Moore v. Hobbs

• Decision Date: 30 June 1878
• Citation: 79 N.C. 535
• Court: North Carolina Supreme Court
• Parties: WILLIAM A. MOORE v. MOSES HOBBS and ABRAM T. BUSH.

79 N.C. 535

WILLIAM A. MOORE

v.MOSES HOBBS and ABRAM T. BUSH.

Supreme Court of North Carolina.

June Term, 1878.

CIVIL ACTION tried at Spring Term, 1878, of CHOWAN Superior Court, before Furches, J.

The plaintiff complains:--

1. That the defendants are indebted to him in the sum of $488.70 at eight per cent interest per annum from the 1st day of December, 1875.

2. That no part of said debt has been paid.

3. Therefore the plaintiff demands judgment against the defendants (for said sum) and costs.

The defendants demur:--

Because the facts stated in said complaint are insufficient to constitute a cause of action, in that, it does not contain a plain and concise statement of the facts constituting the plaintiff's cause of action.

The Court overruled the demurrer and offered to allow the defendants to answer, which they refused to do. Thereupon judgment was rendered upon the complaint in favor of the plaintiff for the sum demanded, and the defendants appealed.

Messrs. Mullen & Moore and J. B. Batchelor, for plaintiff .

Messrs. Gilliam & Gatling, for defendants .

READE, J.

“A declaration is a specification in a methodical and legal form of the circumstances which constitute the plaintiff's cause of action.” 1 Chitty, Pl. 240. Observe, that it is not to state that there is a cause of action, but the “““ circumstances” which constitute the cause of action. “The general requisites or qualities of a declaration are, * * * Second, that it contain a statement of all the facts necessary in point of law to sustain the action, and no more; third, that these circumstances be set forth with certainty and truth.” 1 Chitty, Pl. 244. Observe again, that “ all the facts are to be set forth. If a declaration in debt be upon simple contract, the consideration must be set forth with the other facts. If it be upon a specialty, the specialty must be set forth, and that imports a consideration. Chitty, Pl., 362, 363. The form of a declaration on simple contract is as follows: A B, the plaintiff in this suit * * * complains of C D, the defendant, in this suit * * * for that, whereas the defendant on--was indebted to the plaintiff in $-- for the price and value of goods then sold and delivered by the plaintiff to the defendant at his request, &c., or for the price and value of work then done, & c., or for money lent, &c. Arch. N. P., 297. The form of a declaration on specialty is as follows:--A B, the plaintiff, &c., complains, & c. Whereas, the defendant, &c., by his certain writing obligatory sealed with his seal, and now shown to the Court, &c., acknowledged himself to be held and firmly bound unto the plaintiff in the sum of $--, &c., Arch. N. P., 304. A defect in the declaration appearing on the face of it could be taken advantage of by demurrer.

It is plain therefore that under the former mode of pleading, the declaration in this case is fatally defective. It states a cause of action, viz., indebtedness: but it states not one single “ circumstance” or “fact” constituting the cause. But then it is said, “that all the forms of pleading heretofore existing are abolished.” C. C. P., § 91. True, but still, all form is not abolished, for the same C. C. P., §§ 91, 92, prescribes, “that the complaint shall contain a plain and concise statement of the facts constituting the cause of action without unnecessary repetition, and each material allegation shall be distinctly numbered.”

Observe, that in the new, as in the old form, the facts constituting the cause of action must be stated, with this addition in the new over the old, that each material fact shall be separately numbered. The object of the declaration in the old forms was to inform the defendant fully as to the facts, so that he might make his defence both by the proper pleas and by proofs, and that the jury and the Court...