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10. IllInois: Rae -v. HuThert, 17 Ill. 572 (1850); Be]-ford v. Woodward, 158 IlL 135, 41 N.E. 1007, 29 L. R.A. 593 (1656); New York: O’Brien v. Young, 95 N.Y. 428, 47 Am.Rep. 64 (1884); Federal: State of

1. In general, on the Account Stated, see Note, 29 L.

itS. (N.S.) 334 (1911).

Sec. 177


ACTION OF INDEBITATUS ASSUMPSIT

361


sit will lie depends on the character of the Judgment. Assumpsit will only lie on a Simple Contract, or a Quasi-Contractual Ob­ligation having the force and effect of a Simple Contract Debt. It will not lie on a Contract under Seal, or on any other Special­ty. A Judgment of a Court of Record, not being a Foreign Court, is not merely evidence of the debt, but is conclusive evidence of it. It is a Specialty, and therefore Indebitatus Assumpsit will not lie.1
It was long ago determined, however, that the Judgment of a Foreign court is merely evidence of the debt, and not conclusive, so that it has only the force of a Simple Con­tract, and therefore Indebitatus Assumpsit may be maintained upon it.’2 The action will also lie on a Domestic Judgment of an Inferior Court Not of Record, since it is not a Specialty.13 Some of the Courts have therefore held that Indebitatus Assumpsit will lie on a Justice’s Judgment; but there are decisions to the contrary, on the ground that even a Justice’s Judgment is conclusive, and therefore a Snecialty.’4
Louisiana v. Mayor, etc., of City of New Orleans, 109 IfS. 255, 3 SOt. 211, 27 LEd. 936 (1883).
11. New York: Andrews v. Montgomery, 19 .Tolujs. (N.Y.) 162, 10 Am.Dee. 213 (1821); Federal: Du ibis v. Seymour, 152 Fed. 600, 81 C.C.A. 590, 11 Ann.Cas. 656, note (1907).
12. English: Hall v. Odher, 11 East 121, 103 Lag, Rep. 949 (1809); Walker v. Witter, I Doug. 4, 99 Eng.Rep. 1 (1778); Buchanan v. Bucker, 1 Camp. 63, 170 Eng.llep. 877 (1807); Sadler v. Robins, 1 Camp. 253, 170 Eng.Rep. 048 (1808); Grant v. Fas­ten, L.R. 13 Q.B.Div. 302 (1883); MeFarlane V. Der­bishire, 8 U.C.Q.B. 12 (1884); Massachusetts: But-trick v. Allen, S Mass, 273, 5 Ani.Dee. 105 (1811); New York: Hubbell v. Coudrey, 5 Johns. (Ni) 132 (1809); Vermont: Boston india Rubber Factory v. lou, 14 Vt. 92 (1842); Federal: Mcllin v. Ilorliek, 31 Fed. (C-C.) 865 (1887).
13. English: Dictum in Williams v. Jones, 13 11. & lv.

031, 153 Eng,Rep. 264 (1845); Federal: Green v.

Fry, Fed.Oas.No.5,758, I Ornneh, CC. 137 ~iS03).
14. New York: Pease v. Howard, 14 Johns. (N.Y.) 479 (1817); James v. Henry, 16 Johns. (N.Y.) 233 (1810); North carolina: Rain v. Hunt, 10 NC. 572 (1525);

It was at one time held in some states that the Judgment of a Court of Record in a Sister State is of the same effect as any other For­eign Judgment—merely evidence of the debt

—-so that Indebitatus Assumpsit will lie upon it;” but, in view of the Full Faith and Credit Provision of the Federal Constitution that a Judgment rendered in One State shall have the same force and validity in Every Other State as in the State in which it was renderedr a Judgment of a Court of Record of One State is conclusive evidence of the debt in Every Other State (except that it may be attacked for fraud or want of jurisdiction), and there­fore a Specialty, and it necessarily follows that it will not support the action of Indehi­tatus Assumpsit. The remedy is Dcbt.’°


Liability imposed by Statute

WI-IERE an Obligation to Pay Money is imposed by Statute, it may be enforced by an action of Indebitatus Assumpsit. Illus­trations of such an Obligation arise where a Statute imposes a duty upon one County or Parish to pay another for money expended


Ohio: Adairs Ad,rir v. Rogers’s Adnir, Wright (Ohio) 428 (1833).
The judgment of a j Is lice of the pen-~ ii, another

state is not a specialty debt of record. Indiana:

Collins V. Modisett, I Blaekf. (Tad.) GO (1820); New

Hampshire: Robinson v. Prescott, 4 N.H. 150 (1828);

Mahurin V. Biekferd, 6 N.H. 567 (1833).
15. New York: Hitchcock V. Aiken, 1 Caines (N.Y.)

460 (1803); Pawli]]g V. W’illson. 13 Johns. (N.Y.) 192

(1816); South Carolina: Lambkin v. Nunee, 2 Rrev.

(S.C.) 99 (1800).


16. Arkansas: Moreltead V. Grisham, 13 Ark, 431 (ISIS) : Kentucky: Garland v. Tucker, 1 11 ibIs (Ky.) 301 (1800); Maine: MeKim v. Odom, 12 Me. 9-f (1835) New York: Andre~vs v. Montgomery. 19 Johns. (N.Y.) 162, 10 Am.Dee. 213 (1821): Cf. Shuru­way v. Stillrnan, C Wend. (N.Y.) 447 (1831); Ver­mont: Boston India Rubber Factory V. Hoit, 14 Vi. 92 (1542). But see Black, A Treatise on the Law of Judgments, Including the Doctrine of lies Jusli­eata, C. IX, §1 853—873 (2d ed., St. Paul 1002).
In some states the Courts have gone even further, and held that the Judgment of a Court of Record in a Sister State is so conclusive that it cannot be at­tacked even for fraud. MeIlac v. Mattoon, 13 Pick. (Mass.) 53 (1832).

362


OFFENSIVE PLEADINGS

Ch. 17

in the support of a pauper, or where a Stat­ute allows an action to recover usury paid, or money lost and paid on a wager. But In­debitatus Assumpsit will not lie if the Statute prescribes some other remedy and impliedly excludes the remedy by Indebitatus Assuinp­sit.’1


IECLAEATION IN INDEBITATUS ASSUMP­SIT—ESSENTIAL ALLEGATIONS:

(I) IN GENERAL
178. The Essential Allegations of a Declara­tion in Indebitatus Assunipsit are:

(I) A Statement of the Executed Con­sideration, or quid pro quo, from which the defendant’s indebtedness arose.



(II) A Promise by the Defendant to Pay

Money.


(III) A Breach of the Promise.

(IV) The Damages.

THE Form of the Declaration in Indebi­tatus (General) Assumpsit is very simple, and needs scarcely any discussion. The chief difficulty is in determining when General As­sumpsit will lie. Instead of stating the con­crete facts of the cause of action, the Corn­


17. flllnois: Board of Sup’rs of Sangamon County v. City of Springfield, 63 111.66(1872); Massachusetts:

Inhabitants of Bath V. Inbabitants of Preeport, 5 Mass. 325 (1809); Watson v. Inhabitants of Cam­bridge, 15 Mass. 286 (1818); Inhabitnnts of Milford v. Commissioner, 144 Mass. 64, 10 NE. 516 (1887); Michigan; Woods v. Ayres, 39 Mieh, 345, 33 Am, Rep. 396 (1878); New York: McCoun v. New York Cent. & H. B. B. Co., 50 N.Y. 176 (1872); Vermont:

Woodsiock v. Town of Hancock, 62 Vt. 348, 19 A. 991 (1890); Federal: Pacific Mail 5. 5. Co. v, Jol­llffe, 2 WalL (U.S.) 450, 17 LEd. 805 (1864).
At Common Law a Penalty given by Statute may be recovered either in Assumpsit or Debt Ewbanks V. President, etc. of Town of Ashley, 36 Ill. 177 (1864).
But, if the Statute prescribes the Form of Action for

Its recovery, the recovery cart be had only in that

form of action. Illinois: Confrey v. Stark, 73 III.

187 (1874); Massachusetts: Peabody v. Hayt, 10

Mass. 36 (1813).
Assumpoit is the proper remedy under a Statute (pro­viding no other remedy) to recover money paid for

intoxicating liquort Friend v. Dunks, 37 Mich. 25

(1877); Id. 39 Mieh. 733 (1878).

mon Counts state only General Conclusions of Law, as that defendant is indebted for money had and received, or some other vague reason. These General Statements do not disclose the exact ground of the liability, or assist in presenting the Issue of Law and Fact on which the case depends. They are convenient in avoiding the danger of a Vari­ance and concealing the real basis of the claim, but violate the true principles and pol­icies of pleading.’8

DECLARATION IN INDEBITATUS AS­SUMPSIT—ESSENTIAL ALLEGATIONS:

(2) STATEMENT OF AN EXECUTED

CONSIDERATION


179. The Declaration must allege an Ex­isting Indebtedness to the plaintiff, based on a receipt of value by him, at his request.
Indebitatvs Assunipsit

AS we have stated previously, in stating

the debt and its cause in the Common Counts in Indebitatus Assumpsit, the plaintiff alleges that the defendant, on a certain day, at a certain place, was indebted for a sum certain, for a Specific Consideration furnished by the plaintiff, with a Statement that the Consider­ation was furnished at the Special Instance and Request of the defendant’9 Time and


18. For cases on the Common Counts, see the I o)low­ing: Alabama: McLeod v. Powe & Smith, 12 Ala. 9

(1847); California: Pike v. Zadig, 171 CaL 273, 152

Pnc. 923 (1915); New Jersey: Cory v. Board of

Chosen Freeholders of Somerset County, 47 N2.L.

181 (1825); Pleading: Sufficiency of the Common

Counts, 4 Calif.L.Rev. 352 (1916).


On the effect of General Declarations, of which the Common Counts in assumpsit are the most familiar, see Simpson, A Possible Solution of the Pleading Problem, 53 liarv.L.Rev. 169, 174—175 (1939).
19. Victors v. Davies, 12 1W. & W. 758, 152 Eng.Iiep.

1405 (1844).


A Declaration in Indebitatus Assumpsit is good on General Demurrer, though it states neither time, place, nor a request to pay. Keyser v. Shafer, 2 Cow. (N.Y.) 437 (1823).
And consequently, in those states where Special Dc­stirrers ard abolished, it would seem that the Al­legatlon of some of these facts would be unneees­

Sec. 179


ACTION OF INDEBITATUS ASSUMPSIT

363


place are in generai immaterial, except that a time must not be laid subsequent to the date when the Cause of Action arose; ‘~° and with regard to place, if the action is brought in a Court of Inferior Jurisdiction, the Dec­laration should allege that the Cause of Ac­tion arose within such ,Jurisdiction.21 The statement of the sum claimed is also, gen­erally, immaterial except that enough must be laid to cover the actual amount, Another requisite is the statement of the Cause of the Debt, as well as the debt itself; and this is both for the information of the defendant, so that he may know what debt is sued on and what defense to make, and in order to identify the subject-matter of the action, so as to enable him to Plead the Recovery in Bar of any subsequent action for the same debt.22 As this Form of Action is founded upon Contract, the cause or consideration of the debt should be stated as having taken place or as having been furnished at the Spe­cial Instance and Request of tile defendant.23
sary, though it is certainly the better practice to allege them. Alabama: IsfcOrary v. Brown, 157 Ala. 515, 50 South. 402 (1909); Illinois: MeEwen V. Morey, 60 IlL 32 (1871).
20. Langer v. Parish, S Serg, & 11. (Pa.) 134 (1822).
21. This is in addition to the statement of the County as a Venue. Massachusetts: Bi-!ggs v. President, etc. of Nantucket Bank, 5 Mass. 96 (1809); New

York: Wetmore v, Baker, 9 Johns. (N.Y.) 307

(1812); Virginia: Thornton v. Smith, 1 Wash. (Va.)

81 (1792).


22. Bibbert v. Courthope, Cartli. 276, 90 Eng.Eep. 764 (1693).
It is not necessary, however, to give a particular de­scription of the work done or goods sold, etc. Lewis

v. Culbertson, 11 Serg. & It. (Pa.) 49, 14 Am.Dce. 607

(1824). See: Michigan: Crane v. Grassnian, 27

Mich. 443 (1873); Federal: Edwards v. Nichols, 3

Day (Conn,) 16, Fed.Cas.No.4,296 UsGS).
25. Alabama: MeGrary -v. Brown, 157 Ala. 518, 50 S.

402 (1909); Connecticut: Canficid v, Merriclr, 11

Conn. 425, 429 (1836); Massachusetts: Massachu­setts Met. Life Ins. Co. v. Green, 185 Mass. 300, 70

N.E. 202 (1904). But compare Somerville v. Grim,

17 W.Va. 803, 810 (1881).


The statement that money was ‘lent” Implies that it was advanced at the request of the defendant But

Quantum Meruit and Quantum Valebant Counts

IN the Quantum Meruit Count the plain­tiff declares that, in Consideration of his has’­ing performed some personal service for the defendant, at his Request, the latter Prom­ised to pay him so much therefor as he rea­sonably deserved, and then states how much he deserves for such service,5


In the Quantum Valebant Count the plain­tiff declares that, in Consideration of his having Sold and Delivered real or personal property to the defendant at his Request, he Promised to pay him so much as the goods or land were reasonably worth, and then states what the value was. There is no neces­sity for using the Value or Quantum Counts rather than the Indebitatus Counts to recover for what one’s goods or services are reasona­bly worth.25
In these Counts it is not sufficient to state merely that the defendant was indebted to the plaintiff in a certain sum, and Promised payment, but it must be shown what was the cause or subject-matter or nature of the debt;
this does not apply to money “paid”. English: Vic­tors v. Davies, 12 M. & W. 758, 152 Eng.Rep. 1405 (1844); West Virginia: Somerville v. Grim, 17 W. Vn. 803, 810 (1881). So of Count for goods sold and delivered. MeEwen v. Mercy, 60 Ill. 32 (1871).
24. Lawes, A Practical Treatise on Pleading in As­sunipsit, C. XV, Of the Counts on a Quantum Meruit, or Quantum Valebant, 504 (Ed. by Story, Boston, 1811); Missouri: Lee v. Ashbrook, 14 Mo. 378, 55 AmDee. 110 (1851); Nebraska: Pareell v. MeComb­er, 11 Neb. 209, 7 N.W. 529, 38 Am.Rep. 366 (1880); New Hampshire: Wadleigh V. Town of Sutton, U N. H. 15, 23 Am.Dec. 704 (1832).
25. Rhode Island: Parker v. Macc,mher, 17 El. 074,

24 A, 404, 10 LEA. 858 (1892); Vermont: Viles v­Barre & M. Traction & Power Co,, 79 Vt. 311, 65 A. 104 (1906).


Recovery of the reasonable value of goods sold or

services rendered may be had under an Indebitatus

Count, so that neither a Quantum Meruit nor a

Quantum Valebat Count is ever necessary. Maine:

Norris v. School District No. I In ‘Windsor, 12 Me.

293, 28 Am.Dec. 182 (1835); Parker v. Macomber, 17

11.1. 674, 24 A. 464, 10 LILA. 858 (1802).

364

OFFENSIVE PLEADINGS

Ch. 17

as that it was for work done, or goods sold, etc.2° But it is not necessary to state the par­ticular description of the work done, or goods sold, etc., for the only reason why the plain­tiff is bound to show in what respect the de­fendant is indebted is that it may appear to the Court that it is not a Specialty.21


Account Stated

IT is usual, in Actions of General Assump­sit, to add, to the Counts above mentioned, a statement of a Cause of Action alleging that the defendant accounted with the plaintiff, and that, upon such accounting, the defend­ant was found to be indebted to the plaintiff in a certain sum.2’ As the Consideration for the Promise is here the statement of the ac­count ascertaining and fixing the sums due which constitute the debt, and not the exist­ence of the debt itself, the original cause of the indebtedness need not be stated.29


26. English: Rooke v. fleck-c, Crojue. 245, 79 Eng. Rep. 210 (1610); Alabama: Maury v. Olive, 2 Stew. (Ma.) 472 (1830); Kentucky: Becuehamp v. Bbs-worth, 3 Bibh. (Ky.) 115 (1813); Maryland: Chand­ler v. State, 5 Bar. & 5. (Md.) 284 (1802).
27. English: }lihbert v. Courthope, C.ai-th. 276, 00
Eng.Rep. 764 (1692); Ambrose v. Roe, Skin. 217, 90

L’ng.Rep. 100 (1684); Story v. AtkIns, 2 Ld.Raym.



1429, 02 Eugitep. 428 (1726); Peunsylvanin: Lewis

~ Culbertson, 11 Serg. & B. (Pa.) 49, 14 Am.Dce. €07

<1824).
28. Eng]isb: Milward ~-. Ingram, 2 Mod. 44, 86 Eng.
P.09. 860 (1726); Trueman y. Hurst, 1 LIt. 42, 99

Eng.Eep. 1232 (1780); Peacock v. Harris, 10 East

104, 103 Eng.Itep. 715 (1808); Knowles v. Miehel, 13

East 249, 104 Eng.Ilep. 360 (1511); Maryland: St:ul­lings v. Cottsehalk, 77 Md. 429, 26 A. 521 (1803).
Recovery on this Count call be only when a certain and ftxed sun is admitted to be dim. Pennsylvania:

Richey v, hathaway, 140 Pa. 207, 24 A. 191 (1892);

Vermont: Warren v, Caryl, 61 Vt. 331, 17 A. 741 (1889),
D. Englisb: Milward v. Ingram, 2 Mod. 44, 80 Eng. Rep. 800 (1726); Massachusetts: Hoyt v. Wilkinson, 10 Pick-. (Mass-) 31 (1839); New York: Montgomerie v. Ivers, 17 Johns, (N.Y.) 38 (1819). And see: Penn­zylvania: Gilson y. Stewart, 7 Watts (Pa.) 100 (1838); Vermont: Cross v. Moore, 23 Vt. 482 (1851).

DECLARATION IN INDEHITATUS AS­

SUMPSIT—ESSENTIAL ALLEGA­



TIONS: (3) THE PROMISE

180. The Promise of the Defendant, though it is an Implied One, must always be alleged.


IT is not intended by this that there must be a detailed statement of the defendant’s Contract, but a brief Allegation that the de­fendant “Promised” or “Agreed” to pay the sum owed or value claimed. This much is held essential to a proper statement of the Cause of Action, as the Declaration might otherwise show the rWeged Consideration to be merely a voluntary or gratuitous act on the part of the plaintiff, for which there could be no recovery.30 It does not make any dif­ference whether the defendant ever made any such Promise, nor is it necessary to prove

it. All that is necessary to prove is a debt, and the law Implies a Promise. Eut some Courts will reverse a case on this technical matter.5


DECLARATION IN INDEBITATUS AS­SUMPSIT—ESSENTIAL ALLEGA­

TIONS: (4) THE BREACH


181. The Breach of the Promise in In­debitatus Assumpslt is the neglect and refusal
50. Massachusetts: Kingsley v. Bill, 0 Mass. 190 (1811); Cooper v. L.sndon, 102 Mass. 58 (1860); Mis­5021,1: Muldi’ow v. Tappan, 6 Mo. 270 (1840); New

York-: Booth v. Farmers’ & Mechanics’ Nat. Bank of Rochester, I Thomp. & C. (Nil.) ‘10 (1800); Cand­ler v. flossiter, 10 Went). (N.Y.) 487 (1833). But see, Clark v, Reed, 12 S’niedcs & M, (Miss.) 554 (1849).


The word “Promised” is riot necessary if an equiva­lent be used, as “undertook” or “agreed.” See:

English: Corbett v. Paekington, 6 B. &C. 268, 108

Eng.flcp. 451 (1827); South Carolina: Wingo v.

Brown, 12 Rich. (S-C.) 270 (1859); Pennsylvania:

Shaw v. Redmond, 11 Serg. & B. (Pa.) 27 (1824);

Virginia: Sextoa v~ Holmes, 3 hunt. (Va.) 566

(1809); Federal: City or Newport News v. Potter,

122 Fed. 321, 58 C.C.A. 483 (1903).


31. Maine: Coffin v. Hall, 100 Me. 126, 75 All. 385
(1909); West Virginia: V/aid v. Diton, 55 W.Va.

191, 49 SE. 918 (1904); Bannister v. Victoria Coal

& Coke Co., 63 W.Va. 502, 61 SE. 338 (1008); Dan­5cr v. Mallouee, 77 W.Va. 26, 86 5.31 595 (1915).

But see, Potomac Laundry Co. v. Miller, 26 App.D.C.

230 (1995) rule or court. Contra: Wheeler v. Wil~

son, 57 Vt. 157 (1884).

Sec. 183

ACTION OF INDEBITATtJS ASSUMPSIT

365


of the defendant to perform it, that is, to pay.

As in Special Assumpsit, it is an essential part of the cause of action, and must in all cases be stated,

THE neglect or refusal of the defendant to fulfill his Promise, whether Express or Im­plied, is always a necessary Allegation in the Declaration, as it is essential to the plaintiff’s right to sue, In form it is usually a brief statement that the defendant has neglected and refused to pay, and still neglects and re­fuses so to do. This is the Common Breach usually Assigned in Actions upon the Com­mon Counts, and a Separate Breach is always Assigned to Each Count, as each is a separate and complete statement of a cause of action?3
DECLARATION IN INDEBITATUS AS­SUMPSIT—ESSENTIAL ALLEGA­

TIONS: (5) THE DAMAGES


182. The Declaration must allege the Dam­ages directly resulting from the Breach by the defendant, and must lay them high enough to cover the actual demand.
THE measure of recovery in this action will obviously be the amount of the indebted­ness due, or the reasonable worth and value of the services rendered or goods or land sold, where no sum was agreed upon; and the Damages must always be laid high enough to cover all the plaintiff expects to prove, as his recovery will be limited to the amount stated.33
STATUS UNDER MODERN CODES,

PRACTICE ACTS AND RULES

OF COURT
183. In spite of the reform under Modern Codes, Practice Acts and Rules of Court, a survey of th,3 development of Indebitatus As-
32. Hawaii: Tong Den v. Hitchcock, 11 Hawaii 270
(1598) New York: Taft v. Brewster, 9 Johns. (N.

1.) 335 (1812); Texas: Helinan v. Cr!swell, 13 Tex.

38 (1882).
33. Liquidated damages for Preach of special Con­tract cannot be recovered under the Common

Counts. Butterfield v. Sellgman, 17 MIch. 95 (1808).

Compare, Sprague v. Morgan, 7 Ala. 952 (1545)

(semble, contra).



sumpsit, covering the period from its origin until now, shows that the action is still operat­ing with its earlier vitality substantially un­impaired.
THE Action of Indebitatus (General) As­sumpsit was in general use in the several states of the United States prior to 1848?~ After 1848, the action remained in vogue. Thus, for example, in the Rhode Jsland case of Parker v. Macomber)°5 decided in 1892, in which the plaintiff brought Indebitatus As­sumpsit for Goods Sold and Delivered, Work and Labor, Money Had and Received, and for Interest, and the Jury returned a Ver­dict for the plaintiff and assessed Damages at $1,072.50, being at a certain rate for 390 weeks, and the defendant prayed for a New Trial, contending, among other things, that the services were performed under an Entire Contract, which had not been completed, the Court denied a New Trial. In so doing, Doug­las, J. declared:
“The questions which are raised by the petition are, whether the plaintiff can re­cover what his services are reasonably worth, notwithstanding the making of the Contract, and, if so, whether this Declara­tion is sufficient without a Count in Quan­tum Meruit to admit evidence of the value of the services, and to sustain a Judgment therefor.
“We cannot doubt that, when this ac­tion was brought, the agreement had been annulled, if it ever had had any validity.
“If the leasehold interest were for a term exceeding one year, the agreement amounted to an attempt to convey an interest in real estate by parol, and was void under the Stat­ute of Frauds.
34. Massachusetts: Jones v. Hoar, 22 Mass. 285

(1827); New York: Gillet, Adm’r. of clemens v.

Maynard, 5 Johns. (N.Y.) 85 (1809); Willson V.

Foree, 6 Johns. (N.Y.) 109 (1810); Feltier v. Sewall.

12 Wend. 386 (1834); Virginia: Brooks v. Scott’s

Executor, 2 Munf. (Va.) 344 (1811).


35. 17 RI. 674, 24 A. 464, 16 LiLA. 858 (1802).

366


OFFENSIVE PLEADINGS

Ch. 17

“In such case, as the defendant refused to continue the arrangement, whether justi­fiably or not, the plaintiff, is entitled to re— cover the value of his services already ren­dered. Lockwood v. Barnes, 3 Hill, N.Y. 128; King v. Welcome, 5 Gray. 41.” ~


In New York case of City of New York v. Fink,31 decided in 1927, the issue was raised as to whether, under the Code, an action would lie against a trespasser to land for the reasonable value of the Use and Occupation thereof? In denying a Motion by the defend­ant, under Rule 112 of the Rules of Civil Prac­tice, for Judgment on the Pleadings, McGold­rick, J. said:

As a Development of the Common Law a party was permitted to bring an Action of Assumpsit and thus avoid the difficulties presented in the Pleading and Proof of Caus­es of Action in Covenant, Debt and the like. The remedy, however, was not extended to a case in which the landlord sought to recov­er compensation for the use of his land, not reserved by deed, until the enactment of statutes (see 11 George II, chap. 19, § 14), in substance re-enacted in our Revised Stat­utes and contained in Section 220 of our Real Property Law. When it is said, there­fore, that to maintain Use and Occupation the conventional relation must exist, and such action cannot be maintained against a trespasser (Prof. Ames “Assumpsit for Use and Occupation,” 2 Harv.L.R. 377; Keener Quasi Contracts, 191, 192), this merely means that the Form of Action characterized as As­sumpsit and based upon the existence of the conventional relation of landlord and tenant could not be maintained against one not bound expressly or impliedly as tenant, or against a trespasser.

“It would seem to follow that the histori­cal reasons which prevented an owner of property from recovering Damages for tres­Sc. Parker v. MaconTher, 17 Ri. 674, 24 at. 4M, 16 L.

BA. 858, 800 (1892).


$1. 130 Misc. 620, 224 N.Y.S. 404.

pass unless he had procured a Judgment [in Ejectment] against the wrongdoer no longer exists for the apparent object of the legisla­tion was not that compensation for trespass could only be had in an action to recover the property or the possession thereof, but to remedy a condition which made it necessary for a plaintiff in Ejectment to institute, after Judgment, a separate proceeding for the col­lection of his Damages.” ~


In view of the Abolition of the Forms of Actions by the Codes, an issue was bound to arise as to whether the summary method of statement of a cause of action, as found in the Action of General Assunipsit, could be used under the Codes. Dean Pomeroy held to the position that in the face of the Code requirement that the Complaint should state the facts in plain and concise language, the practice of using the Common Counts in In­debitatus Assumpsit violated one of the fun­damental objectives of the Codes.~ “But” said Judge Clark, “the Common Counts were apparently too well and favorably known and too convenient a form of pleading to suc­cumb to this strenuous attack, for in prob­ably all Jurisdictions the use of the Common Counts, at least for an indebtedness incurred with the defendant’s consent, is well set­tled.” 40
Judge Clark’s view finds confirmation in the New York case of Maxherntan Co. Inc. v. Aiper)’ decided in 1924. The Complaint, which was in the form of a Common Count in Indebitatus Assumpsit, and sought to re­cover the value of goods alleged to have been sold and delivered to the defendants at their
38. City of New York v. Finhi, 130 Misc. 620, 621,

224 N.Y.S. 404, 406 (1927).
39. Pomeroy, Code Remedies, ~ 436—435 Common counts Under the Codes, 660—676 (5th cci. by car­rington, Boston, 1929).
40. Clark, Handbook of the Law of Code Pleading, c. V, The Complaint, 46, The common Counts, 290 (2d ed. St. Paul, 1947).
41. 210 App.Div. 380 (1924).

Sec. 183


ACTION OF INDEBITATUS ASSUMPSIT

367


special instance and request, was held suff i­cient on Motion by the defendants for Judg­ment on the Pleadings, even though a Bill of Particulars showed that the defendants had secured the goods from third persons on an alleged purchase, but with knowledge that the third persons had no title to the goods. Said the Court:

“While it seems to me that every Com­plaint should state facts giving rise to a Cause of Action, complaints in the Common-Law Form have been sustained since the en­actment of the Civil Practice Act. Such be­ing the case, I cannot distinguish the Com­plaint in the case at Bar, supported as it is by the Bill of Particulars, from the Com­plaints in numerous other adjudicated cases.” 42


Finally, in the Federal case of Stone v. White,43 decided in 1937, in which the plain­tiff brought a statutory action for a refund
42- Maxherman Co. Inc. v. Alper, 210 App.Div. 380,

392 (1024).


43. 301 U.S. 532, 57 S.Ct. 851, 81 LEd. 1265 (1937).

of taxes erroneously collected, the Supreme Court of the United States sustained the plaintiff, Mr. Justice Stone observing:

“The action, brought to recover a tax er­roneously paid, although an action at law, is equitable in its function. It is the lineal successor of the Common Count in Indebita­fits Assumpsit for Money Had and Received. Originally an action for the recovery of debt, favored because more convenient and flexible than the Common Law Action of Debt, it has been gradually expanded as a medium for recovery -upon every Form of Quasi-Contractual Obligation in which the duty to pay money is Imposed by Law, inde­pendently of Contract, Express or Implied in Fact.” 41
It thus appears that the Common-Law Ac­tion of Indebitatus (General) Assumpsit is still operating with its earlier vitality sub­stantially unimpaired, despite our Modern Codes, Practice Acts and Rules of Court.

44. Stone V. White, 301 U.S. 532, 534, 57 S.Ct. 851, 81

L.EU. 1265 (1937).

PART FOUR


DEFENSIVE PLEADINGS

CHAPTER 18

MOTIONS OF DEFENDANT AFTER THE DECLARATION

AND BEFORE THE PLEA

Sec.

Demand of Oyer.



Views, Aid-Prayer and Voucher to Warranty.

Imparlanee.

Motion for a Bill of Particulars.

Status Under Model-n Codes, Practice Acts and Rules of Court.



DEMAND OF OYEIZ’
184. The Demand of Oyer is the Assertion of the Right of a Patty to hear read (Oyer), or, in Modern Practice, to inspect, a deed of which Profert is made by the Other Party in his Pleading.
IF the Declaration contained Profert of an Instrument under Seal, upon which the plaintiff grounded his Right of Action, the first steps of the defendant, after its receipt, was a Demand of Oyer; that is, the Right to
1. In general, on the subject of Demand of Os-er, see:
Treatises: Perry, Common Law Pleading: Its His­tory and Principles, e. VI!, Of the Proceedings in an Action, from its Commencement to its Termination, 185—187 (Boston, 1897); Stephen, A Treatisc on the Principles of Pleading In civil Actions, c. II, Of the Proceedings in an Action, from its Commencement to its Termination, 100—104 (3rd Am. ed. by Tyler, Washington, B. C. 1898); Martin, Civil Procedure at Common Law, c. VIII, Motions of Defendant After Declaration and Before Plea, Art. I, ~ 231, Demand of Oyer, 187—188 (St Paul, 1905); Shipman, Hand­book of Common Law Pleading, c. XVIII, Rules as to Alleging Place, Time, Title and Other Common Matters ~ 289, Demand of Oyer, 482, (SM ed. by Bal­lantino, St. Paul, 1023).

have the Instrument under Seal read, or in Modem Practice, to inspect it before Trial.2 The opposite party is required to afford this inspection, either by permitting an inspec­tion of the Instrument itself, or by showing or serving a copy. It was necessary to have the Instrument read in Open Court, where the defendant desired to ascertain the au­thenticity of the Instrument, or to make use by Demurrer or Plea of such portions of the Document as were not set forth in the Dee­laration. The effect of granting Oyer was to make the Instrument under Seal a Part of the Record. And the Right of Oyer existed in all the Common-Law Actions, whether Mixed, Personal or Real, and by its exercise,


2. Rand v. Rand, 4 N.H. 267, 278 (1828); Judge of Probate v. Merrill, 6 N.H. 256 (1833).
The right to crave Oyer of Papers mentioned in plead­ing applies only to Specialties and to Letters of Probate and Administration, not to other writings. It only applies to a deed when the party pleading relIes upon the direct and Intrinsic operation of the deed, Smith r. Wolslofer, 110 Va. 247, 89 SE. 115 (1916).

184.


185.

186.


187.

188.


368

Sec. 184


AFTER TIlE DECLARATION AND BEFORE THE PLEA

369


the defendant was relieved from pleading un­til it was granted. It was also demandable in response to Profert made in any pleading subsequent to the Declaration?
When a Deed is pleaded with Profert, it is supposed to remain in Court all the Term in which it is pleaded, but no longer, unless the opposite pa?ty during that Term plead in de­nial of the Deed, in which case it is sup­posed to remain in Court till the Action is determined. Hence, it is a Rule that Oyer cannot be demanded in a subsequent Term to that in which profert is made.4
A party having a Right to Demand Oyer is yet not obliged, in all cases, to exercise that right; nor is he obliged in all cases, after demanding it, to notice it in the plead­ing he afterwards files or delivers. Some­times, however, he is obliged to do both, namely, where he has occasion to found his answer upon any matter contained in the Deed of which Profert is made, and not set
3. Martin, Civil Procedure at Common Law, e. Vur,

Motions of Defendant After Declaration and Before

Plea, Art. I, Section 231, Demand of Os-er, 187 (St.

Paul, 1905).


Oyer could only be demanded where Profcrt is made. Thus in an action on a bond conditioned for per­formance of the covenant in another deed, the de­fendant cannot crave Oyer of such deed, but must himself plead it with a Profert. Perry, Common-Law Pleading: Its History and Principles, c. VII, Of the Proceedings in an Action, from its Corn­Inencement to its Termination, ISO, note 2 (Boston, 1897).
4. Stephen, A Treatise en the Principles of Pleading in Clvii Actions, c. 1, Of the Proceedings in an Ac­tion, from its Commenëen,ent to its Termiaation, 102 (3rd Am. ed. by Tyler, Washington, D. C. 1893).
According to the settled Conunon-Law Rule of Prac­tice in this State, the same not having been abro­gated or altered by statute, Oyer of a bond de­clared on cannot be craved after the First Term succeeding the final proceeding at rules, or after the defendant has- pleaded, or a Rule to Plead has ex­pired, as thereafter presumably the bond is not in Court. County Court of Erooke County v. United States Fidelity & Guaranty Co., ST W.V. 504. 105 SE. 787 (1021).
Os-er must precede defensive matter whether it be by Demurrer or Plea, Id.

forth by his adversary. In such cases the only admissible method of making such mat­ter appear to the Court is to Demand Oyer, and from the copy given, set forth the whole deed verbatim in his pleading.5


In Pleading Performance, for example, of the condition of a Bond, where, as is gener­ally the case, the plaintiff in his Declaration has stated nothing but the Bond itself, with­out the condition, it is essential for the de­fendant to Demand Oyer of the condition and then set it forth.6 And in pleading Per­formance of Matters contained in a Collat­eral Instrument, it is necessary not only to do this, but it is also essential to set forth and make Profert of the whole substance of the Collateral Instrument; otherwise it would not appear that the Instrument did not stipulate for the Performance of nega­tive or disjunctive matters; and, in that case, the General Plea of Performance of the Matters therein contained, as shown above, would be improper.
According to Martin, Oyer was not de­mandable of a Record Recognizance, Private Act of Parliament, Letters Patent, Agree­ment, Note, or other Instrument not Under Seal. It was anciently rllowed of the Orig­
5. Stibbs V. Clougli, 1 Str. 227, 93 Eng.flcp. 487 (3720).
Where the Declaratioa contains a Profert of the note sued on, and Oyer reqnested by the defendant is granted, the defendant may at his option, either De­mur or Pleat], treating the tote as incorporated in the Declaration, Waterbous.- v. Sterchi Bros. Fur­niture Co., 139 Tcnn. 117, 201 SW. 150 (1918).
The granting of Oyi’r oper:’s to make the inst ‘a­ment in question a part of I he preceding plending.

Illinois: National Council of Knights & Ladie;: of

Security v. Hibernian BaOitig Assu., 137 1ll.App.

175 (1903) Maryland: State, to Use of Kelley v.

Wilson, 107 Md. 120, 68 A. 600, 126 Am.St.Rop. 370

(190S); West Virginia: Riley v. Yost, 58 W.Va. 213,

52 SE. 40, 1 L.R.A. (N.S.) 777 (1905), holding that

Profert alone does not make a writing a part of the

Declaration. . -
6. Lord Arliagton v. Merricke, 2 Wrns. Saund. 409, note 2, 85 Eng.Rep. 1218 (1672).
7. Earl of Korry v. Baxter, 4 East 340, 102 Eng.Rep.

861 (1803).

370

DEFENSIVE PLEADINGS

CE is


inal Writ, in order to enable the defendant to Demur or Plead in Abatement for any defect or Variance between the Writ and the Dec­laration; but that practice was abolished by Rule of Court, and the plaintiff was permit­ted to proceed as if no Demand for Oyer of the Writ had been made.8
Demand of Over, and getting Forth Deed in Plea
FORM OF PLEA TO TilE DECLARATION
(Title of Court and Cause)
And the said C. D., defendant in the above-mentioned action, by X. Y., his attorney, comes and defends the wrong and injury when, etc., and craves Oyer of the said writ­ing obligatory, and it is read to him, etc. He also craves Oyer of the condition of the said writing obligatory, and it is read to him in these words: Whereas, (here the condition of the bond, which shall be supposed to be for payment of one hundred dollars on a cer­tain day, is set forth verbatim); which, be­ing read and heard, the defendant says that the plaintiff ought not to have or maintain his aforesaid action against him, because he says that he, the said defendant, on the said

day of , in the year aforesaid in the said writing obligatory mentioned, paid to the plaintiff the said sum of one hun­dred dollars in the said condition mentioned, together with all interest then due thereon, according to the form and effect of the said condition, to wit, at aforesaid, in the county aforesaid. And this the defendant is ready to verify. Wherefore he prays judg­ment if the plaintiff ought to have or main­tain his aforesaid action against him.


SHIPMAN, Handbook of Common-Law Pleading, c. xvrri, Rules as to Alleging Place, Time, Title, and Other Common Matters, §
S. Martin, Civil Procedure at Common Law, c. VIII,

Motions of Defendant After Declaration and Before

Plea, Art. 1, 231, Demand of Oyer, 181, 198 (St.

Paul, 1005).

289, Demand of Oyer, 484 (3rd ed. by Ballan­tine, St. Paul, 1923).
VIEWS, AID-PRAYER AND VOUCHER

TO WARRANTY
185. Preliminary to making a Defense in the Ancient Real Actions, a defendant might seek a View of the Land to better formulate his Defense, an Aid-Prayer, or a call for as­sistance in pleading, and a Voucher to War­ranty, or a call to some other person to answer the action.
Views, Aid-Prayer and Voucher to Warranty IN the Ancient Real Actions, now obso­lete to all practical intents and purposes, there were certain motions available to the defendant as a preliminary to making his Defense. A mere enumeration and defini­tion of these early procedural devices will suffice.
In Suits by a Demandant to recover land, the tenant, in certain of the Real Actions was permitted to Demand a View of the Land in dispute. The purposes of such Demand was that he might know with some certainty what specific land the plaintiff sought to re cover. Such knowledge enabled him to prop­erly shape his Defense.°
Where the tenant felt that his own estate was weak, he might, as was said Pray in Aid or call for the assistance of another to assist him in pleading. Such a motion might be made by the life tenant, asking that the own­er of the inheritance in reversion or in re­naainder be joined with him, or that he should assist in defending the title.’°
9. Booth, The Nature and Practice of Real Actions, e. XV, Of View, 37-41 (1st Am. Cd. by Anthon, New York, 1808); Jackson, A. Treatise on the Pleadings and Practice in Real Actions, c. 1, 0? Real Actions In General, 14 (Boston, 1828); 4 Minor, Institutes of Common and Statute Law, 607 (Richmond, 1891—9~D.
tO. Booth, The Nature and Practice of Real Actions, c. XVIII, Of Aid Praler, 59-84 fist Am. Ed. by An­thon, New York, 1808); Jackson, A Treatise on Pleadings and Praetice in Real Aetiono, e. IV, Pleas

in Bar, to Writs of Entry on Disselsin, ~ VIII, Of

Aid, and ReceIpt, 185 (Boston, 1828); 4 MInor, Insti­

Sec. 186

AFTER TIlE DECLARATION AND BEFORE TIlE PLEA

371


By Voucher to Warranty is meant the call­ing in of some person to respond to the Ac­tion, who has warranted the title to the ten­ant who has been sued. If and when the Vouchee put in an appearance, he was sub­stituted as the defendant in place of the Vouching Tenant.”

IMPARLANCE
186. After the plaintiff had filed his IJecla­ration, the defendant was entitled to time with­in which he might confer with his Adversary, with a view to an amicable settlement. The delay thus permitted was called an Imparlance, and the word Impariance came to be applied to the time given to either party in responding to his adversary’s pleading.
AFTER the defendant put in an Appear­ance, he was entitled to the indulgence of the Court, to some delay, before responding to the Declaration. This privilege was known as an Imparlance, taken from the French “parler”, meaning to speak. Martin says that in the Primitive or Oral Period of Pleading, it signified a Jeave to confer with the opposite party, with a view to an amica­ble settlement of the controversy.’2 Jn order to accomplish this end time was required, and, as a result, the word itself came to rep­resent the time given by the Court to either Party to respond to the pleading of his op­ponent.’3 Imparlances were of Three Kinds:
tutes of Common and Statute Law, 608 (Richmond, 1891—95).
~1. Booth, The Nature and Practice of Real Actions,

C XVII, Of Voucher, 42—58 (1st Am. ed. by Anthon,



New York, 1808); Jackson, A Treatise on the

Pleadings and Practice in Real Actions, 14 (Boston,

1828); 4 Minor, Institutes of Common and Statute

Law, 608 (Richmond, 1891—95).


it Civil Procedure at Common Law, c. VIII, Mo­tions of Defendant After Declaration and Before Plea, Art. IV, 234, Impai-lance, 190 (St. Paul, 1905).
‘3- 1 Tida, The Practice or the Court of ICing’s Bench in Personal Actions, c. XIX, Of Imparlance, and Time for Pleading, &c, 417 (1st Am. ed. Phila­delplsia, 1807),

(1) General; (2) Special: and (3) General Special.”


A Genera! Imparlance is a delay granted by the Court in response to a General Prayer for leave to imparl, without the saving of any exceptions. If leave was granted, the party obtaining it could plead only in Bar of the Action; he could plead neither in Abate­ment, nor to the Jurisdiction of the Court. He was also precluded from pleading a Ten­der, claim of Conusance, or Demanding Oyer of a Deed. According to Martin, this Tm-parlance, which was customarily granted, came to be entered by the attorneys as a mat­ter of course, and operated as a Continuance of the Cause to the Next Term?5
A Special Imparlance was granted in re­sponse to a prayer for an Imparlance which reserved the right to make Dilatory Pleas in Abatement to the Writ, Bill, or Count, but not to the Jurisdiction of the Court, unless the Pleas were grounded on a personal priv­ilege.’° Such an Imparlance was granted only by leave of the Court of King’s Bench, or by the Court or Prothonotaries in the Court of Common Pleas, and its effect was to extend the time for pleading to some day during the same Term or to the first four days of the next Term.17
A General Special Imparlance was distin­guished from the foregoing Imparlances, in that it secured to the applicant the right to make any exceptions to the Bill, Declaration or Writ. It was available only by leave of Court, and it operated as a Continuance in the same manner as in Special Imparlances.
The effect of Imparlances was generally to extend the time of pleading to the next Term, or some later Term. The Uniformity of Proc­
14. Martin, Civil Procedure at Common Law, c. VIII, Motions of Defendant After Declaration and Before Plea, Art. IV, 234, Imparlance, 190 (St. Paul, 1905).

15. IbId.


IS. Id. at 191.

17. Ibid.

372


DEFENSIVE PLEADINGS

Ch. is

ess Act of 1832,~~ was construed by a Confer­ence of Judges as impliedly annulling Impar­lances in all Personal Actions. And Regu­lation 2 of the Hilary Rules of 4 Wm. W,’° practically abolished Entries of Imparlances on Court Rolls, and prohibited the entry of Continuances by way of Impariances.


MOTION FOR A BILL OF PARTICULARS
187. Where the plaintiff filed a Declaration containing General Allegations, which operated to expand the Scope of the Evidence which he night offer in Proof thereof, and the defendant

desired to compel the plaintiff to be More Specific, he moved for a 8111 of Particulars.


Bills of Pai’ticulars 20

ASSUMING the plaintiff has filed a Dec­laration in a Common Law Action which contains a General Allegation, how could the defendant compel the plaintiff to make his General Charge specific? The answer is


Ia. 2 Wm. IV, C. 30, § fl, 72 Statutes at Largc 118 (1322).
19. The relevant part of this regulation is set out in 3 Chitty, Practice of the Law, 701 (Pliiladel­phia. 1830).
~O. In general, on the nature and scope of the Bill of Particulars at Common Law and under Modern Codes, Practice Acts and Rules of Courts, see:
Articles: Wood, Bills of Particulars in Actions Based Upon Negligence, 49 Cent.L.J. 362 (1800); Laudruru, DUls of Particulars in Actions Based on Negligence, 50 Cont.L2. 3134 (1000); Caskey & Young, The Bill of Particulars—A Brief for the Defendant, 27 Va. LEer. 472 (1941); Simpson, A Possible Solution to the l’lcacling Problem, 53 llarv.L.Rev. 1139 (1930); Van Hook, The Bill of Particulars in Illinois, 19 I1l.L.Bev. 315 (3925); Loth, Pleadings and Motions, 29 Iowa L.ltev, 23 (1043).
Comments: Pleading—Construction of Supreme Court Rule as to Bill of Particulars, 20 lll.L.Eev. ITO (1025); Necessity of Answer to Allegations of Bill of Particulars, 2 Fed.Rulos Sen. 042 (Chicago 1039); MotIon for Bill of Particulars ‘to Prepare for Trial,” 3 Fed.Rules Sen. 681 (Chicago 11140);

Procedure: Federal Practice: Pleadings: Beme­dies 10 clarify the Complaint: O’Donnell v. Joliet & Eastern By. Co., 338 U.S. 384 (1949), 35 Cornell L.Q. 888 (1950).


Annotation: Effect of Bill of Particular5 on floof, S

AL.I1, 550 (1920).

that he might accomplish this end by moving for a Bill of Particulars. The Procedural Device known as a Bill of Particulars enabled a defendant to ascertain the details of the plaintiff’s claim. The mere naming of this Device raises two questions; one, as to its Origin, two, as to its Scope and Application.
As to its Origin, it may be said that its de­velopment was late in point of time. No satisfactory explanation of this has been given, but it is surmised that the Origin of the Bill of Particulars is connected with the fact that the early Common Law employed a System of Oral Pleading, which, unlike Mod­ern Pleading, was conducted in Open Court in advance of the Triai by the Parties or their Counsel by word of mouth. Since the Pleading took place Orally in the presence of the Court, the Judge could direct each Stage of the Pleadings and compel the Parties to reach an Issue on which both parties were prepared to stand.
Thus, to illustrate, let us suppose that A, in stating his case, alleged that B took his horse, whereupon B inquired, what horse? Thereupon, the Judge required A to specify what horse, to wit, a black horse, with a white forefront foot. The plaintiff’s Allega­tion having been made Specific, the defend­ant B might object that A’s case was insuffi­cient in Law, he might deny the plaintiff’s charge, or he might seek to avoid the alleged liability by admitting the taking of the horse, and then offer the excuse that he took the horse under an Execution. Assuming B ad­mitted the taking and offered the excuse that he took the horse under an Execution, the Judge could turn to the plaintiff, A, and say, how about this? If A traversed B’s Plea, an Issue of Fact was raised as to whether B took the horse in Execution; if A Demurred to B’s Plea, an Issue of Law was raised as to whether the taking by Execution was a legal­ly sufficient excuse. At each stage of this Oral Altercation, during the early Develop­mental Period of Pleading, the Court was

Sec. 187


AFTER THE DECLARATION AND BEFORE THE PLEA

0~70

no

available to rule at once as to the validity of the plaintiff’s Statement of his Cause of Ac­tion or the defendant’s Statement of his De­fence. Thus, if the plaintiff’s Allegation was too general, and the defendant objected, the Court could compel the plaintiff then and there to make his Declaration more specific, and so, likewise, the Court could compel the defendant to make his Defence more specific if the defendant was too general in setting forth his Defence. By permitting the Par­ties to restate their positions to meet with the Court’s ideas, by a process of free Amendment, the Parties were directed in the development of an Issue of Fact or of Law which fairly presented the ground upon which the Parties were prepared to conduct their part of the action. If the Pleadings terminated in an Issue of Law, the Trial was heard by the Court; if they ended in an Issue of Fact, the Trial was had according to some one of the established ModS of Trial. Whether the Issue was one of Law or of Fact, the intervention of a Bill of Particulars was not necessary to bring the parties to Issue or to Judgment.
But the whole picture changed when Liti­gation in Person with the Pleader serving as his own mouthpiece was changed to Liti­gation by Attorney, who, according to the practice of the Court, was now required to commit his instructions to writing. So re­duced to writing, the Prothonotary, an Offi­cer of the Court, recorded them on a Parch­ment Roll.2’ It is not known when the plead­ing was first required to be written, but Holdsworth suggests a ease which arose dur­ing the Reign of Henry VI (1422—1461) as in­volving “perhaps the first and certainly an early mention of a ‘paper’ pleading.” 22 The first departure probably took place when the Parties or their Counsel Entered the Pro-
21. 3 Ilo1ds~vortli, History of English Law, e. VI, Pro­ced,,ro and Pleading, 043—644 (4th ed. London 1035).

ceedings on the Roll,23 but in time this gave way to the later practice of putting the Pleadings in Writing at once. Whatever the reason for this transition, the change had a profound effect upon the Issue-Making Func­lion of Pleading. According to Simpson,24 “Technicality developed; ease of Amendment disappeared; most important of all, the Pleading Stage of a Common-Law cause ceased to be conducted in the presence of the Court and became a matter for the Parties and their Lawyers alone except where the Court’s decision on the issues as developed between unsupervised counsel was required.”


Thus, reverting to our hypothetical case, suppose that A under the new regime, files a Written Declaration containing a General Allegation that B took his horse. B wants to know what horse? Since the parties are no longer pleading Orally before an Open Court, the question naturally arose as to how B could compel A to make his General Al­legation more specific? It was this predica­ment which the defendant found himself in, which gave rise to the demand for the devel­opment of some form of procedural device by which he could compel the plaintiff to make a General Charge in his Declaration specific.
And the procedural device developed to meet this situation came to be known as a Bill of Particulars. Apparently it made its first appearance in criminal prosecutions, such as an indictment for common barratry 25 and in legislative divorce cases.2°
Whether the Bill of Particulars was in any way affected by the Statute of 1731 27 re­
23. Id. at 042-043.
24. See article by Simpson, A Possible Solution of the Pleading Problem, 53 Harv.L.Itev. 169, 173 (1939).
2~. See ICing v. Grove, 5 Mod, 15, 87 Eng.Rep. 493 (1694), involving an Indictment for common Bar­ratry.
SC. Duchess of Norfolk’s Case, 12 Bow.St.Tr. 883, 889 (1692).

:2L Id. at 040.

St 4 Ceo. If, c. 26, 16 Statutes at Large 248.

374

DEFENSIVE PLEADINGS

Cli. 18

quiring the Pleadings to be in the English language is not clear, but shortly thereafter in 1763, in the case of Le Breton v. Braham,28 in which the defendant in an Action of As­sumpsit offered to pay the plaintiff’s claim when ascertained, Lord Mansfield granted a Bill of Particulars. And Tidd29 observed that where it appeared by reference to the Bill of Particulars that some Counts were superfluous, the Court would expunge the superfluous Counts.3°


By 1802, as illustrated by the case of Gel­lett v. Thompson,3the right of a defendant to Demand a Bill of Particulars, when the Declaration contained a General Allegation, had been firmly established. But as late as 1817, Chief Justice Gibbs, in Lovelock v. Cheveley,32 referred to the practice of grant­ing Bills of Particular as “almost a new sys­tem within the recollection of many of us.” °
It became the rule that in Actions of Indeb­itatus Assumpsit or in the Action of Debt for goods sold and delivered or work arid labor done, when the Declaration failed to disclose the particulars of the demand, as was usually the case, the defendant’s attorney might take out a Summons before a Judge requiring the plaintiff’s attorney to show cause why he should not deliver to the defendant’s attor­ney in writing the particulars of the plain­tiff’s demand, for which the action was brought, and why, in the meantime, all pro­ceedings should not be stayed.34 Apparently such a rule to show cause could be taken out
28. 3 Burr. 1359, 97 Eng.flep. 889 (1763).
CD. Tidd, The Practice of the Court of King’s Bench in Personal Actions (Dublin 1796).

30. Id. at 108.



“- 3 B. & P. 240, 127 Eng.flep. 136 (1802).

32 lIolt 552, 171 Eng.Bep. 337.



33. Loveloek v, Ghcveley, Bolt 552, 553, 171 tng.Iiep.

331 (1817).
34. Martin, Civil Procedure at Common Law, c. VIII,

Motions of Defendant After Declaration and Before

Plea, Art. U, § 232, Demallu of Particulars, 188 (St

Paul, 1905).

before appearance in both King’s Bench and Common Pleas, so that the defendant might be advised of the full details of the demand, in order that he might pay it, if he so desired. In general, however, the rule was taken out after Appearance and the filing of the Dec­laration, but before the Plea.
Once the Order for a Bill of Particulars had been granted, the plaintiff was required to deliver in writing a particular account of the items in the demand, with an explanation of how and when it arose. And where there has been an Account Current, both the credits and debits should be shown. And, of course, after the receipt of the particulars, the defendant once again was given time within which to plead, such time being regu­lated according to the Rules of the Court in which the case was pending.
In the Actions of Covenant, Debt on Ar­ticles of Agreement, and Special Assumpsit, or in Actions on Matters of Record, accord­ing to Martin,35 an Order for Particulars did not seem necessary.
In Tort Actions, as the wrong complained of was usually stated in the Declaration with some certainty, an Order for Particulars was not often demanded; it might be, however, when the Nature of the Tort was of such a character as to make such an Order neces­sary and proper.3° And, of course, where the Bill delivered was defective in that it failed to make full disclosure, a further Bill of Par­ticulars might be obtained by Order of the Court.
At Common Law, the plaintiff was entitled, at the Replication Stage ot’ Pleading, to an Order for a Bill of Particulars in the specific instance where the defendant entered a Plea of Set-Off for goods sold.3~
35- Id. at 189.
$6. Tilto~ v. Beecher, 59 N.Y. 176 (1874).
37. MartIn, Civil Procedure at Common Law, e. VIII,

Motions of Defendant After Declaration and Before

Plea, Art, II, § 232, Demand of Particulars, 189

(St. Pan!, 1005).

Sec. 188

AFTER THE DECLARATiON AND BEFORE THE PLEA

375


If a Bill of Particulars was delivered by the plaintiff, it was incorporated into the Decla­ration containing the Cause of Action upon which it rested, and the effect was to exclude at the Trial the submission of any evidence outside of the particulars delivered. The effect was the same as to Pleas, where, by Statute, the Right to Demand Particulars has been extended to plaintiff s.35
STATUS UNDER MODERN CODES,

PRACTICE ACTS AND RULES

OP COURT

188. The Demand of Oyer and the Bill of

Particulars continue to function and serve a useful purpose. On the other hand, the Tm-parlance, Views, Aid-Prayer, and Voucher of Warranty have ceased to function.
OF’ the Six Procedural Devices which came After the Declaration and Before the Plea, four have become almost wholly obso­lete, while two retain considerable vitality. The Irnparlance, Views, Aid-Prayer, and Voucher of Warranty, as previously indi­cated, have ceased to function, the Impar­lance, by a process of construction, having been largely nullified~ by the Uniformity of Process Act and by the Hilary Rules.4°
Demand of Dyer

BUT Demand of Oyer and the Bill of Par­ticulars, we still have with us. Thus, taking


3~. Dixon v. Swenson, 101 N.J.L, 22, 127 A. 501 (1925).

1’lly a Regulation of Trinity Term, 1831, the plaintiff, in actions containing Counts in Indebitatus As­sumpsit or Debt on Simple Contract, was required to deliver full particulars of his demand under those Counts where this could be comprised within three folios, and if it could not be comprised in three folios, then a statement of the nature of his claim and balance due as may be comprised within that number of folios, without any Order to that effect.” Martin, Civil Procedure at Common Law, c. VIII, Motions of Defendant After Declaration and Before Plea, Art, II, 232, Demand of
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