Definition
A special count is a pleading count that sets out the actual, specific facts of the particular case before the court, as opposed to the standardized, formulaic language of the common counts. Where common counts rely on legal fictions and conventional forms to assert claims (such as indebitatus assumpsit for money owed), a special count narrows to the real transaction: the particular promise made, the specific breach alleged, and the concrete circumstances giving rise to the plaintiff's claim.
In practice, a special count compels the pleader to articulate the precise legal theory and underlying facts rather than sheltering within a general form. This specificity carries a cost — a special count that misstates the facts or frames the wrong legal relationship fails more readily than a common count, which is designed to survive under a range of factual circumstances.
Common Confusion
SPECIAL COUNT vs. COMMON COUNT: These two terms define each other by opposition, and confusion arises when researchers encounter pleadings that include both. A single declaration might contain several common counts followed by one or more special counts, all addressed to the same underlying dispute. The common counts serve as fallback positions; the special count carries the primary theory. When courts ruled on demurrers or motions in arrest of judgment, the distinction between which counts survived mattered considerably to the plaintiff's recovery. Modern researchers reading 18th- and 19th-century reports should not assume that a plaintiff's failure on a special count meant total defeat if common counts remained standing.
SPECIAL COUNT vs. SPECIAL PLEA: A special count appears on the plaintiff's side of the pleading — it is the plaintiff's statement of claim. A special plea is a defendant's responsive pleading that goes beyond the general denial. The word "special" in both phrases signals the same thing — departure from standard form — but the terms occupy opposite positions in the adversarial structure.
Why It Matters in Research
The special count is a creature of common law pleading and effectively disappears as a distinct concept once code pleading reforms — beginning with the New York Field Code of 1848 and spreading through the states over the following decades — replaced the old forms of action. A researcher working with pre-code American or English case law will encounter special counts routinely; a researcher working with 20th-century materials almost never will.
The term requires care in historical sources for several reasons. First, the contrast with common counts is load-bearing: to understand what a special count is, the researcher must understand what it is not, and the common counts (money had and received, account stated, quantum meruit, quantum valebat, and others) had highly specific procedural functions. Second, appellate decisions in the 18th and 19th centuries frequently turned on whether a plaintiff's special count was sufficiently precise — whether it alleged a legally cognizable duty, a proper breach, and damages flowing from that breach — and these rulings illuminate both pleading doctrine and the substantive law being litigated. Third, when a declaration contained both special and common counts, the jury's general verdict may not reveal which count it accepted, a recurring interpretive problem for courts ruling on post-verdict motions.
Researchers using Bouvier's will find the entry on "special" instructive for orientation but must piece together the full picture, as Bouvier's treatment is fragmentary at the point where it addresses special counts directly.
Historical Dictionary Support
Black's and Bouvier's agree on the core definition: the special count states the actual facts of the particular case, in contrast to the formulaic common counts. This is the settled position in both sources and in the pleading treatises of the period, including those of Chitty and Stephens on pleading, which elaborated the doctrine at length.
Bouvier's broader entry on "special" is useful for situating the term within a pattern of legal usage — special verdict, special imparlance, special jury, special issue — all of which share the same structural meaning: departure from the general or common form in favor of the particular. This pattern helps a researcher recognize the term's logic when encountering it in unfamiliar procedural contexts.
What the historical dictionaries do not supply is any account of how the special count functioned strategically alongside the common counts within a single declaration, or how courts managed the interpretive difficulties that followed a general verdict on a mixed declaration. For that, the pleading treatises are indispensable.
Jurisdictional Note
The special count was a feature of common law pleading uniformly across English and American jurisdictions that followed the common law forms. Its practical significance varied by the pace of pleading reform in each state. Some states retained common law pleading forms well into the late 19th century; others adopted code pleading promptly after 1848. Federal courts operated under the Conformity Act and then under successive rule revisions until the Federal Rules of Civil Procedure (1938) completed the transition away from common law forms nationally.