Front Page Titles (by Subject) 59.: JAMES BARR AMES, THE HISTORY OF ASSUMPSIT 1 - Select Essays in Anglo-American Legal History, vol. 3
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59.: JAMES BARR AMES, THE HISTORY OF ASSUMPSIT 1 - Committee of the Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 
Select Essays in Anglo-American Legal History, by various authors, compiled and edited by a committee of the Association of American Law Schools, in three volumes (Boston: Little, Brown, and Company, 1909). Vol. 3.
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THE HISTORY OF ASSUMPSIT1
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.
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
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.
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.
[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.”
[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.