Common Counts

Certain general the purpose of preventing a defeat of a just right by the accidental variance of the evidence. These are, in an action of assumpsit, counts founded on express or implied promises to pay money in consideration of a precedent debt, and are of four descriptions, — ^the indebitatus assumpsit, the quantum meruit, the quantum, valebant, and the account stated. COMMON DAY (Law Lat. dies commvunis).

In old English practice. An ordinary day in court (St. 13 Rich. IL st. 1, c. 17), such as octabis Michaelis (the octave of St. Michael), quindena Paschae (the quinzime of Easter), etc. (St. 51 Hen. III. sts. 2, 3; Cowell; Termes de la Ley).

Certain general counts, not founded on any special contract, which are introduced in a declaration, for the purpose of preventing a defeat of a just right by an accidental variance in the evidence. These are, in an action of assumpsit, counts founded on implied promises to pay money in consideration of a precedent debt, and have been variously classified. Those usually comprehended under the term are: — 1. Indebitatus assumpsit, which alleges a debt founded upon one of the several causes of action from which the law implies a, promise to pay, and this is made the consideration for the promise to pay a sum of money equivalent to such indebtedness. This covers two distinct classes: — a. Those termed money counts, because they related exclusively to money transactions as the basis of the debt alleged: (1) Money paid for defendant's use. (2) Money had and deceived by defendant for the plaintiff's use. (3) Money lent and advanced to defendant. (4) Interest. (5) Account stated. b. Any of the usual states of fact upon which the debt may be founded, the most common being: (1) Use and occupation. (2) Board and lodging. (3) Goods sold and delivered. (4) Goods bargained and sold. (5) Work, labor, and services. (6) Work, labor, and materials. 2. Quantum meruit. 3. Quantum valebant. See Assumpsit.

Certain general counts or forins inserted in a declaration in an action to recover a money debt, not founded on the circumstances of the individual case, bub intended to guard against a possible variance, and to enable the plaintiff to take alvantage of any ground of liability which the proof may disclose, within the general scope of the action. In theaction of assumpsif, these counts are as follows: For goods sold and delivered, or bargained and sold; for work dene; for money lent; for money paid; for money received to the use of the plaintiff; for interest; or for money dus on an account stated.

In pleading. Counts of invariable form, framed upon certain general principles of statement, and thereiore common in their application to a great variety of actions; as distinguished from special counts, which are adapted to the special circumstances of each particular case, and are peculiar to the individual actions m which they are employed.* In other words, they are general forms of pecuniary demand, founded on express or implied promises, to pay money in consideration of a precedent or existing debt. 1 Chitt, PL 873. Their principal use is to sust^n the plaintiff on the trial of a cause, in the event of a failure to prove his case as stated in the special counts of his declaration. Steph, PL 287, (Am. ed, 1824.) 1 Burr, Pr, 130, note. They are most frequently employed in claims for goods sold, work done, money lent, money paid, money had and received, and money due on an account stated, (which last are commonly called the money counts^ and sometimes without any special counts. See Indebitatus assumpsit^ Quantum meruit, Quantum valebant, Insimul computassent. In England, since the Pleading Rules of Hil. T. 2 Will IV., the importance of these counts has been considerably diminished, and in some cases they can no longer be resorted to. 1 Chitt, PL 339—369. (Perkins' ed. 1847.)