Moore v. . Hobbs
79 N.C. 535
N.C.
1878
Check Treatment
Reade, J.

“ A declaration is a specification in a methodical and legal form of the circumstances which constitute the plaintiff’s cause of action.” . 1 Chitty, Pl. 240. Observe, that it.is not to state that there is a cause of action, but the “ circumstances ” which constitute the cause of action. “ The general requisites or qualities of a declaration are, * * * Second, that it contain a statement of all the facts necessary in point of law to sustain the action, and no more; third, that these circumstances be set forth with certainty and truth.” 1 Chitty, Pl. 244. Observe again, that “all the facts are .to be set forth. If a declaration in debt be upon simple contract, the consideration must be set forth with the other facts. If it be upon a specialty, the specialty must be set forth, and that imports a consideration. Chitty, PI., 362, 363. The form of a declaration on simple contract is as follows: A B,' the plaintiff in this suit * * * com *537 plains of C D, the defendant, in this suit * * * for that, whereas the defendant on — was indebted to the plain-tiffin $— for the price and value of goods then sold and delivered by the plaintiff to the defendant at his request,. &c., or for the price and value of work then done, &c., or' for money lent, &c. Arch. N. P., 297. The form of a declaration on specialty is as follows: — A.B, the plaintiff, &c., complains, &c. "Whereas, the defendant, &c., by his certain writing obligatory sealed with his seal, and now shown to the Court, &c., acknowledged himself to be held and. firmly bound unto the plaintiff in the sum of $ — , &c.,. Arch. N. P., 304. A defect in the declaration appearing on the face of it could be taken advantage of by demurrer.

It is plain therefore that under the former mode of pleading, the declaration in this case is fatally defective. It-states a cause of action, viz., indebtedness: but it states not' one single “ circumstance ” or “ fact ” constituting the cause. But then it is said, “ that all the forms of pleading heretofore existing are abolished.” C. C. P., § 91. True, but still, all form is not abolished, for the same C. C. P., §§ 91,. 92, prescribes, “ that the complaint shall contain a plain and concise statement of the facts constituting the cause of action without unnecessary repetition, and each material allegation shall be distinctly numbered.”

Observe, that in the new, as in the old form, the facts constituting the cause of action must be stated, with this addition in the new over the old, that each material fact shall be separately numbered. The object of the declaration in the old forms was to inform the defendant fully as to the facts, so that he might make his defence both by the proper pleas and by proofs, and that the jury and the Court might see what they had to try and to decide. This was not a matter of mere form, but of substance. And there has been no relaxation of the requisite in the new form, and no alteration from the old, except to require the greater particu *538 larity of separately numbering every material fact. Why require them to be numbered if they are not required to be stated ?

There is not in this case a single fact stated to show whether the complaint is on a simple contract for goods sold and delivered, or for work and labor, or for money lent, or for any like matter, or whether it is upon a bond or other specialty, or whether it be not for some alleged tort. The fault in the complaint seems not to have been inadvertent, for we clearly intimated it when the case was before us heretofore, 77 N. C., 65, and suggested an amendment. When the case was before us heretofore it was upon the demurrer of the defendants, that the Court had no jurisdiction because of the non-residence of the parties. But the fact not appearing upon the face of the complaint, the demurrer was overruled and judgment given below for the plaintiff. We held that there was no error in overruling the demurrer, but that there was error in giving judgment for the plaintiff, because upon overruling a demurrer, the judgment is not for the plaintiff, but respondeat ouster. So that we sent the case back with directions to allow the defendants to answer, if they would, and if-not, there would be judgment for the plaintiff, as for want of an answer. But then we called attention to what might be held to be a defect in the complaint which had not been pointed out by the defendants, but which might nevertheless prevent a judgment for the plaintiff, viz., that no facts sufficient to constitute a cause of action were stated in the complaint, and we suggested that if so, it could be remedied by an amendment, with leave. And now the case is before us upon demurrer to that fault in the complaint which we then suggested, but which was not formally before us for decision. In sustaining the demurrer as we now do, the ordinary course would be to reverse the judgment below which was for the plaintiff, and give judgment here for defendants i *539 but that might work a hardship upon the plaintiff, as that might defeat his right altogether, if he has one, and as we think His Honor must have been misled by what we said in the case before, viz., that if the defendant refused to answer, then there would be judgment for the plaintiff, we will not give the defendant a judgment here now except for the costs; and will remand the case to the end that the plaintiff may move to amend, if so advised, and if leave be had and the amendment made, then the case shall proceed ■as if upon the first filing of the complaint, with leave to the •defendants to plead or demur as they may be advised. If the plaintiff shall not amend, then judgment will be entered below for the defendants as upon a demurrer sustained.

Reversed and remanded ; the plaintiff to pay, and the defendants to recover costs in this Court.

Per Curiam. Judgment accordingly.