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QUOD CUM

It is a general rule in pleading, regulating alike every form of action, that the plaintiff shall state his complaint in positive and direct terms, and not by way of recital. "For that," is a positive allegation; "for that whereas," in Latin "quod cum," is a recital Matter of inducement may with propriety be stated with a quod cum, by way of recital; being but introductory to the breach of the promise, and the supposed fraud or deceit in the defendant's non-performance of it. Therefore, where the plaintiff declared that whereas there was a communication and agreement concerning a horse race, and whereas, in consideration that the plaintiff promised to perform his part of the agreement, the defendant promised to perform his part thereof; and then alleged the performance in the usual way; it was held that the inducement and promise were alleged certainly enough, and that the word "whereas" was as direct an affirmation as the word "although," which undoubtedly makes a good averment; and it was observed that there were two precedents in the new book of entries, and seven in the old, where a quod cum was used in the very clause of the promise. Ernly v. Doddington, where the plaintiff declared on a bill of exchange against the drawer, and on demurrer to the declaration, it was objected that it was with a quod cum, which was argumentative, and implied no direct averment; the objection was over-ruled, because assumpsit is an action on the case, although it might have been otherwise in trespass vi et armis. The reason of this distinction is, that in assumpsit or other action on the case, the statement of the gravamen, or grievance, always follows some previous matter, which is introduced by the quod cum, and is dependent or consequent upon it; and the quod cum only refers to that introductory matter, which leads on to the subsequent statement, which statement is positively and directly alleged. For example, the breach in an action of assumpsit is always preceded by the allegation of the consideration or promise, or some inducement thereto, which leads onto the breach of it, which is stated positively and directly; and the previous allegations only, which introduce it, are stated with a quod cum, by way of recital.

But in trespass vi et armis, the act of trespass complained of is usually stated without any introductory matter having reference to it, or to which a quod cum can be referred; so that if a quod cum be used, there is no positive or direct allegation of that act. After verdict the quod cum may be considered as surplusage, the defect being cured by the verdict.

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