ASSIGNEE-of a bankrupt-(continued.)

remedy against, for illegal taking of goods, 154
when bankrupt may sue on contract, 22, 25, 26
for a tort, 71

of an insolvent,

action by assignees on contract of insolvent, 26
for tort to his property,
71

on Lord's Act, 23, 56

action by insolvent, 28, 72
against him, 55, 92

ASSIGNMENT (see titles Assignee. New Assignment.)
of breaches (see title Breach.)

in replication, 565 to 588

of debt, where two debtors, &c. 16, 47

ASSIGNOR (see titles Assignee. Landlord and Tenant. Parties.)
ASSUMPSIT, ACTION OF,

parties to, who to be plaintiff and who defendant (see title Parties.)
definition, and general object of it, 938

history of it, 99

when it lies in general, ib.

upon simple contracts not under seal, 99 to 106
upon contracts implied, ib.

where there has been no contract, 1097, 352

when the only remedy,

against an executor or administrator on simple contract, 102

for money payable by instalments, where whole not due, 102, 103

on collateral undertaking, 103

on a bill or note where there is no privity, ib.

on an award not for payment of money, and where there is no bond, ib.
when not sustainable, and exceptions, 103 to 107

not on a deed or record, 103

not where there originally was a valid deed or record, ib.

exceptions, where defendant cannot be sued on the deed, 103, 105
where deed not executed by defendant, ib.

[103, 104
suing owner of ship in assumpsit, though deed with master,
for rent, where there is no demise, 104

where there has been a deed of separate maintenance, ib.

where the deed is invalid, ib.

when there has been a new contract, ib.

on a contract in consideration of forbearance, ib.

on an account stated between partners, 104, 105, 39
where there has been a fresh agreement, 105
on a contract unconnected with the specialty, ib.
not where a higher security has been since taken, ib.
exceptions where fresh deed, &c. invalid, ib.
bond for rent no extinguishment, ib.

not a mere collateral security, ib.

it lies for rent, &c. issuing out of realty, when, ib.
on a statule, 106

on a judgment of a court not of record, ib.

on Irish Judgment or decree of court of equity, ib.
when not by a partner against his co-partner, 39

when not by or against a corporation, 106

not in case of illegal distresses, &c. 100, 107, 138

when not advisable to sue in, 107, 207, to 209

when case a concurrent remedy with, 134

when advisable to sue in case in preference to, ib. 207 to 209
when not so advisable, ib. 107

2, of variances in stating the consideration, 298 to 301
defect of consideration, and how to be objected to, &c.

3, promise or contract, statement of, 301 to 320

1, how to be stated, 301 to 305

to be stated in words or according to legal effect, 305
super se assumpsit proper in all cases, 301

certainty, 302

by and to whom, 302, 307

[301

sufficient to show that part on which the action is found-

ed, 304, 309, 310, 314, 317

need not show that contract was in writing,

2, variances in stating the promise or contract,
in general, 305, 6

statement according to legal effect, 306, 312
or in the words of instruments, ib.

misdescription of parties to contract, 307
blending two contracts in one count, 308

in stating alternative or conditional contract, ib.

how to set out contract with exception or proviso, 309

mis-statement of part of contract, 310

variance as to time of performing, 311

instances of literal errors, 312

statement contrary to legal intendment, sb.

instances of statement being in accordance with legal

Leration, 313

[struments, 319

immaterial omissions, colaterial provissions, &c. 314

stating part of promise, 317

amendment at the trial of variance in stating written in-
scilicets, 317, 318

4, averments (see title Averments,) 320 to 332

defined, 320

ASSUMPSIT, ACTION OF-(continued.)
DECLARATION-(continued.)
Special Counts-(continued.)

1st, of the performance, &c. of a condition precedent, 320
not necessary when consideration was executed, 320
necessary where consideration was executory, ib.
when necessary in case of mutual conditions, 321
general rules as to averments, and when necessary to
aver performance or excuse of, 320 to 325
for form of averment, 324

form of,

should in substance accord with contract, 333
what sufficient, ib.

where the contract was in the disjunctive, 334

if too large or too limited, bad, 334, 335

injudicious to be too narrow, 335

should be certain and particular, 336

several breaches when they may be assigned, ib.

of the allegation of defendant's fraudulent intent, 337
insufficiency or omission of breach, ib.

6, damages, (see title Damages.)

what necessary to be stated, 338

damages necessarily incident need not, ib.
but special damage must, ib,

too abundant a statement not prejudicial, 339
how to be stated, ib.

consequences of mis-statement, ib.

Common Counts, 339

general utility of, ib.

are for money demands, 340, 342

the indebitatus assumpsit count, 341

the quantum meruit, now virtually abolished, ib.

the quantum velebant, now virtually abolished, ib.

the account stated, 342

common breach, ib.

history of these counts, and when in general sustainable, 340, 342,
343

general form and requisites of, 342, 343

when relating to real property, use and occupation, &c. 343

to goods sold, 345 to 348

to work and personal services, 348, 349

to money lent, 349

ASSUMPSIT, ACTION OF-(continued.)
Common Counts—(continued.)

when relating to account stated, 358

to money paid, 350

to money had and received, 351 to 356
to interest, 356

761

enactment of 3 & 4 W. 4, c, 42, s. 28, re-
specting interest, 256,

by and against executors and assignees, &c. 359, 360

Joinder of several counts in, 408

with other forms of action, 199

Reg. Gen. respecting declarations in, 723, &c.

PLEAS IN-(see tit. Pleas.)

VOL. I.

of the several pleas in, before and since Reg. Gen. Hil. T. 4 W. 4, 475 to 520
to the jurisdiction-(see title Jurisdiction.)

in abatement-(see title Abatement.)

in bar-(see title Pleas in bar, in general, 469)

analytical table of defences, 471

the several pleas, before the recent rules,

the general issue non assumpsit in general, 476

form of it, ib.

nil debet, or not guilty, bad, 476, notes (s) and (t)

[481

what might formerly have been given in evidence under it, 476 to

another person who ought to sue, 476

infancy of defendant, ib.

lunacy, ib.

drunkenness, ib.

coverture, 477
illegality, ib.

alien enemy, plaintiff, ib.

statute of frauds, ib.

release before breach, ib.

alteration of contract, ib.

performance, ib.

non-performance of condition, ib.

illegality of contract, ib.

bankruptcy of plaintiff, ib.

coverture of plainliff, ib.

payment, 478

accord and satisfaction, ib.

negotiable security, ib.
foreign attachment, 478

arbitrament, ib.

judgment recovered, ib.

higher security, ib.

release after breach, ib.

objections to non assumpsit, 478, 479

better to plead specially when, ib.

special plea when formerly necessary, ib.

alien enemy, plaintiff, ib.

provisional assignment, ib.

outlawry, plaintiff, ib.

bankruptcy of defendant, ib.

insolvent debtor, defendant, ib.

tender, ib.

set-off, ib.

limitations, statute of, 478, 479

96

ASSUMPSIT, ACTION OF-(continued.)

PLEAS IN-(continued.)

court of conscience acts when, ib.

when at liberty to plead specially and advisable, 480

Since Reg. Gen. Hil. T. 4 W. 4, all defences must be pleaded specially, 512
to 520, 743

the qualities of pleas in bar, (see title Pleas in Bar.)

the forms of pleas in bar, &c. (see title Pleas in Bar.)
REPLICATIONS TO,

1. several sorts,

when de injuria admissible, 584

to a plea of infancy, 581
to a plea of coverture, 581

alien enemy, ib.

insolvent debtor's act, &c. ib.
illegality of the contract, ib.
tender, ib.

accord and satisfaction, 582
arbitrament, ib.

judgment recovered, &c. ib.
release, ib.

set-off, ib.

court of conscience, 583

statute of limitations, ib.

2. forms of, (see title Replications, and the particular heads.)
3. qualities of, (see title Replications, and particular heads.)
REJOINDERS IN, (see title Rejoinders.)

form of Issue in, 745

ASSURED,

of Nisi Prius Record, ib.

of judgment for plaintiff in, 746
of Issue to be tried by Sheriff, ib.

of Writ of Trial, ib.

of Indorsement of Verdict. 447

of Indorsement of Nonsuit, ib.

of Judgment for the Plaintiff after Trial by Sheriff, ib.

statement of interest of, 743

ATTACHMENT,

debt for escape under, when it does not lie, 112

ATTACHMENT, FOREIGN, (see title Foreign Attachment.)

ATTAINDER,

plea that plaintiff has been atiainted of treason or felony, 446 to 448
defendant cannot plead his own attainder, 447, note (b)

ATTORNEY, (see titles Agent. Bailee. Servant.)

remedy against,

who to sue for not investigating title where employer dies, 19, 20, 69
when personally liable on a promise, 35

assumpsit against, 102

case against, 134

trespass against, for irregular process, &c. 84, 85, 180

conclusion of declaration against, 420

how and when to appear and plead by, 427 to 429

what pleas to be pleaded by, 427, 428

in name of only one attorney, and not several, 428

plea of privilege by, when affidavit formerly not necessary, 463
when sued improperly, privilege how rendered available, 453

sued as attorney, not being so, ib,

title of term of, pleaded in abatement, 455