Front Page Titles (by Subject) 62.: CRAWFORD DAWES HENING, HISTORY OF THE BENEFICIARY'S ACTION IN ASSUMPSIT 1 - Select Essays in Anglo-American Legal History, vol. 3
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62.: CRAWFORD DAWES HENING, HISTORY OF THE BENEFICIARY’S ACTION IN 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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HISTORY OF THE BENEFICIARY’S ACTION IN ASSUMPSIT1
“The true interest of the topic of Procedure is derived from the manner in which the tribunals have contrived from time to time to effect changes in the substance of the law itself, under cover of merely modifying the methods by which it is enforced.”—Holland: “Elements of Jurisprudence,” chap. xv. page 267 (1888).
MODERN English law, in a familiar line of decisions since the year 1724, has pronounced against the right of a third person, not a party to a contract, to maintain an action of assumpsit upon the contract, even though it was made for his benefit.3
Upon examination of these cases, the following questions are presented:
Is there any substantive right by which the beneficiary of a contract can enforce a part from the action of assumpsit?
Is the denial of the beneficiary’s right in the cases of assumpsit due to a judicial denial of the existence of such a substantive right; or is the inability of the beneficiary to recover due in reality to certain technicalities of procedure or principles of substantive law incident and peculiar to the action of assumpsit itself?
If, apart from assumpsit, there is such a substantial right of a beneficiary, what is its basis, its scope, and its limitations, and in what formal procedure or actions is it enforceable? At the present day, “Whatever disadvantages the English law on the question may have, it has at least the merit of definiteness. A beneficiary has no legal rights.”1 That the modern English judicial conscience finds satisfaction in this conclusion may be seen from the exclamation of Crompton, J.: “It would be a monstrous proposition to say that a person was a party to the contract for the purpose of suing upon it for his own advantage, and not a party to it for the purpose of being sued.”2 But why “monstrous,” if conformable to the contractors’ intent?
That the modern English courts in preventing this monstrosity believe they have not sacrificed any cherished English judicial principle appears from the repeated assurances of the modern English judges that the beneficiary cannot recover because he is “a stranger to the consideration,” and because “he is not a party to the contract.”3
Unfortunately, for judicial uniformity, the monstrosity of the proposition that a person may be entitled to sue on a contract without being himself liable to suit thereon, never shocked any judicial conscience in England until 1861.
It can be shown (conclusively, I submit), that outside of assumpsit this so-called “monstrosity” has been the law of England for five hundred years.
The line of approach in investigating the common law on this subject, lies in challenging and demanding proof for the propositions so often asserted, that:
(1) No one can recover on a contract except the person who furnishes the consideration.
(2) No one can recover on a contract except the promisee.
We find both these propositions asserted in the English decisions in the action of assumpsit. That the foregoing two propositions are invariably discussed solely from the stand-point of the action of assumpsit is apparent from any study of the opinions of the leading text-writers.
There is, however, no consensus of opinion among text-writers with respect to the truth of both propositions.1 And there is hardly any unanimity of judicial opinion among common law judges to-day upon any point involved in the subject of the beneficiary.1
That various courts of common-law origin, professedly expounding and administering that law, should reach not only contrary conclusions on this problem, but conclusions involving fundamentally antagonistic conceptions of the doctrine of Contract and of Consideration, provokes the inquiry whether the common law on the subject of the right of action of a stranger to the contract has ever been fully investigated, ascertained and presented.
So far as the question is a legal and not an equitable question, nearly all text-writers of the present day on contracts, attempt to solve the problem of the beneficiary’s right of action by the aid of or in conformity to the doctrine of consideration in special assumpsit, i. e., as a question of the law and procedure in special assumpsit. In reality, the question is one of the general substantive contract law of England and of the States inheriting that law. In point of fact, all the decisions usually cited on the right of action of the beneficiary are decisions in actions of special assumpsit and, hence, these decisions turn on the doctrine of consideration, and are controlled and limited by the judicial interpretations of that doctrine.
The citations of these assumpsit decisions therefore, proves nothing beyond the action of assumpsit; and because by the very nature of such actions they rest on the doctrine of consideration (which invariably requires that no one who has not furnished the consideration, or, at least, that no one who is not the promisee, shall have the right to maintain assumpsit), these decisions are convincing to only those who regard contract and assumpsit as identical concepts.
The real question is, however, a much broader one. Is there any substantive right of action conferred by the common law of England on the beneficiary of a contract independent of assumpsit and therefore independent of the doctrine of consideration, i. e., independent of his having furnished the consideration and of his being the promisee? “An English misunderstanding or perversion of the common law is not necessarily our law.”
The doctrine of consideration was, of course, unheard of in England until the reigns of Henry VII, Henry VIII and Elizabeth, when it came into vogue gradually, in the extension of the action on the case to promises previously unenforceable. “The name ‘consideration’ appears only about the beginning of the sixteenth century, and we do not know by what steps it became a settled term of art.”1 Outside of the action on the case and its derivative special assumpsit, it is familiar law that the doctrine of consideration was never recognized and had never been heard of or applied.
But the right of action of the beneficiary was an established right long before the doctrine of consideration existed. The right of action of the beneficiary was previously recognized and firmly established in the ancient actions of account and of debt, years before the rise of the action of Case on “Promises.” The doctrine that neither Case nor assumpsit would lie except for a consideration, and finally the definition of consideration as consisting in a detriment suffered by the plaintiff who must be the promisee, had obviously no place in the action of debt where “there was no theory of consideration, and therefore, of course, no limit to either the action or the contract based upon the nature of the consideration received.”1 No more was there any conception of “Consideration” (as we now have come to accept the term) in the action of Account.
The relation of consideration in special assumpsit to the rights of third parties will be discussed later. We shall first deal with account and debt, where consideration was of course, unknown, and examine the cases giving the beneficiary a right to sue in those actions.
THE ACTIONS OF ACCOUNT AND OF DEBT, AND THE RIGHT OF ACTION OF THE BENEFICIARY IN EACH
Before discussing the principles governing the beneficiary’s right of action in Account, let us examine the facts in a number of cases where the right was recognized.
In the fourteenth century the writ of account was in common use wherever the plaintiff had constituted the defendant either his customary bailiff or his bailiff pro hac vice, to sell goods, or his receiver to take money from third persons.
This use of the writ of account is at least six hundred years old.2 The plaintiff counted upon the fact that he had bailed merchandise to the defendant to sell, that the defendant had sold the goods and had received divers sums of money at the hands of divers mentioned persons, and a count was useless if it failed to mention definitely by whose hands the defendant received the monies, unless he was the plaintiff’s duly constituted bailiff.1
From this use of the writ of account by the lord or master against the steward or servant2 is to be traced its use by the beneficiary.
The customary bailiff’s receipt of the property and monies were received under a prior authority from the lord to act as bailiff or to receive. Suppose, however, a stranger without previous authority from the lord received his rents from the hands of his tenants, they directing payment to be made to their lord? The common law at length impressed upon this transaction the fiction of the lord and bailiff and held the bailee accountable to the beneficiary. In 1368 (41 Ed. III) in an action of account involving another point, and the issue being whether account or debt would lie, Cavendish1 (then Sergeant) argued: “If I bail certain moneys to you to bail to John, he shall have writ of account because the property is in him immediately when you receive them by my hand, and he cannot have account by writ of debt.”2 This assertion of Cavendish was unchallenged and he speaks of John’s right to an account as familiar law.
But this same year that first of the abridgers of the Common law, Nicholas Statham (or perhaps we should say, Baron Statham)3 queried, “Whether he to whom the bailment ought to have been made shall have action of account.”4
In Michaelmas 1374, Y. B., 47 Ed. III, Fol. 16, pl. 25, such an action was brought and the defendant pleaded that the person at whose hands the alleged receipt was had, was a co-monk with the plaintiff, the Abbot of Wanerle, but was not named as co-monk. This defence was allowed to be made, and this judgment points to the conclusion that the action of account was then clearly maintainable, unless there was a plea filed good in law to bar this action of account, but that otherwise, this declaration was good.5
Flowing from out this marshland the stream almost immediately appears, running clear, distinct, in a fixed course between well defined banks. As the following decision of 1379 is the earliest now accessible to the writer and probably one of the earliest that can be found, the full report of it by Fitzherbert1 is reprinted. In the Common Pleas:
“Account against one J. D. and counts that he received of him ten marks to bargain by the hand of one Rauffe Barnerde to profit and merchandize.
“Clopton. We say that for certain business which the town of B. had to transact with the plaintiff, the people of the town sent to us ten marks by the said R. B. by whose hands, &c., to carry to him who is now plaintiff, whereupon we come to him who is now plaintiff and to carry the money to him as messenger and you see here is the money taken, absque hoc that we were his receiver of this money in another manner. Judgment if we ought to account, &c.
“Hols. And we (ask) judgment, &c., since you have admitted the receipt and we pray for an account and damages for the detention, &c.
“Bel.2 It is positive law that a man shall not have damages in a writ of account, and of the balance he has admitted by his reply that he was only a messenger wherefore he was not accountable by the law in respect of any profit of this in so much as he has made tender of the money and still by the law he cannot have any other action except by writ of account to recover the money because the receipt was not for the purpose of merchandizing but as messenger he received the money; but if the receipt had been to profit and merchandize, the plaintiff would stand as well for the loss as for the gain. Wherefore I put this case that my bailiff of my manor receives my rents of my lands and retains the money in his hands for two or three years, I shall have no other remedy except by writ of account and in this suit I shall have nothing except the money which he received, and he shall account for no profit coming from it during the same time because he has no authority to put out the money in merchandizing either to gain or to lose wherefore will you have the money or not?
“Persey.1 If I am receiver of your monies &c. to merchandize with and I retain them in my hand without putting them to merchandize so that I do not lose or gain anything shall I not be obliged to account for the profits of them?
“Belk. Yes, certainly you can show on the account that you could have put the monies to merchandize and profit for us and if you cannot be excused in respect of it by oath or in some other way, you will be charged with reasonable profit &c. quod.
“Skipwith.2 That is agreed because he received the money to put them to merchandize but not so here because he never had authority to put them out of his hand.
“Belk. If I am debtor to Sir Henry Persey in 20 pounds and I bail the money to J. Holt to pay it to him, if J. Holt does not pay the money to him he shall have action of account against him and no other action, but by this action, he shall have only the same money though he has detained it for ten years. Quod fuit concessum, and then.
“Belk said: take the money, because you shall have no other answer for us and it shall be entered upon the record that you have received them and neither of you shall be amerced, wherefore the defendant comes the first day and the plaintiff shall have good action, and so it was entered, &c.”
In 1405 (6 Hen. IV,) in the Common Pleas, debt was brought to recover 40 s. delivered to the defendant by the lessee of a manor to pay to the plaintiff. It was held that the proper remedy was not debt because “there is no contract between you.” Account would have been proper had there not been a frank tenement. Hence as a writ of annuity was the only remedy the plaintiff took nothing by his writ of Debt.
But Hankford, Justice, putting his decision on the ground that not debt but account would lie, made the positive and unqualified assertion that “if a man deliver certain monies to you to pay to me, I shall have action of account against you and not writ of debt because there is no contract between you.”1
Account is the well recognized remedy of the beneficiary throughout the fifteenth century,2 and continued to be so employed in the sixteenth century.
In 1458, (36 Hen. VI), Wangford’s language (arguendo), shows unmistakably not only that the beneficiary had a right of action in account where there had been a prior appointment of the defendant, but that the old distinction between debt and account to enforce this right was becoming obliterated: “Sir, I grant willingly that this is a good plea; and the reason is because when a man pays to another certain money by my commandment to my ‘oeps’3 if he who receives this money is unwilling to pay me, I shall have a good writ of debt or account against him, and in that way I will have my money.”4
In 1476 (15 Ed. IV), an Abbot brought a writ of account against a man alleging that he had received 100l. of A, predecessor of the same Abbot, from the hands of one D and C, to render an account. The defendant in vain objected, (1) that the plaintiff should have alleged that the goods belonged to the house and not to A, (2) that the receipt was from the hands of a co-monk, and that such a receipt was like a receipt from the hands of the plaintiff’s wife and that the writ in such case, abated.
Brian:5 “That is not so, for the writ is good but in such a case as you speak of, a receipt by the hands of the wife, the defendant shall have his law . . . wherefore answer to this, for the writ is good enough.”6
In 1479 (18 Ed. IV) the existence of an alternative remedy for the beneficiary, by writ of Debt, or by writ of Account, is mooted.7 Counsel, arguendo that Case was alternative with Detinue proposed the following analogy: “As if I deliver 20 pounds to Catesby to deliver to Pigot he can elect to have writ of Account against Catesby or writ of Debt.”
But Brian,1 holding that in the case in judgment, Detinue only would lie, counter-argued, “And as to what is said that he shall have action of Debt or of Account, I say that he shall have action of Account and not action of Debt, upon what thing shall his action of Debt be founded? Not upon a contract, nor upon a sale, nor upon a loan can he declare.”
The motive which impelled the beneficiary to seek redress by the writ of debt rather than by the writ of account, is quite plain. The plaintiff in account was compelled to undergo the delay of two distinct trials, the first before a jury to determine merely his right to an accounting, the judgment for the plaintiff being that the defendant do account, (quod computet), and the second trial being the accounting itself before the court-appointed auditors. In the writ of Debt, on the contrary, the plaintiff, if successful in establishing the defendant to be his debtor, was entitled to judgment and immediate execution, even in the case of default. Moreover, the fixing of any liability upon a receiver at the hearing before the auditors was always contingent upon his not having been robbed, or not having lost the property without his own fault, &c. &c.4 Once establish, however, that the defendant is not merely your receiver but your debtor, and his liability is absolute.
When the attempt was first made there were manifest obstacles to the employment of the writ of Debt by the beneficiary, though admittedly an action of Account would lie where there had been a bailment of money or chattels to the defendant upon the latter’s promise to the bailor to pay the plaintiff a sum certain. There was no privity between plaintiff and the defendant.1 The argument at first seemed unanswerable: “there is no contract between you.” The defendant being a receiver, was accountable, but not being a debtor how could he be liable in the writ of Debt?
The moral pressure of the plaintiff-accountee, seeking to recover by writ of debt, finally forced the courts to treat a receiver as a debtor. The successful argument was that if the plaintiff showed a demand upon the defendant for an account and the latter refused or failed to render an account he had presumably converted to his own benefit, all the property bailed and hence had made himself the plaintiff’s debtor.2
Long prior to 1573 the alternative remedy of the beneficiary by writ of debt was clearly established. Sir Robert Brooke, who sat as Chief Justice of the Common Pleas from 1554 to 1558, states in his “Graunde Abridgment”3 published in 1573, that “where ten pounds is paid to W. N. to my use I shall have action or Debt or of Account against W. N.” Brooke cites a precedent then over a hundred years old—the above mentioned Year Book, 36 H. 6. f. 8, pl. 5. And in the last year of the reign of Elizabeth there is this dictum, if not judgment, of the Queen’s Bench: “adjudged, although no contract is between the parties, yet when money or goods are delivered upon consideration to the use of A, A may have debt for them.”1 As in the action of Account there was no wager of law where the plaintiff counted that the defendant had received the money or goods at the hands of a stranger;2 neither did that mediæval mode of trial embarrass the plaintiff accountee, who, by establishing a demand and default thus converted his accountant or receiver into his debtor.3
In 1587, in the Queen’s Bench, in 30 Eliz., in an action of account, Andrews et ux. and one Cocket declared against Robsert that he, Robsert, on 20 Aug., 10 Eliz., was the receiver of the money of the said Cocket and Ann, the wife of the plaintiff Andrews.
“It was found by special verdict that the 10 Aug., 10 Eliz., one M gave the said 100 pounds for the relief of the said Cocket and Ann and delivered the same to the said Wase, then his servant, to the intent he should deliver it to the said Robsert for the relief of the said Ann and Cocket; and that he, the said Wase, did deliver it to the said Robsert for the relief of the said Ann and Cocket, according to the said intent.”
. . . “It was adjudged he shall be said to be their receiver, and that he shall account with the said then plaintiffs for the said 100 pounds.”1
The end of the reign of Elizabeth which is substantially the date of Slade’s Case,2 will afford for many reasons a convenient stopping place for retrospection. The cases of the Stuart period and in fact of all successive reigns, can be understood only in the light of Slade’s Case.3
The principles underlying the substantive right of the beneficiary to bring an action of debt or an action of account at common law may now be summarized from the preceding and other cases.
First, however, the phraseology of mediæval law must be considered; for the mediæval lawyer had a legal vocabulary of his own, and unless we understand his terms we cannot understand the substantive rights which his law recognized. “The word contract was used in the time of the Year Books in a much narrower sense than that of to-day. It was applied only to those transactions where the duty arose from the receipt of a quid pro quo, e. g., a sale or loan. In other words, contract meant that which we now mean by ‘real contract.’ What we now call the formal or specialty contract was anciently described as a grant, and obligation a covenant, but not as a contract.”1
The rule was clearly this, that a third person could recover in the action of Account against a defendant, notwithstanding there was no “contract” between them. Taking the word “contract” in its true mediæval sense of a debt, as used in the Year Books we immediately perceive that the plaintiff in Account and Debt was not required to have furnished the property or thing bailed.
The rule is equally plain that the plaintiff in Account and Debt was not required to be privy to the “contract” or, as we would now say, “the promisee.”
The right of action of the beneficiary in Account should be considered in further detail. Historically, this remedy of the beneficiary antedates his action of Debt, doubtless because in account there was never required to be a “contract” between the plaintiff and the defendant.
“A receiver is one who receives money belonging to another for the sole purpose of keeping it safely and paying it over to its owner.”2
No one could be your receiver unless he had received money. The receipt of chattels when the obligation was to sell them and convert them into money constituted the defendant not a receiver, but a bailee, who was also liable in Account.3
Certainly after 1379 it was never necessary, in order to constitute a man your receiver and therefore to render him accountable to you, that he should have received the money from you.
“If money be delivered by A to B in order that it may be delivered by B to C, or if it be delivered by A to B to the use of C, it has often been held that B will be accountable to C.”1
It thus became firmly settled that it was not necessary for the receiver to have actually received the money from the plaintiff. If, in the course of his dealing with another person, the defendant became the receiver of money due the plaintiff, though the plaintiff was not privy to the transaction or even aware of it, he could enforce it.
In a case of account by a legatee against executors the objection was made: “How can the daughter who never bails the money to the executors have account?” To which Lord Brooke answered: “I command you to receive my rents and deliver them to Lord Dyer, he shall have account against you: yet he did not bail the money.”2
“If a man deliver money to you to pay to me, I shall have account against you, although he may be but a messenger.3
“A man shall have a writ of account against one as bailiff or receiver where he was not his bailiff or receiver; for if a man receive money for my use, I shall have an account against him as receiver; or if a man do deliver money unto another to deliver over unto me, I shall have an account against him as my receiver.”4
In 1489 (4 Hen. VII) it is said by Brian5per dictum:
“And sir, if I have lands, and a man receives my rents, and without my assent, still he is receiver &c. because the receipt charges him etc.”6
Ownership by the third party beneficiary, of the money or thing bailed was neither essential to, nor was it at all present in, the basis of the right to bring account or debt.
It is perfectly true, as has been said by Professor Ames, that in debt, “the defendant was conceived of as having in his possession something belonging to the plaintiff which he might not rightfully keep, but ought to surrender.”1 But Professor Ames here is describing an early juridicial conception; and he does not mean that in every case the thing sought must be proved to have belonged to the plaintiff. This conception was in reality the explanation of the judicial reasoning by which debt for property loaned by the plaintiff2 expanded in an early age of the common law into debt for money due on a “real contract.”
“In its earliest stage the action is thought of as an action whereby a man ‘recovers’ what belongs to him. It has its root in the money loan; for a very long time it is chiefly used for the recovery of money that has been lent. The case of the unpaid vendor is not—this is soon seen—essentially different from that of the lender: he has parted with property and demands a return.”3 Of course, by 37 Hen. VI (1459) any idea that the plaintiff vendor really owned the money due on a sale of a chattel has disappeared, and the conception has become merely a legal fiction.
In debt, if the quid pro quo was a chattel, the title to or the ownership of it was by the delivery absolutely vested in the debtor.
Where A loaned money to B and then brought debt for its recovery, the legal title to the money bailed was always in B, otherwise the very intention of the loan would be defeated—i. e., if B could not transfer title to the money he could have no benefit from the loan.4 Where A promised B “that if he is willing to carry 20 quarts of wheat of my Master Prisot to G, he shall have 40 shillings,”1 no one in the time of Henry VI or to-day would contend that the title to any specific 40 shillings was ever in B. The situation is not different where A gives B 40 shillings to give to C. B after the conversion is C’s debtor, but C does not have the title to any specific 40 shillings. Of course, A can say to B, give C this bag of coins or these particular crowns, and then no title passes to B, for the title, so far as B is concerned, is always either in A or C, according to the nature of the transaction between them. B is then not a debtor but a bailee, and is liable to C in an action of detinue.
Thus in 1339 detinue was brought for 20 pounds “in a bag sealed up, etc., etc.” The defendant objected to the writ on the ground “that he demands money, which naturally sounds in an action of debt or account.” The plaintiff replied, “We did not count of a loan which sounds in debt, nor of a receipt of money for profit, which would give an action of account, but of money delivered in keeping under seal, etc., which could not be changed.” The defendant was required to answer over.1
But where money in an unsealed bag was delivered, “one penny cannot be known from another in a bag, we are of opinion that detinue does not lie and therefore reverse the judgment.”2
“When the defendant receives money belonging to the plaintiff but receives it under such circumstances that he has a right to appropriate it to his own use, making himself a debtor to the plaintiff to the same amount, and the defendant exercises such right, the receipt of the money will create a debt.”3
Surely therefore there is sufficient warrant for the induction that although title did not exist in the beneficiary to the specific goods or money bailed to the defendant, this fact constituted no objection either to the beneficiary’s right to have an account or to his later right to treat as his debtor the accountant who failed to produce an account of the property bailed by a stranger for the plaintiff’s benefit.
The nature of the action of account imposes this limitation upon the beneficiary that he can have no remedy unless property has been transferred to the accountant by the stranger. Hence, mutual promises between the defendant and a stranger could never make the defendant accountable to the plaintiff.1 Notwithstanding the fact that the conception of a quid pro quo expanded so as to comprise services performed on request as well as property delivered,2 the writer has been unable to discover any case wherein a beneficiary has recovered upon a bilateral contract made between the defendant and a stranger,3 even though that bilateral contract has been afterwards executed by the stranger’s performing some act other than the delivery of property &c. to the defendant.4
Undoubtedly however, the defendant has always been liable in the action of account when the defendant has received property though from a stranger, under a promise to account in respect thereof to the beneficiary. It would be incorrect however to say that this action will lie upon “an executed consideration.” Though a consideration may be executed by the promisee, the promisor does not thereby become accountable to the plaintiff-beneficiary.
A later age, the legal phraseology of which, as applied in assumpsit, has invaded all our conceptions of contractual liability, will speak of an “executed consideration;” but in the actions of Account and of Debt, from the earliest to the latest times, there was no consideration, and hence it tends only to confusion of thought to say that “the consideration” must be “executed” and not “executory.”
Therefore to state the doctrine of accountability to a beneficiary with accuracy, we should say that the defendant could be made accountable to the plaintiff only where property had been bailed or land had been conveyed, or money had been received for the plaintiff’s benefit (i. e. to pay him money or give him an account); and this conveyance or bailment might be at the hands of a stranger.
THE DEBT AND THE ACCOUNTABILITY DISTINGUISHED FROM A TRUST
In the action of debt, the relation of the debtor to both the beneficiary and the quid pro quo is plainly distinguishable from the relation of the modern trustee to the cestui que trust, and to the “trust property.” This distinction is demanded nowadays, because the tests which determine a trust are not those which determine an accountability or a debt.
The practical consequence of confounding debts or accountabilities with trusts is to erroneously limit the right of action of the beneficiary at common law to only those cases which fulfil the requisites of a modern trust.1
The modern trust, with its conception of a double title to the trust property,—i. e., of a distinct “equitable ownership” apart from the legal title,—was a conception which developed in the Court of Chancery many years after the right of the beneficiary in Account and in Debt had been established at law. The cestui que trust in later times recovers, because as to certain specific property he has a title recognized by Chancery. The above conceptions of liability in Account and in Debt are radically distinct from that of the trust. The bailee has ownership of the thing as to which he must render an account. The quid pro quo, if a chattel, becomes, as above stated, the absolute property of the debtor. His receipt of it gives rise to an obligation to pay the beneficiary; but no one ever supposes that the beneficiary’s right to recover is based on any “equitable ownership” of the chattel, or of the sum of money recovered.
It has been said by Professor Ames that “A plaintiff entitled to an acount was strictly a cestui que trust;”1 and further, that “trusts for the payment of money were enforced at common law long beefore Chancery gave effect to trusts of land. It need not surprise us, therefore, to find that upon the delivery of money by A to B to the use of C, or to be delivered to C, C might maintain an action of account against B.”2
This language is an apt analogy or simile, but does not represent, and was doubtless not intended to represent, an exact equation.
Misapprehension will arise if the position of the beneficiary in account is understood as identical with that of the modern cestui que trust in equity.
If A transfers chattels or stock to B, directing B to apply the rent or income of the property to the payment of A’s creditor, X, there arises, by the doctrine of trusts, a double title, one equitable in X, and the other legal in B, and the situation is called in equity a trust.
If A gives chattels to B in such a way that the chattels are the absolute property of B, and in consideration thereof B promises A to pay A’s creditor, X, there is no trust whatever.
While it is true that the action of account is based on the conception that something—viz., an account—belonging to one man, the plaintiff, is in the possession of another man, the defendant, we have above shown that no specific money is supposed to be owned by the plaintiff. His right is only to receive an equivalent sum. In account, the defendant’s “obligation must be capable of being discharged by returning to the plaintiff (not the identical money received, but) any money equal in amount to the sum received.”1 In the former of the two above stated cases, X has by the modern doctrine of trusts an equitable title with respect to the chattels. In the latter case, he has no equitable title, but he has the right to recover in the common law action of account.
The right of action of the beneficiary at common law in account was therefore different from that of a cestui que trust, because the former had a right of action notwithstanding the fact that the title to the property might be vested absolutely and solely in the defendant.
This distinction between a trust and an accountability to, or receivership in favor of, a third party is of much consequence because the second of the two above hypothetical cases (i. e., where no modern trust exists) is a typical formula expressing the right of a third party to recover at common law in account.
The cases cited by Professor Ames have all been examined without disclosing anything inconsistent with this conclusion.
The first reported cases in Chancery where the heir or transferee of the title of cestui que use compels “the feofee to uses” to convey2 are of the reign of Edward IV,3 and are readily explained on the ground of a duty imposed by Chancery on the conscience of the feofee to uses without resorting to any conception of “equitable ownership.”
We find the right of the beneficiary in account recognized as early as 1364-1368,4 where the transaction is described as a bailment and not yet as a transfer of property “al oeps.” The first case the writer has found where the words “al oeps” are used in this connection was in 1458.5
If we look to the then contemporaneous chancery doctrine of uses, we find nothing to indicate that a use in Chancery in the fourteenth and fifteenth centuries was more than a personal right of cestui que use, his heirs, devisee, or assignee, against the feofee to uses.
The authorities collected by Professor Ames establish beyond question that as late as 1450 the heir of the feofee to uses held the land free from liability to the cestui que use.1
A use might be enforced by the heir, etc., “but neither a wife, a husband, nor a judgment creditor was entitled to this privilege.”2 “If the feofee to uses died without heir or committed a forfeiture or married, neither the lord who entered for the escheat or forfeiture nor the husband who retained the possession as tenant by the curtesy, nor the wife to whom the dower was assigned, were liable to perform the trust, because they were not parties to the transaction, but came in by act of law, or in the post, and not in the per, as it was said, though doubtless their title in reason was no better than that of the heir against whom the remedy was extended. It was the same as regards any other person who obtained possession, not claiming by any contract or agreement with the feofee, between whom and the cestui que use, therefore, there was no privity. ‘Where there was no trust, there could be no breach of trust.’ The remedy against a disseisor, therefore, was not in Chancery at the instance of the cestui que trust, but at law at the instance of the feofee; and it was part of his duty to pursue his legal remedies at the desire of the cestui que trust.”3
Uses of personalty were doubtless enforced in Chancery at an early date,4 but in debt and account there is not the slightest ground for believing that the recovery of a beneficiary was based on any ownership, equitable or otherwise, of any specific coins or chattels, or that the defendant in account could ever be restricted from transferring the title to both the money received and the property bailed. It has been previously shown that the same is true of the title to the quid pro quo in debt. The modern characteristic of equitable ownership—the right to compel the trustee to devote the res to the designated purposes—was precisely what courts of law in account never dreamed of attempting. If complete title had not been transferred to the bailee or receiver, the very purpose of the bailment ad merchandisandum would have been frustrated and so of the bailment to sell and render account to the beneficiary. A court of law was obviously without the machinery to enforce such an equitable title had it existed.
It is, of course, true that judges and counsel, in speaking of the plaintiff’s right of recovery in account, refer to his “property” in the money sought to be recovered.1
But this means no more than the similar popular conception that we have seen existed in regard to debt and which survives to-day in the popular expression “money in the bank.”2
It is true that the cases in account speak of the defendant’s having received the money “al oeps” of the plaintiff.3
But in reading cases of debt and account in the fifteenth, sixteenth, and seventeenth centuries we must not mistranslate “oeps”—use, still less should we translate “oeps”—trust. The word “oeps” is derived from the Latin opus, signifying benefit, and not from the word uses,4 a term of definite legal meaning in the civil law.5
Thanks to Professor Maitland’s researches, we have direct evidence that for many years “oeps” was used merely to signify a benefit and without any settled technical signification, either of a later Chancery trust or of a civil law “usus.”
His researches show that in 1238-9 Bracton records that “a woman, mother of H, desires a house belonging to R; H procures from R a grant of the house to H to the use (ad opus) of his mother for her life.”1
As late as the year 1339 occurs a case, not mentioned by Professor Maitland, where the word “oeps” is used unmistakably in the sense of benefit and without any suggestion of a legal and equitable title. In Year Book XII and XIII Edward III, page 231 (1339) occurs the description of a feudal conveyance, and in describing the transaction the language applied to the vendors is: “Il vendront et rendront en la court le seignur al oeps celui qe serra feffe et les baillifs front execution.”
The note of the editor of this translation of the Year Books shows that the words “ad oeps,” which he has translated “to the use,” are in the record “ad opus.”
“We hardly need say that the use of our English law is not derived from the Roman ‘personal servitude;’ the two have no feature in common. Nor can I believe that the Roman fideicommissum has anything to do with the evolution of the English use. In the first place, the English use in its earliest stage is seldom, if ever, the outcome of a last will, while the fideicommissum belongs essentially to the law of testaments. In the second place, if the English use were a fideicommissum it would be called so, and we should not see it gradually emerging out of such phrases as ad opus and ad usum. What we see is a vague idea, which developing in one direction becomes what we now know as agency, and developing in another direction becomes that use which the common law will not, but equity will, protect. Of course, again, our ‘equitable ownership’ when it has reached its full stature has enough in common with the praetorian bonorum possessio to make a comparison between the two instructive; but an attempt to derive the one from the other would be too wild for discussion.”1
The present investigation does not involve such recondite issues as whether or not, and if so, to what extent, Chancery was indebted to the civil law for the doctrine of uses.
The cases taken from the Year Books show that the word “oeps” is frequently used in describing the beneficiary.
The writer submits that there is not the slightest reason to believe that either in the Year Books or in Rolle the word “oeps” or “use,” etc., was used in the technical meaning of a modern trust—i. e., to convey the idea of equitable ownership and a double title. What is here contended is that in the cases of debt and account in the Year Books the word “oeps” or “opus” is used in the then familiar and common everyday meaning of benefit.2 In debt or account it was enough if the chattel or money was received for the benefit of a third person. The beneficiary recovered in debt or in account, not because he was a “fructuarius” under the civil law, nor because he was a “cestui que trust,” that later protégé of Chancery, but because the primary obligation known as a debt or a receivership had been created for the plaintiff’s benefit by the defendant’s receipt of money or property.
As account was not based on contract (i. e. in the nineteenth century use of that word), the liability of the defendant to account to the beneficiary presupposed no prior contractual relation of any kind between them. The phrase “stranger to the consideration,” as applied to the plaintiff in account, would have been meaningless jargon to the lawyers of the fourteenth and fifteenth century. After four centuries the phrase has become no more applicable.
Nor was the plaintiff in account required to be the promisee. Privity to the defendant’s obligation was a pure fiction. “If, however, he obtain possession in the plaintiff’s behalf and as his representative, though without any actual authority, the plaintiff may adopt and ratify his acts, and thus establish privity between him and the plaintiff.”1
Debt and accountability were therefore primary common law liabilities and species of simple contract enforceable by the beneficiary, not because he was a “privy” to the contract, or a “promisee” or a “cestui que trust,” or had furnished that “mystery” of the eighteenth and nineteenth centuries—“the consideration.” We err in attempting to analyze into constituent elements a substantive right which is itself primary and elemental.
The beneficiary recovered in Account because the judicial instinct recognized that he ought to recover, and the courts held that by common law he had a substantive right. This common law right was the expression of a public sense of justice, and a firmer foundation for a positive rule of law need not be sought.
[1 ]This Essay was first published in the American Law Register (now the University of Pennsylvania Law Review), Vol. XLIII, N. S. (LII, O. S.), pp. 764-779, Vol. XLIV, N. S. (LIII, O. S.), pp. 112-127 (1904-5); a continuation, in id. Vol. XLVII, O. S. (LVI, N. S.), pp. 73-87 (1908) is not here reprinted. Changes and additions have been made by the author for the present reprint.
[2 ]Professor of Law in the University of Pennsylvania. A. B. 1887, University of Pennsylvania, LL. B. 1903, Temple College.
[3 ]Crow v. Rogers, 1 Strange, 592 (1724); Price v. Easton, 4 Barn. and Ad. 433 (1833); Tweddle v. Atkinson, 1 B. and S. 393 (1861); Empress Engineering Co., 16 Chancery Div. 125, 129 (1880), Re Rotherham Alum and Chemical Co., 25 Ch. Div. at page 111 (1883); Cleaver v. Mutual Reserve Fund Life Association, 1 Q. B. 147 (1892).
[1 ]“Contracts for the Benefit of a Third Person,” by Samuel Williston, xv. Harvard Law Review, 774, (1902).
[2 ]Tweddle v. Atkinson, 1 Best and Smith, 398 (1861).
[3 ]Price v. Easton, 4 Barn. and Ad. 433 (1833); Thomas v. Thomas, 2 Ad. & El. (N. S.) 851, 859 (1842).
[1 ]Judge Hare in his work on contracts, p. 146, says “that the only person entitled to sue on a contract is he who furnishes the consideration.” He says:
[1 ]The Supreme Court of the United States has said that “The right of a party to maintain assumpsit on a promise not under seal made to another for his benefit, although much controverted, is now the prevailing rule in this country.” (Hendrick v. Lindsay, 93 U. S. 143, 1876).
[1 ]Pollock on Contracts (7th ed.), page 170.
[1 ]Holmes’ Common Law, page 271.
[2 ]Selden Society Year Books Series, vol. II, p. 34. Reprinting Y. B. 2 Ed. II, 1308-9, 118 Anon. Ryvere v. Frere, Ib. Vol. III, p. 126, (3 Ed. II). Y. B. 44 Ed. III, F. 1 Pl. 2, (Hil.). Pollock and Maitland’s History of English Law, Vol. II, p. 219, mentions the earliest known action of account to be of the year 1232.
[1 ]Y. B. xliii Ed. III. F. 21 Pl. 11.
[2 ]In 1267 the statute of Marlbridge (52 Hen. III. c. 23) gave the lord a writ of attachment against the body of his bailiff who had no lands or tenements whereby he could be distrained. The statute of Westminster II (13 Ed. I. c. 11) provided that the lord or master could assign auditors before whom the steward, bailiff or servant must account.
[1 ]See Foss’s Lives, p. 159, John de Cavendish.
[2 ]Y. B. 41 E. III. Fol. 10. pl. 5 (1368).
[3 ]“Statham, Nicholas, was elected reader of Lincoln’s Inn in Lent 1471, II Edward IV. (Dugdale’s Orig 249) and received on October 30, 1467, a patent for the grant of the office of second baron of the Exchequer. As Statham’s name is never mentioned afterwards, it is uncertain whether he ever filled the office.
[4 ]Statham Abr. Acc. 5, in abridging the case Y. B. 41 Ed. III. fol. 31, pl. 37. But Statham nowhere under the title Account cites the Y. B. 2 R. II (above next mentioned in the text) owing doubtless to the fact that he had no access to the Ms. from which Fitzherbert quoted.
[5 ]“The Abbot of Wanerle brings writ of Account against a man as receiver of his monies, and counts how he was his receiver by the hands of such an one.”
[1 ]Easter Term, 2 Rich. 2, Reported in Fitzherbert’s Abridgment, Title Accompt. pl. 45.
[2 ]Robert de Bealknap, Chief Justice of the Common Pleas, 1374-1387.
[1 ]Henry de Percy, Justice of the Common Pleas, 1377-1380.
[2 ]William Skipwith, Justice of the Common Pleas, 1376-1388.
[1 ]Y. B. vi Hen. IV. F. 7, pl. 33, (Hil).
[2 ]Y. B. 1 H. V. Fol. 11, Pl. 21 (1413).
[3 ]See post, p. 364, in this paper for meaning of this word.
[4 ]Y. B. 36 Hen. VI. Fol. 8, pl. 5 (at bottom of 9).
[5 ]Chief Justice of the Common Pleas, 1471-1500.
[6 ]Y. B. xv Ed. IV. fol. 16, pl. 2.
[7 ]Y. B. 18 Ed. IV. Fol. 23, pl. 5 (1479).
[1 ]Chief Justice of the Common Pleas, 1471 to 1500.
[2 ]Thomas Frowyk, Chief Justice of the Common Pleas, 1502-1506.
[3 ]Anonymous, Keilwey, 77 a, 77 b. Pl. 25.
[4 ]See American Law Register, Vol. 56, Old Series, (47, New Series), (University of Pennsylvania Law Review) page 74, note 2.
[1 ]See Brian, C. J.’s opinion supra in Y. B. 18 Ed. IV. Fol. 23, pl. 5.
[2 ]Professor Langdell has thus explained the step by which a receiver to account could be made a debtor in II H. L. R. 253.
[3 ]Dette, 129: “Debt by Wange & Bittinge where 10 pounds is paid to W. N. to my use I shall have action of debt or of account against W. N. and this agrees with an old book of entries of pleas.”
[1 ]Whorewood v. Shaw, Yelverton, p. 25, S. C. Moore 667, where the action appears to be upon a specialty.
[2 ]“In an action of Account against a Receiver upon a receipt of money by the hand of another person for account render (unless it be by the hands of his wife or his co-monk) the defendant shall not wage his law because the receipt is the ground of the action, which lieth not in privity between the plaintiff and defendant, but in the notice of a third person, and such a receipt is traversable.” Coke Inst. p. 295, Title of Releases. Lib. III, Chap. viii, Sec. 514 Ley Gager.
[3 ]After Slade’s Case the decisions in Indebitatus Assumpsit in favor of the beneficiary eliminated any such mode of trial even if it was ever available to the plaintiff’s accountant when charged in Debt as debtor for money or goods bailed by a third person for plaintiff’s benefit and converted to the defendant’s use. The cases found by the writer where Debt was brought by the beneficiary are not explicit as to the denial of Ley Gager though such was probably the rule.
[1 ]The entire Record of this case is given in Andrews et ux. & Cocket v. Robsert, 1 Lutwyche, p. 47, title Account. The following is a translation of the pleadings:
[2 ]4 Rep. 927 (1602).
[3 ]The cases of the seventeenth century have been collected and discussed by the writer in American Law Register, Vol. 56, Old Series, (47 New Series), (University of Pennsylvania Law Review, page 73).
[1 ]“Parol Contracts Prior to Assumpsit,” by James Barr Ames, viii. Harvard Law Review, page 253, note 3; Essay No. 60, in this Collection.
[2 ]Langdell: “A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review, page 244 (1889).
[3 ]Langdell, “A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review, page 244 (1889). See 46 E. 3. f. 3, pl. 6.
[1 ]Langdell, “A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review, page 249.
[2 ]Paschall v. Keterich, Dyer, 152, note.
[3 ]1 Roll. Abr. Accompt (A) pl. 6.
[4 ]Fitzherbert Natura Brevium, Account  Q. Rolle Abr. Accompt (A) pl. 6.
[5 ]Thomas Bryan, Chief Justice of the Common Pleas, 1471 to his death in 1500.
[6 ]Y. B. 4 Hen. vii. Fol. 6, pl. 2.
[1 ]Ames’s “Parol Contracts Prior to Assumpsit,” viii Harvard Law Review, at page 260 (1894).
[2 ]Pollock and Maitland’s History of English Law, vol. ii, page 208.
[3 ]See note 1 supra.
[4 ]“The subject of a loan may be either a specific thing, as a horse or a given quantity of a thing which consists in number, weight, or measure, as money, sugar, or wine. In the former case it is of the essence of the transaction that the thing lent continue to belong to the lender: otherwise the transaction is not a loan.
[1 ]Year Book, 37 Hen. VI, pl. 18 page 8.
[1 ]Y. B. 12 & 13 Edw. III, 244. Ames’ Cases on Trusts, vol. i, p. 52.
[2 ]Banks v. Whetstone, 1 Dyer 22 b, note 137: “The chattel might be delivered to the bailee to be delivered to a third person, in which case the third person was allowed to maintain detinue against the bailee.”—“Ames’ Parol Contracts Prior to Assumpsit,” vi Harvard Law Review, at p. 258
[3 ]Langdell: “A Brief Survey of Equity Jurisdiction,” ii Harvard Law Review, at page 245 (1889).
[1 ]Archdale v. Barnard, 1 Rolle Abr. p. 30, pl. 3.
[2 ]See American Law Register, Vol. 52, Old Series, (43 New Series), pages 776, 777, 778, 779.
[3 ]Hence the modern case Crow v. Rogers, 1 Strange, 592 (1724), presented no case of accountability or debt and the conclusion properly reached in that case does not impinge upon the doctrine of accountability to the beneficiary.
[4 ]Thus in Ritley v. Dennet, 1 Rolle’s Abridgment, p. 30 (Trin. 4 Jac. B. R.) the abridger states: “If C is indebted to A and D is indebted to N in the sum of 20 pounds and C at the request of D pays the 20 pounds for him to N, and directs D to pay so much over to A for him, and D in consideration of the premises, promises to pay the 20 pounds to A, A cannot save action on the case on this promise against D for he is a stranger to it and there is not consideration for any assumpsit to him.”
[1 ]In a number of decisions of New York, New Jersey and of Pennsylvania the beneficiary recovers though there is no trust. Professor Williston has criticized the Pennsylvania decisions as being “apparently an unwarranted extension of the law of trusts,” in 15 Harvard Law Review, p. 780, note 9. From this view the present writer dissents.
[1 ]“Parol Contracts Prior to Assumpsit,” viii Harvard Law Review, p. 258 (1894); Essay No. 60, in this Collection.
[1 ]Langdell: ii Harvard Law Review, page 246.
[2 ]Archbishop of York v. Richard Osborn and Edward Gower, Cal. 94; Spence’s Equitable Jurisdiction, page 454.
[3 ]See Chancery Calendars.
[4 ]Y. B. 41 Ed. III, folio 10, pl. 5. Y. B. 47 Ed. III, folio 16, pl. 25.
[5 ]Y. B. 36 Hen. vi, Fol. 8, pl. 5.
[1 ]Ames’ Cases on Trusts, vol. i, p. 345, notes, 1 & 2.
[2 ]Spence’s Equitable Jurisdiction, p. 446.
[3 ]Spence’s Equitable Jurisdiction, page 445, citing Year Book II Hen. VIII, 24: “The king or lord by escheat cannot be seised to an use or trust for they are in the post and are paramount to the confidence.” Jenk. Ca. xcii.
[4 ]See Spence, page 456, note h (temp. Hen. VI).
[1 ]See Cases in Year Books, ante.
[2 ]“The repayment of an equivalent sum of money is equated, with the bold crudity of archaic legal thought, to the restitution of specific land or goods. Our Germanic ancestors could not conceive credit under any other form. After all, one may doubt whether the majority of fairly well-to-do people, even at this day, realize that what a man calls ‘my money in the bank’ is a mere personal obligation of the banker to him.” “Pollock’s Contracts in Early English Law,” vi Harvard Law Review, page 399 (1892).
[3 ]See ante, Cases in Year Books. See also Year Book 2 Hen. IV, pl. 50, folio 12.
[4 ]“The Origin of Uses,” by F. W. Maitland, viii Harvard Law Review, page 127 (1894); Pollock and Maitland’s History of English Law, vol. ii, pages 228-240.
[5 ]“The germ of agency is hardly to be distinguished from the germ of another institution which in our English law has an eventful future before it, the ‘use trust or confidence.’ In tracing its embryonic history we must first notice the now established truth that the English word use when it is employed with a technical meaning in legal documents is derived, not from the Latin word usus, but from the Latin word opus, which in old French becomes os or oes. True that the two words are in course of time confused, so that, if by a Latin document land is to be conveyed to the use of John, the Scribe of the Charter will write ad opus Johannis, or ad usum Johannis indifferently, or will perhaps adopt the fuller formula, ad opus et ad usum, nevertheless the earliest history of ‘the use’ is the early history of the phrase ad opus.”—Maitland, “The Origin of Uses,” viii Harvard Law Review, page 127.
[1 ]F. W. Maitland: “The Origin of Uses,” viii Harvard Law Review, page 134.
[1 ]F. W. Maitland, “The Origin of Uses,” viii Harvard Law Review, page 137.
[2 ]Year Book 10 Hen. VI, 6, pl. 19: “A man brought writ of debt against an executor and recovered and had fieri facias to the sheriff of London, and levied the money of the goods of the deceased. And the sheriff returned that he had no goods of the deceased, but that they had goods long time before the writ and he delivered and had sold the goods and converted the sum to their own oeps.”
[1 ]Langdell, “Brief Survey of Equity Jurisdiction,” ii. Harvard Law Review, pages 248, 249.