Baker, contra. The object of this application is not to aid the defendant to try the merits of the case, but to enable him to interpose a statutable bar to the action. Where a party requires the aid of the Court to enable him to plead the Statute of Limitations, he should make an affidavit showing it to be a case which entitles him to such an indulgence: Latouche v. Spence (a). Here no such affidavit has been made.[LEFROY, B. As the record now stands, the plaintiff has the advantage of a fiction, inasmuch as the appearance, although entered as of Trinity Term, was not, in point of fact, entered until the following Vacation.]—The defendant was not bound to enter an appearance until Michaelmas Term; it was, therefore, the defendant's own act that gave the plaintiff the advantage he now possesses, of which he ought not to be deprived by an amendment which is not conducive to the justice of the case. Pakenham, in reply. The objection to this application, which rests on the alleged want of an affidavit of merits, is not sustainable in fact; as the motion for liberty to add the plea of payment was grounded on an affidavit of merits, and which also contained a distinct denial of a demand within the period limited by the Banker's Act, of the provisions of which the parties were unaware at the time the general issue was pleaded. BRADY, C. B.* We think the defendant is in strictness entitled to have the amendment he asks for made, but it must be made at his own expense; and he must also amend the plaintiff's copy of the declaration. The plaintiff relies on a fiction of law, which ought never to interfere with the merits of the case. Let defendant be at liberty to amend the plaintiff's declaration + See 1 Chit. Plead. 296, 5th ed.; 1 Fergus. Prac. 224; 1 Tidd, 427, 9th ed.; 1 Stra. 638; 1 Wils. 39, 304; Cowp. 456; 4 Esp. 72. M. T. 1844. NEAVIN บ. HUGHES. E. T. 1844. May 1. from the con clusion of a declaration, is a cause of spe O'CONNOR v. DEEHAN, Attorney. The omission INDEBITATUS ASSUMPSIT.-The declaration stated that the defendant of the ad damnum clause was indebted to the plaintiff in £30 for work and labour, &c., and in £30 upon an account stated, and concluded thus:- -"But the said "defendant hath disregarded his promises, and hath not paid any of "the said monies, or any part thereof, to the said plaintiff, whereby "he is the less able to satisfy," &c., "the debts which he owes her "Majesty at her said Exchequer, and therefore he prays relief;" without adding" to the damage of the said plaintiff," &c. cial demurrer. Demurrer, assigning as causes, that no damage was stated or alleged in the declaration to have accrued to or been incurred by the plaintiff by reason of the alleged breaches of promise therein stated; and that the plaintiff had not in said declaration alleged or stated any sum of money as damages; and had altogether omitted the usual and ordinary conclusion, "to the damage of the said plaintiff." Joinder in demurrer. James Plunket, in support of the demurrer. The omission of the ad damnum clause is contrary to the uniform course of precedents, and fatal on special demurrer: Broughton v. Holte (a); Pit v. Knight (b); Gilmore v. Hotton (c). Codd, contra. The declaration is sufficient without the ad damnum clause. The breach assigned is, "that the defendant hath not paid any of the said monies;" and then follow the words, "whereby he is the less able," &c., i. e., less able by the sums previously mentioned in the declaration. The damage necessarily results from the breach assigned, and in such cases no damages need be stated: 1 Chitty on Plead. by Greening, 348; 1 Saund. on Pl. & Evid. 136; Lawes on Assumpsit, 48. Whereby" refers to all the antecedent matter: Perreau v. Bevan (d); 1 Saund. Rep. 97, note 1. Although precedents may be in favour of this demurrer, yet principle is against it: Pentland v. Healy (e); and this Court has always discountenanced 66 (a) 1 Lev. 273. (c) 7 Mod. 190. (e) Al. & Nap. 164. (b) Ibid, 222. O'CONNOR special demurrers on technical grounds: Philips v. Fitzpatrick (a); E. T. 1844. Assignee of Collis v. Heir of Mahon (b). A deviation, however, Each.of Pleas. from a prescribed form of commencing or concluding a declaration is not demurrable, but at the utmost only an irregularity: Hart v. Dally (c); Alderson v. Johnson (d); Turner v. Denman (e); 2 Chit. on Plead. by Greening, 13. PENNEFATHER, B.* We think it unnecessary to hear further argument in this case, as it is admitted that the declaration is against the course of precedents. The established forms of declarations, and the precedents of those forms, have been adopted for wise purposes. They were originally useful in ascertaining and showing the true grounds and principles of the action. They are also useful (and their utility is strongly exemplified in this case) in preserving regularity, and preventing parties from indulging their fancies in stating their cases in innumerable ways—a practice tending greatly to the consumption of the public time. It is expedient that certain forms or precedents should be adhered to; and when those precedents have been uniform, a departure from them renders the declaration to some extent uncertain and informal, and consequently subject to a special demurrer. We have always been unwilling in this Court to sanction objections upon mere matters of form, where precedents have not been uniform, and accordingly in those instances where there has been an absence of uniformity in the precedents, and the demurrers have been founded on an absence of principle, we have always been desirous to discountenance them. But, while that has been our leaning, we have always held ourselves bound to adhere to established forms, holding that those precedents which have been sanctioned by long experience and uniform practice, should be observed; and the cases alluded to by Mr. Codd, with respect to the omission of the "debitor regis" clause in the commencement, and of the “quo minus" clause in the conclusion of declarations in this Court, afford a strong illustration of the principle upon which we have hitherto acted-namely, that where the course of precedents is uniform, the Court holds itself bound by it; but where it is not uniform, and where searches among the pleadings and records (a) 1 Hayes & Jones, 739. (c) 2 Dow. Pr. C. 257. (b) 1 Jones, 136. บ. DEEHAN. E. T. 1844. of the Court show a want of uniformity, there we have invariably Exch. of Pleas. decided in accordance with what we conceived to be the justice and O'CONNOR merits of the case, not going against settled rules or precedents. บ. DEEHAN. I make these observations, as we were pressed in the course of the argmuent by the supposed practice of this Court to discountenance all special demurrers. In this case, the insertion of a few words in the declaration (the necessity of which was pointed out by the special demurrer), would have been attended with a considerable saving of the public time, and of expense to the parties concerned. We feel bound, therefore, to allow this demurrer, but we will give the plaintiff liberty to amend on payment of costs. RICHARDS, B., and LEFROY, B., concurred. Demurrer allowed.* * The necessity for the insertion of a sum certain, to cover the amount of the damages claimed by the declaration, seems to follow from the rule of law, that if the jury award a sum exceeding the damages laid in the declaration, it is error on the record, unless a remittitur be entered for the excess; see Usher v. Dansey (4 M. & Sel. 94); Sandiford v. Bean (Bac. Abr. Damages, D. 2); Cheveley v. Morris (2 W. Bl. 130). May 3. concluding "to the damage of the PAXTON v. MARTIN. A declaration ASSUMPSIT on a bill of exchange for £13. 6s. 1d., by drawer against acceptor. There was one special count in the declaration, and after plaintiff in one the money counts and an averment of the breach, the declaration hundred," concluded "to the damage of the plaintiff in one hundred." The omitting the word 'pounds,' defendant demurred specially, and assigned as causes of demurrer, Held bad on first, that there were no damages laid; and secondly, no certain or special deascertainable damages laid; and thirdly, no cause of action shown. murrer. Dominick M'Causland, in support of the demurrer, relied on the case of O'Connor v. Deehan (a), and was stopped by the Court. (a) The preceding case. PAXTON James Plunket and Fagan, contra, contended that the Court would E. T. 1844. Exch.of Pleas. supply the word "pounds" by intendment, as that term was used in the immediately preceding money counts: Coles v. Hulme (a); Phipps v. Tanner (b); Rex v. Post; Bayley on Bills, 8 n.; Waugh v. Russel (c). BRADY, C. B. There might be something in your argument, perhaps, if there were no shillings and pence mentioned in the declaration, but as it is, we would have as much right to infer that "one hundred" meant one hundred shillings, or one hundred pence, as one hundred pounds. There seems to be no difference in principle between this case and that of O'Connor v. Deehan, and we must, therefore, allow the demurrer. PENNEFATHER, B. If the damage is material and essential, it ought to be stated with certainty. RICHARDS, B., concurred. LEFROY, B. If we overrule this demurrer we should decide that the word or words omitted in this may be erased from all future declarations of this description. บ. MARTIN. Demurrer allowed. (a) 8 B. & C. 568. (b) 5 Car. & P. 488. (c) 1 Marsh. 214. |