Sidebilder
PDF
ePub

So a debt due to the defendant, as surviving partner, may be set off against one due from him in his own right. Slipper v. Stidstone. Espi. N. P. C. 47; 5 T. R. 493; and a debt due from the plaintiff, as surviving partner, may be set off against one, due to him in his own right. Andrade v. French, 6 T. R. 582. But,

if an action is brought by a surviving partner, for goods sold and delivered in the lifetime of the deceased partner, he must declare on a promise of both, as partners, in the lifetime of his partner, and state his survivorship; and the breach assigned, that the defendant had not paid to the plaintiff and his partner, in his lifetime, nor since his death, to the plaintiff. Bullock v. Jackson, Esp. N. P. 137.

When an action is brought against a firm or company, they should all be named at length, as “ partners in trade jointly negotiating under the firm of fc. ;" and, if joint owners of a vessel, and liable as such, it may be well to state it. But generally, where joint debtors are not partners, they must be declared against as common defendants.

(MSS.) By surviving partner. Indebitatus assumpsit. For that the said D, on &c. at &c., being indebted to the plaintiff and one A, who was then alive, but since deceased, and whom the plaintiff survived, in the sum of &c., according to the account annexed, in consideration thereof, then and there promised the plaintiff and the said A to pay them the same on demand ;

Quantum meruit. Second Count. And for that the said D there afterwards on the same day, in the lifetime of said A, in consideration that the plaintiff and the said A had, before that time, sold and delivered to the said D, at his request, divers other goods and merchandises than in the account annexed, but similar thereto, and had also done and

performed other labor and services for the said D, than in the same account, but of like kinds, and at the like request of the said D, promised the plaintiff and the said À, to pay them so much money as they reasonably deserved to bave therefor, on demand; which the plaintiff avers to be the sum of &c.; of all which the said D, there afterwards on the same day, had notice;

Money had and received. THIRD Count. And for that the said D, on &c., at &c., in the lifetime of the said A. being indebted to the plaintiff and the said A, in &c., for so much money before that time had and received by the said D, to the use of the plaintiff and the said A, in consideration thereof, then and there promised the plaintiff and the said A, to pay them that sum, on demand;

Conclusion. Yet, though requested, the said D never paid the said sums, or either of ihem, to the plaintiff, and the said A in his life, or, since his death, to ihe plaintiff, but refused and still refuses so to do.

Note. If a quantum meruit alone is used, the beginning should a little vary from the above form, and might be as follows, “and for that the said D, on &c., at &c. in consideration that the plaintiff and one A, who was then alive, but since deceased, and whom the plaintifi hath survived, had before that time, sold and delivered to the said D, at his request, divers goods and merchandises of them the said A and the plaintiff, promised them to pay them so much money as they reasonably deserved therefor, on demand ;" &c. But it is more usual for the plaintiff to describe himself in the writ “as surviving partner of A &c., deceased,” in which case, no alteration need be made in the second or third counts.

If money, due to two partners, be, after the death of one, paid over to a third person for their use, 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.

(MSS.) By husband and wife. Indebitatus assumpsit. For that the said D, on &c., at &c., being indebted to the said A, while sole, and before her intermarriage with the said D, in the sum of &c., according to the account annexed, in consideration thereof, then and there promised the said A to pay her that sum on demand.

Quantum meruit. Second Count. And for that the said D, there afterwards on the same day, in consideration that the said A, while so sole, had, before that time, sold and delivered to the said D, at his request divers other goods and merchandises, than those in the same account, but similar thereto; and had also done and performed certain other labor and services for the said D, at his like request, than those mentioned in the same account, but of like kinds; promised the said A, while so sole, to pay her so much money as she reasonably deserved therefor, on demand; which the said A and E aver to be the sum of &c., of all which the said D, there afterwards on the same day, had notice:

Money had and received. Third Count. And for that the said D, at &c., on &c., being indebted to the said A, while so sole, in the sum of &c., for money, before that time had and received by the said D, to the use of the said A, in consideration thereof, then and there promised the said A, while so sole, to pay her the same on demand :

Conclusion. Yet, though requested, the said D never paid the said sums, or either of them, to the said A, while sole, or to the said E and the said A, or either of them, since their intermarriage, bút refused and still refuses so to do. Imp. Pl. 239.

NOTE. In all cases, where a chose in action of the wife is to be reduced into possession, an action for that purpose must be brought in the names of both. This appears to be the settled rule, though there have been contradictory decisions. Milner v. Milner, 3 T. R. 631. (MSS.)

Against husband and wife. Indebitatus assumpsit. For that the said D, while sole, and before her intermarriage with the said E, on &c., at &c., being indebted to the plaintiff in &c., according to the annexed account, in consideration thereof, promised the plaintiff to pay him that sum on demand :

Quantum meruit. Second Count. And for that the said D, while sole, as aforesaid, there afterwards on the same day, in consideration that the plaintiff, at the request of the said D, had, before that time, sold and delivered her other goods and merchandises than those mentioned in the account annexed, but similar thereto, and had done and performed certain other labor and services in the business of the said D, than those mentioned in the same account, but of like kinds, and at the like request of the said D, promised the plaintiff, to pay him so much money as he reasonably deserved therefor, on demand; which the plaintiff avers to be the sum of &c., of all which the said D there afterwards on the same day had notice:

Money laid out, fc. THIRD COUNT. And for that the said D, while sole as aforesaid, on &c., at &c., being indebted to the plaintiff in the sum &c., for money by the plaintiff before that time laid out, expended and paid for the said D, while sole, and at her like request, in consideration thereof, then and there promised the plaintiff to pay him that sum on demand;

Conclusion. Yet, though requested, the said D, while sole, or since their intermarriage, the said D and E, or either of them, have not paid the same, but neglected, and still neglect so to do. Imp. Plead. 233.

Note. As it is clearly law, that, for all debts due to the wife before coverture, the husband and wife must join, so also they must be joined in all actions accruing against the wife before coverture. Mitchinson v. Hewson, 7 T. R. 348.

In all actions where the husband and wife join, her interest must be stated, for otherwise the promise, &c. shall be intended, to the husband; as that the cause of action existed before marriage or the tort was done to her. Bid good v. Way et ur. 2 BI. Rep. 1236.

Where work and services are done by the wife during coverture, and there is no express promise to the wife, the husband must sue alone for her earnings ; for, in the eye of the law, she is his servant. But if there be an express contract with the wife, the husband may assent to and make it a joint contract, and then she may join; or he may sue alone. 2 BI. Rep. 1239; Cro. Eliz. 61; Imp. Pl. 231. (MSS.)

By executor or administrator. Indebitatus assumpsit. For that the said E, on &c., at &c. being indebted to the said S [the intestate or testator,] in the sum of &c., according to the annexed account, in consideration thereof then and there promised the said S, in his lifetime, to pay him that sum on demand;

Quantum meruit. Second Count. And for that the said E, on &c., at &c., in the lifetime of the said S, in consideration that the said S, at the request of the said E, had, before that time, sold and delivered to the said E, divers other goods and merchandises, than in the said account, but similar thereto: and had also, at the like request of the said E, done and performed certain other labor and services in and about the business of said E, than in the same account, but of like kinds, promised the said S to pay to him, so much money as he reasonably deserved therefor, on demand; which the plaintiff avers to be the sum of &c., of all which the said D there afterwards on the same day had notice;

Money laid out, &c. Third Count. And for that the said D, on &c., at &c., being indebted to the said S, in another sum of &c., for money before that time laid out, expended, and paid by the said S for the said D, at bis request, in consideration thereof then and there promised the said S in his lifetime, to pay him the same on demand;

Conclusion. Yet, though requested, the said D never paid the same to the said S, in his lifetime, or since his death, to the plaintiff, but refused, and still refuses so to do. Imp. Plead. 353.

Note. In Assumpsit brought by administrator de bonis non, the promise may be laid to have been made to the first administrator ; and it will be a good answer to the plea of limitations ; or plaintiff may declare on a promise to himself, and give in evidence such prior promise. Hirst v. Smith, 7 T. R. 182. (MSS.)

Against executor or administrator. Indebitatus assumpsit. For that the said s, in his lifetime, on &c., at &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;

Quantum meruit. SECOND Count. And for that the said S, in his lifetime, on &c.; at &c., in consideration that the plaintiff bad, at the request of the said S, bef re that time, sold and delivered to him divers other goods and merchandises than those in the same account, but similar thereto; and bad also, at the like request of the said S, done and performed for the said S in his business, certain other labor and services than in the same account, but of like kinds, promised the plaintiff 10 pay bim so much money as be reasonably deserved therefor, on demand; which the plaintiff avers is the sum of &c.; of all which he said S, thereafterwards on the same day, in his bictime, had notice;

« ForrigeFortsett »