ATTOR- value to the said plaintiff, to wit, at, &c. (venue) aforesaid.-[Add other AGAINST counts, as the nature of the case may render expedient, and a general count on the principle of the one, post, 383, mutatis mutandis.] an attor. an annui contained For that whereas, before the making of the promise and undertaking of Against the said defendant hereinafter mentioned, to wit, on, &c. (day of retainer, ney emor about it) at, &c. (venue) one E. F. was willing to grant an annuity, or ployed to yearly sum of £- during the term of natural lives of the said plaintiff, purchase and one G. H. and the natural life of the survivor of them, and then and ty there proposed to charge the same on certain premises then and there rep- king as a resented by the said E. F. to be held by the said E. F. under and by from the security virtue of a lease and demise thereof, therefore made to the said E. F. by grantor of certain persons, to wit, &c. and then and there proposed to assign the the annuisaid lease of the said premises, as a security for the due payment of the signment said annuity, and thereupon heretofore, to wit, on the day and year afore- of a lease said, at, &c. (venue) aforesaid, the said plaintiff, at the special instance wh and request of the said defendant, retained and employed the said defen- a clause of dant, to ascertain whether the assignment by the said E. F. of the said re-entry lease of the said premises would be a good and sufficient security for the in case of assignpayment of the said annuity so proposed to be granted as aforesaid; and ment, in in case the same should appear sufficient, to obtain the proper deed and consewritings to secure the payment of the said annuity or yearly sum of £-which, quence of and in consideration thereof, and of certain reasonable fees and re- and of the ward (h) to the said defendant in that behalf, he the said defendant uning asdertook, and then and there faithfully promised the said plaintiff to use signed to due and proper care to ascertain whether the assignment of the said lease a trustee of the said premises would be a good and sufficient security for the pay- annuity ment to the said plaintiff of the said annuity of £- so proposed to be deed, the granted as aforesaid, and to perform and fulfil his duty in that behalf (gg); plaintiff nevertheless the said plaintiff in fact saith, that the said defendant, not of the an(grantee regarding his duty in that behalf, nor his said promise and undertaking, nuity) lost but contriving and intending to injure the said plaintiff in that behalf, did his security (g). not nor would use due and proper care in ascertaining whether the assignment of the said lease would be a sufficient security for the due payment [*382] to the said plaintiff, from the said E. F. of the said annuity or yearly sum of £-so proposed to be granted to the said plaintiff as aforesaid, or perform or fulfil his duty in the premises, but wholly neglected and omitted (g) See a form and law, M'Clel. & Y. 205, and notes, ante, 379.-If an attorney undertake to invest money for a party on a copyhold security, it amounts to a warranty by him, that such security shall be valid and effectual, 4 J. B. Moo. 308; see 2 Bing. 464. What a prospective damage, 4 M. & S. 53. (h) See note, ante, 372.-The omission of this, on a count framed as above, without stating defendant was retained as an attorney, would be bad. Id. 4 B. & C. 345.-6 D. & R. 438, S. C. But a count, stating that the plaintiff had retained defendant at his request, to lay out 7001. in the purchase of an annuity, that defendant promised to lay it out securely; that plain tiff delivered the money to him for that (gg) (This appears to be the correct lease be under the AGAINST so to do; and further disregarding his duty in that behalf, afterwards, to ATTOR wit, on, &c. at, &c. (venue) aforesaid, falsely and deceitfully asserted and NIES. affirmed (i), and caused and procured the said plaintiff to believe, that the said lease would be a good and sufficient security for the payment to the said plaintiff, of the said annuity so proposed to be granted to him by the said E. F. as aforesaid; and the said plaintiff further saith, that he the said plaintiff, confiding in the said promise and undertaking of the said defendant, and his said representation and assertion, and believing that the said assignment by the said E. F. of the said lease, would be a good and sufficient security for the payment of the said annuity so proposed to be granted as aforesaid, afterwards, to wit, on, &c. (day of advance of money, or about it) at, &c. (venue) aforesaid, did advance and pay to the said E. F. the sum of £for the said annuity or yearly sum ofl.; and the said defendant then and there caused to be prepared and executed by the said E. F. and the said plaintiff and the said G. H. therein mentioned, a certain indenture for securing the payment of the said annuity, whereby the said E. F. did covenant [here copy covenant not to assign in the past tense]; and the said plaintiff further saith, that by reason of the said indenture of lease, containing a clause and proviso, that the said E. F. should not assign the said term thereby granted, without the license and consent of lessor, in writing, and a certain proviso of re-entry, in case the same should be assigned without such license, and also by reason of the said defendant not having obtained the said license, authorising the said assignment, the lease by the said assignment became and was forfeited and void, and the said, &c. [the lessors] afterwards, to wit, on, &c. on account thereof, commenced a certain action of ejection in the court of our said lord the king, [before the king himself] for the recovery of the possession of the said tenements, with the appurtenances, and such proceedings were thereupon had, that afterwards, to wit, on, &c. the said, &c. [the lessors] recovered the possession of the said tenements, to wit, [*383] at, &c. (venue) whereby, *and by reason of which said several premises, the said plaintiff hath wholly lost and been deprived of the benefit of the said security for the payment of the said annuity, or yearly sum of —l. and hath been unable to enter into, or distrain in and upon the same premises, so granted by the said E. F. as aforesaid on the non-payment of the said annuity, or yearly sum of -l.; and the said annuity hath become and is of no value to him the said plaintiff; and also, by reason of the premises, the said plaintiff hath incurred great expenses, amounting together to a large sum of money, to wit, the sum of. in and about the resisting of the proceedings by and on the part of the said, &c. [the lessors] for the recovery of the possession of the said tenements, with the appurtenances, and in divers journies and attendances of the said plaintiff, and his attorney and agents, incidental thereto, to wit, at, &c. (venue) aforesaid.-[Add other counts, as the case may require, and a general count like the next, mutatis mutandis.] General count against an And whereas also, before the making of the promise and undertaking attorney, for negliof the said defendant hereinafter next mentioned, to wit, on, &c. to wit, at, gence in &c. (venue) aforesaid, a certain person, to wit, the said H. J. was desirous investiga ting a se curity. (i) See 4 B. & Cres. 345.-6 D. & R. 438, S. C. ante, 372, n. ATTOR NIES. of obtaining from the said plaintiff a loan of a certain sum of money, to AGAINST wit, the sum of £1000, upon interest, at and after the rate of 5 per cent. per annum, and then and there, as a security for the re-payment thereof, and interest as aforesaid to the said plaintiff, proposed to incumber certain lands, tenements, and premises, situate in the county of S., and thereupon heretofore, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, the said plaintiff, at the special instance and request of the said defendant, retained and employed the said defendant, as an attorney, for fees and reward to him in that behalf, to ascertain the title of the said H. J. to the said lands, tenements, and premises, and to take due and proper care that the same should be a sufficient security for the re-payment of the said sum of money and interest; and in consideration thereof, he the said defendant undertook, and then and there faithfully promised the said plaintiff to use due and proper care and diligence, in and about the ascertaining the title of the said H. J. to the said lands, tenements, and premises, and to take due and proper care that the same should be a sufficient security for the re-payment of the said sum of money and interest. Nevertheless the said plaintiff in fact saith, that the said defendant, not regarding his duty in that behalf, nor his said promise and undertaking, but contriving and fraudulently intending to injure and deceive the said plaintiff in this behalf, did not nor would take due and proper care to ascertain the title of the said H. J. to the said lands, tenements, and premises, nor take due and proper care that the same should be a sufficient security for the re-payment of the said sum of 1000l., and interest thereon. And the said plaintiff further saith, that he, confiding in the said last-mentioned promise and undertaking of the said defendant, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, did advance and pay to the said H. J. the said sum of-1000l., upon the security of certain lands, tenements, and premises, in the county aforesaid, as and for a sufficient security in that behalf; and the said defendant then and there, in pursuance of his said retainer, caused to be prepared and executed a certain indenture, and certain securities, relating to the supposed estate and interest of the said H. J. in the said last-mentioned lands, tenements, and Against premises, as and for such sufficient security for the re-payment of the said an atsum of 1000l. and interest as aforesaid. torney, employed to settle a debt due to plaintiff, for not account ing for monies received. COMMON COUNTS. *DECLARATIONS IN DEBT. Ellenborough. I. BEGINNINGS AND CONCLUSIONS. 1. Declaration in · (1) next after in Mich. Term., 1 Will. 4. Middlesex (to wit) (m). (venue) A. B. the plaintiff in this suit, comdebt, in K. plains of C. D. the defendant in this suit, being in the custody of the B. by bill Marshal (n) of the Marshalsea of our lord the now king, before the king of latitat. himself, of a plea that he render to the said A. B. the sum of £- (0) (k). of lawful money of Great Britain, which he owes to (p) and unjustly detains from him. For that whereas, &c. [Here state the subject-matter (q) of the debt and the breach, as post, 385, 7, and conclude as follows: To the damage of the said plaintiff of £— (r) and therefore he brings his suit, &c. Pledges, &c. [*385] 1. Form of the indebi *II. ON SIMPLE CONTRACTS. And whereas also the said defendant afterwards, to wit, on, &c. (k) See the form by bill, ante, 13.-The form in K. B. by original, ante, 9. In C. P. ante, 18. In exchequer, ante, 20. () As to the title of the term, see ante, 12, n. (m) As to the venue, see ante, vol. 1. 239, &c. (n) Ante, 12. n. (o) This sum is to be the aggregate of all the sums mentioned in the different counts. In debt the plaintiff may prove and recover less than the sum demanded in the commencement, or in each count, and a mistake is not demurrable. 11 East, 62. --- Saund. 288, n. 1.-1 Hen. Bla. 251, 547.-Vin. Ab. tit. "Miscasting."-2 Chit. Rep. 234. (p) Debt is in general to be in the debet and detinet, Com. Dig. tit. Pleader, 1 W. 8. -Gilb. on Debt, 359, 399, 400, 401; but in actions by or against executors and administrators suing or sued in that character, in general it must be in the detinet only, see Com. Dig. tit. Pleader, 2 D. 1, 2.-2 W. 8. -1 Saund. 1, 112, n. 1, 216.-3 East, 2.— Ld. Raym. 698. So in the detinet for goods, Gilb. on Debt, 359, 400, 401. (And in actions by or against executors or adminis trators the declaration should in strictness be only in the detinet, Com. Dig. tit. "Pleader," 2 D. 1, 2; 2 W. 8; 1 Saund. 1, 112. note 1, 216; 3 East, 2; Ld. Raym. 698. But if" owes to and' be untechnically inserted by an executor or administrator, it is no ground of demurrer, nor an irregularity, Collett v. Collett, 3 Dowl. 211. In debt for specific goods, the declaration should be in the detinet only, Gilb. on Debt, 359, 400, 401.) Husband and wife are to be sued in the debet and detinet, Gilb. 402. Omission of both the debet and detinet has been considered to be demurrable, 6 Mod. 306.-Sed vide 11 East, 62. (q) As to the declarations in debt in general, see Com. Dig. Pleader, 2 W. 7, &c. (r) This sum is in general merely nominal, 2 Selw. N. P. 468. But if there be a demand for interest, let this sum be suffi at, (s) &c. (venue) aforesaid, was indebted to the said plaintiff in the sum of. of like lawful money, for, &c. COMMON COUNTS. tatus debt (t). [Here state the subject-matter of the debt, whether relative to real count in property, personal property, work, services, &c. or money, precisely as in assumpsit, ante, 39 to 90, and then proceed as follows:] And to be paid by the said defendant to the said plaintiff when he the said defendant should be thereunto afterwards requested (u); whereby and by reason of the said last-mentioned sum of money, being and remaining wholly unpaid, an action hath accrued to the said plaintiff to demand and have of and from the said defendant, the sum of -l. parcel of the said sum above demanded. And whereas also afterwards, to wit, on, &c. aforesaid, at, &c. (venue) 2. Form of aforesaid, in consideration that the said plaintiff, at the like special in- the quanstance and request of the said defendant, had before that time, &c. tum meruit count in debt (v). *[Here_state_the subject-matter of the debt, as in the quantum meruit [*386] counts in assumpsit, ante, 39 to 87, and then proceed as follows :—] He the said defendant undertook, and then and there agreed to pay to the said plaintiff so much money as he therefore reasonably deserved to have of the said defendant when he the said defendant should be thereunto afterwards requested. And the said plaintiff avers, that he therefore reasonably deserved to have of the said defendant the further sum of -. of like lawful money, to wit, at, &c. (venue) aforesaid, whereof the said defendant afterwards, to wit, on, &c. aforesaid, there had notice, whereby an action hath accrued to the said plaintiff to demand and have of and from the said defendant the said last-mentioned sum of -l. other parcel of the said sum above demanded. cient to cover it (see post, 436, n.) and insert also a count for the same in debt, as ante, 88. As to the conclusion in debt qui tam, see ante, 17 and 19. (s) This is sufficient, see 2 T. R. 28. (t) See forms, 5 Wentw. 145. See also ante, vol. i. 310,97,8. 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 defendant on, &c. at, &c. bought of the said plaintiff certain, &c. for -l., to be therefore paid by the said defendant to the said plaintiff, when he the said defendant 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 to gether amount to the sum first demanded," see Ashton's Ent. 209, 210.-2 Mallory's Ent. 177-Fortesc. 198.-Rast. Ent. 176; but in the declaration in Emery v. Fell, 2 T. R. 28. and MSS. prec. 23. V. 127. (which contained counts for goods sold, work and labor, and all the money counts) () As to this count, see vol. i. 310, 97, |