Jenkins v. Montgomery

Regarding the declaration as fatally defective on demurrer, I dissent. What is treated as an ad damnum clause is plainly only an introductory recital, descriptive of the action and the parties. It is not an averment of damages at all and does not purport to be.

As damages constitute the very gist of the action in trespass on the case, I think the ad damnum clause is indespensable, unless waived by failure to demur. It is like the promise in as-sumpsit. Although the declaration states facts from which the law raises a promise, the allegation of the promise cannot be omitted. Grover v. Railroad…