Rider v. Robbins

A declaration in assumpsit, that the defendant, “ being indebted to the plaintiff in the sum of-, according to the account annexed, in consideration thereof promised," &c., was held sufficient. The declaration originally containing but one count, in which a request and refusal were duly alleged; in a second count, filed by leave of Court, that allegation was omitted; but it was held, that the averment in the first count might be applied to the second, and thus the latter was held good.

Error to reverse a judgment rendered in the Circuit Court of Common Pleas for the County of Plymouth. The aclion was in assumpsit, Robbins being plaintiff, and Rider defendant. The declaration originally contained one count *only, namely, “for that the said Ezra, at, &c., on, &c., being indebted to the plaintiff in the sum of-, according to the account annexed, then and there, in consideration thereof, promised the plaintiff to pay him the same on demand ; yet the said Ezra, though often requested, has never paid the same, but neglects and refuses so to dc.” The account annexed was of several articles of merchandise sold by the plaintiff to the defendant. The second count, which was filed by consent before the trial of the action, was a quantum valebant for the same articles ; but it contained no averment of a demand and refusal. The errors assigned were, that, by the first count, there was no sufficient cause of action set forth ; and that, in the second, the plaintiff had alleged no breach of the promise therein declared on.