quod cum

QUOD CUM, pleading; 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 
     2. 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, Hard. 1. go, 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. March v. Southwell, 2 Show. 180. 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. 
     3. 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. Sherland v. Heat 214. After 
verdict the quod cum may be considered as surplusage, the defect being cured 
by the verdict. Horton v. Mink, 1 Browne's R. 68; Com. Dig. Pleader, C 86.