Wallace v. Holmes

Woodbury, J. If the present action were trespass, detinue or replevin, the description of the property, which was attached and returned to Robert Holmes, might be too uncertain. Because in trespass it would be difficult to justify under so general an allegation as “ shop-goods and household furniture ;”(1) in detinue, the specific articles, which are usually recovered, could not be identified ;(2) and in re-plevin the sheriff will be unable to “ make deliverance” of the right articles, unless they are particularized.(3) But in trover a description as general as this has been held to be good after default, or verdict, or general demurrer, (2 Saund. 74, note 1, Taylor vs. Wells); and perhaps it may be good on special demurrer.(4) In assumpsit, however, we think it clear, both on principle and authority, that a description of the consideration may be thus general and be good even on special demurrer. All which need appear in such case is a. sufficient consideration, expressed with “ certainty to a common intent.”(5) As to the sufficiency of this consideration it appears to have been the relinquishment of property to the value of $188 25, which was held by the plaintiff as an indemnity for his demand against Robert Holmes ; and there seems to be no doubt, that the relinquishment of an indemnity to any amount whatever would constitute a good consideration for a promise, Com. Di. “ action on case,” B. 3.—1 Salk. 28, Lawes case.—Hob. 4, 5.— Farmer vs. Stewart et al. ante. As to its being expressed with proper certainty, the allegation, that the property consisted of “ shop-goods and “ household furniture to the value of $188 25,” shows the sufficiency of the consideration to any “ common intent [113] and its sufficiency would hardly be more certain, if the names and number of the articles had been enumerated. (1) 4 B.&P. (2) 1 chitt. Pl. 227. (3) Yelv 13 Com. Di "Pleadwr," C.-1 Chitt Pl. 292. Thus, in Alsope vs. Sytwell (Yelv. 18,) and in Pickard vs. Collels, (Yelv. 56,) which resembled the present case, the description of the consideration was “ the goods attached “ necnon omnia obligat. there being and in Marshall vs. Bi,rkcnshaw.(l) the declaration on a similar promise describes the consideration as “ divers goods, wares, and mer- “ chandize.” Moreover, all know this to be the common form of declarations, when such property, instead of being relinquished by an attaching creditor, has been sold by the owner. The second objection is founded on the supposition, that there ought to be an express averment in the declaration, describing the court from which the writ of attachment issued. In a justification under process such an averment is necessary ;(2) and it may be proper in debt upon judgment. 1 Wils. 255.-8 D. & E. 127. But in assumpsit upon a promise of the kind now in question the description of the process, under which the property was attached, is mere inducement. The gist of the action is the promise made on the relinquishment of the property to the debtor ; and there is here abundant certainty as to the process for an inducement.(3) The court, to which the writ was returnable, is expressly averred, and that judgment upon it was afterwards rendered in the same court in favor of the plaintiff. As no writs are by law returnable and heard in courts, from which they did not issue, the present declaration would in this respect under all the circumstances seetn to be certain enough. If any irregularity actually existed in suing out the process, it was or may be waived by the debtor ; and for aught which appears the process when served gave the plaintiff’ such an interest in the property attached, that a' release of it would be a sufficient consideration for a promise. It is contended, under the third objection, that the plaintiff should have alleged, that his claim against Robert Holmes was just. In actions for escapes, such an averment has been [114] ¡held to be necessary. Peak Ni. P. 65.—4 D. & N. 611.—4 East 455.— 2 Chitt. Pl. 301. (1) Tile authorities, ante. (2) Wales 122. Morse. Jaénes et al. (3) 10 John. 51.—1 s. 2.0 316. (4) 1 N. H, Rep. 246 : (5). Yelv, 168 a. Bat tbe form of action for escapes is debtor case ; and there would not appear to be either a debt or injury without such an averment. In those cases, also, the claim may have been paid, or be altogether unfounded. In the present case, however, the form of action is assumpsit; and the plaintiff need only aver a sufficient consideration and a promise. A consideration might be sufficient if a plaintiff relinquished an attachment made to secure an existing claim, whether eventually a just debt appeared to be doe or not. Because a man has a rffiht to secure a doubtful c’aim or balance by attachment. Bo*. under the facts set out m this declaration. the promise was sucha' to preclude any difficulty cn this point, ft was to pay the plaintiff' culy m the e ⅝ ent of hi- recovery against Reherí Holmes. The plaintiff txpresdy a verm that lie did recover agair.s* said R-Jitr. ⅝800 C8. and that ⅞38. 68 of *hat sum still remain1 unpaid. Hence lie not only avers enough to bring himself within the promise: but to show, on a fur presumption, that hi' claim against Robert Hof mes was jutt. ami that a portion of u is still due. In answer to die fourth objection, if may be rcmaikeá as heretofore, that the judgment is mentioned in this declaration only as a matter of inducement; and hence the averment of prauípaiet per recordara is unnecessary.(1) In a plea of justification under process or in debt on judgment it is otherwise.(£) But in this action the issue could not be n u l t‘d record; and the judgment might possibly be proved by pnroi.íS) The fifth objection is not founded in fact: for the declaration expressly avers a demand. The sixth objection is answered by the oo-f- of Dix vs. Flanders.(4) The promise wa⅛ .-xpre-s : and dm evppi. on which the money became payable, v as a pul he judgment, equaby open to the iii:owkd<e of either pr.r‘y.f5) Tim seventh ob;eciion is not tenah¡e ir ’Lis form of action, The plaintiff alleges a sufficient con'i.deration, u promise and a breach. VThot he dots v h h the money when [115] recovered- is a concern of the former debtor, on whose account it is paid, and does not. affect the liability of the present defendant. The declaration must, therefore, be adjudged good. We should be among the last to encourage wanton or capricious departures from established precedents. The fences of form are often useful to mark out a distinct path for suitors ; to preclude uncertainties in practice ; to oppose the introduction of crude innovations and slovenly errors ; and they are not to be altogether prostrated, unless for the attainment of some great object of substantial justice, which would otherwise be defeated. But those pleadings, which, without any virtual deviation from usage, are sanctioned by principle, cannot be deemed illegal; and to entangle and delay, in the nets of mere form, parties, who thus plead, would savor more of scholastic quibbling than of modern liberality and sound sense. On the one hand, it is the language of the schools, that forms constitute the essence of a thing, “ forma dat esse reion the other hand, it is the rash language of folly and inexperience, that all forms are either useless or oppressive. Truth as well as safety lies between these extremes. Judgment, that the writ is good.