afford sufficient ground to warrant the inference of a similar promise with relation to subsequent balances. Nichol v. Thompson, 1 Camp. 52, n.

But interest will not be allowed, in an action to recover back money obtained fraudulently; or, money paid by a third person to defendant for plaintiff's use; nor, in an action of Assumpsit on a foreign judgment. Neither, in an action on a policy, can interest 1 Camp. 129, 518; 2 Camp.

be recovered on the amount insured.

462.

If goods are to be paid for by a bill, but it is not given; interest should be allowed from the time the bill would have been due. 2 Camp. 472, 480.

Interest is not recoverable after a tender, even on a bill of exchange or a note of hand. 3 Camp. 296.

DECLARATIONS IN GENERAL ASSUMPSIT.

Indebitatus assumpsit on accounts annexed to the writ.

1. In a plea of trespass on the case; for that the said D, at &c., on &c., being indebted to the plaintiff in the sum of &c., according to the account annexed, in consideration thereof then and there promised the plaintiff, to pay him that sum on demand; yet the said D, though requested, hath not paid the same, but refuses so to do. To the damage, &c.

NOTE. Where the ad damnum by mistake is made for too small a sum, as appears by computation of the sums laid in the declaration, the court will permit the ad damnum to be increased, even after a verdict for a sum larger than the ad damnum, which it would be error to take judgment upon. This however, it seems, they will do upon the terms of the defendant's having a new trial. al. v. Blacksmith, 7 Durnford & East, 133; 7 East. Tomlinson &

Quantum meruit for goods, &c. sold, and labors, &c. done.

2. SECOND COUNT. And for that the said D thereafterwards on the same day, in consideration that the plaintiff had, before that time, sold and delivered to the said D at his request, other goods, wares and merchandises, than those mentioned in the said account, but of the same kinds, and at the same times therein mentioned, and had also done and performed divers labors and services, in and about the said D's business, and at his like request, other than those mentioned in said account but of the several kinds therein specified, promised the plaintiff, to pay him as much money as he reasonably

deserved to have therefor, on demand, which the plaintiff avers is another sum of &c.; of all which the said D there afterwards on the same day had notice; yet the said D, though requested, hath not paid the same, but unjustly neglects and refuses so to do. Stevens v. T. PARSONS.

Pearce, Essex, 1794.

NOTE. This is the usual form of practice in this State, where generally an exhibit, or schedule of particulars of account, is annexed to the writ. Where to secure the action, more than one count is used, the fictitious diversity of the goods, &c. is averred by other than in the account annexed," and this averment is material; for the omission of "other" has been decided in England, to be bad upon special demurrer. In this the English practice differs from ours. There, no exhibit is ever attached to the writ or declaration; and, if wanted, is usually obtained by a rule to show them at a judge's chambers. Nor indeed is such an exhibit necessary; for the labor, &c. may be stated generally, and the authorities all agree, that it would be good. However, possibly, the omission, if defendant had not notice of the particular demand, might be a cause of continuance on motion. (MSS.)

Indebitatus assumpsit for balance due on account.

For that the said D, ou &c., at &c., being indebted to the plaintiff in the sum of &c., according to the annexed account, and to balance the same, in consideration thereof, then and there promised the plaintiff, to pay him the same on demand; yet though requested, the said D hath never paid the same sum, but neglects it.

JOSIAH QUINCY.

Indebitatus assumpsit for money had and received. For that the said C, on &c., at &c., being indebted to the plaintiff in the sum of &c., for so much money, before that time, had and received by the said C, to the plaintiff's use, in consideration thereof, then and there promised the plaintiff, to pay him that sum on demand; yet, though requested, the said C hath never paid the same, but refuses so to do.

NOTE. A count for money had and received by the defendant, to the use of the executor AS SUCH, may be joined to a count for money had and received to the use of the testator; but a count for money due to executor in his own right cannot. Petrie v. Hannay, 3 T. R. 659. But an action for money had and received by defendant as administratrix to the use of the plaintiff, cannot be joined with counts against the defendant as administratrix; for such a count charges her in her own right and time. Jennings v. Newman, 4 T. R. 347,565.

So Declaration for money had and received to the plaintiff's use in his capacity of administrator in his own time, was held good on argument, S. J. C. Essex, Nov. T. 1787, Shipnan v. Thompson, S. P. Willes, 103, agreed; though he might have declared in his own right only. 2 T. R. 476.

Where money is owing to two partners; and, after the death of one, it is paid to a third person, the surviving partner may maintain an action for money had and received, in his own right, and not as survivor. Smith v. Barrow, 2 T. R. 476. So may executor in his own right. But aliter if the partner did not die first. (MSS.)

The Same for money lent and accommodated.

For that the said D, at &c., on &c., being indebted to the plaintiff in the sum of &c., for so much money before that time lent and accommodated, by the plaintiff, to the said D, at his request, in consideration thereof then and there promised the plaintiff to pay him the same on demand yet, &c.

NOTE. The word "lent" is a technical word, and no man can be indebted to another for money lent, unless the money be actually lent to the person himself. Therefore, in an action for money lent to D, instead of L. who was the defendant, judgment was arrested, though the court stated it at L's request. Marriot v. Lister, 2 Wils. 141. Imp. Plead. 193, Notes. But, if the Declaration had stated the money paid, advanced or delivered to D at L's request, it had been good. Carth. 446; Comb. 470; 2 Browl. 40.

It is necessary to state, that the money was lent, laid out, &c. at the defendant's request; otherwise, it is error. Cro. Eliz. 218. (MSS.)

The Same for money lent to the wife.

For that the said D, on &c., at &c., being indebted to the plaintiff in the sum of &c., for so much money, before that time lent by the plaintiff to Ann, the wife of the said D, [in his absence], and at his special request, in consideration thereof, then and there promised the plaintiff to pay him that sum on demand; yet, &c. Stephenson v. Hardy, 3 Wil. 388; Imp. Pl. 243.

NOTE. A motion was made in arrest of judgment in this case, upon the authority of the preceding cases; but, by the Court, it is admitted that if the word "advanced" had been used, it would have been good; and in this case "lent" is only equivalent; the cases cited are good law, but a loan to the wife at the request of the husband, is in law a loan to the husband himself. (MSS.)

The Same for money laid out and expended.

For that the said D, at &c., on &c., being indebted to the plaintiff in the sum of &c., for so much money

before that time laid out and expended by the plaintiff, for the use of the said D. at his request, in consideration thereof, then and there promised the plaintiff to pay him the same on demand; yet, &c.

The Same, the money counts joined.

For that the said D, at &c., on &c., being indebted to the plaintiff in &c., for money by the plaintiff before that time laid out, expended, and paid for the said D, at his special request; and for other money by the plaintiff before that time, lent and advanced to the said D, at his like request; and, for other money, by the said D, before that time, had and received to the use of the plaintiff in consideration thereof, then and there promised the plaintiff, to pay him the same sums on demand; yet, &c. Imp. Pl. 207.

NOTE. The usual way of declaring for foreign coin lent, is to state for so much foreign coin lent and advanced, amounting to so much in American money. 1 Leon. 41; Imp. Pl. 193. (MSS.)

The Same, for foreign coin lent.

For that the said B, on &c., at &c., being indebted to the plaintiff in the sum of 1000 florins of foreign money of the value of &c., of the United States, for so much money, before that time lent and advanced by the plaintiff to the said B, at his request, in consideration thereof, then and there promised the plaintiff, to pay him the same on demand; yet &c. Imp. Pl. 194.

Quantum meruit for labor of a child; by parents.

For that the said H, on &c., at &c,, in consideration that the plaintiff* had permitted C. B. the infant son and servant of the plaintiff, to labor for and serve the said H, in his husbandry and business, from &c., to &c,, promised the plaintiff, to pay him so much money as he reasonably deserved to have therefor on demand; &c. E. TROWBRIDGE.

Against surviving partner. Indebitatus Assumpsit.

1. For that the said B and one E, whom the said B hath survived, on &c. at &c., being indebted to the plain

Here it would be more safe to insert the words, " at the special instance and request of the said H."

tiff in the sum of &c., according to the annexed account [and to balance the same,] in consideration thereof, then and there promised the plaintiff, to pay him the same on demand;

Quantum meruit.

2. SECOND COUNT. And for that the said B and E, there afterwards on the same day, in consideration that the plaintiff had, before that time, sold and delivered to the said B and E, at their request, divers goods, wares, and merchandises, other than those mentioned in the said account, but of similar quantities, and qualities, and had also done and performed divers labors and services, in and about the said B and E's business, and at their like request, other than those mentioned in said account, but of the several kinds therein specified, promised the plaintiff, to pay him so much money as he reasonably deserved to have therefor on demand; which the plaintiff, avers to be the sum of &c.; of all which the said B and E there afterwards on the same day had notice;

Money had and received.

3. THIRD COUNT. And for that the said B and E. there afterwards on the same day, being indebted to the plaintiff in the sum of &c., for so much money, before that time had and received by the said B and E, for the plaintiff's use, in consideration thereof, then and there promised the plaintiff to pay him the same on demand;

Conclusion.

Yet, though requested, the said B and E, or either of them, in the lifetime of the said E, or after his death, the said B. never paid the said sums, or either of them, to the plaintiff, but wholly refused, and the said B still refuses so to do.

NOTE. The time alleged may be any time before the death of E; and, in the same way, other counts may be added mutatis mutandis. If two partners purchase goods, and one dies, the survivor may be charged in indebitatus Assumpsit generally, without taking notice of the partnership, or that the other is dead, and he, surviving partner. Hyatt v. Hyre, Comb. 283.

So a partner may join actions for money due in his own right, and as surviving partner.