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III. Of the Declaration.
Venue.—The action of assumpsit being founded on contract is transitory, (42) and consequently the venue may be laid in any county at the election of the plaintiff.
By R. G. H. T. 4 W. 4. after reciting that, by the mode of pleading hereinafter prescribed, the several disputed facts material to the merits of the case, will, before the trial, be brought to the notice of the respective parties more distinctly than heretofore; and that, by the act of the 3rd and 4th Will. 4. c. 42. s. 23. the powers of amendment at the trial, in cases of variances in particulars not material to the merits of the case, are greatly enlarged; it is ordered that several counts shall not be allowed, unless a distinct subjectmatter of complaint is intended to be established in respect of each ; nor shall several pleas, or avowries, or cognizances be allowed, unless a distinct ground of answer or defence is intended to be established in respect of each. Therefore, counts founded on one and the same principal matter of complaint, but varied in statement, description, or circumstances only, are not to be allowed. Ex. gr. -Counts founded upon the same contract, described in one as a contract without a condition, and in another as a contract with a condition, are not to be allowed ; for they are founded on the same subjectmatter of complaint, and are only variations in the statement of one and the same contract. So counts for not giving, or delivering, or accepting a bill of exchange in payment, according to the contract of sale, for goods sold and delivered, and for the price of the same goods to be paid in money, are not to be allowed. So counts for not accepting and paying for goods sold; and for the price of the same goods, as goods bargained and sold, are not to be allowed. But counts upon a bill of exchange or promissory note, and for the consideration of the bill or note in goods, money, or otherwise, are to be considered as founded on distinct subject matters of complaint ; for the debt and the security are different contracts, and such counts are to be allowed. Where several debts are alleged in indebitatus assumpsit to be due in respect of several matters, ex. gr., for wages, work, and labour as a hired servant, work and labour generally, goods sold and delivered, goods bargained and sold, money lent, money paid, money had and received, and the like, the statement of each debt is to be
(42) Debitum et contractus sunt nullius loci. 2 Inst. 230.
considered as amounting to a several count within the meaning of the rule which forbids the use of several counts, though one promise to pay only is alleged in consideration of all the debts. Provided, that a count for money due on an account stated, may be joined with any other count for a money demand, though it may not be intended to establish a distinct subject-matter of complaint in respect of each of such counts. The rule which forbids the use of several counts is not to be considered as precluding the plaintiff from alleging more breaches than one of the same contract in the same count.
Where an action is brought in an inferior court, it must be stated in the declaration, that the cause of action accrued within the jurisdiction of the court. Hence in assumpsit in an inferior court, not the promise only, but the consideration? also, on which such promise is founded, must be laid within the jurisdiction: for the inferior court cannot hold plea unless the whole matter is within their jurisdictiona; consequently, if a declaration for goods sold and delivered b, or money had and received, or money paidd, merely state that the defendant promised to pay within the jurisdiction, without stating the sale and delivery of the goods, or the receipt or payment of the money, to have been within the jurisdiction, it will be error; and error, even after verdicto, for in this case nothing shall be intended to be within the jurisdiction, that is not expressly averred to be sof.
Every material and traversable fact must be laid with time and place.
Day.The day mentioned in the declaration, on which the cause of action is stated to have accrued, is not materials, provided it be a day after the cause of action accrued and before action brought. If the defendant by his plea makes the time material, the plaintiff may by his replication answer to that plea, without being guilty of a departure; as where the promise was laid on the first of May, 3 Car. 1. and the defendant pleaded that the writ was first brought the 4th February, 14th Car. 2., and that he did not promise within six years before the said 4th February. Replication, that he promised within six years before the said 4th of February: on motion in arrest of judgment, it was holden, that the replication was not a departure from the declaration ; because the time in the declaration was not material. So where the plaintiff declared upon a promise madek 26th March, 12 Geo. 1. the defendant pleaded, that after the promise, and before the bill filed, viz. 2d April, he tendered the money; the plaintiff replied, that after making the promise, viz. 12th February, he filed his bill: on demurrer it was objected, that plaintiff had brought his action, as appeared by his own shewing, before the cause of action accrued. But the court over-ruled the objection, observing, that as the plaintiff would not in evidence have been confined to the day in his declaration, there was not any reason he should be more confined in pleading; that in the case of a common assumpsit, the day was alleged for form only, and therefore the defendant could not confine the plaintiff to the day alleged in the declaration (43).
2 Ramsey v. Atkinson, 1 Lev. 50. d Heaven v. Davenport, 11 Mod. 365.
Whitehead v. Brown, 1 Lev. 96! 8vo. cd. a Drake v, Beare, 1 Lev. 104, 5. e Winford v. Powell, Ld. Raym. 1310. b Price v. Hill, 1 Lev. 137. Stone v. f Per Atkins and Scroggs, Js. 2 Mod.
Waddington, 1 Lev. 156. Hanslip 197. v. Coater, 2 Lev. 87. Waldock v. g Ring v. Roxbrough, 2 Cr. & J. 418. Cooper, 2 Wils. 16.
h Inkersalls v. Samms, Cro. Car. 130. c Trevor v. Wall, 1 T. R. 151. i Lee v. Rogers, 1 Lev. 110.
Manner of stating the Contract.-In the action of assumpsit, the declaration must state the contract on which the action is founded truly and correctly; that is, either in the terms in which it was made, or according to the legal effect and operation of those terms (44); for a material variance between the contract alleged and the contract proved will be fatal?: As where the contract alleged was, to deliver good “merchandizable” wheat", and the proof was to deliver good “second sort” of wheat, the plaintiff was nonsuited for the variance: so where the plaintiff declared upon a contract for wages upon a certain voyage from London to Africa, and thence to the West Indies ; but the proof was of a contract
k Matthews v. Spicer, Str. 806. recog- I Cooke v. Munstone, 1 Bos. and Pul.
nized by Tindal, C. J., Arnold v. N. R. 351.
(43) A different rule holds in actions on promissory notes, where the day forms an essential part of the agreement. Stafford v. Forcer, E. 1 G. 1. cited in Cole v. Hawkins, Str. 22. and reported in 10 Mod. 311. See also 3 Bingh. N. C. 84.
(44) Or as defendant says it was made. A bill of exchange was drawn in this form ; pay to our order,” &c. signed in the name of two persons and Co. and accepted by the defendant; it was holden that in an action against the defendant às acceptor, it might be declared upon by the indorsees as a bill drawn by an aggregate firm; and although it was proved that the firm consisted of one person only, it was holden not to be a variance, Bass v. Clive, 4 M. and
for a voyage from London to Africa", and thence to the West Indies or America, and afterwards to London, &c. : the variance was holden to be fatal, the contract proved being for a different voyage than that declared on.
The Consideration.-Every part of the entire consideration for any promise contained in the agreement must be stated in the declaration. But in framing a declaration on an agreement', which consists of several distinct parts and collateral provisions, it is not necessary to state in the declaration every part of such agreement; it is sufficient to state so much of the agreement as contains the entire consideration for the act, and the entire act which is to be done, in virtue of such consideration. The rest of the contract, which respects the liquidation of damages only, after a right to them has accrued by a breach of the contract, is matter proper to be given in evidence to the jury, but not necessary to be shewn to the court in the first instance on the face of the record (45). In like manner, where the plaintiff states the whole consideration trulyp, and then states those parts of the defendant's promise, the breach of which he complains of, truly and correctly; that is sufficient, without stating other parts of the promise irrelevant to the breach complained of. It is enough to state that part of the agreement truly which applies to the breach complained of, if that which is omitted do not qualify that which is stated 4.
Idle and insufficient considerations do not form any essential part of the contract', consequently it is neither necessary to state them in the declaration, nor, if stated, to prove them. By the term “idle and insufficient considerations,” must be understood such considerations as, if they stood alone unconnected with one or more sufficient considerations, would not support the promise of the defendant. They are distinguishable from illegal considerations; for, if one of the considerations, where there are two or more, is illegal, it will vitiate
n White v. Wilson, 2 Bos. & Pul. 116. o Per !ord Ellenborough, C. J. deli
vering the judgment of the court in
Clark v. Gray, 6 East, 569, 570. p Miles v. Sheward, 8 East, 7.
q Tempest v. Rawling, 13 East, 18.
See also Cotterill v. Cuff, 4 Taunt.
(45) “ There are a great variety of agreements not under seal, containing detailed provisions regulating prices of labour, rates of hire, times and manner of performance, adjustments of differences, &c. which are every day declared upon in the general form of a count for work and labour.” Per Lord Ellenborough, C. J. S. C.
the whole contract, and the action cannot be supported; but an idle or insufficient consideration may be rejected; in trutli, it is a nullity.
Executory considerations are traversables, and the performance of them must be averred with time and place. In cases where the promise of the defendant is founded on two or more executory considerations, the performance of all must be fully and expressly averredt; for an imperfect allegation of the performance of one only will vitiate the declaration. Where the consideration is executed, in which case it is not traversableu,) and the promise to pay a sum certain, or to do or forbear from doing some specific act, the declaration proceeds at once from the statement of the contract to the breach, without any intermediate averment.
Breach.—The breach ought to be co-extensive with the promise, but not enlarged beyond it. The promise was “to deliver a gelding in as good plight as he borrowed himy;” the declaration averred that he did not deliver him at all. After verdict for the plaintiff, judgment was arrested, because the breach was not laid according to the promise. It will be sufficient, however, if the breach pursue the words of the promise .
Notice. Averment thereof;-Where the action does not lie without notice given to the defendant, an averment of such notice ought to be inserted in the declaration. The defendant bought of the plaintiff a quantity of barleya, and promised to pay him for it as much as he could get from any other person. The plaintiff averred in his declaration, that he afterwards sold the same quantity to J. S. for such a sum, but did not aver that the defendant had notice of the sum given by J. S.; for this omission the judgment was arrested; and this distinction was taken , that if the agreement had been that the defendant should pay as much as J. S. paid, in that case, quia constat de persond, and he is indifferently named between them, the defendant at his peril should inquire of him, and the plaintiff was not bound to give notice; but where the person was altogether uncertain, there the plaintiff, to entitle himself to the action, ought to give notice. See Holmes v. Twist, on error from B. R. in Exch. Ch. Hob. 51. to the same effect, where an averment of notice was holden
a Hall v. Hemminge, Cro. Jac. 432.
I Ro. Abr. 463. 1. 25. 3 Bulst. 85, 6,
7 S. C. b See Ld. Raym. 1127. where this case
was put by Holt, C.J. Brice v. Carre, I Lev. 47. S. P.