The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• A Table of British Regnal Years
• Select Essays In Anglo-american Legal History: Volume Iii History of Particular Topics, Continued
• Part V.: Commercial Law
• 47.: Thomas Edwar Scrutton, General Survey of the History of the Law Merchant 1
• 48.: Spencer Brodhurst, the Merchants of the Staple 1
• 49.: Francis Marion Burdick, Contributions of the Law Merchant to the Common Law 1
• 50.: Edward Jenks, the Early History of Negotiable Instruments 1
• 51.: William Cranch, Promissory Notes Before and After Lord Holt 1
• 52.: William Reynolds Vance, the Early History of Insurance Law 1
• 53.: Edward Wyndham Hulme, the Early History of the English Patent System 1
• 54.: Joseph Henry Beale, Jr., the History of the Carrier’s Liability 1
• 55.: Cecil Thomas Carr, Early Forms of Corporateness 1
• 56.: William Mitchell, Early Forms of Partnership 1
• 57.: Samuel Williston, the History of the Law of Business Corporations Before 1800 1
• 58.: Simeon Eben Baldwin, History of the Law of Private Corporations In the Colonies and States 1
• Part VI.: Contracts
• 59.: James Barr Ames, the History of Assumpsit 1
• 60.: James Barr Ames, the History of Parol Contracts Prior to Assumpsit 1
• 61.: John William Salmond, the History of Contract 1
• 62.: Crawford Dawes Hening, History of the Beneficiary’s Action In Assumpsit 1
• 63.: Oliver Weldell Holmes, Jr., the History of Agency 1
• Part VII: Torts
• 64.: James Barr Ames, the History of Trover 1
• 65.: Van Vechten Veeder, the History of the Law of Defamation 1
• 66.: John Henry Wigmore, Responsibility For Tortious Acts: Its History 1
• Part VIII: Property (in General)
• 67.: James Barr Ames, the Disseisin of Chattels 1
• 68.: Frederick William Maitland, the Mystery of Seisin 1
• 69.: Arthur George Sedwick and Frederick Scott Wait, the History of the Action of Ejectment In England and the United States 1
• 70.: Harold Dexter Hazeltine, the Gage of Land In MediÆval England 1
• 71.: Arthur Underhill, Changes In the English Law of Real Property During the Nineteenth Century 1
• Part IX.: Wills, Descent, Marriage
• 72.: Charles Gross, the MediÆval Law of Intestacy 1
• 73.: Oliver Weldell Holmes, Jr., Executors In Earlier English Law 1
• 74.: Robert Caillemer, the Executor In England and On the Continent 1
• 75.: Melville Madison Bigelow, the Rise of the English Will 1
• 76.: James Bryce, Marriage and Divorce Under Roman and English Law 1
• List of Authors Contributing

PART VI.

CONTRACTS

• 59. The History of Assumpsit.James Barr Ames.
• 60. The History of Parol Contracts prior to Assumpsit.James Barr Ames.
• 61. The History of Contract.John William Salmond.
• 62. The History of the Beneficiary Third Person’s Action in Assumpsit.Crawford Dawes Hening.
• 63. The History of Agency.Oliver Wendell Holmes, Jr.

Other References on the Subject of this Part are as Follows:

History of the Common Law Theory of Contract, by C. Morse (Canada Law Journal, 1903, XXXIX, 379-395).

The Doctrine of Consideration, in English Law, by E. Jenks (London, 1892), cc. III, IV.

The Foundations of Legal Liability, by T. A. Street (Northport, 1906), vol. II, cc. I-IV, vol. III, cc. X-XVI.

59.

THE HISTORY OF ASSUMPSIT1

By James Barr Ames2

I.—

EXPRESS ASSUMPSIT

THE mystery of consideration has possessed a peculiar fascination for writers upon the English Law of Contract. No fewer than three distinct theories of its origin have been put forward within the last eight years. According to one view, “the requirement of consideration in all parol contracts is simply a modified generalization of quid pro quo to raise a debt by parol.”3 On the other hand, consideration is described as “a modification of the Roman principle of causa, adopted by equity, and transferred thence into the common law.”4 A third learned writer derives the action of assumpsit from the action on the case for deceit, the damage to the plaintiff in that action being the forerunner of the “detriment to the promisee,” which constitutes the consideration of all parol contracts.5

To the present writer6 it seems impossible to refer consideration to a single source. At the present day it is doubtless just and expedient to resolve every consideration into a detriment to the promisee incurred at the request of the promisor. But this definition of consideration would not have covered the cases of the sixteenth century. There were then two distinct forms of consideration: (1) detriment; (2) a precedent debt. Of these, detriment was the more ancient, having become established, in substance, as early as 1504. On the other hand, no case has been found recognizing the validity of a promise to pay a precedent debt before 1542. These two species of consideration, so different in their nature, are, as would be surmised, of distinct origin. The history of detriment is bound up with the history of special assumpsit, whereas the consideration based upon a precedent debt must be studied in the development of indebitatus assumpsit. These two forms of assumpsit will, therefore, be treated separately in the following pages.

The earliest cases in which an assumpsit was laid in the declaration were cases against a ferryman who undertook to carry the plaintiff’s horse over the river, but who overloaded the boat, whereby the horse was drowned;1 against surgeons who undertook to cure the plaintiff or his animals, but who administered contrary medicines or otherwise unskilfully treated their patient;2 against a smith for laming a horse while shoeing it;3 against a barber who undertook to shave the beard of the plaintiff with a clean and wholesome razor, but who performed his work negligently and unskilfully to the great injury of the plaintiff’s face;4 against a carpenter who undertook to build well and faithfully, but who built unskilfully.5

In all these cases, it will be observed, the plaintiff sought to recover damages for a physical injury to his person or property caused by the active misconduct of the defendant. The statement of the assumpsit of the defendant was for centuries, it is true, deemed essential in the count. But the actions were not originally, and are not to-day, regarded as actions of contract. They have always sounded in tort. Consideration has, accordingly, never played any part in the declaration. In the great majority of the cases and precedents there is no mention of reward or consideration. In Powtuary v. Walton1 (1598), a case against a farrier who undertook to cure the plaintiff’s horse, and who treated it so negligently and unskilfully that it died, it is said: “Action on the case lies on this matter without alleging any consideration, for his negligence is the cause of the action, and not the assumpsit.” The gist of the action being tort, and not contract, a servant,2 a wife,3 or a child,4 who is injured, may sue a defendant who was employed by the master, the husband, or the father. Wherever the employment was not gratuitous, and the employer was himself the party injured, it would, of course, be a simple matter to frame a good count in contract. There is a precedent of assumpsit against a farrier for laming the plaintiff’s horse.5 But in practice assumpsit was rarely, if ever, resorted to.

What, then, was the significance of the assumpsit which appears in all the cases and precedents, except those against a smith for unskilful shoeing? To answer this question it is necessary to take into account a radical difference between modern and primitive conceptions of legal liability. The original notion of a tort to one’s person or property was an injury caused by an act of a stranger, in which the plaintiff did not in any way participate. A battery, an asportation of a chattel, an entry upon land, were the typical torts. If, on the other hand, one saw fit to authorize another to come into contact with his person or property, and damage ensued, there was, without more, no tort. The person injured took the risk of all injurious consequences, unless the other expressly assumed the risk himself, or unless the peculiar nature of one’s calling, as in the case of the smith, imposed a customary duty to act with reasonable skill. This conception is well shown by the remarks of the judges in a case against a horse-doctor;1 Newton, C. J.: “Perhaps he applied his medicines de son bon gré, and afterwards your horse died; now, since he did it de son bon gré, you shall not have an action. . . . My horse is ill, and I come to a horse-doctor for advice, and he tells me that one of his horses had a similar trouble, and that he applied a certain medicine, and that he will do the same for my horse, and does so, and the horse dies; shall the plaintiff have an action? I say, No.” Paston, J.: “You have not shown that he is a common surgeon to cure such horses, and so, although he killed your horse by his medicines, you shall have no action against him without an assumpsit.” Newton, C. J.: “If I have a sore on my hand, and he applies a medicine to my heel, by which negligence my hand is maimed, still I shall not have an action unless he undertook to cure me.” The court accordingly decided that a traverse of the assumpsit made a good issue.2

It is believed that the view here suggested will explain the following passage in Blackstone, which has puzzled many of his readers: “If a smith’s servant lames a horse while he is shoeing him, an action lies against the master, but not against the servant.”3 This is, of course, not law to-day, and probably was not law when written. Blackstone simply repeated the doctrine of the Year-Books.4 The servant had not expressly assumed to shoe carefully; he was, therefore, no more liable than the surgeon, the barber, and the carpenter, who had not undertaken, in the cases already mentioned. This primitive notion of legal liability has, of course, entirely disappeared from the law. An assumpsit is no longer an essential allegation in these actions of tort, and there is, therefore, little or no semblance of analogy between these actions and actions of contract.

An express assumpsit was originally an essential part of the plaintiff’s case in another class of actions, namely, actions on the case against bailees for negligence in the custody of the things intrusted to them. This form of the action on the case originated later than the actions for active misconduct, which have been already considered, but antedates, by some fifty years, the action of assumpsit. The normal remedy against a bailee was detinue. But there were strong reasons for the introduction of a concurrent remedy by an action on the case. The plaintiff in detinue might be defeated by the defendant’s wager of law; if he had paid in advance for the safe custody of his property, he could not recover in detinue his money, but only the value of the property; detinue could not be brought in the King’s Bench by original writ; and the procedure generally was less satisfactory than that in case. It is not surprising, therefore, that the courts permitted bailors to sue in case. The innovation would seem to have come in as early as 1449.1 The plaintiff counted that he delivered to the defendant nine sacks of wool to keep; that the defendant, for six shillings paid him by the plaintiff, assumed to keep them safely, and that for default of keeping they were taken and carried away. It was objected that detinue, and not case, was the remedy. One of the judges was of that opinion, but in the end the defendant abandoned his objection; and Statham adds this note: . . . “et credo the reason of the action lying is because the defendant had six shillings which he [plaintiff] could not recover in detinue.” The bailor’s right to sue in case instead of detinue was recognized by implication in 1472,2 and was expressly stated a few years later.3

The action against a bailee for negligent custody was looked upon, like the action against the surgeon or carpenter for active misconduct, as a tort, and not as a contract. The immediate cause of the injury in the case of the bailee was, it is true, a nonfeasance, and not, as in the case of the surgeon or carpenter, a misfeasance. And yet, if regard be had to the whole transaction, it is seen that there is more than a simple breach of promise by the bailee. He is truly an actor. He takes the goods of the bailor into his custody. This act of taking possession of the goods, his assumpsit to keep them safely, and their subsequent loss by his default, together made up the tort. The action against the bailee sounding in tort, consideration was no more an essential part of the count than it was in actions against a surgeon. Early in the reign of Henry VIII., Moore, Sergeant, said, without contradiction, that a bailee, with or without reward, was liable for careless loss of goods either in detinue or case;1 and it is common learning that a gratuitous bailee was charged for negligence in the celebrated case of Coggs v. Bernard. If there was, in truth, a consideration for the bailee’s undertaking, the bailor might, of course, declare in contract, after special assumpsit was an established form of action. But, in fact, there are few instances of such declarations before the reign of Charles I.2 Even since that time, indeed, case has continued to be a frequent, if not the more frequent, mode of declaring against a bailee.3 Oddly enough, the earliest attempts to charge bailees in assumpsit were made when the bailment was gratuitous. These attempts, just before and after 1600, were unsuccessful, because the plaintiffs could not make out any consideration.4 The gratuitous bailment was, of course, not a benefit, but a burden to the defendant; and, on the other hand, it was not regarded as a detriment, but an advantage to the plaintiff. But in 1623 it was finally decided, not without a great straining, it must be conceded, of the doctrine of consideration, that a bailee might be charged in assumpsit on a gratuitous bailment.5

The analogy between the action against the bailee and that against the surgeon holds also in regard to the necessity of alleging an express assumpsit by the defendant. Bailees whose calling was of a quasi public nature were chargeable by the custom of the realm, without any express undertaking. Accordingly, so far as the reported cases and precedents disclose, an assumpsit was never laid in a count in case against a common carrier1 or innkeeper2 for the loss of goods. They correspond to the smith, who, from the nature of his trade, was bound to shoe skilfully. But, in order to charge other bailees, proof of an express assumpsit was originally indispensable. An assumpsit was accordingly laid as a matter of course in the early cases and precedents. Frowyk, C. J., says, in 1505, that the bailee shall be charged “per cest parol super se assumpsit.”3 In Fooley v. Preston,4 Anderson, Chief Justice of the Common Bench, mentions, it is true, as a peculiarity of the Queen’s Bench, that “it is usual and frequent in B. R. if I deliver to you an obligation to rebail unto me, I shall have an action upon the case without an express promise.” And yet, twelve years later, in Mosley v. Fosset5 (1598), which was an action on the case for the loss of a gelding delivered to the defendant to be safely kept and redelivered on request, the four judges of the Queen’s Bench, although equally divided on the question whether the action would lie without a request, which would have been necessary in an action of detinue, “all agreed that without such an assumpsit the action would not lie.”6 But with the lapse of time an express undertaking of the bailee ceased to be required, as we have already seen it was dispensed with in the case of a surgeon or carpenter. The acceptance of the goods from the bailor created a duty to take care of them in the same manner that a surgeon who took charge of a patient became bound, without more, in modern times, to treat him with reasonable skill.

Symons v. Darknoll1 (1629) was an action on the case against a lighterman, but not a common lighterman, for the loss of the plaintiff’s goods. “And, although no promise, the court thought the plaintiff should recover;” Hyde, C. J., adding: “Delivery makes the contract.” The later precedents in case, accordingly, omit the assumpsit.2

There is much in common between the two classes of actions on the case already discussed and still a third group of actions on the case, namely, actions of deceit against the vendor of a chattel upon a false warranty. This form of action, like the others, is ancient, being older, by more than a century, than special assumpsit. The words super se assumpsit were not used, it is true, in a count upon a warranty; but the notion of undertaking was equally well conveyed by “warrantizando vendidit.”

Notwithstanding the undertaking, this action also was, in its origin, a pure action of tort. In what is, perhaps, the earliest reported case upon a warranty,1 the defendant objects that the action is in the nature of covenant, and that the plaintiff shows no specialty but “non allocatur, for it is a writ of trespass.” There was regularly no allusion to consideration in the count in case; if, by chance, alleged, it counted for nothing.2 How remote the action was from an action of contract appears plainly from a remark of Choke, J.: “If one sells a thing to me, and another warrants it to be good and sufficient, upon that warranty made by parol, I shall not have an action of deceit; but if it was by deed, I shall have an action of covenant.”3 That is to say, the parol contract of guaranty, so familiar in later times, was then unknown. The same judge, and Brian, C. J., agreed, although Littleton, J., inclined to the opposite view, that if a servant warranted goods which he sold for his master, that no action would lie on the warranty. The action sounding in tort, the plaintiff, in order to charge the defendant, must show, in addition to his undertaking, some act by him, that is, a sale; but the owner was the seller, and not the friend or servant, in the cases supposed. A contract, again, is, properly, a promise to act or forbear in the future. But the action under discussion must be, as Choke, J., said, in the same case, upon a warranty of a thing present, and not of a thing to come. A vendor who gives a false warranty may be charged to-day, of course, in contract; but the conception of such a warranty, as a contract, is quite modern. Stuart v. Wilkins,4 decided in 1778, is said to have been the first instance of an action of assumpsit upon a vendor’s warranty.

We have seen that an express undertaking of the defendant was originally essential to the actions against surgeons or carpenters, and bailees. The parallel between these actions and the action on a warranty holds true on this point also. A case in the Book of Assises is commonly cited, it is true, to show that from very early times one who sold goods, knowing that he had no title to them, was liable in an action on the case for deceit.1 This may have been the law.2 But, this possible exception apart, a vendor was not answerable to the vendee for any defect of title or quality in the chattels sold, unless he had either given an express warranty, or was under a public duty, from the nature of his calling, to sell articles of a certain quality. A taverner or vintner was bound as such to sell wholesome food and drink.3 Their position was analogous to that of the smith, common carrier, and innkeeper.

The necessity of an express warranty of quality in all other cases is illustrated by the familiar case of Chandelor v. Lopus4 (1606-1607). The count alleged that the defendant sold to the defendant a stone, affirming it to be a bezoar stone, whereas it was not a bezoar stone. The judgment of the King’s Bench, that the count was bad, was affirmed in the Exchequer Chamber, all the justices and barons (except Anderson, C. J.) holding “that the bare affirmation that it was a bezoar stone, without warranting it to be so, is no cause of action; and although he knew it to be no bezoar stone, it is not material; for every one in selling his wares will affirm that his wares are good, or that his horse is sound; yet, if he does not warrant them to be so, it is no cause of action.” The same doctrine is repeated in Bailie v. Merrill.5 The case of Chandelor v. Lopus has recently found an able defender in the pages of this Review. In the number for November, 1887, Mr. R. C. McMurtrie urges that the decision was a necessary consequence of the rule of pleading that the pleader must state the legal effect of his evidence, and not the evidence itself. It is possible that the judgment would have been arrested in Chandelor v. Lopus, if it had come before an English court of the present century.6 But it is certain that the judges in the time of James I. did not proceed upon this rule of pleading. To their minds the word “warrant,” or, at least, a word equally importing an express undertaking, was as essential in a warranty as the words of promise were in the Roman stipulatio. The modern doctrine of implied warranty, as stated by Mr. Baron Parke in Barr v. Gibson,1 “But the bargain and sale of a chattel, as being of a particular description, does imply a contract that the article sold is of that description,” would have sounded as strangely in the ears of the early lawyers as their archaic doctrine sounds in ours. The warranty of title stood anciently upon the same footing as the warranty of quality.2 But in Lord Holt’s time an affirmation was equivalent to a warranty,3 and to-day a warranty of title is commonly implied from the mere fact of selling.4

However much the actions against a surgeon or carpenter for misfeasance, those against a bailee for negligent custody, and, above all, those against a vendor for a false warranty, may have contributed, indirectly, to the introduction of special assumpsit, there is yet a fourth class of cases which seem to have been more intimately connected with the development of the modern parol contract than any of those yet considered. These cases, also, like the actions for a false warranty, were actions on the case for deceit. That their significance may be fully appreciated, however, it will be well to give first a short account of the successive attempts to maintain an action for the simple breach of a naked parol promise, i. e., for a pure nonfeasance.

The earliest of these attempts was in 1400, when an action was brought against a carpenter for a breach of his undertaking to build a house. The court was unanimous against the plaintiff, since he counted on a promise, and showed no specialty.5 In the same reign there was a similar case with the same result.1 The harmony of judicial opinion was somewhat interrupted fifteen years later in a case against a millwright on a breach of promise to build a mill within a certain time. Martin, J., like his predecessors, was against the action; Cockayne, J., favored it. Babington, C. J., at first agreed with Cockayne, J., but was evidently shaken by the remark of Martin, J.: “Truly, if this action is maintained, one shall have trespass for breach of any covenant2 in the world,” for he then said: “Our talk is idle, for they have not demurred in judgment. Plead and say what you will, or demur, and then it can be debated and disputed at leisure.” The case went off on another point.3 Martin, J., appears finally to have won over the Chief Justice to his view, for, eight years later, we find Babington, C. J., Martin and Cotesmore, JJ., agreeing in a dictum that no action will lie for the breach of a parol promise to buy a manor. Paston, J., showed an inclination to allow the action.4 In 1435 he gave effect to this inclination, holding, with Juyn, J., that the defendant was liable in an action on the case for the breach of a parol promise to procure certain releases for the plaintiff.5 But this decision was ineffectual to change the law. Made without a precedent, it has had no following. The doctrine laid down in the time of Henry IV. has been repeatedly reaffirmed.1

The remaining actions on the case for deceit before mentioned may now be considered. In the first of these cases the writ is given, and the reader will notice the striking resemblance between its phraseology and the later count in assumpsit. The defendant was to answer for that he, for a certain sum to be paid to him by the plaintiff, undertook to buy a manor of one J. B. for the plaintiff; but that he, by collusion between himself and one M. N., contriving cunningly to defraud the plaintiff, disclosed the latter’s evidence, and falsely and fraudulently became of counsel with M. N., and bought the manor for M. N., to the damage of the plaintiff. All the judges agreed that the count was good. Babington, C. J.: “If he discovers his counsel, and becomes of counsel for another, now that is a deceit, for which I shall have an action on my case.” Cotesmore, J.: “I say, that matter lying wholly in covenant may by matter ex post facto be converted into deceit. . . . When he becomes of counsel for another, that is a deceit, and changes all that was before only covenant, for which deceit he shall have an action on his case.”2

The act of the defendant did not affect, it is true, the person or physical property of the plaintiff. Still, it was hardly an extension of the familiar principle of misfeasance to regard the betrayal of the plaintiff’s secrets as a tortious invasion of his rights. But the judges encountered a real difficulty in applying that principle to a case that came before the Exchequer Chamber a few years later.1 It was a bill of deceit in the King’s Bench, the plaintiff counting that he bargained with the defendant to buy of him certain land for £100 in hand paid, but that the defendant had enfeoffed another of the land, and so deceived him. The promise not being binding of itself, how could the enfeoffment of a stranger be a tortious infringement of any right of the plaintiff? What was the distinction, it was urged, between this case and those of pure nonfeasance, in which confessedly there was no remedy? So far as the plaintiff was concerned, as Ayscoghe, J., said, “it was all one case whether the defendant made a feoffment to a stranger or kept the land in his own hands.” He and Fortescue, J., accordingly thought the count bad. A majority of the judges, however, were in favor of the action. But the case was adjourned. Thirty-five years later (1476), the validity of the action in a similar case was impliedly recognized.2 In 1487 Townsend, J., and Brian, C. J., agreed that a traverse of the feoffment to the stranger was a good traverse, since “that was the effect of the action, for otherwise the action could not be maintained.”3 In the following year,4 the language of Brian, C. J., is most explicit: “If there be an accord between you and me that you shall make me an estate of certain land, and you enfeoff another, shall I not have an action on my case? Quasi diceret sic. Et Curia cum illo. For when he undertook to make the feoffment, and conveyed to another, this is a great misfeasance.”

In the Exchequer Chamber case, and in the case following, in 1476, the purchase-money was paid at the time of the bargain. Whether the same was true of the two cases in the time of Henry VII., the reports do not disclose. It is possible, but by no means clear, that a payment contemporaneous with the promise was not at that time deemed essential. Be that as it may, if money was in fact paid for a promise to convey land, the broach of the promise by a conveyance to a stranger was certainly, as already seen, an actionable deceit by the time of Henry VII. This being so, it must, in the nature of things, be only a question of time when the breach of such a promise, by making no conveyance at all, would also be a cause of action. The mischief to the plaintiff was identical in both cases. The distinction between misfeasance and nonfeasance, in the case of promises given for money, was altogether too shadowy to be maintained. It was formally abandoned in 1504, as appears from the following extract from the opinion of Frowyk, C. J.: “And so, if I sell you ten acres of land, parcel of my manor, and then make a feoffment of my manor, you shall have an action on the case against me, because I received your money, and in that case you have no other remedy against me. And so, if I sell you my land and covenant to enfeoff you and do not, you shall have a good action on the case, and this is adjudged. . . . And if I covenant with a carpenter to build a house and pay him £20 for the house to be built by a certain day, now I shall have a good action on my case because of payment of money, and still it sounds only in covenant and without payment of money in this case no remedy, and still if he builds it and misbuilds, action on the case lies. And also for nonfeasance, if money paid case lies.”1

The gist of the action being the deceit in breaking a promise on the faith of which the plaintiff had been induced to part with his money or other property, it was obviously immaterial whether the promisor or a third person got the benefit of what the plaintiff gave up. It was accordingly decided, in 1520, that one who sold goods to a third person on the faith of the defendant’s promise that the price should be paid, might have an action on the case upon the promise.2 This decision introduced the whole law of parol guaranty. Cases in which the plaintiff gave his time or labor were as much within the principle of the new action as those in which he parted with property. And this fact was speedily recognized. In Saint-Germain’s book, published in 1522, the student of law thus defines the liability of a promisor: “If he to whom the promise is made have a charge by reason of the promise, . . . he shall have an action for that thing that was promised, though he that made the promise have no worldly profit by it.”1 From that day to this a detriment has always been deemed a valid consideration for a promise if incurred at the promisor’s request.2

Jealousy of the growing jurisdiction of the chancellors was doubtless a potent influence in bringing the common-law judges to the point of allowing the action of assumpsit. Fairfax, J., in 1481, advised pleaders to pay more attention to actions on the case, and thereby diminish the resort to Chancery;3 and Fineux, C. J., remarked, after that advice had been followed and sanctioned by the courts, that it was no longer necessary to use a subpœna in such cases.4

That equity gave relief, before 1500, to a plaintiff who had incurred detriment on the faith of the defendant’s promise, is reasonably clear, although there are but three reported cases.5 In one of them, between 1377 and 1399, the defendant promised to convey certain land to the plaintiff, who, trusting in the promise, paid out money in travelling to London and consulting counsel; and upon the defendant’s refusal to convey, prayed for a subpœna to compel the defendant to answer of his “disceit.”6 The bill sounds in tort rather than in contract, and inasmuch as even cestuis que use could not compel a conveyance by their feoffees to use at this time, its object was doubtless not specific performance, but reimbursement for the expenses incurred. Appilgarth v. Sergeantson1 (1438) was also a bill for restitutio in integrum, savoring strongly of tort. It was brought against a defendant who had obtained the plaintiff’s money by promising to marry her, and who had then married another in “grete deceit.”2 The remaining case, thirty years later,3 does not differ materially from the other two. The defendant, having induced the plaintiff to become the procurator of his benefice, by a promise to save him harmless for the occupancy, secretly resigned his benefice, and the plaintiff, being afterwards vexed for the occupancy, obtained relief by subpœna.

Both in equity4 and at law, therefore, a remediable breach of a parol promise was originally conceived of as a deceit; that is, a tort. Assumpsit was in several instances distinguished from contract.5 By a natural transition, however, actions upon parol promises came to be regarded as actions ex contractu.6 Damages were soon assessed, not upon the theory of reimbursement for the loss of the thing given for the promise, but upon the principle of compensation for the failure to obtain the thing promised. Again, the liability for a tort ended with the life of the wrong-doer. But after the struggle of a century, it was finally decided that the personal representatives of a deceased person were as fully liable for his assumpsits as for his covenants.1 Assumpsit, however, long retained certain traces of its delictual origin. The plea of not guilty was good after verdict, “because there is a disceit alleged.”2 Chief Baron Gilbert explains the comprehensive scope of the general issue in assumpsit by the fact that “the gist of the action is the fraud and delusion that the defendant hath offered the plaintiff in not performing the promise he had made, and on relying on which the plaintiff is hurt.”3 This allegation of deceit, in the familiar form: “Yet the said C. D., not regarding his said promise, but contriving and fraudulently intending, craftily and subtly, to deceive and defraud the plaintiff,” etc.,4 which persisted to the present century, is an unmistakeable mark of the genealogy of the action. Finally, the consideration must move from the plaintiff to-day, because only he who had incurred detriment upon the faith of the defendant’s promise, could maintain the action on the case for deceit in the time of Henry VII.

The view here advanced as to the origin of special assumpsit, although reached by an independent process, accords with, it will be seen, and confirms, it is hoped, the theory first proclaimed by Judge Hare.

The origin of indebitatus assumpsit may be explained in a few words: Slade’s case,5 decided in 1603, is commonly thought to be the source of this action.6 But this is a misapprehension.

Indebitatus assumpsit upon an express promise is at least sixty years older than Slade’s case.1 The evidence of its existence throughout the last half of the sixteenth century is conclusive. There is a note by Brooke, who died in 1558, as follows: “Where one is indebted to me, and he promises to pay before Michaelmas, I may have an action of debt on the contract, or an action on the case on the promise.”2 In Manwood v. Burston3 (1588), Manwood, C. B., speaks of “three manners of considerations upon which an assumpsit may be grounded: (1) A debt precedent, (2) where he to whom such a promise is made is damnified by doing anything, or spends his labor at the instance of the promisor, although no benefit comes to the promisor . . . (3) or there is a present consideration.”4

The Queen’s Bench went even further. In that court proof of a simple contract debt, without an express promise, would support an indebitatus assumpsit.5 The other courts, for many years, resisted this doctrine. Judgments against a debtor in the Queen’s Bench upon an implied assumpsit were several times reversed in the Exchequer Chamber.6 But the Queen’s Bench refused to be bound by these reversals, and it is the final triumph of that court that is signalized by Slade’s case, in which the jury found that “there was no other promise or assumption, but only the said bargain;” and yet all the judges of England resolved “that every contract executory implied an assumpsit.”

Indebitatus assumpsit, unlike special assumpsit, did not create a new substantive right; it was primarily only a new form of procedure, whose introduction was facilitated by the same circumstances which had already made Case concurrent with Detinue. But as an express assumpsit was requisite to charge the bailee, so it was for a long time indispensable to charge a debtor. The basis or cause of the action was, of course, the same as the basis of debt, i. e., quid pro quo, or benefit. This may explain the inveterate practice of defining consideration as either a detriment to the plaintiff or a benefit to the defendant.

Promises not being binding of themselves, but only because of the detriment or debt for which they were given, a need was naturally felt for a single word to express the additional and essential requisite of all parol contracts. No word was so apt for the purpose as the word “consideration.” Soon after the reign of Henry VIII., if not earlier, it became the practice, in pleading, to lay all assumpsits as made in consideratione of the detriment or debt.1 And these words became the peculiar mark of the technical action of assumpsit, as distinguished from other actions on the case against surgeons or carpenters, bailees and warranting vendors, in which, as we have seen, it was still customary to allege an undertaking by the defendant.

It follows, from what has been written, that the theory that consideration is a “modification of quid pro quo,” is not tenable. On the one hand, the consideration of indebitatus assumpsit was identical with quid pro quo, and not a modification of it. On the other hand, the consideration of detriment was developed in a field of the law remote from debt; and, in view of the sharp contrast that has always been drawn between special assumpsit and debt, it is impossible to believe that the basis of the one action was evolved from that of the other.2

Nor can that other theory be admitted by which consideration was borrowed from equity, as a modification of the Roman “causa.” The word “consideration” was doubtless first used in equity; but without any technical significance before the sixteenth century.1 Consideration in its essence, however, whether in the form of detriment or debt, is a common-law growth. Uses arising upon a bargain or covenant were of too late introduction to have any influence upon the law of assumpsit. Two out of three judges questioned their validity in 1505, a year after assumpsit was definitively established.2 But we may go further. Not only was the consideration of the common-law action of assumpsit not borrowed from equity, but, on the contrary, the consideration, which gave validity to parol uses by bargain and agreement, was borrowed from the common law. The bargain and sale of a use, as well as the agreement to stand seised, were not executory contracts, but conveyances. No action at law could ever be brought against a bargainor or covenantor.3 The absolute owner of land was conceived of as having in himself two distinct things, the seisin and the use. As he might make livery of seisin and retain the use, so he was permitted, at last, to grant away the use and keep the seisin. The grant of the use was furthermore assimilated to the grant of a chattel or money. A quid pro quo, or a deed, being essential to the transfer of a chattel or the grant of a debt,4 it was required also in the grant of a use. Equity might conceivably have enforced uses wherever the grant was by deed. But the chancellors declined to carry the innovation so far as this. They enforced only those gratuitous covenants which tended to “the establishment of the house” of the covenantor; in other words, covenants made in consideration of blood or marriage.1

II.—

IMPLIED ASSUMPSIT

Nothing impresses the student of the Common Law more than its extraordinary conservatism. The reader will easily call to mind numerous rules in the law of Real Property and Pleading which illustrate the persistency of archaic reverence for form and of scholastic methods of interpretation. But these same characteristics will be found in almost any branch of the law by one who carries his investigations as far back as the beginning of the seventeenth century. The history of Assumpsit, for example, although the fact seems to have escaped general observation, furnishes a convincing illustration of the vitality of mediæval conceptions.

We have had occasion, in the preceding part of this paper, to see that an express assumpsit was for a long time essential in the actions of tort against surgeons or carpenters, and bailees. It also appeared that in the action of tort for a false warranty the vendor’s affirmation as to quality or title was not admissible, before the time of Lord Holt, as a substitute for an express undertaking. We are quite prepared, therefore, to find that the action of Assumpsit proper was, for generations, maintainable only upon an express promise. Furthermore, Assumpsit would not lie in certain cases even though there were an express promise. For example, a defendant who promised to pay a sum certain in exchange for a quid pro quo was, before Slade’s case,2 chargeable only in Debt unless he made a second promise to pay the debt.

It was only by degrees that the scope of the action was enlarged. The extension was in three directions. In the first place, Indebitatus Assumpsit became concurrent with Debt upon a simple contract in all cases. Secondly, proof of a promise implied in fact, that is, a promise inferred from circumstantial evidence, was at length deemed sufficient to support an action. Finally, Indebitatus Assumpsit became the appropriate form of action upon constructive obligations, or quasi-contracts for the payment of money. These three developments will be considered separately.

Although Indebitatus Assumpsit upon an express promise was valuable so far as it went, it could not be resorted to by plaintiffs in the majority of cases as a protection from wager of law by their debtors. For the promise to be proved must not only be express, but subsequent to the debt. In an anonymous case, in 1572, Manwood objected to the count that the plaintiff “ought to have said quod postea assumpsit, for if he assumed at the time of the contract, then Debt lies, and not Assumpsit; but if he assumed after the contract, then an action lies upon the assumpsit, otherwise not, quod Whiddon and Southcote, JJ., with the assent of Catlin, C. J. concesserunt.”1 The consideration in this class of cases was accordingly described as a “debt precedent.”2 The necessity of a subsequent promise is conspicuously shown by the case of Maylard v. Kester.3 The allegations of the count were, that, in consideration that the plaintiff would sell and deliver to the defendant certain goods, the latter promised to pay therefor a certain price; that the plaintiff did sell and deliver the goods, and that the defendant did not pay according to his promise and undertaking. The plaintiff had a verdict and judgment thereon in the Queen’s Bench; but the judgment was reversed in the Exchequer Chamber “because Debt lies properly, and not an action on the case; the matter proving a perfect sale and contract.”

What was the peculiar significance of the subsequent promise? Why should the same courts which, for sixty years before Slade’s case, sanctioned the action of Assumpsit upon a promise in consideration of a precedent debt, refuse, during the same period, to allow the action, when the receipt of the quid pro quo was contemporaneous with or subsequent to the promise? The solution of this puzzle must be sought, it is believed, in the nature of the action of Debt. A simple contract debt, as well as a debt by specialty, was originally conceived of, not as a contract, in the modern sense of the term, that is, as a promise, but as a grant.1 A bargain and sale, and a loan, were exchanges of values. The action of debt, as several writers have remarked, was a real rather than a personal action. The judgment was not for damages, but for the recovery of a debt, regarded as a res. The conception of a debt was clearly expressed by Vaughan, J., who, some seventy years after Slade’s case, spoke of the action of Assumpsit as “much inferior and ignobler than the action of Debt,” and characterized the rule that every contract executory implies a promise as “a false gloss, thereby to turn actions of Debt into actions on the case; for contracts of debt are reciprocal grants.”2

Inasmuch as the simple contract debt had been created from time immemorial by a promise or agreement to pay a definite amount of money in exchange for a quid pro quo, the courts could not allow an action of Assumpsit also upon such a promise or agreement, without admitting that two legal relations, fundamentally distinct, might be produced by one and the same set of words. This implied a liberality of interpretation to which the lawyers of the sixteenth century had not generally attained. To them it seemed more natural to consider that the force of the words of agreement was spent in creating the debt. Hence the necessity of a new promise, if the creditor desired to charge his debtor in Assumpsit.

As the actions of Assumpsit multiplied, however, it would naturally become more and more difficult to discriminate between promises to pay money and promises to do other things. The recognition of an agreement to pay money for a quid pro quo in its double aspect, that is, as being both a grant and a promise, and the consequent admissibility of Assumpsit, with its procedural advantages, as a concurrent remedy with Debt, were inevitable. It was accordingly resolved by all the justices and barons in Slade’s case, in 1603, although “there was no other promise or assumption but the said bargain,” that “every contract executory imports in itself an assumpsit, for when one agrees to pay money, or to deliver anything, thereby he assumes or promises to pay or deliver it; and, therefore, when one sells any goods to another, and agrees to deliver them at a day to come, and the other, in consideration thereof, agrees to pay so much money at such a day, in that case both parties may have an action of Debt, or an action on the case on assumpsit, for the mutual executory agreement of both parties imports in itself reciprocal actions upon the case as well as actions of Debt.” Inasmuch as the judges were giving a new interpretation to an old transaction; since they, in pursuance of the presumed intention of the parties, were working out a promise from words of agreement which had hitherto been conceived of as sounding only in grant, it was not unnatural that they should speak of the promise thus evolved as an “implied assumpsit.” But the promise was in no sense a fiction. The fictitious assumpsit, by means of which the action of Indebitatus Assumpsit acquired its greatest expansion, was an innovation many years later than Slade’s case.

The account just given of the development of Indebitatus Assumpsit, although novel, seems to find confirmation in the parallel development of the action of Covenant. Strange as it may seem, Covenant was not the normal remedy upon a covenant to pay a definite amount of money or chattels. Such a covenant being regarded as a grant of the money or chattels, Debt was the appropriate action for their recovery. The writer has discovered no case in which a plaintiff succeeded in an action of Covenant, where the claim was for a sum certain, antecedent to the seventeenth century; but in an action of Debt upon such a claim, in the Queen’s Bench, in 1585, “it was holden by the Court that an action of Covenant lay upon it, as well as an action of Debt, at the election of the plaintiff.”1 The same right of election was conceded by the Court in two cases1 in 1609, in terms which indicate that the privilege was of recent introduction. It does not appear in what court these cases were decided; but it seems probable that they were in the King’s Bench, for, in Chawner v. Bowes,2 in the Common Bench, four years later, Warburton and Nichols, JJ., said: “If a man covenant to pay £10 at a day certain, an action of debt lieth for the money, and not an action of covenant.” As late as 1628, in the same court, Berkeley, Serjeant, in answer to the objection that Covenant did not lie, but Debt, against a defendant who had covenanted to perform an agreement, and had obliged himself in a certain sum for its performance, admitted that, “if a covenant had been for £30, then debt only lies; but here it is to perform an agreement.”3 Precisely when the Common Bench adopted the practice of the King’s Bench it is, perhaps, impossible to discover; but the change was probably effected before the end of the reign of Charles I.

That Covenant became concurrent with Debt on a specialty so many years after Assumpsit was allowed as a substitute for Debt on a simple contract, was doubtless due to the fact that there was no wager of law in Debt on a sealed obligation.

Although the right to a trial by jury was the principal reason for a creditor’s preference for Indebitatus Assumpsit, the new action very soon gave plaintiffs a privilege which must have contributed greatly to its popularity. In declaring in Debt, except possibly upon an account stated, the plaintiff was required to set forth his cause of action with great particularity. Thus, the count in Debt must state the quantity and description of goods sold, with the details of the price, all the particulars of a loan, the names of the persons to whom money was paid with the amounts of each payment, the names of the persons from whom money was received to the use of the plaintiff with the amounts of each receipt, the precise nature and amount of services rendered. In Indebitatus Assumpsit, on the other hand, the debt being laid as an inducement or conveyance to the assumpsit, it was not necessary to set forth all the details of the transaction from which it arose. It was enough to allege the general nature of the indebtedness, as for goods sold,1 money lent,2 money paid at the defendant’s request,3 money had and received to the plaintiff’s use,4 work and labor at the defendant’s request,5 or upon an account stated,6 and that the defendant being so indebted promised to pay. This was the origin of the common counts.

In all the cases thus far considered there was a definite bargain or agreement between the plaintiff and defendant. But instances, of course, occurred in which the parties did not reduce their transactions to the form of a distinct bargain. Services would be rendered, for example, by a tailor or other workman, an innkeeper or common carrier, without any agreement as to the amount of compensation. Such cases present no difficulty at the present day, but for centuries there was no common-law action by which compensation could be recovered. Debt could not be maintained, for that action was always for the recovery of a liquidated amount.7 Assumpsit would not lie for want of a promise. There was confessedly no express promise; to raise by implication a promise to pay as much as the plaintiff reasonably deserved for his goods or services was to break with the most venerable traditions. The lawyer of to-day, familiar with the ethical character of the law as now administered, can hardly fail to be startled when he discovers how slowly the conception of a promise implied in fact, as the equivalent of an express promise, made its way in our law.

There seems to have been no recognition of the right to sue upon an implied quantum meruit before 1609. The innkeeper was the first to profit by the innovation. Reciprocity demanded that, if the law imposed a duty upon the innkeeper to receive and keep safely, it should also imply a promise on the part of the guest to pay what was reasonable.1 The tailor was in the same case with the innkeeper, and his right to recover upon a quantum meruit was recognized in 1610.2 Sheppard,3 citing a case of the year 1632, says: “If one bid me do work for him, and do not promise anything for it; in that case the law implieth the promise, and I may sue for the wages.” But it was only four years before that the Court in a similar case were of opinion that an action lay if the party either before or after the services rendered promised to pay for them, “but not without a special promise.”4 In Nichols v. More5 (1661) a common carrier resisted an action for negligence, because, no price for the carriage being agreed upon, he was without remedy against the bailor. The Court, however, answered that “the carrier may declare upon a quantum meruit like a tailor, and therefore shall be charged.”6 As late as 1697, Powell, J., speaking of the sale of goods for so much as they were worth, thought it worth while to add: “And note the very taking up of the goods implies such a contract.”7

The right of one, who signed a bond as surety for another without insisting upon a counter bond or express promise to save harmless, to charge his principal upon an implied contract of indemnity, was developed nearly a century later. In Bosden v. Thinne1 (1603) the plaintiff at the defendant’s request had executed a bond as surety for one F, and had been cast in a judgment thereon. The judges all agreed that upon the first request only Assumpsit did not lie, Yelverton, J. adding: “For a bare request does not imply any promise, as if I say to a merchant, I pray trust J. S. with £100, and he does so, this is of his own head, and he shall not charge me, unless I say I will see you paid, or the like.” The absence of any remedy at law was conceded in 1662.2 It was said by Buller, J., in Toussaint v. Martinnant,3 that the first case in which a surety, who had paid the creditor, succeeded in an action at law against the principal for indemnity, was before Gould, J.,4 at Dorchester, “which was decided on equitable grounds.” The innovation seems to be due, however, to Lord Mansfield, who ruled in favor of a surety in Decker v. Pope, in 1757, “observing that when a debtor desires another person to be bound with him or for him, and the surety is afterwards obliged to pay the debt, this is a sufficient consideration to raise a promise in law.”5

The late development of the implied contract to pay quantum meruit, and to indemnify a surety, would be the more surprising, but for the fact that Equity gave relief to tailors and the like, and to sureties long before the common law helped them. Spence, although at a loss to account for the jurisdiction, mentions a suit brought in Chancery, in 1567, by a tailor, to recover the amount due for clothes furnished. The suit was referred to the queen’s tailor, to ascertain the amount due, and upon his report a decree was made. The learned writer adds that “there were suits for wages and many others of like nature.”1 A surety who had no counter bond filed a bill against his principal, in 1632, in a case which would seem to have been one of the earliest of the kind, for the reporter, after stating that there was a decree for the plaintiff, adds “quod nota.”2

The account just given of the promise implied in fact seems to throw much light upon the doctrine of “executed consideration.” One who had incurred a detriment at the request of another, by rendering service, or by becoming a surety with the reasonable expectation of compensation or indemnity, was as fully entitled, in point of justice, to enforce his claim at law, as one who had acted in a similar way upon the faith of an express promise. Nothing was wanting but an express assumpsit to make a perfect cause of action. If the defendant saw fit to make an express assumpsit, even after the detriment was incurred, the temptation to treat this as removing the technical objection to the plaintiff’s claim at law might be expected to be, as it proved to be, irresistible.3 The already established practice of suing upon a promise to pay a precedent debt, made it the more easy to support an action upon a promise when the antecedent act of the plaintiff at the defendant’s request did not create a strict debt.4 To bring the new doctrine into harmony with the accepted theory of consideration, the promise was “coupled with” the prior request by the fiction of relation,5 or, by a similar fiction, the consideration was brought forward or continued to the promise.1 This fiction doubtless enabled plaintiffs sometimes to recover, although the promise was not identical with what would be implied, and in some cases even where it would be impossible to imply any promise.2 But after the conception of a promise implied in fact was recognized and understood, these anomalies gradually disappeared, and the subsequent promise came to be regarded in its true light of cogent evidence of what the plaintiff deserved for what he had done at the defendant’s request.

The non-existence in early times, of the promise implied in fact, also makes intelligible a distinction in the law of lien, which greatly puzzled Lord Ellenborough and his colleagues. Williams, J., is reported to have said in 1605: “If I put my cloths to a tailor to make up, he may keep them till satisfaction for the making. But if I contract with a tailor that he shall have so much for the making of my apparel, he cannot keep them till satisfaction for the making.”3 In the one case, having no remedy by action, he was allowed a lien, to prevent intolerable hardship. In the other, as he had a right to sue on the express agreement, it was not thought necessary to give him the additional benefit of a lien.4 As soon as the right to recover upon an implied quantum meruit was admitted, the reason for this distinction vanished. But the acquisition of a new remedy by action did not displace the old remedy by lien.5 The old rule, expressed, however, in the new form of a distinction between an express and an implied contract, survived to the present century.6 At length, in 1816, the judges of the King’s Bench, unable to see any reason in the distinction, and unaware of its origin, declared the old dicta erroneous, and allowed a miller his lien in the case of an express contract.1

The career of the agistor’s lien is also interesting. That such a lien existed before the days of implied contracts is intrinsically probable, and is also indicated by several of the books.2 But in Chapman v. Allen3 (1632), the first reported decision involving the agistor’s right of detainer, there happened to be an express contract, and the lien was accordingly disallowed. When a similar case arose two centuries later in Jackson v. Cummins,4 this precedent was deemed controlling, and, as the old distinction between express and implied contracts was no longer recognized, the agistor ceased to have a lien in any case. Thus was established the modern and artificial distinction in the law of lien between bailees for agistment and “bailees who spend their labor and skill in the improvement of the chattels” delivered to them.5

The value of the discovery of the implied promise in fact was exemplified further in the case of a parol submission to an award. If the arbitrators awarded the payment of a sum of money, the money was recoverable in debt, since an award, after the analogy of a judgment, created a debt. But if the award was for the performance of a collateral act, as, for example, the execution of a release, there was, originally, no mode of compelling compliance with the award, unless the parties expressly promised to abide by the decision of the arbitrators. Tilford v. French6 (1663) is a case in point. So, also, seven years later, “it was said by Twisden, J., that if two submit to an award, this contains not a reciprocal promise to perform; but there must be an express promise to ground an action upon.”1 This doctrine was abandoned by the time of Lord Holt, who, after referring to the ancient rule, said: “But the contrary has been held since; for if two men submit to the award of a third person, they do also thereby promise expressly to abide by his determination, for agreeing to refer is a promise in itself.”2

In the cases already considered the innovation of Assumpsit upon a promise implied in fact gave a remedy by action, where none existed before. In several other cases the action upon such a promise furnished not a new, but a concurrent remedy. Assumpsit, as we have seen,3 was allowed, in the time of Charles I., in competition with Detinue and Case against a bailee for custody. At a later period Lord Holt suggested that one might “turn an action against a common carrier into a special assumpsit (which the law implies) in respect of his hire.”4 Dale v. Hall5 (1750) is understood to have been the first reported case in which that suggestion was followed. Assumpsit could also be brought against an innkeeper.6

Account was originally the sole form of action against a factor or bailiff. But in Wilkins v. Wilkins7 (1689) three of the judges favored an action of Assumpsit against a factor because the action was brought upon an express promise, and not upon a promise by implication. Lord Holt, however, in the same case, attached no importance to the distinction between an express and an implied promise, remarking that “there is no case where a man acts as bailiff, but he promises to render an account.”8 The requisite of an express promise was heard of no more. Assumpsit became theoretically concurrent with Account against a bailiff or factor in all cases, although by reason of the competing jurisdiction of equity, actions at common law were rare.1

In the early cases of bills and notes the holders declared in an action on the case upon the custom of merchants. “Afterwards they came to declare upon an assumpsit.”2

It remains to consider the development of Indebitatus Assumpsit as a remedy upon quasi-contracts, or, as they have been commonly called, contracts implied in law. The contract implied in fact, as we have seen, is a true contract. But the obligation created by law is no contract at all. Neither mutual assent nor consideration is essential to its validity. It is enforced regardless of the intention of the obligor. It resembles the true contract, however, in one important particular. The duty of the obligor is a positive one, that is, to act. In this respect they both differ from obligations the breach of which constitutes a tort, where the duty is negative, that is, to forbear. Inasmuch as it has been customary to regard all obligations as arising either ex contractu or ex delicto, it is readily seen why obligations created by law should have been treated as contracts. These constructive duties are more aptly defined in the Roman law as obligations quasi ex contractu than by our ambiguous “implied contracts.”3

Quasi-contracts are founded (1) upon a record, (2) upon a statutory, official, or customary duty, or (3) upon the fundamental principle of justice that no one ought unjustly to enrich himself at the expense of another.

As Assumpsit cannot be brought upon a record, the first class of quasi-contracts need not be considered here. Many of the statutory, official, or customary duties, also, e. g., the duty of the innkeeper to entertain,4 of the carrier to carry,5 of the smith to shoe,1 of the chaplain to read prayers, of the rector to keep the rectory in repair,2 of the fidei-commiss to maintain the estate,3 of the finder to keep with care,4 of the sheriff and other officers to perform the functions of their office,5 of the ship-owner to keep medicines on his ship,6 and the like, which are enforced by an action on the case, are beyond the scope of this essay, since Indebitatus Assumpsit lies only where the duty is to pay money [or a definite amount of chattels]. For the same reason we are not concerned here with a large class of duties growing out of the principle of unjust enrichment, namely, constructive or quasi trusts, which are enforced, of course, only in equity.

Debt was originally the remedy for the enforcement of a statutory or customary duty for the payment of money. The right to sue in Indebitatus Assumpsit was gained only after a struggle. The assumpsit in such cases was a pure fiction. These cases were not, therefore, within the principle of Slade’s case, which required, as we have seen,7 a genuine agreement. The authorities leave no room for doubt upon this point, although it is a common opinion that, from the time of that case, Indebitatus Assumpsit was concurrent with Debt in all cases, unless the debt was due by record, specialty, or for rent.

The earliest reported case of Indebitatus Assumpsit upon a customary duty seems to be City of London v. Goree,8 decided seventy years later than Slade’s case. “Assumpsit for money due by custom for scavage. Upon non-Assumpsit the jury found the duty to be due, but that no promise was expressly made. And whether Assumpsit lies for this money thus due by custom, without express promise, was the question. Resolved it does.” On the authority of that case, an officer of a corporation was charged in Assumpsit, three years later, for money forfeited under a by-law.1 So, also, in 1688, a copyholder was held liable in this form of action for a customary fine due on the death of the lord, although it was objected “that no Indebitatus Assumpsit lieth where the cause of action is grounded on a custom.”2 Lord Holt had not regarded these extensions of Indebitatus Assumpsit with favor.3 Accordingly, in York v. Toun,4 when the defendant urged that such an action would not lie for a fine imposed for not holding the office of sheriff, “for how can there be any privity of assent implied when a fine is imposed on a man against his will?” the learned judge replied: “We will consider very well of this matter; it is time to have these actions redressed. It is hard that customs, by-laws, rights to impose fines, charters, and everything, should be left to a jury.” By another report of the same case,5 “Holt seemed inclined for the defendant. . . . And upon motion of the plaintiff’s counsel, that it might stay till the next term, Holt, C. J., said that it should stay till doomsday with all his heart; but Rokesby, J., seemed to be of opinion that the action would lie.—Et adjournatur. Note. A day or two after I met the Lord Chief Justice Treby visiting the Lord Chief Justice Holt at his house, and Holt repeated the said case to him, as a new attempt to extend the Indebitatus Assumpsit, which had been too much encouraged already, and Treby, C. J., seemed also to be of the same opinion with Holt.” But Rokesby’s opinion finally prevailed. The new action continued to be encouraged. Assumpsit was allowed upon a foreign judgment in 1705,6 and the “metaphysical notion”7 of a promise implied in law became fixed in our law.

The equitable principle which lies at the foundation of the great bulk of quasi-contracts, namely, that one person shall not unjustly enrich himself at the expense of another, has established itself very gradually in the Common Law. Indeed, one seeks in vain to-day in the treatises upon the Law of Contract for an adequate account of the nature, importance, and numerous applications of this principle.1

The most fruitful manifestations of this doctrine in the early law are to be found in the action of Account. One who received money from another to be applied in a particular way was bound to give an account of his stewardship. If he fulfilled his commission, a plea to that effect would be a valid discharge. If he failed for any reason to apply the money in the mode directed, the auditors would find that the amount received was due to the plaintiff, who would have a judgment for its recovery. If, for example, the money was to be applied in payment of a debt erroneously supposed to be due from the plaintiff to the defendant, either because of a mutual mistake, or because of fraudulent representations of the defendant, the intended application of the money being impossible, the plaintiff would recover the money in Account.2 Debt would also lie in such cases, since, at an early period, Debt became concurrent with Account, when the object of the action was to recover the precise amount received by the defendant.3 By means of the fiction of a promise implied in law Indebitatus Assumpsit became concurrent with Debt, and thus was established the familiar action of Assumpsit for money had and received to recover money paid to the defendant by mistake. Bonnel v. Fowke4 (1657) is, perhaps, the first action of the kind.5

Although Assumpsit for money had and received was in its infancy merely a substitute for Account, it gradually outgrew the limits of that action. Thus, if one was induced by fraudulent representations to buy property, the purchase-money could not be recovered from the fraudulent vendor by the action of Account. For a time, also, Indebitatus Assumpsit would not lie in such a case. Lord Holt said in 1696: “But where there is a bargain, though a corrupt one, or where one sells goods that were not his own, I will never allow an indebitatus.”1 His successors, however, allowed the action. Similarly, Account was not admissible for the recovery of money paid for a promise which the defendant refused to perform. Here, too, Debt and Indebitatus Assumpsit did not at once transcend the bounds of the parent action.2 But in 1704 Lord Holt reluctantly declined to nonsuit a plaintiff who had in such a case declared in Indebitatus Assumpsit.3 Again, Account could not be brought for money acquired by a tort, for example, by a disseisin and collection of rents or a conversion and sale of a chattel.4 It was decided, accordingly, in Philips v. Thompson5 (1675), that Assumpsit would not lie for the proceeds of a conversion. But in the following year the usurper of an office was charged in Assumpsit for the profits of the office, no objection being taken to the form of action.6 Objection was made in a similar case in 1677, that there was no privity and no contract; but the Court, in disregard of all the precedents of Account, answered: “An Indebitatus Assumpsit will lie for rent received by one who pretends a title; for in such cases an Account will lie. Wherever the plaintiff may have an account an indebitatus will lie.”1 These precedents were deemed conclusive in Howard v. Wood2 (1678), but Lord Scroggs remarked: “If this were now an original case, we are agreed it would by no means lie.” Assumpsit soon became concurrent with Trover, where the goods had been sold.3 Finally, under the influence of Lord Mansfield, the action was so much encouraged that it became almost the universal remedy where a defendant had received money which he was “obliged by the ties of natural justice and equity to refund.”4

But one is often bound by those same ties of justice and equity to pay for an unjust enrichment enjoyed at the expense of another, although no money has been received. The quasi-contractual liability to make restitution is the same in reason, whether, for example, one who has converted another’s goods turns them into money or consumes them. Nor is any distinction drawn, in general, between the two cases. In both of them the claim for the amount of the unjust enrichment would be provable in the bankruptcy of the wrong-doer as an equitable debt,5 and would survive against his representative.6 Nevertheless, the value of the goods consumed was never recoverable in Indebitatus Assumpsit. There was a certain plausibility in the fiction by which money acquired as the fruit of misconduct was treated as money received to the use of the party wronged. But the difference between a sale and a tort was too radical to permit the use of Assumpsit for goods sold and delivered where the defendant had wrongfully consumed the plaintiff’s chattels.7

The same difficulty was not felt in regard to the quasi-contractual claim for the value of services rendered. The averment, in the count in Assumpsit, of an indebtedness for work and labor was proved, even though the work was done by the plaintiff or his servants under the compulsion of the defendant. Accordingly, a defendant, who enticed away the plaintiff’s apprentice and employed him as a mariner, was charged in this form of action for the value of the apprentice’s services.1

By similar reasoning, Assumpsit for use and occupation would be admissible for the benefit received from a wrongful occupation of the plaintiff’s land. But this count, for special reasons connected with the nature of rent, was not allowed upon a quasi-contract.2

In Assumpsit for money paid the plaintiff must make out a payment at the defendant’s request. This circumstance prevented for a long time the use of this count in the case of quasi-contracts. Towards the end of the last century, however, the difficulty was overcome by the convenient fiction that the law would imply a request whenever the plaintiff paid, under legal compulsion, what the defendant was legally compellable to pay.3

The main outlines of the history of Assumpsit have now been indicated. In its origin an action of tort, it was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a fictitious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded Debt, became concurrent with Account, with Case upon a bailment, a warranty, and bills of exchange, and competed with Equity in the case of the essentially equitable quasi-contracts growing out of the principle of unjust enrichment. Surely it would be hard to find a better illustration of the flexibility and power of self-development of the Common Law.

III.—

ASSUMPSIT FOR USE AND OCCUPATION

In the foregoing pages it was stated that Indebitatus Assumpsit for use and occupation was not allowed upon a quasi-contract, for special reasons connected with the nature of rent. To set forth briefly these reasons is the object of this excursus.

It is instructive to compare a lease for years, reserving a rent, with a sale of goods. In both cases, debt was originally the exclusive action for the recovery of the amount due. In neither case was the duty to pay conceived of as arising from a contract in the modern sense of the term. Debt for goods sold was a grant. Debt for rent was a reservation. About the middle of the sixteenth century Assumpsit was allowed upon an express promise to pay a precedent debt for goods sold; and in 1602 it was decided by Slade’s case that the buyer’s words of agreement, which had before operated only as a grant, imported also a promise, so that the seller might, without more, sue in Debt or Assumpsit, at his option.1

Neither of these steps was taken by the courts in the case of rent. There is but one reported case of a successful Indebitatus Assumpsit for rent before the Statute 11 Geo. II. c. 19, § 14; and in that case the reporter adds: “Note, there was not any exception taken, that the assumpsit is to pay a sum for rent; which is a real and special duty, as strong as upon a specialty; and in such case this action lies not, without some other special cause of promise.”2 This note is confirmed by several cases in which the plaintiff failed upon such a count as well when there was a subsequent express promise3 as where there was no such promise.4

The chief motive for making Assumpsit concurrent with Debt for goods sold was the desire to evade the defendant’s wager of law. This motive was wanting in the case of rent, for in Debt for rent wager of law was not permitted.1 Again, although Assumpsit was the only remedy against the executor of a buyer or borrower, the executor of a lessee was chargeable in Debt. These two facts seem amply to explain the refusal of the courts to allow an Indebitatus Assumpsit for rent.

But although the landlord was not permitted to proceed upon an Indebitatus Assumpsit, he acquired, after a time, the right to sue in certain cases, in special Assumpsit, as well as in Debt. This innovation originated in the King’s Bench, which, having no jurisdiction by original writ in cases of Debt, was naturally inclined to extend the scope of trespass on the case, of which Assumpsit was a branch. At first this court attempted to justify itself by construing certain agreements as not creating a rent. For example, in Symcock v. Payn,2 the plaintiff declared that “in consideration that the plaintiff had let to the defendant certain land, the defendant promised to pay pro firma prædicta terræ at the year’s end, £20.” “All the court (absente Popham) held that the action was maintainable; for it is not a rent, but a sum in gross; for which he making a promise to pay it in consideration of the lease the action lies.”3 This judgment was reversed in the Exchequer Chamber in accordance with earlier and later cases in the Common Bench.4

In the reign of Charles I. the rule was established in the King’s Bench that Assumpsit would lie concurrently with Debt, if, at the time of the lease, the lessee expressly promised to pay the rent. Acton v. Symonds5 (1634) was the decisive case. The count was upon the defendant’s promise to pay the rent in consideration that the plaintiff would demise a house to him for three years at a rent of £25 per annum. The court (except Croke, J.) agreed that if a lease for years be made rendering rent, an action on the case lies not upon the contract, as it would upon a personal contract for sale of a horse or other goods, but where there is an assumpsit in fact, besides the contract on the lease, an action on this assumpsit is maintainable. In the report in Rolle’s Abridgment it is said: “The action lay, because it appeared that it was intended by the parties that a lease should be made and a rent reserved, and for better security of payment thereof that the lessor should have his remedy by action of debt upon the reservation, or action upon this collateral promise at his election, and this being the intent at the beginning, the making of the lease though real would not toll this collateral promise, as a man may covenant to accept a lease at a certain rent and to pay the rent according to the reservation, for they are two things, and so the promise of payment is a thing collateral to the reservation, which will continue though the lessee assign over.” This doctrine was repeatedly recognized in the King’s Bench;1 it was adopted in the Exchequer in 1664;2 and was finally admitted by the Common Bench in Johnson v. May3 (1683), where “because this had been vexata quæstio the court took time to deliver their opinion, . . . and all four justices agreed that the action lay, for an express promise shall be intended, and not a bare promise in law arising upon the contract, which all agree will not lie.”

In the cases thus far considered the assumpsit was for the payment of a sum certain. Assumpsit was also admissible where the amount to be recovered was uncertain; namely, where the defendant promised to pay a reasonable compensation for the use and occupation of land.4 Indeed, in such a case Assumpsit was the sole remedy, since Debt would not lie for a quantum meruit.1

Such was the state of the law when the Statute 11 Geo. II. c. 19, § 14, was passed, which reads as follows: “To obviate some difficulties that may at times occur in the recovery of rents, where demises are not by deed, it shall and may be lawful to and for the landlord, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, and hereditaments held or occupied by the defendant in an action on the case for the use and occupation of what was so held and enjoyed; and if, in evidence on the trial of such action, any parol demise or agreement, not being by deed, whereon a certain rent was reserved, shall appear, the plaintiff shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of damages to be recovered.”

The “difficulties” here referred to would seem to be two. If, before this statute, the plaintiff counted upon a quantum meruit, and the evidence disclosed a demise for a sum certain, he would be nonsuited for a variance. Secondly, if he declared for a sum certain, he must, as we have seen, prove an express promise at the time of the demise. The statute accomplished its purpose in both respects. But it is in the removal of the second of the difficulties mentioned that we find its chief significance. Thereby Indebitatus Assumpsit became concurrent with Debt upon all parol demises. In other words, the statute gave to the landlord, in 1738, what Slade’s case gave to the seller of goods, the lender of money, or the employee, in 1602; namely, the right to sue in Assumpsit as well as in Debt, without proof of an independent express promise.

The other counts in Indebitatus Assumpsit being the creation of the courts, the judges found no great difficulty in gradually enlarging their scope, so as to include quasi-contracts, where the promise declared upon was a pure fiction. Thus, one who took another’s money, by fraud or trespass, was liable upon a count for money had and received;1 one who wrongfully compelled the plaintiff’s servant to labor for him, was chargeable in Assumpsit for work and labor;2 and one who converted the plaintiff’s goods, must pay their value in an action for goods sold and delivered.3

But Indebitatus Assumpsit for rent being of statutory origin, the courts could not, without too palpable a usurpation, extend the count to cases not within the act of Parliament. The statute was plainly confined to cases where, by mutual agreement, the occupier of land was to pay either a defined or a reasonable compensation to the owner. Hence the impossibility of charging a trespasser in Assumpsit for use and occupation.

60.

THE HISTORY OF PAROL CONTRACTS PRIOR TO ASSUMPSIT1

By James Barr Ames2

IT is generally agreed by the Continental writers that in early German law, from which our law comes, only real and formal contracts were binding. The same is unquestionably true of the English common law from the time of Edward III. to the introduction of Assumpsit towards the end of the fifteenth century. But Mr. Justice Holmes in his Common Law, 260-264, and again in his essay on Early English Equity, 1 L. Q. Rev. 171-173,3 endeavors to show that the rule requiring a quid pro quo for the validity of a parol undertaking was not of universal application in England, and that a surety, in particular, might bind himself without a specialty prior to the reign of Edward III. If this opinion is well-founded, an innovation and the abolition of the innovation must be accounted for. The evidence in favor of the validity during the two centuries following the Norman Conquest, of any parol obligation which was neither based upon a quid pro quo, nor assumed in a court of record, should, therefore, be very strong to carry conviction. The evidence thus far adduced has failed to convince the present writer.

Prior to the appearance of Assumpsit the contractual remedies in English law were Debt, Detinue, Account, and Covenant. Detinue and Account, every one will agree, were based upon real contracts. Covenant lay only upon sealed instruments, that is, formal contracts. If, therefore, parol undertakings, other than real contracts, were ever recognized in early English law they must have been enforced by the action of Debt. But no instance of such an action in the royal courts, it is believed, can be found.

Glanvil, Bracton, and Britton all recognize the validity of debts founded upon a specialty.1 Glanvil also says in one place that no proof is admissible in the king’s court, if the plaintiff relies solely upon fidei laesio; and in another that the king’s court does not enforce “privatas conventiones de rebus dandis vel accipiendis in vadium vel alias hujusmodi,” unless made in that court, that is to say, unless they were contracts of record.2 Bracton makes the statement that the king’s court does not concern itself except occasionally de gratia with “stipulationes conventionales,” which may be infinite in their variety.3 The language of Fleta is most explicit against the validity of formless parol promises. “Oportet igitur ex hoc quod aliquis ex promissione teneatur ad solutionem, quod scriptura modum continens obligationis interveniat, nisi promissio illa in loco recordum habenti recognoscatur. Et non solum sufficiet scriptura, nisi sigilli munimine stipulantis roboretur cum testimonio fide dignorum.” The same principle was expressed a few years later in a case in Y. B. 3 Ed. II. 78. The plaintiff counted in Debt on a grant for £200, showing a specialty as to £140, and offering suit as to the rest. Frisk, for defendant, said: “Every grant and every demand by reason of grant must be by specialty, but of other contracts,1 as of bailment or loan, one may demand by suit. Therefore as you demand this debt by reason of grant and show no specialty but of part, judgment,” etc. The plaintiff was nonsuited. In Y. B. 2 Ed. III 4-5, Aldeburgh (Judge of C. B. four years later) said: “If one binds oneself to another in a debt in presence of people ‘sans cause et sans especialtie,’ never shall an action arise from this.” The same doctrine is repeated in later cases in the fourteenth century.2 In the light of these authorities it seems highly improbable that Debt was ever maintainable in the king’s court, unless the plaintiff could show either a specialty or a quid pro quo received by the defendant.3

In the essay upon Early English Equity, already referred to, the distinguished writer makes the further suggestion that, although the formless parol undertakings ultimately failed of recognition in the King’s Courts, the Church for a long time, with varying success, claimed a general jurisdiction in cases of læsio fidei; and that after the Church was finally cut down to marriages and wills, the clerical Chancellors asserted for a time in Chancery the power of enforcing parol agreements, for which the ordinary King’s courts afforded no remedy. It is believed that undue importance has been attached to the proceedings in the spiritual court for læsio fidei. It is doubtless true that this court was eager to enlarge its jurisdiction, and to deal with cases of breach of faith not properly within its cognizance. We may also concede that the court was sometimes successful in keeping control of such cases when the defendant did not dispute the jurisdiction. But the authorities would seem to make it clear that from the time of the Constitutions of Clarendon, a prohibition would issue as a matter of course from the King’s Court upon the application of one who was drawn into the spiritual court upon breach of faith in a purely temporal matter.1

Nor has the present writer been able to discover any traceable connection between the ecclesiastical claim of jurisdiction over læsio fidei and the jurisdiction of the Chancellor in the matter of parol agreements. If the Chancellor proceeded in the same spirit as the ecclesiastical judge, purely upon the ground of breach of faith, it would follow that in the absence of a remedy at common law, equity would give relief upon any and all agreements, even upon gratuitous parol promises. And Mr. Justice Holmes seems to have so interpreted the following statement, which he cites from the Diversity of Courts (Chancery): “A man shall have remedy in Chancery for covenants made without specialty, if the party have sufficient witness to prove the covenants, and yet he is without remedy at the common law;” for he adds that the contrary was soon afterwards decided, citing Cary, 7: “Upon nudum pactum there ought to be no more help in Chancery than there is at the common law.”1 But, without all deference, the passage in the Diversity of Courts seems to have been misapprehended. There is really no contrariety between that passage and the extract from Cary. It is not asserted in the Diversity of Courts that one should have remedy for all parol covenants, where there was no remedy at common law. Full effect is given to the language used if it is taken to import that relief was given upon some parol covenants. So interpreted the Diversity of Courts accords with other authorities. For while it is confidently submitted that no instance can be found prior to the time of Lord Eldon2 in which Equity gave relief upon a gratuitous parol promise, it is certainly true that Chancery did in some cases furnish a remedy upon parol covenants. But in all these Chancery cases it will be found that the promisee, acting in reliance upon the promise, had incurred expense, or otherwise parted with property, and that the Chancellor, upon an obvious principle of natural justice, compelled the promisor to make reparation for the loss caused by his breach of promise. Three such instances, between 1377 and 1468, are mentioned in an essay upon “The History of Assumpsit,” in an earlier3 part of this Collection. Those instances might have been supplemented by three similar cases which were brought to light by Mr. S. R. Bird.1 In Gardyner v. Keche (1452-1454), Margaret and Alice Gardyner promised to pay the defendant £22, who on his part was to take Alice to wife. The defendant, after receiving the £22, “meaning but craft and disceyt,” married another woman, “to the great disceyt of the said suppliants, and ageyne all good reason and conscience.” The defendant was compelled to answer the bill. In Leinster v. Narborough (circa 1480), the defendant being betrothed to the plaintiff’s daughter-in-law, but desiring to go to Padua to study law, requested the plaintiff to maintain his fiancée, and a maid-servant to attend upon her during his absence, and promised to repay upon his return all costs and charges incurred by the plaintiff in that behalf. The defendant returning after ten years declined to fulfil his promise, and the plaintiff filed his bill for reimbursement, and was successful.2 In James v. Morgan (1504-1515), the defendant promised the plaintiff 100 marks if he would marry his daughter Elizabeth. The plaintiff accordingly “resorted to the said Elizabeth to his great costs and charges,” and “thorow the desavebull comforde” of the defendant and his daughter delivered to the latter jewels, ribbons, and many other small tokens. Elizabeth having married another man through the “crafty and false meane” of the defendant, the plaintiff by his bill sought to recover the value of his tokens, and also the “gret costs and charges thorow his manyfold journeys.”

In all these cases there was, it is true, a breach of promise. But there seems to be no reason to suppose that the Chancellors, in giving relief, were influenced, even unconsciously, by any recollection of ecclesiastical traditions in regard to læsio fidei. It was so obviously just that one who had intentionally misled another to his detriment should make good the loss, that we need not go further afield for an explanation of the Chancellor’s readiness to give a remedy upon such parol agreements. In A little Treatise concerning Writs of Subpœna,1 written shortly after 1523,—that is, at about the same time as the Diversity of Courts,—occurs the following instructive passage:—

Here the subpœna is allowed in the absence of a promise. There could, therefore, be no question of breach of faith. But the money having been paid and received under the expectation of both parties that the plaintiff would get a valid transfer of the rent, it was plainly just that equity should not permit the defendant to rely on the absence of a remedy at common law as a means of enriching himself at the expense of the plaintiff.

It is hardly necessary to remind the learned reader of the analogy between the case just considered, and uses arising upon a bargain and sale, which were supported for the first time only a few years before.2 It was doubtless the same principle of preventing unjust enrichment which led the Chancellor in the reign of Henry V. to give a legal sanction to the duty of the feoffee to uses which before that time had been a purely honorary obligation.

To sum up, then, the Ecclesiastical Court had no jurisdiction over agreements relating to temporal matters. Chancery gave relief upon parol agreements only upon the ground of compelling reparation for what was regarded as a tort to the plaintiff, or upon the principle of preventing the unjust enrichment of the defendant; and the common law, prior to Assumpsit, recognized only those parol contracts which were based upon a quid pro quo.

The jurisdiction of Equity was rarely invoked upon breaches of promises after the development of Assumpsit, unless specific performance of the contract was desired. We have only to consider, therefore, the nature of the common-law real contracts which were enforced by the actions of Debt, Detinue, and Account.

It is not necessary to deal specially with Account, since the essential principles of that action have been clearly and fully set forth by Professor Langdell in the Harvard Law Review.1 It will suffice to emphasize the fact that a defendant’s duty to account, whether as bailiff or receiver, arose from his receipt of property as a trustee, and that a plaintiff entitled to an account was strictly a cestui que trust. In other words, trusts for the payment of money were enforced at common law long before Chancery gave effect to trusts of land. It need not surprise us, therefore, to find that upon the delivery of money by A to B to the use of C, or to be delivered to C, C might maintain an action of Account against B.2 Account against a receiver was long ago superseded by the common count for money had and received by the defendant to the use of the plaintiff. But the words “to the use of” still bear witness to the trust relation.

Detinue was usually founded upon the contract of bailment. This contract was a real contract by reason of the delivery of a chattel by the bailor to the bailee. The duty of the bailee was commonly to redeliver the same chattel to the bailor, either upon demand or at some time fixed by the terms of the bailment. But the chattel might be delivered to the bailee to be delivered to a third person, in which case the third person was allowed to maintain Detinue against the bailee.1

Detinue would also lie against a seller upon a bargain and sale. Here it was the payment of the purchase-money that as a rule constituted the quid pro quo for the seller’s duty to suffer the buyer to take possession of the chattel sold. If the bargain was for the reciprocal exchange of chattels, the delivery of the chattel by the one party would be as effective a quid pro quo as payment of purchase-money to support an action of Detinue against the other party. It was hardly an extension of principle to treat the delivery of the buyer’s sealed obligation for the amount of the purchase-money as equivalent to actual payment of money, or delivery of a chattel, and accordingly we find in Y. B. 21 Edward III. 12-2, the following statement by Thorpe (Chief Justice of the Common Bench in 30 Edward III.): “If I make you an obligation for £40 for certain merchandise bought of you, and you will not deliver the merchandise, I cannot justify the detainer of the money; but you shall recover by a writ of Debt against me, and I shall be put to my action against you for the thing bought by a writ of Detinue of chattels.” But it was a radical departure from established traditions to permit a buyer to sue in Detinue when there was merely a parol bargain of sale without the delivery of a physical res of any sort to the seller. But this striking change had been accomplished by the time of Henry VI. The new doctrine may be even older,2 but there seems to be no earlier expression of it in the books than the following statement by Fortescue, C. J.: “If I buy a horse of you, the property is straightway in me, and for this you shall have a writ of Debt for the money, and I shall have Detinue for the horse on this bargain.”1 From the mutuality of the obligations growing out of the parol bargain without more, one might be tempted to believe that the English law had developed the consensual contract more than a century before the earliest reported case of Assumpsit upon mutual promises.2 But this would be a misconception. The right of the buyer to maintain Detinue, and the corresponding right of the seller to sue in Debt were not conceived of by the medieval lawyers as arising from mutual promises, but as resulting from reciprocal grants,—each party’s grant of a right forming the quid pro quo for the corresponding duty of the other.3

It remains to consider the most prominent of all the English real contracts, the simple contract debt. The writ in Debt, like writs for the recovery of land, was a praecipe quod reddat. The judgment for the plaintiff is that he recover his debt. In other words, as in the case of real actions, the defendant was conceived of as having in his possession something belonging to the plaintiff which he might not rightfully keep, but ought to surrender. This doubtless explains why the duty of a debtor was always for the payment of a definite amount of money or a fixed quantity of chattels.1 A promise to pay as much as certain goods or services were worth would never support a count in Debt.2 In Y. B. 12 Edw. IV. 9-22, Brian, C. J., said: “If I bring cloth to a tailor to have a cloak made, if the price is not determined beforehand that I shall pay for the making, he shall not have an action of Debt against me.”3 For the same reason, the quantum meruit and quantum valebant counts seem never to have gained a footing among the common counts in Debt, and in Assumpsit the quantum meruit and quantum valebant counts were distinguished from the indebitatus counts. But principle afterwards yielded so far to convenience that it became the practice to declare in Indebitatus Assumpsit when no price had been fixed by the parties, the verdict of the jury being treated as equivalent to a determination of the parties at the time of bargain.

The ancient conception of a creditor’s claim in Debt as analogous to a real right manifested itself in the rule that a plaintiff must prove at the trial the precise amount to be due which he demanded in his præcipe quod reddat. If he demanded a debt of £20 and proved a debt of £19, he failed as effectually as if he had declared in Detinue for the recovery of a horse and could prove only the detention of a cow.4 For the same reasons Debt would not lie for money payable by instalments, until the time of payment of the last instalment had elapsed, the whole amount to be paid being regarded as an entire sum, or single thing.1

The quid pro quo which the debtor must receive to create his duty might consist of anything that the law could regard as a substantial benefit to him. Debts were usually founded upon a loan of money, a sale, a lease of property to the debtor, or upon work and labor performed for him. The quid pro quo in all these cases is obvious.2 The execution of a release by an obligee to an obligor was also a sufficient quid pro quo to create a new debt between the same parties.3 Forbearance to sue on a claim has been regarded in the same light: “for the forbearing of a suit is as beneficial in saving, as some other things would have been in gaining.”4

But Debt will not lie upon mutual promises. In Smith v. Airey,5 “Holt, C. J., said that winning money at play did not raise a debt, nor was debt ever brought for money won at play, and an Indebitatus Assumpsit would not lie for it; but the only ground of the action in such cases was the mutual promises. That though there were a promise, yet Debt would not lie upon that.” According to another report of the same case Lord Holt said, “There is no way in the world to recover money won at play but by special Assumpsit.”1

Originally there was no quid pro quo to create a debt against a defendant if the benefit was conferred upon a third person, although at the defendant’s request. Y. B. 9 Henry V. 14-23 is a case in point. The plaintiff, having a claim for £10 against T, released the claim upon the defendant’s promise to pay him the same amount. The plaintiff failed because the benefit of the release was received by T.2 In Y. B. 27 Henry VIII. 23, upon similar facts, Fitz-James, C. J., thought the plaintiff should recover in an action on the case upon the promise, but not in Debt, “for there is no contract,3 nor has the defendant quid pro quo.” Post, J., and Spelman, J., on the other hand, thought there was a quid pro quo. It was also made a question, on the same ground, whether a defendant who promised money to the plaintiff if he would marry the defendant’s daughter was liable in Debt to the plaintiff who married the daughter.4 But here, too, the opinion finally prevailed that though the girl got the husband, her father did receive a substantial benefit.5 In Y. B. 37 Henry VI. 9-18, Moyle, J., said: “If I say to a Surgeon that if he will go to one J who is ill, and give him medicine and make him safe and sound, he shall have 100 shillings, now if the Surgeon gives J the medicines and makes him safe and sound, he shall have a good action [Debt] against me for the 100 shillings, and still the thing is to another and not to the defendant himself, and so he has not quid pro quo, but the same in effect.” This reasoning of Moyle, J., met with general favor, and it became a settled rule that whatever would constitute a quid pro quo, if rendered to the defendant himself, would be none the less a quid pro quo, though furnished to a third person, provided that it was furnished at the defendant’s request, and that the third person incurred no liability therefor to the plaintiff. Accordingly, a father was liable for physic provided for his daughter;1 a mother for board furnished to her son;2 a woman was charged in Debt by a tailor for embroidering a gown for her daughter’s maid;3 a defendant was liable for instruction given at his request to the children of a stranger, or for marrying a poor virgin.4 The common count for money paid by the plaintiff to another at the defendant’s request is another familiar illustration of the rule.

But it is an indispensable condition of the defendant’s liability in Debt in cases where another person received the actual benefit, that this other person should not himself be liable to the plaintiff for the benefit received. For in that event the third person would be the debtor, and one quid pro quo cannot give rise to two distinct debts.5 Accordingly where the plaintiff declared in Debt against A for money lent to B at A’s request, his declaration was adjudged bad; for a loan to B necessarily implied that B was the debtor. If B was, in truth, the debtor, the plaintiff should have declared in Special Assumpsit against A on the collateral promise. If B was not the debtor, the count against A should have been for money paid to B at A’s request.6 By the same reasoning it would be improper to count against A for goods sold to B at A’s request. If B was really the buyer, the seller should charge him in Debt, and A in Special Assumpsit on the collateral promise. If B was not the buyer, the count against A should be for goods delivered to B at A’s request.1 The same distinction holds good as to services rendered to B at A’s request. If B is a debtor A is not, but only collaterally liable in Assumpsit.2

The distinction between Debt and Special Assumpsit, as illustrated in the cases mentioned in the preceding paragraph, is of practical value in determining whether a promise is in certain cases within the Statute of Frauds relating to guaranties. If B gets the enjoyment of the benefit furnished by the plaintiff at A’s request, but A is the only party liable to the plaintiff, A’s promise is not within the statute. If, on the other hand, B is liable to the plaintiff for the benefit received, that is, is a debtor, A’s promise is clearly a guaranty and within the statute.3

There were obviously many parol agreements that did not come within the scope of Debt, Detinue, or Account. This difficulty was at length met by the action of Assumpsit, which became, indeed, a remedy upon all parol agreements.4 But the distinction between Debt and Assumpsit is fundamental. For, while Assumpsit might always be brought where Debt would lie upon a simple contract, the converse is not true. There were many cases where Assumpsit was the only remedy. Assumpsit would lie both where the plaintiff had incurred a detriment upon the faith of the defendant’s promise, and where the defendant had received a benefit. Debt would lie only in the latter class of cases. In other words, Debt could be brought only upon a real contract,—Assumpsit upon any parol contract.

61.

THE HISTORY OF CONTRACT1

By John William Salmond2

THE modern law of contract consists of a general theory, forming the bond of union between numerous, and otherwise unconnected, classes of contracts. This general theory is posterior in date to, and different in origin and history from, the particular contracts which it comprehends. Buying and borrowing, pledging and suretyship, cannot wait for the development of a refined system of law, and these processes must have been regulated by definite principles long before they were embraced in a comprehensive generalization. A complete history of contract must therefore consist of two parts. With the first of these, consisting in an enquiry into the origin and mode of development of the different species of contracts, we have not here to do. Our attention will be confined to the rise of the general principles that have given system and unity to the mass of detail.

The general theory of contract is almost entirely of domestic origin. In Bracton and Fleta indeed we find an attempt to employ the general principles of the Roman Law as a setting for English contracts,3 but the chief significance of this attempt lies in its failure. Perhaps in no other part of the law have Roman principles been so prominently introduced, only to be so completely rejected. The English law was thus left to fashion a theory of contract for itself. The manner in which it did so is an excellent illustration of the operation of modes of procedure in determining the development and form of the substantive law, for the history of the law of contract is almost entirely comprised in that of three forms of action. These are Debt, Covenant, and Assumpsit.

The first of these can be traced back to the beginnings of the law, but the earliest fact respecting it which need here be noticed is its division into the two actions of debt and detinue. Save for obscure hints in Bracton and Fleta,1 there seems to be no reference to this division in the early legal writers, though it appears as well established in the Year Books of Edward I.2 It was based, not, as is often said,3 on the distinction between money and chattels, but apparently on that between obligation and property. Detinue was an action for the recovery of money or chattels of which the plaintiff had the ownership; debt for the recovery of money or chattels over which the plaintiff’s right was merely in personam.4 This division had important effects upon the law of contract, for it is evident that all bailments would be relegated to the action of detinue. Now this action played no part in the development of the theory of contract, and bailments consequently remained outside that theory until the rise of the action of assumpsit restored them to their rightful position as a class of contracts. Furthermore this removal of bailments rendered possible, as will be seen later, an important generalization within the action of debt. It is evident that debt, as the general remedy for all obligations that gave rise to liquidated claims, must have had a scope in some respects wider and in some narrower than the sphere of contract. Since, however, the cases in which it was the remedy for causes of action not contractual were comparatively unimportant, they may be here neglected.

In every action of debt two elements were originally necessary, a justa causa debendi and a legal proof.1 There were within historical times two principal modes of proof, the carta or written acknowledgment, and the secta or train of witnesses. It is to this fact that we owe the distinction between specialty debts and debts on simple contract. With respect to the causae debendi the most important fact to be noticed is that among them the early law did not include a promise or agreement. The idea of the obligatory nature of a mere executory agreement seems to have been unknown, and part performance was a condition precedent to the existence of an obligation.2 Indeed it is doubtful whether an agreement was in any distinct manner recognised as an element of debt, or whether any conscious distinction was drawn between obligations ex contractu and any other form of obligation.3 It was an accident of procedure that first introduced into the law the principle of enforcing mere promises. A written acknowledgment of a debt, or written promise to pay it, was obviously the best evidence that could be obtained, and by a transition very natural to early law it passed from the position of good evidence to that of conclusive proof. This appears from Bracton: ‘Per scripturam vero obligatur quis, ut si quis scripserit alicui se debere, sive pecunia numerata sit sive non, obligatur ex scriptura, nec habebit exceptionem pecuniae non numeratae contra scripturam, quia scripsit se debere.’4 The obvious effect of this rule of evidence upon the substantive law was that a written promise to pay ceased to be a mere proof of an already existing debt, and became a causa debendi itself. Thus was introduced into the English law a formal contract, and it would seem that to this same application of estoppel early law is largely indebted for this class of contract. Thus in the law of Rome the contract literis and the release by acceptilatio are undoubted instances of the process,1 though to extend the same explanation to the stipulation might be overbold.

In debts proved by good suit, on the other hand, it remained necessary to allege an independent causa debendi. ‘En dette sur contract le plaintiff monstra in son count pur quel cause le defendant devient son dettour. Autrement in dette sur obligation, car l’obligation est contract in luy meme.’2 What then were these causae? To give a complete list of them is impracticable, but they were such transactions as sale, barter, loan (mutuum), and hiring of services. The common feature of them all was something given or done on one side in return for something to be given or done on the other. A generalization of the causae debendi was therefore possible, and this resulted in the well-known doctrine of quid pro quo. It was laid down that debt on a simple contract did not lie unless the defendant had received something in recompense for the obligation sought to be enforced against him.3 The cause that led to this explicit statement of what had been implicit from the earliest times was probably the disturbing influence of the idea that simple contract debts were really based upon promises, and the consequent necessity of defining the limits within which a promise was obligatory. In the early theory of contract quid pro quo, as yet ungeneralized, was the principal; the promise, if recognised at all, merely the accessory. With the progress of legal theory, however, this relation became reversed, and quid pro quo assumed the aspect of a limitation upon the binding effect of promises.

The exact date of this generalization is uncertain. What seems the earliest mention of the term occurs in 39 Ed. III,4 where however it is unconnected with contract. In 9 Hen. V1 debt was brought by a plaintiff who had released a judgment debtor on the promise of the defendant to become debtor in his stead. It was held that this was not sufficient matter in law to charge the defendant. This is a good example of the kind of case that must have led to the formulation of the doctrine of quid pro quo, but the report makes no use of that expression. In 7 Hen. VI we find an objection made to the absence of quid pro quo, though not in an action of debt,2 and thirty years later the rule is treated as perfectly familiar.3 In 16 Ed. IV4 it is remarked that ‘parols sans reason’ have no binding force. The principle in question has been somewhat hastily identified with the modern principle of consideration, but as we shall see it is very doubtful whether there is between them any historical connection whatever.

The second form of action to be considered is that of Covenant. By the time of Edward I this was fully established as a general contractual remedy by which damages could be obtained for the breach of any agreement under seal. It seems probable that this action passed into the law of contract from the law of real property, the earliest conventiones being leases of land for life or years.5 However this may be, its history as a general contractual remedy can be traced with considerable clearness in the early writers. Glanvil tells us that privatae conventiones were not enforceable.6 This assertion seems sometimes to be interpreted as meaning merely that contracts were invalid unless reduced to writing;7 but Glanvil himself defines privatae conventiones as agreements made anywhere save in the King’s Court. If not there made, no executory contract was enforceable whether reduced to writing or not. By the time of Bracton we find an advance in legal theory, for covenants are now enforced in the King’s Court not of right but occasionally de gratia. ‘Non solet aliquando necessitas imponi curiae domini regis de hujusmodi conventionibus privatis discutere. Sed tamen si quis a conventione recedat, succurritur alteri parti per actionem de conventione.’1 Finally in Fleta the foregoing passage is transcribed with an omission of all reference to the remedy being of grace rather than of right.2 Unlike debt and, as will be seen, unlike assumpsit, covenant was from the first recognised as a remedy for breach of promise. Unlike these actions therefore its origin imposed no limitation on its scope, and it threatened to become co-extensive with agreements. A limitation stringent enough however was imposed by the law of evidence. In 20 Ed. I3 a plaintiff offered good suit to prove his covenant, and it was decided that a writing was the only admissible proof of an agreement. This rule determined the whole future history of the law of contract, for it obtained recognition at a time when a writing meant a writing under seal, and covenant was thus restricted to a class of agreements that became narrower every day.

The limitations thus sought to be imposed on the law of contract proved too strait to be borne. A form of action never fashioned for that end was soon pressed into the service for which debt and covenant had proved inadequate, and this in process of time developed into the third and most important contractual remedy. Of the origin and nature of Trespass on the Case it is needless here to speak, but a subject deserving some consideration is the process by which it became a remedy for breach of contract. It was intended as a provision for those cases of damage to person or property that did not fall within the original scope of trespass. Now inasmuch as breach of contract is a fruitful source of damage to person and property, it is evident that in many instances trespass on the case must have been in reality a contractual remedy. Very frequently therefore an undertaking or assumpsit formed part of the circumstances of the case, and appeared in the count.1 This aspect of trespass on the case was early perceived, and the objection used at first to be brought that in such cases covenant was the appropriate and exclusive remedy. This, however, was overruled. Thus in 48 Ed. III, in an action against a surgeon for negligence, it is said: ‘This action of covenant is of necessity maintainable without specialty, because for every little thing a man cannot have a clerk to make a deed.’2 In a similar case in 11 Rich. II3 the contract was made in London, and the negligent performance of it occurred in Middlesex. A dispute arising as to the venue, it was decided that issue might be joined either on the assumpsit or on the ‘contrary medicines,’ and that the venue would be determined accordingly. This shows a distinct appreciation of the double character of the action, trespass from one point of view, covenant from another.

Now happened an event closely analogous to what we have already noticed in the history of debt. In trespass on the case, as in debt, a promise was not originally the cause of liability, but merely an accessory; in both actions the promise came subsequently to be regarded as the principal; and in both a consequent necessity arose of limiting the new principle by a generalized statement of the old. In debt this resulted, as has been seen, in the doctrine of quid pro-quo. In assumpsit it resulted first of all in the rule that the action lay for a breach of promise by malfeasance only, as distinguished from a breach by nonfeasance.4 This rule was evidently a recognition that the action, though from one point of view contractual, was in reality delictual. If it resulted from a mere omission, damage to the plaintiff’s person or property was not regarded as a cause of action; for, generally speaking, it is only through a contractual obligation that a man becomes liable for passively permitting another’s loss.

For a century the ‘merveillous ley’ that resulted from this distinction was subjected to a vigorous attack,1 until at last in 20 Hen. VII the efforts of the assailants proved victorious. In this year it was decided, in defiance of all precedent, that an action on the case lay for a nonfeasance. ‘If I covenant for money to build a house by such a day, and do it not, an action on the case lies for the nonfeasance.’2 This piece of judicial legislation obtained immediate recognition,3 and from this time the law of contract may be regarded as established in what is practically its modern form.

It might be supposed that after this extension assumpsit would become coextensive with parol agreements. Not so however. There is no more curious feature in the history of the English law of contract than the manner in which limitations were invariably imposed upon the scope of contractual remedies and the obligatory nature of agreements. The limitation now imposed upon assumpsit was the necessary result of the fact that it was an action ex delicto perverted into a contractual remedy. A purely delictual action is based upon detriment suffered by the plaintiff, and that detriment is the measure of damages. A purely contractual action, on the other hand, is based on breach of promise, whether accompanied by detriment or not, and the measure of damages is the benefit that would have resulted to the plaintiff from performance. The employment of an action ex delicto as a remedy for breach of contract naturally resulted in a union of these two principles; the real, though not the ostensible, cause of action continued to be injury to the plaintiff, but the amount of this injury was immaterial, for the measure of damages was, as in a true contractual action, the benefit that would have resulted from performance.4 This injury which, though an essential element, was neither the measure of damages nor the ostensible cause of action, operated as a limitation upon the action of assumpsit, and in a slightly modified form is still to be seen in the modern requirement of Consideration. It is true that valuable consideration is generally regarded as being of two kinds, only one of which consists in damage to the plaintiff. But even that form of consideration which consists in a benefit to the defendant ought logically and historically to be regarded as an injury to the plaintiff from whom it moves. And such is now the prevalent opinion. ‘Detriment to the promisee is a universal test of the sufficiency of consideration’ in assumpsit: Langdell, Summary, § 64.

The rule that assumpsit would not lie unless the plaintiff had suffered damage required and received distinct recognition on the extension of the action to nonfeasance. It was held that a breach of contract by nonfeasance, as a failure to build a house, was no ground of action unless loss had been incurred, as by prepayment of the price. In 21 Hen. VII, Chief Justice Frowike says, ‘I shall have a good action on my case by cause of the payment of the money, and without payment of the money in this case there is no remedy; and yet if he builds the house and does it badly, an action on my case lies. . . . And so it seems to me that in the case at bar the payment of the money is the cause of the action on the case.’1

It has been already said that this requirement of injury to the plaintiff, which existed in assumpsit as a relic of the original delictual character of the action, is represented with some modifications by the modern rule as to consideration. The cause and the significance of these modifications constitute the obscurest problem in the history of contract. The theory to be here advanced is that there is no historical connection between consideration and the original limitation of assumpsit, but that the former was an independent development in another part of the law, which by its strong analogy to the aforesaid limitation was enabled to introduce itself into assumpsit and to supplant the earlier principle. This process must have taken place between the end of the reign of Henry VII, when assumpsit was extended to nonfeasance, and the beginning of the reign of Elizabeth, in whose tenth year the later principle appears in an unmistakeable form.1 There can be little doubt that the idea of consideration received its first applications from the Court of Chancery, where it formed an essential part of the equitable doctrine of uses. It is needless here to enter into the details of the varied and extensive use made of this principle by equity; it is sufficient to mention the necessity for good consideration in covenants to stand seised to uses, in conveyances without declaration of uses, and in the alienation of land subject to uses. The application of consideration to the law of uses has been brought into special prominence, partly by the importance of this branch of equitable jurisdiction, and partly by the operation of the Statute of Uses; but there is no sufficient reason for supposing that this was the only equitable application of the principle. There are some grounds for believing that consideration was originally in equity, as subsequently in law, a principle of contract. That there was an equitable jurisdiction in contract is undoubted. In 8 Ed. IV2 the right to determine suits pro fidei laesione was distinctly claimed and exercised by the Chancellor. Fairfax, a judge of this reign, jealous of the growing jurisdiction, urged that the action on the case ought to be extended so as to obviate the necessity of an appeal to Chancery.1 From the Diversité de courtes2 we learn that ‘a man can have remedy in the Chancery for covenants made without specialty, if the party has sufficient proof of the covenants, since he is without remedy at the common law.’ It was doubtless in order to check the growth of this jurisdiction that the judges extended the remedy of assumpsit, as already mentioned. Fineux, one of the authors of this change, remarks that since the party can have assumpsit for a nonfeasance, ‘there will be no necessity for a subpœna.’3 On the extension of the common law action, Chancery to a large extent abandoned its jurisdiction over contracts, though a relic of it is still to be seen in the remedy of specific performance.4

There is little or no direct evidence that consideration was applied by equity to contracts, for few examples of this branch of equitable jurisdiction are to be found. It appears from the early bills in Chancery that the term consideration, with its synonym cause, was in use in contracts as early as the reign of Edward IV;5 but to what extent these words had a technical meaning, or bore reference to a definite legal principle, it is impossible to tell. In the absence of direct evidence we must fall back upon inference. Even within the law of uses we find consideration applied to contracts, for covenants to stand seised to uses (which might be by parol6 ) were limited by this requirement. That this was an isolated application of the principle to a single class of contracts seems a much less probable supposition than that it was merely a particular instance of a rule requiring a consideration in all contracts whatever. Furthermore the principle in question is applied by equity to contracts at the present day. As has been said, specific performance is a relic of the general equitable jurisdiction in contract. Now the application of this remedy is still limited by the requirement of consideration, a requirement more imperative than in the common law, inasmuch as it disregards the distinction between specialty and parol agreements. For the application of this principle to contracts therefore, either equity must be indebted to the law, or the law to equity. Can the former supposition be maintained, when we know that to equity is due the origin of the principle, and its varied applications throughout the law of uses, trusts, and even in particular instances contract itself?

In treating of the history of this subject it is essential to bear in mind that consideration was not what is now known as valuable consideration. It was a much wider idea, and may be defined as any motive or inducement which could be regarded as rational and sufficient. It included four principal species: first, valuable consideration; second, natural affection; third, legal obligation; and fourth, moral obligation. This wide idea was destined to undergo a process of atrophy, the result of which has been that at the present day it is practically reduced to valuable consideration, though various relics of the original doctrine are still to be met with scattered through the law. The proofs of the original form of the idea, and of its more or less complete application in this form to assumpsit, are in the main the same, and may be given together:—

At the time when its legal use originated, the word was popularly used in the wide sense above indicated. Thus in Doctor and Student:1 ‘The said statute was well and lawfully made, and upon a good reasonable consideration.’ In all probability the legal and popular uses were at first identical. Secondly, that natural affection originally formed part of the idea in question needs no proof, for even at the present day it receives nominal recognition under the title of good consideration.2 What is perhaps the first mention of consideration in the Year Books is in 20 Hen. VII, where it is said of a grant: ‘it was made on good consideration, for the elder brother is bound by the law of nature to aid and comfort his younger brother.’1 The relationship of good to valuable consideration can be satisfactorily explained only on the theory that they were originally species of a generic notion, which could not have been narrower than that above indicated. Thirdly, that consideration originally included legal obligation seems the only possible explanation of such actions as indebitatus assumpsit2 and insimul computassent.3 If the idea in question had been as narrow when these actions originated as it is now, there must have been an absurdity in alleging a debt as a consideration for a promise to pay it. Fourthly, that in certain cases moral obligation was regarded as a good consideration, may be gathered from anomalies that exist even at the present day. These and other exceptions to strict theory are commonly explained as relaxations that have been gradually permitted in the rule respecting consideration.4 But it is extremely difficult to see how such exceptions could ever have been allowed entrance into the law. A far more satisfactory explanation is that these anomalies are the relics of a wider rule that included both the modern rule and the modern exceptions to it. Such an exception is to be seen in the doctrine that a past consideration is sufficient to sustain a promise if moved by a precedent request. The first statement of this rule is reported in 10 Elizabeth. Assumpsit was brought on a promise to indemnify the plaintiff, who had previously become bail for the defendant’s servant. ‘By opinion of the court it does not lie in this matter, because there is no consideration wherefore the defendant should be charged for the debt of his servant, . . . . for the master did never make request to the plaintiff to do so much for his servant, but he did it of his own head.’5 The rule is evidently based on the idea that there is no moral obligation to recompense a benefit, and therefore no consideration for a promise to do so, unless the benefit is conferred at the request of the person benefited.1

Of the method in which this principle obtained entrance into the action of assumpsit, there seems to be little or no evidence; but if we take into account the facts that it was probably applied to contracts by equity, that the development of assumpsit was determined by the desire to absorb the equitable jurisdiction in contract, that since the Statute of Uses consideration had spread widely through the common law, and that a strong resemblance existed between consideration and the common law limitation of assumpsit, it can scarcely be a matter of surprise that the latter was finally supplanted by the former.

Had the idea of consideration proved more stable, and made successful resistance to the process by which it has been reduced to its modern limits,2 its introduction into assumpsit would have caused a profound modification of the law of contract. As it is, however, it may be said that even had this equitable principle never been borrowed by the common law, the law of contract would have been, except in one point, practically identical with what it now is. The exception lies in this, that whereas the original limitation of assumpsit consisted simply in detriment to the promisee, consideration consists in such detriment regarded as an inducement to the promise. The difference is important, for its effect was to render assumpsit inapplicable, save by reasoning approaching closely to the fictitious, to the very cases to which trespass on the case was first applied. Coggs v. Bernard is a typical example of this. Damage directly resulting from the breach of contract, as the loss of the brandy in this celebrated case, cannot of course be regarded as an inducement to the promise; and therefore, although it would have fallen within the common law limitation of assumpsit, it is no consideration.

Assuming then that the law derived consideration from equity, the question remains: Whence did equity derive the principle? It is sometimes answered: From the civil law. If this means that it resulted from an adoption or adaptation of the Roman distinction between contractus and nudum pactum, the opinion is untenable. The causæ civiles which turned pacts into contracts were incapable of generalization, and even by omitting the formal contracts we obtain only the inadequate idea of valuable consideration. The civil law supplies however another application of the term causa, which is more to the point. Money paid or property delivered sine causa could be reclaimed; and a promise made sine causa was invalid.1 This rule applied to contracts, whether formal or not. Causa was not of course restricted to valuable consideration, for this was never essential to a stipulation, but it included any adequate motive or sufficient reason. The rule rendered invalid promises made either under a mistake (sine causa ab initio) or for a valuable consideration which failed (causa data causa non secuta). Now the Canon Law expressly renounced the moribund distinction between contractus and pactum,2 and this example was followed very generally throughout Europe.3 This breakdown of the old theory would naturally call into prominence the requirement of causa, as being the only remaining limitation upon the binding efficacy of agreements; and that this was actually the case sufficiently appears from the following extract from Molina, a jurist of the sixteenth century. ‘Observant etiam Felinus . . . et doctores communiter, ut jure canonico ex pacto nudo actio concedatur, qua paciscens cogatur implere pactum, necessariam esse causae expressionem: alioquin reus non cogetur solvere, nisi actor causam sufficienter probet. . . . Quo loco observa, sufficientem causam ut solvere cogatur esse titulum donationis.’1 Molina proceeds to give examples of the rule, to identify it with the rule of the civil law already mentioned, and to call attention to the mistake made by some writers in confounding causa in this sense with the causa that was originally necessary as a vestimentum pacti. This same rule that a cause is necessary to sustain a promise is still recognised in its original form by the French law.2 An enunciation of the same principle, very significant with regard to the English law, is to be found in Doctor and Student. The Student knows nothing of consideration, but expounds the law of contract exactly as it was understood during the reign of Henry VIII. But the Doctor of Divinity speaks as follows: ‘And of other promises made to a man upon a certain consideration, if the promise be not against the law, as if A. promise to give B. 20l. because he hath made him such a house, or hath lent him such a thing, or such other like, I think him bound to keep his promise. But if his promise be so naked that there is no manner of consideration why it should be made, then I think him not bound to perform it, for it is to suppose that there was some error in the making of the promise. . . . And in all such promises it must be understood that he that made the promise intended to be bound by it, for else commonly after the doctors he is not bound, unless he were bound to it before his promise: as if a man promise to give his father a gowne that hath need of it to keep him from cold. And also such promises, if they shall bind, they must be honest, lawful, and possible, and else they are not to be holden in conscience though there be a cause. And if the promise be good and with a cause, though no worldly profit shall grow thereby to him that maketh the promise, but only a spiritual profit, as in the case before rehearsed of a promise made to an University, to a Citie, to the Church, or such other, and with a cause as to the honour of God, there is most commonly holden that an action upon these promises lieth in the Law Cannon.’1

That the principle so expounded by the doctor of divinity is identical with that which we have already found to exist in the Canon Law, there can be no doubt. Is it not almost equally obvious that it is also identical with the equitable principle of consideration? In name the two principles are the same, and in nature they are practically indistinguishable, save that consideration is not met with in equity until after the commencement of that process of contraction which finally reduced it to its modern limits. May we not conclude then that when the Chancellors, who till the reign of Henry VIII were almost invariably ecclesiastics, sought a basis on which to found their equitable jurisdiction in contract, they adopted a principle lying ready to their hands in a system of law with which they were familiar?

The theory that consideration is a modification of the Roman principle of causa, adopted by equity, and transferred thence into the common law, finds some support from Mr. Pollock in his work on Contracts,2 but is rejected by Mr. Justice Holmes,3 who attempts to prove the principle in question to be entirely an internal development of the English law of contract. The central point of Mr. Holmes’s theory is that the modern rule of consideration is merely a modification of the ancient requirement of quid pro quo in the action of debt. But to this view the objections seem almost insurmountable. It is based on a mistaken view of the original contents of the idea of consideration. Between this idea, as first understood, and quid pro quo, there is a gap too wide to be bridged by any theory of development. Furthermore, quid pro quo was a principle confined to the action of debt, while consideration (as a theory of the law of contract) was found only in assumpsit. Thirdly, this latter principle was well known in the law of property some time before it appears in contracts; it seems scarcely probable therefore that it was derived from the action of debt. Again, it is alleged that the modification by which quid pro quo became consideration was the recognition of detriment to the promisee as well as benefit to the promisor. But in debt this extension was again and again attempted without success,1 and it is not probable that it could have succeeded in assumpsit. Lastly, the two ideas in question lived on independently in their own spheres, and the clearest distinction was always drawn between them. Thus in 27 Hen. VIII it is said: ‘I understand that one cannot have a writ of debt except when there is a contract; for the defendant has not quid pro quo, but the action is founded solely on the assumption, which sounds merely in covenant.’2 Again in 27 & 28 Eliz.: ‘In assumpsit it is not necessary that they contract at the same instant, but it suffices if there be inducement enough to the promise, and although it is precedent it is not material; otherwise in debt it is requisite that the benefit come to the party, otherwise for want of a quid pro quo debt does not lie.’3 Again, as late as 4 Charles I: ‘There is no contract between them nor hath he any quid pro quo, but he ought to have had an assumpsit.’4 Could two principles have been kept so distinct, if one had been merely a modification of the other permitted by the laxity of the law?

To the later history of contract a mere allusion must suffice. Its chief feature was the temporary though prolonged disappearance of debt in favour of assumpsit in the case of simple contracts. For the purpose of avoiding the defendant’s wager of law, early attempts were made to bring assumpsit where debt was the appropriate remedy. After a struggle between the Court of King’s Bench and the Court of Exchequer Chamber,5 it was finally decided in Slade’s Case6 that an action on the case would lie although debt was available. The only subsequent change that need be mentioned is the final recognition of a single limiting principle throughout the law of contracts by the merger of quid pro quo in valuable consideration.

62.

HISTORY OF THE BENEFICIARY’S ACTION IN ASSUMPSIT1

By Crawford Dawes Hening2

“The true interest of the topic of Procedure is derived from the manner in which the tribunals have contrived from time to time to effect changes in the substance of the law itself, under cover of merely modifying the methods by which it is enforced.”—Holland: “Elements of Jurisprudence,” chap. xv. page 267 (1888).

MODERN English law, in a familiar line of decisions since the year 1724, has pronounced against the right of a third person, not a party to a contract, to maintain an action of assumpsit upon the contract, even though it was made for his benefit.3

Upon examination of these cases, the following questions are presented:

Is there any substantive right by which the beneficiary of a contract can enforce a part from the action of assumpsit?

Is the denial of the beneficiary’s right in the cases of assumpsit due to a judicial denial of the existence of such a substantive right; or is the inability of the beneficiary to recover due in reality to certain technicalities of procedure or principles of substantive law incident and peculiar to the action of assumpsit itself?

If, apart from assumpsit, there is such a substantial right of a beneficiary, what is its basis, its scope, and its limitations, and in what formal procedure or actions is it enforceable? At the present day, “Whatever disadvantages the English law on the question may have, it has at least the merit of definiteness. A beneficiary has no legal rights.”1 That the modern English judicial conscience finds satisfaction in this conclusion may be seen from the exclamation of Crompton, J.: “It would be a monstrous proposition to say that a person was a party to the contract for the purpose of suing upon it for his own advantage, and not a party to it for the purpose of being sued.”2 But why “monstrous,” if conformable to the contractors’ intent?

That the modern English courts in preventing this monstrosity believe they have not sacrificed any cherished English judicial principle appears from the repeated assurances of the modern English judges that the beneficiary cannot recover because he is “a stranger to the consideration,” and because “he is not a party to the contract.”3

Unfortunately, for judicial uniformity, the monstrosity of the proposition that a person may be entitled to sue on a contract without being himself liable to suit thereon, never shocked any judicial conscience in England until 1861.

It can be shown (conclusively, I submit), that outside of assumpsit this so-called “monstrosity” has been the law of England for five hundred years.

The line of approach in investigating the common law on this subject, lies in challenging and demanding proof for the propositions so often asserted, that:

(1) No one can recover on a contract except the person who furnishes the consideration.

(2) No one can recover on a contract except the promisee.

We find both these propositions asserted in the English decisions in the action of assumpsit. That the foregoing two propositions are invariably discussed solely from the stand-point of the action of assumpsit is apparent from any study of the opinions of the leading text-writers.

There is, however, no consensus of opinion among text-writers with respect to the truth of both propositions.1 And there is hardly any unanimity of judicial opinion among common law judges to-day upon any point involved in the subject of the beneficiary.1

That various courts of common-law origin, professedly expounding and administering that law, should reach not only contrary conclusions on this problem, but conclusions involving fundamentally antagonistic conceptions of the doctrine of Contract and of Consideration, provokes the inquiry whether the common law on the subject of the right of action of a stranger to the contract has ever been fully investigated, ascertained and presented.

So far as the question is a legal and not an equitable question, nearly all text-writers of the present day on contracts, attempt to solve the problem of the beneficiary’s right of action by the aid of or in conformity to the doctrine of consideration in special assumpsit, i. e., as a question of the law and procedure in special assumpsit. In reality, the question is one of the general substantive contract law of England and of the States inheriting that law. In point of fact, all the decisions usually cited on the right of action of the beneficiary are decisions in actions of special assumpsit and, hence, these decisions turn on the doctrine of consideration, and are controlled and limited by the judicial interpretations of that doctrine.

The citations of these assumpsit decisions therefore, proves nothing beyond the action of assumpsit; and because by the very nature of such actions they rest on the doctrine of consideration (which invariably requires that no one who has not furnished the consideration, or, at least, that no one who is not the promisee, shall have the right to maintain assumpsit), these decisions are convincing to only those who regard contract and assumpsit as identical concepts.

The real question is, however, a much broader one. Is there any substantive right of action conferred by the common law of England on the beneficiary of a contract independent of assumpsit and therefore independent of the doctrine of consideration, i. e., independent of his having furnished the consideration and of his being the promisee? “An English misunderstanding or perversion of the common law is not necessarily our law.”

The doctrine of consideration was, of course, unheard of in England until the reigns of Henry VII, Henry VIII and Elizabeth, when it came into vogue gradually, in the extension of the action on the case to promises previously unenforceable. “The name ‘consideration’ appears only about the beginning of the sixteenth century, and we do not know by what steps it became a settled term of art.”1 Outside of the action on the case and its derivative special assumpsit, it is familiar law that the doctrine of consideration was never recognized and had never been heard of or applied.

But the right of action of the beneficiary was an established right long before the doctrine of consideration existed. The right of action of the beneficiary was previously recognized and firmly established in the ancient actions of account and of debt, years before the rise of the action of Case on “Promises.” The doctrine that neither Case nor assumpsit would lie except for a consideration, and finally the definition of consideration as consisting in a detriment suffered by the plaintiff who must be the promisee, had obviously no place in the action of debt where “there was no theory of consideration, and therefore, of course, no limit to either the action or the contract based upon the nature of the consideration received.”1 No more was there any conception of “Consideration” (as we now have come to accept the term) in the action of Account.

The relation of consideration in special assumpsit to the rights of third parties will be discussed later. We shall first deal with account and debt, where consideration was of course, unknown, and examine the cases giving the beneficiary a right to sue in those actions.

I.

THE ACTIONS OF ACCOUNT AND OF DEBT, AND THE RIGHT OF ACTION OF THE BENEFICIARY IN EACH

Before discussing the principles governing the beneficiary’s right of action in Account, let us examine the facts in a number of cases where the right was recognized.

In the fourteenth century the writ of account was in common use wherever the plaintiff had constituted the defendant either his customary bailiff or his bailiff pro hac vice, to sell goods, or his receiver to take money from third persons.

This use of the writ of account is at least six hundred years old.2 The plaintiff counted upon the fact that he had bailed merchandise to the defendant to sell, that the defendant had sold the goods and had received divers sums of money at the hands of divers mentioned persons, and a count was useless if it failed to mention definitely by whose hands the defendant received the monies, unless he was the plaintiff’s duly constituted bailiff.1

From this use of the writ of account by the lord or master against the steward or servant2 is to be traced its use by the beneficiary.

The customary bailiff’s receipt of the property and monies were received under a prior authority from the lord to act as bailiff or to receive. Suppose, however, a stranger without previous authority from the lord received his rents from the hands of his tenants, they directing payment to be made to their lord? The common law at length impressed upon this transaction the fiction of the lord and bailiff and held the bailee accountable to the beneficiary. In 1368 (41 Ed. III) in an action of account involving another point, and the issue being whether account or debt would lie, Cavendish1 (then Sergeant) argued: “If I bail certain moneys to you to bail to John, he shall have writ of account because the property is in him immediately when you receive them by my hand, and he cannot have account by writ of debt.”2 This assertion of Cavendish was unchallenged and he speaks of John’s right to an account as familiar law.

But this same year that first of the abridgers of the Common law, Nicholas Statham (or perhaps we should say, Baron Statham)3 queried, “Whether he to whom the bailment ought to have been made shall have action of account.”4

In Michaelmas 1374, Y. B., 47 Ed. III, Fol. 16, pl. 25, such an action was brought and the defendant pleaded that the person at whose hands the alleged receipt was had, was a co-monk with the plaintiff, the Abbot of Wanerle, but was not named as co-monk. This defence was allowed to be made, and this judgment points to the conclusion that the action of account was then clearly maintainable, unless there was a plea filed good in law to bar this action of account, but that otherwise, this declaration was good.5

Flowing from out this marshland the stream almost immediately appears, running clear, distinct, in a fixed course between well defined banks. As the following decision of 1379 is the earliest now accessible to the writer and probably one of the earliest that can be found, the full report of it by Fitzherbert1 is reprinted. In the Common Pleas:

“Account against one J. D. and counts that he received of him ten marks to bargain by the hand of one Rauffe Barnerde to profit and merchandize.

“Clopton. We say that for certain business which the town of B. had to transact with the plaintiff, the people of the town sent to us ten marks by the said R. B. by whose hands, &c., to carry to him who is now plaintiff, whereupon we come to him who is now plaintiff and to carry the money to him as messenger and you see here is the money taken, absque hoc that we were his receiver of this money in another manner. Judgment if we ought to account, &c.

“Hols. And we (ask) judgment, &c., since you have admitted the receipt and we pray for an account and damages for the detention, &c.

“Bel.2 It is positive law that a man shall not have damages in a writ of account, and of the balance he has admitted by his reply that he was only a messenger wherefore he was not accountable by the law in respect of any profit of this in so much as he has made tender of the money and still by the law he cannot have any other action except by writ of account to recover the money because the receipt was not for the purpose of merchandizing but as messenger he received the money; but if the receipt had been to profit and merchandize, the plaintiff would stand as well for the loss as for the gain. Wherefore I put this case that my bailiff of my manor receives my rents of my lands and retains the money in his hands for two or three years, I shall have no other remedy except by writ of account and in this suit I shall have nothing except the money which he received, and he shall account for no profit coming from it during the same time because he has no authority to put out the money in merchandizing either to gain or to lose wherefore will you have the money or not?

“Persey.1 If I am receiver of your monies &c. to merchandize with and I retain them in my hand without putting them to merchandize so that I do not lose or gain anything shall I not be obliged to account for the profits of them?

“Belk. Yes, certainly you can show on the account that you could have put the monies to merchandize and profit for us and if you cannot be excused in respect of it by oath or in some other way, you will be charged with reasonable profit &c. quod.

“Skipwith.2 That is agreed because he received the money to put them to merchandize but not so here because he never had authority to put them out of his hand.

“Belk. If I am debtor to Sir Henry Persey in 20 pounds and I bail the money to J. Holt to pay it to him, if J. Holt does not pay the money to him he shall have action of account against him and no other action, but by this action, he shall have only the same money though he has detained it for ten years. Quod fuit concessum, and then.

“Belk said: take the money, because you shall have no other answer for us and it shall be entered upon the record that you have received them and neither of you shall be amerced, wherefore the defendant comes the first day and the plaintiff shall have good action, and so it was entered, &c.”

In 1405 (6 Hen. IV,) in the Common Pleas, debt was brought to recover 40 s. delivered to the defendant by the lessee of a manor to pay to the plaintiff. It was held that the proper remedy was not debt because “there is no contract between you.” Account would have been proper had there not been a frank tenement. Hence as a writ of annuity was the only remedy the plaintiff took nothing by his writ of Debt.

But Hankford, Justice, putting his decision on the ground that not debt but account would lie, made the positive and unqualified assertion that “if a man deliver certain monies to you to pay to me, I shall have action of account against you and not writ of debt because there is no contract between you.”1

Account is the well recognized remedy of the beneficiary throughout the fifteenth century,2 and continued to be so employed in the sixteenth century.

In 1458, (36 Hen. VI), Wangford’s language (arguendo), shows unmistakably not only that the beneficiary had a right of action in account where there had been a prior appointment of the defendant, but that the old distinction between debt and account to enforce this right was becoming obliterated: “Sir, I grant willingly that this is a good plea; and the reason is because when a man pays to another certain money by my commandment to my ‘oeps’3 if he who receives this money is unwilling to pay me, I shall have a good writ of debt or account against him, and in that way I will have my money.”4

In 1476 (15 Ed. IV), an Abbot brought a writ of account against a man alleging that he had received 100l. of A, predecessor of the same Abbot, from the hands of one D and C, to render an account. The defendant in vain objected, (1) that the plaintiff should have alleged that the goods belonged to the house and not to A, (2) that the receipt was from the hands of a co-monk, and that such a receipt was like a receipt from the hands of the plaintiff’s wife and that the writ in such case, abated.

Brian:5 “That is not so, for the writ is good but in such a case as you speak of, a receipt by the hands of the wife, the defendant shall have his law . . . wherefore answer to this, for the writ is good enough.”6

In 1479 (18 Ed. IV) the existence of an alternative remedy for the beneficiary, by writ of Debt, or by writ of Account, is mooted.7 Counsel, arguendo that Case was alternative with Detinue proposed the following analogy: “As if I deliver 20 pounds to Catesby to deliver to Pigot he can elect to have writ of Account against Catesby or writ of Debt.”

But Brian,1 holding that in the case in judgment, Detinue only would lie, counter-argued, “And as to what is said that he shall have action of Debt or of Account, I say that he shall have action of Account and not action of Debt, upon what thing shall his action of Debt be founded? Not upon a contract, nor upon a sale, nor upon a loan can he declare.”

In 1506 (21 Hen. VII) Frowike, C. J.2 remarked in a dictum: “The stranger has not other remedy except action of account.”3

The motive which impelled the beneficiary to seek redress by the writ of debt rather than by the writ of account, is quite plain. The plaintiff in account was compelled to undergo the delay of two distinct trials, the first before a jury to determine merely his right to an accounting, the judgment for the plaintiff being that the defendant do account, (quod computet), and the second trial being the accounting itself before the court-appointed auditors. In the writ of Debt, on the contrary, the plaintiff, if successful in establishing the defendant to be his debtor, was entitled to judgment and immediate execution, even in the case of default. Moreover, the fixing of any liability upon a receiver at the hearing before the auditors was always contingent upon his not having been robbed, or not having lost the property without his own fault, &c. &c.4 Once establish, however, that the defendant is not merely your receiver but your debtor, and his liability is absolute.

When the attempt was first made there were manifest obstacles to the employment of the writ of Debt by the beneficiary, though admittedly an action of Account would lie where there had been a bailment of money or chattels to the defendant upon the latter’s promise to the bailor to pay the plaintiff a sum certain. There was no privity between plaintiff and the defendant.1 The argument at first seemed unanswerable: “there is no contract between you.” The defendant being a receiver, was accountable, but not being a debtor how could he be liable in the writ of Debt?

The moral pressure of the plaintiff-accountee, seeking to recover by writ of debt, finally forced the courts to treat a receiver as a debtor. The successful argument was that if the plaintiff showed a demand upon the defendant for an account and the latter refused or failed to render an account he had presumably converted to his own benefit, all the property bailed and hence had made himself the plaintiff’s debtor.2

Long prior to 1573 the alternative remedy of the beneficiary by writ of debt was clearly established. Sir Robert Brooke, who sat as Chief Justice of the Common Pleas from 1554 to 1558, states in his “Graunde Abridgment”3 published in 1573, that “where ten pounds is paid to W. N. to my use I shall have action or Debt or of Account against W. N.” Brooke cites a precedent then over a hundred years old—the above mentioned Year Book, 36 H. 6. f. 8, pl. 5. And in the last year of the reign of Elizabeth there is this dictum, if not judgment, of the Queen’s Bench: “adjudged, although no contract is between the parties, yet when money or goods are delivered upon consideration to the use of A, A may have debt for them.”1 As in the action of Account there was no wager of law where the plaintiff counted that the defendant had received the money or goods at the hands of a stranger;2 neither did that mediæval mode of trial embarrass the plaintiff accountee, who, by establishing a demand and default thus converted his accountant or receiver into his debtor.3

In 1587, in the Queen’s Bench, in 30 Eliz., in an action of account, Andrews et ux. and one Cocket declared against Robsert that he, Robsert, on 20 Aug., 10 Eliz., was the receiver of the money of the said Cocket and Ann, the wife of the plaintiff Andrews.

“It was found by special verdict that the 10 Aug., 10 Eliz., one M gave the said 100 pounds for the relief of the said Cocket and Ann and delivered the same to the said Wase, then his servant, to the intent he should deliver it to the said Robsert for the relief of the said Ann and Cocket; and that he, the said Wase, did deliver it to the said Robsert for the relief of the said Ann and Cocket, according to the said intent.”

. . . “It was adjudged he shall be said to be their receiver, and that he shall account with the said then plaintiffs for the said 100 pounds.”1

The end of the reign of Elizabeth which is substantially the date of Slade’s Case,2 will afford for many reasons a convenient stopping place for retrospection. The cases of the Stuart period and in fact of all successive reigns, can be understood only in the light of Slade’s Case.3

The principles underlying the substantive right of the beneficiary to bring an action of debt or an action of account at common law may now be summarized from the preceding and other cases.

First, however, the phraseology of mediæval law must be considered; for the mediæval lawyer had a legal vocabulary of his own, and unless we understand his terms we cannot understand the substantive rights which his law recognized. “The word contract was used in the time of the Year Books in a much narrower sense than that of to-day. It was applied only to those transactions where the duty arose from the receipt of a quid pro quo, e. g., a sale or loan. In other words, contract meant that which we now mean by ‘real contract.’ What we now call the formal or specialty contract was anciently described as a grant, and obligation a covenant, but not as a contract.”1

The rule was clearly this, that a third person could recover in the action of Account against a defendant, notwithstanding there was no “contract” between them. Taking the word “contract” in its true mediæval sense of a debt, as used in the Year Books we immediately perceive that the plaintiff in Account and Debt was not required to have furnished the property or thing bailed.

The rule is equally plain that the plaintiff in Account and Debt was not required to be privy to the “contract” or, as we would now say, “the promisee.”

The right of action of the beneficiary in Account should be considered in further detail. Historically, this remedy of the beneficiary antedates his action of Debt, doubtless because in account there was never required to be a “contract” between the plaintiff and the defendant.

“A receiver is one who receives money belonging to another for the sole purpose of keeping it safely and paying it over to its owner.”2

No one could be your receiver unless he had received money. The receipt of chattels when the obligation was to sell them and convert them into money constituted the defendant not a receiver, but a bailee, who was also liable in Account.3

Certainly after 1379 it was never necessary, in order to constitute a man your receiver and therefore to render him accountable to you, that he should have received the money from you.

“If money be delivered by A to B in order that it may be delivered by B to C, or if it be delivered by A to B to the use of C, it has often been held that B will be accountable to C.”1

It thus became firmly settled that it was not necessary for the receiver to have actually received the money from the plaintiff. If, in the course of his dealing with another person, the defendant became the receiver of money due the plaintiff, though the plaintiff was not privy to the transaction or even aware of it, he could enforce it.

In a case of account by a legatee against executors the objection was made: “How can the daughter who never bails the money to the executors have account?” To which Lord Brooke answered: “I command you to receive my rents and deliver them to Lord Dyer, he shall have account against you: yet he did not bail the money.”2

“If a man deliver money to you to pay to me, I shall have account against you, although he may be but a messenger.3

“A man shall have a writ of account against one as bailiff or receiver where he was not his bailiff or receiver; for if a man receive money for my use, I shall have an account against him as receiver; or if a man do deliver money unto another to deliver over unto me, I shall have an account against him as my receiver.”4

In 1489 (4 Hen. VII) it is said by Brian5per dictum:

“And sir, if I have lands, and a man receives my rents, and without my assent, still he is receiver &c. because the receipt charges him etc.”6

Ownership by the third party beneficiary, of the money or thing bailed was neither essential to, nor was it at all present in, the basis of the right to bring account or debt.

It is perfectly true, as has been said by Professor Ames, that in debt, “the defendant was conceived of as having in his possession something belonging to the plaintiff which he might not rightfully keep, but ought to surrender.”1 But Professor Ames here is describing an early juridicial conception; and he does not mean that in every case the thing sought must be proved to have belonged to the plaintiff. This conception was in reality the explanation of the judicial reasoning by which debt for property loaned by the plaintiff2 expanded in an early age of the common law into debt for money due on a “real contract.”

“In its earliest stage the action is thought of as an action whereby a man ‘recovers’ what belongs to him. It has its root in the money loan; for a very long time it is chiefly used for the recovery of money that has been lent. The case of the unpaid vendor is not—this is soon seen—essentially different from that of the lender: he has parted with property and demands a return.”3 Of course, by 37 Hen. VI (1459) any idea that the plaintiff vendor really owned the money due on a sale of a chattel has disappeared, and the conception has become merely a legal fiction.

In debt, if the quid pro quo was a chattel, the title to or the ownership of it was by the delivery absolutely vested in the debtor.

Where A loaned money to B and then brought debt for its recovery, the legal title to the money bailed was always in B, otherwise the very intention of the loan would be defeated—i. e., if B could not transfer title to the money he could have no benefit from the loan.4 Where A promised B “that if he is willing to carry 20 quarts of wheat of my Master Prisot to G, he shall have 40 shillings,”1 no one in the time of Henry VI or to-day would contend that the title to any specific 40 shillings was ever in B. The situation is not different where A gives B 40 shillings to give to C. B after the conversion is C’s debtor, but C does not have the title to any specific 40 shillings. Of course, A can say to B, give C this bag of coins or these particular crowns, and then no title passes to B, for the title, so far as B is concerned, is always either in A or C, according to the nature of the transaction between them. B is then not a debtor but a bailee, and is liable to C in an action of detinue.

Thus in 1339 detinue was brought for 20 pounds “in a bag sealed up, etc., etc.” The defendant objected to the writ on the ground “that he demands money, which naturally sounds in an action of debt or account.” The plaintiff replied, “We did not count of a loan which sounds in debt, nor of a receipt of money for profit, which would give an action of account, but of money delivered in keeping under seal, etc., which could not be changed.” The defendant was required to answer over.1

But where money in an unsealed bag was delivered, “one penny cannot be known from another in a bag, we are of opinion that detinue does not lie and therefore reverse the judgment.”2

“When the defendant receives money belonging to the plaintiff but receives it under such circumstances that he has a right to appropriate it to his own use, making himself a debtor to the plaintiff to the same amount, and the defendant exercises such right, the receipt of the money will create a debt.”3

Surely therefore there is sufficient warrant for the induction that although title did not exist in the beneficiary to the specific goods or money bailed to the defendant, this fact constituted no objection either to the beneficiary’s right to have an account or to his later right to treat as his debtor the accountant who failed to produce an account of the property bailed by a stranger for the plaintiff’s benefit.

The nature of the action of account imposes this limitation upon the beneficiary that he can have no remedy unless property has been transferred to the accountant by the stranger. Hence, mutual promises between the defendant and a stranger could never make the defendant accountable to the plaintiff.1 Notwithstanding the fact that the conception of a quid pro quo expanded so as to comprise services performed on request as well as property delivered,2 the writer has been unable to discover any case wherein a beneficiary has recovered upon a bilateral contract made between the defendant and a stranger,3 even though that bilateral contract has been afterwards executed by the stranger’s performing some act other than the delivery of property &c. to the defendant.4

Undoubtedly however, the defendant has always been liable in the action of account when the defendant has received property though from a stranger, under a promise to account in respect thereof to the beneficiary. It would be incorrect however to say that this action will lie upon “an executed consideration.” Though a consideration may be executed by the promisee, the promisor does not thereby become accountable to the plaintiff-beneficiary.

A later age, the legal phraseology of which, as applied in assumpsit, has invaded all our conceptions of contractual liability, will speak of an “executed consideration;” but in the actions of Account and of Debt, from the earliest to the latest times, there was no consideration, and hence it tends only to confusion of thought to say that “the consideration” must be “executed” and not “executory.”

Therefore to state the doctrine of accountability to a beneficiary with accuracy, we should say that the defendant could be made accountable to the plaintiff only where property had been bailed or land had been conveyed, or money had been received for the plaintiff’s benefit (i. e. to pay him money or give him an account); and this conveyance or bailment might be at the hands of a stranger.

THE DEBT AND THE ACCOUNTABILITY DISTINGUISHED FROM A TRUST

In the action of debt, the relation of the debtor to both the beneficiary and the quid pro quo is plainly distinguishable from the relation of the modern trustee to the cestui que trust, and to the “trust property.” This distinction is demanded nowadays, because the tests which determine a trust are not those which determine an accountability or a debt.

The practical consequence of confounding debts or accountabilities with trusts is to erroneously limit the right of action of the beneficiary at common law to only those cases which fulfil the requisites of a modern trust.1

The modern trust, with its conception of a double title to the trust property,—i. e., of a distinct “equitable ownership” apart from the legal title,—was a conception which developed in the Court of Chancery many years after the right of the beneficiary in Account and in Debt had been established at law. The cestui que trust in later times recovers, because as to certain specific property he has a title recognized by Chancery. The above conceptions of liability in Account and in Debt are radically distinct from that of the trust. The bailee has ownership of the thing as to which he must render an account. The quid pro quo, if a chattel, becomes, as above stated, the absolute property of the debtor. His receipt of it gives rise to an obligation to pay the beneficiary; but no one ever supposes that the beneficiary’s right to recover is based on any “equitable ownership” of the chattel, or of the sum of money recovered.

It has been said by Professor Ames that “A plaintiff entitled to an acount was strictly a cestui que trust;”1 and further, that “trusts for the payment of money were enforced at common law long beefore Chancery gave effect to trusts of land. It need not surprise us, therefore, to find that upon the delivery of money by A to B to the use of C, or to be delivered to C, C might maintain an action of account against B.”2

This language is an apt analogy or simile, but does not represent, and was doubtless not intended to represent, an exact equation.

Misapprehension will arise if the position of the beneficiary in account is understood as identical with that of the modern cestui que trust in equity.

If A transfers chattels or stock to B, directing B to apply the rent or income of the property to the payment of A’s creditor, X, there arises, by the doctrine of trusts, a double title, one equitable in X, and the other legal in B, and the situation is called in equity a trust.

If A gives chattels to B in such a way that the chattels are the absolute property of B, and in consideration thereof B promises A to pay A’s creditor, X, there is no trust whatever.

While it is true that the action of account is based on the conception that something—viz., an account—belonging to one man, the plaintiff, is in the possession of another man, the defendant, we have above shown that no specific money is supposed to be owned by the plaintiff. His right is only to receive an equivalent sum. In account, the defendant’s “obligation must be capable of being discharged by returning to the plaintiff (not the identical money received, but) any money equal in amount to the sum received.”1 In the former of the two above stated cases, X has by the modern doctrine of trusts an equitable title with respect to the chattels. In the latter case, he has no equitable title, but he has the right to recover in the common law action of account.

The right of action of the beneficiary at common law in account was therefore different from that of a cestui que trust, because the former had a right of action notwithstanding the fact that the title to the property might be vested absolutely and solely in the defendant.

This distinction between a trust and an accountability to, or receivership in favor of, a third party is of much consequence because the second of the two above hypothetical cases (i. e., where no modern trust exists) is a typical formula expressing the right of a third party to recover at common law in account.

The cases cited by Professor Ames have all been examined without disclosing anything inconsistent with this conclusion.

The first reported cases in Chancery where the heir or transferee of the title of cestui que use compels “the feofee to uses” to convey2 are of the reign of Edward IV,3 and are readily explained on the ground of a duty imposed by Chancery on the conscience of the feofee to uses without resorting to any conception of “equitable ownership.”

We find the right of the beneficiary in account recognized as early as 1364-1368,4 where the transaction is described as a bailment and not yet as a transfer of property “al oeps.” The first case the writer has found where the words “al oeps” are used in this connection was in 1458.5

If we look to the then contemporaneous chancery doctrine of uses, we find nothing to indicate that a use in Chancery in the fourteenth and fifteenth centuries was more than a personal right of cestui que use, his heirs, devisee, or assignee, against the feofee to uses.

The authorities collected by Professor Ames establish beyond question that as late as 1450 the heir of the feofee to uses held the land free from liability to the cestui que use.1

A use might be enforced by the heir, etc., “but neither a wife, a husband, nor a judgment creditor was entitled to this privilege.”2 “If the feofee to uses died without heir or committed a forfeiture or married, neither the lord who entered for the escheat or forfeiture nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom the dower was assigned, were liable to perform the trust, because they were not parties to the transaction, but came in by act of law, or in the post, and not in the per, as it was said, though doubtless their title in reason was no better than that of the heir against whom the remedy was extended. It was the same as regards any other person who obtained possession, not claiming by any contract or agreement with the feofee, between whom and the cestui que use, therefore, there was no privity. ‘Where there was no trust, there could be no breach of trust.’ The remedy against a disseisor, therefore, was not in Chancery at the instance of the cestui que trust, but at law at the instance of the feofee; and it was part of his duty to pursue his legal remedies at the desire of the cestui que trust.”3

Uses of personalty were doubtless enforced in Chancery at an early date,4 but in debt and account there is not the slightest ground for believing that the recovery of a beneficiary was based on any ownership, equitable or otherwise, of any specific coins or chattels, or that the defendant in account could ever be restricted from transferring the title to both the money received and the property bailed. It has been previously shown that the same is true of the title to the quid pro quo in debt. The modern characteristic of equitable ownership—the right to compel the trustee to devote the res to the designated purposes—was precisely what courts of law in account never dreamed of attempting. If complete title had not been transferred to the bailee or receiver, the very purpose of the bailment ad merchandisandum would have been frustrated and so of the bailment to sell and render account to the beneficiary. A court of law was obviously without the machinery to enforce such an equitable title had it existed.

It is, of course, true that judges and counsel, in speaking of the plaintiff’s right of recovery in account, refer to his “property” in the money sought to be recovered.1

But this means no more than the similar popular conception that we have seen existed in regard to debt and which survives to-day in the popular expression “money in the bank.”2

It is true that the cases in account speak of the defendant’s having received the money “al oeps” of the plaintiff.3

But in reading cases of debt and account in the fifteenth, sixteenth, and seventeenth centuries we must not mistranslate “oeps”—use, still less should we translate “oeps”—trust. The word “oeps” is derived from the Latin opus, signifying benefit, and not from the word uses,4 a term of definite legal meaning in the civil law.5

Thanks to Professor Maitland’s researches, we have direct evidence that for many years “oeps” was used merely to signify a benefit and without any settled technical signification, either of a later Chancery trust or of a civil law “usus.”

His researches show that in 1238-9 Bracton records that “a woman, mother of H, desires a house belonging to R; H procures from R a grant of the house to H to the use (ad opus) of his mother for her life.”1

As late as the year 1339 occurs a case, not mentioned by Professor Maitland, where the word “oeps” is used unmistakably in the sense of benefit and without any suggestion of a legal and equitable title. In Year Book XII and XIII Edward III, page 231 (1339) occurs the description of a feudal conveyance, and in describing the transaction the language applied to the vendors is: “Il vendront et rendront en la court le seignur al oeps celui qe serra feffe et les baillifs front execution.”

The note of the editor of this translation of the Year Books shows that the words “ad oeps,” which he has translated “to the use,” are in the record “ad opus.”

“We hardly need say that the use of our English law is not derived from the Roman ‘personal servitude;’ the two have no feature in common. Nor can I believe that the Roman fideicommissum has anything to do with the evolution of the English use. In the first place, the English use in its earliest stage is seldom, if ever, the outcome of a last will, while the fideicommissum belongs essentially to the law of testaments. In the second place, if the English use were a fideicommissum it would be called so, and we should not see it gradually emerging out of such phrases as ad opus and ad usum. What we see is a vague idea, which developing in one direction becomes what we now know as agency, and developing in another direction becomes that use which the common law will not, but equity will, protect. Of course, again, our ‘equitable ownership’ when it has reached its full stature has enough in common with the praetorian bonorum possessio to make a comparison between the two instructive; but an attempt to derive the one from the other would be too wild for discussion.”1

The present investigation does not involve such recondite issues as whether or not, and if so, to what extent, Chancery was indebted to the civil law for the doctrine of uses.

The cases taken from the Year Books show that the word “oeps” is frequently used in describing the beneficiary.

The writer submits that there is not the slightest reason to believe that either in the Year Books or in Rolle the word “oeps” or “use,” etc., was used in the technical meaning of a modern trust—i. e., to convey the idea of equitable ownership and a double title. What is here contended is that in the cases of debt and account in the Year Books the word “oeps” or “opus” is used in the then familiar and common everyday meaning of benefit.2 In debt or account it was enough if the chattel or money was received for the benefit of a third person. The beneficiary recovered in debt or in account, not because he was a “fructuarius” under the civil law, nor because he was a “cestui que trust,” that later protégé of Chancery, but because the primary obligation known as a debt or a receivership had been created for the plaintiff’s benefit by the defendant’s receipt of money or property.

As account was not based on contract (i. e. in the nineteenth century use of that word), the liability of the defendant to account to the beneficiary presupposed no prior contractual relation of any kind between them. The phrase “stranger to the consideration,” as applied to the plaintiff in account, would have been meaningless jargon to the lawyers of the fourteenth and fifteenth century. After four centuries the phrase has become no more applicable.

Nor was the plaintiff in account required to be the promisee. Privity to the defendant’s obligation was a pure fiction. “If, however, he obtain possession in the plaintiff’s behalf and as his representative, though without any actual authority, the plaintiff may adopt and ratify his acts, and thus establish privity between him and the plaintiff.”1

Debt and accountability were therefore primary common law liabilities and species of simple contract enforceable by the beneficiary, not because he was a “privy” to the contract, or a “promisee” or a “cestui que trust,” or had furnished that “mystery” of the eighteenth and nineteenth centuries—“the consideration.” We err in attempting to analyze into constituent elements a substantive right which is itself primary and elemental.

The beneficiary recovered in Account because the judicial instinct recognized that he ought to recover, and the courts held that by common law he had a substantive right. This common law right was the expression of a public sense of justice, and a firmer foundation for a positive rule of law need not be sought.

• “Justinian’s Pandects only make precise
• What simply sparkled in men’s eyes before,
• Twitched in their brow or quivered on their lip,
• Waited the speech they called but would not come.”

63.

THE HISTORY OF AGENCY1

By Oliver Wendell Holmes, Jr.2

I PROPOSE in these lectures to study the theory of agency at common law, to the end that it may be understood upon evidence, and not merely by conjecture, and that the value of its principles may be weighed intelligently. I first shall endeavor to show why agency is a proper title in the law. I then shall give some general reasons for believing that the series of anomalies or departures from general rule which are seen wherever agency makes its appearance must be explained by some cause not manifest to common sense alone; that this cause is, in fact, the survival from ancient times of doctrines which in their earlier form embodied certain rights and liabilities of heads of families based on substantive grounds which have disappeared long since, and that in modern days these doctrines have been generalized into a fiction, which, although nothing in the world but a form of words, has reacted upon the law and has tended to carry its anomalies still farther. That fiction is, of course, that, within the scope of the agency, principle and agent are one. I next shall examine the early law of England upon every branch of the subject,—tort, contract, possession, ratification,—and show the working of survival or fiction in each. If I do not succeed in reducing the law of all these branches to a common term, I shall try to show that at least they all equally depend upon fiction for their present existence. I shall prove incidentally that agency in its narrower sense presents only a special application of the law of master and servant, and that the peculiar doctrines of both are traceable to a common source. Finally I shall give my reasons for thinking that the whole outline of the law is the resultant of a conflict at every point between logic and good sense—the one striving to work fiction out to consistent results, the other restraining and at last overcoming that effort when the results become too manifestly unjust.

A part of my task has been performed and my general view indicated in my book on the Common Law. It remains to discuss the matter systematically and in detail, giving due weight to the many difficulties or objections which are met with in the process.

My subject extends to the whole relation of master and servant—it is not confined to any one branch; so that when I choose the title “Agency,” I do not use it in the strict sense just referred to, but as embracing everything of which I intend to treat.

The first question proposed is why agency is a proper title in the law. That is to say, Does agency bring into operation any new and distinct rules of law? do the facts which constitute agency have attached to them legal effects which are peculiar to it, or is the agency only a dramatic situation to which principles of larger scope are applied? And if agency has rules of its own incapable of being further generalized, what are they?

If the law went no farther than to declare a man liable for the consequences of acts specifically commanded by him with knowledge of circumstances under which those consequences were the natural results of those acts, it would need no explanation and introduce no new principle. There may have been some difficulty in arriving at this conclusion when the intervening agent was a free person and himself responsible. Speaking without special investigation, I do not remember any case in early law in which one could charge himself thus in contract or even in tort. Taking the allied case of joint trespassers, although it long has been settled that each wrong-doer is liable for the entire damages, the objection that “the battery of one cannot be the battery of the other” prevailed as late as James I.1 It is very possible that liability even for the commanded acts of a free person first appeared as an extension of the liability of an owner for similar acts by his slave.

But however this may be, it is plain good sense to hold people answerable for wrongs which they have intentionally brought to pass, and to recognize that it is just as possible to bring wrongs to pass through free human agents as through slaves, animals, or natural forces. This is the true scope and meaning of “Qui facit per alium facit per se,” and the English law has recognized that maxim as far back as it is worth while to follow it.2 So it is only applying the general theory of tort to hold a man liable if he commands an act of which the natural consequence, under the circumstances known to him, is harm to his neighbor, although he has forbidden the harm. If a trespass results, it is as much the trespass of the principal as if it were the natural, though unwished for, effect of a train of physical causes.3 In such rases there is nothing peculiar to master and servant; similar principles have been applied where independent contractors were employed.4

No additional explanation is needed for the case of a contract specifically commanded. A difficulty has been raised concerning cases where the agent has a discretion as to the terms of the contract, and it has been called “absurd to maintain that a contract which in its exact shape emanates exclusively from a particular person is not the contract of such person [i. e., the agent], but is the contract of another.”5 But I venture to think that the absurdity is the other way, and that there is no need of any more complex machinery in such a case than where the agent is a mere messenger to express terms settled by his principal in every detail. Suppose that the principal agrees to buy a horse at a price to be fixed by another. The principal makes the contract, not the referee who settles the price. If the agreement is communicated by messenger, it makes no difference. If the messenger is himself the referee, the case is still the same. But that is the case of an agent with discretionary powers, no matter how large they may be. So far as he expresses his principal’s assent to be bound to terms to be fixed by the agent, he is a mere messenger; in fixing the terms he is a stranger to the contract, which stands on the same footing as if it had been made before his personal function began. The agent is simply a voice affording the marks provided by the principal’s own expression of what he undertakes. Suppose a wager determined in amount as well as event by the spinning of a teetotum, and to be off if numbers are turned up outside certain limits; is it the contract of the teetotum?

If agency is a proper title of our corpus juris, its peculiarities must be sought in doctrines that go farther than any yet mentioned. Such doctrines are to be found in each of the great departments of the law. In tort, masters are held answerable for conduct on the part of their servants, which they not only have not authorized, but have forbidden. In contract, an undisclosed principal may bind or may be bound to another, who did not know of his very existence at the time he made the contract. By a few words of ratification a man may make a trespass or a contract his own in which he had no part in fact. The possession of a tangible object may be attributed to him although he never saw it, and may be denied to another who has it under his actual custody or control. The existence of these rules is what makes agency a proper title in the law.

I do not mean to assume in advance that these rules have a common origin because they are clustered round the same subject. It would be possible to suggest separate reasons for each, and going farther still, to argue that each was no more than an application, even though a misapplication, of general principles.

Thus, in torts it is sometimes said that the liability of the master is “in effect for employing a careless servant,” repeating the reason offered by the pseudo-philosophy of the Roman jurists for an exceptional rule introduced by the prætor on grounds of public policy.1 This reason is shown to be unsound by the single fact that no amount of care in selection will exonerate the master;2 but still it might be argued that, whether right or wrong, this or some other notion of policy had led to the first of the rules which I selected as peculiar, and that at most the liability of a master for his servant’s torts is only a mistaken conclusion from the general theory of tort.

Then with regard to undisclosed principals in contract, it might be said that it was no hardship to hold a man bound who had commanded his servant to bind him. And as to the other and more difficult half of the doctrine, the right of an undisclosed principal to sue, it might be observed that it was first asserted in cases of debt,3 where the principal’s goods were the consideration of the liability, and that the notion thus started was afterwards extended to other cases of simple contract. Whether the objections to the analogy and to the whole rule were duly considered or not, it might be urged, there is no connection other than a purely dramatic one between the law of agency in torts and in contracts, or between the fact of agency and the rule, and here, as there, nothing more is to be found than a possibly wrong conclusion from the general postulates of the department of law concerned.

Ratification, again, as admitted by us, the argument would continue, merely shows that the Roman maxim “ratihabitio mandato comparatur” has become imbedded in our law, as it has been from the time of Bracton.

Finally, the theory of possession through servants would be accounted for by the servant’s admission of his master’s present right to deal with the thing at will, and the absence of any claim or intent to assert a claim on his part, coupled with the presence of such a claim on the part of the master.

But the foregoing reasoning is wholly inadequate to justify the various doctrines mentioned, as I have shown in part and as I shall prove in detail hereafter. And assuming the inadequacy to be proved, it cannot but strike one as strange that there should run through all branches of the law a tendency to err in the same direction. If, as soon as the relation of master and servant comes in, we find the limits of liability for, or gain by, others’ acts enlarged beyond the scope of the reasons offered or of any general theory, we not only have good ground for treating that relation separately, but we fairly may suspect that it is a cause as well as a concomitant of the observed effects.

Looking at the whole matter analytically it is easy to see that if the law did identify agents with principals, so far as that identification was carried the principal would have the burden and the benefit of his agent’s torts, contracts, or possession. So, framing a historical hypothesis, if the starting-point of the modern law is the patria potestas, a little study will show that the fiction of identity is the natural growth from such a germ.

There is an antecedent probability that the patria potestas has exerted an influence at least upon existing rules. I have endeavored to prove elsewhere that the unlimited liability of an owner for the torts of his slave grew out of what had been merely a privilege of buying him off from a surrender to the vengeance of the offended party, in both the early Roman and the early German law. I have shown, also, how the unlimited liability thus established was extended by the prætor in certain cases to the misconduct of free servants.1 Of course it is unlikely that the doctrines of our two parent systems should have been without effect upon their offspring, the common law.

The Roman law, it is true, developed no such universal doctrines of agency as have been worked out in England. Only innkeepers and shipowners (nautae, caupones, stabularii) were made answerable for the misconduct of their free servants by the prætor’s edict. It was not generally possible to acquire rights or to incur obligations through the acts of free persons.1 But, so far as rights of property, possession,2 or contract3 could be acquired through others not slaves, the law undoubtedly started from slavery and the patria potestas.

It will be easy to see how this tended toward a fictitious identification of agent with principal, although within the limits to which it confined agency the Roman law had little need and made little use of the fiction. Ulpian says that the act of the family cannot be called the act of the paterfamilias unless it is done by his wish.4 But as all the family rights and obligations were simply attributes of the persona of the family head, the summary expression for the members of the family as means of loss or gain would be that they sustained that persona, pro hac vice. For that purpose they were one with the paterfamilias. Justinian’s Institutes tell us that the right of a slave to receive a binding promise is derived ex persona domini.5 And with regard to free agents, the commentators said that in such instances two persons were feigned to be one.6

Such a formula, of course, is only derivative. The fiction is merely a convenient way of expressing rules which were arrived at on other grounds. The Roman prætor did not make innkeepers answerable for their servants because “the act of the servant was the act of the master,” any more than because they had been negligent in choosing them. He did so on substantive grounds of policy—because of the special confidence necessarily reposed in innkeepers. So when it was held that a slave’s possession was his owner’s possession, the practical fact of the master’s power was at the bottom of the decision.7

But when such a formula is adopted, it soon acquires an independent standing of its own. Instead of remaining only a short way of saying that when from policy the law makes a master responsible for his servant, or because of his power gives him the benefit of his slave’s possession or contract, it treats him to that extent as the tort-feasor, possessor, or contractee, the formula becomes a reason in itself for making the master answerable and for giving him rights. If “the act of the servant is the act of the master,” or master and servant are “considered as one person,” then the master must pay for the act if it is wrongful, and has the advantage of it if it is right. And the mere habit of using these phrases, where the master is bound or benefited by his servant’s act, makes it likely that other cases will be brought within the penumbra of the same thought on no more substantial ground than the way of thinking which the words have brought about.

I shall examine successively the English authorities with regard to agency in tort, contract, ratification, and possession. But some of those authorities are of equal importance to every branch of the proposed examination, and will prove in advance that the foregoing remarks are not merely hypothetical. I therefore begin with citations sufficient to establish that family headship was recognized as a factor in legal rights and duties; that this notion of headship was extended by analogy so as to cover the relation of a master to freemen filling a servile place for the time being, and that the relations thus embraced were generalized under the misleading fiction of identity.

The familia, Bracton says, embraces “those who are regarded in the light of serfs, such as, &c. So, too, as well freemen as serfs, and those over whom one has the power of command.”1

In West’s Symboleography,2 a work which was published towards the beginning of the reign of James I., and which, though mainly a form book, gives several glimpses of far-reaching insight, we read as follows:—

Here we see that the patria potestas is the substantive ground, that it is extended to cover free agents, who are not even domestic servants, and that it finds its normal expression in the fiction of identity.

So, at the beginning of the next reign, it was said that an action for hire, due to the negligence of a wife, or servant, lay “vers patrem familias.”1 The extension of the liability, as shown by West, is sometimes expressed in later books by saying that it is not confined to cases where the party stands in the relation of paterfamilias to the wrong-doer;2 but this only means that the rule extends to other servants besides domestic servants, and admits the analogy or starting-point.3

Every one is familiar with the fiction as applied to married women. The early law dealt with married women on the footing of servants. It called both wives and servants chattels.4 The wife was said to be in the nature of a servant,5 and husband and wife were only one person in law.6 So far was this identification carried, so far was the persona of the wife swallowed up in and made part of her husband’s, that whereas, in general, assigns could not vouch upon a warranty unless they were expressly mentioned in it,7 a husband could always vouch upon a warranty made to his wife before marriage. By marriage, as was said in Simon Simeon’s case “it vested in the person of the husband.” That is to say, although what actually happened was that the right to enforce a contract was transferred to a stranger, in theory of law there was no transfer, because the stranger had become the same person as the contractee.1

Of course the identification between husband and wife, although by no means absolute, was far more complete than that between master and menial servant, just as in the latter case it went farther than in that of an agent employed for some particular transaction. Even in the case of villeins, while the lord might take advantage of their possession or their title, he could not take advantage of contracts or warranties made to them.2 But the idea and its historical starting-point were the same throughout. When considering the later cases, the reader will remember that it is incontrovertibly established that a wife was on the footing of a servant, that the consequences of the relation were familiarly expressed in terms of the fiction of identity, and, therefore, that the applicability of this fiction to the domestic relations generally must have been well known to the courts long before the date of the principal decisions, which it will be my task to interpret.

I now take up the liability of a master for the torts of his servant at common law. This has been supposed in England to have been manufactured out of the whole cloth, and introduced by the decision in Michael v. Alestree3 in the reign of Charles II. In view of the historical antecedents it would be very extraordinary if such a notion was correct. I venture to think that it is mistaken, and that the principle has gradually grown to its present form from beginnings of the earliest date. I also doubt whether Michael v. Alestree is an example for the principle in question. It rather seems to me a case in which the damage complained of was the natural consequence of the very acts commanded by the master, and which, therefore, as I have said above, needs no special or peculiar doctrine to account for it. It was an action on the case against master and servant;

In other words, although there was no negligence averred in the mode of driving the horses at the instant of the accident, but, e contra, that the horses were ungovernable, which was the scope of the defendant’s objection, there was negligence in driving ungovernable horses for the purpose of breaking them in a public place, and that was averred, and was averred to have been done negligently. Furthermore, it was averred to have been done negligently by the defendant, which was a sufficient allegation on its face, and would be supported by proof that the defendant, knowing the character of the horses, ordered his servant to break them in a public resort. Indeed, the very character of the command (to break horses) imports sufficient knowledge; and when a command is given to do the specified act complained of, it always may be laid as the act of the party giving the order.2

When I come to investigate the true history of this part of the law, notwithstanding the likelihood which I have pointed out that it was a continuation and development of what I have traced in one or both of the parent systems, I must admit that I am met with a difficulty. Even in Bracton, who writes under the full influence of the Roman law, I have failed to find any passage which distinctly asserts the civil liability of masters for their servants’ torts, apart from command or ratification. There is one text, to be sure, which seems corrupt as it stands and which could be amended by conjecture so as to assert it. But as the best manuscripts in Lincoln’s Inn substantially confirm the printed reading, conjecture would be out of place.1

On the other hand, I do find an institution which may or may not have been connected with the Anglo-Saxon laws touching the responsibility of masters, but which, at any rate, equally connects liability of a different sort with family headship.

At about the time of the Conquest, what was known as the Frithborh, or frankpledge, was either introduced or grew greatly in importance. Among other things, the master was made the pledge of his servants, to hand them over to justice or to pay the fine himself. “Omnes qui servientes habent, eorum sint francplegii,” was the requirement of William’s laws. Bracton quotes the similar provisions of Edward the Confessor, and also says that in some counties a man is held to answer for the members of his family.2 This quasi-criminal liability of master for man is found as late as Edward II. alongside of the other rules of frankpledge, with which this discussion is not concerned. Fitzherbert’s Abridgment3 reads as follows: “Note that if the servant (serviens) of any lord while in his service (in servicio suo existens) commits a felony and is convicted, although after the felony (the master) has not received him, he is to be amerced, and the reason is because he received him ‘in bourgh.’ ” Bracton, in like manner, says that the master is bound “emendare” for certain torts of his servant,4 meaning, as I take it, to pay a fine, not damages.

But true examples of the peculiar law of master and servant are to be found before Edward II. The maxim respondeat superior has been applied to the torts of inferior officers from the time of Edward I. to the present day. Thus that chapter of the Statute of Westminster the Second,1 which regulates distresses by sheriffs or bailiffs, makes the officer disregarding its provisions answerable, and then continues, “si non habeat ballivus unde reddat reddat superior suus.” So a later chapter of the same statute, after subjecting keepers of jails to an action of debt for escapes in certain cases, provides that if the keeper is not able to pay, his superior, who committed the custody of the jail to him, shall be answerable by the same writ.2 So, again, the eighteenth chapter of the Articuli super Chartas3 gives a writ of waste to wards, for waste done in their lands in the king’s hands by escheators or sub-escheators, “against the escheator for his act, or the sub-escheator for his act (if he have whereof to answer), and if he have not, his master shall answer (‘si respoigne son sovereign’) by like pain concerning the damages, as is ordained by the statute for them that do waste in wardships.” A case of the time of Edward II. interpreting the above statute concerning jailers is given in Fitzherbert’s Abridgment,4 and later similar cases are referred to in Coke’s Fourth Institute.5

It may be objected that the foregoing cases are all statutory. But the same principle seems to have been applied, apart from any statute except that which gave counties the power to elect coroners, to make the county of Kent answerable to the king for a coroner’s default, as well as in other instances which will be mentioned later.6 Moreover, early statutes are as good evidence of prevailing legal conceptions as decisions are.

But again it may be objected that there were special grounds of public policy for requiring those who disposed of public offices of profit to appoint persons “for whom they will answer at their peril,” in the words of another similar statute as to clerks in the King’s Courts.1 It might be said with truth that the responsibility was greater than in the case of private servants, and it might be asked whether respondeat superior in its strict sense is not an independent principle which is rather to be deemed one of the causes of the modern law, than a branch from a common stem. It certainly has furnished us with one of the inadequate reasons which have been put forward for the law as it is,—that somebody must be held who is able to pay the damages.

The weight of the evidence seems to me to overcome these objections. I think it most probable that the liability for under-officers was a special application of conceptions drawn from the family and the power of the family head over his servants. Those conceptions were in existence, as I have shown. From a very early date, under-officers are called servants of their superior, as indeed it seems to be implied that they are, by the word “sovereign,” or even “superior,” in the statutes which have been cited. “Sovereign” is used as synonymous with master in Dyer.2 In the Y. B., 11 Edward IV. 1, pl. 1, it is said, “If I make a deputy, I am always officer, and he performs the office in my right and as my servant;” and from that day to this, not only has the same language been repeated,3 but, as I shall show, one of the chosen fields for the express use of the fiction of identity is the relation of superior and under-officer.

Under Edward III. it was held that if an abbot has a wardship, and a co-canon commits waste, the abbot shall be charged by it, “for that is adjudged the deed of the abbot.”1 This expression appears to me not only to apply the rule respondeat superior beyond the case of public officers, but to adopt the fiction of identity as a mode of explaining the rule.

An earlier record of the same reign, although it turned on the laws of Oleron, shows that the King’s Court would in some cases hold masters more strictly accountable for their servants’ torts than is even now the case. A shipmaster was held liable in trespass de bonis asportatis for goods wrongfully taken by the mariners, and it was said that he was answerable for all trespasses on board his ship.2

A nearly contemporaneous statute is worth mentioning, although it perhaps is to be construed as referring to the fines which have been mentioned above, or to other forfeitures, and not to civil damages. It reads, “That no merchant nor other, of what condition that he be, shall lose or forfeit his goods nor merchandizes for the trespass and forfeiture of his servant, unless he do it by the commandment or procurement of his master, or that he hath offended in the office in which his master hath set him, or in other manner, that the master be holden to answer for the deed of his servant by the law-merchant, as elsewhere is used.”3 The statute limits a previously existing liability, but leaves it open that the master still shall be holden to answer for the deed of his servant in certain cases, including those of the servant’s offending in the office in which the master hath set him. It is dealing with merchants, to be sure, but is another evidence that the whole modern law is of ancient extraction.

It must be remembered, however, that the cases in which the modern doctrines could have been applied in the time of the Year Books were exceedingly few. The torts dealt with by the early law were almost invariably wilful. They were either prompted by actual malevolence, or at least were committed with full foresight of the ensuing damage.1 And as the judges from an early day were familiar with the distinction between acts done by a man on his own behalf and those done in the capacity of servant,2 it is obvious that they could not have held masters generally answerable for such torts unless they were prepared to go much beyond the point at which their successors have stopped.3 Apart from frauds4 and intentional trespasses against the master’s will5 I only know of one other case in the Year Books which is important to this part of my subject. That, however, is very important. It is the case concerning fire,6 which was the precedent relied on by Lord Holt in deciding Turberville v. Stampe,7 which in its turn has been the starting-point of the later decisions on master and servant.8 I therefore shall state it at length.

The foregoing case affords some ground for the argument which was vainly pressed in Turberville v. Stampe, that the liability was confined to the house.2 Such a limit is not unsupported by analogy. By the old law a servant’s custody of his master’s things was said to be the master’s possession within his house, but the servant’s on a journey outside of it.3 So an innkeeper was liable for all goods within the inn, whether he had the custody of them or not.4 So in the case which has been mentioned above, a master was said to be responsible for the acts of his servants on board ship. It will be noticed also that the responsibility of a householder seems to be extended to his guests. From that day to this there have been occasional glimpses of a tendency to regard guests as part of the familia for the purposes of the law.5 And in view of the fact that by earlier law if a guest was allowed to stop in the house three days, he was called hoghenehine or agenhine, that is, own hine or servant of the host, it may be thought that we have here an echo of the frithborh.1 But with whatever limits and for whatever occult causes, the responsibility of the head of the house for his servants was clearly recognized, and, it would seem, the identification of the two, notwithstanding a statement by counsel, as clear as ever has been made since, of the objections to the doctrine.

The later cases in the Year Books are of wilful wrongs, as I have said, and I now pass to the subsequent reports. Under Elizabeth a defendant justified taking sheep for toll under a usage to have toll of strangers’ sheep driven through the vill by strangers, and if he were denied by such stranger driving them, to distrain them. The defendant alleged that the plaintiff, the owner of the sheep, was a stranger, but did not allege that the driver was. But the court sustained the plea, saying, “The driving of the servant is the driving of the master; and if he be a foreigner, that sufficeth.”2

I leave on one side certain cases which often have been cited for the proposition that a master is chargeable for his servant’s torts, because they may be explained otherwise and make no mention of it.3

The next evidence of the law to which I refer is the passage from West’s Symboleography which was given in full at the outset, and which gives the modern doctrine of agency as well as the fiction of identity in their full development. There are two nearly contemporaneous cases in which unsuccessful attempts were made to hold masters liable for wilful wrongs of their servants, in one for a piracy,1 in the other for a fraud.2 They are interesting chiefly as showing that the doctrine under discussion was in the air, but that its limits were not definitely fixed. The former sought to carry the rule respondeat superior to the full extent of the early statutes and cases which have been referred to, and cited the Roman law for its application to public affairs. The latter cites Doctor and Student. West also, it will have been noticed, indicates Roman influence.

Omitting one or two cases on the liability of the servant, which will be mentioned shortly, I come once more to a line of authorities touching public officers. I have said that although there was a difference in the degree of responsibility, under-officers always have been said to be servants.

Under Charles II. this difference was recognized, but it was laid down that “the high sheriff and under-sheriff is one officer,” and on that ground the sheriff was held chargeable.3 Lord Holt expressed the same thought: “What is done by the deputy is done by the principal, and it is the act of the principal,” or, as it is put in the margin of the report, “Act of deputy may forfeit office of principal, because it is quasi his act.”4 Later still, Blackstone repeats from the bench the language of Charles’s day. “There is a difference between master and servant, but a sheriff and all his officers are considered in cases like this as one person.” So his associate judge, Gould, “I consider [the under-sheriff’s clerk] as standing in the place of, and representing the very persons of . . . the sheriffs themselves.”1 Again, the same idea is stated by Lord Mansfield: “For all civil purposes the act of the sheriff’s bailiff is the act of the sheriff.”2 The distinction taken above by Blackstone did not prevent his saying in his Commentaries that underofficers are servants of the sheriff;3 and in Woodgate v. Knatchbull,4 Ashurst, J., after citing the words of Lord Mansfield, adds, “This holds, indeed, in most instances with regard to servants in general;” and Blackstone says the same thing in a passage to be quoted hereafter.

Having thus followed down the fiction of identity with regard to one class of servants, I must now return once more to Lord Holt’s time. In Boson v. Sandford,5 Eyres, J., says that the master of a ship is no more than a servant, “the power which he hath is by the civil law, Hob. 111, and it is plain the act or default of the servant shall charge the owner.” Again, in Turberville v. Stampe,6 Lord Holt, after beginning according to the Roman law that “if my servant throws dirt into the highway I am indictable,” continues, “So in this case, if the defendant’s servant kindled the fire in the way of husbandry and proper for his employment, though he had no express command of his master, yet the master shall be liable to an action for damages done to another by the fire; for it shall be intended, that the servant had authority from his master, it being for his master’s benefit.” This is the first of a series of cases decided by Lord Holt7 which are the usual starting-point of modern decisions, and it will be found to be the chief authority relied on by cases which have become leading in their turn.8 It therefore is interesting to note that it only applied the principles of Beaulieu v. Finglam, in the Year Book 2 Henry IV., to a fire outside the house, that the illustration taken from the Roman law shows that Lord Holt was thinking of the responsibility of a paterfamilias, and that in another case within three years1 he made use of the fiction of identity.

I may add, by way of confirmation, that Blackstone, in his Commentaries, after comparing the liability of the master who “hath the superintendence and charge of all his household” if any of his family cast anything out of his house into the street, with that of the Roman paterfamilias,2 further observes that the “master may frequently be answerable for his servant’s misbehavior, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself.”3

There is another line of cases which affords striking and independent evidence that the law of master and servant is a survival from slavery or other institution of like effect for the present purpose, and that the identification of the two parties was carried out in some cases to its logical result. If a servant, although a freeman, was treated for the purposes of the relation as if he were a slave who only sustained the persona of his master, it followed that when the master was liable, the servant was not. There seems to have been a willingness at one time to accept the conclusion. It was said under James and Charles I. that the sheriff only was liable if an under-sheriff made a false return, “for the law doth not take notice of him.”4 So it was held in the latter reign that case does not lie against husband and wife for negligently keeping their fire in their house, “because this action lies on the . . . custom . . . against patrem familias and not against a servant or a feme covert who is in the nature of a servant.1 So Rolle says that “if the servant of an innkeeper sells wine which is corrupt, knowing this, action of deceit lies not against the servant, for he did this only as servant.”2 So as to an attorney maliciously acting in a case where he knew there was no cause of action. “For that what he does is only as servant to another, and in the way of his calling and profession.”3

Later this was cut down by Lord Holt to this rule that a servant is not liable for a neglect (i. e., a nonfeasance), “for they must consider him only as a servant;” “but for a misfeasance an action will lie against a servant or deputy, but not quatenus a deputy or servant, but as a wrong-doer.”4 That is to say, although it is contrary to theory to allow a servant to be sued for conduct in his capacity as such, he cannot rid himself of his responsibility as a freeman, and may be sued as a free wrong-doer. This, of course, is the law to-day.5 Yet as late as Blackstone’s Commentaries it was said that “if a smith’s servant lames a horse while he is shoeing him, an action lies against the master, and not against the servant.6

I think I now have traced sufficiently the history of agency in torts. The evidence satisfies me that the common law has started from the patria potestas and the frithborh,—whether following or simply helped by the Roman law, it does not matter,—and that it has worked itself out to its limits through the formula of identity. It is true that liability for another as master or principal is not confined to family relations; but I have shown partly, and shall complete the proof later, that the whole doctrine has been worked out in terms of master and servant and on the analogies which those terms suggested.

The history of agency as applied to contract is next to be dealt with. In this branch of the law there is less of anomaly and a smaller field in which to look for traces of fiction than the last. A man is not bound by his servant’s contracts unless they are made on his behalf and by his authority, and that he should be bound then is plain common-sense. It is true that in determining how far authority extends, the question is of ostensible authority and not of secret order. But this merely illustrates the general rule which governs a man’s responsibility for his acts throughout the law. If, under the circumstances known to him, the obvious consequence of the principal’s own conduct in employing the agent is that the public understand him to have given the agent certain powers, he gives the agent those powers. And he gives them just as truly when he forbids their exercise as when he commands it. It seems always to have been recognized that an agent’s ostensible powers were his real powers;1 and on the other hand it always has been the law that an agent could not bind his principal beyond the powers actually given in the sense above explained.

There is, however, one anomaly introduced by agency even into the sphere of contract,—the rule that an undisclosed principal may sue or be sued on a contract made by an agent on his behalf; and this must be examined, although the evidence is painfully meagre. The rule would seem to follow very easily from the identification of agent and principal, as I shall show more fully in a moment. It is therefore well to observe at the outset that the power of contracting through others, natural as it seems, started from the family relations, and that it has been expressed in the familiar language of identification.

Generally speaking, by the Roman law contractual rights could not be acquired through free persons who were strangers to the family. But a slave derived a standing to accept a promise to his master ex persona domini.1 Bracton says that contracts can be accepted for a principal by his agent; but he starts from the domestic relations in language very like that of the Roman juris consults. An obligation may be acquired through slaves or free agents in our power, if they take the contract in the name of their master.2

It was said under Henry V. that a lease made by the seneschal of a prior should be averred as the lease of the prior,3 and under James I. it was held that an assumpsit to a servant for his master was properly laid as an assumpsit to the master.4 West’s Symboleography belongs to the beginning of the same reign. It will be remembered that the language which has been quoted from that work applies to contracts as well as to torts. A discussion in the Year Book, 8 Edward IV., fol. 11, is thus abridged in Popham: “My servant makes a contract, or buys goods to my use; I am liable, and it is my act.”5 Baron Parke explains the requirement that a deed executed by an agent should be executed in the name of his principal, in language repeated from Lord Coke: “The attorney is . . . put in place of the principal and represents his person.”6 Finally, Chitty, still speaking of contracts, says, like West, that “In point of law the master and servant, or principal and agent, are considered as one and the same person.”7

I have found no early cases turning upon the law of undisclosed principal. It will be remembered that the only action on simple contract before Henry VI., and the chief one for a good while after, was debt, and that this was founded on a quid pro quo received by the debtor. Naturally, therefore, the chief question of which we hear in the earlier books is whether the goods came to the use of the alleged debtor.1 It is at a much later date, though still in the action of debt, that we find the most extraordinary half of the rule under consideration first expressly recognized. In Scrimshire v. Alderton2 (H. 16 G. II.) a suit was brought by an undisclosed principal against a purchaser from a del credere factor. Chief Justice Lee “was of opinion that this new method [i. e., of the factor taking the risk of the debt for a larger commission] had not deprived the farmer of his remedy against the buyer.” And he was only prevented from carrying out his opinion by the obstinacy of the jury at Guildhall. The language quoted implies that the rule was then well known, and this, coupled with the indications to be found elsewhere, will perhaps warrant the belief that it was known to Lord Holt.

Scott v. Surman,3 decided at the same term that Scrimshire v. Alderton was tried, refers to a case of T. 9 Anne, Gurratt v. Cullum,4 in which goods were sold by factors to J. S. without disclosing their principal. The factors afterwards went into bankruptcy. Their assignee collected the debt, and the principal then sued him for the money. “And this matter being referred by Holt for the opinion of the King’s Bench, judgment was given on argument for the plaintiff. Afterwards at Guildhall, before Lord Chief Justice Parker, this case was cited and allowed to be law, because though it was agreed that payment by J. S. to [the factors] with whom the contract was made would be a discharge to J. S. against the principal, yet the debt was not in law due to them, but to the person whose goods they were . . . and being paid to the defendant who had no right to have it, it must be considered in law as paid for the use of him to whom it was due.” This explanation seems to show that Chief Justice Parker understood the law in the same way as Chief Justice Lee, and, if it be the true one, would show that Lord Holt did also. I think the inference is somewhat strengthened by other cases from the Salkeld MSS. cited in Buller’s Nisi Prius.1 Indeed I very readily should believe that at a much earlier date, if one man’s goods had come to another man’s hands by purchase, the purchaser might have been charged, although he was unknown and had dealt through a servant,2 and that perhaps he might have been, in the converse case of the goods belonging to an undisclosed master.3

The foregoing cases tend to show, what is quite probable, that the doctrine under discussion began with debt. I do not wish to undervalue the argument that may be drawn from this fact, that the law of undisclosed principal has no profounder origin than the thought that the defendant, having acquired the plaintiff’s goods by way of purchase, fairly might be held to pay for them in an action of contract, and that the rule then laid down has been extended since to other contracts.4

But suppose what I have suggested be true, it does not dispose of the difficulties. If a man buys B.’s goods of A., thinking A. to be the owner, and B. then sues him for the price, the defendant fairly may object that the only contract which he has either consented or purported to make is a contract with A., and that a stranger, to both the intent and the form of a voluntary obligation cannot sue upon it. If the contract was made with the owner’s consent, let the contractee bring his action. If it was made without actual or ostensible authority, the owner’s rights can be asserted in an action of tort. The general rule in case of a tortious sale is that the owner cannot waive the tort and sue in assumpsit.1 Why should the fact that the seller was secretly acting in the owner’s behalf enlarge the owner’s rights as against a third person? The extraordinary character of the doctrine is still clearer when it is held that under a contract purporting to be made with the plaintiff and another jointly, the plaintiff may show that the two ostensible joint parties were agents for himself alone, and thus set up a several right in the teeth of words used and of the ostensible transaction, which gave him only a joint one.2

Now, if we apply the formula of identification and say that the agent represents the person of the owner, or that the principal adopts the agent’s name for the purposes of that contract, we have at once a formal justification of the result. I have shown that the power of contracting through agents started from the family, and that principal and agent were identified in contract as well as in tort. I think, therefore, that the suggested explanation has every probability in its favor. So far as Lord Holt is concerned, I may add that in Gurratt v. Cullum the agent was a factor, that a factor in those days always was spoken of as a servant, and that Lord Holt was familiar with the identification of servant and master. If he was the father of the present doctrine, it is fair to infer that the technical difficulty was consciously or unconsciously removed from his mind by the technical fiction. And the older we imagine the doctrine to be, the stronger does a similar inference become. For just in proportion as we approach the archaic stage of the law, the greater do we find the technical obstacles in the way of any one attempting to enforce a contract except the actual party to it, and the greater therefore must have been the need of a fiction to overcome them.3

The question which I have been considering arises in another form with regard to the admission of oral evidence in favor of or to charge a principal, when a contract has been made in writing, which purports on its face to be made with or by the alleged agent in person. Certainly the argument is strong that such evidence varies the writing, and if the Statute of Frauds applies, that the statute is not satisfied unless the name of the principal appears. Yet the contrary has been decided. The step was taken almost sub silentio.1 But when at last a reason was offered, it turned on, or at least was suggested by, the notion of the identity of the parties. It was in substance that the principal “is taken to have adopted the name of the [agent] as his own, for the purpose of such contracts,” as it was stated by Smith in his Leading Cases, paraphrasing the language of Lord Denman in Trueman v. Loder.2

I gave some evidence at the beginning of this discussion, that notions drawn from the familia were applied to free servants, and that they were extended beyond the domestic relations. All that I have quoted since tends in the same direction. For when such notions are applied to freemen in a merely contractual state of service it is not to be expected that their influence should be confined to limits which became meaningless when servants ceased to be slaves. The passage quoted from Bracton proved that already in his day the analogies of domestic service were applied to relations of more limited subjection. I have now only to complete the proof that agency in the narrower sense, the law familiar to the higher and more important representatives employed in modern business, is simply a branch of the law of master and servant.

First of the attorney. The primitive lawsuit was conducted by the parties in person. Counsel, if they may be called so, were very early admitted to conduct the formal pleadings in the presence of the party, who was thus enabled to avoid the loss of his suit, which would have followed a slip on his own part in uttering the formal words, by disavowing the pleading of his advocate. But the Frankish law very slowly admitted the possibility of giving over the conduct of a suit to another, or of its proceeding in the absence of the principals concerned. Brunner has traced the history of the innovation by which the appointment of an attorney (i. e., loco positus) came generally to be permitted, with his usual ability.1 It was brought to England with the rest of the Norman law, was known already to Glanvill, and gradually grew to its present proportions. The question which I have to consider, however, is not the story of its introduction, but the substantive conception under which it fell when it was introduced.

If you were thinking of the matter a priori it would seem that no reference to history was necessary, at least to explain the client’s being bound in the cause by his attorney’s acts. The case presents itself like that of an agent authorized to make a contract in such terms as he may think advisable. But as I have hinted, whatever common-sense would now say, even in the latter case it is probable that the power of contracting through others was arrived at in actual fact by extending the analogy of slaves to freemen. And it is at least equally clear that the law had need of some analogy or fiction in order to admit a representation in lawsuits. I have given an illustration from Iceland in my book on the Common Law. There the contract of a suit was transferred from Thorgeir to Mord “as if he were the next of kin.”2 In the Roman law it is well known that the same difficulty was experienced. The English law agreed with the Northern sources in treating attorneys as sustaining the persona of their principal. The result may have been worked out in a different way, but that fundamental thought they had in common. I do not inquire into the recondite causes, but simply observe the fact.

Bracton says that the attorney represents the persona of his principal in nearly everything.1 He was “put in the place of” his principal, loco positus (according to the literal meaning of the word attorney), as every other case in the Abbreviatio Placitorum shows. The essoign de malo lecti had reference to the illness of the attorney as a matter of necessity.2 But, in general, the attorney was dealt with on the footing of a servant, and he is called so as soon as his position is formulated. Such is the language of the passage in West’s Symboleography which I have quoted above, and the anonymous case which held an attorney not liable for maliciously acting in a cause which he knew to be unfounded.3 When, therefore, it is said that the “act of the attorney is the act of his client,” it is simply that familiar fiction concerning servants applied in a new field. On this ground it was held that the client was answerable in trespass, for assault and false imprisonment, where his attorney had caused the party to be arrested on a void writ, wholly irrespective, it would seem, of any actual command or knowledge on the part of the client;4 and in trespass quare clausum, for an officer’s breaking and entering a man’s house and taking his goods by command of an attorney’s agent without the actual knowledge either of the client or the attorney. The court said that the client was “answerable for the act of his attorney, and that [the attorney] and his agent [were] to be considered as one person.”5

The only other agent of the higher class that I think it necessary to mention is the factor. I have shown elsewhere that he is always called a servant in the old books.6 West’s language includes factors as well as attorneys. Servant, factor, and attorney are mentioned in one breath and on a common footing in the Year Book, 8 Edward IV., folio 11 b. So Dyer,1 “if a purveyor, factor, or servant make a contract for his sovereign or master.” So in trover for money against the plaintiff’s “servant and factor.”2 It is curious that in one of the first attempts to make a man liable for the fraud of another, the fraudulent party was a factor. The case was argued in terms of master and servant.3 The first authority for holding a master answerable for his servant’s fraud is another case of a factor.4 Nothing is said of master and servant in the short note in Salkeld. But in view of the argument in Southern v. How, just referred to, which must have been before Lord Holt’s mind, and the invariable language of the earlier books, including Lord Holt’s own when arguing Morse v. Slue (“Factor, who is servant at the master’s dispose”),5 it is safe to assume that he considered the case to be one of master and servant, and it always is cited as such.6

To conclude this part of the discussion, I repeat from my book on the Common Law,7 that as late as Blackstone agents appear under the general head of servants; that the precedents for the law of agency are cases of master and servant, when the converse is not the case; and that Blackstone’s language on this point is express: “There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as stewards, factors, and bailiffs; whom, however, the law considers as servants pro tempore, with regard to such of their acts as affect their master’s or employer’s property.”8

Possession is the third branch of the law in which the peculiar doctrines of agency are to be discovered, and to that I now pass.

The Roman law held that the possession of a slave was the possession of his master, on the practical ground of the master’s power.1 At first it confined possession through others pretty closely to things in custody of persons under the patria potestas of the possessor (including prisoners bona fide held as slaves). Later the right was extended by a constitution of Severus.2 The common law in like manner allowed lords to appropriate lands and chattels purchased by their villeins, and after they had manifested their will to do so, the occupation of the villeins was taken to be the right of their lords.3 As at Rome, the analogies of the familia were extended to free agents. Bracton allows possession through free agents, but the possession must be held in the name of the principal;4 and from that day to this it always has been the law that the custody of the servant is the possession of the master.5

The disappearance of the servant under the persona of his master, of which a trace was discovered in the law of torts, in this instance has remained complete. Servants have no possession of property in their custody as such.6 The distinction in this regard between servants and all bailees whatsoever7 is fundamental, although it often has been lost sight of. Hence a servant can commit larceny8 and cannot maintain trover.9 A bailee cannot commit larceny10 and can maintain trover.11 In an indictment for larceny against a third person the property cannot be laid in a servant,1 it may be laid in a bailee.2 A servant cannot assert a lien;3 a bailee, of course, may, even to the exclusion of the owner’s right to the possessory actions.4

Here, then, is another case in which effects have survived their causes. But for survival and the fiction of identity it would be hard to explain why in this case alone the actual custody of one man should be deemed by the law to be the possession of another and not of himself.

A word should be added to avoid a misapprehension of which there are signs in the books, and to which I have adverted elsewhere.5 A man may be a servant for some other purpose, and yet not a servant in his possession. Thus, an auctioneer or a factor is a servant for purposes of sale, but not for purposes of custody. His possession is not that of his principal, but, on the contrary, is adverse to it, and held in his own name, as is shown by his lien. On the other hand, if the fiction of identity is adhered to, there is nothing to hinder a man from constituting another his agent for the sole purpose of maintaining his possession, with the same effect as if the agent were a domestic servant, and in that case the principal would have possession and the agent would not.

Agency is comparatively unimportant in its bearing on possession, for reasons connected with procedure. With regard to chattels, because a present right of possession is held enough to maintain the possessory actions, and therefore a bailor, upon a bailment terminable at his will, has the same remedies as a master, although he is not one. With regard to real estate, because the royal remedies, the assizes, were confined to those who had a feudal seisin, and the party who had the seisin could recover as well when his lands were subject to a term of years as when they were in charge of agents or servants.6

Ratification is the only doctrine of which the history remains to be examined. With regard to this I desire to express myself with great caution, as I shall not attempt to analyze exhaustively the Roman sources from which it was derived. I doubt, however, whether the Romans would have gone the length of the modern English law, which seems to have grown to its present extent on English soil.

Ulpian said that a previous command to dispossess another would make the act mine, and, although opinion was divided on the subject, he thought that ratification would have the same effect. He agreed with the latitudinarian doctrine of the Sabinians, who compared ratification to a previous command.1 The Sabinians’ “comparison” of ratification to mandate may have been a mere figure of speech to explain the natural conclusion that if one accepts possession of a thing which has been acquired for him by wrongful force, he is answerable for the property in the same way as if he had taken it himself. It therefore is hardly worth while to inquire whether the glossators were right in their comment upon this passage, that the taking must have been in the name of the assumed principal,—a condition which is ambiguously mentioned elsewhere in the Digest.2

Bracton copied Ulpian,3 still, so far as I have observed, not going beyond cases of distress4 and disseisin.5 The first reported cases known to me are again assizes of novel disseisin.6

But later decisions went much beyond this point, as may be illustrated by one of them.7 In trespass de bonis asportatis the defendant justified as bailiff. After charging the inquest Gascoigne said that “if the defendant took the chattels claiming property in himself for a heriot, although the lord afterward agreed to that taking for services due him, still he [the defendant] cannot be called his bailiff for that time. But had he taken them without command, for services due the lord, and had the lord afterwards agreed to his taking, he shall be adjudged as bailiff, although he was nowhere his bailiff before that taking.” A ratification, according to this, may render lawful ab initio an act which without the necessary authority is a good cause of action, and for which the authority was wanting at the time that it was done. Such is still the law of England.1 The same principle is applied in a less startling manner to contract, with the effect of giving rights under them to persons who had none at the moment when the contract purported to be complete.2 In the case of a tort it follows, of course, from what has been said that if it is not justified by the ratification, the principal in whose name and for whose benefit it was done is answerable for it.3

Now it may be argued very plausibly that the modern decisions have only enlarged the comparison of the Sabinians into a rule of law, and carried it to its logical consequences. The comparatur of Ulpian has become the aequiparatur of Lord Coke,4 it might be said; ratification has been made equivalent to command, and that is all. But it will be seen that this is a very great step. It is a long way from holding a man liable as a wrongful disseizor when he has accepted the wrongfully-obtained possession, to allowing him to make justifiable an act which was without justification when it was done, and, if that is material, which was followed by no possession on the part of the alleged principal.1 For such a purpose why should ratification be equivalent to a previous command? Why should my saying that I adopt or approve of a trespass in any form of words make me responsible for a past act? The act was not mine, and I cannot make it so. Neither can it be undone or in any wise affected by what I may say.2

But if the act was done by one who affected to personate me, new considerations come in. If a man assumes the status of my servant pro hac vice, it lies between him and me whether he shall have it or not. And if that status is fixed upon him by my subsequent assent, it seems to bear with it the usual consequence as incident that his acts within the scope of his employment are my acts. Such juggling with words of course does not remove the substantive objections to the doctrine under consideration, but it does formally reconcile it with the general framework of legal ideas.

From this point of view it becomes important to notice that, however it may have been in the Roman law, from the time of the glossators and of the canon law it always has been required that the act should have been done in the name or as agent of the person assuming to ratify it. “Ratum quis habere non potest quod ipsius nomine non est gestum.”3 In the language of Baron Parke in Buron v. Denman,4 “a subsequent ratification of an act done as agent is equal to a prior authority.” And all the cases from that before Gascoigne downwards have asserted the same limitation.1 I think we may well doubt whether ratification would ever have been held equivalent to command in the only cases in which that fiction is of the least importance had it not been for the further circumstance that the actor had assumed the position of a servant for the time being. The grounds for the doubt become stronger if it be true that the liability even for commanded acts started from the case of owner and slave.

In any event, ratification like the rest of the law of agency reposes on a fiction, and whether the same fiction or another, it will be interesting in the conclusion to study the limits which have been set to its workings by practical experience.

What more I have to say concerning the history of agency will appear in my treatment of the last proposition which I undertook to maintain. I said that finally I should endeavor to show that the whole outline of the law, as it stands to-day, is the resultant of a conflict between logic and good sense—the one striving to carry fictions out to consistent results, the other restraining and at last overcoming that effort when the results become too manifestly unjust. To that task I now address myself.

I assume that common-sense is opposed to making one man pay for another man’s wrong, unless he actually has brought the wrong to pass according to the ordinary canons of legal responsibility,—unless, that is to say, he has induced the immediate wrong-doer to do acts of which the wrong, or, at least, wrong, was the natural consequence under the circumstances known to the defendant. I assume that common-sense is opposed to allowing a stranger to my overt acts and to my intentions, a man of whom I have never heard, to set up a contract against me which I had supposed I was making with my personal friend. I assume that common-sense is opposed to the denial of possession to a servant and the assertion of it for a depositary, when the only difference between the two lies in the name by which the custodian is called. And I assume that the opposition of common-sense is intensified when the foregoing doctrines are complicated by the additional absurdities introduced by ratification. I therefore assume that common sense is opposed to the fundamental theory of agency, although I have no doubt that the possible explanations of its various rules which I suggested at the beginning of this Essay, together with the fact that the most flagrant of them now-a-days often presents itself as a seemingly wholesome check on the indifference and negligence of great corporations, have done much to reconcile men’s minds to that theory. What remains to be said I believe will justify my assumption.

I begin with the constitution of the relation of master and servant, and with the distinction that an employer is not liable for the torts of an independent contractor, or, in other words, that an independent contractor is not a servant. And here I hardly know whether to say that common-sense and tradition are in conflict, or that they are for once harmonious. On the one side it may be urged that when you have admitted that an agency may exist outside the family relations, the question arises where you are to stop, and why, if a man who is working for another in one case is called his servant, he should not be called so in all. And it might be said that the only limit is found, not in theory, but in common-sense, which steps in and declares that if the employment is well recognized as very distinct, and all the circumstances are such as to show that it would be mere folly to pretend that the employer could exercise control in any practical sense, then the fiction is at an end. An evidence of the want of any more profound or logical reason might be sought in the different circumstances that have been laid hold of as tests, the objections that might be found to each, and in the fact that doubtful cases are now left to the jury.1

On the other hand, it might be said that the master is made answerable for the consequences of the negligent acts “of those whom the law denominates his servants, because,” in the language of that judgment which settled the distinction under consideration,1 “such servants represent the master himself, and their acts stand upon the same footing as his own.” That although the limits of this identification are necessarily more or less vague, yet all the proposed tests go to show that the distinction rests on the remoteness of personal connection between the parties, and that as the connection grows slighter, the likeness to the original case of menials grows less. That a contractor acts in his own name and on his own behalf, and that although the precise point at which the line is drawn may be somewhat arbitrary, the same is true of all legal distinctions, and that they are none the worse for it, and that wherever the line is drawn it is a necessary one, and required by the very definition of agency. I suppose this is the prevailing opinion.

I come next to the limit of liability when the relation of master and servant is admitted to exist. The theory of agency as applied to free servants no doubt requires that if the servant commits a wilful trespass or any other wrong, when employed about his own business, the master should not be liable. No free man is servant all the time. But the cases which exonerate the master could never have been decided as the result of that theory alone. They rather represent the revolt of common-sense from the whole doctrine when its application is pushed far enough to become noticeable.

For example, it has been held that it was beyond the scope of a servant’s employment to go to the further side of a boundary ditch, upon a neighbor’s land, and to cut bushes there for the purpose of clearing out the ditch, although the right management of the master’s farm required that the ditch should be cleaned, and although the servant only did what he thought necessary to that end, and although the master relied wholly upon his servant’s judgment in the entire management of the premises.1

Mr. Justice Keating said, the powers given to the servant “were no doubt very wide, but I do not see how they could authorize a wrongful act on another person’s land or render his employers liable for a wilful act of trespass.” It is true that the act could not be authorized in the sense of being made lawful, but the same is true of every wrongful act for which the principal is held. As to the act being wilful, there was no evidence that it was so in any other sense than that in which every trespass might be said to be, and as the judge below directed a verdict for the defendant, there were no presumptions adverse to the plaintiff in the case. Moreover, it has been said elsewhere that even a wilful act in furtherance of the master’s business might charge him.2

Mr. Justice Grove attempted to draw the line in another way. He said, “There are some things which may be so naturally expected to occur from the wrongful or negligent conduct of persons engaged in carrying out an authority given, that they may be fairly said to be within the scope of the employment.” But the theory of agency would require the same liability for both those things which might and those which might not be so naturally expected, and this is only revolt from the theory. Moreover, it may be doubted whether a case could be found where the servant’s conduct was more naturally to be expected for the purpose of accomplishing what he had to do.1

The truth is, as pretty clearly appears from the opinions of the judges, that they felt the difficulty of giving a rational explanation of the doctrine sought to be applied, and were not inclined to extend it. The line between right and wrong corresponded with the neighbor’s boundary line, and therefore was more easily distinguishable than where it depends on the difference between care and negligence, and it was just so much easier to hold that the scope of the servant’s employment was limited to lawful acts.

I now pass to fraud. It first must be understood that, whatever the law may be, it is the same in the case of agents, stricto sensu, as of other servants. As has been mentioned, the fraudulent servant was a factor in the first reported decision that the master was liable.2 Now if the defrauded party not merely has a right to repudiate a contract fraudulently obtained, or in general to charge a defendant to the extent that he has derived a benefit from another’s fraud, but may hold him answerable in solidum for the damage caused by the fraudulent acts of his servant in the course of the latter’s employment, the ground can only be the fiction that the act of the servant is the act of the master.

It is true that in the House of Lords3 Lord Selborne said that the English cases “proceeded, not on the ground of any imputation of vicarious fraud to the principal, but because (as it was well put by Mr. Justice Willes in Barwick’s case4 ) “with respect to the question whether a principal is answerable for the act of his agent in the course of his master’s business, no sensible distinction can be drawn between the case of fraud and the case of any other wrong.” But this only puts off the evil day. Why is the principal answerable in the case of any other wrong? It is, as has been seen, because, in the language of Mr. Justice Littledale, the “servants represent the master himself, and their acts stand upon the same footing as his own.”1 Indeed Mr. Justice Willes, in the very judgment cited by Lord Selborne, refers to Mr. Justice Littledale’s judgment for the general principle. So Lord Denman, in Fuller v. Wilson,2 “We think the principal and his agent are for this purpose completely identified.” I repeat more distinctly the admission that no fiction is necessary to account for the rule that one who is induced to contract by an agent’s fraud may rescind as against the innocent principal. For whether the fraud be imputed to the principal or not, he has only a right to such a contract as has been made, and that contract is a voidable one. But when you go beyond that limit and even outside the domain of contract altogether to make a man answer for any damages caused by his agent’s fraud, the law becomes almost inconceivable without the aid of the fiction. But a fiction is not a satisfactory reason for changing men’s rights or liabilities, and common-sense has more or less revolted at this point again and has denied the liability. The English cases are collected in Houldsworth v. City of Glasgow Bank.3

When it was attempted to carry identification one step further still, and to unite the knowledge of the principal with the statement of the agent in order to make the latter’s act fraudulent, as in Cornfoot v. Fowke,4 the absurdity became more manifest and dissent more outspoken. As was most accurately said by Baron Wilde in a later case,5 “The artificial identification of the agent and principal, by bringing the words of the one side by side with the knowledge of the other, induced the apparent logical consequence of fraud. On the other hand, the real innocence of both agent and principal repelled the notion of a constructive fraud in either. A discordance of views, varying with the point from which the subject was looked at, was to be expected.” The language of Lord Denman, just quoted, from Fuller v. Wilson, was used with reference to this subject.

The restrictions which common-sense has imposed on the doctrine of undisclosed principal are well known. An undisclosed principal may sue on his agent’s contract, but his recovery is subject to the state of accounts between the agent and third person.1 He may be sued, but it is held that the recovery will be subject to the state of accounts between principal and agent, if the principal has paid fairly before the agency was discovered; but it is, perhaps, doubtful whether this rule or the qualification of it is as wise as the former one.2

Then as to ratification. It has nothing to do with estoppel,3 but the desire to reduce the law to general principles has led some courts to cut it down to that point.4 Again, the right to ratify has been limited by considerations of justice to the other party. It has been said that the ratification must take place at a time and under circumstances when the would-be principal could have done the act;5 and it has been so held in some cases when it was manifestly just that the other party should know whether the act was to be considered the principal’s or not, as in the case of an unauthorized notice to quit, which the landlord attempts to ratify after the time of the notice has begun to run.6 But it is held that bringing an action may be subsequently ratified.7

I now take up pleading. It is settled that an assumpsit8 to or by a servant for his master may be laid as an assumpsit to or by the master. But these are cases where the master has commanded the act, and, therefore, as I showed in the beginning of this discussion, may be laid on one side. The same thing is true of a trespass commanded by the master.1 But when we come to conduct which the master has not commanded, but for which he is responsible, the difficulty becomes greater. It is, nevertheless, settled that in actions on the case the negligence of the servant is properly laid as the negligence of the master,2 and if the analogy of the substantive law is to be followed, and the fiction of identity is to be carried out to its logical results, the same would be true of all pleading. It is so held with regard to fraud. “The same rule of law which imputes to the principal the fraud of the agent and makes him answerable for the consequences justifies the allegation that the principal himself committed the wrong.”3 Some American cases have applied the same view to trespass,4 and have held that this action could be maintained against a master whose servant had committed a trespass for which he was liable although he had not commanded it. But these decisions, although perfectly reasonable, seem to have been due rather to inadvertence than to logic, in the first instance, and the current of authority is the other way. Baron Parke says, “The maxim ‘Qui facit per alium, facit per se’ renders the master liable for all the negligent acts of the servant in the course of his employment, but that liability does not make the direct act of the servant the direct act of master. Trespass will not lie against him; case will, in effect, for employing a careless servant.”5 Considered as reasoning, it would be hard to unite more errors in as many words. “Qui facit per alium, facit per se” as an axiom admitted by common-sense goes no farther than to make a man liable for commanded trespasses, and for them trespass lies. If it be extended beyond that point it simply embodies the fiction, and the precise point of the fiction is that the direct act of one is treated as if it were the direct act of another. To avoid this conclusion a false reason is given for the liability in general.1 It is, as has been shown, the old fallacy of the Roman jurists, and is disposed of by the decisions that no amount of care in the choice of one’s servant will help the master in a suit against him.2 But although the reasoning is bad, the language expresses the natural unwillingness of sensible men to sanction an allegation that the defendant directly brought force to bear on the plaintiff, as the proper and formal allegation, when as a matter of fact it was another person who did it by his independent act, and the defendant is only answerable because of a previous contract between himself and the actual wrong-doer.3 Another circumstance may have helped. Usually the master is not liable for his servant’s wilful trespasses, and, therefore, the actions against him stand on the servant’s negligence as the alternative ground on which anybody is responsible. There was for a time a confused idea that when the cause of action was the defendant’s negligence, the proper form of action was always case.4 Of course if this was true it applied equally to the imputed negligence of a servant. And thus there was the farther possibility of confounding the question of the proper form of action with the perfectly distinct one whether the defendant was liable at all.

I come finally to the question of damages. In those States where exemplary damages are allowed, the attempt naturally has been made to recover such damages from masters when their servants’ conduct has been such as to bring the doctrine into play. Some courts have had the courage to be consistent.5 “What is the principle,” it is asked, “upon which this rule of damages is founded? It is that the act of the agent is the act of the principal himself. . . . The law has established, to this extent, their legal unity and identity. . . . This legal unity of the principal and agent, in respect to the wrongful or tortious, as well as the rightful acts, of the agent, done in the course of his employment, is an incident which the law has wisely attached to the relation, from its earliest history.” “If then the act of the agent be the act of the principal in law, and this legal identity is the foundation of the responsibility of the principal, there can be no escape from his indemnity to the full extent of civil responsibility.” An instruction that the jury might give punitive damages was upheld, and the plaintiff had judgment for $12,000. Whatever may be said of the practical consequences or the English of the opinion from which these extracts are made, it has the merit of going to the root of the matter with great keenness. On the other hand, other courts, more impressed by the monstrosity of the result than by the elegantia juris, have peremptorily declared that it was absurd to punish a man who had not been to blame, and have laid down the opposite rule without hesitation.1

I think I now have made good the propositions which I undertook at the beginning of this essay to establish. I fully admit that the evidence here collected has been gathered from nooks and corners, and that although in the mass it appears to me imposing, it does not lie conspicuous upon the face of the law. And this is equivalent to admitting, as I do, that the views here maintained are not favorites with the courts. How can they be? A judge would blush to say nakedly to a defendant: “I can state no rational ground on which you should be held liable, but there is a fiction of law which I must respect and by which I am bound to say that you did the act complained of, although we both know perfectly well that it was done by somebody else whom the plaintiff could have sued if he had chosen, who was selected with the utmost care by you, who was in fact an eminently proper person for the employment in which he was engaged, and whom it was not only your right to employ, but much to the public advantage that you should employ.” That would not be a satisfactory form in which to render a decision against a master, and it is not pleasant even to admit to one’s self that such are the true grounds upon which one is deciding. Naturally, therefore, judges have striven to find more intelligible reasons, and have done so in the utmost good faith; for whenever a rule of law is in fact a survival of ancient traditions, its ancient meaning is gradually forgotten, and it has to be reconciled to present notions of policy and justice, or to disappear.

If the law of agency can be resolved into mere applications of general and accepted principles, then my argument fails; but I think it cannot be, and I may suggest, as another ground for my opinion beside those which I have stated heretofore, that the variety of reasons which have been offered for the most important application of the fiction of identity, the liability of the master for his servant’s torts, goes far to show that none of those reasons are good. Baron Parke, as we have seen, says that case is brought in effect for employing a negligent servant. Others have suggested that it was because it was desirable that there should be some responsible man who could pay the damages.1 Mr. Justice Grove thinks that the master takes the risk of such offences as it must needs be should come.

I admit my scepticism as to the value of any such general considerations, while on the other hand I should be perfectly ready to believe, upon evidence, that the law could be justified as it stands when applied to special cases upon special grounds.2

[1 ]This Essay was first published in the Harvard Law Review, vol. II (1888), pp. 1-18, 53-69, 377-380. Additions made by the author on revising it for this Collection are enclosed in brackets.

[2 ]A biographical note of this author is prefixed to Essay No. 43, in Vol. II of this Collection.

[3 ]Holmes, Early English Equity, 1 L. Q. Rev. 171 ante. Essay No. 41; The Common Law, 285. A similar opinion had been previously advanced by Professor Langdell. Contracts, § 47.

[4 ]Salmond, History of Contract, 3 L. Q. Rev. 166, 178 infra, Essay No. 61.

[5 ]Hare, Contracts, Ch. VII. and VIII.

[6 ]It seems proper to say that the substance of this article was in manuscript before the appearance of Judge Hare’s book or Mr. Salmond’s Essay.

[1 ]Y. B. 22 Ass. 94, pl. 41.

[2 ]Y. B. 43 Ed. III. 6, pl. 11; 11 R. II. Fitz. Ab. Act. on the Case, 37; Y. B. 3 H. VI. 36, pl. 33; [Prior v. Rillesford, 17 Yorkshire Archeol. Soc’y. Record Series, 78] Y. B. 19 H. VI. 49, pl. 5; Y. B. 11 Ed. IV. 6, pl. 10; Powtuary v. Walton, 1 Roll. Ab. 10, pl. 5; Slater v. Baker, 2 Wils. 359; Sears v. Prentice, 8 East, 348.

[3 ]Y. B. 46 Ed. III. 19, pl. 19; Y. B. 12 Ed. IV. 13, pl. 9 (semble).

[4 ]14 H. VII. Rast. Ent. 2, b. 1.

[5 ]Y. B. 11 H. IV. 33, pl. 60; Y. B. 3 H. VI. 36, pl. 33; Y. B. 20 H. VI. 34, pl. 4; Y. B. 21 H. VI. 55, pl. 12; 18 H. VII. Keilw. 50, pl. 4; 21 H. VII. Keilw. 77, pl. 25; Y. B. 21 H. VII. 41, pl. 66; Coggs v. Bernard, 2 Ld. Ray. 909, 920; Elsee v. Gatward, 5 T. R. 143. See also Best v. Yates, 1 Vent. 268.

[1 ]1 Roll. Ab. 10, pl. 5 See also to the same effect, Reg. Br. 105 b.

[2 ]Everard v. Hopkins, 2 Bulst. 332.

[3 ]Pippin v. Sheppard, 11 Price, 400.

[4 ]Gladwell v. Steggall, 5 B. N. C. 733.

[5 ]2 Chitty, Pl. (7 ed.) 458.

[1 ]Y. B. 19 H. VI. 49, pl. 5.

[2 ]See to the same effect Y. B. 48 Ed. III. 6, pl. 11; 11 R. II. Fitz. Ab. Act. on Case, 37; Rast. Ent. 463 b.

[3 ]1 Bl. Com. 431.

[4 ]Y. B. 11 Ed. IV. 6, pl. 10; 1 Roll. Ab. 94, pl. 1; 1 Roll. Ab. 95, pl. 1.

[1 ]Statham Ab. Act. on Case (27 H. VI.).

[2 ]Y. B. 12 Ed. IV. 13, pl. 10.

[3 ]Y. B. 2 H. VII. 11, pl. 9; Keilw. 77, pl. 25; Keilw. 160, pl. 2; Y. B. 27 H. VIII. 25, pl. 3.

[1 ]Keilw. 160, pl. 2 (1510).

[2 ][As late as 1745, it was objected in Alcorn v. Westbrook 1 Wils. 115, that Assumpsit was not the proper form of action against a pledgee.]

[3 ]In Williams v. Lloyd, W. Jones, 179; Anon., Comb. 371; Coggs v. Bernard, 2 Ld. Ray. 909; Shelton v. Osborne, 1 Barnard. 260; 1 Selw. N. P. (13 ed.) 348, s. c.; Brown v. Dixon, 1 T. R. 274, the declarations were framed in tort.

[4 ]Howlet v. Osborne, Cro. El. 380; Riches v. Briggs, Cro. El. 883, Yelv. 4; Game v. Harvie, Yelv. 50; Pickas v. Guile, Yelv. 128. See, also, Gellye v. Clark, Noy, 126, Cro. Jac. 188, s. c.; and compare Smith’s case, 3 Leon. 88.

[5 ]Wheatley v. Low, Palm. 281, Cro. Jac. 668, s. c.

[1 ]1 Roll. Ab. 2, pl. 4; Rich v. Kneeland, Hob. 17; 1 Roll. Ab. 6, pl. 4; Kenrig v. Eggleston, Al. 93; Nichols v. More, 1 Sid. 36; Morse v. Slue, 1 Vent. 190, 238; Levett v. Hobbs, 2 Show. 127; Chamberlain v. Cooke, 2 Vent. 75; Matthews v. Hoskins, 1 Sid. 244; Upshare v. Aidee, Com. 25; Herne’s Pleader, 76; Brownl. Ent. 11; 2 Chitty, Pl. (1 ed.) 271.

[2 ]Y. B. 42 Lib. Ass. pl. 17; Y. B. 2 H. IV. 7, pl. 31; Y. B. 11 H. IV. 45, pl. 18; Cross v. Andrews, Cro. El. 622; Gellye v. Clark, Cro. Jac. 189; Beedle v. Norris, Cro. Jac. 224; Herne’s Pleader, 170, 249.

[3 ]Keilw. 77, pl. 25.

[4 ]1 Leon. 297.

[5 ]Moore, 543, pl. 720; 1 Roll. Ab. 4, pl. 5, s. c. The criticism in Holmes’ “Common Law,” 155, n. 1, of the report of this case seems to be without foundation.

[6 ]See also Evans v. Yeoman (1635), Clayt. p. 33: “Assumpsit. The case upon evidence was, that whereas the plaintiff did deliver a book or charter to the defendant, it was holden that unless there had been an express promise to redeliver this back again, this action will not lie.”

The writer is tempted to suggest here an explanation of an anomaly in the law of waste. If, by the negligence of a tenant-at-will, a fire breaks out and destroys the house occupied by him as tenant, and another also belonging to his landlord, he must respond in damages to the landlord for the loss of the latter, but not of the former. Lothrop v. Thayer, 138 Mass. 466. This is an illustration of the rule that a tenant-at-will is not liable for negligent or permissive waste. Is it not probable that the tenant-at-will and a bailee were originally regarded in the same light? In other words, neither was bound to guard with care the property intrusted to him in the absence of a special undertaking to that effect. This primitive conception of liability disappeared in the case of chattels, but persisted in the case of land, as a rule affecting real property would naturally persist. In the Countess of Salop v. Crompton, Cro. El. 777, 784, 5 Rep. 13, s. c., a case against a tenant-at-will, Gawdy, J., admits the liability of a shepherd for the loss of sheep, “because he there took upon him the charge. But here he takes not any charge upon him, but to occupy and pay his rent.” So also in Coggs v. Bernard, 2 Ld. Ray. 909. Powell, J., referring to the case of the Countess of Salop, says: “An action will not lie against a tenant-at-will generally, if the house be burnt down. But if the action had been founded upon a special undertaking, as that in consideration the lessor would let him live in the house he promised to deliver up the house to him again in as good repair as it was then, the action would have lain upon that special undertaking. But there the action was laid generally.”

[1 ]Palm. 523. See, also, Stanian v. Davies, 2 Ld. Ray. 795.

[2 ]2 Inst. Cler. 185; 2 Chitty, Pl. (7 ed.) 506, 507.

[1 ]Fitz. Ab. Monst. de Faits, pl. 160 (1383).

[2 ]Moor v. Russel, Skin. 104; 2 Show. 284, s. c.

[3 ]Y. B. 11 Ed. IV. 6, pl. 11.

[4 ]3 Doug. 18.

[1 ]3 Y. B. 42, Lib. Ass. pl. 8.

[2 ]But see Kenrick v. Burges, Moore, 126, per Gawdy, J., and Roswell v. Vaughan, Cro. Jac. 196, per Tanfield, C. B.

[3 ]Y. B. 9 H. VI. 53, pl. 37; Keilw. 91, pl. 16; Roswell v. Vaughan, Cro. Jac. 196; Burnby v. Bollett, 16 M. & W. 644, 654.

[4 ]Dy. 75 a, n. (23); Cro. Jac. 4.

[5 ]1 Roll. R. 275. See also Leakins v. Clizard, 1 Keb. 522, per Jones.

[6 ]But see Crosse v. Gardner, 3 Mod. 261, Comb. 142, s. c.; Medina v. Stoughton, 1 Ld. Ray. 593, 1 Salk. 210, s. c.

[1 ]3 M. & W. 390.

[2 ]Co. Lit. 102 a; Springwell v. Allen (1649) Al. 91, 2 East, 448, n. (a), s. c.

[3 ]Crosse v. Gardner, 3 Mod. 261; 1 Show. 65, s. c.; Medina v. Stoughton, 1 Ld. Ray. 593, 1 Salk. 210, s. c.

[4 ]Eichholtz v. Bannister, 17 C. B. n. s. 708; Benj. Sale (3 ed.), 620-631.

[5 ]Y. B. 2 H. IV. 3, pl. 9.

[1 ]Y. B. 11 H. IV. 33, pl. 60. See also [Wheler v. Huchynden, 2 Cal. Ch. II; Wall v. Breese, 10 Seld. Socy. No. 40 as in Y. B. 21 Hen. VI. 55, pl. 12; Diversitie of Courts, Chancerie; Sharington v. Stratton, Plow. 298; Page v. Moulton, Dy. 296, a, pl. 22] 7 H. VI. 1, pl. 3; [Anon. (1503) Keilw. 50, pl. 4].

[2 ]Covenant was often used in the old books in the sense of agreement, a fact sometimes overlooked, as in Hare, Contracts, 138, 139.

[3 ]Y. B. 3 H. VI. 36, pl. 33. One of the objections to the count was that it did not disclose how much the defendant was to have for his work. The remarks of the judges and counsel upon this objection seem to have been generally misapprehended. Holmes, Common Law, 267, 285; Hare, Contracts, 162. The point was this: Debt would lie only for a sum certain. If, then, the price had not been agreed upon for building the mill, the millwright, after completing the mill, would get nothing for his labor. It could not, therefore, be right to charge him in an action for refusing to throw away his time and money. Babington, C. J., and Cockayne, J., admitted the force of this argument, but the latter thought it must be intended that the parties had determined the price to be paid. There is no allusion in the case to a quid pro quo, or a consideration as a basis for the defendant’s promise. Indeed, the case is valueless as an authority upon the doctrine of consideration.

[4 ]Y. B. 11 H. VI. 18, pl. 10, 24, pl. 1, 55, pl. 26.

[5 ]Y. B. 14 H. VI. 18, pl. 58.

[1 ]Y. B. 20 H. VI. 25, pl. 11, per Newton, C. J.; Y. B. 20 H. VI. 34, pl. 4, per Ayscoghe, J.; Y. B. 21 H. VI. 55, pl. 12, Y. B. 37 H. VI. 9, pl. 18, per Moyle, J.; Y. B. 2 H. VII. 11, pl. 9, and Y. B. 2 H. VII. 12, pl. 15, per Townsend, J.; 18 H. VII. Keilw. 50, pl. 4, per curiam; Doct. & St. Dial. II. c. 24; Coggs v. Bernard, 2 Ld. Ray. 909, 919, per Lord Holt; Elsee v. Gatward, 5 T. R. 143. Newton, C. J., said on several occasions (Y. B. 19 H. VI. 24 b, pl. 47; Y. B. 20 H. VI. 34, pl. 4; Y. B. 22 H. VI. 43, pl. 28) that one who bargained to sell land for a certain sum to be paid might have debt for the money, and, therefore, on the principle of reciprocity, was liable in an action on the case to his debtor. But this view must be regarded as an idiosyncrasy of that judge, for his premise was plainly false. There was no quid pro quo to create a debt [Fortescue dissented from Newton C. J. in Y. B. 20 Hen. VI. 35, pl. 4].

[2 ]Y. B. 11 H. VI. 18, pl. 10, 24, pl. 1, 55, pl. 26. See also Y. B. 20 H. VI. 25, pl. 11.

[1 ]Y. B. 20 H. VI. 34, pl. 4.

[2 ]Y. B. 16 Ed. IV. 9, pl. 7.

[3 ]Y. B. 2 H. VII. 12, pl. 15.

[4 ]Y. B. 3 H. VII. 14, pl. 20.

[1 ]Keilw. 77, pl. 25, which seems to be the same case as Y. B. 20 H. VII. 8, pl. 18. 21 H. VII. 41, pl. 66, per Fineux, C. J., accord. See also Brooke’s allusion to an “action on the case upon an assumpsit pro tali summa.” Br. Ab. Disceit, pl. 29.

[2 ]Y. B. 12 H. VIII. 11, pl. 3.

[1 ]Doct. and Stud. Dial. II. c. 24.

[2 ]Y. B. 27 H. VIII. 24, pl. 3; [Pecke v. Redman (1555), Dy. 113, the earliest reported case of assumpsit upon mutual promises]; Webb’s Case (1578), 4 Leon. 110; Richards v. Bartlett (1584), 1 Leon. 19; Baxter v. Read (1585), 3 Dyer, 272, b. note; Foster v. Scarlett (1588), Cro. El. 70; Sturlyn v. Albany (1588), Cro. El. 57; [Kirby v. Eccles (1590) 1 Leon. 186]; Greenleaf v. Barker (1590), Cro. El. 193; Knight v. Rushworth (1596), Cro. El. 469; Bane’s Case (1611), 9 Rep. 93, b. These authorities disprove the remark of Mr. Justice Holmes (Common Law, 287) that “the law oscillated for a time in the direction of reward, as the true essence of consideration.” In the cases cited in support of that remark the argument turned upon the point of benefit, as the only arguable point. The idea that the plaintiff in those cases had, in fact, incurred a detriment would have seemed preposterous. Professor Langdell’s observations (Summary of Contract, § 64) are open to similar criticism.

[3 ]Y. B. 21 Ed. IV. 23, pl. 6.

[4 ]Y. B. 21 H. VII. 41, pl. 66.

[5 ][Two other cases are given by Mr. S. R. Bird in the Antiquary vol. IV, p. 185 and vol. V, p. 38. See 8 Harv. L. Rev. 256; infra, Essay No. 60.]

[6 ]2 Cal. Ch. II.

[1 ]1 Cal. Ch. XLI.

[2 ]An action on the case was allowed under similar circumstances in 1505, Anon., Cro. El. 79 (cited).

[3 ]Y. B. 8 Ed. IV. 4, pl. 11.

[4 ]The Chancellor (Stillington) says, it is true, that a subpœna will lie against a carpenter for breach of his promise to build. But neither this remark, nor the statement in Diversity of Courts, Chancerie, justifies a belief that equity ever enforced gratuitous parol promises [8 Harv. L. Rev. 255-258, Infra, Essay No. 60]. But see Holmes, 1 L. Q. Rev. 172, 173; Salmond, 3 L. Q. Rev. 173. The practice of decreeing specific performance of any promises can hardly be much older than the middle of the sixteenth century. Bro. Ab. Act. on Case, pl. 72. [See 1 Ames, Cas. in Eq. Jur. 37 n. 3.] The invalidity of a nudum pactum was clearly stated by Saint-Germain in 1522. Doct. & St. Dial. II. Ch. 22, 23, and 24. [See similar statements in A Little Treatise Concerning Writs of Subpœna. Doct. & St. (18 ed.) Appendix, 17, Hargrave L. Tr., 334, which was written shortly after 1523.]

[5 ]Y. B. 27 H. VIII. 24, 25, pl. 3; Sidenham v. Worlington, 2 Leon. 224; Banks v. Thwaites, 3 Leon. 73; Shandois v. Simpson, Cro. El. 880; Sands v. Trevilian, Cro. Car. 107, 193. [Doct. & St. Dial. II. Ch. 23 and 24; Bret v. J. S. Cro. El. 756; Milles v. Milles, Cro. Car. 241; Jordan v. Tompkins, 6 Mod. 77. Contract meant originally what we now call a real contract, that is, a contract arising from the receipt of a quid pro quo, in other words, a debt. See 8 Harv. L. Rev. 253, n. 3, Infra, Essay No. 60.]

[6 ]Williams v. Hide, Palm. 548, 549; Wirral v. Brand, 1 Lev. 165.

[1 ]Legate v. Pinchion, 9 Rep. 86; Sanders v. Esterby, Cro. Jac. 417.

[2 ]Corby v. Brown, Cro. El. 470; Elrington v. Doshant, 1 Lev. 142.

[3 ]Common Pleas, 53.

[4 ]In Impey’s King’s Bench (5 ed.), 486, the pleader is directed to omit these words in declaring against a Peer: “For the Lords have adjudged it a very high contempt and misdemeanor, in any person, to charge them with any species of fraud or deceit.”

[5 ]4 Rep. 92 a; Yelv. 21; Moore, 433, 667.

[6 ]Langdell, Cont. § 48; Pollock, Cont. (4 ed.) 144; Hare, Cont. 136, 137; Salmond, 3 L. Q. Rev. 179, infra, Essay No. 61.

[1 ]Br. Ab. Act. on Case, pl. 105 (1542).

[2 ]Br. Ab. Act. on Case, pl. 5.

[3 ]2 Leon. 203, 204.

[4 ]See further, Anon. (B. R. 1572), Dal. 84, pl. 35; Pulmant’s case (C. B. 1585), 4 Leon. 2; Anon. (C. B. 1587), Godb. 98, pl. 12; Gill v. Harwood (C. B. 1587), 1 Leon, 61. It was even decided that assumpsit would lie upon a subsequent promise to pay a precedent debt due by covenant. Ashbrooke v. Snape (B. R. 1591), Cro. El. 240. But this decision was not followed.

[5 ]Edwards v. Burr (1573), Dal. 104; Anon. (1583), Godb. 13; Estrigge v. Owles (1589), 3 Leon. 200.

[6 ]Hinson v. Burridge, Moore, 701; Turges v. Beecher, Moore, 694; Paramour v. Payne, Moore, 703; Maylard v. Kester, Moore, 711.

[1 ]In Joscelin v. Sheldon (1557), 3 Leon. & Moore, 13, Ben. & Dal. 57, pl. 53, s. c., a promise is described as made in consideration of,” etc. An examination of the original records might disclose an earlier use of these technical words in connection with an assumpsit. But it is a noteworthy fact, that in the reports of the half-dozen cases of the reign of Henry VIII. and Edward VI. the word “consideration” does not appear [In Whorwood v. Gibbons (1577), Goldsb. 48, Leon. 61, s. c., it was said by the Court to be “a Common Courte in actions upon the case against him, by whom the debt is due, to declare without any words in consideratione”].

[2 ]See also Mr. Salmond’s criticism of this theory, in 3 L. Q. Rev. 178; infra, Essay No. 61.

[1 ]31 H. VI. Fitz. Ab. Subp. pl. 23; Fowler v. Iwardby, 1 Cal. Ch. LXVIII.; Pole v. Richard, 1 Cal. Ch. LXXXVIII.; Y. B. 20 H. VII. 10, pl. 20; Br. Feff. al use, pl. 40; Benl. & Dal. 16, pl. 20.

[2 ]Y. B. 21 VIII. 18, pl. 30. The consideration of blood was not sufficient to create a use, until the decision, in 1565, of Sharrington v. Strotton, Plow. 295. [See 2 Sel. Ess. Ang. Am. Leg. Hist. 746.]

[3 ]Plow. 298, 308; Buckley v. Simonds, Winch, 35-37, 59, 61; Hore v. Dix, 1 Sid. 25, 27; Pybus v. Mitford, 2 Lev. 75, 77.

[4 ]That a debt, as suggested by Professor Langdell (Contracts, § 100), was regarded as a grant, finds strong confirmation in the fact that Debt was the exclusive remedy upon a covenant to pay money down to a late period. Chawner v. Bowes, Godb. 217. See, also, 1 Roll Ab. 518, pl. 2 and 3; Brown v. Hancock, Hetl. 110, 111, per Barkley. [In Evans v. Thomas, Cro. Jac. 172, Tanfield J. said of a covenant that A should have a certain flock of sheep: “the covenant is a grant.” Similarly Coke C. J. in Rutland’s Case 2 Brownl. 338.]

[1 ]Bacon, St. of Uses (Rowe’s ed.), 13-14. [See 8 Harv. L. Rev. 259, Infra, Essay No. 60.]

[2 ]4 Rep. 92 a.

[1 ]Dal. 84, pl. 35.

[2 ]Manwood v. Burston, 2 Leon. 203, 204; supra, 16, 17.

[3 ]Moore, 711 (1601).

[1 ]See Langdell, Contracts, § 100.

[2 ]Edgecomb v. Dee, Vaugh. 89, 101. [“Si homme countast simplement d’un graunte d’un dette, il ne sera mye resceu saunz especialte.” Per Sharshulle, J., Y. B. 11 & 12 Ed. III 587.]

[1 ]Anon. (1585) 3 Leon. 119. [Per Curiam. “If one covenant to pay me £100 at such a day, an action of debt lieth, a fortiori when the words of the deed are covenant and grant, for the word covenant sometimes sounds in covenant, sometimes in contract secundum subjectam materiam.” Anon. (1591) 1 Leon. 208, pl. 290.]

[1 ]Anon., 1 Roll. Ab. 518, pl. 3; Strong v. Watts, 1 Roll. Ab. 518, pl. 2. See also Mordant v. Watts, Brownl. 19; Anon., Sty. 31; Frere v.—, Sty. 133; Norrice’s Case, Hard. 178.

[2 ]Godb. 217.

[3 ]Brown v. Hancock, Hetl. 110, 111. [But in Sicklemore v. Simonds, (1600) Cro. El. 797 the Common Bench said lessor might have his option of debt or covenant upon the lessee’s covenant to pay the rent.]

[1 ]Hughes v. Rowbotham (1592), Poph 30, 31; Woodford v. Deacon (1608), Cro. Jac. 206; Gardiner v. Bellingham (1612), Hob. 5, 1 Roll. R. 24, s. c.

[2 ]Rooke v. Rooke, (1610), Cro. Jac. 245, Yelv. 175, s. c.

[3 ]Rooke v. Rooke, supra; Moore v. Moore (1611), 1 Bulst. 169.

[4 ]Babington v. Lambert (1616), Moore, 854.

[5 ]Russell v. Collins (1669), 1 Sid. 425, 1 Mod. 8, 1 Vent. 44, 2 Keb. 552, s. c.

[6 ]Brinsley v. Partridge (1611), Hob. 88; Vale v. Egles (1605), Yelv. 70, Cro. Jac. 69.

[7 ]“If I bring cloth to a tailor to have a cloak made, if the price is not ascertained beforehand that I shall pay for the work, he shall not have an action against me.” Y. B. 12 Ed. IV. 9, pl. 22, per Brian, C. J. To the same effect, Young v. Ashburnham (1587), 3 Leon. 161; Mason v. Welland (1688), Skin. 238, 242.

[1 ]“It is an implied promise of every part, that is, of the part of the innkeeper, that he will preserve the goods of his guest, and of the part of the guest, that he will pay all duties and charges which he caused in the house.” Warbrooke v. Griffin, 2 Brownl. 254, Moore, 876, 877, s. c.

[2 ]Six Carpenters’ Case, 8 Rep. 147 a. But the statement that the tailor could recover in Debt is contradicted by precedent and following authorities.

[3 ]Actions on the Case (2 ed.), 50. [Shepp. Faithf. Counsellor, (2 ed.) 125.]

[4 ]Thursby v. Warren, W. Jones, 208.

[5 ]1 Sid. 36. See also Boson v. Sandford (1689), per Eyres, J.

[6 ]The defendant’s objection was similar to the one raised in Y. B. 3 H. VI. 36, pl. 33, supra, 11, n. 2.

[7 ]Hayward v. Davenport, Comb. 426.

[1 ]Yelv. 40.

[2 ]Scott v. Stephenson, 1 Lev. 71, 1 Sid. 89, s. c. But see Shepp. Act. on Case (2 ed.) 49.

[3 ]2 T. R. 100, 105.

[4 ]Justice of the Common Pleas, 1763-1794.

[5 ]1 Sel. N. P. (13 ed.) 91. [Lord Eldon said in Stirling v. Forrester, 3 Bligh, 575, 590: “Until I became acquainted with that case [Exall v. Partridge, (1799) 8 T. R. 310] I thought the remedy must be in equity.”]

[1 ]1 Spence, Eq. Jur. 694. [Daie v. Hampden (1628) Toth. 174. “Concerning salary for a cure.”]

[2 ]Ford v. Stobridge, Nels. Ch. 24. [In 1613, in Wormlington v. Evans, Godb. 243, a surety was denied the right of contribution even in equity. The right was given, however, early in the reign of Charles I. Fleet v. Charnock (1630), Nels. 10, Toth. 41 s. c.; Parkhurst v. Bathurst (1630), Toth. 41; Wilcox v. Dunsmore (1637), Toth. 41. The first intimation of a right to contribution at law is believed to be the dictum of Lord Kenyon in Turner v. Davies (1796), 2 Esp. 479. The right to contribution at law was established in England by Cowell v. Edwards (1800) 2 B. & P. 268. But in North Carolina, in 1801, a surety failed because he proceeded at law instead of in equity. Carrington v. Carson, Cam. & Nor. Conf. R. 216.]

[3 ]The view here suggested is in accordance with what has been called, in a questioning spirit, the “ingenious explanation” of Professor Langdell. Holmes, Common Law, 286. The general tenor of this paper will serve, it is hoped, to remove the doubts of the learned critic.

[4 ]Sidenham v. Worlington (1585), 2 Leon. 224.

[5 ]Langdell, Contracts, § 92.

[1 ]Langdell, Contracts, § 92; 1 Vin. Ab. 280, pl. 13.

[2 ]Langdell, Contracts, §§ 93, 94.

[3 ]2 Roll. Ab. 92, pl. 1, 2.

[4 ]An innkeeper had the further right of selling a horse as soon as it had eaten its value, if there were no express contract. For, as he had no right of action for its keep, the horse thereafter was like a damnosa hereditas. The Hostler’s case (1605), Yelv. 66, 67. This right of sale disappeared afterwards with the reason upon which it was founded. Jones v. Pearle, 1 Stra. 556.

[5 ]“And it was resolved that an innkeeper may detain a horse for his feeding, and yet he may have an action on the case for the meat.” Watbrooke v. Griffith (1609), Moore, 876, 877, 2 Brownl. 254 s. c.

[6 ]Chapman v. Allen, Cro. Car. 271; Collins v. Ongly, Selw. N. P. (13 ed.) 1312, n. (x), per Lord Holt; Brennan v. Currint (1755), Say. 224, Buller, N. P. (7 ed.) 45, n. (c); Cowell v. Simpson, 16 Ves. 275, 281, per Lord Eldon; Scarfe v. Morgan, 4 M. & W. 270, 283, per Parke, B.

[1 ]Chase v. Westmore, 5 M. & Sel. 180.

[2 ]2 Roll. Ab. 85, pl. 4 (1604); Mackerney v. Erwin (1628), Hutt. 101; Chapman v. Allen (1632), 2 Roll. Ab. 92, pl. 6, Cro. Car. 271, s. c. [Bro. Ab. Distresse, 67.]

[3 ]Roll. Ab. 92, pl. 6, Cro. Car. 271, s. c.

[4 ]5 M. & W. 342.

[5 ]The agistor has a lien by the Scotch law. Schouler, Bailments (2 ed.), § 122.

[6 ]1 Lev. 113, 1 Sid. 160, 1 Keb. 599, 635. To the same effect, Penruddock v. Monteagle (1612), 1 Roll. Ab. 7, pl. 3; Browne v. Downing (1620), 2 Roll. R. 194; Read v. Palmer (1648), Al. 69, 70.

[1 ]Anon., 1 Vent. 69.

[2 ]Squire v. Grevell (1703), 6 Mod. 34, 35. See similar statements by Lord Holt in Allen v. Harris (1695), 1 Ld. Ray. 122; Freeman v. Barnard (1696), 1 Ld. Ray. 248; Purslow v. Baily (1704), 2 Ld. Ray. 1039; Lupart v. Welson (1708), 11 Mod. 171.

[3 ]Supra, 7.

[4 ]Comb. 334.

[5 ]1 Wils. 281. See, also, Brown v. Dixon, 1 T. R. 274, per Buller, J. [And yet in Powell v. Layton (1806) 2 B. & P. N. R. 365, 370, Sir J. Mansfield said: “How an action against a carrier on the custom ever came to be considered an action in tort I do not understand.”]

[6 ]Morgan v. Ravey, 6 H. & N. 265. But see Stanley v. Bircher, 78 Mo. 245.

[7 ]Carth. 89, 1 Salk. 9.

[8 ][But in Spurraway v. Rogers (1700), Lord Holt is reported as allowing assumpsit against a factor only upon an express promise.]

[1 ]Tompkins v. Willshaer, 5 Taunt. 430.

[2 ]Milton’s Case (1668), Hard. 485, per Lord Hale.

[3 ]In Finch, Law, 150, they are called “as it were” contracts.

[4 ]Keil. 50, pl. 4.

[5 ]Jackson v. Rogers, 2 Show. 327; Anon., 12 Mod. 3.

[1 ]Steinson v. Heath, Lev. 400.

[2 ]Bryan v. Clay, 1 E. & B. 38.

[3 ]Batthyany v. Walford, 36 Ch. Div. 269.

[4 ]Story, Bailments (8 ed.), §§85-87.

[5 ]3 Bl. Com. 165.

[6 ]Couch v. Steel, 3 E. & B. 402. But see Atkinson v. Newcastle Co., 2 Ex. Div. 441.

[7 ]Supra, 55, 56.

[8 ]2 Lev. 174, 1 Vent. 298, 3 Keb. 677, Freem. 433, s. c.

[1 ]Barber Surgeons v. Pelson (1679), 2 Lev. 252. To the same effect, Mayor v. Hunt (1681), 2 Lev. 37, Assumpsit for weighage; Duppa v. Gerard (1688), 1 Show. 78, Assumpsit for fees of knighthood. [Tobacco Co. v. Loder, 16 Q. B. 765.]

[2 ]Shuttleworth v. Garrett, Comb. 151, 1 Show. 35, Carth. 90, 3 Mod. 240, 3 Lev. 261, s. c.

[3 ][In Smith v. Airey 6 Mod. 125, 129, he said: “An indebitatus has been brought for a tenant right fine, which I could never digest.” See also Anon. Farresly, 12.]

[4 ]5 Mod. 444.

[5 ]1 Ld. Ray. 502.

[6 ]Dupleix v. De Rover, 2 Vern. 540.

[7 ]Starke v. Cheeseman, 1 Ld. Ray. 538.

[1 ]The readers of this Review will be interested to learn that this gap in our legal literature is about to be filled by Professor Keener’s “Cases on the Law of Quasi-Contracts.” [Professor Keener published his Cases in Quasi-Contracts in 1888, and followed it, 1893, with his admirable treatise on the same subject.]

[2 ]Hewer v. Bartholomew (1597), Cro. El. 614; Anon. (1696), Comb. 447; Cavendish v. Middleton, Cro. Car. 141, W. Jones, 196, s. c.

[3 ]Lincoln v. Topliff (1597), Cro. El. 644.

[4 ]2 Sid. 4. To the same effect, Martin v. Sitwell (1690), 1 Show. 156, Holt, 25; Newdigate v. Dary (1692), 1 Ld. Ray. 742; Palmer v. Staveley (1700), 12 Mod. 510.

[5 ][In Mead v. Death (1700), 1 Ld. Ray. 742. However, one who paid money under judgment was not allowed to recover it, although the judgment was afterwards reversed. The rule to-day is, of course, otherwise. Keener, Quasi-Contracts, 417.]

[1 ]Anon., Comb. 447.

[2 ]Brig’s Case (1623), Palm. 364; Dewbery v. Chapman (1695), Holt. 35; Anon. (1696), Comb. 447.

[3 ]Holmes v. Hall, 6 Mod. 161, Holt, 36, s. c. See, also, Dutch v. Warren (1720), I Stra. 406, 2 Burr. 1010, s. c.; Anon., 1 Stra. 407.

[4 ]Tottenham v. Bedingfield (1572), Dal. 99, 3 Leon. 24, Ow., 35, 83, s. c. Accordingly, an account of the profits of a tort cannot be obtained in equity to-day except as an incident to an injunction.

[5 ]3 Lev. 191.

[6 ]Woodward v. Aston, 2 Mod. 95.

[1 ]Arris v. Stukely, 2 Mod. 260.

[2 ]2 Show, 23, 2 Lev. 245, Freem. 473, 478, T. Jones, 126, s. c.

[3 ]Jacob v. Allen (1703), 1 Salk. 27; Lamine v. Dorell (1705), 2 Ld. Ray. 1216. Philips v. Thompson, supra, was overruled in Hitchins v. Campbell, 2 W. Bl. 827.

[4 ]Moses v. MacFerlan, 2 Burr. 1005, 1012.

[5 ]Ex p. Adams, 8 Ch. Div. 807, 819.

[6 ]Phillips v. Homfray, 24 Ch. Div. 439.

[7 ][This statement is too sweeping. The authorities are divided on the question. Keener, Quasi-Contracts, 192-195.]

[1 ]Lightly v. Clouston, 1 Taunt. 112. See, also, Gray v. Hill, Ry. & M. 420.

[2 ]But see Mayor v. Sanders, 3 B. & Ad. 411.

[3 ]Turner v. Davies (1796), 2 Esp. 476; Cowell v. Edwards (1800), 2 B. & P. 268; Craythorne v. Swinburne (1807), 14 Ves. 160, 164; Exall v. Partridge (1799), 8 T. R. 308.

[1 ]Supra, p. 276.

[2 ]Slack v. Bowsal (B. R. 1623), Cro. Jac. 668.

[3 ]Green v. Harrington (C. B. 1619), 1 Roll. Ab. 8, pl. 5, Hob. 24, Hutt. 34, Brownl. 14, s. c.; Munday v. Baily (B. R. 1647), Al. 29, Anon. Sty. 53, s. c.; Ayre v. Sils (B. R. 1648), Sty. 131; Shuttleworth v. Garrett (B. R. 1688), Comb. 151, per Holt, C. J.

[4 ]Reade v. Johnson (C. B. 1591), Cro. El. 242, 1 Leon. 155, s. c.; Neck v. Gubb (B. R. 1617), 1 Vin. Ab. 271, pl. 1, 2; Brett v. Read (B. R. 1634), Cro. Car. 343, W. Jones, 329, s. c.

[1 ]Reade v. Johnson, 1 Leon. 155; London v. Wood, 12 Mod. 669, 681.

[2 ]Cro. El. 756, Winch. 15, s. c. cited (1621).

[3 ]See also Neck v. Gubb (1617), 1 Vin. Ab. 271, pl. 3; Dartnal v. Morgan (1620), Cro. Jac. 598.

[4 ]Clerk v. Palady (1598), Cro. El. 859; White v. Shorte (1614), 1 Roll. Ab. 7, pl. 4; Ablain’s Case (1621), Winch, 15.

[5 ]W. Jones, 364, Cro. Car. 414, 1 Roll. Ab. 8, pl. 10, s. c.

[1 ]Potter v. Fletcher (1633), 1 Roll. Ab. 8, pl. 7; Rowncevall v. Lane (1633), 1 Roll. Ab. 8, pl. 8; Luther v. Malyn (1638), 1 Roll. Ab. 9, pl. 11; Note (1653), Sty. 400; Lance v. Blackman (1655), Sty. 463; How v. Norton (1666), 1 Sid. 279; 2 Keb. 8, 1 Lev. 279, s. c.; Chapman v. Southwick (1667), 1 Lev. 204, 1 Sid. 323, 2 Keb. 182, s. c.; Freeman v. Bowman (1667), 2 Keb. 291; Stroud v. Hopkins (1674), 3 Keb. 357. See also Falhers v. Corbret (1733), 2 Barnard. 386, but note the error of the reporter in calling the case an Indebitatus Assumpsit.

[2 ]Trever v. Roberts, Hard. 366.

[3 ]3 Lev. 150.

[4 ][King v. Stephens, 2 Roll. R. 435.]

[1 ]Mason v. Welland (1685), Skin. 238, 242, 3 Mod. 73, s. c.; How v. Norton (1666), 1 Lev. 179, 2 Keb. 8, 1 Sid. 279, s. c. It is probable that a promise implied in fact was sufficient to support an assumpsit upon a quantum meruit. “It was allowed that an assumpsit lies for the value of shops hired without an express promise,” per Holt, C. J. (1701), 1 Com. Dig., assumpsit, C, pl. 6.

[1 ]Supra, 67; Thomas v. Whip, Bull. N. P. 130; Tryon v. Baker, 7 Lans. 511, 514.

[2 ]Supra, 68; Stockell v. Watkins, 2 Gill & J. 326.

[3 ]The writer is indebted to Professor Keener for a correction of the statement (supra, p. 297) that the count for goods sold and delivered was never allowed against a converter. See 2 Keener, Cases on Quasi-Contracts, 606, 607, n. 1; Cooley, Torts (2 ed.), 109, 110; Pomeroy, Remedies (2 ed.), §§ 568, 569.

[1 ]This Essay was first published in the Harvard Law Review, vol. VIII (1895), pp. 252-264. Additions made by the author in revising for this Collection are in brackets.

[2 ]A biographical note of this author is prefixed to Essay No. 43, in Volume II of this Collection.

[3 ][Reprinted as Essay No. 41, in Volume II of this Collection.—Eds.]

[1 ]Glanvil, Lib. X. c. 12. “De debitis laicorum quae debentur . . . de cartis debita continentibus.” Bracton, f. 100, b. “Per scripturam vero obligatur quis, ut si quis scripserit alicui se debere, sive pecunia numerata sit sive non, obligatur ex scriptura, nec habebit exceptionem pecuniæ non numeratæ contra scripturam, quia scripsit se debere.” 1 Nich. Britton, 157, 162.

[2 ]Glanvil, Lib. X. c. 12, and c. 18.

[3 ]Bracton, f. 100, a. As there are several cases in Bracton’s Note Book, in which the validity of covenants affecting land are assumed to be valid, Bracton, in the passage just referred to, probably had in mind miscellaneous covenants See Pollock, Contracts (6 ed.), 136. It is certainly true that the rule that any promise under seal may give rise to an action was a comparatively late development in the history of covenant. As late as the middle of the fourteenth century, Sharshull, J., said in Y. B. 21 Ed. III. 7-20: “If he granted to you to be with you at your love-day, and afterwards would not come, perhaps you might have had a writ of covenant against him if you had a specialty to prove your claim.”

[1 ]The word contract was used in the time of the Year Books in a much narrower sense than that of to-day. It was applied only to those transactions where the duty arose from the receipt of a quid pro quo, e. g., a sale or loan. In other words, contract meant what we now mean by “real contract.” What we now call the formal or specialty contract was anciently described as a grant, an obligation, a covenant, but not as a contract. See, in addition to the authorities cited in the text, Y. B. 17 Ed. III. 48-14. A count in debt demanding “part by obligation and part by contract.” Y. B. 29 Ed. III. 25, 26, “Now you have founded wholly upon the grant, which cannot be maintained without a specialty, for it lies wholly in parol, and there is no mention of a preceding contract.” Y. B. 41 Ed. III. 7-15. Thorp, C. J.: “You say truly if he put forward an obligation of the debt, but if you count upon a contract without obligation, as here (a loan), it is a good plea.” Y. B. 43 Ed. III. 2-5. Debt on a judgment. Belknap objected “for there is no contract or covenant between them.” 8 Rich. II. Bellewe (ed. 1869), 32, 111. “In debt upon contract the plaintiff shall shew in his count for what cause the defendant became his debtor. Otherwise in debt upon obligation.” Y. B. 11 Hen. IV. 73, a-11; 8 Rich. II. Bellewe (ed. 1869), 32, 111; Y. B. 39 Hen. BI. 34-44; Sharington v. Strotton, Plowd. 298, 301, 302; Co. Lit. 292 b. The fanciful etymology given in Co. Lit. 47 b should be added: “In every contract there must be quid pro quo, for contractus est quasi actus contra actum.”

[2 ]Y. B. 11 & 12 Ed. III. 587; Y. B. 18 Ed. III. 13-7; Y. B. 44 Ed. III. 21, 23; [Y. B. 48 Ed. III. 29-15] Y. B. 9 Hen. V. 14, 23. The only statement in the Year Books to the contrary is the dictum of Candish, J., in 48 Ed. III. 6-11: “And also this action of covenant of necessity is maintainable because for so slight a thing one cannot always have his clerk to make a specialty.” The case in Y. B. 7 Ed. II. 242 can hardly be said to throw any light upon the question under discussion.

[3 ]By the custom of London and Bristol, Debt was allowed upon a parol grant without quid pro quo. Y. B. 43 Ed. III. 11-1; Y. B. 14 Hen. IV. 26-13; Y. B. 22 Ed. IV. 2-6; F. M. v. R. C., 1 M. & G. 6 n. (a.); Y. B. 38 Hen. VI. 29-12; Y. B. 1 Hen. VII. 22-12; [Y. B. 1 Ed. IV. 6-13; Dy. 370, pl. 58] Williams v. Gibbs, 5 A. & E. 208; Bruce v. Waite, 1 M. & G. 1, and cases cited in Pollock, Cont. (6 ed.), 138 n. (p.). See also the cases of parol undertakings in the Bishop of Ely’s Court, 4 Seld. Socy. 114-118.

[1 ]Constitutions of Clarendon, c. 15, Stubbs, Sel. Chart. 134; Glanvil, Book X. c. 12; Abb. Pl. 31, col. 1, rot. 21 (1200); 2 Br. N. B. No. 50 (1219); Fitz. Abr. Prohib. 15 (1220); 2 Br. N. B. No. 1893 (1227); Stat. Circumspecte Agatis, 13 Ed. I.; Y. B. 22 Lib. Ass. 70; Y. B. 2 Hen. IV. 10-45; Y. B. 11 Hen. IV. 88-40; Y. B. 38 Hen. VI. 29-11; Y. B. 20 Ed. IV. 10-9; Y. B. 22 Ed. IV. 20-47; Y. B. 12 Hen. VII. 22. b-2; Dr. & St. Dial. II. c. 24.

[1 ][In Anon. Litt. R., 3 Richardson said that Lord Ellesmere used to say that there were three things which he would never relieve in equity, 1 such leases aforesaid, 2 concealments, 3 nude promises. See also Alexander v. Crosh, Toth. 21.]

[2 ]At the present day a gratuitous undertaking by the owner of property to hold the same in trust for another is enforced in equity. It is a singular fact that this anomalous doctrine seems to have been first sanctioned by the conservative Lord Eldon, in Ex parte Pye, 18 Ves. 140. It was well settled that a use could not be created by a similar gratuitous parol declaration. Indeed, as late as 1855, Lord Cranworth, in Scales v. Maude, 6 D. M. & G. 43, 51, said that a mere declaration of trust by the owner of property in favor of a volunteer was inoperative. In Jones v. Lock, 1 Ch. Ap. 25, 28, he corrected this statement, yielding to the authority of what seemed to him unfortunate decisions.

[3 ]Essay No. 59, Volume III.

[1 ]The Antiquary, Vol. IV. p. 185, reprinted in part in 3 Green Bag, 3.

[2 ]The Antiquary, Vol. V. p. 38.

[1 ]Doct. & St. (18th ed.), Appendix, 17; Harg. L. Tr. 334.

[2 ]Y. B. 21 Hen. VII. 18-30.

[1 ]Vol. II, pp. 242-257. See also Pollock, Cont. (6th ed.), 137, and the observations of the same writer in 6 Harv. Law Rev., 401, 402.

[2 ](32 Ed. III.) Fitz. Ab. Acct. 108; (2 Rich. II) Bellewe Acct. 7; Y. B. 41 Ed. III. 10-5; Y. B. 6 Hen. IV. 7-33; Y. B. 1 Hen. V. 11-21; Y. B. 36 Hen. VI. 9, 10-5; Y. B. 18 Ed. IV. 23-5; Y. B. 1 Ed. V. 2-2; Robsert v. Andrews, Cro. El. 82; Huntley v. Griffith, Gold. 159; Harrington v. Rotheram, Hob. 36, Brownl. 26 s. c.; Clark’s Case, Godb. 210, pl. 299. See also Ames, Cases on Trust (2d ed.), 1 n. 3, 4 n. 1.

[1 ]Y. B. 34 Ed. I. 239; Y. B. 12 & 13 Ed. III. 244; Y. B. 39 Ed. III. 17, A; Y. B. 3 Hen. VI. 43-20; Y. B. 9 Hen. VI. 38-13; Y. B. 9 Hen. VI. 60, A-8; Y. B. 18 Hen. VI. 9, A-7, and other authorities cited in Ames, Cases on Trusts (2d ed.), 52 n. 1.

[2 ][See Y. B. 44 Ed. III 27-6, called to the writer’s attention by Mr. Crawford D. Hening.]

[1 ]Y. B. 20 Hen. VI. 35-4; Y. B. 21 Hen. VI. 55-12. See, to the same effect, Y. B. 37 Hen. VI. 8-18, per Prisot, C. J.; Y. B. 49 Hen. VI. 18-23, per Choke, J., and Brian; Y. B. 17 Ed. IV. 1-2. See also Blackburn, Contract of Sale, 190-196.

[2 ]Peck v. Redman (1555), Dy. 113, appears to be the earliest case of mutual promises.

[3 ]If the bargain was for the sale of land and there was no livery of seisin, the buyer had no common-law remedy for the recovery of the land, like that of Detinue for chattels. Equity, however, near the beginning of the sixteenth century, supplied the common-law defect by compelling the seller to hold the land to the use of the buyer, if the latter had either paid or agreed to pay the purchase-money. Br. Ab. Feoff. al Use, 54; Barker v. Keate, 1 Freem. 249, 2 Mod. 249 s. c.; [Nota, Brownl. 34.] Gilbert, Uses, 52; 2 Sand. Uses, 57. The consideration essential to give the buyer the use of land was, therefore, identical with the quid pro quo which enabled him to maintain Detinue for a chattel. Inasmuch as the consideration for parol uses was thus clearly borrowed from the common-law doctrine of quid pro quo, it seems in the highest degree improbable that the consideration for an Assumpsit was borrowed by the Common Law from Equity; 2 Harv. L. Rev. 18, 19 (Essay No. 59, ante). But see Salmond, Essays in Jurisprudence, 213 (Essay No. 61, post).

[1 ]A debtor might as easily owe chattels as money. A debt of chattels would arise from the same quid pro quo as a debt of money. A lessee might accordingly be charged in debt for chattels by the lessor. Y. B. 20 and 21 Ed. I. 139; Y. B. 50 Ed. III. 16-8. Y. B. 34 Hen. VI. 12-23; Anon. 3 Leon. 260; Denny v. Parnell, 1 Roll. Ab. 591, pl. 1. Or an employer by his employee. Y. B. 7 Ed. III. 12-2; Weaver v. Best, Winch. 75. Or a vendor by his vendee. Y. B. 34 Ed. I. 150; Y. B. 27 Hen. VII. 8-20. [A case, temp. Ed. I. cited 5 C. B. 326 n. (a)]. As Indebitatus Assumpsit would lie for a debt payable in money, it was also an appropriate remedy for a debt payable in chattels. Cock v. Vivyan, 2 Barnard, 293, 384; Falmouth v. Penrose, 6 B. & C. 385; Mayor v. Clerk, 4 B. & Al. 268. The judgment in Debt for Chattels was like that in Detinue that the plaintiff recover his chattels. The essential distinction between Detinue and Debt for chattels seems to be this,—Detinue was the proper remedy for the recovery of a specific chattel, Debt, on the other hand, for the recovery of a specific amount of unascertained chattels.

[2 ]Johnson v. Morgan, Cro. El. 758.

[3 ]See to the same effect Y. B. 3 Hen. VI. 36-33; Anon., 2 Show. 183; Young v. Ashburnham, 3 Leon. 161; Mason v. Welland, Skin. 238, 242.

[4 ]Y. B. 3 Hen. VI. 4-4; Y. B. 11 Hen. VI. 5-9; Y. B. 21 Ed. IV. 22-2; Smith v. Vow, Moore, 298; Bagnall v. Sacheverell, Cro. El. 292; Bladwell v. Stiglin, Dy. 219; Baylis v. Hughes, Cro. Car. 137; Calthrop v. Allen, Hetl. 119; Ramsden’s Case, Clayt. 87; Hooper v. Shepard, 2 Stra. 1089; Hulme v. Sanders, 2 Lev. 4. In Vaux v. Mainwaring, Fort. 197, 1 Show. 215 s. c., the distinction was taken that in Indebitatus Assumpsit the plaintiff might recover the amount proved, but in Debt the amount stated in the writ or nothing. But afterwards the plaintiff was not held to a proof of the amount stated in the writ even in Debt. Aylett v. Lowe, 2 W. Bl. 1221; Walker v. Witter, Doug. 6; M’Quillin v. Cox, 1 H. Bl. 249; Lord v. Houston, 11 East, 62. See also Parker v. Bristol Co., 6 Ex. 706, per Pollock, C. B., and 1 Chitty, P. (7th Ed.) 127-128.

[1 ]Rudder v. Price, 1 H. Bl. 547. [Hunt’s Case, Ow. 42, 2 Roll. Ab. 523.]

[2 ]If a bargain was for the sale of unascertained chattels, the transaction gave rise to mutual debts, the reciprocal grants of the right to a sum certain of money and a fixed amount of chattels forming the quid pro quo for the corresponding debts. Y. B. 21 Hen. VI. 55-12; Anon. Dy. 30, pl. 301; Slade’s Case, 4 Rep. 94 b. See supra, p. 276.

[3 ]Y. B. 12 Hen. IV. 17-13.

[4 ]Bidwell v. Catton, Hob. 216.

[5 ]2 Ld. Ray. 1034, 6 Mod. 128, Holt, 329 s. c.

[1 ]Walker v. Walker, Holt, 328, 5 Mod. 13, Comb. 303 s. c. Per Holt, C. J., “This is merely a wager and no Indebitatus Assumpsit lies for it; for to make that lie, there must be a work done, or some meritorious action for which Debt lieth.” Hard’s case, 1 Salk. 23; Bovey v. Castleman, 1 Ld. Ray. 69. Per Curiam: “For mutual promises Assumpsit may lie, but not Indebitatus Assumpsit.” These statements that Debt will not lie upon mutual promises bring out with great clearness the distinction already referred to between mutual promises and the mutual duties growing out of a parol bargain and sale. See Pollock, Contracts in Early English Law, 6 Harv. L. Rev. 398, 399.

[2 ]The true ground of this decision seems sometimes to have been misunderstood. Holmes, Common Law, 267.

[3 ]After Assumpsit came in, it was many years before it was called a contract. That term was still confined to transactions resting upon a quid pro quo. See Essay No. 59, ante, and Jenks, Doctrine of Consideration, 134.

[4 ]Y. B. 37 Hen. VI. 8-18; Y. B. 15 Ed. IV. 32-14; Y. B. 20 Ed. IV. 3-17. [See also Anon. 1 Vent. 268.]

[5 ]Applethwaite v. Northby, Cro. El. 29; Beresford v. Woodroff, 1 Rolle, R. 433.

[1 ]Stonehouse v. Bodvil, T. Ray. 67, 1 Keb. 439, s. c.

[2 ]Bret v. J. S., Cro. El. 756.

[3 ]Shandois v. Stinson, Cro. El. 880.

[4 ]Harris v. Finch, Al. 6.

[5 ]“There cannot be a double debt upon a single loan.” Per Curiam, in Marriott v. Lister, 2 Wils. 141, 142.

[6 ]“If it had been an Indebitatus Assumpsit for so much money paid by the plaintiff at the request of the defendant unto his son, it might have been good, for then it would be the father’s debt and not his son’s; but when the money is lent to the son, ’t is his proper debt, and not the father’s.” Per Holt, C. J., in Butcher v. Andrews, Carth. 446 (Salk. 23; Comb. 473, s. c.). See also Marriott v. Lister, 2 Wils. 141.

[1 ]Y. B. 27 Hen. VIII. 25-3, per Fitz James, C. J.; Hinson v. Burridge, Moore, 701; Cogan v. Green, 1 Roll. Ab. 594; Anon., 1 Vent. 293; Stonehouse v. Bodvil, 1 Keb. 439; Hart v. Langfitt, 2 Ld. Ray. 841, 842, 7 Mod. 148 s. c.; Rozer v. Rozer, 2 Vent. 36, overruling Kent v. Derby, 1 Vent. 311, 3 Keb. 756, s. c.

[2 ]Alford v. Eglisfield, Dy. 230, pl. 56; Baxter v. Read, Dy. 272 n. (32); Nelson’s Case, Cro. El. 880 (cited); Trevilian v. Sands, Cro. Car. 107, 193, 1 Roll. Ab. 594, pl. 14. A was the debtor and B was not liable in Woodhouse v. Bradford, 2 Rolle R. 76, Cro. Jac. 520 s. c.; Hart v. Langfitt, 2 Ld. Ray. 841, 7 Mod. 148 s. c.; Jordan v. Tompkins, 2 Ld. Ray 982, 6 Mod. 77 s. c.; Gordon v. Martin, Fitzg. 302; Ambrose v. Roe, Skin. 217, 2 Show. 421 s. c.

[3 ]Watkins v. Perkins, 1 Ld. Ray. 224; Buckmyr v. Darnell, 2 Ld. Ray. 1085, 3 Salk. 15 s. c.; Jones v. Cooper, Cowp. 227; Matson v. Wharam, 2 T. R. 80.

[4 ]For an account of the development of Assumpsit see Essay No. 59, ante.

[1 ]This Essay was first published in the Law Quarterly Review, 1887, Vol. III, pp. 166-179.

[2 ]Parliamentary Counsel to the New Zealand Government, and head of the Law Drafting Office, since 1907.

M. A. 1882, New Zealand University, LL. B. 1887, London University; Professor of law in University of Adelaide; Professor of law in Victoria University College, Wellington, New Zealand, 1906.

Other Publications: Essays in Jurisprudence and Legal History, 1891; Jurisprudence, or The Theory of the Law, 1st ed. 1902, 2d ed. 1907; The Law of Torts, 1907; and other articles in the Law Quarterly Review, etc.

[3 ]Bracton, 99, 100; Fleta, ii. 56.

[1 ]Bracton, 102 b; Fleta, ii. 60.

[2 ]Y. B. 20 & 21 Ed. I. 189.

[3 ]Holmes, Common Law, 252.

[4 ]Debt for chattels:—Y. B. 20 & 21 Ed. I. 139; Y. B. 3 Ed. II. 57; Y. B. 12 Ed. II. 354. Detinue for money:—Y. B. 6 Ed. II. 192; cf. Y. B. 33-35 Ed. I. 454.

[1 ]Glanvil, x. 3; x. 12.

[2 ]Güterbock, Bracton (by Coxe), 138-139.

[3 ]Holmes, Common Law, 264. ‘But the old debts were not conceived of as raised by a promise. They were a “duty” springing from the plaintiff’s (? defendant’s) receipt of property, a fact which could be seen and sworn to.’

[4 ]Bracton, 100 b.

[1 ]Hunter, Roman Law, 355 (1st ed.); Inst. Just. 3, 29, 1; Gaius, 3, 173. See Mr. Moyle’s Excursus VIII. in his edition of the Institutes.

[2 ]Bellewe, 8 Rich. II. 111 (ed. 1869).

[3 ]There existed one exception to this rule, namely suretyship. The anomalous nature of this contract was soon perceived, and a sealed writing became necessary for its validity. Holmes, Common Law, 264.

[4 ]Y. B. 39 Ed. III. 18.

[1 ]Y. B. 9 Hen. V. 14.

[2 ]Y. B. 7 Hen. VI. 1. This is an action of deceit on the case, but there is no doubt whatever that quid pro quo originated in debt, and an examination of the case will show that the objection in question is merely a verbal one.

[3 ]Y. B. 37 Hen. VI. 8.

[4 ]Y. B. 16 Ed. IV. 9.

[5 ]Digby’s History of the Law of Real Property, 49 and 144.

[6 ]Glanvil, x. 8. ‘Super hoc notandum est quod Curia domini regis hujusmodi privatas conventiones de rebus dandis vel accipiendis in vadium, vel alias hujusmodi, extra Curiam sive etiam in aliis Curiis quam in Curia domini regis factas, tueri non solet nec warrantizare; et ideo si non fuerint servatae Curia domini regis se inde non intromittet.’

[7 ]Güterbock, 138-139.

[1 ]Bracton, 34. See also 100.

[2 ]Fleta, iii. 14, 3.

[3 ]20 & 21 Ed. I. 222.

[1 ]22 Ass. 94; Y. B. 43 Ed. III. 33.

[2 ]48 Ed. III. 6.

[3 ]Bellewe, 5 and 332 (ed. 1869).

[4 ]Y. B. 2 Hen. IV. 3.

[1 ]Y. B. 11 Hen. IV. 33; Y. B. 3 Hen. VI. 36; Y. B. 14 Hen. VI. 18; Y. B. 20 Hen. VI. 34; Y. B. 21 Hen. VI. 55.

[2 ]Y. B. 20 Hen. VII. 9.

[3 ]Y. B. 21 Hen. VII. 41.

[4 ]For example: Defendant spoils cloth sent to him by plaintiff to be made into a coat. In a purely delictual remedy the damage done to the cloth is the ground of action, and the value of the cloth the measure of damages. If such a remedy is perverted into a contractual one, the ostensible ground of action is the failure to make a coat, and the measure of damages is the value of the coat; while the damage to the cloth remains as a limitation upon the scope of the action as a contractual remedy.

[1 ]Keilwey, 78. See also F. N. B., Covenant. Of course this rule has no connection with the requirement of quid pro quo, which was rigorously confined to the action of debt. In Y. B. 3 Hen. VI. 36, is reported an anomalous case, in which to assumpsit for a nonfeasance it was objected that no recompense had been assigned for the feasance. That no such requirement then existed is certain; for assumpsit did not lie for a nonfeasance in any case, and it lay for a malfeasance irrespective of reward. See Pollock, Princ. of Contr., 676.

[1 ]Dyer, 272 a.

[2 ]Y. B. 8 Ed. IV. 4.

[1 ]Y. B. 21 Ed. IV. 23.

[2 ]Chauncerie.

[3 ]Y. B. 21 Hen. VII. 41.

[4 ]1 Spence, Equit. Jur. 645; Bro. Ab., Action sur le case, 72.

[5 ]1 Proceed. in Ch., Introd. 70 and 88, fol. ed.

[6 ]Spence, Equit. Jur. 478, note.

[1 ]1. 2, c. 55.

[2 ]This was originally the generic name, including valuable consideration as a species.

[1 ]Y. B. 20 Hen. VII. 11.

[2 ]Bro. Ab., Action sur le case, 5 and 105; 4 Leonard, 2; 2 Bendloes, 84. But see a different view in Langdell, § 90.

[3 ]Moore, 708.

[4 ]Pollock, Contracts, 171.

[5 ]Dyer, 272 a.

[1 ]For the same idea in the case of legal obligation, see Y. B. 29 Ed. III. 25.

[2 ]For instances see Bro. Ab., Feffements al uses, 54; Sharrington v. Strotton, Plowden, 301; 2 Leonard, 30; 1 Croke, 126; Dyer, 272 a, note; Moore, 643. Whether the equitable principle of consideration was at any period applied in its full extent to assumpsit may be doubted. That it was necessary in 30 Eliz to decide that affection was no consideration to found an assumpsit, shows at once that the common law principle had been lost sight of, and that the equitable principle had been only partially substituted.

[1 ]‘Est et haec species condictionis, si quis sine causa promiserit vel si solverit quis indebitum . . . Sed et si ob causam promisit, causa tamen secuta non est, dicendum est condictionem locum habere.’ Digest, 12, 7, 1.

[2 ]Decr. Greg. i. 35, 1. Pacta quantumcunque nuda servanda sunt.

[3 ]Stair’s Inst. i. 10, 7.

[1 ]Molina, De Justitia, Disput. 257.

[2 ]Code Civ. 1131.

[1 ]Doctor and Student, ii. 24.

[2 ]Princ. of Contr., Appendix, Note F.

[3 ]The Common Law, 247-288; Early English Equity, Law Quart. Rev., No. 2, vol. i. p. 162 (Essay No. 41, Vol. I of this Collection).

[1 ]Y. B. 37 Hen. VI. 8; Y. B. 20 Ed. IV. 3; 1 Croke, 880 (anomalous); 3 Croke, 193.

[2 ]Y. B. 27 Hen. VIII. 24.

[3 ]Dyer, 272 a, note.

[4 ]3 Croke, 193.

[5 ]2 Bendloes, 104; Moore, 433, 694, 703.

[6 ]4 Co. Rep. 91.

[1 ]This Essay was first published in the American Law Register (now the University of Pennsylvania Law Review), Vol. XLIII, N. S. (LII, O. S.), pp. 764-779, Vol. XLIV, N. S. (LIII, O. S.), pp. 112-127 (1904-5); a continuation, in id. Vol. XLVII, O. S. (LVI, N. S.), pp. 73-87 (1908) is not here reprinted. Changes and additions have been made by the author for the present reprint.

[2 ]Professor of Law in the University of Pennsylvania. A. B. 1887, University of Pennsylvania, LL. B. 1903, Temple College.

Other Publications: Leading Cases on the Fourth Section of the Statute of Frauds, 1907; Life of Chief Justice Doe of New Hampshire (in Lewis’ Great American Lawyers), 1908. Cases on the Simple Contract of Debt at the Common Law, 1907.

[3 ]Crow v. Rogers, 1 Strange, 592 (1724); Price v. Easton, 4 Barn. and Ad. 433 (1833); Tweddle v. Atkinson, 1 B. and S. 393 (1861); Empress Engineering Co., 16 Chancery Div. 125, 129 (1880), Re Rotherham Alum and Chemical Co., 25 Ch. Div. at page 111 (1883); Cleaver v. Mutual Reserve Fund Life Association, 1 Q. B. 147 (1892).

[1 ]“Contracts for the Benefit of a Third Person,” by Samuel Williston, xv. Harvard Law Review, 774, (1902).

[2 ]Tweddle v. Atkinson, 1 Best and Smith, 398 (1861).

[3 ]Price v. Easton, 4 Barn. and Ad. 433 (1833); Thomas v. Thomas, 2 Ad. & El. (N. S.) 851, 859 (1842).

[1 ]Judge Hare in his work on contracts, p. 146, says “that the only person entitled to sue on a contract is he who furnishes the consideration.” He says:

“It is a well-established rule of the common law that the right of action lay not with him to whom the promise was made and who would have been benefited if it had been kept, but with the party from whom the consideration moved on the faith of the promise (citing Patteson, J., in Thomas v. Thomas). . . . The rule may be traced in the reports from the origin of the action of assumpsit down to our own times, although it is not infrequently modified or superseded by principles which the common law has derived from equity (citing Bourne v. Mason, 1 Ventris, 6).”

Of course such a rule effectually bars any action by a third party brought to enforce a contract made for his benefit. The reluctance of this learned writer to admit that this test should be applied indiscriminately to all actions of the beneficiary appears in his concession on page 194, that “The question when a delivery to one man for the use of another will confer a right on the latter is, nevertheless, one of the most difficult and doubtful known to the law.”

Professor Langdell contends that no person can enforce a contract except the promisee. He says: (Summary of the Law of Contract, sec. 62):

“A binding promise vests in the promisee, and in him alone, a right to compel performance of the promise, and it is by virtue of this right that an action is maintained upon the promise. In the case of a promise made to one person for the benefit of another, there is no doubt that the promisee can maintain an action, not only in his own name but for his own benefit. If, therefore, the person for whose benefit the promise was made could also sue on it, the consequence would be that the promisor would be liable to two actions. In truth, a binding promise to A to pay $100 to B confers no right upon B in law or equity. It confers an authority upon the promisor to pay the money to B, but that authority may be revoked by A at any moment.”

But compare Professor Langdell’s statement, (ii. Harvard Law Review, page 249):

“If money be delivered by A to B in order that it may be delivered by B to C, or if it be delivered by A to B to the use of C, it has often been held that B will be accountable to C.”

Such a rule as that laid down by Professor Langdell in his “Summary of the Law of Contract” (supra), if true, obviously defeats the right of action of the beneficiary where he is not the promisee. But equally obviously the two theories (the one Judge Hare’s and the other Professor Langdell’s), cannot both be correct. If the only requisite of a right to enforce a contract is to have furnished the consideration, then a person may enforce a contract even if he is not the promisee. In fact, we find Judge Hare asserts the following proposition—the exact contradictory of Professor Langdell’s—as one of the arguments for the contention that the furnishing of the consideration is the sole test of the right of action: “If A promised to pay B 1,000 pounds if C would go to Rome, and C took the journey, he and not B is regarded as entitled to the reward, and to compel the payment of it by suit.” (Hare on Contracts, page 147). Leake interprets the doctrine of consideration to mean that although the consideration need not be furnished directly by the promisee, yet if furnished by a third party it must have been furnished at the promisee’s request. (Leake on Contracts, page 430).

Professor Williston admits that “The rule that consideration must move from the promisee is somewhat technical, and in a developed system of contract law there seems no good reason why A should not be able for a consideration received from B to make an effective promise to C.” (“Contracts for the Benefit of a Third Person,” by Samuel Williston, xv. Harvard Law Review, page 771 (1902)).

Professor Williston, however, denies the right of action of the beneficiary on the other ground—“The beneficiary is not a party to the contract, and, apart from some special principle governing this class of cases, cannot maintain an action.” (Ib. page 773 (1902)).

[1 ]The Supreme Court of the United States has said that “The right of a party to maintain assumpsit on a promise not under seal made to another for his benefit, although much controverted, is now the prevailing rule in this country.” (Hendrick v. Lindsay, 93 U. S. 143, 1876).

The vagueness of this statement is apparent.

Some American States by their judicial interpretation of the common law have declared the right to exist under certain conditions and restrictions. (Contracts for the Benefit of a Third Person by Samuel Williston, xv, Harvard Law Review, page 778 (1902)). But in these states the right of action is granted to the beneficiary, in language that is unmistakedly apologetic, recognizing the supposedly correct English principle and limiting the American exceptions to certain circumstances supposed to be peculiar. Of this so-called American rule it has been truly said by Sir Frederick Pollock that “there does not seem to be any general agreement as to its reason or its precise extent.” (Contracts (7th Ed.) page 215.)

Other American States are content to follow English precedents of the nineteenth century.

[1 ]Pollock on Contracts (7th ed.), page 170.

Professor Ames states that the earliest case of bilateral assumpsit he has found is Pecke v. Redman, 1 Dyer, 113 a (1555).

Unilateral assumpsits, i. e., based on actual detriment incurred on request were of course, earlier to appear. Anno 21 H. vii i Keilw. 77, 78.

But these cases suffice to show that the doctrine of consideration belongs to a wholly different species of the genus Contracts than the species to which we may apply the terms Accountability and debt.

[1 ]Holmes’ Common Law, page 271.

[2 ]Selden Society Year Books Series, vol. II, p. 34. Reprinting Y. B. 2 Ed. II, 1308-9, 118 Anon. Ryvere v. Frere, Ib. Vol. III, p. 126, (3 Ed. II). Y. B. 44 Ed. III, F. 1 Pl. 2, (Hil.). Pollock and Maitland’s History of English Law, Vol. II, p. 219, mentions the earliest known action of account to be of the year 1232.

Bracton’s Note Book, pl. 859.

In Maitland, “Register of Original Writs,” iii. Harvard Law Review, 173, will be found a reference to the writ of Account, giving that technical language which adhered to the writ to the latest day: “Account: justificies talem quod . . . reddat tali racionabilem compotum suum de tempore quo fuit ballivus suus,” etc.

An illustration of an old manorial account will be found in the “Yearly Account of Manor of Cuxam,” ad 1316-1317, reprinted in “English Manorial Documents, edited by Edward P. Cheyney, A. M., published by the Department of History of the University of Pennsylvania.”

[1 ]Y. B. xliii Ed. III. F. 21 Pl. 11.

Y. B. xlvi E. III. fol. 3 pl. 6; (Fitz. Accompt. 38).

Y. B. xlvi E. III. fol. 9 pl. 4; (Fitz. Accompt. 39).

[2 ]In 1267 the statute of Marlbridge (52 Hen. III. c. 23) gave the lord a writ of attachment against the body of his bailiff who had no lands or tenements whereby he could be distrained. The statute of Westminster II (13 Ed. I. c. 11) provided that the lord or master could assign auditors before whom the steward, bailiff or servant must account.

“These statutes sanctioned a procedure against accountants which was in that age a procedure of exceptional rigor. We gather that the accountants in question were for the most part ‘bailiffs’ in the somewhat narrow sense that this word commonly bore, manorial bailiffs. In Edward I’s day the action was being used in a few other cases; it had been given by statute against the guardian in socage and we find it can be used among traders who have joined in a commercial adventure; the trade of the Italian bankers was being carried on by large ‘societies’ and Englishmen were beginning to learn a little about partnership. Throughout the fourteenth and fifteenth centuries the action was frequent enough, as the Year Books and Abridgments show.”—Pollock and Maitland’s History of English Law, Vol. ii. p. 219 (1895).

[1 ]See Foss’s Lives, p. 159, John de Cavendish.

[2 ]Y. B. 41 E. III. Fol. 10. pl. 5 (1368).

[3 ]“Statham, Nicholas, was elected reader of Lincoln’s Inn in Lent 1471, II Edward IV. (Dugdale’s Orig 249) and received on October 30, 1467, a patent for the grant of the office of second baron of the Exchequer. As Statham’s name is never mentioned afterwards, it is uncertain whether he ever filled the office.

“Although he never once is mentioned in the Year Books, an abridgment of the cases reported in them to the end of the reign of Henry VI., being the first attempt at a work of that nature, goes under his name.”—Foss’ Lives of the Justices, p. 630.

[4 ]Statham Abr. Acc. 5, in abridging the case Y. B. 41 Ed. III. fol. 31, pl. 37. But Statham nowhere under the title Account cites the Y. B. 2 R. II (above next mentioned in the text) owing doubtless to the fact that he had no access to the Ms. from which Fitzherbert quoted.

[5 ]“The Abbot of Wanerle brings writ of Account against a man as receiver of his monies, and counts how he was his receiver by the hands of such an one.”

[1 ]Easter Term, 2 Rich. 2, Reported in Fitzherbert’s Abridgment, Title Accompt. pl. 45.

[2 ]Robert de Bealknap, Chief Justice of the Common Pleas, 1374-1387.

[1 ]Henry de Percy, Justice of the Common Pleas, 1377-1380.

[2 ]William Skipwith, Justice of the Common Pleas, 1376-1388.

[1 ]Y. B. vi Hen. IV. F. 7, pl. 33, (Hil).

[2 ]Y. B. 1 H. V. Fol. 11, Pl. 21 (1413).

Person’s Case, Y. B. x Ed. IV. f. 5, pl. 10, con. to folio 8, pl. 21 (1471).

[3 ]See post, p. 364, in this paper for meaning of this word.

[4 ]Y. B. 36 Hen. VI. Fol. 8, pl. 5 (at bottom of 9).

[5 ]Chief Justice of the Common Pleas, 1471-1500.

[6 ]Y. B. xv Ed. IV. fol. 16, pl. 2.

[7 ]Y. B. 18 Ed. IV. Fol. 23, pl. 5 (1479).

[1 ]Chief Justice of the Common Pleas, 1471 to 1500.

[2 ]Thomas Frowyk, Chief Justice of the Common Pleas, 1502-1506.

[3 ]Anonymous, Keilwey, 77 a, 77 b. Pl. 25.

[4 ]See American Law Register, Vol. 56, Old Series, (47, New Series), (University of Pennsylvania Law Review) page 74, note 2.

[1 ]See Brian, C. J.’s opinion supra in Y. B. 18 Ed. IV. Fol. 23, pl. 5.

[2 ]Professor Langdell has thus explained the step by which a receiver to account could be made a debtor in II H. L. R. 253.

See American Law Register, Vol. 56, Old Series (47, New Series), (University of Pennsylvania Law Review) pages 74, 75, notes 4, 5.

Rastell’s Entries, p. 159, (London, 1670), contains two Counts in Debt by the beneficiary of which the following is a translation of the first:—

“Debt upon bailment by another to bail to the plaintiff. T. G. in mercy for several defaults, etc., the same T. was summoned to reply to J. N. of a plea that he render to him 40 s. which he owed him and wrongfully detains, etc., and, thereupon the same J. by his attorney, R. L., says that whereas a certain P. R., the last day of January of the thirty-first year of the reign of the present Lord the king, at B. had delivered to T. G. aforesaid 40 s. to pay and deliver to the same J. N. whenever the said T. G. should be required by the said J; nevertheless, T. G., though often requested, the said 40 s. to the said T. G., had not yet given but refused to deliver them and still refuses, whereby he says that he is injured and has damage to the value of four marks. And thereupon he brings his suit, etc.

[3 ]Dette, 129: “Debt by Wange & Bittinge where 10 pounds is paid to W. N. to my use I shall have action of debt or of account against W. N. and this agrees with an old book of entries of pleas.”

[1 ]Whorewood v. Shaw, Yelverton, p. 25, S. C. Moore 667, where the action appears to be upon a specialty.

[2 ]“In an action of Account against a Receiver upon a receipt of money by the hand of another person for account render (unless it be by the hands of his wife or his co-monk) the defendant shall not wage his law because the receipt is the ground of the action, which lieth not in privity between the plaintiff and defendant, but in the notice of a third person, and such a receipt is traversable.” Coke Inst. p. 295, Title of Releases. Lib. III, Chap. viii, Sec. 514 Ley Gager.

Coke’s statement is supported by Y. B. XV Ed. iv. fol. 16, pl. 2; Y. B. 38 Hen. vi, Fol. 9, pl. 11. Y. B. 47 Ed. III, Fol. 16, pl. 25. Y. B. xviii H. viii F. 3, pl. 15.

To the same effect see Brooke, Ley Gager, 1., 54.

Illustrations where there were accordingly jury trials in the case of accountants who had received money or other property at the hands of a stranger, are:

Huntley v. Fraunshane, Coke’s Entries, p. 47; S. C. Dyer, Folio 183, pl. (60); Cocket v. Robsert, 1 Lutwyche, p. 47, Title “Account”; Tresham v. Ford, Croke’s Eliz. 830 (1601).

Saunders, arguendo in Hodsden v. Harridge, 2 Saund. 65 (21 & 22 Car. II) said: “And this case may be compared to the case of an action of account, where if the plaintiff declare against the defendant on a receipt by other hands, the defendant shall be ousted of his law, on account of the presumption of law that the country had notice of it.”

[3 ]After Slade’s Case the decisions in Indebitatus Assumpsit in favor of the beneficiary eliminated any such mode of trial even if it was ever available to the plaintiff’s accountant when charged in Debt as debtor for money or goods bailed by a third person for plaintiff’s benefit and converted to the defendant’s use. The cases found by the writer where Debt was brought by the beneficiary are not explicit as to the denial of Ley Gager though such was probably the rule.

In Y. B. 38 H. VI. fol. 5. pl. 14, in a somewhat analogous situation (Debt on a balance found by auditors appointed by the plaintiff) two judges of the King’s Bench thought there ought to be no Ley Gager.

[1 ]The entire Record of this case is given in Andrews et ux. & Cocket v. Robsert, 1 Lutwyche, p. 47, title Account. The following is a translation of the pleadings:

Tho. Andrews & Anne Wife, & Arthur Cocket v. Arthur Robsert.

Arthur Robsert was summoned to answer unto Thomas Andrews and to Anne his wife and to Arthur Cocket, Gentleman, in a plea that he render unto them his reasonable account of the time in which he was receiver of the said Anne and Arthur, etc. And then the same Thomas is his proper person and the aforesaid Anne and the aforesaid Thomas C. by the same T. his attorney say that whereas the aforesaid Arthur Robsert on the day &c. year &c. at F. in the County aforesaid had received of the monies of the said Anne and Arthur Cocket when the said Anne was single, to wit by the hands of John Wase, Gent., £100 to account to the same Anne and Arthur Cocket when he should be requested to render the same thereunto, nevertheless the same Arthur Robsert though often requested his reasonable account aforesaid to the said Anne and Arthur Cocket, while the said Anne was sole or to the said Thomas, Anne and Arthur Cocket after the nuptials celebrated between them, did not render, but he refused to render it to them and still refuses, wherefore, &c.

And the aforesaid Arthur Robsert by W. C. his attorney comes and defends the force and injury whereof, &c. And he says that he never was his receiver of the aforesaid £100 nor of any penny thereof by the hand of the aforesaid John Wase to account thereof to the aforesaid Anne and Arthur Cocket when he should be requested to render an account as the aforesaid Thomas and Anne and Arthur Cocket have above declared against him. And of this &c.

[2 ]4 Rep. 927 (1602).

[3 ]The cases of the seventeenth century have been collected and discussed by the writer in American Law Register, Vol. 56, Old Series, (47 New Series), (University of Pennsylvania Law Review, page 73).

[1 ]“Parol Contracts Prior to Assumpsit,” by James Barr Ames, viii. Harvard Law Review, page 253, note 3; Essay No. 60, in this Collection.

[2 ]Langdell: “A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review, page 244 (1889).

[3 ]Langdell, “A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review, page 244 (1889). See 46 E. 3. f. 3, pl. 6.

[1 ]Langdell, “A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review, page 249.

[2 ]Paschall v. Keterich, Dyer, 152, note.

[3 ]1 Roll. Abr. Accompt (A) pl. 6.

[4 ]Fitzherbert Natura Brevium, Account [117] Q. Rolle Abr. Accompt (A) pl. 6.

[5 ]Thomas Bryan, Chief Justice of the Common Pleas, 1471 to his death in 1500.

[6 ]Y. B. 4 Hen. vii. Fol. 6, pl. 2.

[1 ]Ames’s “Parol Contracts Prior to Assumpsit,” viii Harvard Law Review, at page 260 (1894).

[2 ]Pollock and Maitland’s History of English Law, vol. ii, page 208.

[3 ]See note 1 supra.

[4 ]“The subject of a loan may be either a specific thing, as a horse or a given quantity of a thing which consists in number, weight, or measure, as money, sugar, or wine. In the former case it is of the essence of the transaction that the thing lent continue to belong to the lender: otherwise the transaction is not a loan.

“In the latter case, the thing lent may (and commonly does) cease to belong to the lender and become the property of the borrower, such a loan commonly being an absolute transfer of title in the thing lent from the lender to the borrower. The reason why such a transfer of title takes place is obvious. The object of borrowing is to have the use of the thing borrowed; but the use of things which consist in number, weight, or measure commonly consumes them; and this use, of course, the borrower cannot have unless he owns the things used. When such things are lent, therefore, it is presumed to be the intention of both parties, in the absence of evidence to the contrary, that the borrower shall acquire the title to them.

But why then call the transaction a loan? The answer is, that, in every particular except the transfer of title, it is a loan; that the title is transferred for the purpose of making the loan effective as such, and because it is immaterial to the lender whether he receives back the identical thing lent or something else just like it. Moreover, the difference between a loan of money, for example, and a loan of a specific article, is not commonly present to the minds of the parties; the lender of money thinks the money lent still belongs to him, and that the borrower has acquired only the right to use it temporarily; he is aware that the borrower is entitled to transfer to other persons the identical coins lent, and that he has the option of returning to him, the lender, either the identical coins borrowed or others like them; but he is not aware that these rights in the borrower are inconsistent with his retaining the title to the money lent. In other words, he supposes (and, in every view except the strict legal view, he is right in supposing) that he may own a given sum of money without owning any specified coins; and that the only substantial difference between money in his own coffer and money due to him is, that in the former case he has the possession, while in the latter he has not.

A debt, therefore, according to the popular conception of the term, is a sum of money belonging to one person (the creditor), but in the possession of another (the debtor). There is also much reason to believe that this popular conception of a debt was adopted by the early English law, at least for certain purposes. Thus, the action of debt (which was established for the sole and exclusive purpose of recovering debts of every description) was in the nature of an action in rem, and did not differ in substance from the action of detinue; the chief differences between them being that the latter was for the recovery of specified things belonging to the plaintiff, the former, of things not specified.” Langdell’s Summary of Contracts, Sections 99, 100.

[1 ]Year Book, 37 Hen. VI, pl. 18 page 8.

[1 ]Y. B. 12 & 13 Edw. III, 244. Ames’ Cases on Trusts, vol. i, p. 52.

[2 ]Banks v. Whetstone, 1 Dyer 22 b, note 137: “The chattel might be delivered to the bailee to be delivered to a third person, in which case the third person was allowed to maintain detinue against the bailee.”—“Ames’ Parol Contracts Prior to Assumpsit,” vi Harvard Law Review, at p. 258

[3 ]Langdell: “A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review, at page 245 (1889).

[1 ]Archdale v. Barnard, 1 Rolle Abr. p. 30, pl. 3.

[2 ]See American Law Register, Vol. 52, Old Series, (43 New Series), pages 776, 777, 778, 779.

[3 ]Hence the modern case Crow v. Rogers, 1 Strange, 592 (1724), presented no case of accountability or debt and the conclusion properly reached in that case does not impinge upon the doctrine of accountability to the beneficiary.

[4 ]Thus in Ritley v. Dennet, 1 Rolle’s Abridgment, p. 30 (Trin. 4 Jac. B. R.) the abridger states: “If C is indebted to A and D is indebted to N in the sum of 20 pounds and C at the request of D pays the 20 pounds for him to N, and directs D to pay so much over to A for him, and D in consideration of the premises, promises to pay the 20 pounds to A, A cannot save action on the case on this promise against D for he is a stranger to it and there is not consideration for any assumpsit to him.”

[1 ]In a number of decisions of New York, New Jersey and of Pennsylvania the beneficiary recovers though there is no trust. Professor Williston has criticized the Pennsylvania decisions as being “apparently an unwarranted extension of the law of trusts,” in 15 Harvard Law Review, p. 780, note 9. From this view the present writer dissents.

[1 ]“Parol Contracts Prior to Assumpsit,” viii Harvard Law Review, p. 258 (1894); Essay No. 60, in this Collection.

[2 ]Ib.

Year Book, 12 and 13 Edw. III, 244; Ames, Cases on Trusts, vol. i, page 52.

Banks v. Whetston, 1 Dyer, 22 b. note 137: “The chattel might be delivered to the bailee to be delivered to a third person, in which case the third person was allowed to maintain detinue against the bailee” Ames, “Parol Contracts Prior to Assumpsit,” vi Harvard Law Review, at page 258; Essay No. 60, in this Collection.

Langdell, “A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review at page 245 (1889).

[1 ]Langdell: ii Harvard Law Review, page 246.

[2 ]Archbishop of York v. Richard Osborn and Edward Gower, Cal. 94; Spence’s Equitable Jurisdiction, page 454.

[3 ]See Chancery Calendars.

[4 ]Y. B. 41 Ed. III, folio 10, pl. 5. Y. B. 47 Ed. III, folio 16, pl. 25.

[5 ]Y. B. 36 Hen. vi, Fol. 8, pl. 5.

[1 ]Ames’ Cases on Trusts, vol. i, p. 345, notes, 1 & 2.

[2 ]Spence’s Equitable Jurisdiction, p. 446.

[3 ]Spence’s Equitable Jurisdiction, page 445, citing Year Book II Hen. VIII, 24: “The king or lord by escheat cannot be seised to an use or trust for they are in the post and are paramount to the confidence.” Jenk. Ca. xcii.

[4 ]See Spence, page 456, note h (temp. Hen. VI).

[1 ]See Cases in Year Books, ante.

[2 ]“The repayment of an equivalent sum of money is equated, with the bold crudity of archaic legal thought, to the restitution of specific land or goods. Our Germanic ancestors could not conceive credit under any other form. After all, one may doubt whether the majority of fairly well-to-do people, even at this day, realize that what a man calls ‘my money in the bank’ is a mere personal obligation of the banker to him.” “Pollock’s Contracts in Early English Law,” vi Harvard Law Review, page 399 (1892).

[3 ]See ante, Cases in Year Books. See also Year Book 2 Hen. IV, pl. 50, folio 12.

[4 ]“The Origin of Uses,” by F. W. Maitland, viii Harvard Law Review, page 127 (1894); Pollock and Maitland’s History of English Law, vol. ii, pages 228-240.

[5 ]“The germ of agency is hardly to be distinguished from the germ of another institution which in our English law has an eventful future before it, the ‘use trust or confidence.’ In tracing its embryonic history we must first notice the now established truth that the English word use when it is employed with a technical meaning in legal documents is derived, not from the Latin word usus, but from the Latin word opus, which in old French becomes os or oes. True that the two words are in course of time confused, so that, if by a Latin document land is to be conveyed to the use of John, the Scribe of the Charter will write ad opus Johannis, or ad usum Johannis indifferently, or will perhaps adopt the fuller formula, ad opus et ad usum, nevertheless the earliest history of ‘the use’ is the early history of the phrase ad opus.”—Maitland, “The Origin of Uses,” viii Harvard Law Review, page 127.

[1 ]F. W. Maitland: “The Origin of Uses,” viii Harvard Law Review, page 134.

[1 ]F. W. Maitland, “The Origin of Uses,” viii Harvard Law Review, page 137.

[2 ]Year Book 10 Hen. VI, 6, pl. 19: “A man brought writ of debt against an executor and recovered and had fieri facias to the sheriff of London, and levied the money of the goods of the deceased. And the sheriff returned that he had no goods of the deceased, but that they had goods long time before the writ and he delivered and had sold the goods and converted the sum to their own oeps.”

Year Book 10 Hen. VI, 11, 38: “Bakington. The husband shall have good action in this case that you have put and it is not against reason that the husband shall be charged of this debt, for the freehold was in him as well as in the wife during the coverture, and all profits of the land he took to his own oeps.”

Year Book 4 Ed. III, 50 pl. 45: “One A brought his writ of account against G, de tempore quo fuit receptor denarr, and counted that he received 20 pounds to trade, etc., and of this good and legal account rendered, and said if he would deny it he had good suit, and see here the deed which witnesses it; and it was read and said that G had received 20 pounds of the aforesaid A and P, his wife to profit to the oeps of the aforesaid A and P, and bound themselves to pay 20 pounds on a certain day to the aforesaid A and P.”

Year Book 4 Ed III, 31 pl. 38 (last of case): “Thorpe. Say whether she administered as executrix, or not, as this writ charges; for peradventure if she claims all to her own oeps, and does not make distribution for alms, then she did not administer as executrix.”

[1 ]Langdell, “Brief Survey of Equity Jurisdiction,” ii. Harvard Law Review, pages 248, 249.

[1 ]This Essay originally formed two lectures delivered by the author in 1882 while professor in the Law School of Harvard University. They were first published in the Harvard Law Review, 1891, vol. IV, pp. 345-364, vol. V, pp. 1-23.

[2 ]A biographical note of this author is prefixed to Essay No. 41, in Vol. II of this Collection.

[1 ]Sampson v. Cranfield, 1 Bulstr. 157 (T. 9 Jac.).

[2 ]In Tort: Y. B. 32 Ed. I. 318, 320 (Harwood); 22 Ass. pl. 43, fol. 94; 11 H. IV. 90, pl. 47; 9 H. VI. 53, pl. 37; 21 H. VI. 39; 4 Ed. IV. 36; Dr. & Stud., II. c. 42; Seaman & Browning’s Case, 4 Leon. 123, pl. 249 (M. 31 Eliz.). Conveyance: Fitz. Abr. Annuitie, pl. 51 (H. 33 Ed. I.), where the maxim is quoted. Account: 4 Inst. 109.

[3 ]Gregory v. Piper, 9 B. & C. 591. Cf. The Common Law, 53, 54, and Lect. 3 and 4.

[4 ]Bower v. Peate, 1 Q. B. D. 321.

[5 ]Thöl, Handelsrecht, sect. 70, cited in Wharton, Agency, sect. 6.

[1 ]Parke, B., in Sharrod v. London & N. W. Ry. Co., 4 Exch. 580, 585 (1849); 1 Austin, Jurisprudence, Lect. 26, 3d ed., p. 513. Cf. The Common Law, 15, 16.

[2 ]Dansey v. Richardson, 3 El. & Bl. 144, 161.

[3 ]Scrimshire v. Alderton, 2 Strange, 1182 (H. 16 G. II). Cf. Gurratt v. Cullum (T. 9 Anne, B. R.), stated in Scott v. Surman, Willes, 400, at p. 405 (H. 16 G. II.), and in Buller, N. P. 42.

[1 ]The Common Law. 9, 15-20.

[1 ]Inst. 2, 9, § 5; D. 44, 7, 11; D. 45, 1. 126, § 2.

[2 ]Inst. 2, 9, esp. §§ 4, 5. Cf. D. 41, 1, 53.

[3 ]Inst. 3, 17; D. 41, 1, 53; D. 45, 1, 38, § 17.

[4 ]D. 43, 16, 1, §§ 11-13.

[5 ]Inst. 3, 17, pr. 18, in the older editions.

[6 ]D. 45, 1, 38, § 17, Elzevir ed. Gothofred. note 74. Cf. D. 44, 2, 4, note 17.

[7 ]The Common Law, 228.

[1 ]“Et etiam familiae appellatio eos complectitur qui loco servorum habentur, sicut sunt mercenarii et conductitii. Item tam liberi quam servi, et quibus poterit imperari.” Bract., fol. 171 b.

[2 ]Lib. I., Sect. 3, ad fin. “Of the Fact of Man.”

[1 ]Shelley & Barr’s Case, 1 Roll. Abr. 2, pl. 7 (M. 1 Car. I.).

[2 ]Bac. Abr., Master and Servant, K.; Smith’s Master & Servant, 3d ed., 260.

[3 ]Laugher v. Pointer, 5 B. & C. 547, 554 (1826). Cf. Bush v. Steinman, 1 Bos. & P. 404 (1799).

[4 ]Y. B. 19 H. VI. 31, pl. 59; 2 Roll. Abr. 546 (D).

[5 ]1 Roll. Abr. 2, pl. 7.

[6 ]Dial. de Scaccario II., c. 18; Bract., fol. 429 b; Y. B. 22 H. VI. 38, pl. 6; Litt. §§ 168, 191; 3 Salk. 46; Com. Dig. Baron & Feme (D); 1 Bl. Comm. 442.

[7 ]The Common Law, 375, n. 2, 401, n. 1.

[1 ]Simon Simeon’s Case, Y. B. 30 Ed. III. 14; s. c. ib. 6; 29 Ed. III. 48. I have seen no reason to change the views expressed in The Common Law, Lecture XI., to meet the suggestions of Prof. Ames in 3 Harv. Law Rev. 388, n. 6. Undoubtedly the letter of credit was known in the reign of Henry III. 1 Royal Letters, Hen. III. 315. But the modern theory of contract applied to letters of credit, in my opinion, was not the theory on which assigns got the benefit of a warranty. Norcross v. James, 140 Mass. 188.

[2 ]Y. B. 22, Ass. pl. 27, fol. 93; Co. Lit. 117 a.

[3 ]2 Levinz, 172; s. c. 3 Keble, 650, 1 Ventris, 295 (T. 28 Car. II.).

[1 ]2 Lev. 172.

[2 ]Sup., p. 346, n.

[1 ]Bract., fol. 115 a.

[2 ]“Tenebitur ille, in quibusdam partibus, de cujus fuerint familia et manupastu.” Bract., fol. 124 b; i. e., for the persons under his patria potestas. LL. Gul. I. c. 52; LL. Edw. Conf. c. 21 (al. 20).

[3 ]Corone, pl. 428 (8 Ed. II. It. canc.).

[4 ]Bract., fol. 158 b, 171 a, b, 172 b. Cf. Ducange, “Emenda.”

[1 ]St. 13 Ed. I., St. I, c. 2, § 3.

[2 ]c. 11, ad finem. “Et si custos gaole non habeat per quod justicietur vel unde solvat respondeat superior suus qui custodiam hujusmodi gaole sibi commisit per idem breve.”

[3 ]St. 28 Ed. I., c. 18.

[4 ]Dette, pl. 172 (M. 11 Ed. II.).

[5 ]4 Inst. 114; “45 E. 3, 9, 10. Prior datife et removeable suffer eschape, respondeat superior. 14 E. 4. Pur insufficiency del bailie dun libertie respondeat dominus libertatis. Vid. 44 E. 3, 13; 50 E. 3, 5; 14 H. 4, 22; 11 H. 6, 52; 30 H. 6, 32.”

[6 ]See the writ of H. 14 Ed. III. ex parte Remem. Regis, rot. 9, in Scacc. in 4 Inst. 114, and less fully in 2 Inst. 175. “Et quia ipse coronator electus erat per comitatum juxta formam statuti, etc. ita quod in defectu ejusdem coronatoris totus comitatus ut elector et superior, etc. (tenetur), habeant regi respondere, praecip (praeceptum fuit) nunc vic’ quod de terris et tenementis (hominum) hujusmodi totius comitatus in balliva sua fieri fac.” etc. See the other references in 4 Inst. 114, and further Y. B. 49 Ed. III. 25, 26, pl. 3.

[1 ]St. 2 H. VI., c. 10.

[2 ]Alford v. Eglisfield, Dyer, 230 b, pl. 56. The passage will be cited later in dealing with factors. See also Y. B. 27 H. VIII. 24, pl. 3.

[3 ]Parkes v. Mosse, Cro. Eliz. 181 (E. 32 Eliz.); Wheteley v. Stone, 2 Roll. Abr. 556, pl. 14; s. c. Hobart, 180; 1 Bl. Comm. 345, 346.

[1 ]Y. B. 49 Ed. III. 25, 26, pl. 3.

[2 ]Brevia Regis in Turr. London, T. 24 Ed. III., No. 45, Bristol, printed in Molloy, Book 2, ch. 3, § 16.

[3 ]St. 27 Ed. III., St. 2, cap. 19.

[1 ]The Common Law, 3, 4, 101-103. I do not mean as a matter of articulate theory, but as a natural result of the condition of things. As to very early principles of liability see now Dr. Brunner’s most learned and able discussion in Sitzungsberichte der kön. Preuss. Akademie der Wissensch. xxxv., July 10, 1890, über absichtlose Missethat im Altdeutschen Strafrechte. [Abstracted in Essay No. 66 of this Collection.—Eds.] Some of the cases mentioned by him, such as Beowulf, 2435, had come to my notice.

[2 ]See, e. g., Gascoigne in Y. B. 7 H. IV. 34, 35, pl. 1.

[3 ]Cf. Dr. & Stud. Dial. 2. c. 42 (ad 1530).

[4 ]Y. B. 9 H. VI. 53, pl. 37.

[5 ]Y. B. 13 H. VII. 15, pl. 10. Cf. Keilway, 3 b, pl. 7 (M. 12 H. VII.).

[6 ]Y. B. 2 H. IV. 18, pl. 6.

[7 ]Carthew, 425, shows that the Year Book was cited. And the language of Lord Holt, reported in 1 Ld. Raym. 264, shows that he had it before his mind.

[8 ]Brucker v. Fromont, 6 T. R. 659; M’Manus v. Crickett, 1 East, 106; Patten v. Rea, 2 C. B. n. s. 606.

[1 ]Y. B. 2 H. IV. 18, pl. 6.

[2 ]See also 1 Bl. Comm. 431; Noy’s Maxims, c. 44.

[3 ]Y. B. 21 H. VII. 14, pl. 21; The Common Law, 226.

[4 ]Y. B. 42 Ass., pl. 17, fol. 260; 42 Ed. III. 11, pl. 13.

[5 ]Y. B. 13 Ed. IV. 10, pl. 5; Southcote v. Stanley, 1 H. & N. 247, 250.

[1 ]Bract., fol. 124 b; LL. Gul. I., c. 48; LL. Edw. Conf., c. 23.

To the above illustrations of a man’s responsibility within his house, add that of a vassal for attempts on the chastity of his lord’s daughter or sister “tant com elle est Damoiselle en son Hostel,” in Ass. Jerusalem, ch. 205, 217, ed. 1690. The origin of the liability of innkeepers never has been studied, so far as I know. Beaumanoir, c. 36, seems to confine the liability to things intrusted to the innkeeper, and to limit it somewhat even in that case, and to suggest grounds of policy. The English law was more severe, and put it on the ground that the guest for the time had come to be under the innkeeper’s protection and safety. 42 Ass., pl. 17, fol. 260. A capias was refused on the ground that the defendant was not in fault, but an elegit was granted. 42 Ed. III. 11, pl. 13. Notwithstanding the foregoing reason given for it, the liability was confined, at an early date, to those exercising a common calling (common hostler). 11 Hen. IV. 45, pl. 18. See The Common Law, 183-189, 203. See further, 22 Hen. VI. 21, pl. 38; ib. 38, pl. 8. And note a limitation of liability in cases of taking by the king’s enemies, similar to that of bailees. Plowden, 9, and note in margin; The Common Law, 177, 182, 199, 201. The references to the custom of England, or to the lex terræ, are of no significance. The Common Law, 188. See further, the titles of Glanville and Bracton. Other citations could be given if necessary.

[2 ]Smith v. Shepherd, Cro. Eliz., 710; M. 41 & 42 Eliz. B. R.

[3 ]The most important is Lord North’s case, Dyer, 161 a (T. 4 & 5 Phil. & M.); but there the master was a bailee bound to return at his peril (cf. The Common Law, 175-179). In Dyer, 238 b, pl. 38 (E. 7 Eliz.), a customer of a port was said to be liable to the penalties for a false return, although he made it through the concealment of his deputy. One or both of these cases are cited in Waltham v. Mulgar, Moore, 776; Southern v. How, Popham, 143; Boson v. Sandford, 1 Shower, 101; Lane v. Cotton, 12 Mod. 472, 489, etc.

[1 ]Waltham v. Mulgar, Moore 776 (P. 3 Jac. I.).

[2 ]Southern v. How, Cro. Jac. 468; s. c. Popham, 143; 2 Roll. Rep. 5, 26; Bridgman, 125, where the special verdict is set forth.

[3 ]Cremer v. Humberston, 2 Keble, 352 (H. 19 & 20 Car. II.).

[4 ]Lane v. Cotton, 1 Salk. 17, 18; s. c. 1 Ld. Raym. 646, Com. 100 (P. 12 W. III.).

[1 ]Saunderson v. Baker, 3 Wilson, 309 s. c. 2 Wm. Bl. 832; (T. 12 G. III. 1772).

[2 ]Ackworth v. Kempe, Douglas, 40, 42 (M. 19 G. III. 1778).

[3 ]1 Bl. Comm. 345, 346.

[4 ]2 T. R. 148, 154 (1787).

[5 ]1 Shower, 101, 107 (M. 2 W. III.).

[6 ]1 Ld. Raym. 264 (M. 9 W. III.); s. c. 3 id. 250, Carthew, 425, Com. 32, 1 Salk. 13, Skinner, 681, 12 Mod. 151, Comb. 459, Holt, 9.

[7 ]Jones v. Hart, 2 Salk. 441; s. c. 1 Ld. Raym. 738, 739 (M. 10 W. III.); Middleton v. Fowler, 1 Salk. 282 (M. 10 W. III.); Hern v. Nichols, 1 Salk. 289.

[8 ]Brucker v. Fromont, 6 T. R. 659; M’Manus v. Crickett, 1 East, 106; Patten v. Rea, 2 C. B. n. s. 606 (1857).

[1 ]Lane v. Cotton, 1 Salk. 17, 18.

[2 ]See also Noy’s Maxims, c. 44.

[3 ]Bl. Comm. 431, 432.

[4 ]Cremer & Tookley’s Case, Godbolt, 385, 389 (Jac. I.); Laicock’s Case, Latch, 187 (H. 2 Car. I.).

[1 ]Shelley & Burr, 1 Roll. Abr. 2, pl. 7 (M. 1 Car. I.). Cf. 1 Bl. Comm. 431; Com. Dig., Action on the case for negligence, A. C.

[2 ]Roll. Abr. 95 (T.), citing no authority, and adding. “Contra, 9 Hen. VI. 53 b.” The contradiction is doubtful.

[3 ]Anon., 1 Mod. 209, 210 (H. 27 & 28 Car. II.). Cf. Barker v. Braham, 2 W. Bl. 866, 869.

[4 ]Lane v. Cotton, 12 Mod. 472, 488, T. 13 W. III. Cf. Mors v. Slew, 3 Keble, 135 (23 & 24 Car. II., 1671, 1672); also Mires v. Solebay, 2 Mod. 242, 244 (T. 29 Car. II.), for an exception by Scroggs, C. J.

[5 ]Sands v. Childs, 3 Lev. 351, 352; Perkins v. Smith, 3 Wilson, 328 (1752).

[6 ]1 Bl. Comm. 431; Bac. Abr., Master & Servant, K. It is enough simply to refer to the law as to the liability of married women.

[1 ]Y. B. 27 Ass., pl. 5, fol. 133; Anon., 1 Shower, 95; Nickson v. Brohan, 10 Mod. 109, etc.

[1 ]Inst. 3, 17, pr. See Gaius, 3, §§ 164-166.

[2 ]“Videndum etiam est per quas personas acquiratur obligatio, et sciendum quod per procuratores, et per liberos, quos sub potestate nostra habemus, et per nosmetipsos, et filios nostros et per liberos homines servientes nostros.” Bract., fol. 100 b. So, “Etiam dormienti per servum acquiritur, ut per procuratorem, si nomine domini stipuletur.” Bract., fol. 28 b.

[3 ]Y. B. 8 H. V. 4, pl. 17.

[4 ]Seignior & Wolmer’s Case, Godbolt, 360 (T. 21 Jac.). Cf. Jordan’s Case, Y. B. 27 H. VIII. 24, pl. 3.

[5 ]Drope v. Theyar, Popham, 178, 179 (P. 2 Car. I.).

[6 ]Hunter v. Parker, 7 M. & W. 322, 343 (1840); Combes’s Case, 9 Rep. 75 a, 76 b, 77 (T. 11 Jac.). The fiction of identity between principal and agent was fully stated by Hobbes, who said many keen things about the law. Leviathan, Part I. ch. 16. “Of Persons, Authors, and things Personated.” Also De Homine, I. c. 15. De Homine Fictitio.

[7 ]1 Bl. Comm. 429, note.

[1 ]Fitz. Abr. Dett, pl. 3 (T. 2 R. II.). Cf. Alford v. Eglisfield, Dyer, 230 b (T. 6 Eliz.), and notes.

[2 ]2 Strange, 1182.

[3 ]Willes, 400, at p. 405 (H. 16 G. II.).

[4 ]Also reported in Buller, N. P. 42. Cf. Whitecomb v. Jacob, 1 Salk. 160 (T. 9 Anne).

[1 ]Gonzales v. Sladen; Thorp v. How (H. 13 W. III.); Buller, N. P. 130.

[2 ]See Goodbaylie’s Case, Dyer, 230 b, pl. 56, n.; Truswell v. Middleton, 2 Roll. R. 269, 270. Note, however, the insistence on the servant being known as such in Fitz. Abr. Dett, pl. 3; 27 Ass., pl. 5, fol. 133.

[3 ]Consider the doubt as to ratifying a distress made “generally not showing his intent nor the cause wherefore he distrained” in Godbolt, 109, pl. 129 (M. 28 & 29 Eliz.). Suppose the case had been contract instead of tort, and with actual authority, would the same doubt have been felt?

[4 ]Sims v. Bond, 5 B. & Ad. 389, 393 (1833). Cf. Bateman v. Phillips, 15 East, 272 (1812).

[1 ]Berkshire Glass Co. v. Wolcott, 2 Allen (Mass.), 227.

[2 ]Spurr v. Cass, L. R. 5 Q. B. 656. See further, Sloan v. Merrill, 135 Mass. 17, 19.

[3 ]Cf. The Common Law, ch. x. and xi. “Unsere heutigen Anschauungen . . . können sich nur schwer in ursprüngliche Rechtszustände hineinfinden, in welchen . . . bei Contrahirung oder Zahlung einer Schuld die handelnden Subjecte nicht als personae fungibiles galten.” Brunner, Zulässigkeit der Anwaltschaft im französ. etc. Rechte. (Zeitschr. für vergleich. Rechtswissenschaft.) Norcross v. James, 140 Mass. 188, 189.

[1 ]Bateman v. Phillips, 15 East, 272 (1812); Garrett v. Handley, 4 B. & C. 664 (1825); Higgins v. Senior, 8 M. & W. 834, 844 (1841).

[2 ]11 Ad. & El. 595; s. c. 3 P. & D. 267, 271 (1840); 2 Sm. L. C., 8th ed., 408, note to Thompson v. Davenport; Byington v. Simpson, 134 Mass. 169, 170.

[1 ][H. Brunner, Early History of the Attorney in English Law, translated in Illinois Law Review, 1908, III. 257.—Eds.]

[2 ]The Common Law, 359. See Brunner, in 1 Holtzendorff, Encyc. II. 3, A. 1, § 2, 3d ed., p. 166. 1 Stubbs, Const. Hist. 82.

[1 ]“Attornatus fere in omnibus personam domini representat.” Bract., fol. 342 a. See LL. Hen. I. 42, § 2.

[2 ]Bract., fol. 342 a. Cf. Glanv. XI., c. 3.

[3 ]Anon., 1 Mod. 209, 210 (H. 27 & 28 Car. II.).

[4 ]Parsons v. Loyd, 3 Wils. 341, 345; s. c. 2 W. Bl. 845 (M. 13 G. III. 1772); Barker v. Braham, 2 W. Bl. 866, 868, 869; s. c. 3 Wils. 368.

[5 ]Bates v. Pilling, 6 B. & C. 38 (1826)

[6 ]The Common Law, 228, n. 3, 181. See further generally, 230, and n. 4, 5.

[1 ]Alford v. Eglisfield, Dyer, 230 b, pl. 56.

[2 ]Holiday v. Hicks, Cro. Eliz. 638, 661, 746. See further, Malyne’s Lex Merc., Pt. I. c. 16; Molloy, Book 3, c. 8, § 1; Williams v. Millington, 1 H. Bl. 81, 82.

[3 ]Southern v. How, Cro. Jac. 468; s. c. Popham, 143.

[4 ]Hern v. Nichols, 1 Salk. 289.

[5 ]Mors v. Slew, 3 Keble, 72.

[6 ]Smith, Master and Servant, 3d ed., 266.

[7 ]P. 228 et seq.

[8 ]1 Bl. Comm. 427.

[1 ]The Common Law, 228; Gaius, 3, §§ 164-166.

[2 ]Inst. 2. 9, §§ 4, 5; C. 7. 32. 1.

[3 ]Littleton, § 177. Cf. Bract. fol. 191 a; Y. B. 22 Ass., pl. 37, fol. 93; Litt., § 172; Co. Lit. 117 a.

[4 ]Bract., fol. 28 b, 42 b, 43, etc.; Fleta, IV., c. 3, § 1, c. 10, § 7, c. 11, § 1.

[5 ]Wheteley v. Stone, 2 Roll. Abr. 556, pl. 14; s. c. Hobart, 180; Drope v. Theyar, Popham, 178, 179.

[6 ]The Common Law, 227.

[7 ]The Common Law, 174, 211, 221, 243; Hallgarten v. Oldham, 135 Mass. 1, 9.

[8 ]Y. B. 13 Ed. IV. 9, 10, pl. 5; 21 H. VII. 14, pl. 21.

[9 ]The Common Law, 227, n. 2. The distinction mentioned above, under torts, between servants in the house and on a journey, led to the servant’s being allowed an appeal of robbery, without prejudice to the general principle. Heydon & Smith’s Case, 13 Co. Rep. 67, 69; Drope v. Theyar, Popham, 178, 179; Combs v. Hundred of Bradley, 2 Salk. 613, pl. 2; ib., pl. 1.

[10 ]2 Bish. Crim. Law, § 833, 7th ed.

[11 ]The Common Law, 174, 243.

[1 ]2 East, P. C. 652, 653.

[2 ]Kelyng, 39.

[3 ]Bristow v. Whitmore, 4 De G. & J. 325, 334.

[4 ]Lord v. Price, L. R. 9 Ex. 54; Owen v. Knight, 4 Bing. N. C. 54, 57.

[5 ]The Common Law, 233.

[6 ]Bract., fol. 207 a. Cf. ib., 220. Heusler, Gewere, 126.

[1 ]D. 43, 16, 1, §§ 12, 14. Cf. D. 46, 3, 12, § 4.

[2 ]D. 43, 26, 13 (Pomponius).

[3 ]Bract., fol. 171 b.

[4 ]Fol. 158 b, 159 a.

[5 ]Fol. 171. But note that by ratification “suam facit injuriam, et ita tenetur ad utrumque, ad restitutionem, s. [et] ad pœnam.” Ibid. b.

[6 ]Y. B. 30 Ed. I. 128 (Horwood) (where, however, the modern doctrine is stated and the Roman maxim is quoted by the judge); 38 Ass., pl. 9, fol. 223; s. c. 38 Ed. III. 18; 12 Ed. IV. 9, pl. 23; Plowden, 8 ad fin., 27, 31.

[7 ]Y. B. 7 H. IV. 34, 35, pl. 1.

[1 ]Godbolt, 109, 110, pl. 129; s. c. 2 Leon. 196, pl. 246 (M. 28 & 29 Eliz.); Hull v. Pickersgill, 1 Brod. & B. 282; Muskett v. Drummond, 10 B. & C. 153, 157; Buron v. Denman, 2 Exch. 167 (1848); Secretary of State in Council of India v. Kamachee Boye Sahaba, 13 Moore, P. C. 22 (1859), 86; Cheetham v. Mayor of Manchester, L. R. 10 C. P. 249; Wiggins v. United States, 3 Ct. of Cl. 412. But see Bro. Abr., Trespass, pl. 86; Fitz. Abr., Bayllie, pl. 4.

[2 ]Wolff v. Horncastle, 1 Bos. & P. 316 (1798). See further, Spittle v. Lavender, 2 Brod. & B. 452 (1821).

[3 ]Bract. 159 a, 171 b; Bro., Trespass, pl. 113; Bishop v. Montague, Cro. Eliz. 824; Gibson’s Case, Lane, 90; Com. Dig., Trespass, c. 1; Sanderson v. Baker, 2 Bl. 832; s. c. 3 Wils. 309; Barker v. Braham, 2 Bl. 866, 868; s. c. 3 Wils. 368; Badkin v. Powell, Cowper, 476, 479; Wilson v. Tumman, 6 Man. & Gr. 236, 242; Lewis v. Read, 13 M. & W. 834; Buron v. Denman, 2 Exch. 167, 188; Bird v. Brown, 4 Exch. 786, 799; Eastern Counties Ry. v. Broom, 6 Exch. 314, 326, 327; Roe v. Birkenhead, Lancashire, & Cheshire Junction Ry., 7 Exch. 36, 44; Ancona v. Marks, 7 H. & N. 686, 695; Perley v. Georgetown, 7 Gray, 464; Condit v. Baldwin, 21 N. Y. 219, 225; Exum v. Brister, 35 Miss. 391; G. H. & S. A. Ry. v. Donahoe, 56 Tex. 162; Murray v. Lovejoy, 2 Cliff. 191, 195. (See 3 Wall. 1, 9.)

[4 ]Co. Lit. 207 a; 4 Inst. 317. It is comparatur in 30 Ed. I. 128; Bract. 171 b.

[1 ]Buron v. Denman, 2 Exch. 167 (1848).

[2 ]Ratification had a meaning, of course, when the usual remedy for wrongs was a blood-feud, and the head of the house had a choice whether he would maintain his man or leave him to the vengeance of the other party. See the story of Howard the Halt, 1 Saga Library, p. 50, ch. 14, end. Compare “although he has not received him” in Fitz. Abr., Corone, pl. 428, cited 4 Harv. Law Rev. 355.

[3 ]Sext. Dec. 5. 12. de Reg. Jur. (Reg. 9). It made the difference between excommunication and a mere sin in case of an assault upon one of the clergy. Ibid. 5, 11, 23.

[4 ]2 Exch. 167.

[1 ]Supra, pp. 401, 402, n. See also Fuller & Trimwell’s Case, 2 Leon. 215, 216; New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381, 382; Bract., fol. 28 b, 100 b.

[1 ]Among the facts upon which stress have been laid are the following: 1. Choice. Kelly v. Mayor of New York, 11 N. Y. 432, 436. See Walcott v. Swampscott, 1 Allen, 101, 103. But although it is true that the employer has not generally the choice of the contractor’s servants, he has the choice of the contractor, yet he is no more liable for the contractor’s negligence than for that of his servant. 2. Control. Sadler v. Henlock, 4 El. & Bl. 570, 578 (1855). Yet there was control in the leading case of Quarman v. Burnett, 6 M. & W. 499 (1840), where the employee was held not to be the defendant’s servant. Cf. Steel v. Lester, 3 C. P. D. 121 (1877). 3. A round sum paid. But this was true in Sadler v. Henlock, sup., where the employee was held to be a servant. 4. Power to discharge. Burke v. Norwich & W. R. R., 34 Conn. 474 (1867). See Lane v. Cotton, 12 Mod. 472, 488, 489. But apart from the fact that this can only be important as to persons removed two stages from the alleged master, and not to determine whether a person directly employed by him is a servant or contractor, the power to discharge a contractor’s servants may be given to the contractee without making him their master. Reedie v. London & Northwestern Ry. Co., 4 Exch. 244, 258. Robinson v. Webb, 11 Bush (Ky.), 464. 5. Notoriously distinct calling. Milligan v. Wedge, 12 Ad. & E. 737 (1840); Linton v. Smith, 8 Gray (Mass.), 47. This is a practical distinction, based on common-sense, not directly on a logical working out of the theory of agency. Moreover, it is only a partial test. It does not apply to all the cases.

In doubtful cases the matter seems now to be left to the jury, that ever-ready sword for the cutting of Gordian knots, as difficult questions of law generally are.

[1 ]Littledale, J., in Laugher v. Pointer, 5 B. & C. 547, 553 (T. 7 G. IV. 1826).

[1 ]Bolingbroke v. Swindon Local Board, L. R. 9 C. P. 575 (1874). Cf. Lewis v. Read, 13 M. & W. 834; Haseler v. Lemoyne, 5 C. B. n. s. 530.

[2 ]Howe v. Newmarch, 12 Allen, 49 (1866). See also cases as to fraud, inf., and cf. Craker v. Chicago & N. W. Ry. Co., 36 Wisc. 657, 669 (1875).

[1 ]Cf. Harlow v. Humiston, 6 Cowen, 189 (1826).

[2 ]Hern v. Nichols, 1 Salk. 289.

[3 ]Houldsworth v. City of Glasgow Bank, 5 App. Cas. 317, 326, 327 (1880).

[4 ]L. R. 2 Ex. 259.

[1 ]Laugher v. Pointer, 5 B. & C. 547, 553. See Williams v. Jones, 3 H. & C. 602, 609.

[2 ]3 Q. B. 58, 67; s. c. reversed on another ground, but admitting this principle, ib. 77 and 1009, 1010 (1842).

[3 ]5 App. Cas. 317. See The Common Law, p. 231.

[4 ]6 M. & W. 358 (1840). It is not necessary to consider whether the case was rightly decided or not, as I am only concerned with this particular ground.

[5 ]Udell v. Atherton, 7 H. & N. 172, 184 (1861).

[1 ]Rabone v. Williams, 7 T. R. 360 (1785); George v. Clagett, 7 T. R. 359 (1797); Carr v. Hinchliff, 4 B. & C. 547 (1825); Borries v. Imperial Ottoman Bank, L. R. 9 C. P. 38 (1873); Semenza v. Brinsley, 18 C. B. n. s. 467, 477 (1865); Ex parte Dixon, 4 Ch. D. 133.

[2 ]Armstrong v. Stokes, L. R. 7 Q. B. 598, 610; Irvine v. Watson, 5 Q. B. D. 414.

[3 ]See Metcalf v. Williams, 144 Mass. 452, 454, and cases cited.

[4 ]Doughaday v. Crowell, 3 Stockt. (N. J.) 201; Bird v. Brown, 4 Exch. 788, 799.

[5 ]Bird v. Brown, 4 Exch. 788.

[6 ]Doe v. Goldwin, 2 Q. B. 143.

[7 ]Ancona v. Marks, 7 H. & N. 686.

[8 ]Seignior and Wolmer’s Case, Godbolt, 360.

[1 ]Gregory v. Piper, 9 B. & C. 591.

[2 ]Brucker v. Fromont, 6 T. R. 659 (1796).

[3 ]Comstock, Ch. J., in Bennett v. Judson, 21 N. Y. 238 (1860); acc. Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259 (1867).

[4 ]Andrew v. Howard, 36 Vt. 248 (1863); May v. Bliss, 22 Vt. 477 (1850).

[5 ]Sharrod v. London & N. W. Ry. Co., 4 Exch. 580, 585 (1849). Cf. Morley v. Gaisford, 2 H. Bl. 442 (1795).

[1 ]The same reason is given in M’Manus v. Crickett, 1 East, 106, 108 (1800). Compare 1 Harg. Law Tracts, 347; Walcott v. Swampscott, 1 Allen, 101, 103; Lane v. Cotton, 12 Mod. 472, 488, 489.

[2 ]Dansey v. Richardson, 3 El. & Bl. 144, 161. See p. 406.

[3 ]M’Manus v. Crickett, 1 East. 106, 110 (1800); Brucker v. Fromont, 6 T. R. 659 (1796).

[4 ]Ogle v. Barnes, 8 T. R. 188 (1799). Cf. Leame v. Bray, 3 East, 593 (1803).

[5 ]New Orleans, Jackson, & Great Northern R. R. Co. v. Bailey, 40 Miss. 395, 452, 453, 456 (1866); acc. Atlantic & G. W. Ry. Co. v. Dunn, 19 Ohio St. 162.

[1 ]Hagar v. Providence & Worcester R. R., 3 R. I. 88 (1854): Cleghorn v. New York Central & Hudson River R. R., 56 N. Y. 44 (1874). Cf. Craker v. Chicago & N. W. R. R., 36 Wis. 657 (1875).

[1 ]See Williams v. Jones, 3 H. & C. 256, 263; 1 Harg. Law Tracts, 347.

[2 ]Cf. what is said as to common carriers in The Common Law, 204, 205.