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the different divisions of it, and the general rules applicable to those divisions. But he had always conceived that the best practical elucidation of the subject would consist of a kind of commentary, on the different parts of the declaration and pleadings in each particular action; as by adopting this mode, the precedent, on which any question might arise in practice, would of itself, as it were, form an index by which the particular information desired might be most readily found.

It is impossible to peruse the common cause papers in London and Middlesex, without perceiving that the great majority of actions, which are tried in the courts of law at the present day, are actions of assumpsit. The very extensive use of this form of action was the reason for making the pleadings in it the subject of the first part of the author's plan; and the very numerous questions which have arisen on them will sufficiently account for the bulk of this volume. It is strictly confined to the declaration and pleadings in this species of action, for reasons which are given in the course of the work; and it must occur to every reader that this volume is compleatly detached from any which may in future be published on the pleading in other actions.

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It has not been thought necessary, in a work of this nature, to consider where assumpsit is the proper form of action, or not; or who are, or or are not persons to be made parties; which are rather questions of nisi prius law, or on the doctrine of actions, than of pleading. Nor has it been thought necessary to enter into the several questions which have been recently discussed, both in the courts of king's bench of common pleas, as to the consequences of declaring on the contract, instead of the torte. But the propriety of adopting a special or general form of declaring in assumpsit, being purely a question of pleading, has been fully considered, and forms the subject of the first chapter.

Where a debt is not created by the execution of a simple contract, and it becomes necessary to declare specially upon it, as it was in fact made, the nicest questions continually arise upon every part of the statement in the declaration. The author has therefore endeavoured to collect and methodize all the information which the books afford, as to stating the inducement, consideration, promise, and the different averments, of performance, notice, and request, toge

ther

Govett v. Radnidge, 3 East. 62. Powell v. Layton, 2 N. R. 365. Max v. Roberts, 12 East, 89 Weale v. King, E. 50. Geo. 3. H. B. d Page 1, 2.

ther with the breach, &c. in declaring in special assumpsit; and where the authorities were so numerous as to require it, he has first stated those which appeared to him to establish general rules applicable to those different statements, and then those cases which peculiarly applied to particular actions of assumpsit, with reference to the subject matter of the action, as, whether it respected the person, or personal or real property of the plaintiff. This part of the subject has been very fully and elaborately discussed; and the discussion of it perhaps forms the most novel and important part of the volume. In considering the inducement, the author has endeavoured to explain the nature, use, and necessity of inducement in this action, and the certainty requisite therein. In treating of the consideration, he has considered the necessity of stating one; what consideration is sufficient; the different sorts of considerations; in what form they should be alledged, and what defective statement of them is fatal. On the subject of the promise, he has endeavoured to explain what parts of the contract must be stated, and how, and the certainty necessary in the statement. The doctrine of variances is fully discussed under this head. He has then adverted to the consequences of a defective statement, or finding of the promise. The averments of performance, no

tice

Pages 36. 64. 157. 285.

In

tice, and request, are thoroughly considered. treating of the former of these averments, the reader will find where such averments are necessary, and the different sorts of them; how they should be alledged, and how a defective averment may be remedied or cured. In considering the averments of notice and request, the several cases as to where such averments are necessary, and in what form they must be alledged, are collected, methodized and explained. In treating of the breach, it is endeavoured to be shewn what is a good breach; in what part of the declaration it should, and may be assigned; the different sorts of breaches; and the certainty necessary in each; where the allegation of several branches is proper; and how a defective assignment of breach, or breaches, may be taken advantage of, or aided. Some useful observations will also be found as to the statement of special damages in this action.

As actions on bills of exchange, &c. are so continually the subject of litigation, and so many questions have arisen as to the form of declaring on them, the reader will find the numerous authorities in the books upon this head very fully discussed, in two separate chapters; in which the ancient and modern practice of declaring on these instruments, and each separate allegation and averment in such declarations, is distinctly commented upon and explained. One whole

whole chapter has also been assigned to the form of declaring in special assumpsit on policies of assufance, &c.

The vast number of cases in the books on the common counts in assumpsit, usually called indebitatus and quantum meruit and quantum valebant counts, have been thoroughly investigated and methodized; the former being classed under a twofold division, of indebitatus counts in general, and indebitatus counts in particular actions of assumpsit.

The several defences which may be specially pleaded in this form of action are divided and distinguished, and the different replications, &c. belonging to each division classed together, and the authorities upon the several allegations in each particular plea and replication stated, in the order in which they occur in the best precedents.

With respect to the authorities cited for the different positions in this work, the original source of them has been uniformly consulted; and very seldom is any more than one authority cited for the same proposition, as it generally happens that there is some difference, worthy of observation, between the cases upon any given subject, which cannot therefore be too distinctly considered. The author's object has

been

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