fine intellect-Lord Mansfield;-of whom it is eloquently said, that "he apprehended the facts with such clearness, retained every circumstance with such ease, and weighed the ingredients of equity in so just a balance, that one is at a loss whether to admire most, the quickness of his apprehension, the strength of his memory, or the soundness of his judgment."

There occurs in an excellent work on legal studies, such a vivid picture of the advocate destitute of a "clear and settled judgment,” as is calculated to form an instructive finale to this chapter.

"How would that advocate appear, who should stand up in a court of judicature, without having acquired a clear comprehension of the nature of his case, and of its various parts and circumstances : wandering from this to that part of his subject, unable to discern what part to produce and what part to retain; fixing, by chance, upon some weak or disjointed member, and then, with an unmeaning solemnity, dragging it forth as the main support of his cause; discovering his mistake only by the impatience of his auditors, and covered with confusion at a sense of his inability to rectify it! Unwilling, however, to terminate his efforts abruptly, he has recourse to his imagination-and this serves only to make his weakness the more conspicuous: his uncertainty increases; he continues to heap words upon words without meaning or end;-now, in all the violence of anger, he declaims upon the injustice-but of what, he cannot

tell: now, he would argue-but like a man talking in his sleep, he has no single certain position on which to found his argument: now, he would complain-now, remonstrate-now, entreat: till at length, his speech becomes a chaos, and nothing but his silence can restore him, and those whom he addresses, to regularity and the light *.”

* Raithby's Letters, pp. 224, 225, 2nd ed.

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.