IV. ITS PARTS, &c. cause of seems to have been a rule, that where the demand was of such a nature that the law did not imply a contract for interest, and none was agreed for, it should not be allowed merely because the debt had been wrongfully withheld after the 5thly. The creditor had repeatedly applied for payment (u) (713). This defect in the action. law encouraged the disposition to delay the payment of just debts and was 1. In astherefore rectified by 3 & 4 W. 4, c. 42, sect. 28, which enacts, "That upon sumpsit. all debts or sums certain, payable at a certain time or otherwise, the jury on Common the trial of any issue, or on any inquisition of damages, may, if they shall counts. think fit, allow interest to the creditor at a rate not exceeding the current rate of interest from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment (v); provided that interest shall be payable in all cases in which it is now payable by law." Sect. 29 enacts, "That the jury, on the trial of any issue, or on any inquisition of damages, may, if they shall think fit, give damages in the nature of interest, over and above the value of the goods at the time of the conversion or seizure, in all actions of trover or trespass de bonis asportatis, and over and above the money recoverable in all actions on policies of assurance made after the passing of this act." Sect. 30 enacts, "That if any person shall sue out any writ of error upon any judgment whatsoever given in any Court in any action personal, and the Court of error shall give judgment for the defendant thereon, then interest shall be allowed by the Court of error for such time as execution has been delayed by such writ of error, for the delaying thereof." In general it was considered that the declaration should be special where damages for the loss of the use of money are sought to be recovered, and the claim is not eo nomine for interest as a debt. Upon a contract for the sale of goods to be paid for by a bill at a certain date, it was holden the price might bear interest from the day when the bill, if it had been given, would have been due, and that *the interest might be recovered as [*391 ] damages on a special count for the non-delivery or non-payment of the bill; and that if in such a case upon a general count for goods sold and delivered, the jury should give the price and interest as damages, the Court would not on that account set aside the verdict (x). So where the defendant, who had contracted for goods, was to return them in a year, or otherwise to pay for them with interest, and the declaration was only for goods sold, and interest on money forborne, the Court would not set aside the verdict, or reduce the damages, although the jury gave interest, which, in strictness, should have been (u) 9 B. & C. 380; 4 M. & R. 308, S. C.; sed vide 3 Bing. 353; 9 Price, 134. () And yet in Pierce v. Fothergill, 1 Hodges R. 251, it was held that the issuing VOL. I. a writ of summons is a sufficient demand to (713) Riley v. Seymour, 1 Wend, R. 143. 10 ib. 96. 46 PARTS, &c. IV. ITS claimed upon a special count (y). In each of these cases there was a just claim to interest in the shape of damages (z). The form of the count for in5thly. The terest will be found in the second volume (a). It may be advisable to insert it action. where interest may be recoverable; but since the statute 3 & 4 W. 4, c. 42, sect. 28, it may be recoverable in many cases without expressly declaring for interest, provided the damages at the conclusion be sufficient to cover it. cause of 1. In assumpsit. Common counts. Account stated. It is advisable in all declarations in assumpsit for the recovery of a money demand (excepting against an infant, who cannot in law state an account), to insert a count on an account stated (b). The acknowledgment by the defendant that a certain sum is due, creates an implied promise to pay the amount, and it is not necessary to set forth the subject-maller of the original debt (c)(714); nor is the amount of the sum alleged in the count to be due material (d)(715); nor is it necessary, in order to support this count, that the defendant's admission should relate to more than one item or transaction, or that there should have been cross dealings or accounts between the parties (e). The present rule is, that if a fixed and certain sum is admitted to be due to a plaintiff, for which an action would lie, that will be evidence to support a count upon an account stated (ƒ). But an account stated is not proper to recover a single sum under an express contract, but lies only where an account has been stated with reference to former transactions (g). An attor ney's bill cannot be recovered under this count without due proof of delivery of a signed bill (h). Where arbitrators award a sum of money to be due, it may be recovered under this count, unless the submission was by bond (i). But a party can only recover under this count when a certain and precise sum is admitted to be due (k); and an acknowledgment of a debt, but without naming or referring to a sum certain, does not enable a plaintiff to recover on this count even nominal damages (1): and where a debt is actually in exist (y) 2 Bing. 4. (z) See Id. 6; and 12 East, 419. What is 3 (b) 2 Mod. 44; 1 T. R. 42. (d) 2 Saund. 122, n. 3; 1 Bla. Rep. 65; 1 Burr. 9. (e) 13 East, 249; 5 M. & Scl. 65; 2 Saund. 122, n. 6, 5th ed.; 3 C. & P. 236. (f) Per Parke, B. and Alderson, B., Por ter a. Cooper, 4 Tyr. 264, 265; 1 Cr. M. & R. 387. (g) Clarke v. Webb, 2 DowI. 671; 1 Cr. M. & R. 29; and see Allen . Crop, 2 Dowl. 546; or when it lies, Eicke v. Nokes, 3 Car. & P. 170; 1 Mood. & R. 359. (h) See preceding note. (i) 1 Esp. 194; Tidd, 9th ed. 834; Peake's C. N. P. 227; 5 T. R. 6; but see 1 Esp. 377. (k) 4 Moore, 542; 13 East, 249. (1) Bernasconi v. Anderson, Mood. & Malk. 183. (714) It was held in Cathell v, Goodwin, 1 Har. & Gill, 468, that under the counts for money lent, paid, laid out and expended, and an insimul computassent, the plaintiff was entitled to recover by evidence of the defendant's dishonored bill, drawn payable to the order of the plaintiff's wife. (715) { But where the count was on an account stated between the parties, wherein the defendant was found in arrear, &c. to the plaintiff, in the sum of £21 6s. and that the defendant promised to pay it in consideration of forbearance, itwas held, that the exact sum must be proved, and the plaintiff having proved a debt due of £20 18s. was nonsuited, though it would have been sufficient if the sum were laid under a videlicet. Arnfield v. Bate, 3 Mau. & Selw. 173. } IV. ITS PARTS, &c. cause of ence (m), and a prior transaction (n). But it may be shown by other evidence than the defendant's admission, *that the sum to which he referred was of a precise and stipulated amount (o). An admission by the defendant in a conversation with a third person that he was indebted to the plaintiff in a named 5thly. The sum, is not evidence of an account stated, unless the third person was the action. plaintiff's agent (p). In an action by an executor, evidence that the defend- 1. In asant, on being applied to for payment of interest, stated he would bring sumpsit. him some on a certain day, is insufficient to support an account stated; there counts. being no acknowledgment of any precise debt of a given character, or any thing to show in what capacity the plaintiff was entitled (q). And it seems that the admission should be clear and unqualified (r). If an account be stated and agreed of what is due for growing crops not previously severed, it is a valid plea that there was no contract in writing signed, so as to take the case out of the statute against frauds, 29 Car. 2, c. 3, s. 4, but if the account were stated after the severance, that fact might be replied (s). Common an account not be In framing the pleading rules of Hil. Term, 4 W. 4, it was considered that When a in assumpsit and debt on simple contract it is just that the plaintiff should be count upon at liberty to proceed as well for the original debt as also upon an admission stated that it is due, and therefore the rule expressly provides, "that a count for should or money due on an account stated may be joined with any other count for a added. money demand, though it may not be intended to establish a distinct subjectmatter of complaint in respect of each of such counts." But as Reg. Gen. Hil. T. 2 W. 4, subjects a plaintiff to the payment of costs upon every issue which he does not establish in evidence, this count should not be added unless there be strong ground for expecting that it will be proved by evidence. actions by We have seen that in actions by or against executors, where six years have Common elapsed since the death of the testator, or if it be on any other account mate- counts in rial for the plaintiff to avail himself of a promise or acknowledgment by the and against defendant since the death, it may be necessary to add all or one of the com- persons suing or bemon counts on promises to or by the executor in that character, for otherwise ing sued in such promise or acknowledgment cannot be given in evidence (t)(716); and particular rights or this set of counts usually follows the common breach at the end of the first characters. set of counts (u). The same necessity may arise in actions by the assignees of a bankrupt. And so in an action against A., B., and C., the husband of B., in order to give in evidence a promise by A. and B. before the marriage of B. and C., to take the case out of the statute, a count on such promise before marriage must be added (r). In general, however, where there has been an absolute promise or acknowledgment to the original creditor within six years, so as to take the case out of the statute of limitations, it suffices to declare (m) 5 Moore, 114 to 116; or a moral obligation, 3 Car. & P. 170. (n) 1 Crom. M. & Ros. 29. (0) 5 Moore, 114; 2 C. & P. 109. (r) 1 R. & M. 239. (s) Earl Falmouth v. Thomas, 3 Tyr. 26. (t) Ante, 233; 1 Young & Jervis, 380; and see form, 2 Saund. 207, 208. (u) See the forms, post, vol. ii., and see an old form, 2 Saud. 207, 208. (x) I B. & C. 248; 2 D. & R. 363, S. C, (716) See Bishop v. Harrison, 2 Leigh's Virg. Rep. 532. IV. ITS PARTS, &c. 3thly. The cause of action. 1. In assumpsit. tcmmon counts. The breach of the com upon the original contract (y). In declaring at the suit of a surviving partner in indebitatus, every count should technically state the death of the deceased partner; but if the death be averred in the first count it will suffice, and a demurrer in respect of an omission in a subsequent count has been considered frivolous (z). The statement of a breach of a special contract stated in assumpsit has already been considered (a). The Reg. Gen. Trin. Term, 1 W. 4, prescribed a more concise form of stating the breach of one or more common indebitatus counts than had heretofore been adopted, and which should be pursued as an mon coun's. admirable model (b). Even in assigning this breach by non-payment of the common counts, it is advisable to admit in the aggregate all payments made by the defendant on account, so as to avoid the expense of a plea of payment (c). In an action by assignees in that character, a breach that the defendant did not pay the plaintiffs, without alleging as assignees, is sufficient on special demurrer, and indeed proper and preferable (d). II. IN DEBT. [*393] Title of Court, term, ve nue, and commencement. We have already considered when the action of debt may be supported (e). In framing the declaration in this action, the general requisites and qualities of all declarations, which have already been pointed out, must be observed (f). The particular parts may be considered under the same arrangement as in assumpsit (g); and most of the rules to be observed in framing declarations in that form of action equally govern in the action of debt, and therefore it will only be necessary to point out the distinctions. *The title of the Court and the actual date of the day of delivering or filing the declaration and the venue, have already been considered (h). The commencement of the declaration preceding the statement of the cause of action is similar to that in assumpsit (i); except in the description of the form of action, when that is stated, and even that description may be omitted (k). În an action on a specialty, the party should be declared against in the name by which he signed the deed (1). The debt demanded, if unnecessarily stated in the commencement, should regularly be the aggregate of all the sums alleged to be due in the different counts; but a mistake in this respect, whether more or less be stated, will not be a cause of demurrer; nor is it necessary to prove that the debt amounted precisely to the sum alleged to be due (m). In general, the declaration should be in the debet and detinet (n); but upon the PARTS, &c. cause of principle that a man may complain of only a part of his grievance, and not of IV. ITS the whole, the plaintiff may abridge his demand and declare in the detinet only, instead of the debet and detinet (m). And in an action by and against 5thly. The executors and administrators, the declaration should technically be in the action. detinet only; except in an action upon a judgment recovered against an exe- 2. In debtcutor suggesting a devastavit, when the debet and detinet is proper (n); and the defendant cannot in such action plead plene administravit (0) (717). But a declaration in the debet and detinet against an executor is not subject to a special demurrer, as the former will be rejected as surplusage (p). An heir should be sued in the debet and detinet, but the omission of the debet will be aided by verdict (q). contract. The mode of stating the cause of action varies as in assumpsit, according On simple to the nature of the contract or matter declared on, which, we have seen, may be a simple contract, a specialty, a record, or a statute (r). In debt on simp'e contract, express or implied, to pay money in consideration of a precedent debt or duty, the subject-matter of the debt *is to be described precisely as in [ *394] the common counts in assumpsit (s); but in point of form the indebitatus count in debt differs from those in assumpsit; for although the indebitatus count states that the defendant, on, &c. "was indebted to the plaintiff” in a named sum of money "for goods sold," precisely as in assumpsit; and it is not necessary to set forth the nature or particulars of the debt with more precision than in that action (t); yet in this indebitatus count, no promise should be stated as in assumpsit (u); and although it has been usual to conclude each count with the allegation that "by reason of the said sum of money being unpaid, an action had accrued to the plaintiff to demand and have the same from the defendant, being parcel of the money above demanded," yet that allegation is unnecessary, and the usual breach at the end of the declaration will suffice (v); and the distinction is stated to be, that whenever the debt arises merely by the judgment or obligation, &c. and not from any thing dehors, a non-performance of the obligation is to be laid, and the conclusion is to be with the breach ad damnum; but that where the debt arises, not by the obligation alone, but also by some matter dehors stated in the declaration, there the count should conclude per quod actio accrevit, &c. as in debt on a lease for rent (x). The quantum meruit and quantum valebant counts, when formerly adopted, but which always seemed to be unnecessary and injudicious (y), resembled those in assumpsit, except that the words "agreed to pay" should be inserted, instead of "promised to pay," (z) and that such counts in general conclude with the same allegation per quod actio accrevit, |