
    *Cooke v. Simms.
    [October Term, 1799.]
    Action on Note — Pleading by Way of Recital — Effect.— In an action on tie case upon a note oí hand, there must be an express assumpsit laid in the declaration ; and merely reciting the note of hand in hasc verba is not sufficient.
    In an action on the case, brought by Simms in the Hustings Court of Alexandria against Cooke; the declaration contained four counts. The first charged, “That the defendant made his certain writing subscribed with his hand in the words and figures following, to wit, Alexandria January 12th, 1792, Whereas Jesse Simms of Alexandria has this day given me his obligation promising to assign, transfer and deliver to me or my order on the fifteenth day of June next ensuing the sum of five thousand dollars of the funded debt of the United States of America bearing an annual interest of six per centum, commonly called six per cent, stock, I do hereby promise on receiving of the said sum of five thousand dollars of the funded debt of the United States of America, bearing an annual interest of six per centum, agreeably to his said obligation, to pay the said Jesse Simms or his order the sum of six thousand Spanish milled dollars or the value thereof in gold, as witness my hand.
    “Stephen Cooke.
    Witness, James Gillies.
    “And in fact the plaintiff saith that he offered to perform all things on his part necessary to be done and performed. ’ ’ The second count was for money laid out and expended, by the plaintiff, for the use of the defendant. The third for money had and received by the defendant to the use of I the plaintiff. The fourth count charged, that the defendant in consideration that the plaintiff ‘ ‘had given unto him an obligation to him the ^plaintiff, promising to assign, transfer and deliver to the said defendant or his order on the fifteenth day of June in the same year the sum of five thousand dollars of the funded debt of the United States of America, bearing an annual interest of six per centum commonly called six per cent, stock, undertook and faithfully promised, on receiving the said sum of five thousand dollars of the funded debt of the United States of America bearing an annual interest of six per centum agreeably to the obligation aforesaid, to pay to the said plaintiff or his order the sum of six thousand Spanish milled dollars or the value thereof in gold; and the plaintiff in fact saith, that he on the said fifteenth day of June in the year aforesaid, at the town aforesaid, offered to the said defendant the said sum of five thousand dollars of the funded debt of the United States of America, bearing an annual interest of six per centum per annum, agreeable to the obligation aforesaid, and offered that the same should be assigned and transferred to him or his order, and required him to perform his promise aforesaid, and the said defendant then and there refused to receive the said sum of five thousand dollars six per cent, stock aforesaid, and refused that the same should be transferred to him.” The declaration then concludes with assigning a general breach in the following words. “Nevertheless the said defendant though often afterwards, required to perform his said several promises aforesaid and still doth refuse to perform them and each of them, to his damage three hundred pounds, and therefore he brings suit, and so forth.
    The defendant prayed oyer of the writing, and then plead non assumpsit to the first, second, and third counts; on which the plaintiff took issue. And as to the first count, the defendant further plead, “that the plaintiff did not assign, transfer and deliver to him or his order the sum of five thousand dollars of the funded debt of the United ^States of America, bearing an annual interest of six per centum per annum, commonly called six per cent, stock agreeably to his said obligation.” And as to the fourth count the defendant demurred, 1. Because the plaintiff did not allege that he offered to assign and transfer the said 5000 dollars of the funded debt at the Treasury of the United States or at the Office of the Commissioner of Doans. 2. Because the tender set forth in the declaration was informal and insufficient. 3. Because it is not averred that the plaintiff had a right to assign and transfer the said 5000 dollars of the funded debt.
    The plaintiff as to the second plea to the first count says, that he' on the 15th of June 1792, at the town aforesaid offered to the defendant, “the said sum of five thousand dollars of the funded debt of the United States of America bearing an annual interest of six per centum, agreeable to the obligation aforesaid, and offered that the same should be assigned and transferred to Rim or his order, and then and there required the defendant to perform his promise aforesaid; and the defendant then and there refused to receive the said sum of five thousand dollars six per cent, stock aforesaid, and refused, that the same should be transferred to him.” Then follows an entry in these words, by “consent of the parties,, the declaration is amended to the fourth count,  and the demurrer filed withdrawn.”
    The defendant demurred to the plaintiffs replication aforesaid to the second plea to the first count. 1. Because it appeared by the plaintiffs own shewing, that the offer to transfer was made at the town of Alexandria, and not at the Treasury of the United States, or at the office of the Commissioner of Roans. 2. Because it appears by *the plaintiffs own shewing, that he hath not performed what he ought to have done in order to entitle him to his action against the defendant. 3. That it is not averred, that the plaintiff had a right to transfer the said SOOO dollars of the funded debt. The plaintiff joined in the demurrer. The Hustings Court decided in favor of the plaintiff, upon the demurrer; and awarded a writ of enquiry of damages. The jury found ,£159 damages; and the Hustings Court gave judgment for the same.
    The defendant appealed to the District Court; where the judgment of the Hustings Court was affirmed; and from the judgment of affirmance the defendant appealed to this Court.
    The case was argued at a former term, by Marshall for the appellant and Lee for the appellee. When the judgment of the District Court was reversed; but that judgment was set aside during the same term, and the cause continued for another argument.
    Marshall, for the appellant.
    The declaration does not shew a sufficient cause of action. It does not shew, with sufficient certainty, that the defendant accepted the plaintiffs obligation; without which there was no consideration. But, if it did, still the plaintiff has not entitled himself to what he claims. For the mere offer to transfer was not enough. 1 Ld. Raym. 440, 686, 12 Mod. S29. Therefore the plaintiff, having omitted to shew a performance on his part, has not stated a sufficient ground of action against the defendant. But the declaration must shew a sufficient cause of action, or the plaintiff cannot recover. 4 Bac. abr. 6.
    Nothing then can sustain the declaration unless the replication has aided it; which has been supposed, inasmuch as it is said that the declaration and replication may be incorporated together, so as to make one plea. But this cannot be done ^because it would be a departure. For it is a distinct matter which is set forth in the replication, from that which is contained in the declaration; and this according to all the authorities is a departure. It is a variation from the title, which the plaintiff had once insisted on; and therefore is expressly within the definition and principles laid down in 3 Black. Com. 310, and 4 Bac. abr. 122. The instances there put illustrate and confirm it. Thus in the case of the assize, where the tenant pleads a descent from his father and gives colour, the demandant entitles himself by a feoffment from the tenant himself, the tenant cannot say that the feoffment was on condition and shew the condition broken; for it would be a departure, as containing matter new and subsequent to that of his bar: Which is a case in point, and proves that the subsequent matter contained in the replication, was a departure in the present case. This doctrine is supported by 2 Wils. 98; and, in short, there is not a single authority which does not go to shew the same thing; and to prove incontestibly, that the new matter, introduced into the replication here, was a departure from the declaration.
    So that if it were even true, that a declaration and replication can be incorporated, it would not assist in the present case. But there is no case which goes to prove that such incorporation can be made. For that would be to allow every bad and insufficient declaration to be amended by the replication; and in short every bad prior plea to be amended by the subsequent. So that the series would be infinite; and the endless altercation, spoken of by the books, and which the doctrine of departure was established to prevent, would be introduced.
    But there is another fatal objection in this case; namely, that no assumpsit is laid in the declaration. For the mere -recital of the note was not sufficient. The assumpsit, which the law raised, *ought to have been averred: Because the promise is the very git of the action, and therefore should be stated. 1 Lev. 164; 2 Ld. Raym. 1516; 2 Wash. 187. Which last case is an express authorit3r in the very point; and the same doctrine was afterwards held in the case of Chichester v. Vass in this court. If the English books of practice be consulted, no form will be found which omits an averment of the implied promise. So that as well upon the authority of adjudged cases, as upon the forms in use, it is clear that the failure to state the assumpsit is an incurable error.
    But the judgment is erroneous upon another ground. There were two pleas to the first count; the first a general plea of non assumpsit, and the second a special plea. Upon the former the parties were at issue; and notwithstanding this, the court, on overruling the demurrer, have proceeded to enquire of the damages, without trying, or otherwise disposing of the issue upon a good and sufficient bar. Which is manifest error; because the defendant had a right to insist on having his plea tried.
    Call, contra.
    The declaration and replication may be incorporated together and taken as one plea. For all the pleadings of the party is but one exposition of his case. The replication operated like an amendment to the declaration, and might supply the omissions and deficiencies in that. Yelv. 18.
    The replication is not a departure from ihe declaration: Because it is every way consistent with it; and may be said to grow out of it. For the declaration charges a general offer of performance on the part of the plaintiff; and the replication only extends the allegation and shews how he offered to perform. It is therefore within *the reason of all the cases upon pleadings; which admit that the replication may explain the generality of the count. 5 Com. Dig. 438. Besides the plea here rendered the replication necessary, because it denied the transfer; which denial was true; and therefore the plaintiff was obliged to confess and avoid, or the bar would have precluded him. It is therefore within the reason of the doctrine of new assignments: Which were never held to be a departure merely because they stated a new fact.
    It is not true that because additional matter is added it is therefore necessarily a departure. On the contrary even surplus-age, although containing additional matter, is not. 3 Term. Rep. 376. Which shews that every thing consistent with the declaration may be united to it, and the rest rejected. The case in 2 Wils. 8, explains the nature of departures, and was a stronger case than this; because there the defendant might have taken issue on the replication; but here it was absolutely necessary to answer the defendants bar; and a necessary- answer to the opposite plea is never considered as a departure. 5 Com. Dig. 438.
    The replication contains a sufficient cause of action: Because the offer to transfer was enough, when the defendant refused to accept, For the case is very different from that in Rd. Raym. 441; because here the offer was to the defendant himself, which the court in that case allowed would have been sufficient.
    There is a sufficient assumpsit laid; because the note itself contains an express promise; and it is immaterial how the promise is stated, provided it be laid at all. For the only object, in stating it, is to shew that there was an agreement to pay. But no particular set of words is required. It is wholly immaterial what expressions are used, if the agreement be actually shewn. But you cannot render the agreement more certain by any *other form, than by a recital of the very words of it; which, as the end of all pleading is only to inform the adversary with what he is charged, is the least exceptionable mode, and most certainly effects the desired object. The case of Buckler v. Angel, 1 Rev. 164, does not oppugn these observations; because in that case there was no express promise stated; and for •want of it, the declaration was nonsense. The same observation applies to 2 Rd. Raym. 1516; and perhaps, in both cases, the omission, at this day, would be considered as a mere vitium clerici, not affecting the judgment. There is probably some omission in the statement of the case of Winston v. Francisco, 2 Wash. 187; but at any rate, there was no recital of an express promise in that case, as there is in this; nor did the replication there repeat the promise as it does here. For if it had the recital would have been sufficient, Euers plead. 45. As to the case of Chichester v. Vass, the failure to lay an assumpsit was not the ground of decision there; but the omission to aver what sum the other daughters received. In short, after stating the express promise, it never can be necessary to repeat the assumpsit which the law raises. For what purpose should this be done? No use can result from it; and it would only tend to create a redundancy of words, and to fill the record with needless repetition.
    As to the'last point, relative to the en-quiry of damages without trying the issue; it does not appear that the defendant asked for a trial; and his omission to do so, must be considered as a waiver of the plea of non assumpsit.
    Marshall, in reply.
    The case in Yelv. 18, does not apply, because the replication there would have pursued the declaration; but here the foundation of the action is the refusal in the defendant to take the stock; and that is no where stated before in the declaration. For the declaration merely is, that the plaintiff offered to perform *all the things on his part to be performed, and says nothing of the refusal. Which is not drawn forth in the replication by any thing contained in the plea of the defendant; which in fact was but a mere denial of the declaration. None of the cases cited by the appellees counsel come up to his, which was a clear departure. For it introduced new matter, without any necessity for it from the adversary pleadings. The form of declaring in England is, to state the promise which the law raises, although the promise in the contract be previously stated. 1 Rich, prac. K. B. 119. And the cases cited before, particularly that of Winston v. Francisco, 2 Wash, completely prove that it must be so laid. There was no necessity for the defendants asking for a trial of the issue; because the plea stood upon the record and the court ought to have taken notice of it.
    Call. In the form in 1 Rich. prac. it was necessary to lay the second promise, as the plaintiff counted on the statute; for, if he had counted at Common Raw, he must have shewn the consideration of the note. Therefore the second promise laid in that declaration was the assumpsit which the statute raised; and without which he could not have recovered. But here was not the same necessity; because there is a good consideration expressed in the note itself.
    Cur. adv. vult.
    
      
      Action on Note — Pleading by Way of Recital. — In an action on tbe case upon a note, there must be an express assumpsit laid in the declaration and a mere recital in Juec verba is not sufficient. For this proposition the principal case is cited and approved in the following: Syme v. Griffin, 4 H. & M. 280; Wooddy v. Flournoy, 6 Munf. 509; Farmers’ Bank v. Clarke, 4 Leigh 609; Burton v. Hansford, 10 W. Va. 474, 477; Quarrier v. Peabody, 10 W. Va. 527; Heirs of Hite v. Wilson, 2 H. & M. 286; Griffle v. McCoy, 8 W. Va, 206; Spiker v. Bohrer, 37 W. Va. 263, 16 S. E. Rep. 577. See monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
    
      
       It does not appear in the record, that anything-further was ever done, as to the amendment.
    
    
      
      1 Call’s rep. 83.
    
   PENDRETON, President,

delivered the resolution of the Court.

The objection to the declaration for want of laying a promise directly, if stirred by the counsel on the former argument does not appear in our notes. We know it was not considered by the court; but the case was decided upon other, points which are unnecessary to be considered if this be against the plaintiff.

*The declaration is, that the defendant made the note, which it recites in Haec Verba, without alleging any other promise than that contained in the note itself; and the question is, whether, independent of the act of parliament in England and of our act of Assembly (neither of which apply,) an action on the case will lie on a promissory note singly, without adding a promise?

The cases produced, and two others coming more directly to the point Clerk v. Martin. 2d Ld. Raym. 757, and Burton v. Souter in the same book 774, prove that it will not: but that the declaration must lay an indebitatus assumpsit according to the form in the attorney’s practice in the K. B and give the note in evidence.

Although it is difficult to justify the rationality of this opinion, yet since it is the law, and as such has been recognised by this Court in former cases, it ought not to be stirred again. Eor my own part I can yield to it, without reluctance, as a point of little consequence in this country, where an action of debt is usually brought.

' This count in the declaration then is bad; and judgment is to be entered for the defendant upon the demurrer. But what is to be the consequence? Is a final judgment to be entered for the defendant, as if this was the only count, when there are three others, on which there has been no decision by court or jury? ' Or shall our entry be, that the plaintiff take nothing by this count, but the defendant as to that, go without day, and recover his costs occasioned thereby; and that the cause be remanded for further proceedings on the other three counts, so as to enable the plaintiff to recover, if he can support his action upon either of them?'

Our present impressions are that the latter is the proper mode.

*The following judgment was after-wards entered.

“The court is of 'opinion that the judgment of the said District Court is erroneous. Therefore it -is considered that the same be reversed and annulled &c. and this court proceeding to give such judgment as the said District Court ought to have given, is of opinion that the judgment of the said Court of Hustings is erroneous, in this, that the law is for the appellant on the demurrer joined to the replication of the ap-pellee, to the appellants plea put in to the first count in the appellees declaration, which as to that count is insufficient to maintain the appellees action. Therefore it is further considered that the said judgment be also reversed and that the appellee take nothing by the said first count, &c. And the cause is remanded to the said District Court for further oroceedings to be had therein as to the other counts contained in the declaration.”  