DECLARATIONS IN ASSUMPSIT. COMMON COUNTS. COMMON of a declaration in assumpsit containing only Commencement as ante, 13.] For that whereas the defendant, on the -(ƒ) day of in the year of our Lord was indebted to the plain1. Present form tiff in £- (g), for &c. [Here the subject-matter of the debt must be stated, as that the defendant was indebted for "land" or "goods sold," or for "work done," or for "money lent," &c., as in the following counts, 2 Saund. 350, n. 2; and except in the counts for money had and received, it must be alleged that the debt was incurred at the defendant's request, as follows, 1 Saund. 264, n. 1,] at his request. [If there be another debt or debts, the same may be here introduced, as in the forms prescribed ante, 34, viz. "And in £, for &c." indebitatus counts. Conclusion. (h) 2. Conclusion where the declaration con tains a count on a note, bill, or check, and no common count. 3. Present form of a declaration in assumpsit, on a note, bill, or check, with a count on the consideration And whereas the defendant, afterwards, on the day and year aforesaid, in consideration of the premises respectively, then promised the plaintiff to pay him the said several monies respectively on request, Yet he hath disregarded his promises, and hath not paid any of the said monies, or any part thereof, to the plaintiff's damage of £(i), and therefore he brings suit, &c. Yet the defendant hath disregarded his promise [or "promises"] and hath not paid any of the said monies [or if only one count "the said monies"] or any part thereof, to the plaintiff's damage of £- and therefore he brings suit, &c. Commencement as anle, 13.] For that whereas [set out the count on the note, bill, or check, with the promise applicable thereto, and then commence a fresh count as follows:] And whercas also the defendant, on the day of A. D.- was indebted to the plaintiff in £, for &c. [Here state the consideration for the note, bill, or check, as "for goods sold," &c.] And and an account in £ for money found to be due from the defendant to the plaintiff on stated. (j) an account then stated between them: And whereas the defendant afterwards, on the day and year last aforesaid, in consideration of the premises respectively, then promised the plaintiff to pay him the said last-mentioned several monies respectively [or, if only one common count, "last-mentioned sum of money"] on request, Yet the defendant hath disregarded his promises, and hath not paid any of the said monies, or any part thereof, to the plaintiff's damage of £; and therefore he brings suit, &c. (f) Insert a day after the debt or debts accrued, and before the issuing of the writ. It is usual to insert the day before the date of the writ, but the day is not material; Arnold v. Arnold, 3 Bing. N. C. 81. (g) State sufficient to cover the plaintiff's demand. (h) See prescribed form of conclusion, ante, P. 34. (i) State sufficient to cover the plaintiff's claim with interest, if interest be recoverable. (j) In all cases where there was a consideration between the parties to the action for the note, bill, or check, and the cause of action on the note, bill, or check is at all doubtful, a count on such consideration, as well as a count on an account stated, should be inserted; but where there was no consideration, nor any immediate privity, between the parties to the action, or those whom they represent, the declaration should be framed on the note, bill, or check only, unless there has been an admis. sion of the debt by the defendant, in which case a count on an account stated should be inserted. COMMON COUNTS. The same as the preceding to the breach, and then proceed as follows :] And although the defendant, in part performance of his said promise, hath paid to the plaintiff the sum of £- [or, "divers sums of money, amount- 4. Breach admitting part paying in the whole to the sum of £,"] parcel of the said monies, Yet he ment. (k) hath not further performed his said promises [or "promise,"] and hath not paid the residue of the said monies, or any part thereof, to the plaintiff's damage of £, and therefore he brings suit, &c. For that whereas the defendant heretofore, to wit, on &c., was indebted 5. Indebitatus assumpsit count to the plaintiff in divers goods and chattels, to wit, 100 fish of the value of on a promise to £10., for divers tolls or dues, due and of right payable from the defendant to pay by chatthe plaintiff, for and in respect of the defendant having before then used and tels. (1) enjoyed, and having, at his request, and by the sufferance and permission of the plaintiff, had the liberty and privilege of using and enjoying, divers capstans, machines, windlasses, and ropes of the plaintiff, to haul and assist in the hauling on the beach and shore of divers boats of the defendant, and of divers other boats which the defendant had used, at the request of the defendant; and being so indebted, he the defendant in consideration thereof, afterwards, to wit, on the day and year aforesaid, promised the plaintiff to pay him the said goods and chattels when he the said defendant should be thereunto afterwards requested, Yet the defendant hath disregarded his promise, and hath not paid the plaintiff the said goods and chattels, or any or either of them, or any part thereof, to the plaintiff's damage of £; and therefore he brings suit, &c. I. RESPECTING REAL PROPERTY. 1. RESPECTING REAL PROPERTY. estate sold and Commencement of count as ante, 36, inserting these words :] For a certain messuage, tenements, and premises, with the appurtenances, of the plain- For a freehold tiff (n), before that time bargained, sold, and released, (o) by the plaintiff to conveyed.(m) the defendant, and at his request. [Conclude as ante, 36. estate surren Commencement of count as ante, 36.] For certain messuages, tenements, For a copyhold and premises, with the appurtenances, (q) before that time bargained, sold, dered. (p) and surrendered by the plaintiff to and for the defendant, and at his request. [Conclude as ante, 36. (k) This breach is rarely used since the rule authorizing credit to be given in the particulars of demand; vide ante, 5 and 6. As to the effect of this admission of part payment, see Hollis & Ur. v. Palmer, 2 Bing. N. C. 713. (1) The subject-matter of the above form is from 6 B. & C. 385, where it was held that indebitatus assumpsit would lie for goods and chattels. The form may be readily adapted to other claims for goods. See 6 B. & C.385, as to the use of this count. (m) It is usual to insert this count; but, from James v. Shore, sittings at Westminster after Mich. T. 1816, Stirling, attorney for plaintiff, Lord Ellenborough expressed his opinion that the declaration must be special; but see observation of Bayley, B., in Hallen v. Runder, 1 C. M. & R. 269. (n) It is unnecessary and unadvisable, to state the situation; 6 East, 348. If misstated, the variance might, in some cases, be a ground of nonsuit, unless the judge amended at the trial; 1 Esp. Rep. 273; 3 Campb. 235; but see 1 Taunt. 570, 571; 13 East, 9; 3 Taunt. 128. (0) This allegation will depend on the (p) See note (m), supra. I. RESPECTING REAL PROPERTY. For a leasehold estate sold and assigned. (r) For the good will of a busi ness. (t) For the good. will of a publichouse, and the plaintiff's business therein. (u) By outgoing against incoming tenant, for fixtures left by plaintiff on premises. (y) For the use and Commencement of count as ante, 36.] For certain messuages, tenements, and premises, with the appurtenances, (s) before that time bargained, sold, and assigned by the plaintiff to the defendant, and at his request, for the remainder of a certain term of years then to come and unexpired therein. [Conclude as ante, 36. Commencement of count as ante, 36.] For the good-will of a certain trade and business of the plaintiff, before then relinquished and given up by the plaintiff to and in favour of the defendant, and at his request. [Conclude as ante, 36. Commencement of count as ante, 36.] For the good-will of a certain public-house, called or known by the name or sign of —, (x), and the trade and business of the plaintiff as a publican or victualler therein, before that time relinquished and given up by the plaintiff to and in favour of the defendant, and at his request. [Conclude as ante, 36. Commencement of count as ante, 26.] For so much money before that time and then due and payable from the defendant to the plaintiff, upon, for, and in respect of the plaintiff having, at the defendant's request, relinquished and given up certain buildings, erections, and improvements, before then made and erected by the plaintiff, in and upon certain other lands and premises, with the appurtenances, to and in favour of the defendant, and at his request. [Conclude as ante, 36. Commencement of count as ante, 36.] For the use and occupation of a (r) See note (m), ante, 37; and see form, (t) A contract for the transfer of the good- (u) See form, post, for the use, occupation and profits of an inn. (r) See note (n), ante, 37. (y) See special counts, and notes, post, "Landlord and Tenant." (z) The statute 11 Geo. 2, c. 19, s. 14, gives this remedy in order to avoid difficulties in suing on a demise; see the forms, Morgan's Prec. 17; 2 Rich. C. P. 90; Lil. Ent. 38; Pl. Ass. 5, 215, 268, 275. Although the statute makes provision only for an action on the case, and protects the plaintiff from being nonsuited in such action, if any parol demise or any agreement not under seal, whereon a certain rent is reserved, shall appear, yet according to the late case of Gibson v. Kirk, 1 G. & D. 252, an action of debt may be supported at common law, though there be an express demise, if it be not by deed. This action seems the only remedy where there is no specific rent agreed upon; 5 B. & A. 322. The statute is not usually referred to in the declaration, and it is unnecessary in debt or assumpsit for use and occupation, to state where the premises lie, or any of the particulars of the demise. King v. Fraser, 6 East, 348. The venue is not local; Eglar v. Marsden, 5 Taunt. 25. This count is sufficient, though the defendant may not himself have occupied the premises; 8 T. R. 327; 16 East, 33; 2 Stark. 527. But if the plaintiff has recognised another person as his tenant, he cannot afterwards charge the defendant; 2 B. & A. 119; 2 Stark. 235. Although the premises demised have been destroyed by fire; 4 Taunt. 45; or the occupation has been otherwise merely constructive, the above common count will suffice; Pinero v. Judson, 6 Bing. 206. This action may be brought by the assignee of the reversion before attornment, for rent due after he became assignee; 16 East, 99; but not for rent due before the assignment of the rever. sion; Cobb v. Carpenter, 2 Campb. 13, n.; Mortimer v. Preedy, 3 M. &W.602. So it may be brought by the assignee of a rent-charge; 1 T. R. 378; or by a succeeding incumbent, 5 T. R. 4; Peake's Ev. 242. A corporation may be sued in assumpsit for use and occupation; 6 A. & E. 843; 4 Bing. 75. As to the right to sue for use and occupation where premises are destroyed by fire, and for what time the tenant remains liable, see Izod v. Gorton and another, 5 Bing. N. C. 501; Packer v. Gibbins, 1 G. & D. 10. As to the right of a vendor to recover for the use and occupation of premises after the contract goes off, see Howard v. Shaw, 8 M. & W. 118. A mortgagee has the same rights against a tenant by lease granted before the mortgage as the mortgagor had, but when a lease is made by a mortgagor subsequently to the mortgage, REAL PROPERTY. certain messuage, tenements, and premises, (a) [or," of a certain messuage, I. RESPECTING buildings, farm, and land," as the case is,] with the appurtenances, of the plaintiff (b), by the defendant, and at his request, and by the sufferance and permission of the plaintiff, for a long time before then elapsed (c), had, held, used, occupied, possessed and enjoyed. [Conclude as ante, 36. Commencement of count as ante, 36.] For the use and occupation of a cer- For the use and tain fishery, and the right of fishing in a certain river called the in occupation of a fishery. (d) the county of ——, of the said plaintiff, by the defendant, and at his request, and by the sufferance and permission of the plaintiff, for a long time before then elapsed, had, held, used and occupied, possessed and enjoyed. [Conclude as ante, 36. Commencement of count as ante, 36.] For the use of a certain way and For the use of passage for divers cattle, waggons, and other carriages, loaded with timber, a way. (d) wood, and bark [as the right of way may be,] in, through, over and along certain closes of the plaintiff, before then had, used and enjoyed by the defendant, and at his request, and by the sufferance and permission of the plaintiff, for a long time then elapsed. [Conclude as ante, 36. and the mortgagee afterwards requires the rent to be paid to him, and it is paid accordingly, although the mortgagee is not entitled to distrain or sue in covenant on the lease, yet such a relationship arises between the parties as entitles the mortgagee to sue for use and occupation; Rogers v. Humphreys, 4 A. & E. 299; Pope v. Biggs, 9 B. & C. 245; Evans v. Elliot, 1 P. & D. 256; Doe d. Higginbotham v. Barton and another, 3 P. & D. 199. As to the liability of a party holding over, and for what time he is liable, see Christy v. Tancred, 7 M. & W. 127; Waring v. King and others, 8 M. & W. 571; Ibbs v. Richardson and others, 9 A. & E. 849. As to the apportionment of rents where a tenant for life dies before or on the day the rent is reserved, see 11 Geo. 2, c. 19, s. 15; and as to the apportionment of rents reserved on leases which determine on the death of the person making them, although such person were not tenant for life, or on the death of the life for which such person was entitled, see 4 & 5 W. 4, c. 22, s. 1; and as to the apportionment of rent in case of eviction from part, see Neale v. Mackenzie, 2 C. M. & R. 84. The defendant cannot plead nil habuit; 1 Wils. 314; 2 Wils. 208; and therefore it does not seem material to allege that the estate was the plaintiff's. Where there is an agreement under seal for a lease, not containing any covenant for the payment of rent, this action may be sup ported; 4 Esp. 58. If it be doubtful whether there be a demise under seal, it may be advisable to declare in debt on demise, as in 1 Saund. 276, n. 1, 202, 203; 1 New Rep. 104; Lord Raym. 1503. See form, post. When this action lies against administra. tors, &c., 2 J. B. Moore, 100, and ante, vol. i. When against assignees of bankrupt, see ante, vol. i. How to declare against executors for rent due since testator's death; 1 Saund. 112, 5th edit.; 3 B. & Ald. 101; and ante, vol. i. (a) In Bird v. Wilton, Chelmsford Assizes, 9th March, 1830, cor. Bayley, J., the declaration was for use and occupation of a messuage, with the appurtenances. The evidence was of a demise, not under seal, of a messuage, with a garden and paddock, and a point was reserved as to whether this was not a variance. Bayley, J., said, that stating the use and occupation to be" of premises, with the appurtenances," would in general be safe. On a motion for a new trial, the Court held this was no variance, Easter Term, 1830, K. B.; and see 2 Saund. 400; 6 B. & C. 251. As the rent issues out of the realty, if the demise be of a house and furniture, the latter need not be noticed; 6 B. & C. 251. (b) It is not necessary or advisable to state the local situation; it might be fatal if misstated, unless the judge amended on the trial; 3 Campb. 235; 3 Taunt. 128; 3 M. & S. 380. But if described by a name generally known, a mistake may be immaterial; 1 Taunt. 570; 13 East, 9. (c) In 1 Rich. C. P. 1, and Morg. 17, the time is stated under a videlicet, but this is not necessary. (d) See form for the use and occupation of a water-course, 4 B. & C. 8. As to the law and form of an indebitatus count for the use of tolls or other incorporeal hereditament, see The Mayor of Carmarthen v. Lewis, 6 Car. & P. 608; Bird v. Higginson, 2 A. & E. 696; 1 Harr. & Woll. 61; 4 Nev. & Man. 505, S. C. Although by an agreement not under seal no interest will pass in any incorporeal hereditament, yet if a lessee or other party has had the enjoyment thereof, indebitatus assumpsit for the rent or other agreed sum may be supported; ibid. As to what constitutes an hereditament within the 11 Geo. 2, c. 19, s. 4, Jones v. Reynolds, 4 A. & E. 805. I. RESPECTING REAL PROPERTY. For the use and church. (f) For the use and occupation of a seat in a house Commencement of count as ante, 36.] For the use and occupation of a certain pew and seats in the parish church of in the county of --, by the defendant, and at his request, and by the sufferance and permission of the plaintiff, had, used, occupied, possessed and enjoyed by him the said defendant and divers other persons, on divers Sundays and holidays and other days and times, for and during a long time before then elapsed, for the attending and hearing divine and church service performed in the said church. [Conclude as ante, 36. Commencement of count as ante, 36.] For the use and occupation of divers seats and places in and parcel of a certain messuage and premises of the to view a public plaintiff by the defendant and divers others before that time used, occupied, procession. possessed and enjoyed, for the viewing of a certain procession on a certain day then past, and at the request of the defendant. [Conclude as ante, 36. For the use of a tennis court, balls, and rackets. For the use, occupation and profits of an inn. (g) On 11 Geo. 2, c. tice. (h) Commencement of count as ante, 36.] For the use of a certain tennis court of the plaintiff by the defendant, and divers other persons, at his request, and by the sufferance and permission of the plaintiff, before that time used in and for the playing of divers lawful sets and games at tennis therein, and for the use and hire of divers dresses, balls and rackets of the plaintiff, before that time let to hire to the defendant, at his request, and by the defendant, and divers other persons, according to that letting to hire had and used in and for the playing of the said sets and games. [Conclude as ante, 36. Commencement of count as ante, 36.] For the use, occupation and profits of a certain inn, called and known by the name and sign of the — inn, of the plaintiff by the defendant, and at his request, and by the sufferance and permission of the plaintiff, for a long time before then elapsed, had, held, used, occupied, received and taken. [Conclude as ante, 36. Commencement, ante, 13.] For that whereas the defendant, after the 24th 19, s. 18, for double rent, of June, A. D. 1738, mentioned in a certain act of parliament made in the tenant having 11th year of the reign of his late Majesty King George the Second, to wit, neglected to quit in pursuance of on the (i) day of A. D. by force of the said statute, behis own nocame and was indebted to the plaintiff in a large sum of money, to wit, the sum of [£100,] for the use and occupation of a certain messuage and premises, with the appurtenances, on the day of, A. d. held by the defendant, as tenant thereof to the plaintiff, at and under the yearly rent of [£50], payable quarterly (to wit, on &c., on &c., on &c., and on &c.) [according to the fact] by the defendant and at his request, for a long space of time, to wit, from the day of day of A. D. till the said —, A. D. —, [according to the fact,] had, used, occupied, possessed (f) It is unusual and unnecessary to state the situation of the pew and the purposes for which it was used. (g) See note (t), ante, 38. (h) See a good precedent with notes, and a suggestion that the venue is local, 2 Wentw. 64, 65. See also a precedent and law, Crocker v. Fothergill, 2 B. & A. 652. See also the notes, Chitty's Col. Stat. vol. 1, 647. The remedy where the landlord gives notice to quit is debt for double value; 4 G 2, c. 28, s. 1; and see a form of declaration for it, post, Debt on Statutes by party aggrieved. (i) Any day before the commencement of the action. |