breaches or part of the breach well assigned: 1 Saund. 285.

If one

of several breaches be ill assigned, and so that the same be not cured by verdict, and general damages be given, judgment may be arrested: Sicklemore v. Thistleton, 6 M. & S. 9.

Averment of DAMAGES.] If the contract be broken, the plt. will be entitled to some damages, however small, whether they be stated or not, for damages will be implied from the very breach itself, and wherever the damages sustained necessarily and naturally arise from the breach complained of, and may therefore be implied, they need not be stated; otherwise they must, in order to prevent the surprise on the deft., which might otherwise ensue at the trial; and, if he do not state them particularly, he will not be permitted to prove them in evidence: Hartley v. Herring, 8 T. R. 130; Vin. Ab. Damages, 1 Chit. Pl. 296-7, 347. Thus, in an action against a vendor of an estate for not making a good title to, or conveying same, only the deposit can be recovered under the count for money had and received; and, if the purchaser proceed for interest and expenses, he must declare specially, stating such expenses, and the loss arising from not having the use of the deposit, Camfield v. Gilbert, 4 Esp. Rep. 223, Walker v. Constable, 1 B. & P. 306, Fleureau v. Thornhill, 2 W. Bla. Rep. 1078, Slack v. Lovel, 3 Taunt. 157; though, indeed, if the jury give interest and expenses, the defect is cured: ib.; Gordon v. Swan, 12 East, 419; 2 Bing. 4; post, "Vendor and Purchaser." In some cases, where the damages constitute the principal ground of action, they must be stated specially: Dartnall v. Howard, 4 B. & C. 345. The damages stated, or to be recovered, must be proximate, and not remote, or depending on a contingency; and, therefore, in an action for not replacing stock, it will be of no avail to state in the declaration that the plt. was prevented from completing an advantageous contract he had entered into: 1 Chit. Pl. 296. As to evidence of damages in assumpsit, tort, post, "Case."

The damages must be stated according to the facts; and, as the jury cannot give greater damages than those stated, the plt. should take care to state them sufficiently extensive, Cheveley v. Morris, 2 W. Bla. R. 1300; especially as the jury may give less than the amount claimed: Dow's R. 207; Gardiner v. Croasdale, 2 Burr. 904. As, in declaring on a policy, under a statement of a total loss, a partial one may be recovered, ib. The damages must appear to have arisen as a legal result of the breach of the contract, supra. In the statement of them, the word "whereby," or "by means of the premises," &c., refers to all the antecedent matter: Perreau v. Bevan, 5 B. & C. 292.

Where the damages recoverable, are, by the terms of the contract, made liquidated damages, the jury are bound, by the agreement of the parties, to give that sum; and plt. should, therefore, insert a count to meet his claim in this respect: Lowe v. Peers, 4 Burr. 2225; Barton v. Glover, Holt, 43, 1 Saund. 58, b.; Clarke v. Gray, 6 East, 567; Harrison v. Wright, 13 ib. 345. The damages must be stated as having occurred previous to the bringing the action: 2 Saund. 171, n. 1.; Carter v. Calthorpe, 3 Lev. 345. As to the statement of special damages, post, "Case." As to the common conclusion, "To the damage," &c., post, "Declaration."

II. COMMON COUNTS.] We have already shortly noticed when a declaration in assumpsit may be framed on the common counts; and, when this is the case, they should always be inserted, though there be also special counts, as they will frequently secure a verdict, 1 Chit. Pl. 297; especially in cases where the plt. fails in proving the special agreement as stated, where it has been executed by plt. entirely or in part,

or where *deft. has prevented the execution: Farr v. Price, [*137] 1 East, 58; Mowbray v. Fleming, 11 ib. 285; Studdy v. Sanders, 5 B. & C. 638; Horford v. Wilson, 1 Taunt, 12, 1 Chit. Pl. 298. Thus, if plt. declare specially on a building agreement for the price of his labour, if he fail to prove his compliance with such agreement, he may, in some cases, recover on the common count for work and labour and materials: Cooke v. Munstone, 1 N. R. 355, B. N. P. 139; Basten v. Butter, 7 East, 479; Ellis v. Hamlen, 3 Taunt. 52. And, as to when the plt. may resort to the common counts in an action on a bill of exchange, post, "Bill of Exchange." Where the demand is founded on a written agreement, which ought to be, but is not, stamped, the plt. will not be permitted in evidence to resort to an implied contract, in order to avoid the production of such express agreement: White v. Wilson, 2 B. & P. 118; Brewer v. Palmer, 3 Esp. Rep. 213; Gay v. Gower, 2 Marsh, 273; sed vide Alves v. Hodgson, 7 T. R. 241; semb. contra. And, if there were no privity of contract between the parties, independent of the special contract, the common counts will be of no avail: Arnfield v. Bate, 3 M. & S. 173; Thompson v. Morgan, 3 Camp. 101.

Form of Common Counts.] In these counts there is no prefatory inducement; and they commence by stating generally the executed consideration, viz. that the deft. was indebted to plt. in a certain sum, on some executed consideration performed at deft.'s request; and that, being so indebted, he promised to pay the money, which payment is denied generally on the common breach, and there is usually no statement of special damage. In strict pleading, it has been said that these counts cannot be supported; but they have now been so long in use, that the courts would not listen to any objection against them. But little certainty is required in them. Time and place should be stated; but it does. not seem necessary to state when and where deft. was indebted; Emery v. Fell, 2 T. R. 28; Desborough v. Kelly, 1 Ld. Raym. 533. A variance as to the time and place when and where deft. is stated to have been indebted, is immaterial; when there is a special count preceding these counts, it is usual and proper, though not essentially necessary, in the first common count, to lay the day after the special cause of action was complete; and, in the subsequent counts, to refer to the last-mentioned day: Frampton v. Coulson, 1 Wils. 33. It is usual and proper, in an action by or against executors, &c., to state that deft. was indebted before or after the death of the testator, &c. The sum in which deft. is stated to have been indebted need not be the precise one, but it should be enough to cover the real demand: Step. Pl. 318; 2 Saund. 122, n. 2. It must be stated that deft. promised to pay a specific sum, or so much as the plt. reasonably deserved; averring in the latter case what

sum is due: Blakey v. Dixon, 2 B. & P. 321. Under the indebitatus count, the plt. may recover what may be due to him, although no specific price or sum was agreed on; and, therefore, it has been observed, that the quantum meruit and quantum valebant counts are in no case necessary, and should in many cases be omitted, to prevent prolixity and expense, 2 Saund. 122, n. 2; and it is settled that, under a quantum meruit count, the plt. cannot recover, if the goods were sold, &c. at a specific price: Weaver v. Burroughs, 1 Str. 648; 1 Chit. Pl. 301; sed vide Laing v. Fidgeon, 6 Taunt. 108. If the count be for the value of goods or chattels, such value should be described; and, therefore, where the plt. declared in indebitatus assumpsit for five hundred quarters of wheat for toll, the declaration was held bad, on special demurrer, for not stating the value of the corn: Mayor, &c. of Reading v. Clarke, 4 B. & A. 268; E. of Falmouth v. Penrose, 6 B. & C. 385. The contract, or cause of action, must be shown; but it is sufficient to state it by any general words, so that it may appear to the court, that it is not a

debt of record or specialty, or only a simple contract, Carth. [*138] 267; therefore, it is not necessary to show the particular work done, or the quantity, or quality, or value of the goods sold, &c., 2 Saund. 350, n. 2, 1 Chit. Pl. 301, Spark v. Jobber, 2 Ld. Raym. 1451; and it is sufficient if the count disclose enough respecting the contract, that a recovery in one action may be a bar to any future action for the same debt. It will be bad if plt. entirely omit to show for what cause the debt became due: Woodford v. Deacon, Cro. Jac. 206, 245. The quality, quantity, or value of the goods sold is never specified. It is essential in every common count, except those for money had and received, and on an account stated, to allege that the executed consideration arose at the deft.'s request; and an omission in this respect is fatal, after judgment by default: Hayes v. Warren, 2 Str. 933; 1 Saund. 264; 1 Roll. Ab. 11; Bosden v. Thyn, Cro. J. 18. Unnecessary statements, especially of matter of description, should be avoided, as a variance would sometimes be fatal; such as describing the local situation of the premises in an action for use and occupation: Wilson v. Clarke, 1 Esp. Rep. 273; Ditchburn v. Spracklin, 5 Esp. Rep. 31, 32; King v. Fraser, East, 348. Several distinct debts

or contracts may be included in one common count; and the plt. will succeed, pro tanto, though he only prove one of such contracts: 2 Saund. 122, n. 2; Rooke v. Rooke, Cro. J. 245. Where the debt is small, or conciseness is an object, this should be attended to.

Several Counts, Joinder of Counts, and Common Conclusion in.] Observations on these points will be found collected, post, "Declaration."

PLEA. As to pleas in general, post, " Pleas." As to pleas in abatement, ante, "Abatement."

When necessary to plead Specially.] If the defence in bar of the action consist of matter which shows the plt. had never any cause of action, the deft. need not plead such matter specially, but may give it in evidence under the general issue, non assumpsit; and he may also, un

der the same plea, give in evidence most matters which go in discharge or release of the deft.'s liability, showing that the plt., at the commencement of the suit, had no subsisting cause of action: 1 Chit. Pl. 419; Brown v. Cornish, 1 Ld. Raym. 217; Paramore v. Johnson, ib. 566. As, if the matter of defence admits such a contract as that stated in the declaration was made, but denies that it is obligatory on the deft., as that another person ought to have been made co-plaintiff, or that deft. was incapacitated from contracting, or that contract was illegal, or that plt. has released it, or altered it, or not performed a condition precedent, or that deft. has performed it, or that it has become illegal or impossible to perform it; such matters may be given in evidence under the general issue: 1 Chit. Pl. 417. See the different titles of defences throughout this work. If the deft. insists that no such contract as that stated in the declaration was in fact made, he must plead the general issue: 1 Chit. Pl. 417. And, in general, matter of defence, which arises after action brought, must be pleaded specially, and cannot be given in evidence under the general issue: Holland v. Jourdine, Holt, 6; Francis v. Crywell, 5 B. & A. 886; 1 D. & R. 546, s. c.; Lee v. Levy, 4 B. & C. 390; 6 D. & R. 475; Page v. Beaver, 4 B. § A. 345.

The deft. may plead specially, either with or without the general issue, any matter which does not amount to the general issue, and which admits that in fact a contract was made, but insists that it was void or voidable, as on account of deft.'s infancy, &c., 1 Chit. Pl. 421; or that it has been discharged by release, &c. See the various instances as to when deft. may plead a special plea under the different titles of defences throughout this work. When deft. may plead specially, it is in general advisable so to do, especially if plt. can or is expected to set up various answers to the defence, which he cannot do under his replication to a special plea; and so, if *deft. relies on matter as mat- [*139] ter of estoppel, he should plead it specially, as in the case of a judgment recovered: post, "Judgment."

The deft. must plead specially some matters of defence; as, alien enemy, deft.'s bankruptcy, tender, set-off, statute of limitations, &c.: 1 Chit. Pl. 439, 420. See the different titles of defence throughout this work.

66

Form of Plea.] The general rules as to pleas here apply: post, "Pleas." The general issue in form denies the undertaking or promise in manner and form, as stated in declaration. The omission of the usual words, or promise," does not render the plea a nullity: 3 D. & R. 621. A plea of not guilty only is bad on demurrer, though aided by verdict: Marsham v. Gibbs, 2 Str. 1022; C. T. Hardw. 173. A plea of nil debet is a mere nullity: Barnes, 257; Brennan v. Egan, 4 Taunt. 165. As to the forms of special pleas, see the various titles of defences throughout this work.

REPLICATION, &c.] The rules as to replication and the subsequent pleadings in general here apply: post, "Replication," "Rejoinder, "Sur-rejoinder," &c. "New Assignment," "Rebutter," &c. To the VOL. I.

21

general issue the plt. can only reply the similiter. As to the replication to a special plea, see the various titles of defences throughout this work.

Precedents.

See form of præcipe, and declaration thereon, and notes, posl, "Præcipe."

The forms as of the commencement and conclusions of declarations in general, and in particular counts, and by and against particular persons, will be found, post, "Declaration;" they will here apply, adding, after the words, "of a plea," the words, "of trespass on the case upon premises," but even this is superfluous: Plead. Ass. 292; Lord v. Houstome, 11 East, 62, 5.

The forms of special counts in assumpsit will be found under the various titles of actions throughout the work: see the notes on ante, 111 to 136.

FORM OF COMMON INDEBITATUS COUNT.

For that whereas (or, if this be not the first count, say and whereas also), the said deft. heretofore, to wit, on the first day of January, 1828 (the precise day is quite immaterial, ante, 137: if this be not the first count, or first common count, or the pll. has not before stated any other day, say, afterwards, to wit, on the day and year aforesaid, or, if there be a day before mentioned, and plt. refers to that day, say, last aforesaid), at Westm. in the county of Middx. (or, at Westm. aforesaid, in the county aforesaid), was indebted to the said plt. in the sum (or, further sum) of £100 (any sufficient sum), of lawful money of Great Britain (or, if such money has already been mentioned, say, like lawful money), for, &c. (the subject matter of the claim must here be stated: see the various precedents to be found in the titles throughout this work), and at his special instance and request, and, being so indebted, he, the said deft., in consideration thereof, afterwards, to wit, on the day and year (last) aforesaid, at Westm. aforesaid, in the county aforesaid, undertook, and then and there faithfully promised the said plt., to pay him the said last-mentioned sum of money, when he, the said deft. should be thereunto afterwards requested.

FORM OF A QUANTUM MERuit.

And whereas also, afterwards, to wit, on the day and year (last) aforesaid, at Westm. aforesaid, in the county aforesaid, in consideration that the said plt., at the like special instance and request of the said deft., had, before that time, &c. (Here insert the subject matter of debt, as in the various precedents throughout the work, and then proceed as follows :) He, the said deft. undertook, and then and there faithfully promised the said plt., to pay him so much money as he therefore reasonably deserved to have, *of the said deft., when he, the said deft., should be thereunto afterwards requested. And the said plt. avers, that he therefore reasonably deserved to have of the said deft. the further sum of £100 (any sufficient sum) of like lawful money, to wit, at Westm. aforesaid, in the county aforesaid; whereof the said deft., afterwards, to wit, on the day and year (last) aforesaid, there had no notice.

[*140]

FORM OF QUANTUM VALEBANT.

(Same as the above quantum meruit to the asterisk, and then proceed as follows:) As the said last-mentioned goods, wares, and merchandise (according to the claim), at the time of the said sale and delivery thereof were reasonably worth, when the said deft, should be thereunto afterwards requested. And the said plt. avers, that the said last-mentioned goods, wares, and merchandises, at the time of the said sale and delivery thereof, were reasonably worth the further sum of £100, of like lawful money, to wit, at Westm. aforesaid, in the county aforesaid; whereof the said deft., afterwards, to wit, on the day and year last afore. said, there had notice.

See the forms relating to the character in which the plt. sues or is sued, post, "Partners," "Executors," "Husband and Wife."