tiff, by him, before that time, let to hire to said E, at his request, and by said E, according to that letting to hire, used and enjoyed for a long time then elapsed, in consideration &c. Quantum meruit.

2. In consideration that the plaintiff, at the request of the said E, had, before that time, let to hire to the said E, divers other goods and chattels of the plaintiff, to be used and employed; and accordingly had and used, by virtue of that letting to hire, by the said E, for a long time then elapsed, &c. Imp. Pl. 310.

NOTE. This declaration will answer for all hirings of horses, carriages, &c. mutatis mutandis. Semble, that the parts in italics are not material. (MSS.)

Indebitatus assumpsit for use and occupation of a house.

1. For the use and occupation of a certain messuage, or tenement of the plaintiff,* situate &c., by the said B, at his request, and by permission of the plaintiff, for the space of half a year, before then elapsed, used, occupied, and enjoyed, in considera'ion, &c.

Quantum meruit.

2. In consideration that the plaintiff had permitted the said B, at his request, to use and occupy a certain other messuage or tenement of the plaintiff,* and that the said E, according to that permission, had used, occupied, and enjoyed the same, for the space of one half year before then elapsed, &c. Imp. Pl. 294.

Note. Where the plaintiff declares on a special agreement for use and occupation, he should take care to introduce these general counts, for if he should fail to prove his special agreement strictly as set forth, he will be able to derive no benefit from the liberality of the practice as to the admissibility of evidence under the general counts, unless such general counts are inserted. The variance consequently will be fatal. See Eaton v. Dugan, 21 Pick. 538.

Messuage and land.

For the use and occupation of a certain messuage and 100 acres of meadow land, with the appurtenances, situate, &c. 3 Went. 65.

Ready furnished lodgings.

For the use and occupation of certain ready furnished

*Not absolutely necessary.

lodgings, being parcel of a certain messuage, situate, &c., 3 Went. 65.

Unfurnished lodgings.

1. For the use and occupation of certain rooms, with the appurtenances, being parcel of a certain messuage, situate &c. 3 Went. 65.

Quantum meruit for the same.

2. In consideration that the plaintiff, at the request of the said E, had permitted the said E, quietly to hold and occupy the upper room, in the eastern end of the plaintiff's dwellinghouse, in &c., from &c. to &c., which the said E held and occupied accordingly, promised the plaintiff to pay him so much money, as he reasonably deserved therefor, on demand, &c. R. DANA.

NOTE. As this action, for use and occupation, would not lie at common law, without an express promise, the statute 11 G. II. c. 19, s. 14, seems to have been adopted.

Quantum meruit for labors as a candidate minister of the gospel.

For that, on &c., at &c, in consideration that the plaintiff at the special request of said inhabitants, had, before that time, viz. on every Lord's day from &c. to &c. inclusively, and also on a thanksgiving day, and on one lecture day, within that time, publicly prayed with and for, and preached the gospel to the said inhabitants, and instructed them in the principles and doctrines of the Christian religion, the said inhabitants then and there promised the plaintiff, to pay him therefor, on demand, so much money as he reasonably deserved to have, which the plaintiff avers to be the sum of &c. J. SEWALL.

Indebitatus assumpsit for the same; by a settled minister against proprietors.

For that whereas the plaintiff, on &c., upon the invitation, and at the request of said proprietors, became the settled and ordained minister of the Gospel, in &c. aforesaid, and hath continued so ever since, there doing the duty of such a minister, whereupon the proprietors aforesaid, on &c., owed him [$130] for his services, for one year ending on &c., and on &c., at &c., in consideration thereof, promised the plaintiff to pay him the same on demand; yet, &c. R. DANA.

Quantum meruit by a physician.

For that whereas the plaintiff, on &c., at &c., had traveled ten miles, and visited and attended, as a physician, the said E accordingly, on the same day, and had examined into his illness of a dropsy, commonly so called, and had given him advice, relative to his said disorder, prescribed to said E a proper regimen in meats, drinks and exercise, and had given him a written direction, for the procurement and administration of proper medicine, for his recovery and restoration to health, all in the plaintiff's business as a physician, and at his special instance and request; in consideration thereof, the said E then and there promised the plaintiff, to pay him, on demand, so much money as he reasonably deserved therefor, &c. JOSIAH QUINCY.

Quantum meruit by an attorney.

For that the said E, on &c., at &c., in consideration that the plaintiff, in his business as an attorney, at the request of said E, had, before that time, done and performed certain [other] labor and services, in and about the drawing and engrossing divers [other] writings, instruments, and deeds, and in going and making divers [other] journeys, and giving [other] attendance about the business of the said E; and in and about the prosecuting and defending divers [other] suits in courts of law in this Commonwealth, &c. 3 Went. 61.

*

Quantum valebant for goods sold.

1. In consideration of certain goods and merchandises, by the plaintiff to the said D, at his special request, then and there, sold and deliveredt [being other but similar to those aforementioned] then and there promised the plaintiff to pay him on demand, so much money as the said goods and merchandises last mentioned, were reasonably worth; and the plaintiff avers, that the said goods and merchandises last mentioned, were, at the time of the sale and delivery aforesaid, reasonably worth the sum of, &c., of which the said D then and there had notice; yet, &c. S. SEWALL.

NOTE. Such a count may be used in most of the foregoing declar ations, instead of a quantum meruit; though the latter seems now to have thrown the former out of use in the English forms. (MSS.)

* Used as the case may be.

If other counts.

Indebitatus assumpsit for work done; by assignees of bankrupt.

1. For that the said E,* on &c., at &c., being indebted to the said S, before he became bankrupt in &c., for the labor and services of the said S, before he became bankrupt, done and performed for the said E, at his request, and for divers materials found and provided by the said S, before he became a bankrupt, in and about the business of said E, in consideration thereof, then and there promised the said S, before he became bankrupt, to pay him the same on demand:

Quantum meruit.

2. In consideration that the said S, before he became bankrupt, at the like request of the said E, did and performed certain other labor and services, for the said E, and found and provided divers other materials, in and about the business of the said E, at his request, promised the said S, before he became bankrupt, to pay him on demand so much money as he reasonably deserved therefor; which the plaintiffs aver is the sum of &c.

Money laid out, &c.

3. For money laid out, expended, and paid by the said S. to and for the use of the said E, at his request, and for other money, before that time, had and received by the said E, for the use of the said S, before he became bankrupt, in consideration &c.

Conclusion.

Yet, though requested, the said E never paid the said sums, or either of them, to the said S, before he became bankrupt, or since, to the plaintiffs, or either of them, but refused, and still refuses so to do. 3 T. R. 779. Imp. Pl. 271.

By surviving partner, for money had and received, and goods sold and delivered.

For that the said D, at &c., on &c., being indebted to the said A A and one B B now deceased, whom the said A A has survived, in £1000 as well for the money of the said A A and B B, by the said D, before that time had and received, as for divers goods and merchandises, by the said A A and B B, to the said D, before that time, at his request, sold and delivered, in consideration thereof, then and

* Any time before the issuing of the commission.

there promised the said A A and B B to pay them the same on demand.* Yet the said D, though often requested, never paid the same to the said A A and B B, or either of them, in the lifetime of the said B B; or after his death. to the said A A, but wholly refused, and yet refuses so to do.t See 2 Saund. 122.

Declaration on all the money counts joined.

For that the said D, at &c. on &c. being indebted to the said A A, in the sum of &c., for money, by the said A A, before that time laid out, expended, and paid for the said D, at his special request; and for other money by the said A A, 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 said A A, in consideration thereof, then and there promised the said A A to pay him the same sum of money, when he should be thereto afterwards requested [or on demand;] yet &c. Imp. Pl. 207.

SPECIAL ASSUMPSIT.

1. For not delivering goods, according to contract, under various circumstances.

For not delivering malt according to agreement upon request. For that on &c. at &c., in consideration that the plaintiffs, at the instance and request of the said D [defendant,] had then and there bought of the said D, a certain large quantity, to wit, one hundred quarters of malt, at and for a certain price, then and there agreed upon between them, he, the said D, faithfully promised the plaintiffs, well and truly to deliver to them the said one hundred quarters of malt, whenever he, the said D, should be thereto requested; and the plaintiffs in fact say, that although the plaintiffs afterwards, viz., on &c, at &c., requested the said D, to deliver

* In the precedent in Saunder's Reports, from which this declaration is abstracted, the usual allegation to pay the same "when he should be thereto afterwards requested," is omitted; and in precedents of a similar kind, in 2 Saund. 117 and 208, there is the same omission. But in a precedent, 1 Saund. 70, it is inserted, and in most of the other entries which have been consulted, in the modern ones without an exception. But quære if it be necessary, and shall not be intended if not otherwise stated? In the practice in Massachusetts, the usual allegation, is to pay the sum "on demand." (MSS.)

+From this it appears, that all the common counts may be joined in one without risk. See on this point, a learned note by Serj. Williams, in 2 Saund. 122. (Note 2.) (MSS.)