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4 Johns. 280

Bailey v. Freeman

New York Supreme Court

Decided May 15, 1809

New York Supreme Court · decided 1809-05-15

THIS was an action of assumpsit. The declaration was as follows: “ For that whereas before, and at the time °f making of the promise and undertaking and the agreements herein after mentioned, the said plaintiffs were joint dealers and partners in trade, under the firm of Bailen A. .

Good law ✅— No negative treatment on recordhow we know

Decided 1809-05-15

How this case has been cited

Cited by 9 later decisions — most recently May 1904

7 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Per Curiam.

¶1The fourth objection to the first count is fatal. It is essential in every action on a promise, to state a consideration. The defendant is, therefore, entitled to a *284judgment, but the plaintiffs may amend on payment of costs. In regard to the second count, though some doubts seem to be entertained by some of the bar as to its propriety, on the supposition that the plaintiff might be required to give proof of all the causes of action stated in the count, we think it sufficient, and that he would he entitled to recover, should he prove only one of the contracts. There are several precedents in the English books of similar counts. (a)The plaintiffs, are, therefore, entitled to judgment on the second count, but the defendant has leave to withdraw the demurrer and plead, on payment of costs.

¶2Judgment accordingly.

¶3 See 2 Saund. 122. a. In a recent work on pleadings, by Chitty (p. 377.) it is laid down, on the authority of the case in Saunders and several others, that several distinct debts or contracts may be included in one count of this description, and the plaintiff will succeed, pro tantos though he only prove one of such contracts; for if the defendant be indebted for any one cause, it is a sufficient consideration for the promise (which the law raises) of the defendant to pay the money. Serjeant Williams recommends the practice of including the common counts in one count, as was done in this case, in order to avoid an useless prolixity in the pleadings, and unnecessary expense, 2 Saund. 122 a. n. 2. Cro. Jac. 245. Yelv. 175. 1 Brownl. Ent. 71. 2 Black Rep 910. Bunb. 262. Impey's Mod. Plead. 207. 234. 271.

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