IV. ITS 4thly. mencement. ground of demurrer, but merely of a summons to strike out the objectionPARTS, &c. able repetition (8); and although it would be absurd for any practitioner to The com- neglect strict observance with the recent rules, yet it is obvious that it could never have been the intention of the judges that the unnecessary insertion in the body of a declaration of a venue should be constantly the subject of a summons to strike out those words, which would occasion much more expense, and be infinitely more vexatious than the introduction of those few words (t). The modes of taking advantage of informalities in the title or commencement of a declaration is perhaps matter of practice rather than of pleading, and have been fully considered as such in another work (u). THE REG ULATIONS THE BODY DECLARA TIONS IN GENERAL. stance of cause of action. The language of to be ob 5thly. After the Commencement of the declaration, the Body or statement of the cause of action follows in natural order, and which in every description of action consists of three different points, viz. the right, whether founded upon contract or tort independent of contract; the injury to STANCE OF such right; and the consequent damages. In stating such of these, all the requisites of certainty and other points before noticed must be observed. Keeping in view and subject to those general requisites, every pleader *288] was, before the very recent pleading rules, at liberty to frame the body or 5thly. The body substance of every declaration in such order and language as he might conor sub- sider preferable. He was not however allowed vexatiously to insert any superfluous, impertinent or extraneous matter as in an action or a mortgage deed, a long description of the mortgaged premises (x), or covenants, of which no breach was assigned, and if he did so, or inserted numerous counts substantially alike, the Courts, in virtue of their general jurisdiction, description might, on summons or motion, order the unnecessary matter to be struck out (y). But however superfluous or unnecessary the matter or count may be, that affords no ground of demurrer, and can only be objected to by application to strike out the same (z). With a view to compel greater conciseness, some recent rules materially control and limit the length of declarations. The Reg. Gen. Trin. T. 1 W. 4,† prescribes forms and length of declaration in assumpsit or debt on bills of exchange and promissory notes, and for common debts recoverable in indebitatus assumpsit, thereby very considerably reducing the length of such declaration (a); and the judges certainly intended that the particular forms there given should be considered not as mere limited examples, but as models of conciseness to be observed and extended to all other cases (b). From this also it is to be inferred that quantum meruit and quantum valebant counts shall no longer be adopted (b). The Reg. Gen. Hil. Term, 2 W. 4, reg. 71,† depriving every party of the costs of issues and pleadings, upon which he does not succeed, had a strong tendency to prevent the introduction of useless counts, pleas and issues, or even of any useless allegations. served in general. (s) Farmer v. Champneys, 1 Crom. M. & Ros. 369; 2 Dowl. 680, S. C.; Fisher v. Snow, 3 Dowl. 27; Townsend v. Gurney, id. 29. (t) Per Cur. in Brindley . Bennett, 2 Bing. 184; see post, "of striking out counts." (u) 3 Chitty's Gen. Prac. 456 to 462. (2) Cowp. 665, 727; 1 Saund. 223, n. 1; 2 Saund. 366. (y) Id. ibid.; 3 Chitty's Gen. Prac. 638 to 643. (z) Gardner v. Bowman, 4 Tyr. 412. † See American Editor's Preface. IV. ITS 5thly. At length the Reg. Gen. Hil. T. 4 W. 4,† reg. 5, 6 and 7, imperatively prohibited the use of several counts or pleas, unless a distinct subject PARTS, &c. matter of complaint or defence is intended to be established in respect of each. The student and every practitioner must constantly consult those of rules, as any deviation might be fatal (c). of action. The Rules W. 4, reg. Independently of the particular and precise operation of each of these Hil. T. 4 rules, it has recently become the practice in declaring for the breach of a 4, 5, 6, contract to pay money, or deliver goods, or perform works, in cases where prohibitthere has been a part performance, expressly to admit the same on the face ing several counts. &c. of the declaration, by which means the plaintiff having himself justly limited his claim to his real demand, the defendant is thus deprived of all pretence Other in[ *289 ] for pleading the part payment* or partial performance, and the costs of the cidental useless pleading and evidence relating to such part performance is thus improvesaved (d), and this mode of declaring is particularly desirable when the admissions part performance would take the case out of the statute against frauds, or on face of statute of limitations. ments, as declarations of formance. Having thus considered the recent rules as they affect the body part payor substance of declarations in general, and the prohibitions against second ments or counts, we will proceed to consider in detail the requisites of declarations part perin each form of action in particular as, 1st, In Assumpsit; 2dly, Debt; 3dly, Covenant; 4thly, Detinue; 5thly, Case; 6thly, Trover; 7thly, Replevin; 8thly, Trespass. In Assumpsit, the statement of the cause of action is either special, or general. Such of the forms of special counts in assumpsit as most frequently occur in practice are given in the second volume. I. IN ASSUMPSIT. not a spec site or proper. In general, where the claim is merely of a pecuniary nature, and is found. When or ed on the past or completed or executed consideration, it is sufficient to ial count declare upon the common indebitatus counts (e) (1). There are, however, is requimany occasions in which, although it may not be strictly necessary, yet it is judicious to insert a special count in the declaration; for instance, upon a written contract to build a house, if the work has been performed, and the reward was to be paid in money, the common counts for work and materials would suffice; but if the plaintiff declare specially, and set out the written contract, and the defendant suffer judgment by default, or pay money in Court generally, the contract, and all material allegations as stated in the declaration, would be thereby admitted, and no objection could be raised on account of the want of a stamp. In many instances as in actions against agents for not accounting for goods or the proceeds of goods intrusted to them, or for not using due care in selling, &c. (ƒ) the declaring specially for unliquidated damages will exclude a tender or a setoff (ƒ), or even the defence of bankruptcy (g). In these cases a special (c) See these rules, Jervis's Rules, 99 to 103; and the cases thereon, 3 Chitty's Gen. Prac. 479 to 485. (d) See Bosanquet's New Rules, 50, note 48, 86 to 88; 3 Chitty's Gen. Prac. 475 to 489, and see forms, post, vol. ii. (e) See post, as to the common counts. (f) See 1 Esp. Rep. 380; 5 B. & Ald. + See American Editor's Preface. IV. ITS PARTS, &c. 5thly. The cause of action. In as count is advisable, although the chief part of the plaintiff's demand may be recoverable upon the common counts. But where neither these, nor any other satisfactory reason for introducing a special count can be adduced, and the cause of action may be proved upon a common count, the latter alone should be used; as where goods have been sold and delivered, sumpsit. and the credit or time for payment has elapsed, then a special count would be improper. When a declaration consisted of one special and several [290] general counts, and to "the special counts there were several special pleas, Usual parts of a special count in assumpsit (i). 1st. Of the Induce ment in assumpsit. and to the general counts the general issue was pleaded, and the plaintiff entered a nolle prosequi as to the special count, and joined issue on the others, it was held that he was entitled to recover on the general counts; although the matters proved might have been given in evidence and investigated on the special count and the pleas thereto (h). In considering the rules to be observed in the structure of special counts in assumpsit, six points are principally to be attended to, viz: 1st, The inducement; 2dly, The consideration of the contract; 3dly, The contract itself (j); 4thly, The necessary averments; 5thly, The breach; and 6thly, The damages. An Inducement, in an action of assumpsit, is in the nature of a preamble, stating the circumstances under which the contract was made, or to which the consideration has reference. A formal inducement does not appear to be in any case necessary in pleading; it would be sufficient if the subjectmatter of the inducement were alleged in any other part of the declaration; but it is useful in composition, for the purpose of perspicuity. The matter of inducement may be stated by way of parenthesis, as thus: "For that whereas heretofore, to wit, on, &c. in consideration that the plaintiff, at the request of the defendant, [he then being an attorney of the Court of our lord the king before the king himself, or he then being a carrier of goods for hire from, &c. to, &c.] had then retained and employed him as such attorney to, &c.; or the declaration may begin by a formal inducement, as in the precedent referred to in the notes (k). Where a variety of facts preceded the contract, and are so connected with it that the statement of them is necessary to render the count intelligible, it is obviously better to adopt a formal inducement (1), than in the description of the consideration or of the contract to show those facts in one continued sentence of great length. Thus, in an action on a wager on a horse-race, it is usual to begin the declaration with an inducement of the expected race (m). So, in assumpsit upon an award, the existing differences between the parties are concisely stated, as that "certain differences had existed and were depending (n); and on a contract to pay money upon a consideration of forbearance the declaration begins by stating with brevity the exis[291] tence of the debt forborne, and from whom it is due (o). The "induce (h) 1 M. & M. 311. (i) See the forms and parts, ante, 291. (k) See ante, 262; and post, vol. ii. (1) 4 B. & C. 345; 6 D. & R. 438, S. C. (m) Post, vol. ii. (n) Id. (0) Id. IV. ITS The cause ment. ment, or averment by way of introductory allegation, is peculiarly proper where a party is charged upon, or in respect of, the breach of a contract PARTS, &c. or implied duty, resulting from any particular character or capacity of the 5thly. defendant. Thus, in a declaration against an attorney for negligence, or of action. a carrier, a coach proprietor, a wharfinger, or captain of a ship, or an inn- 1. In askeeper, for the loss of goods, &c., it is usual and proper to show, by way sumpsit. of inducement, or at least by other averments in the declaration, that the 1. Inducedefendant followed the occupation in respect of which the plaintiff employed him. If no such allegation be contained in the declaration, the defendant cannot be charged thereon for the breach of a duty which results only from the particular character which he held, and in reference to which he was retained (p). But where the mere statement of the consideration and promise will be sufficiently intelligible, without any prefatory allegation, they may be set forth without any inducement; as in declarations upon bills of exchange, &c. which should proceed at once to state the instrument or contract, without any preamble of the custom of merchants, which ought not to be set forth (q). It is said that as the office of an inducement is explanatory, it does not in general require exact certainty (r). Thus, where an agreement with a third person is stated only as inducement to the defendant's promise, which is the principal cause of the action, it was considered in general sufficient to state such agreement without certainty of name, place, or person (8). This rule prevailed in the statement of matter which merely constituted an executed or past consideration (t); as when the declaration charged, that in consideration that the plaintiff "had, at the defendant's request, granted to him by deed the next avoidance of a certain church," the defendant promised to pay the plaintiff £100, the court held the declaration good, although it was objected, in arrest of judgment, that the time or place at which the grant was made was not stated (u). So in declaring upon a promise to pay money in consideration of the forbearance of a preceding debt, though some cause of action must be alleged, it was not ne cessary to state the particular cause or subject-matter of the debt, or the time when or place where it was contracted (x); and in an action for neg ligence against an attorney who had been employed to sue another, it was not necessary or advisable to state in an inducement that such other person was indebted; and if it be stated though unnecessarily, it must be proved (y). But where the inducement disclosing a part consideration also [292] professes to state some matter material to be ascertained with certainty, it must be stated with precision and particularity (z). Therefore, where in a declaration in assumpsit for not accepting a lease, the inducement charged that the plaintiff was possessed of the premises for a certain term, ending on a day named, and the proof showed that he had only a shorter term, the court held the variance fatal (a). It suffices if the introductory matter or inducement be stated according to its legal effect (b); and the C. 31, 43; E. 10, 18; 13 East, 105, 116; (x) Hob. 18; post, vol. ii. (z) 13 East, 102; post, vol. ii. (a) 1 M. & P. 717; 4 Bingh. 653, S. C.; see 1 B. & B. 536. (b) 3 Moore, 674, 695, 696. IV. ITS PARTS, &c. 5thly. of action 1. In assumpsit. ment. first part of the rule, that allegations of matter of substance may be substantially proved, but allegations of matter of description must be literally proved (c), applies peculiarly to averments in an inducement; and therefore if the inducement be not a mere matter of description, and it be substantially proved as alleged, a slight variance will be immaterial. Even material matter laid in an inducement need not be proved precisely as al1. Induce- leged when stated under a videlicet, if it be correct in substance. Thus, where in a declaration to recover from the defendant a debt due from a third person, which the defendant had promised to pay in consideration of forbearance, the sum due was stated in the inducement under a videlicet to be £26, 138, 6d., and was described as the balance of a larger sum, and the statement of the contract referred to the sum so alleged in the inducement to be due, but only £26 were due as the balance; the Court held that the variance was not material (d) (1). In general, however, every allegation in an inducement, which is material and not impertinent and foreign to the cause, and which consequently cannot be rejected as surplusage, must be proved as alleged, and a variance would be fatal; and consequently great attention to the facts is necessary in framing the inducement, and care must be taken not to insert any unnecessary allegation (e). Thus, in the case just mentioned against an attorney, where the declaration stated that E. F. was indebted to the plaintiff, and that the plaintiff employed the defendant to sue her, it being proved that E. F. was a feme covert at the time the supposed debt accrued, and consequently not in point of law indebted, the plaintiff was nonsuited; though the declaration might have been sufficient without stating that the third person was indebted (f). Where, however, the matter unnecessarily stated in the inducement is wholly impertinent, and might be struck out as surplusage, there are some cases in [*293] which a failure in proof of such statement would not be material (g).* Inducement, if not trav ersed need not be proved. 2dly. The Considera tion. The recent rules of pleading, Hilary Term, 4 W. 4, as they apply to most actions, and especially assumpsit and case, now relieve a plaintiff from the necessity for proving matter of inducement, or from any risk of variance in the statement thereof, unless the defendant's plea expressly traverse or deny the inducement; thus, in an action on the case, if the declaration state that the plaintiff was possessed of a close and a pond full of water therein, and then stated an injury to the water in the pond, it was held that the plea of not guilty did not put in issue the inducement, even though connected with the description of the injury, and therefore the defendant could not on the trial dispute the correctness of the inducement (h). In treating of the rules relative to the statement of the Consideration (c) Ante, 230, note (c); 3 B. & C. 4; 6 D. & R. 626, S. C.; see further as to this, post. (d) 2 Moore, 114; see 1 B. & B. 536; see post as to the scilicet. (e) Ante, 228, 230; 4 B. & C. 380; 6 D. & R. 500, S. C.; Dougl. 667; 5 T. R. 498; 3 B. & P. 463; 2 Chit. Rep. 311; Steph. 2d edit. 285. As to what may be struck out (g) Ante, 229; 2 Bla. R. 840; Dougl. 667; 3 T. R. 498; 3 T. R. 646. (h) Dukes v. Gostling, 3 Dowl. 619; Prankum v. Earl Falmouth, 4 Nev. & Man. 330; 1 Harr. & Wol. 1; 6 Car. & P. 529, S. C. (1) In declaring in assumpsit on a collateral undertaking, the declaration must be special, setting forth the contract; but if the undertaking be original, the plaintiff may declare generally. Northup v. Jackson, 13 Wend. 85. |