1

Money laid out.

THIRD COUNT. And for that the said S, in his lifetime, on &c., at &c., being indebted to the plaintiff in another sum of &c., than in the same account, for money before that time laid out, expended and paid by the plaintiff for the said S, and at his like request, in consideration thereof, then and there promised the plaintiff to pay him the last mentioned sum on demand;

Conclusion.

Yet, though requested, the said S, in his lifetime, or after his death, the said D, never paid the same sums, or either of them to the plaintiff, but refused, and the said D still refuses so to do. Imp. Pl. 373.

NOTE. Though an action lies for money had and received to the plaintiff's use as executor, 3 T. R. 659; 2 T. R. 476; yet no action lies against executor, for money had and received to the plaintiff's use by executor as such. Rose et ux. v. Bowler, etc., executors, 1 H. Bl. 108; 4 T. R. 347.

But in an action against administrator, a count on insimul computassent with the administrator as such, may be joined with counts on promises by intestate; for administrator is not personally liable. Secar v. Atkinson, 1 H. Bl. 102. (MSS.)

In the same way, may be framed declarations by and against surviving executors and administrators, and by and for them against each other; for the conclusions are the only parts which differ from the preceding forms. (MSS.)

In declarations by or against executors or administrators, they must be stated as such; the debt must be stated, as due from or to the testator or intestate; the promise must be alleged previous to his death. Imp. Pl. 359. But in an action against them, it will be sufficient, if it appear that they are sued as exccutors or administrators, though not so expressly named in the beginning. 1 Saund. 112; Str. 781; Imp. Pl. 372.

Declarations by or against husband and wife, administratrix or executrix, differ from common actions by executors only in the conclusions. (MSS.)

Indebitatus assumpsit by executors for rent due. Testator died during the quarter.

1. For the use and occupation of two leasehold stables with the appurtenances, situate in &c. by the said D, at his request, and by permission of the said S, in his lifetime, and the plaintiff's since his death, for the space of one quarter of a year before then elapsed, used, occupied, and enjoyed, in consideration, &c.

Quantum meruit.

2. In consideration that the said S, in his lifetime, and the plaintiff since his death, at the like request of the said D, had permitted the said D to use, occupy, and enjoy two other leasehold stables with the appurtenances, situate &c., which the said D accordingly used, occupied, and enjoyed for a long space of time, to wit, one quarter of a year before then elapsed &c. Imp. Pl. 360.

Indebitatus assumpsit for work &c. done,

1. For that the said E, on &c., at &c., being indebted to the plaintiff in the sum of &c., for the labor and services of the plaintiff, by him before that time done and performed, in and about the business of the said E, at his request, in consideration thereof promised the plaintiff, to pay him that sum on demand; yet &c.

NOTE. This and the subsequent forms are used, where no exhibit or account of particulars, is annexed to the writ, and such is the universal practice in the English courts. It has been before observed, that an exhibit is not necessary by law.

The English form, in the above case, for labor, &c., generally is more verbose; "for the work and labor, care and diligence of the plaintiff, by him before that time done, performed, and bestowed, in and about the business of the said D at his request, in consideration thereof," &c.; which words may be substituted for those in italics in the form. But it is apprehended, that the import is exactly the same, and therefore conciseness should be sought. Imp. Pl. 206.

The subsequent forms contain only the substantial parts of declarations, where different from the first, and must be completed by reference to that, and quantum meruit subjoined, according as the case may be. (MSS.)

Quantum meruit for the same.

2. And for that the said E, on &c., at &c., in consideration that the plaintiff had, before that time, done and performed certain other labor and services in the business of the said E, at his request, promised the plaintiff to pay him so much money as he reasonably deserved therefor, on demand; which the plaintiff avers is the sum of &c., of all which the said E, there afterwards on the same day, had notice; yet &c.

NOTE. Or, as in the English forms, "done, performed, and bestowed other his work and labor, care and diligence in and about other business of the said E, at his request," omitting the parts in italics. Imp. Pl. 206.

In assumpsit the plaintiff may declare generally for work and labor, without setting out what kind of work or labor. Carth. 276; Vent. 44. So, if work be done by a mechanic, the declaration need not state, that it was done, as a tailor, a carpenter, a shipwright, &c. 2 Saund. 373; 2 Keb. 810; Imp. Pl. 209; though pleaders generally specify it. Imp. Pl. 211. (MSS.)

Indebitatus assumpsit, for

work by servants with carts, &c. 1. For the labor and services of the plaintiff, by kim and his servants, and with his horses, carts and carriages, before that time done and performed in the business of the said B, at his request, in consideration, &c.

Quantum meruit.

2. In consideration that the plaintiff, had, before that time, by himself and his servants, with his horses, carts, and carriages, done and performed other labor and services in the business of the said B, at his request &c. Imp. Pl. 212.

NOTE. By the authorities, the parts in italics are not necessary. The declarations may be varied by the adoption of the English forms, by the insertion of their general words "work and labor, care and diligence." (MSS.)

For serving as a schoolmaster.

1. For the labor and services of the plaintiff, as a schoolmaster, by him, before that time, done and performed in teaching and instructing one J. B.* the infant son of the said B, in reading, writing, and good manners, and other accomplishments, for then a long time elapsed, at the request of said B, in consideration, &c.

Quantum meruit.

2. In consideration that the plaintiff had, at the request of the said B, before that time, done and performed certain other labor and services, as a schoolmaster, in teaching and instructing one J. B.* the infant son of the said B, in reading, writing, and good manners, and other accomplishments, for a long time then elapsed, &c. Imp. Pl. 215.

NOTE. The parts in italics may be omitted. (MSS.)

Indebitatus assumpsit for servant's salary wages. 1. For the wages or salary of the plaintiff, before that

* Or say the children or child, without name.

time due and owing to the plaintiff from the said B, for the service of the plaintiff, before that time done and performed, as the servant of the said B, on his retainer, and at his request, in consideration &c.

NOTE. This is the proper count for an agreed salary; but if that cannot be proved, add indebitatus assumpsit and quantum meruit for labor &c., generally. Imp. Pl. 254. (MSS.)

Indebitatus assumpsit for drawing plans, &c.

1. For the labor and services of the plaintiff in drawing divers plans and elevations in architecture for the said B, at his request and on his retainer; and also in superintending a certain dwellinghouse of the said B during the erection thereof, on his like retainer and at his like request, in consideration &c.

Quantum meruit.

2. In consideration that the plaintiff, at the like request of the said B, had done and performed other labor and services, in drawing divers other plans and elevations in architecture for said B; and also in superintending a certain other dwellinghouse of the said B during the erection thereof, at the like request of said B, &c. Imp. Pl. 255.

NOTE. Add counts for labor, &c. generally; which would seem to be sufficient in all cases of this kind, though pleaders generally declare as above. (MSS.)

1. For the labor and services of the plaintiff, beforethat time done and performed, in the going and making of divers journies, and giving his attendance in the business of said B, at his request, in consideration &c.

Quantum meruit.

2. In consideration that the plaintiff, at the request of said B, had before that time done and performed other labor and services, in the going and making of divers other journies, and giving other his attendance in the business of said B, &c. Imp. Pl. 330.

NOTE. For these counts, may be substituted the common counts,. for labor and services, generally. (MSS.)

Indebitatus assumpsit for work as a measurer and surveyor. 1. Being indebted to the plaintiff in &c., for the labor

and services of the plaintiff, before that time done and performed, as a measurer and surveyor, for the said B, at his request in consideration, &c.

Quantum meruit.

2. In consideration that the plaintiff, at the like request of said B, had, before that time, done and performed other labor and services, as a measurer and surveyor, for the said B, &c. Imp. Pl. 258.

Indebitatus assumpsit by factor or agent.

1. Being indebted to the plaintiff, in &c., for the labor and services of the plaintiff, before that time done and performed, as the factor or agent of said B, in selling and disposing of divers goods, wares, and merchandises of said B; and also in transacting other the business of said B, and at his request, in consideration &c.

Quantum meruit.

2. In consideration that the plaintiff, at the like request of the said B, before that time had done and performed other his labor and services, as the factor or agent of the said B, in selling and disposing of divers other goods, wares and merchandises of the said B, and in transacting other the business of said B, &c. Imp.

Pl. 335.

NOTE. The parts in italics may be omitted. (MSS.)

Indebitatus assumpsit for cure of a wound, by, one not a surgeon or apothecary, and for materials found.

1. For the labor and services of the plaintiff, before that time, done and performed, in healing and curing the said B of divers wounds, diseases, and maladies, at the request of said B, and for divers ointments, plasters, and other necessary things, administered and applied on that occasion, by the plaintiff at the request of the said B, in consideration, &c.

Quantum meruit.

2. In consideration that the plaintiff, at the request of the said B, had, before that time, done and performed other his labor and services, in healing and curing the said B of divers other wounds, diseases, and maladies;