Merryman v. Rider

Robinson, J., delivered the opinion of the Court. The declaration in this case contained the following counts: 1st. For goods bargained and sold by the plaintiff to the deceased in his life time. 2d. For work and labor and materials furnished for said deceased in his life time. 3d.

For money found due from said deceased in his life time on account stated. 4th. For money had and received for the use of the plaintiff by said deceased in his life time. Now it will be observed, that the averment “for money payable by the defendant to the plaintiff,” required by the 75th Article of the Code, section 22, clause 2d, to be prefixed to all the common counts, though its insertion in the first count, makes it unnecessary to repeat it, is wholly omitted in this declaration. These words are the gist of the indebitatus counts, and it has been held under the English Common Law Procedure Act, the provisions of which in this respect are almost ¹⁰⁰ identical with the Code, that their omission is fatal on demurrer.

Thus in Place vs. Potts, 8 Exch., 705, the declaration stated “ that the defendants are indebted to the plaintiff for freights, for the conveyance, by the plaintiffs for the defendants, at their request, of goods in the ship Brilliant, and the plaintiff claims,” Ac., Parke, B., said the declaration was bad on general demurrer, and that it ought to have averred that the debt was a money debt, and that it was payable before the commencement of the suit. The objection to the declaration made in support of the demurrer was the same as made in this case, namely, the omission of the words “money payable by the defendants to the plaintiff,” and in Wilkinson vs. Sharland, 10 Ex ch., 724, Pollock, C. B., said the omission of these words was fatal on demurrer. See also Bullen & Leake’s Precedents of Pleadings, 37. But it was supposed that these cases were overruled by Fagg vs. Mudd, 25 E. L. & E. Rep., 224, where it was held that the omission of these words was not fatal to a count “ for money found to be due from the defendant to the plaintiff on accounts stated between them.” The demurrer was overruled in that case, because, said Lord Campbell, C. J., “ the account being stated, and money found to be due, it was