
    Bradley against Davenport :
    IN error.
    In assumpsit for the use and occupation of land, the plaintiff must aver, that the land was occupied, by permission of the plaintiff, or at the request of the defendant.
    In indebitatus assumpsit the plaintiff must aver sufficient facts, though generally stated, to shew a valid contract, constituting, inlaw, a debt against the defendant.
    This was an action of assumpsit ; in which the plaintiff stated his cause of action in two counts. In the first, he averred, That the defendant, on the 1st of May, 1819, entered into the possession of three pieces of land [particularly described] of which the plaintiff then was and for a long time previously had been, seised and possessed; and that the defendant had ever since continued to occupy and enjoy the same, taking all the rents and profits to himself, and became liable to pay to the plaintiff what the use of said lands was reasonably worth; and that in consideration of the premises", the defendant assumed, &c. The second count was general, stating, That the defendant, on the 1st of May, 1822, became indebted to the plaintiff in the sum of 1500 dollars, for the use and occupation of three other pieces of land; for that the defendant, on the 1st of May, 1819, entered into the possession of said lands, and had continued ever since to occupy and enjoy the same, taking all the rents and profits to himself, which were reasonably worth said sum of 1500 dollars ; and in consideration thereof the defendant assumed, &c. To this declaration there was a special demurrer; and the Court adjudged it insufficient. To revise such decision, the plaintiff procured the record to be transmitted to this Court.
    New-Haven,
    July, 1825.
    
      N. Smith and R. S. Baldwin, for the plaintiff in error,
    after remarking that this was an action of assumpsit on an express contract, and the only question was, whether there was a sufficient consideration stated to support it, viz. that the defendant was indebted to the plaintiff for the use and occupation of land, contended, 1. That a subsisting indebtedness is always a good consideration. Lawes on Assump. 334, 5. The only reasons why it is necessary to shew the cause of indebtedness, are first, that it may appear not to arise out of a specialty or record ; and secondly, that the defendant may he able to plead the judgment in another suit. 2 Wms. Saund. 350. n. 2. This declaration is sufficiently explicit for these purposes.
    2. That conceding that if the plaintiff sought to recover on an implied contract, it would be necessary to prove permission and request; yet here, the contract being express, it is not necessary. A moral obligation is a good consideration for an express promise. 2 East 506. per Lord Ellenborough. Lee v. Muggeridge & al. 5 Taun. 36.
    3. That “indebted” ex vi termini includes every allegation necessary to create an indebtedness. “A debt” is defined in Fox v. Hills, 1 Conn. Rep. 303. to be “ a sum of money arising out of a contract.” Now, substituting the definition for the word, the declaration contains the precise allegation, which is claimed to be necessary.
    The practice of averring “ special instance and request” in indebitatus assumpsit, has grown out of the necessity of stating it in special actions of assumpsit on executed considerations. But, in indebitatus assumpsit, where there is a subsisting indebtedness, it is, on principle, not necessary. Lawes on Assump. 335.
    
      Daggett and Hitchcock, for the defendant,
    insisted, 1. That in the action of indebitatus assumpsit, the declaration must state the cause of indebtedness, to shew that it was not by deed or specialty; to enable the defendant to know the plaintiff’s claim; and that the decision may be a bar to a future action for the same matter and thing.
    2. That when the plaintiff alleges the ground of the indebtedness, it must appear to be on good and sufficient consideration. But this declaration does not aver a sufficient consideration for the defendant’s promise,-whether that promise be considered as express or implied. Lawes on Assump. 63. 65. Munson v. Munson, 3 Day 260. Rann & al. v. Hughes, 7 Term Rep. 450. n. 4 Barn. & Ald. 271. n. 5 Mau. & Selw. 446.
    3. That the declaration in an action of indebitatus assumpsit for the use and occupation of land, must shew the occupation to have been at the request of the defendant, or by permission of the plaintiff 1 Swift’s Dig 687. 1 Chitt. Plead. 338. 1 Wms. Saund. 264. n. 1. Hayes v. Warren, 2 Stra. 933. Comstock v. Smith, 7 Johns. Rep. 87. In this case, the indebtedness is averred to arise out of the use and occupation of land; but there is no allegation that it was at the request of the defendant, or by permission of the plaintiff.
   Bristol, J.

The declaration contains two counts; one of which is special; the other a general indebitatus assumpsit for the use and occupation of land. To this declaration there is a special demurrer : and the cause of special demurrer assigned, as respects both, is, that it is not stated in either count, that the land was occupied by the sufferance or permission of the plaintiff, or at the defendant’s special instance and request.

The Court are of opinion that the defect is fatal. The question on both counts is nearly the same ; but as the arguments of counsel were directed chiefly in support of the general count, and as the objection made to this, if good, must be equally fatal to the other; it becomes unnecessary to notice particularly the first count in the declaration.

The argument pressed on the Court, in support of the general count, is substantially this :-that every debt arising out of a simple contract, is a good consideration for an express promise ; and as the indebtedness of the defendant is alleged, a good consideration for the promise is stated in the declaration.

The answer to this argument may be briefly stated. Where the indebtedness constitutes the gist of the action, and not mere inducement, it is not only necessary to state the indebtedness, but the facts out of which the indebtedness arises. To allege that A. was indebted to B., and in consideration thereof promised to pay the money due, is bad pleading; and yet it might with equal propriety be said, here is a debt stated, and that debt is a good consideration for an express promise.

It has been said, that the only reason why the facts should be stated, out of which the indebtedness originates, is, to shew that the debt is not due by specialty or record, and to enable the defendant to plead in bar, provided another action is brought for the same cause. For this purpose is cited the case of Hibbert v. Courthope, Carth. 276. The case referred to was an action for work and labour done by the plaintiff for the defendant, and at the defendant’s special instance and request; and the objection made to the declaration, was, that it was too general; inasmuch as the kind of work and labour performed, was not stated. It was in reply to this objection, that the Court observed, it was sufficient, if it appeared to the Court, that it was not a debt on record, or specialty, but only on simple contract ; and any general words by which that may be made to appear, are sufficient. The Court, in this case, instead of dispensing with such a statement of facts, as shew a debt to exist, only allow that statement to be general, instead of particular, as had formerly been required. To have allowed of a general allegation of indebtedness, without stating the facts, from which the indebtedness arose, would have been to authorize the introduction of legal inferences and conclusions, without the facts from which they were derived. This would be repugnant to the first principles of good pleading.

The conciseness and brevity of the common counts, is the best answer to those who upbraid the profession with unnecessary prolixity. But there are contained in every such count, however concise, sufficient facts, though generally stated, to shew a valid contract, constituting in law, a debt against the defendant; and this consequently forms a good consideration for his promise, whether express or implied. Now, to shew that the defendant was indebted to the plaintiff, it is no more sufficient to aver merely, that the defendant used and occupied the plaintiff’s land, than, in the count for work and labour to aver, that the plaintiff had performed labour for the defendant, without stating that labour to have been performed at the defendant’s request.

If the reasonableness of this doctrine should need to be strengthened by authority, such confirmation is fully given by Chitty, vol. 2. pa. 5. and by the case of Hayes v. Warren, 2 Stra. 933.

Hosmer, Ch. J. and Peters, J. were of the same opinion.

Brainard, J. was absent.

Judgment affirmed.  