the plaintiff's only remedy was by a special assumpsit on the agreement *. Numerous instances might be given of failure occasioned by declaring, on the other hand, specially, when a common count would have enabled the plaintiff to recover: and such are most frequently cases founded on the ordinary transactions of business, and on which the practitioner is called to exhibit equal promptitude and accuracy. A tradesman or manufacturer may have so acted as to deprive himself of any remedy on * The ground on which Lord Ellenborough decided, was, that the plaintiff was too late to rescind the contract. After distinguishing between the case before him, and that of Giles v. Edwards 7 T. R. 181, his Lordship proceeded "The plaintiff there had no opportunity, by the terms of the contract, of making his stand to see whether the agreement were performed by the other party before he paid his money, which the plaintiff in this case had: but instead of making his stand, as he might have done, on the defendant's non-performance of what he had undertaken to do, he waived his right, and voluntarily paid the money; giving the defendant credit for his future performance of the contract; and afterwards continued in possession, notwithstanding the defendant's default. Now where a contract is to be rescinded at all, it must be rescinded in toto, and the parties put in statu quo. But here was an intermediate occupation, a part execution of the agreement, which was incapable of being rescinded. If the plaintiff might occupy the pre mises two days beyond the time when the repairs were to have been done, and the lease executed, and yet rescind the contract, why might he not rescind it after a twelvemonth on the same account?This objection cannot be gotten rid of; the parties cannot be put in statu quo." And see a similar mistake made in Mussen v. Price, 4 East 147, and Lightfoot v. Creed, 8 Taunt, 268. the agreement that has been entered into between him and his employer, and yet be entitled to remuneration for his labour and materials bestowed and provided—and which a common count would secure him, at very little risk or expense. Where work, for instance, is to be done according to a special agreement between the parties, regulating the quantity, price, and times of payment, and the parties deviate from the original contract, the terms of which are not applicable to the new work, the plaintiff would be entitled to recover for the latter, on the common counts, even although the time for completing the payments under the original agreement had not expired when the action was commenced*. It was always important to discriminate between a * See Robson v. Godfrey, 1 Starkie, 275—and cases collected in Harrison's Digest, Phillipps on Evidence, and Saunders on Pleading and Evidence. The first case was an action brought against the owners of a ship, for repairs done to her; the plaintiff declaring upon the common counts for work and labour. It appeared in evidence that a special agreement had been entered into for repairing the vessel according to an estimate which had been made, according to which the plaintiff was to be paid certain sums at specified periods, viz. 1007. at the end of a fortnight-the like sum at the end of four weeks; the like sum at the end of six weeks; and the remaining sum of 3207. by an approved bill at six months, with interest. The six months had not expired when the action was commenced. After the repairs had been proceeded in to a considerable extent, the parties deviated from the original plan, and the repairs had been completed in a manner to which the estimate already made did not apply. Gibbs, C. J. then, in his summing up, laid down the principle stated in the text. cause of action which might be prosecuted exclusively in a common or a special count: but as these two were almost invariably joined together, the plaintiff, if he had any merits, was generally sure of a verdict on one or other of his counts. Now, however, as has been already stated in a former part of the work, only one count is allowed for a single cause of action! So that a plaintiff can no longer fly from a general to a special, or a special to a general count-he must stand or fall with the one he has selected: and to enable him to do this with safety, he must possess an accurate acquaintance with the very extensive and difficult subjects of sale and delivery of goods, works and services, &c. &c.—of which an instructive instance was given in a former page *.-As a general rule, it may be laid down in the language of Mr. Saunders, that "the declaration must be special, when the contract is founded on a consideration which remains executory, or on a consideration of legal liability without an express promise, or on a consideration of mutual promises or on a contract to do or forbear an act which is not to pay or re-pay money, or the value of chattels. It cannot be common, but where debt lies, and where the contract was to pay or re-pay money, or the value of chattels, and the consideration is executed, (and not merely executory) and not upon mutual promises +." * See ante pp. 237-242. † Saund. Plead. & Evid. pp. 111, 2. Let then, the student-at least during the earlier period of his pupilage-address himself chiefly to these common counts, with the correspondent pleadings-by which so much of the ordinary business of life is regulated: let him not concern himself with the "weightier matters of the law"-heavy special declarations and pleas, but leave them to those more advanced in their studies. When they have drawn their declaration or plea, and it has been settled, then let the junior pupil take it, and read over the whole with great care and attention-making a copy of it where his tutor advises him to do so. A little steady perseverance in this course will soon reward the student with the consciousness of making rapid progress in his studies. SECTION II. HOW TO ACQUIRE A FACILITY OF REFERENCE. "Knowledge is of two kinds," said Dr. Johnson; "we know a subject ourselves, or we know where we can find information upon it." This is especially applicable to the study and practice of the law for in the vast multiplicity of its topics, what memory can, especially in the early stages of study, pretend to a practical familiarity with a * Boswell's Life of Johnson, vol. iii. p. 75. thousandth paat of it? A facility of reference will in a great measure compensate for this deficiency-and as the acquisition of that facility may certainly be expedited, it will be the Author's endeavour, in this section, to offer a few little practical expedients and suggestions toward the advancement of so desirable an object. When a "case" is put into the hands of the young student, unless his tutor happen to be at hand to assist him, he will be often utterly at a loss in what direction to look for the law on the subject-and possibly spends hours in turning over book after book, in the vain hope of lighting upon something "in point.”— Few things are so calculated to fret and dishearten a student, as frequent unsuccessful researches of this kind. Let, therefore, one of his earliest objects be to familiarise himself with the leading heads of law, so that, on reading over any statement of facts, he may at least know in what quarter to look for information -as, Principal and Agent-Stoppage in Transitu Tender-Set-off-Agreements-Bills of Exchange— Death of Parties-&c. &c. &c. as enumerated in the Table of Contents in any of the leading works of reference. Harrison's Digest will prove thus a nomenclator Servus, qui dictet nomina, lævum Qui fodicet latus. He must make a practice of carefully running his eye |