TRIBUTIONS TO PARTY WALLS. FOR CON--. within twenty-one days next after such demand thereof as aforesaid; and being so liable, he the said defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, undertook* and then and there faithfully promised the said plaintiff to pay him the said sum of 7. within twenty-one days next after such demand thereof as aforesaid; nevertheless the said defendant, not regarding his said promise and undertaking so by him made as aforesaid, nor the said Statute, but contriving and intending, did not pay to the said plaintiff the said several sums of money, or either of them, or any part thereof, within the said space of twentyone days next after such respective demands, nor hath he yet paid the said several sums of money, or either of them, or any part thereof, to the said plaintiff, although often requested so to do, but to pay the same, or any part thereof, hath hitherto altogether refused, and still doth refuse, to wit, at, &c. aforesaid. [Second count same as the first, only stating that plaintiff was [*250] *possessed under a demised term, from, &c. Add the indebitatus count, as ante, 54, or post, 251.] The like by recover a ding a used by defendant For that whereas, after the making of a certain act of parliament, made in executor to the 14th year of the reign of his late Majesty King George the Third, intimoiety of tuled, "An Act for the better regulation of buildings and party-walls, and the expen- for the more effectually preventing mischiefs by fire, within the cities of Lonses of buil- don and Westminster, and the liberties thereof, and other the parishes. preparty-wall, cincts, and places within the weekly bills of mortality, the parishes of St. Mary-le-bone, Paddington, St. Pancras, and St. Luke at Chelsea, in the after death county of Middlesex, and for indemnifying, under certain conditions, buildof testator. ers, and other persons, against the penalties to which they are or may be lia(k) ble, for erecting buildings within the limits aforesaid, contrary to law;" and in the life-time of the said E. F. to wit, on, &c. a certain party-wall had been built, at the expense of the said E. F. agreeably to the directions of the said Statute, between a certain messuage or building, situate and being in, &c. and certain ground, then also situate and adjoining the said party-wall; and whereas afterwards, and after the death of the said E. F. to wit, on, &c. at, &c. (venue) he the said defendant, being then and there the owner, and entitled to the improved rent of the said adjoining ground, did cut into and make use of the said party-wall by then and there beginning to build, and afterwards building against the same, a certain messuage or building of the same rate or class of building, as the said first-mentioned messuage or dwelling-house; by means whereof and according to the tenor and effect of the said Statute in that behalf, he the said defendant then and there became liable to reimburse and pay to the said plaintiffs, as executors as aforesaid, a · certain sum of money, to wit, the sum ofl. of lawful money of Great Britain, being one moiety of the expense of building the said party-wall, after the rate, in the said Statute mentioned; and being so liable, he the said defendant, in consideration thereof, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, undertook, and then and there faithfully promised the said plaintiffs, as executors, as aforesaid, to pay to them the said sum of 7. when he the said defendant should be thereunto afterwards requested. [ *251 ] *And whereas also the said defendant, afterwards, to wit, on, &c. at, &c. Indebila- (venue) was indebted to the said plaintiffs, as executors aforesaid, in the sum tus count. (k) See notes, ante, 54, 247 TRIBUTIONS of-l. of like lawful money, for part of the expense of building a certain FOR CONparty-wall, before then built at the expense of the said E. 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 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 last-mentioned ground, and being so indebted, &c. undertook, &c.-[Add common counts as directed ante, 248.] XV. TO PAY MONEY FOR FORBEARANCE TO DEFENDANT. TO PAY MONEY FOR FORBEAR DEFENDANT. On a pro an action For that whereas before the making of the promise and undertaking of ANCE TO the said defendant hereinafter next mentioned, a certain action had 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 mise to pay king himself, (m), (or if in C. P. say "in the court of our lord the king, the costs of before his Majesty's justices of the bench at Westminster,") for the recovery within a of a certain sum of money, to wit, the sum of 7. then and at the time of week, in the making of the promise and undertaking of the said defendant hereinafter consideranext mentioned, due and owing from the said defendant to the said plain- plaintiff tiff. And which said action, at the time of the making of the said promise staying and undertaking of the said defendant, hereinafter next mentioned, was proceeddepending in the said court, to wit, at, &c. (venue) thereupon heretofore, ings (1). to wit, on, &c. (day of promise, or about it) at, &c. aforesaid, in [ *252] consideration of the premises, and that the said plaintiff, at the special instance and request of the said defendant, would (n) cease to prosecute the said ac (1) See forms, Plead. A. 95, 127. See a form, ante, 245, against an executor, on his promise to pay a legacy in consideration of forbearance. Forbearance to sue is a good consideration for a promise where it is absolute only, Cro. Jac. 683; or for a definite portion of time, Cro. Jac. 47; or a reasonable time, 1 Roll. Abr. 24, pl. 33; forbearance for a title, 1 Roll. Abr. 23, pl. 5; or for some time, id. pl. 26, is not sufficient. Forbearance to sue seems an insufficient consideration, unless a right of action be known to have existed, 4 East, 455; 1 New. Rep. 172. Assumpsit in consideration that the plaintiff, at the request of the defendant, would consent to suspend proceeding against A. On a cognovit, defendant promised to pay 301. on account of the debt (for which the cognovit was given) on the 1st of April then next. Averment that the plaintiff did suspend the proceedings on the cognovit. The plaintiff, at the trial proved the following agreement in writing: The plaintiff having at my request consented to suspend .proceedings against A. I do hereby, in consideration thereof, personally promise to pay 301. on account of the debt, on the 1st day of April next: " held, that as the (m) The court must be accurately described, (n) When it suffices to declare on an execu tory 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, tion of NEY FOR FORBEAR ANCE TO ANT. TO PAY MO- tion, and would stay all further proceedings therein (1), he the said defendant undertook, and then and there faithfully promised the said plaintiff to pay the costs of commencing and prosecuting the said action, in a week then DEFEND 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 ofl. (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 commenc ing 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 be fore 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. (renue) 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.] TO PAY MO- FORBEAR XVI. TO PAY MONEY FOR FORBEARANCE TO THIRD PERSONS. For that whereas one E. F. before and at the time of the making of the ANCE TO promise and undertaking of the said defendant hereinafter next-mentioned, was indebted to the said plaintiff in a certain sum of money, to wit, the sum PERSONS. of -l. *(state enough) of lawful money of Great Britain (q) to wit, at, THIRD On a pro mise to (0) See id. pay the -- sideration, is not valid, 1 Saund. 211 a; Com. notes; and see a form, ante, 245. See form of declaration by baron and feme on promise to render third person or pay debt, 4 B. & Adolph. 739; and a declaration on a promise to pay a larger sum than debt, in consideration of plaintiff's forbearing to execute fi. fa. against a third person, Smith v. Algar, 1 B. & Adol. 606; and see Chit. jun. Cont. 2 ed. 99; and see a declaration on a promise to give a note on plaintiff's discharging a debtor out of custody, 5 B. & A. 848. As to what is, or is not a collateral promise within the Statute, see 3 Chit. Com. Law, 319 to 322; 1 Chit. Col. Stat. 369; 1 B. & A. 297. (q) It is not necessary to state the subjectmatter of the debt, though some demand recov erable 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. 116.-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. (1) It is unnecessary to allege that the plaintiff promised to forbear. 10 Mass. 230, 237. NEY FOR FORBEAR ANCE TO THIRD PERSONS. &c. (venue); and thereupon heretofore, to wit, on, &c. (day of guarantee TO PAY MOor about it) at, &c. in consideration of the premises, and 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 ofl. 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.] · distress for For that whereas before the making of the said distress hereinafter next On a promentioned, one J. S. held, occupied and enjoyed certain premises, with the mise, that if plaintiff appurtenances, as tenant thereof to the said plaintiff, by virtue of a certain de- would mise thereof before then made, at a certain rent, to wit, the rent of (207.) per withdraw 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 making the distress here- goods of a inafter mentioned, was then and there due and owing from the said J. S. to third perthe said plaintiff, he the said plaintiff, during the said tenancy, and before the son, demaking of the promise and undertaking of the said defendant, hereinafter would pay (1) 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 nonpayment 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 writing. 3 Burr. 1886. 2 Wills. 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. Piggot, 4 Nev. & M. 496, On a promise that in consideration that plaintiff would withdraw distress made on effects of a bankrupt, defendant being his assignee, promised that the amount of distress should be paid to plaintiff out of the produce of the same effects distrained on. Stevens v. Pell, 4 Tyr. 6; and see pleas and law, id.) (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. rent on the fendant the rent (w). TO PAY MO NEY FOR SERVICES. Special count for board wa ges as an hired serv ant (a). [ *257 ] For a reward de fendant ad *XVIII. TO PAY MONEY FOR SFRVICES, &c. For that whereas heretofore, to wit, on, &c. (day of retainer or about it) at, &c. in consideration that the said plaintiff, at the special instance and request of the said defendant, would enter into the service of the said defendant, as an hired servant, and serve the said defendant in that capacity, he the said defendant undertook, and then and there faithfully promised the said plaintiff, during the continuance of such service and employment, to pay him the said plaintiff for such service certain wages, after the rate of — per annum, and certain board wages for his support and maintenance during such service, after the rate of shillings per week; and the said plaintiff avers, that he, confiding in the said promise, and undertaking of the said defendant, did afterwards, to wit, on, &c. aforesaid, enter into the service of the said defendant, and served the said defendant in the capacity aforesaid for a long space of time, to wit, for the space of weeks then next following. and that the board wages of the said plaintiff during the time aforesaid, and after the rate aforesaid, amounted to a large sum of money, to wit, the sum ofl., whereof the said defendant afterwards, to wit, on, &c. (any day be fore title of declaration) at, &c. aforesaid, had notice.-[Add the common count for wages, as ante, 65, and counts for work and labor, money paid, account stated, and breach.] For that whereas, before and at the time of the making the promise and undertaking of the said defendant hereinafter *next mentioned, he the said defendant was one of the bailiffs of the sheriff of Middlesex, to wit, at, &c. vertised he and whereas also before the time of the making of the said promise and unwould give, dertaking, one E. F. had been arrested, and was in custody of the said dein conside- fendant as such bailiff as aforesaid, for debt, to wit, at, &c. And whereas also before the time of the making of the said promise and undertaking, the said E. F. had escaped out of the custody of the said defendant, so being such bailiff as aforesaid, and the said defendant was desirous of apprehending escaped out and retaking the said E. F. to wit, at, &c. aforesaid; and thereupon, afterof his cus- wards, to wit, on, &c. at, &c. aforesaid, in consideration that any person (c) tody (b). would apprehend the said E. F. or by any private information, or otherwise, ration of any person's retaking one who (a) See precedents for wages, Thomp. Ent. 22; Pl. A. 49; 3 Burr. 1778; 1 Saund. 264; 2 Id. 346; 4 East, 546; 4 Esp. Rep. 75; 7 T. R. 241; 2 B. & P. 116. As to recovery of wages and remuneration in general, see Bac. Ab. tit. Master and Servant, H. Burn, J. tit. Servants; Ante, 74, note. (b) See other forms, 2 Wentw. 499; 3 Id. 30, 31, where see form of advertisement and notes, as to the plaintiff's having recovered. An advertisement or general promise of a reward to any who will apprehend a felon, or do any other act for the defendant, should not, in general, be declared upon as a promise to the particular plaintiff, for there is no privity between the parties themselves, Rol. Ab. 6, M. pl. 1; Noy, 11, where a similar advertisement promised a reward to the person who would give information respecting a lost child, so that it might be restored to its parents, and a person communicated his suspicions on the subject to a third person, who gave the infor mation and received the reward; accordingly it was held, that the person who had so received the reward was not liable to repay the whole, or any portion of it, to the person from whom he originally received his information. 1 M. & S. 108. When the reward is advertised to be paid to any person who shall apprehend, or cause to be apprehended, &c. and one person apprehended the offender, and another procured his apprehension, they are both entitled to be remunerated. 3 Wentw. 30. The 7 & 8 G. 4, c. 29, 8, 59, prohibits the advertising a reward for stolen goods with no questions asked, &c. under a penalty of 60%. and full costs, The 7 Geo. 4. c. 64. s. 28, allows rewards in certain cases. See Burn's Justice, title Reward. (c) See note, supra. |