dertook to pay, &c., and in fact says, that he did deliver ; son v. Miles, but does not allege a place where; the defendant demurred S.C. by name of Jack for want of a venue, and the declaration was held ill; for a consideration executory is traversable; and therefore the place is necessary to be shewn. Where the action is brought on mutual promises, they must be both made at the same time, or else it will be a contract without consideration, and so no action will lie. And when they are to be performed at the same time, plaintiff, in such case, need not aver performance. 1 Esp, Dig. 131. I Wils. 88. As where the assumpsit laid was, that plaintiff had agreed to deliver to defendant a quantity of cloth; and Martindale v. Fisher, defendant agreed, on a certain contingency, to pay for the same, five pounds. The contingency did happen; and, on action brought, plaintiff had a verdict. It was moved, in arrest of judgment, that plaintiff had not averred the delivery of the cloth; but it was resolved, that this being promise for promise, no such averment was necessary; but if it had been that defendant undertook to pay, if plaintiff would deliver so much cloth, there the condition would be precedent, and an averment of performance necessary. So again, where the plaintiff's action is to arise from some precedent act to be done by himself; he should aver and shew his right to do such act, and also his performance as far as he could; for otherwise he might recover for a consideration which he could not perform. 1 Esp. Dig. 132 Luxton v. Robinsori As in assumpsit on an agreement to forfeit a deposit, and also another sum, if defendant did not accept posses- Doug. 620. sion of certain premises from the plaintiff, and also pay for certain fixtures therein, at a valuation; it was adjudged, on special demurrer, that plaintiff's declaration was ill; because he had not shewn his right to the premises, and that the valuation was actually made. And, for the same reason, if the plaintiff avers performance, he must also shew how performed, that the court may judge if the performance is sufficient to entitle him to the action. Esp. Dig. 133. Austin v. Gervas, As where defendant promised to deliver a horse to the plaintiff, on plaintiff's becoming bound to him by writing Hob. 69, 77. obligatory for eleven pounds; plaintiff, in his declaration, Leneret v. Rivet, Woodford v. Deacon. Cooke v. Sambarne, Sid. 182. only averred his offer to become bound, and had a verdict. But judgment was arrested; for plaintiff should have averred a tender of the bond, ready sealed, to defendant; and also the sum he was bound in, for the court to judge of the performance; which here he had not done. And if plaintiff declares on two considerations, he must aver the performance of both; for the assumpsit on the part of the defendant shall be presumed to be founded on both considerations taken together; and if one averment be good, and the other bad, the judgment, on a general verdict, shall be arrested. In declaring in assumpsit, it is always necessary to set out for what the debt became due; and not generally, that defendant, being indebted, undertook to pay, &c.; for the debt might be due by specialty, in which case this action would not lie. But if it sufficiently appears from the declaration, that Hibbert v.Courthope, the debt is not due by specialty, as if it is for "work and Carth. 276. labour," generally, without saying what work, it is good. Cryps v. Baynton, 3 Bulst. 31. Esp. Dig. 135. 1 Vent. 64. So if it be for necessaries furnished to a sick man, without saying what necessaries, it is good; for such are simple contracts on the face of them. The breach assigned in the declaration should always follow the undertaking stated, or the plaintiff cannot have judgment. As where plaintiff declared, that defendant undertook to Wright v. Johnson, deliver a horse of the plaintiff's in as good plight as he borrowed him; and the breach assigned was, that he had not delivered him at all. Harman v. Owden, Defendant had judgment; for the breach was inconsistent with the undertaking. But in assumpsit to deliver on or before such a day, as the 5th of January, that defendant did not deliver on the 5th of January, is a good assignment of the breach, though defendant might have delivered it before that time; for defendant might, on non assumpsit, give a delivery before that day, in evidence; and as defendant could not make a tender before that day, it shall not be presumed that plaintiff was ready to receive it sooner. If plaintiff, in his declaration, undertakes to recite a statute, and that statute is the ground of the action, and he misrecites it, it is fatal ; for so the plaintiff would not prove . 1 Esp. Dig. 136. his whole declaration; the statute being the first thing to be proved. In assumpsit, the day of the promise, laid in the declara - Ibid. tion, is not material. As where plaintiff, who was a tailor, brought this action, Salk. 223. 2 Stra. 806. and six several promises were laid, all upon the 16th of Howard v. Jennison, October. Defendant pleaded infancy to all, generally. Plaintiff replied, as to two of the promises, that the defend- Matthews v. Spicer, ant was, at the time of making these, of full age; and, as to the rest, that they were for necessaries. Defendant demurred, for that the promises, being all laid on the same day, that it was repugnant; that he could not be, at the same time, of full, and not of full, age. But it was held, that the time was a circumstance, in no wise material, nor part of the issue; that plaintiff is not tied to a precise day in his declaration; and if defendant force him to vary, it is no departure. Cole v. Hawkins, So also in this action, plaintiff declared on promises to pay the 16th of Jan. 1706; defendant pleaded the statute Stra. a1. of limitations; plaintiff replied, that a bill had been filed the 23d Jan. 1714, and that the cause of action arose within six years before ; defendant demurred generally, and grounded his demurrer on a departure; but the demurrer was overruled; for this being a parol promise, the time alleged in the declaration is only matter of form, not of substance; so that not being a departure in a material part, there should have been a special demurrer for want of form, not a general one. And so where the cause of action is to arise on a request, the day of the request is not material; for it may be laid at one time, in the declaration, and a request at another time be given in evidence. But where the day makes a part of the contract, and so is of substance, there, assigning a different day, in the replieation, would be a deharture. So in assumpsit, on an insimul computassent, the time and King v. Bray, Sid, 268. Esp. Dig. 138. Ld. Raym. 533 1 place should be laid when, and where the account was set- Desborough v. Kelby, tled, or it will be error; for which, in this case, judgment was reversed. Jordan v. Jordan, Bourne v. Mason, I Vent. 6. 1 Esp. Dig. 105. Where a person brings this action in his individual capacity, he must, in the declaration, allege the promise to have been made to himself; for, if he be a stranger to the agreement or consideration, the action cannot be supported. As where one Parrie was indebted both to plaintiff and defendant, and a stranger was indebted to Parrie; defendant undertook to pay Parrie's debt to the plaintiff, on condition that Parrie would suffer him to sue the stranger; he did so, and recovered; and then the plaintiff sued him, and had judgment, which was arrested; for the plaintiff was a stranger to the consideration. However, where the consideration is a provision for, or to enure to the advantage of a child, this rule has admitted of exceptions. As where a physician was promised a sum of money for 1 Vent. 6, in the case himself, and another for his daughter, provided he would Bourne v. Mason. perform a certain cure; it was held, that the nearness of the relation gave the daughter the benefit of the consideration performed by her father; and that she might maintain assumpsit for the money. XVII. Of the evidence on the part of the plaintiff. In the action of assumpsit, the declaration must state 1 Bos. & Pul. N. R. the contract, on which the action is founded, truly and Cooke v. Munstone, 351. 1 Esp. Dig. 141. Anon, 1 Ld. Raym. 735. Bull. N. P. 145. correctly; that is, either in the terms in which it was made, or according to the legal effect and operation of such terms ; for a material variance between the contract alleged, and the contract proved, will be fatal. Where plaintiff declares on a special assumpsit, he ought to prove the contract stated in his declaration, expressly as laid. As where plaintiff declared on an agreement by defend ant, to deliver him good merchandizable wheat: Proof of an agreement to deliver good wheat of the second sort, was held not to support the declaration. So where the agreement, declared on, was, to deliver to plaintiff, stock, on the 22d of August; and upon the trial, the evidence produced from the broker's book, was to transfer on the opening; though the broker swore that the 22ď of August, and the opening were the same, yet it was held a variance, and plaintiff was nonsuited.* 2 East's Rep. 2 So where the plaintiff had agreed to purchase of the defendant 100 bags of wheat, 40 or 50 of which were to Penny v. Porter, be delivered on one market-day, and the remainder on the next market-day; and the defendant had delivered 40 bags on the first market-day, but had failed in delivering the remainder; in an action brought for the non-delivery of the residue, one count of the declaration stated the agreement to be for the delivery of 40 bags, and another for the delivery of 50 bags, in the first instance; but the contract was not stated in the alternative, in any part of the declaration; the court held the variance fatal; for the contract ought to have been stated according to the original terms of it, which made it optional in the defendant to deliver 40 or 50 bags in the first instance; and not an absolute contract for the delivery of either of those quantities. So if the promise alleged be proved, yet if it appear to be made on a different consideration, from that stated in plaintiff's declaration, or if it be proved to have been made on that consideration, and another, it shall not support the declaration. King v. Robinson, Bradburne v. Brad- But where divers considerations are alleged, some good and sufficient, others idle and vain; if those which are burne, good be proved, it is sufficient, though plaintiff fails in proof of the others. But if all the considerations alleged are good, all must be proved; for the promise shall be deemed to be founded on all those considerations which are good and lawful. Payne v. Bacomb, But if plaintiff declares on a special agreement, and has also other general counts in his declaration, if he fails in Dougl. 651. proving the special agreement, he may go into evidence on Bull. N. P. 139, 145. the general counts.† * Buller, in his NISI PRIUS, observes, that this seems rather to be a case founded on the times, to get rid of South-sea contracts, than to be relied on, as a precedent, in other cases. Page 145. †This point is now settled, notwithstanding some contrary decisions; as Weaver vs. Boroughs, 1 Stra. 648. For in an action, where the plaintiff declared on a special agreement, and also on a general |