Legal Definition of Quod Cum
Regulating all forms of action the same, that a plaintiff shall state a complaint in positive, direct terms rather than by reciting.2 min read
It is a general rule in pleading, regulating all forms of action the same, that a plaintiff shall state a complaint in positive, direct terms rather than by reciting. This is considered a positive allegation whereas the Latin "quod cum" refers to a recital. A matter of inducement can, however, be delivered in the form of a recital. In this case, the matter of inducement and recital must be used to introduce the breach of the promise and the fraud or deceit in the defendant's non-performance of that breach.
Examples of Quod Cum
For example, say that a plaintiff declares that there was a communication and agreement concerning a horse race. The plaintiff and defendant both promised to perform parts of an agreement. The performance and agreement concluded in the usual way, and the parties maintained that the inducement and promise were alleged certainly enough. In this example, the word "whereas" used in their communication and agreement could serve as a direct affirmation, similar to using the word "although," thus sufficiently qualifying the agreement as a formal statement of fact and affirmation.
Consider another example where a new book of entries records two entries when there were seven in the old copy. A quod cum could be used in the clause of the promise, as was the case in Ernly v. Doddington. Namely, the plaintiff declared on a bill of exchange against the drawer. This declaration was objected that as a quod cum and thus argumentative and without a direct averment. The objection was overruled because assumpsit is an action on the case. However, the objection may not have been overruled in trespass vi et armis.
“Action on the Case” Vs. “Trespass vi et Armis”
The reason for this distinction is that in assumpsit or other action on the case, the statement of the gravamen, or grievance, always follows some previous matter that is introduced by the quod cum. This statement is dependent or consequent to the quod cum, which only refers to that introductory matter and leads on to a subsequent statement. That statement is therefore positively and directly alleged by the quod cum.
For example, the breach in an action of assumpsit is always preceded by the allegation of the consideration or promise, or some inducement thereto, that leads to the breach of it, which is stated positively and directly. The previous allegations are stated with a quod cum — i.e., by way of recital.
In trespass vi et armis, however, 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. In this case, if a quod cum is used, there is no positive or direct allegation of such an act. After the verdict, the quod cum may be considered as surplusage with the verdict curing the defect.