to a large sum of money, to wit, the sum of-l. (state enough) of lawful money of Great Britain, whereof the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. (venue) had notice. And although a week from the time of the making the said promise and undertaking of the said defendant hath long since elapsed, to wit, at, &c. (venue) aforesaid; yet the said defendant, not regarding the said promise and undertaking, but contriving and intending to deceive and defraud the said plaintiff in this respect, hath not as yet paid the said costs of commencing and prosecuting the said action, or any part thereof, (although he the said defendant afterwards, and after the expiration of a week from the time of making his said promise and undertaking, to wit, on, &c. (any day before the title of declaration) at, &c. aforesaid, was requested by the said plaintiff so to do.) But he so to do hath hitherto wholly neglected and refused, and still doth neglect and refuse, to wit, at, &c. (venue) aforesaid.—[If any doubt as to the exact nature of the promise, add another or more special counts accordingly. Add a count on the original debt-money paid-the account stated—and the usual breach applicable to those counts only.] XVI. TO PAY MONEY FOR FORBEARANCE TO THIRD PERSONS. TO PAY MONEY FOR FORBEAR For that whereas one E. F. before and at the time of the making of ANCE TO (n) When it suffices to declare on an executory consideration, though the contract was in its terms on an executed consideration, see 7 Bar. & Cres. 423. 1 Moo. & Ry. 708, S. C.-Ante, 251, note. (0) See id. (p) Observe the notes to the preceding forin. See forms, Morg. 152, 166-Plead. A. 129.-Rob. Ent. 100-2 Went. 405, &c. and Index to ditto.-See also post, 314, precedent for declaration on guarantee for goods sold. THIRD PERSONS. 237, 239) see the form of declaring against The mere promise of a third person to As to what is, or is not a collateral pro- TO PAY MONEY FOR THIRD PERSONS the promise and undertaking of the said defendant hereinafter next mentioned, was indebted to the said plaintiff in a certain sum of money, to FORBEAR- wit, the sum of-l. *(state enough) of lawful money of Great Britain (q), ANCE TO to wit, at, &c. (venue); and thereupon heretofore, to wit, on, &c. (day of guarantee or about it) at, &c. in consideration of the premises, and [*253] that the said plaintiff, at the special instance and request of the said defendant, would (r), forbear and give time to the said E. F. for the payment of the sum of money until the day of (1) (let this agree with the consideration) (r), he the said defendant undertook, and then and there faithfully promised (s) the said plaintiff to pay him the said sum of -l. on, &c. (let this agree with the promise.) And the said plaintiff avers, that he, confiding in the said promise and undertaking of the said defendant, so made as aforesaid, did forbear and give time to the said E. F. for the payment of the said sum of money, until the said day of— (let this agree with the consideration,) to wit, at, &c. (venue) aforesaid; but that the said E. F. although he was afterwards, to wit, on, &c. (any day before title of declaration) at, &c. (venue) aforesaid, requested (t) by the said plaintiff so to do, hath not as yet paid (u) the said sum of money, or any part thereof, to the said plaintiff, but hath hitherto wholly neglected and refused so to do; whereof the said defendant, 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 defendant became liable to pay the said plaintiff the said sum of money on the said day of to wit, at, &c. (venue) aforesaid.-[If there be any doubt as to the meaning of the guarantee, let one count follow the very words of it, and add another count, stating the substance of it.Add an account stated, and breach.] On a pro For that whereas before the making of the said distress hereinafter next mise, that mentioned, one J. S. held, occupied, and enjoyed certain premises, with if plaintiff would the appurtenances, as tenant thereof to the said plaintiff, by virtue of a withdraw certain demise thereof before then made, at a certain rent, to wit, the rent distress of (201.) per annum, to wit, at, &c. (venue) and because a certain sum of money, to wit, the sum of 107. of the aforesaid rent, at the time of makgoods of a ing the distress hereinafter mentioned, was then and there due and owing for rent on the third person,defen dant would pay the rent (w). (q) It is not necessary to state the subject-matter of the debt, though some demand recoverable at law or in equity, must be stated, 4 Taunt. 117.-Ante, 251, n. (1). It is better not to state it with unnecessary particularity, Peake's Rep. 117.-Though a larger sum be stated under a videlicet to be due, it need not be proved, 8 Taunt. 197.2 J. B. Moore, 114, S. C. (r) See 7 B. & C. 423.— 1 M. & R. 708, S. C. Ante, 251, n. (s) Though the promise must, under the stat. 29 Car. 2. c. 3. s. 4, be in writing, and the whole consideration must be stated in such writing, see 4 B. & A. 595. 5 East, 10.-6 J. B. Moore, 86; it need not be so (t) From Cro. Jac. 500.-Cro. Eliz. 85, 91.-2 Hen. Bla. 131.-It seems necessary to aver this request. Sed quære, and see 1 Stra. 88, 9. If it be not necessary to state it, the statement will not require to be proved, see Plowd. 128. (u) It should seem, from 1 Sid. 178.-2 Roll. 738, I. 15, that this averment of the non-payment by the principal is unnecessary, and that it suffices to aver merely a non. payment by the defendant. (w) A promise of this nature, whether the distress was begun or not, is not within the Statute of frauds, and need not be in (1) In a declaration on a promise to pay, in consideration that the plaintiff would forbear to sue another, it is sufficient to state that other to be indebted, without averring that the debt was then payable. Jones v. Potter, 5 Serg. & Rawle, 519. from the said J. S. to the said plaintiff, he the said plaintiff, during the said tenancy, and before the making of the promise and undertaking of the said defendant, hereinafter last-mentioned, to wit, on, &c. (day of distress or, about it) to wit, at, &c. (venue) took and distrained divers goods and chattels of the said J. S. then being in and upon the said demised premises, as a distress for the said sum of money, to wit, the said sum of 10l., so then due and owing to the said plaintiff as aforesaid, and the said plaintiff then intended, after the expiration of five days after the making of the said distress, to sell the said distress, according to the form of the Statute in such case made and provided, &c. whereof the said defendant then and there had notice; and thereupon, heretofore, to wit, on the day and year aforesaid, at, &c. (venue) in consideration that the said plaintiff, at the special instance and request of defendant, would withdraw the said distress, and forbear to proceed on such distress, he the said defendant undertook, and then and there faithfully promised the said plaintiff to pay him the said sum of 107. in one month then next following-(let this be according to the promise.) And the said plaintiff avers, that he, confiding in the said promise and undertaking of the said defendant, did then and there withdraw the said distress, and forbear to proceed in such distress, and hath thence hitherto forborne to proceed on the same, to wit, at, &c. (venue) And although a month front the making of the said promise and undertaking hath long since elapsed, and although the said J. S. afterwards, to wit, on, &c. (any day before the title of the declaration) at, &c. (venue) aforesaid, was requested (r) by the said plaintiff to pay him the said sum of 107., yet the same still wholly remains due and unpaid by him, of all which said premises the said defendant then and there had notice. Nevertheless, the said defendant not regarding his said promise and undertaking, but contriving and intending to deceive and defraud the said plaintiff in this behalf, hath not paid to the said plaintiff the said sum of 101. or any part thereof, and the said sum of 107. still remains wholly due and unpaid to the said plaintiff, to wit, at, &c. (venue) aforesaid.—[Add another count more general, depending on the nature of the ageeement, and commencing at once with the statement of plaintiff's having distrained, without stating the terms of tenancy. If there be any doubt as to the distress having been actually commenced, merely state defendant's intention to distrain, and that defendant promised to pay the rent if he would forbear doing so.-Add counts for money paid, had and received, account, and a breach applicable thereto.] *XVII. TO PAY MONEY IN CONSIDERATION OF MARRIAGE. [*254] TO PAY MONEY IN CONSIDER For that whereas heretofore, to wit, on, &c. (day of promise, or about ATION OF writing. 3 Burr. 1886. 2 Wils. 308, S. C.; and see 4 Taunt. 117.-3 Esp. 86. As to what is a sufficient commencement of a distress, see 5 Bingh. 10. 8 B. & Cres. 456.; (and see a declaration on a promise that in consideration plaintiff would give up his lien on goods for debt of third person, defendant promised to pay debt. Clancy v. Piggott, 4 Nev. & M. 496. On a promise that in consideration that plaintiff would (x) This request does not seem necessary. MAR RIAGE. On a pro MONEY IN CONSIDER MAR RIAGE. mise to pay 2001 TO PAY it) at, &c. in consideration that the said plaintiff, at the special instance and request of the said defendant, would marry one E. F. he the said deATION OF fendant undertook, and faithfully promised the said plaintiff to pay him the sum ofl. of lawful money of Great Britain, whenever after such marriage he the said defendant should be thereunto requested; and the said plaintiff in fact saith, that he, confiding in the said promise and undertaking of the said defendant, afterwards, to wit, on, &c. at, &c. aforesaid (z), did marry the said E. F. whereof the said defendant, afterwards, to wit, on, &c. at, &c. aforesaid had notice; yet the said defendant, not girl (y) regarding his said promise and undertaking so by him in manner and form aforesaid made, bnt contriving and craftily and subtly intending to deceive and defraud the said plaintiff in this respect, hath not yet paid the said sum of money, or any part thereof, to the said plaintiff, although he the said defendant, afterwards, to wit, on, &c. and oftentimes afterwards, to [*255] wit, at, &c. was requested by the said *plaintiff to pay him the same, but the said defendant, to pay the same, or any part thereof to the said plaintiff, hath hitherto wholly refused, and still doth refuse, to wit, at, &c. aforesaid. And whereas also, afterwards, to wit, on the day and year first count, to above-mentioned, at, &c. aforesaid, in consideration that the said plaintiff, pay in a at the like special instance and request of the said defendant, would marry the said E. F. he the said defendant undertook, and then and there faithfully promised the said plaintiff, within a reasonable time after such marriage should have taken place, to pay unto him the said plaintiff, the sum of ―l. of like lawful money; and the said plaintiff, in fact says, that he, confiding in the said last-mentioned promise and undertaking of the said defendant, afterwards, to wit, on, &c. at, &c. aforesaid, did marry the said E. F. whereof the said defendant, afterwards, to wit, on, &c. Second reasona ble time. (y) See other forms, 2 Wentw. 491, 2. 1 Mod. Ent. 128.-Pl. A. 51, 137.-Morg. 143. And see form of declarations on mutual promises to marry, post, 321.-2 Wentw. 487, 8, 9. PI. A. 47, 99.-2 Rich. C. P. 128.-1 Sid. 180. When action lies.-An action will lie on a contract or promise to pay money in consideration of marriage, Cro. Eliz. 63. If the promise be to pay 20 French pieces, it is sufficiently certain, and shall be intended to mean French crowns, Cro. Car. 194. So if it be to pay 100l. at a time to come, and in the mean time, after the rate of 81., the promise is good and not usurious. 1 Vin. Ab. 297, pl. 15.-2 Sid. 116. S. P. So if a man promises another, in consideration of his marrying his daughter, to give him as much as he should give to any of his daughters, and afterwards dies, leaving another of his daughters a sum of money, an action lies against his administrator or executor, 3 Bulst. 248. 1 Vin. Abr. 287. pl. 3. A promise by a father after his daughter's marriage, to pay a sum of money to her husband, is a good promise, 2 Leon. 111.Cro. Eliz. 59. See also Dyer, 272 b. pl. 32. in margin. A promise by a man to pay a woman a sum of money if he marry any body but herself, is considered a restraint upon marriage, and therefore void, 5 Burr. 2225. Upon a promise to a father to give a sum of money with his daughter in marriage, the daughter may have the action, for she is the meritorious cause of action, Bull. Ni. Pri. 133. Promises to pay money in consideration of marriage, must be in writing, by the Statute of Frauds, 29 Car. 2. c. 3. s. 4. But mutual promises to marry are not within the provisions of this act, Stra. 34; see 1 Chit. Coll. Stat. 371, n. (/). Letters from parents or persons standing in loco parentis, containing promises of provisions in consideration of marriage, if explicit in their terms, have been held to satisfy the Statute, 2 Vent. 361.-2 Pre. Ch. 560.-2 Vern. 600, 602. Form of Declaration.—An inducement of a discourse having taken place respecting the marriage is unnecessary, and is usually omitted in modern pleadings; a promise to the plaintiff must be shown in express terms: an allegation that the defendant asserted and published that he would give 100l. to whoever should marry his daughter is too indefinite and uncertain, 1 Roll. Ab. 6 M. pl. 1.-Noy. 11. Cro. Jac. 4. The marriage need not be stated to have taken place, ad instantiam defendentis, for that will be intended, Cro. Car. 194. Indebitatus assumpsit, will not lie, 1 Vent 268. (z) The words "at the special instance and request of the defendant" are unneces sary here, Cro. Car. 194. |