Bailey v. Freeman

4 Johns. 280

• Court: New York Supreme Court
• Decided: May 15, 1809
• Status: Published

Opinion

Per Curiam.

The fourth objection to the first count is fatal. It is essential in every action on a promise, to state a consideration. The defendant is, therefore, entitled to a judgment, but the plaintiffs may amend on payment of costs. In regard to the second count, though some doubts seem to be entertained by some of the bar as to its propriety, on the supposition that the plaintiff might be required to give proof of all the causes of action stated in the count, we think it sufficient, and that he would he entitled to recover, should he prove only one of the contracts. There are several precedents in the English books of similar counts.

(a) The plaintiffs, are, therefore, entitled to judgment on the second count, but the defendant has leave to withdraw the demurrer and plead, on payment of costs.

Judgment accordingly.

See 2 Saund. 122. a. In a recent work on pleadings, by Chitty (p. 377.) it is laid down, on the authority of the case in Saunders and several others, that several distinct debts or contracts may be included in one count of this description, and the plaintiff will succeed, pro tantos though he only prove one of such contracts; for if the defendant be indebted for any one cause, it is a sufficient consideration for the promise (which the law raises) of the defendant to pay the money. Serjeant Williams recommends the practice of including the common counts in one count, as was done in this case, in order to avoid an useless prolixity in the pleadings, and unnecessary expense, 2 Saund. 122 a. n. 2. Cro. Jac. 245. Yelv. 175. 1 Brownl. Ent. 71. 2 Black Rep 910. Bunb. 262. Impey's Mod. Plead. 207. 234. 271.