AGAINST ATTORNIES. and in case the same should appear sufficient, to obtain the proper deed and writings to secure the payment of the said annuity or yearly sum of £—. And in consideration thereof, and of certain reasonable fees and reward (k) to the defendant in that behalf, he the defendant then promised the plaintiff to use due and proper care in endeavouring to ascertain whether the assignment of the said lease of the said premises would be a good and sufficient security for the payment to the plaintiff of the said annuity of £—, so proposed to be granted as aforesaid, and to perform and fulfil his duty in that behalf. (1) Nevertheless the plaintiff in fact saith, that the defendant, not regarding his duty in that behalf nor his said promise, did not nor would use due and proper care in endeavouring to ascertain whether the assignment of the said lease would be a sufficient security for the due payment to the plaintiff from the said E. F. of the said annuity or yearly sum of £, so proposed to be granted to the plaintiff as aforesaid, or perform or fulfil his duty in the premises, but wholly neglected and omitted so to do. And further disregarding his duty in that behalf, afterwards, to wit, on &c. Defendant's falsely and deceitfully asserted and affirmed, (m) and caused and procured second breach. the plaintiff to believe that the said lease would be a good and sufficient security for the payment to the plaintiff of the said annuity so proposed to be granted to him by the said E. F. as aforesaid. And the plaintiff further Consequent saith, that he confiding in the said promise of the defendant and his said damages, &c. 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,] did advance and pay to the said E. F. the sum of £- for the said annuity or yearly sum of £ -; and the defendant then caused to be prepared and executed by the said E. F. and the 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 plaintiff further saith, that by reason of the said indenture of lease, Statement of containing a clause and proviso that the said E. F. should not assign the covenant not to assign, and said term thereby granted, without the license and consent of the lessor in clause of rewriting, and a certain proviso of re-entry, in case the same should be entry. assigned without such license, and also by reason of the 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 Action of eject&c. [the lessors,] afterwards, to wit, on &c. on account thereof, commenced ment brought, a certain action of ejectment in the Court of our said lady the queen, [before (k) See ante, 274, note (g). The omis sion of this, on a count framed as above, without stating defendant was retained as an attorney, would be bad, id.; 4 Barn. & Cres. 345; 6 D. & R. 438, S. C. But a count stating that the plaintiff had retained the defendant at his request to lay out £700 in the purchase of an annuity; that defendant promised to lay it out securely; that plaintiff delivered the money to him for that purpose, and that defendant laid it out insecurely, it was held, after verdict, that the consideration for the defendant's promise was sufficiently stated; 2 Bingh, 464; 10 J. B. Moore, 183, S. C. But as the law only implies a contract (1) This appears to be the correct mode of (m) See 4 Barn. & Cres. 345; 6 D. & R. 438, S. C. &c. AGAINST ATTORNIES. Costs of ejectment, &c. Against an attorney for negligence in investigating a security. the queen herself,] 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, whereby and by reason of which said several premises, the 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 £—, 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 £; and the said annuity hath become and is of no value to him the plaintiff. And also, by reason of the premises, the 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 plaintiff, and his attorney and agents, incidental thereto. For that whereas, before the making of the promise of the defendant hereinafter next mentioned, to wit, on &c., a certain person, to wit, one H. J. was desirous of obtaining from the plaintiff a loan of a certain sum of money, to wit, the sum of £1000, upon interest, to wit, at and after the rate of 5 per cent. per annum, and then, as a security for the repayment thereof and interest as aforesaid to the plaintiff, proposed to incumber certain lands, tenements and premises, situate in the county of S. And thereupon heretofore, to wit, on &c. aforesaid, the plaintiff at the request of the defendant, retained and employed the defendant as an attorney, for fees and reward to him in that behalf, to use due and proper care in 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. And in consideration thereof, the defendant then promised the plaintiff to use due and proper care and diligence in and about 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 plaintiff in fact saith, that the defendant, not regarding his duty in that behalf nor his said promise, did not nor would take due and proper care in and about the ascertaining 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 £1000 and interest thereon. And the plaintiff further saith, that he, confiding in the said promise of the defendant, afterwards, to wit, on the day and year aforesaid, did advance and pay to the said H. J. the said sum of £1000, upon the security of certain tenements and premises in the county aforesaid, to wit, the said lands, tenements and premises, as and for a sufficient security in that behalf; and the defendant then, 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 lands, tenements and premises, as and for such sufficient security for the re-payment of the said sum of £1000 and interest as aforesaid. Nevertheless the said supposed title and estate, and interest of the said H. J. in and to the said lands, tenements and premises, and the said indenture and securities, by reason of the negligent and improper conduct of the defendant in the premises, were not, nor are, nor will be, any sufficient security for the repayment of the said sum of £1000 and interest. See a form of declaration, ante, 254. AGAINST ATTORNIES. Against an attorney employed to settle a debt due to plaintiff for not accounting for monies received. DECLARATIONS IN DEBT. 1. BEGINNINGS IN GENERAL. Common commencement in debt. By a surviving partner. I. BEGINNINGS IN GENERAL. In the Queen's Bench, (a) [or “Common Pleas," or " Exchequer of Pleas."] In the Queen's Bench, [or " Common Pleas," or " Exchequer of Pleas".] A. D., to wit. A. B. (the plaintiff in this suit), who hath survived one C. D., hereinafter mentioned, by E. F. his attorney, [or "in his own proper person,"] complains of G. H. (the defendant in this suit), who has been summoned to answer the plaintiff in an action of debt; and the plaintiff demands of the defendant the sum of £, which he owes to and unjustly detains from him. For that whereas, &c. [State the debt as ante, 66, and conclude as post, 286. (a) The Reg. Gen. Mich. T. 3 Will. 4, reg. 15, directs that every declaration shall be intituled in the proper Court. (b) This title must be of the very day when declaration is delivered; Reg. Gen. Mich. T. 3 Will. 4, reg. 15; Reg. Gen. Hil. T. 4 Will. 4, reg. 1. (c) The venue is to be stated only in the margin, and not in body of declaration; Reg. Gen. Hil. T. 4 Will. 4. (d) It is usual in debt to state in the commencement the aggregate of all the sums claimed in the following counts. A mistake, however, in the correct sum, is not demurrable, or otherwise objectionable; 11 East, 62; 1 Saund. 288, n. 1; 1H. Bla. 251, 547; Vin. Abr. tit. "Miscasting;" 2 Chit. Rep. 234. (e) Debt is in general to be in the debet et detinet; Com. Dig. tit. "Pleader, 2 W.8; Gilb. on Debt, 359, 399, 400, 401. But in actions by or against executors or administrators, 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, Dowl. 211. Assignees of a bankrupt or insolvent sue in debet as well as detinet; 1 Tyr. & Gr. 179. 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 debent et detinent; Gilb. 402. The omission of both the debet and detinet has been considered demurrable; 6 Mod. 306; sed vide 11 East, 62. (f) As to the substance or body of the declaration in debt on simple contract, the Reg. Gen. Trin. T. 1 Will. 4, extends as well to declarations in debt as in assumpsit, as regards conciseness in declarations on bills and notes, and indebitatus counts for money demands, and the forms there given are to be observed as far as they can be applied to a declaration in debt. The description of all common debts will be the same as in the common counts, ante, 37 to 66. For the ancient forms, and those in use before the pleading rules of Hil. T. 4 Will. 4, see 2 Chitty on Pleading, 5th edit. 385, 386; 5 Wentw. 145; Aston's Ent. 209; 2 Mall. Ent. 177: Fortescue, 198; Rast. Ent. 176; Gilbert's Action of Debt, per tot; 3 Bar. & Ald. 208; 2 Smith's Rep. 618; and see the old form of count for money borrowed and paid, 2 Chitty on Pleading, 5th edit. 386, 387; Rich. C. P. 118; Morgan, 547; Aston's Ent. 209; 2 Mall. Ent. 177; 5 Wentw. 146. In the Queen's Bench, [or " Common Pleas," or " Exchequer of Pleas."] BEGINNINGS IN The day of to wit. A. D.. GENERAL. A. B. (the plaintiff in this suit), by E. F. his attorney, [or Against a sur"in his own proper person,"] complains of C. D. (the defendant in this suit), viving partner. who hath survived one G. H. hereinafter mentioned, and been summoned to answer the plaintiff in an action of debt; and the plaintiff demands of the defendant the sum of £——, which he owes to and unjustly detains from him. For that whereas, &c. [State the debt as ante, 67, and conclude as post, 287. In the Queen's Bench, [or " Common Pleas," or " Exchequer of Pleas."] By husband and The day of A. D., to wit. A. B. and C. his wife (the plaintiffs in this suit), by E. F. their attorney complain of G. H. (the defendant in this suit), who hath been summoned to answer the plaintiffs in an action of debt; and the plaintiffs demand of the defendant the sum of £, which he owes to and unjustly detains from them. For that whereas, &c. [State the debt as ante, 68, and conclude as post, 287. wife. In the Queen's Bench, [or " Common Pleas," or " Exchequer of Pleas."] Against husday of The ——, A. D. ———. to wit. A. B. (the plaintiff in this suit), by C. D. his attorney, [or “ in his own proper person,"] complains of E. F. and G. H. his wife (the defendants in this suit), who have been summoned to answer the plaintiff in an action of debt; and the plaintiff demands of the defendants the sum of £———, which they owe to and unjustly detain from him. For that whereas, &c. [State the debt as ante, 69, and conclude as post, 287. In the Queen's Bench, [or "Common Pleas," or The 66 band and wife. Exchequer of Pleas."] By an executor day of - , A. D. to wit. A. B. (the plaintiff in this suit), executor of the last will and testament of one G. H. deceased, [or "administrator of all and singular the goods and chattels which were of one G. H. deceased, who died intestate,"] by his attorney, [" or " in his own proper person,"] complains of C. D. (the defendant in this suit), who has been summoned to answer the plaintiff in an action of debt; and the plaintiff demands of the defendant the sum of £, which he unjustly detains from him. For that whereas, &c. [State the debt as ante, 73, and conclude as post, 287. or administrator. In the Queen's Bench, [ or "Common Pleas," or "Exchequer of Pleas."] Against an ex The day of A. D. to wit. A. B. (the plaintiff in this suit), by E. F. his attorney, [or " in his own proper person,"] complains of C. D. (the defendant in this suit), executor of the last will and testament of one G. H. deceased, [or "administrator of all and singular the goods and chattels, rights and credits, which were of one G. H. deceased, who died intestate,] who has been summoned to answer the plaintiff in an action of debt; and the plaintiff demands of the defendant the sum of £—, which he unjustly detains from the plaintiff as such executor [or "administrator"] as aforesaid. For that whereas, &c. [State the debt as ante, 75, and conclude as post, 288. ecutor or administrator. |