Breach. evidence against the defendant, either on the count upon the policy, or on that upon the account stated; although if it be made upon any misconception of the law, or fact, the underwriter will not be concluded by it. And where the same witness who proved the signature of the defendant at the adjustment, deposed that after the adjustment took place, doubts arose in the minds of the underwriters as to the honesty of the transaction, it seems to have been held that the plaintiff must produce other evidence'. But Mr. Serjeant Marshall observes, that the case last cited, as reported, cannot be deemed of sufficient weight or authority, to alter or shake the rule aş laid down in the case of Hog and Gouldney, and which was confirmed by Lord Kenyon in the case of Rodgers and Maylor; and that the case of Thelluson and Fletcher does not, as it has been supposed, at all interfere with that rulet. So, a submission to arbitration, and an award, may be given in evidence on a count on the policy, on the same principle as admissions of the party are daily given in evidence". The breach of the contract of insurance, by the non-payment of the money insured by the defendant, must of course be stated in the declaration". But this is usually included in the general breach at the end of all the counts, which states that the defendant has not paid the several sums of money declared upon, or any 4 Rodgers v. Maylor, Park 103. Sheriff v. Rolls, 5 Esp. 96. S. P. De Garron v. Galbraeth, Park 163. $ Doug. 301. t Marshall 636, 7. 682. Kingston v. Phelps, Peake's Rep. 227. V " Mar shall 681. any part thereof, to the plaintiff, and alledges a request and refusal to pay the same"; this includes at once the sum stated to have been insured by the defendant, as well as the other sums declared for in the counts for money had and received, &c. Sed vide ante 414. EE CHAPTER XIIL OF INDEBITATUS COUNTS, IN GENERAL. Where these counts are proper. IT has been already observed, that the declaration in general assumpsit, is either indebitatus assumpsit, or upon a quantum meruit, or quantum valebanta; the first of which forms of declaring is said to be indebitatus assumpsit, because it can only be adopted where the action is brought for a certain debt, due on simple contract, for sufficient consideration, and executed before the commencement of the action; in which case, the plaintiff has only to state the consideration of the defendant's promise, the promise itself, and the breach of it. The general rules applicable to each will be separately considered, before we treat of the statement of considerations in particular cases. Some authors consider the count on an insimul сотриtássent as a third species of general assumpsit; and, that there is a fourth species, on promises to pay money in consideration of legal liabilities, which has been termed a liability assumpsit, as, for copyhold fines, tolls, or the like. But it is conceived, that the count on an insimul computâssent is a species of indebitatus count, as it states that the defendant, being found ། found indebted on the accounting, promised to pay the sum due; and although the plaintiff used to declare specially for fines, or tolls, &c. setting out his title to them, and concluding with stating the defendant's liability to pay them, yet that special form of declaring has been frequently determined to be unnecessary, and it is now universally disused. It has indeed been considered, by one of the greatest judges of modern times, an extraordinary proposition to admit, that these general counts were good in the case of tolls, and copyhold fines; and Lord C. J. Holt used to say, that he was a bold man who first ventured on these general counts in assumpsit; but the practice of using them, even in the above cases, has been too long and universally adopted, and too frequently recognized, to admit of a doubt as to it's being warrantable. as considera tion. The consideration for the promise generally con- What stated sists of the debt which the defendant owes the plaintiff; but where the latter declares in indebitatus assumpsit, on an account stated, or insimul computâssent, as it is called, (because it alledges that the parties accounted together) the consideration for the promise is the statement of the account of the sums due which constitute the debt, and not the existence of the debt itself"; therefore it is, as will be hereafter more fully shewn, that where the plaintiff declares in indebitatus assumpsit, except on an account stated, he must state the cause of the debt, which is unne cessary to be alledged, when he declares not on the debt itself, but the account stated respecting it'. d1 D & E. 616. e Lord Chief Justice Eyre. * 2 Str. 933. 1 D. &. E. 42. per Buller, J. In f1 B. & P. 102, 3. How consideration stated, in general. Time and place, in stating it. Semb. not necessary. In stating the debt in indebitatus assumpsit, and the cause of it, where that is shewn, it is usual to say, that the defendant on a certain day, at a certain place, was indebted to the plaintiff, in a certain sum, for his labor, or whatever the cause of the debt may be describ ing it, and stating it to have been incurred at the special instance and request of the defendant. In declaring on an insimul computâssent, or account stated between the parties, the usual form is, that the defendant afterwards, to wit, on the same day, at the same place, accounted with the plaintiff, concerning other sums due, and then in arrear to him from the defendant; and upon that account, the latter was then and there found to be in arrear and indebted to the former in the further sum of so much. It will be proper to consider the necessity and materiality of each of these circumstances in the statement of the consideration of the promise, namely, the day and the place when and where, and the sum in which, the defendant is stated to be indebted, before we consider the statement of the cause of the debt itself, where that is alledged (as it always is except in declaring on an account stated) and the mode in which it is alledged to have accrued, namely at the defendant's request. And first of the necessity of stating a time or place, in alledging the consideration of the promise, and it's materiality, when stated. Where error was brought upon a judgment in assumpsit, because in the count upon the insimul computássent no time was laid when, nor place where the account was stated; Holt, C. J. is reported to have said, that it was the same thing as if a man should declare that at Cambridge, the defendant was indebted to him for goods sold, without saying where they were sold, whereas |