
    Ezra Rider, Plaintiff in Error, versus Lemuel 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.
    
      Eddy, for the plaintiff in error.
    The declaration should, at least, have stated what was the consideration for the promise, as, for goods sold and delivered ; and, without some words showing generally what was contained in the account or schedule, the declaration was insensible, and showed, in fact, no cause of action. The schedule constitutes no part of the declaration. 
    
    To support the assignment of the error in the second count he cited Lawes's Pleading in Assumpsit, 258.
    
      H. Cushman, for the defendant in error,
    cited Chitty on Pleading, 324, 327, 331 ; —1 L. Raym. 284;-5 East, 270;- 1 Wils. 33; — l Saund. 228.
    
      
      
        Kinder & al. vs. Shaw & al., in notis, 2 Mass. Rep. 398.
    
   Parker, C. J.

The errors assigned in this case are not supported. With respect to the first count, it is in a form which has been in use and practice as long as the memory of the oldest practitioner can reach ; and it is too late to question it on nice technical objections. Although a schedule annexed to a writ in replevin or trover is held to make no part of the declaration, yet, in indebitatus assumpsit, it has been uniformly allowed, for more than thirty years, to supply a particular allegation in the body of the declaration.

* With regard to the second error assigned ; if the supposed defect existed, we are not clear that it would not have been cured by the verdict. But the averment at the close of the original declaration may well be applied to both of the counts ; and the authorities show clearly, that one averment of a request and refusal to pay is sufficient for any number of counts in assumpsit.

Judgment affirmed.  