Farnsworth v. Nason , 1 Brayt. 192 ( 1819 )

By the Court.

The first count in the plaintiff’s declaration is clearly insufficient. Whén there is a special count, on a promise to pay money, and general counts, a general breach is sufficient, but where the special count is on a promise to do or perform any other act, such count ought to alledge a breach of the contract. 1 Chitty’s Pl. 326.

But, it is not necessary to decide this to be an indispensable requisite. The first count declares on a promise to indemnify, but does not alledge that plaintiff was ever damnified ; every special count must contain all the averments necessary to shew a cause of action; this count does not state any notice to defendant, of plaintiff’s loss, or that he had sustained any loss or damage; and it shews no claim or cause of action against defendant.

Judgment — There is error, and that Judgment of County Court be reversed.

Before the Court proceeded to render such Judgment upon the record, certified to this Court, as the County Court ought to have rendered, the defendant in error, moved to amend his declaration; leave was granted upon payment of all back costs.