"Sir John laid great stress upon the erroneous manner in which the action had been laid, and contended that as the English form of 'assumpsit' had been taken, in order to get both debt and damages, instead of a single action of damages being brought, all the consequences of the form adopted must be taken by the plaintiff, who, not having proved _damages_, or even stated them, must be held by the court to have made out no case, and be cast accordingly."