By and against a Township, County, &c.-By an Informer. in the common form. The statement of the cause of action, and breach can be readily made out by a modification of the form of declaring by an Administrator; conclude:] To the damage of the plaintiff, as Guardian as aforesaid, of dollars; and therefore he brings his suit, &c. 13. Declaration by and against the Township, County, &c. The commencement and conclusion is in the common form, ante page 181. The only doubt that can arise, is as to the name to be used.1 Name the party thus: The County Commissioners, under Statute 205, §7, and generally, "The Board of Commissioners of [The name of the County,] County." Perhaps if named thus: "The County Commissioners of County," it could not be objected to, but the other conforms more strictly with their corporate statutory name.2 A civil township thus: "The Trustees of Township," in said County.3 The Trustees of an original surveyed Township thus: "The Trustees of School Section 16, Township, Range, in Township, County," filling the blanks with the correct description. the names of the incumbents in office should be omitted. In the above cases, Officers authorized to sue officially in their own names, and who are not made a body politic and corporate, should probably sue in their individual name and name of office, as thus: "A. B., Supervisor of Roads and Highways, in and for District No. County," unless the provisions of the statute expressly or constructively require them to sue in their name of office only.3 in the Township of in said 14. Declaration by an Informer. Court of Common Pleas of County: Of the Term of -, in the year of our Lord The State of Ohio, A. B., who sues as well for [The State of Ohio, naming the Corporation, or party entitled to the penalty, or a part thereof,] as for himself, in this behalf, [by J. S., his attorney, or in his own proper person,] complains of C. D., in a plea of [Debt.] For that, whereas, [&c. Conclude, (omitting the usual words, "to the damage of the plaintiff, of dollars,") thus:] And thereupon, the plaintiff, who sues as aforesaid, sues, &c. (1) See ante, p. 55; Angel & Ames on Corp. 2d ed, 60, 63; 10 Co, 126; 7 Mass. 441. (2) Stat. 205, §7; see 3 Ohio Rep. 227; 5 Id 184; 8 Id. 174. (3) 3 Ohio Rep. 227; 5 Id. 184; 8 Id. 174. CHAPTER XII. DECLARATIONS IN ASSUMPSIT.(a) SECTION I. THE COMMON INDEBITATUS COUNTS. 11. ADMINISTRATORS BY AND AGAINST. 1. By an Administrator on promises to the Intestate. 2. By an Administrator laying a debt to the Intestate, and a promise to the plaintiff. (a) It is proper to state here that the following forms are selected from various works of precedents and reported cases, and I do not feel myself responsible for their accuracy. The forms recently prescribed by the English judges, and those since made up by the late Jo seph Chitty, jr., have been incorporated into this work, so far as the same are applicable to our practice. Fees in proportion to the number of folios, had ever tended to multiply counts, and render verbose the pleadings in the English courts. Hence, averments and statements, and even counts, such as the quantum meruit and quantum valebant, repeatedly declared by the courts as unnecessary, were tenaciously retained, for no other apparent reason than to swell the number of folios in the bill of costs, until the British Parliament authorized the English Judges to interfere, and save suitors from this legalized oppression. The judges, in their work of reform, proceeded with the caution of learned and prudent jurists. Their forms of declarations are in accordance with the old and well established principles of pleading. Averments and statements which had theretofore been authoritatively pronounced by their predecessors as unnecessary, are, in general, omited. of such minds, they were submitted to the consid eration of, and were sanctioned by, the English bench. 3 Chit. Pl., 8 Am. ed., 1409. It might seem unnecessary to say any thing more to recommend these forms of declarations to the Bar; but that authority may be added to assertion, the reader is referred to the form of a declaration upon a promissory note, (post, sec. 32, of this Chapter,) where the authorities for leaving out the verbiage of the old form are collected. One of the most common defects in declarations in assumpsit, is in the averments connected with the statement of the consideration. When the consideration stated is passed, as thus: "in consideration that the plaintiff had" &c., the act thus averred to have been done must be also stated to have been done “at the defendant's request." I Saund. 264 n. (1); 7 Johns. 87; 6 Wend. 647; 20 Johns. 28. The request itself may be implied from the beneficial nature of the consideration. 10 Johns. 243; see 17 Johns. 378; 16 Johns., 2d ed., 283 n. (a). When the declaration avers that "in considera tion that the said plaintiff would," &c., there must be a further averment that the plaintiff done the act, as thus: "and the plaintiff afterwards, to wit, on [&c.] at [&c.] did," &c., setting forth the performance of the consideration. These forms were drawn by the late Lord If the promise of the defendant was in considTenterden, one of the most distinguished law- eration of a promise on the part of the plaintiff, yers and pleaders of his time, and were submitted, the promises should be laid as concurrent, thus: before their adoption, to the late Joseph Chitty, "In consideration that the plaintiff then and there sen., with a view to strike out every allegation, promised the defendant to [setting out the act to be even to a word, the omission of which would not done,] he, the said defendant, then and there promsubject either of the forms to a sustainable specialised the plaintiff to," setting out what the defenddemurrer. After passing the deliberate scrutiny ant was to do. 1 Caines Rep. 583; 12 Johns. 397. * A single remark dropped by Lord Terderden in the case of Henniker v. Turre: (10 Eng. C. L. Rep. 300) shows that he was a cafe re former: It is very unwise to depart from the common course of precedents." 3. By an Administrator on a cause of action arising after the Intestate's death. 4. Against an Administrator on promises by the Intestate. 5. Against an Administrator laying a debt from the Intestate, and a promise by the Administrator. 6. Against an Administrator on a cause of action arising after the Intestates death. 2. Against an Agent for not accounting for goods, &c., intrusted to 4. For not obeying the orders of his Principal in selling goods. IV. 5. For selling part of goods at less than the stated prices; for not accounting for those sold; and not delivering up the remainder. 6. Against an Auctioneer for selling on credit. 7. Against the Captain of a ship, or an Agent, at the suit of the Owner, for not procuring a sufficient cargo. 8. Second count for not properly stowing the cargo. 9. Against a shipping Broker, the proprietor of a shipping office, for not forwarding plaintiff's goods by a vessel proceeding to another port. 10. Against the Payee of a Bill of Exchange (drawn by the Plaintiff on a third person, and indorsed by defendant,) for not taking up the bill with money paid to him by the plaintiff for that purpose, whereby the plaintiff was sued on the bill. 11. Against an Agent on his implied promise that he had authority from his principal to sell goods to the plaintiff. 12. By a Principal against his del credere Agent, on his guarantee. AGISTMENT. V. ASSIGNEE OF AN INSOLVENT DEBTOR. VI. VII. ATTORNEYS, BY AND AGAINST. 1. Against an Attorney for not obtaining a judgment as soon as he ought to have done. 2. General count against an Attorney for negligence in conducting an action at the Plaintiff's suit against a third person. 3. General count against an Attorney, for negligence in defending a cause at the trial. 4. Against an Attorney (employed to conduct an action against another attorney for negligence,) for carelessly omitting to adduce proper evidence, whereby plaintiff was nonsuited. AWARDS. 1. Upon an Award or Umpirage made in pursuance of a written or parol agreement or submission between the parties where the time for making the award was prolonged. 2. Indebitatus count on an Award. 3. Indebitatus count on an Umpirage. VIII. BAILEES. 1. Against a Bailee for reward (viz: a watchmaker) for not using IX. due care in repairing the goods, for not taking care of them; and for not returning them on request, (in one count.) BILLS OF EXCHANGE. 1. Drawer, being Payee, against Acceptor. 2. Drawer, not being Payee, and having taken up the Bill against 3. Acceptor. Payee, not being Drawer, against Acceptor. 4. Indorsee against Acceptor. 5. Payee against Drawer, being a default in acceptance. 6. Indorsee against Drawer-default acceptance. 7. Indorsee against Indorser-default acceptance. 8. Indorsee against Drawer-default of payment by Drawee. 11. Indorsee against Drawer or Indorser, on Bill payable after sight. 14. Indorsee against Drawer, on Bill drawn and accepted payable at a particular place. 15. Drawer against Acceptor, on Bill accepted payable on a contin gency. 16. Indorsee against Drawer, where notice of dishonor was not given, but Drawer had no effects in the Drawee's hands, &c. 17. Against Drawer on default payment, where the Drawee could not be found. 18. Indorsee against Drawer, where Drawee was dead. 19. Indorsee against Drawer, where the defendant dispensed with presentment. 20. Executor of Drawer against Acceptor with the common count, laying the promise to the Testator. 21. Executor of Drawer against Acceptor, laying promises to the plaintiff as executor. 22. By administrator of Drawer against Acceptor. 23. By the Drawer, &c., against the executor or administrator of the Acceptor. 24. By Indorsee of executor of Drawer against Acceptor. 25. By Indorsee of administrator of Drawer against Acceptor. 26. By the Commissioner of Insolvents (the insolvent debtor the Drawer) against Acceptor. 27. By the surviving Drawer, against the Acceptor. 28. By husband and wife, on a Bill drawn by, and payable to the wife before marriage, against the Acceptor. 29. Against husband and wife on Bill accepted by her before marri- 30. Drawer (or Indorser) against Acceptor of foreign Bill. X. BOARD AND LODGING. XI. XII. XIII. XIV. XV. XVI. XVII. 3. By the master of a steam boat on the bill of lading against the consignee of goods, for not receiving the goods from the boat in a reasonable time. 4. 5. Against a Carrier on his common law liability for losing goods. Against a Carrier for gross neglect, whereby the goods were lost. 6. Against a Carrier for carelessly delaying the carriage and delivery of a parcel. 7. By an administratrix against a stage coach proprietor for so negligently driving the coach that it was upset; whereby the leg of the intestate was broken, and he died; showing special damage. 8. Against the proprietors of a stage coach or rail road car, for negligence, and overturning it, whereby the plaintiff's arm was broken. 9. Against the owners of a steam boat for negligence. CHARTER PARTIES (referenCES TO FORMS.) CHECKS ON A BANK. 1. Payee of Check against drawer. 2. Bearer not being payee against the drawer. CROPS. 1. Indebitatus count for crops sold to the defendant. 2. By an outgoing tenant against an incoming tenant, to recover the amount of a valuation of Crops, &c., relinquished to the incomer. EXCHANGE. 1. For not delivering goods, and paying money on a contract of Exchange. 2. For not delivering mares in Exchange for cows. EXECUTORS. 1. By an Executor on promises to the Testator. 2. The like, with a count laying a debt to the Testator, and a promise to the plaintiff. 3. By an Executor, on a cause of action arising after the Testator's death. 4. By an Executor, for use and occupation to recover a year's rent, where the Testator died during the currency of the year. 5. By Executors, to recover the value of work, &c., done partly by the Testator, and finished by the Executors after his death, in pursuance of defendant's contract with him. 6. Against an Executor on promises by the Testator. FARRIER. 1. Against a Farrier for not using due care, &c., in his treatment of the plaintiff's horse, which was lame. |