Nelson v. Swan

13 Johns. 483 | N.Y. Sup. Ct. | 1816

Thompson, Ch.J.,

delivered the opinion of the court. This is a special demurrer to the whole declaration, which contains two counts. It was admitted, on the argument,by the plaintiff’s counsel, that the first count could not he supported; but it; was. contended, that the second was good; and the demurrer being to the whole declaration,, the plaintiff was entitled to judgment. .The second count is imperfect, unless helped by reference to the first; and when the demurrer is general, and one count is bad, nothing in that count can be resorted to for the purpose of helping out, and aiding, another count. We must look at the Other count, as if the defective one was struck out of the declaration. Independently of this difficulty, however, the second cannot be supported. The special cause of demurrer is, that the count embraces several causes of action, some of which are too generally stated. It has been decided in this court, in the case of Bailey & Bogert v. Truman, (4 Johns. Rep. 283.,) that the common money-counts may be united in one, in the manner adopted in the declaration before us; and this is conformable to the established practice in England. The decision in this court 'went no farther than as to the money-counts. But. this does not appear to be the limit according to the English practice and precedents j nor can-there be any good reason urged why it should be. In the case io Saunders, (2 Sound. 122. n. 2.,) to which we refer asJ sanctioning the practice, the count foi? goods sold and delivered, is blended with the money-counts, under this general form. The generality of the statement of the several causes of action in one count would be exceptionable, as tending to a surprise upon the defendant, were it not for the practice of calling on the plaintiff for a bill of particulars, by which the defendant is better apprised of the particular cause of action than he would be by a more special count. But, in this case, the count also embraces a cause of action for land sold and conveyed, generally, without any particular designation or description. This is going further than is warranted by any precedents that have fallen under my observation, and further than ought to be sanctioned. Land sold and conveyed, is a good consideration for a promise; but, in such case, according to the precedents, the land sold is particularly and specially described in the declaration; and it is most advisable to adhere to the precedents, and not introduce too great laxity in pleading. The defendant must, accordingly, have judgment upon the demurrer, with leave, [however, to the plaintiff t® amend his declaration.

Judgment accordingly.