QUAINTANCE WITH THE USE OF THE COMMON

COUNTS IN ASSUMPSIT AND debt.

It has been already stated that Contracts are a very fertile source of litigation—and that, too, often of the most difficult description. It has also been explained that there are but eight forms of personal actions, i.e. settled modes of prosecuting particular claims. It will be sufficient for our present purpose further to

*

In a former part of the work (page 16), it is said that there are now but six forms of personal actions, which is perhaps the correct method of stating it; inasmuch, as assumpsit and trover, important and extensive in their case though they be, are but species of the genus of "trespass on the case." See Per Tindal, C. J., Richards v. Stuart, 10 Bing. 320.

inform the young reader, that "all contracts are, by the laws of England, distinguished into agreements by specialty, and agreements by parol-there being no such third class as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved*." By the term "specialty" contracts, is signified, those which are effected by means of instruments in writing, deliberately and solemnly sealed and delivered as deedstwo things, "which alter the nature and operation of the agreement." It does not signify how formal

* Per Skynner, C. B., Rann v. Hughes, 7 T. R. 350, note (a). + Chitt. Jun., on Contracts, p. 3 (2nd ed.)—The following passage from Plowden's Reports, will place the subject very distinctly before the young reader :-" And, Sir, by the law of this land there are two ways of making contracts or agreements for lands or chattels. The one is by words, which is the inferior method; the other is by writing, which is the superior. And because words are oftentimes spoken by men unadvisedly, and without deliberation, the law has provided that a contract by words shall not bind without consideration. As if I promise to give you 201. to make your sale de novo, here you shall not have an action against me for the 207. for it is a nude pact, et ex nudo pacto non oritur actio; and the reason is, because it is by words which pass from men lightly and inconsiderately; but where the agreement is by deed, there is more time for deliberation; for when a man passes a thing by deed, first there is the determination of the mind to do it, and upon that he causes it to be written, which is one part of deliberation; and afterwards he puts his seal to it, which is another part of deliberation; and lastly he delivers the writing as his deed, which is the consummation of his resolution: and by the delivery of the deed from him that makes it to him to whom it is made, he gives his assent to part with the thing contained in the deed to him to whom he delivers the deed-and this delivery is as a ceremony in law, signifying fully his goodwill, that the thing

and complicated a written agreement may be-it is still, in legal language, a parol one—if it be not sealed and delivered as a deed by the party executing, and bound by it, to the person to whom the liability is incurred. This latter class of agreements by parol it is, therefore, as may readily be supposed, which, suddenly made and often as thoughtlessly broken, most frequently occupies the attention of courts of law; and the only "forms of action" appropriated to them, are those of Assumpsit and Debt*. Without entering into a definition or description of these actions, it may be here stated, that each has a special and a common form, i. e. the one long, intricate, and difficult; the other short, simple, and easy. Now it is the object of this section to call the young reader's earnest attention to the latter-the "common counts" of assumpsit and debt: in Littleton's language, "to counsel him to employ his courage and care to learn" how and when to use them.

A special count sets out the facts of the case fully: the circumstances under which the agreement was made the agreement itself, or its legal effect, ex

in the deed should pass from him to the other. So that there is great deliberation used in the making of deeds-for which reason they are received as a lien final to the party, and are adjudged to bind the party, without examining upon what cause or consideration they were made." Sharrington v. Strotton, Plowden, 308 a.

*To show the formal difference between the common counts in Debt and Assumpsit, an instance is given in the Appendix, of the same demand made in both species of action.

actly the manner in which the plaintiff performed his part of it, and the defendant's non-performance-all this being a matter often of much nicety and responsibility; especially since only one count is now allowed, and by it the plaintiff must stand or fall *. Hence it is, that when papers come into chambers, affording promise of "a special declaration," they are caught up by eager and zealous pupils, who bestow upon them infinite pains; and when the declaration has been "settled," as it is called, by the pleader, they will contrive to copy it into their book of Precedents, where it may be "found after many days," should such a peculiar combination of circumstances ever again come under their notice. In the meanwhile, a dozen sets of papers may have come in, requiring, as the pleader informs them, "only the common counts," and, therefore,thinks the pupil-beneath his notice. They are therefore left to the tender mercies of the clerk, or to their tutor; or, perhaps, our worthy student may at length condescend to fill in the "common forms" with careless haste, murmuring at his being detained from higher matters. Thus, too often, does the student sit day after day, watching, as it were, for a high wave of interest and importance to rise above the surface of ordinary routine; while the great under-cur

* In order to give an idea of the mode of stating facts in the form of a special count in assumpsit, instances will be found in the Appendix of Declarations for a breach of promise of marriage-for a wager at a horse-race-and money won at cribbage.

rent of business is gliding away unregarded through the fixed and settled channels of these same common counts; thus the prudent pupil will stand a fair chance of doing that well, which he will probably not be called upon to do above once or twice a-year, and be puzzled and confounded at that which will constitute his daily business!

The "form" of these counts is certainly common enough, that is to say, as far as brevity and simplicity of structure are concerned; but very uncommon learning and judgment are often necessary to enable the practitioner to decide upon the adoption of them. A long and complicated state of facts is, alone, sufficient to induce a superficial lawyer to adopt a special count; but one who clearly understands his profession, will see at once that the proper mode of declaring will be in the common form*.-The student must not suppose that because he sees three-fourths of a book on pleading occupied with special counts, that the common ones are dismissed so summarily because they are of less importance. It is true that the rules regulating the latter are comparatively few and simple ; but those which regulate their applicability to given combinations of fact, are as extensive and complicated,

*There are a great variety of agreements not under seal," says Lord Ellenborough, "containing detailed provisions regulating prices of labour, rates of hire, times and manner of performance, adjustment of differences, &c., which are every day declared upon in the general form of a count for work and labour." Clark v. Gray, 6 East, 569.