Count

\,v. In the sense of to compute, see Account; Discount.

2.

In the sense of to refer to a statute, compare Recite.

3. n.

In the sense of earl or comes, see Sheriff.

4.

In pleading, a distinct statement of the cause of action or of the ground of accusation. Peculiar, therefore, to a declaration or an indictment. From the French conte; a narrative. (1) In civil procedure at common law, is sometimes synonymous with declaration, its original signification; but now is generally considered as a part of a declaration, wherein the plaintiff sets forth a distinct cause of action.l Where the plaintiff's complaint embraces a single cause of action and he mabres one statement of it that statement is called, indifferentl.v, a " declaration " or a "count." But where his suit embraces two or more causes of action (each of which of course requires a different statement), or when he makes two or more different statements of one and the same cause of action, each statement is called a "coxmt," and all of them, collectively, constitute the " declaration," ' q.

V.

Common counts

Distinct statements of a cause of action so varied as to correspond with the possible state of the proof. In the common action of assumpsit, q. v., they are, ordinarily, for money — had and received, paid, lent, or due upon an account stated; perhaps, also, for the worth of work done and materials furnished: whence called "money" counts.^ See Contract, Implied.

Special count

States the facts peculiar to the case in hand.* One object in inserting two or more counts in a declaration, when there is in fact but one cause of action, is to guard against the danger of an insuf Scient statement of the cause, where a doubt exists as to the legal sufficiency of one or another of two or more different modes of declaring. But the more usual end proposed is to accommodate the statement of the cause, as far as maj' be, to the possible state of the proof exhibited on the trial. In assumpsit, under a declaration containing a special count on a promissory note, and also the common coimts, a note varying from the one specially pleaded is admissible under the common counts, as evidence of money had and received, in connection with evi- 1 [Cheetham v. Tillotson, 5 Johns. M35 (1809). s Gould, PI. 158. 'See, as to money had and received, Bamett v. Warren, 83 Ala. 557 (1886); 20 Cent. Law J. 326-30 (1885), dence that the defendant admitted his indebtedness on the note. ' Counts for contract and trespass, being dissimilar in kind, cannot be joined.' See Bad,2; Duplicity; Joinder. (2) In criminal procedure, each count in an indictment imports a diflferent offense; is, in effect, a separate indictment.' When a verdict is silent as to one or more counts and finds guilt as to others, presumably the jury found the defendant not guilty as to the former counts.* See Indictment; Sentence.