Page images
PDF
EPUB

33, a.; and any affirmative words will be sufficient, Ashe v. Doughty, Yelv. 121; and a request in the second count *may [*132] refer to first: Barnes v. May, Cro. El. 240. If a special request be unnecessarily stated, plt. is not bound to prove it: Buckley v. Thomas, Plow. 128. The usual averment of salthough often requested so to do,” without stating the time and place of request, is of no avail in pleading, and the omission of it is immaterial, Phillips v. Fielding, 2 H. Bla. 131, Morgan v. Sargent, 1 B. & P. 59, Frampton y. Coulson, 1 Wils. 33; though, indeed, its insertion will sometimes, after verdict, avoid a defect in or omission of stating a special request.

Consequences of Omission of, or Defect in, Averment of Request.] The total omission of an averment of a special request, when necessary, is a substantial defect, although the general words, 6 although often requested so to do,” be inserted; and such omission may be taken advantage of by general demurrer, Back v. Owen, 5 T. R. 409, but not after verdict: Bowdell v. Parsons, 10 East, 359; Jones, 56; Wallis v. Scott, 1 Str. 89; Palgrave v. Windham, ib. 214; Seymour v. Gartside, 2 D. & R. 55; 1 Chit. Pl. 290. And the omission of time and place can be taken advantage of only by special demurrer: Bowdell v. Parsons, 10 East, 359. The omission of the general averment of “ although often requested so to do,” is, as we have seen, immaterial: supra.

Averment of Notice to Defendant, when necessary.] Wherever the fact upon which the deft.'s liability is incurred, lies peculiarly within the knowledge and privity of the plt., notice thereof must be stated to have been given to deft. previous to the commencement of the action: Rex v. Holland, 5 T. R. 621, 624; 2 Saund. 62, a. As where the deft. promises to give the plt, so much for a commodity as it is worth, or as any other had given him for the like, or to give so much for every cloth the plt. should buy: or pay to plt. what damages he had sustained by a battery, or to pay the pit.'s costs of suit: Hardw. 42; 16 Vin. Ab. Notice; Rex v. Holland, 5 T. R. 621; Tidd, 442. But when the matter does not lie more peculiarly in the knowledge of the plt. than of the deft., no notice is requisite: Hardw. 42; 1 Saund. 117, (2.) Therefore, if a man contracts to do a thing on the performance of an act by a, stranger, notice need not be averred, for it lies in the deft.'s knowledge as much as the plt.'s, and he ought to take notice of it at his peril: ib.; 2 Saund. 62, a. n. 4. Where the deft. promises plt. to give as much as a third person named, there the information was as accessible to the deft. as the plt.: 11 Mod. 48; Smith v. Goff, 2 Salk. 457, 3 Ld. Raym. 1127, s. C. And so in the case of an award, no notice thereof need be stated, 2 Saund. 62, a., unless it be expressly stipulated that a notification be made to the parties: 2 Bulst. 144. And, in an action on a promissory note by endorsee against drawer, notice of the endorsement need not be averred: Reynolds v. Davies, 1 B. f. P. 625. And on a promise to pay so much money on the full age of an infant, no notice is requisite of his having attained that age, 1 Saund. 117, n. 2 Tidd, 442; or where, deft. had been a party to a previous suit, or decree, no VOL. I.

20

notice thereof was deemed requisite: Ashe v. Doughty, Yelv. 121. Where the deft. by the terms of the contract, engaged to take notice at his peril, no notice need be averred, even though the fact peculiarly lie in plt.'s knowledge: as, where he contracted to pay money on the marriage of the plt. with B., 2 Bulst. 354, Com, D. Pleader, c. 75; and, in the case of a consideration precedent, to be performed by the plt. to the deft. in person, no notice of the plt.'s performance need be averred: Com. D. Pleader, c. 75. But where the acts to be performed by each party are mutual, and to take place at the same time, the plt. should aver a notice of a readiness by him to perform his part of the contract, or something dispensing with it: Seymour v. Gartside, 2 D. 8. R. 55. If the plt. expressly or impliedly contracts to give deft, notice

of an act, such notice must be given and averred according to [*133] the fact, as in the cases of bills * of exchange, &c.; notice of the

dishonour must, in general, be given by the holder to the other parties whom he means to sue: post, Bills of Exchange."

Manner of averring Notice.] The notice must appear to have been given at a proper time and to a proper person: Com. D. Pleader, c. 74. And an excuse for the want of notice, when it could not be given, must be stated: Nurse v. Frampton, 1 Salk. 214; 1 Ld. Raym. 28, s. c.; 16 Vin. Ab. Notice, A. 2; Stweton v. Cashe, Yelv. 37; post, " Bills of Exchange." Where there is a special request, notice will, in general, be implied : Bradley v. Toder, Cro. J. 228; Reynolds v. Davies, 1 B.. P. 626, 3 Bulst. 326.

Consequences of Omission or defective Statement of Notice.] The omission of an averment of notice may be taken advantage of by demurrer, or in arrest of judgment: Henning's case, Cro. J. 432; but it is, in general aided by verdict, Palgrave v. Windham, 1 Str. 212, 1 Saund. 228, n., Seymour v. Gartside, 2 D. &. R. 55: except where the plt. contracts to give it, as in an action against the drawer of a bill, where the omission of notice of the non-payment of the acceptor was held fatal, even after verdict: Rushton v. Aspinall, Doug. 679.

Averment of BREACH, when necessary. It is necessary in all cases for the plt. to allege a breach of the contract: Com. D. Pleader, C. 44, &c.

Form of Averment of Breach.] The breach is usually alleged after the statement of the contract, and all other averments except the averment of damages. When there are several counts in the declaration for a money demand, one breach may be so framed as to be applicable to all such counts: as, in actions on bills of exchange and the common counts, the breach usually inserted after the account stated will do: Frampton v. Coulson, 1 Wils. 33; Butterworth v. Le Despencer, 3 M. & S. 150. But this would be found almost impracticable in an action, not merely for the non-payment of money. The plt. may assign in one count as many breaches of different stipulations as he chooses, and, where the contract was general, as by a tenant to observe the

due course of husbandry, the declaration may, in one count, state various breaches of good husbandry: Com. D. Pleader, C. 33; Legh v. Hewitt, 4 East, 154, 1 Chit. Pl. 295. As to several breaches on bonds, post, Bonds." The usual averment of deft.'s contriving, &c. to injure, &c. the plt., is unnecessary, Bailiffs of Tewkesbury, v. Diston, 6 East, 443; and, in a declaration against a peer it should be omitted : Imp. K. B. 526.

The breach must be so assigned, and with such certainty, as to show the subject matter of complaint; a breach that deft. has not performed his agreement or promise, is too general, and bad, Com. D. Pleader, 48, Skin. 344, 7 Price, 550; but the breach may be assigned with less particularity and more conciseness, when great prolixity would be thereby avoided, Barton v. Webb, 8 T. R. 463, Shum v. Farrington, i

B. & P. 640, Gale v. Reed, 8 East, 85; and, where the breach lies more in the deft.'s than the plt.'s knowledge, less particularity is required: 8 T. R. 463, 8 East, 80. It may be assigned in the words of the contract, or in words which agree with the sense and substance of it: Com. D. Pleader, b. 45, &c.; 2 Saund. 181, b. c. In an action on deft.'s promise to pay the debt of a third person, a breach that deft. did not pay the debt, has been held in substance and effect to agree with the terms of the contract, i Sid. 178, 2 Roll. 738; and so, in debt on bond, conditioned for payment of an annual sum to the wife of an obligee, a breach assigned in non-payment of the same to the obligee is sufficient: Lunn v. Payne, 6 Taunt. 140, 1 Marsh, 495, s. C. So, in an action on a policy for loss by barratry of the captain, an averment that the ship was lost by the fraud of the captain suffices: *Knight v. Cambridge, 1 Str. 581. On a contract not to re- *1: lease or alien without license, it must be averred that deft, released or aliened without license, though, indeed the burthen of proving the license lies on deft.: Sir T. Jones, 229, Skin. 120.

More certainty is required in assigning an affirmative breach, that is. a breach that the deft. has done that which he contracted not to do, than a negative breach, that is a breach that the deft. has not done something he contracted to do: ib. In the former case, time and place must be alleged to the breach, but not so in the latter, if the breach on the face of it is complete and co-extensive with the contract without such allegation. In an action by an apprentice for not finding victuals and other necessaries, a breach in the words of the contract suffices: Proctor v. Burdet, 3 Lev. 170. And, in a covenant for not repairing, a breach in the words of such covenant suffices, without enumerating the particular dilapidation : Lutw. 329; Harris v. Mantle, 3 T. R. 308. On a contract to show a sufficient record, it suffices to aver deft. did not show a sufficient record: Heyford v. Reve, Yelv. 39, 40. And, in an action on a condition that one B. should account and pay over to plts, such voluntary contributions as he should collect for the charity, an averment that B. " had received divers large sums of money, amounting to a large sum, to wit, £100, from divers persons for divers voluntary contributions for the said charity,” which he had not accounted for or paid over, is sufficient: Barton v. Webb, 8 T. R. 463; 'Shum v. Farington, 1 B. & P. 640 ; Gale v. Reed, 8 East, 85. On the other

an action ship was lositey str. 581.st be averred the burthe

thatnight v. Cawithout licenicense, thones, 229, Stirmative bed not to me lease d or aliened wdeft. red in assigai hich beleid. has not place m

hand, if the contract were for quiet enjoyment without lawful disturbance, a breach merely stating that the plt. was disturbed, is insufficient, for it should be that he was by lawsul means disturbed, in the words of the covenant or otherwise. The plt. should show by whom he was disturbed, and how: 2 Saund. 181, b. So where the declaration is on a contract for good title, it should be shown that the person evicting had a lawful title before or at the time of the date of the grant to the plt., and an averment that he had a lawful title without this justification is too general, and bad aster verdict; for it will be intended that the title of the person entering is derived from the plt. himself; but the plaintiff is under no necessity of setting out the title of the person who entered upon him: 2 Saund, 181, n. 10; Com. D. Pleader, c. 47, 49.

The breach must be assigned in terms co-extensive with the contract, and not be too narrow. Thus, in an action by the assignee, heir, or executor, the breach should be, that the deft. did not perform the act to the original contractor or the plt.; and so, if it be against an assignee, heir, or executor, the declaration should state, that neither the original contractor or deft. performed the act. And a declaration by husband and wife, or by an administrator, merely stating that the deft. did not pay before marriage, or that he did not pay since the death, would be bad on demurrer, though aided by verdict: Elstob v. Thorowgood, i Ld. Raym. 284; Hornsey v. Dimoche, 1 Vent. 119. So, in sci. fa. on a recognisance of bail, conditioned, that, if J. B. and G. K. be condemned, they shall pay or render, after an allegation that J. B. was condemned, it is not sufficient to aver that J. B. and G. K. did not pay or render, without adding, “nor did either of them:" Wilkinson v.

Thorley, 4 M. &. S. 33. For, although payment by one would be payment by both, yet a render of one is not a render of both, consistently with the allegation, B., against whom only the judgment was, might have rendered, which would have been sufficient to discharge the recognisance: 1 Saund. 234, c. And, if the promise were in the disjunctive, to do one or other of two things, the breach must deny he did either; as, if a contract be, that “the deft, and his executors and assigns should repair,” a breach for not repairing should be in the conjunctive: Colt v. How, Cro. E. 348; Gyse v. Ellis, 1 Str. 228. So, on a promise to deliver a horse by a particular day, or pay a sum of money, it should be

denied deft. did either: 1 Sid. 440; Hard. 320; Plummer v. [*135] *Woodburne, 4 B. & C. 634; 7 D. 8. R. 249, s. c. But, if the

breach in this respect be co-extensive with and according to the substance of the contract, it will suffice: as, where there are several defts., an averment that they have not paid suffices, for a payment by one is a payment by all. So, in an action by several persons, or where deft. is to perform his act to several persons, an averment that he did not perform it to them suffices, without adding the words, “or either of them:" Aleberry v. Waleby, i Str. 231, 1 Saund. 235. So, if a contract be to perform an act to or by a person or his assigns, it need not be averred that it was not performed to or by the assigns : Gyse v. Ellis, i Str. 228.

The breach must not be more extensive and large than the deft.'s contract, so that thereby it remains uncertain whether the contract has

been broken. As, in a contract to repair a fence, except on the west side thereof, a breach that the deft. did not repair the fence, without showing that the want of repair was in other parts besides on the west, is bad on demurrer, Com. D. Pleader, C. 47; though not after verdict, ib.; sed vide Spires v. Parker, 1 T. R. 144, 5. And, if the matter to be performed by the deft. depend on a certain event, the happening of that event must be averred : as, if the promise he to account for moneys to be received by deft., the receipt of money ought to be a verred: Serra v. Wright, 6 Taunt. 45. A declaration for taking an insufficient security for an annuity, containing no averment that deft.'s retainer was for reward or in any particular character creating a duty, was held insufficient, the contract and breach not being co-extensive with each other: Dartnall v. Howard, 4 B. 8. C. 345. It is injudicious to narrow the breach unnecessarily: and, where plt. stated as a breach, that the deft. had not used the premises in a husband-like manner, &c., but, on the contrary, committed waste, spoil, and destruction, these latter words were held to exclude evidence as to bad husbandry in not sowing, &c., as they tied down plt. to proof of such facts as amounted to waste, spoil, or destruction: Harris v. Mantle, 3 T. R. 307. When an averment is divisible, the plt. may recover, though he only prove a part of the breach alleged in the pleadings: as, in an action against the sheriff for a false return, an averment that A. and B. had goods in his bailiwick, is divisible, and is supported in evidence by proof that A. only had property therein: Jones v. Clayton, 4 M. & S. 349; Forty v. Imber, 6 East, 437; Barnard v. Duthy, 5 Taunt. 27.

Consequence of Omission, or defective Statement of Breach.] The total omission of a breach, or a defective statement of it, so that thereby the contract does not appear to have been broken, would, it should seem, be bad after verdict: Hob. 198, 233; 1 Sid. 140; Lunn v. Payne, 6 Taunt. 140; Şiclemore v. Thistleton, 6 M. & S. 9; 7 Price, 550. But a mere informal statement of it, provided there be sufficient matter, on the whole, to show a breach of the contract, would not be bad, except on demurrer, or, perhaps, in some cases, on a judgment by default; and, therefore, where, in an action against husband and wife, on the contract, of the feme, whilst sole, to perform an award, it appeared that the award was made after the marriage, which was a legal revocation of the arbitrator's authority, and consequently the breach was improperly assigned in the non-performance of such award, it was held ihe plt, was entitled to recover, because it appeared that the feme had broken her covenant by the very act of her marriage, which, though a different breach to that assigned, was sufficient, after verdict, to support the declaration : Charnley v. Winstanley, 5 East, 270, 1; Perreau v. Bevan, 5 B. & C. 284; Sir T. Jones, 125; Vivian v. Champion, 1 Salk. 140. If one of several breaches, or a part of a breach, be improperly assigned, the deft. cannot demur of the whole: Amory v. Brodrick, 5 B. & A. 712, 1 D. &. R. 361, s. C.; Duffield v. Scott, 3 T. R. 374; Orton v. Butler, 5 B. & A. 652; Samuel v. Judin, 6 East, 333; 1 N. R. 43, s. C.; Powdick v. Lyon, 11 East, *565. [*13 And, if he does so demur, plt. may have judgment for the

« PreviousContinue »