Carriers-by and against. carriage, or "railroad car,"] one of the arms of the plaintiff became and was broken and fractured, and the plaintiff was, in other respects, greatly hurt, bruised, and wounded, and became and was sick, sore, lame, and disordered, and so remained and continued for a long space of time, to wit, hitherto, during all which time, he, the plaintiff, suffered and underwent great pain, torment, and agony, and was hindered and prevented from performing and transacting his necessary affairs and business, by him during that time to be performed and transacted; and also, thereby, he, the said plaintiff, was forced and obliged to, and did, necessarily pay, lay out, and expend, another large sum of money, to wit, the sum of —— dollars, in and about endeavoring to be cured of the bruises, wounds, sickness, soreness, lameness, and disorder, last aforesaid, so occasioned as aforesaid, to wit, at [&c.] aforesaid.. [Counts for money paid, had, and received, account stated, and breach, as ante, p. 216, 217.] 9. Against Owners of a Steamboat for Negligence. For that, whereas, the said defendants, before and at the time of the making of the promise and undertaking herein mentioned, were owners and proprietors of a certain steamboat, moved and propelled by steam, called the Advocate, by them used and employed in carrying and conveying passengers, and goods, wares, and merchandizes, on the waters of the Ohio river, from the city of Cincinnati, in the county of Hamilton, to Portsmouth, in the county of Scioto, and to divers other places on and adjacent to the said river; and being such owners and proprietors of the said steamboat, the said defendants on [&c.] at the city of Cincinnati, in the county of Hamilton, to wit, at [&c.] in consideration that the said plaintiff, at the request of the defendants, would, with Maria, the wife, and Mary Ann, Janett, Emeline, Edward, and Lydia Maria, the children and servants of the said plaintiff, go and proceed as passengers therein, from the city of Cincinnati aforesaid, to Portsmouth, in the county of Scioto aforesaid, for certain fare and reward in that behalf, they, the said defendants, promised and undertook to and with the said plaintiff, to use due and proper care and skill in and about the management of the said steamboat and the engine, boilers, and machinery thereof, whilst the plaintiff and his said wife and children should be passengers thereby, as aforesaid; and the plaintiff says, that although the plaintiff, confiding in the said promise of the defendants, did then and there, with his said wife, and his said children, his servants, go and proceed as passengers in the said steamboat, from the city of Cincinnati aforesaid, to Portsmouth aforesaid, for fare and reward to the defendants as aforesaid; yet the defendants, not regarding their said promise, did not, nor would, use due and proper care and skill in and about the management of the said steamboat, and the engine, boilers, and machinery thereof, whilst the plaintiff and his said wife, and his said children, so were passengers thereby, as aforesaid, but wholly neglected so to do; and, on the contrary thereof, con Carriers-by and against. ducted themselves so carelessly, negligently, and unskillfully in this behalf, that by and through the carelessness, negligence, unskillfulness and default of themselves and their servants, and for want of due care and attention to their duty in that behalf, the boiler connected with the said steamboat afterwards, and whilst the said steamboat was carrying and conveying the said wife and children of the said plaintiff as aforesaid, and before the arrival thereof at Portsmouth aforesaid, to wit, on the day and year aforesaid, at Neville, to wit, at the city of Cincinnati, in the county of Hamilton aforesaid, collapsed and burst, and divers quantities of steam, which had been generated and was contained therein, escaped therefrom, and drove into and upon the wife and each of the children aforesaid of the said plaintiff, by means whereof the said wife and children of the said plaintiff, then being in the said steamboat, were, respectively, greatly burned, scalded, and injured, and thereby then and there became and were very sick, sore, and disordered, and the said Lydia Maria remained and continued so sick, sore, and disordered, for a long space of time, to wit, from thenceforth until the- day of -, in the year aforesaid, at Neville, to wit, at the city of Cincinnati, and in the county of Hamilton aforesaid, during all which time the said plaintiff lost and was deprived of the aid and assistance of the said Lydia Maria, in the management of his domestic affairs and business, which he would otherwise have had and enjoyed; and the said Edward remained and continued so sick, sore, and disordered, for a long space of time, to wit, from the said day of --9 in the year aforesaid, until the - day of -, in the year aforesaid, at Neville, to wit, at the city of Cincinnati, and in the county of Hamilton aforesaid, during all which last mentioned time, the said plaintiff lost and was deprived of the aid and assistance of the said Edward, in the management of his domestic affairs and business, which he would otherwise have had and enjoyed; and the said Janett remained and continued so sick, sore, and disordered, for a long space of time, to wit, from the said day of in the aforesaid, until the year day of in the year aforesaid, at Neville aforesaid, to wit, at the city of Cincinnati, in the county of Hamilton aforesaid, during all which last mentioned time, the said plaintiff lost and was deprived of the aid and assistance of the said Janett, in the management of his domestic affairs and business, which he would otherwise have had and enjoyed; and the said wife of the said plaintiff, and the said Mary Ann and Emeline, respectively, remained and continued so sick, sore, weak, and disordered, for a long space of time, to wit, from the said day of in the year aforesaid hitherto, at Neville, to wit, at the city of Cincinnati, in the county of Hamilton aforesaid, during all which last mentioned time, the said plaintiff hath lost and been deprived of the aid and assistance of his said wife, and of the said Mary Ann and Emeline, in the management of his domestic affairs and business, and hath been forced and obliged to lay out and expend, and did actually lay out and expend, divers sums of money, in the whole amounting to a large sum of money, to wit, the sum of - dollars, in and about attempting the cure of his said wife, and his said several children, - Charter Parties-Checks. and the procuring necessary medicines, attendances, and assistance for them, during their said several sicknesses and disorders, which ensued, as aforesaid, from the burning and scalding, hurts and injuries, occasioned by the escape and driving of the said steam into and upon them and each of them, as aforesaid; and also in and about the burying and interring of the said Lydia Maria, who afterwards, to wit, on the day of, and of the said Edward, who afterwards, to wit, on the afterwards, to wit, on the and of the said Janett, who day of day of in the year aforesaid, of their re spective burns, sicknesses and injuries, died at Neville, to wit, at [&c.] to the damage, [&c.] SEC. XII. ON CHARTER PARTIES. For forms of declarations upon charter parties the reader is referred to 2 Chit. Pl. 8th Am. ed. 221, 528. See form of a declaration in assumpsit upon a charter party by the ship owner against the charterer for not loading the ship upon her homeward voyage; 21 Eng. C. L. Rep, 246. Declaration against the master by the charterer for deviation, &c.; 27 Eng. C. L. Rep. 297, 308. SEC. XIII. DECLARATIONS ON CHECKS. (w) 1. Payee of Check, against Drawer. Commencement as ante, p. 181 to 188.] For that, whereas, the defendant, on [&c.] at [&c.] made his certain draft or order in writing, for the payment of money, commonly called a check on a bank, and directed the same to [according to the check,] and thereby required them to pay to the said plaintiff or bearer dollars, and then and there delivered the same to the plaintiff. And the said did not pay the said draft or order, although the same was then and there presented to them for payment thereof, of all which the defendant then and there had due notice. [If due notice or a subsequent promise cannot be clearly proved, and the bank had no effects of the defendant in its hands, (see Chit. jun. B. 57,) declare on the check as above, except that the averment of notice should be omitted; and there should be inserted, in lieu thereof, an allegation of such want of effects, as ante, p. 246, Form 16. Of course the word "acceptance" in that form will be omitted as inapplicable to a check. Add common counts, and conclude as directed, ante, p. 241, Form 5.] (w) 3 Kent's Com, 4th ed., 75, 88, 91, 104; 4 Id. 549; 10 Wend. 301; 6 Wend. 413; 21 Wend. 372; 3 Johns. Cas. 5, 259; 4 Har. & J. 276. Crops. 2. Bearer, not being Payee, against the Drawer. Commencement unte, p. 181 to 188.] For that, whereas, the defendant, on [&c.] at [&c.] made his certain draft or order in writing, for the payment of money, commonly called a check on a bank, and directed the same to [according to the check,] and thereby required them to pay to G. H., or bearer, dollars, and then and there delivered the said draft or order to the said G. H., who then and there transferred and delivered the same to the plaintiff. [If there were an intermediate transfer, perhaps the averment should be, "and the said draft or order was then duly transferred and delivered to the plaintiff."] And the said plaintiff then and there became, and was, and is, the lawful bearer of the said draft or order. And the said did not pay the said draft or order, although the same was then and there presented to them for payment thereof, of all which the defendant then and there had due notice. [Proceed as directed in last form.] SEC. XIV. CROPS. 1. Indebitatus Count for Crops sold to the Defendant. (x) Commencement as ante, p. 216, to the asterisk.] For divers crops of corn, wheat and turnips, and other crops of the plaintiff, before then and there bargained and sold by the plaintiff to the defendant at his request, and by the defendant, under and by virtue of such bargain and sale, before then and there accepted, had and received, and mown, cut down, and taken to his own use. [Add common counts as ante, p. 216, 217.] 2. Declaration by an outgoing Tenant against an incoming Tenant, to recover the amount of a valuation of Crops, Tillages, &c., relinquished to the incomer. (y) For that, whereas, before, and at the time of the making of the promise next mentioned, the plaintiff had been, and was, lawfully possessed of, and entitled to, a certain farm, and premises, to wit, at said county, upon which farm and premises, certain crops of corn and turnips, of the plaintiff, of great value, were then and there growing and being, and upon divers parts of which said farm, lands and premises, he, the plaintiff, had before, then and there, by his ser (x) As to crops growing being, in general, mere chattels, which may be sold without writing, sce 9 Cowen 39; 9 Johns. 112; 2 Johns. 422; 1 Shep. 377; 2 Dana 206; 2 J. J. Marsh. 159; and see the English cases collected in Chit. jr. Con.. 5 Am. ed. 301 to 303, 388; 3 B. & C. 357. (y) It seems the common indebitatus count suffices, 12 East 1; 1 B. & P; 397. Exchange. vants, done, performed and bestowed, certain work and labor, and used and expended certain materials in and about the preparing and making the same ready for tillage, of which said work and labor, and materials, he, the plaintiff, at the time of the making of the promise of the defendant, hereinafter mentioned, had not derived the benefit, and thereupon heretofore, to wit, on [&c.] at [&c.] in consideration that the plaintiff, at the request of the defendant, would sell, relinquish, and give up to him, the defendant, the said crops, and the benefit of the said work and labor, and materials, he, the defendant, undertook, and then and there promised the plaintiff to take the said growing crops, and pay and allow him for the same, and for the said work and labor, and materials, according to a valuation thereof, to be made by certain persons, to wit, a certain person to be appointed by and on behalf of the plaintiff, and a certain other person to be appointed by and on behalf of the defendant, to value the same; and the plaintiff avers that he, confiding in the defendant's promise, did afterwards, to wit, on the day and year first aforesaid, at said county, sell, relinquish and give up, to the defendant, the said crops, and the benefit and advantage of the said work and labor, and materials, upon the terms aforesaid, and that the defendant did then and there take possession of the said crops, so growing, as aforesaid, and then and there had and received the benefit of the said work and labor, and materials, and took the said crops to his own use; and the plaintiff further saith, that afterwards, to wit, on [&c.] at [&c.] the said growing crops, work and labor, and materials, were fairly valued by one J. D., a person for that purpose duly appointed, by and on behalf of the plaintiff, and one W. P., a person for that purpose duly appointed, by and on the behalf of the defendant, at a certain sum of money, to wit, which premises the defendant then and there had notice, and there requested, by the plaintiff, to pay him the said sum of whereas, also, the defendant, on [&c.] was indebted to the plaintiff in dollars, for [&c., add common counts, as ante, p. 216, 217, laying the promise to be to pay the last mentioned sum, and the breach that defendant hath not paid either of the moneys, &c.] SEC. XV. EXCHANGE. dollars, of all was then and dollars; and 1. Declaration for not delivering Goods, and paying Money on a Con tract of Exchange. (z) For that, whereas, heretofore, to wit, on [&c.] at [&c.] in consideration that the plaintiff, at the request of the defendant, would deliver to the defendant a (2) Nature, &c., of this contract, Chit, jr. Contracts, 5 Am. ed. 373. 374; see form, 13 Eng. C. L. Rep. 434. In general the declaration must be special; but if the defendant has delivered the goods the plaintiff was to receive, the money he was to pay may be recovered on the common count for goods sold; 10 Eng. C. L. Rep 137. |