PLEADING AND EVIDENCE FOR THE PLAINTIFF. 



181 



An Executed Consideration consists of something past, or theConsido- 

 done before the making of the Promise, and must be shown ^'^^on. 

 to have arisen at the defendant's request (?^). 



An Executor 11 Consideration is something to Jye done, and 

 in the statement of it a greater degree of certainty is 

 required {x). But in either case the whole of the Con- 

 sideration, if it be an entire one, should be stated, no part 

 of it ought to be omitted (//). Thus, where an agent sold 

 a florse belonging to A., and another belonging to B., to 

 C. at an entire Price, and warranted them sound ; andB.'s 

 Horse turning out to be Unsound, C. brought his action 

 against B., declaring in the usual form as upon a Purchase 

 and Warranty of one Horse only ; Lord Ellenborough, 

 C. J., held that the evidence did not support the Declara- 

 tion, because the Contract being entire for the sale of two 

 Horses, the Plaintiff could not divide it, and declare upon 

 it as upon the Sale of one Horse only (s). 



But where in an action of Assumpsit on the Warranty If the Horse 

 of a Horse, the Consideration stated for the Warranty t^™ out 

 was, that the plaintiff would purchase the Horse for 63/. ; ^^^' 

 but the Consideration as proved was, that the plaintiff 

 would pay that sum, and if the Horse was " luchj^^ 

 would give the defendant bl. on the buying of another 

 Horse ; it was held to be no variance, as the conditional 

 promise omitted in the Declaration was too vague to be 

 legally enforced, and did not amount to a promise in point 

 of law (fl) . 



If the plaintiff, in stating the Consideration, uses the Words used 

 words " Had bought " instead of " Would buy," it is bad, ^^ ^^^ state- 

 because an executed Consideration will support no other 

 promise than such as would be implied by law (^). But 

 this would be amended by the Judge at the Trial (c). 

 There is, however, no variance if the word " Horse " is 

 used and it is proved to be a "Mare" {d), or " Gfeld- 



(«) See 1 Chit. Pleading, 6th ed. 

 29.5 ; and King v. Sears, 2 C, M. 

 & R. 53. 



(:r) See 1 Chit. Pleading-, 6th ed. 

 296 ; andIii)iffV.Iioxbronffh,2Tjvw. 

 468; S. C. 2 C. & J. 418. 



{y) Clarke v. Gray, 6 East, 564 ; 

 see also Robertson v. Hoivard, L. R., 

 3 C. P. D. 280; 47 L. J., C. P. 480. 

 As to an Exchange, see Mayor of 

 Reading v. Clarke, 4 B. & Aid. 269. 



(;) SymondsY. Can; 1 Camp. 361. 



(«) Giithing v. Lynn, 2 B. & Ad 

 232 ; and %QeSaxby v. Wilkin, 1 D 

 &L. 281. 



[b) Roscorla v. Thomas, 3 Q. B 

 234. 



(c) 15 & 16 Vict. c. 76, 8. 222 

 and see also Order XXVII. (.Judi 

 cature Act), which still further 

 extends the power of amendment. 



{d) Ware v. Juder. 2 C. .fc P. 351 

 or "Colt" or "Filly," in an In 

 dictment, Reg. v. Aid ridge, 4 Cox 

 143, 



