Bradley v. Davenport

Bristol, J. The declaration contains two counts; one of which is special; the other a general indebitatus assumpsit for the use and occupation of land. To this declaration there is a special demurrer : and the cause of special demurrer assigned, as respects both, is, that it is not stated in either count, that the land was occupied by the sufferance or permission of the plaintiff, or at the defendant’s special instance and request. The Court are of opinion that the defect is fatal. The question on both counts is nearly the same ; but as the arguments of counsel were directed chiefly in support of the general count, and as the objection made to this, if good, must be equally fatal to the other; it becomes unnecessary to notice particularly the first count in the declaration. The argument pressed on the Court, in support of the general count, is substantially this :-that every debt arising out of a simple contract, is a good consideration for an express promise ; and as the indebtedness of the defendant is alleged, a good consideration for the promise is stated in the declaration. The answer to this argument may be briefly stated. Where the indebtedness constitutes the gist of the action, and not mere inducement, it is not only necessary to state the indebtedness, but the facts out of which the indebtedness arises. To allege that A. was indebted to B., and in consideration thereof pro [4] mised to pay the money due, is bad pleading; and yet it might with equal propriety be said, here is a debt stated, and that debt is a good consideration for an express promise. It has been said, that the only reason why the facts should be stated, out of which the indebtedness originates, is, to shew that the debt is not due by specialty or record, and to enable the defendant to plead in bar, provided another action is brought for the same cause. For this purpose is cited the case of Hibbert v. Courthope, Carth. 276. The case referred to was an action for work and labour done by the plaintiff for the defendant, and at the defendant’s special instance and request; and the objection made to the declaration, was, that it was too general; inasmuch as the kind of work and labour performed, was not stated. It was in reply to this objection, that the Court observed, it was sufficient, if it appeared to the Court, that it was not a debt on record, or specialty, but only on simple contract ; and any general words by which that may be made to appear, are sufficient. The Court, in this case, instead of dispensing with such a statement of facts, as shew a debt to exist, only allow that statement to be general, instead of particular, as had formerly been required. To have allowed of a general allegation of indebtedness, without stating the facts, from which the indebtedness arose, would have been to authorize the introduction of legal inferences and conclusions, without the facts from which they were derived. This would be repugnant to the first principles of good pleading. The conciseness and brevity of the common counts, is the best answer to those who upbraid the profession with unnecessary prolixity. But there are contained in every such count, however concise, sufficient facts, though generally stated, to shew a valid contract, constituting in law, a debt against the defendant; and this consequently forms a good consideration for his promise, whether express or implied. Now, to shew that the defendant was indebted to the plaintiff, it is no more sufficient to aver merely, that the defendant used and occupied the plaintiff’s land, than, in the count for work and labour to aver, that the plaintiff had performed labour for the defendant, without stating that labour to have been performed at the defendant’s request. If the reasonableness of this doctrine should need to be strengthened by authority, such confirmation is fully given by [5] Chitty, vol. 2. pa. 5. and by the case of Hayes v. Warren, 2 Stra. 933. Hosmer, Ch. J. and Peters, J. were of the same opinion. Brainard, J. was absent. Judgment affirmed.