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CHAPTER 3: ASSUMPSIT TO SLADE’S CASE - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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ASSUMPSIT TO SLADE’S CASE
The King’s court was not very fond of contract, but it showed some interest in tort, and it is in the action of trespass that the quickest progress was made. In a number of cases it is possible to regard a particular situation from either point of view, and it was the treatment of such cases which served to introduce the idea of contract into actions of trespass.
We have already traced briefly the development of the action of trespass on the case,1 and we have seen that, in spite of some talk about an “undertaking”, the famous Humber Ferry Case was, procedurally at least, a bill of trespass. After all, the defendant had, in effect, drowned the plaintiff’s mare.2
A different line of approach is seen when the breach of a promise is treated as a “deceit” of the promisee—as a tort, in other words. Hence we find the allegation that the defendant “undertook” to do something as the necessary preliminary to the deception of the plaintiff when the undertaking was not fulfilled. Soon this situation is reconciled with the existing scheme of forms of action, by allowing trespass on the case to be brought for deceit caused by failure to perform an undertaking.
THE BEGINNINGS OF ASSUMPSIT
This was a long step, and it was not taken all at once. An important halt was made half-way. The first stage, in fact, was concerned with a special group of cases where the resulting loss was the damage or destruction of chattels. Such cases were the first to be admitted, for it was possible to construe them as quasi-trespasses (as we have seen, Baukwell, J., argued that the Humber Ferry Case, in spite of the assumpsit, was substantially a case of trespass). Again, in 1369, Waldon v. Marshall3 is brought on a writ (not a bill) which mentions an assumpsit to cure a horse, and “negligent” treatment of it so that it died. Both bench and bar seem to have thought that the writ said contra pacem as if it were purely trespass; in time it occurred to someone to read the writ, whereupon it was found that contra pacem was not alleged, and so we have an example of trespass on the case. As in most of these cases, the defence urged that the matter was contractual, and that the plaintiff’s remedy was in covenant:
We cannot bring covenant without a deed; and this action is brought because you did your cure ‘so negligently’ that the horse died. So it is more reasonable to maintain this special writ according to the case, than to abate it, for other writ we cannot have.
You can have a writ of trespass by simply saying that he killed your horse.
We could not have brought a simple writ of trespass because he did not kill the horse with force, for it died for lack of cure. . . . (And then the writ was adjudged good, and Thorpe, C.J., said that he had seen one M. indicted for that he undertook to cure a man of a malady and killed him for default of cure.)
. . . He did his cure as well as he could, without this that the horse died by default of his cure; ready. And the others said the contrary.”
This debate makes it clear that all parties recognised that the situation was fundamentally contractual, and that it was being forced into the form of tort simply because the action of covenant could only be brought upon a deed under seal. In this particular instance the contrast with trespass is well made, and the case is left, procedurally at least, as a case of negligent damage to a chattel. But it must not be imagined that this is the story of the slow dawn of the idea of contract in the minds of common lawyers. They knew quite well what a covenant was, but they deliberately resorted to this juggling with trespass because they felt unable to sustain an action of covenant without a deed.
THE MEANING OF ASSUMPSIT
Why then should it need an allegation and a proof of assumpsit to support an action in tort? Ames1 has suggested with great plausibility that the insistence upon an express assumpsit is derived from the mediaeval notion of liability. If I voluntarily hand over my horse to the care of a horse-doctor, he treats the animal at my invitation and therefore at my risk. If, however, he undertakes to cure it, and I on the faith of that undertaking allow him to treat the horse, then the risk falls upon him and I have suffered a wrong if my horse is the worse for his treatment.2 When this is understood it will be seen that the assumpsit is not treated as basing the action upon contract, but as one of the elements leading up to damage to the plaintiff’s person or property; the defendant undertook to do something, and did it so badly that the plaintiff, who had relied upon the undertaking, suffered damage at the hands of the defendant.
In the course of the fifteenth century assumpsit becomes quite common but the theory of it remains the same, as may be seen from the remarks of Newton (who shortly afterwards became Chief Justice) in 1436:
“I quite agree that it is the law that if a carpenter makes a covenant with me to make me a house good and strong and of a certain form, and he makes me a house which is weak and bad and of another form, I shall have an action of trespass on my case. So if a smith makes a covenant with me to shoe my horse well and properly, and he shoes him and lames him, I shall have a good action. So if a leech takes upon himself to cure me of my diseases, and he gives me medicines, but does not cure me, I shall have an action on my case. So if a man makes a covenant with me to plough my land in seasonable time, and he ploughs in a time which is not seasonable, I shall have action on my case. And the cause is in all these cases that there is an undertaking and a matter in fact besides that which sounds merely in covenant. . . . In these cases the plaintiffs have suffered a wrong.”1
It is clear from this passage that although strict theory is being maintained, it is very difficult to keep contract out of the picture. The assumpsit can hardly be described by any other word unless that word be “covenant”. One of the earliest cases (1388) already shows a strong tendency in this direction, and the declaration even asserts that the assumpsit was “in return for a sum of money paid”.2 As theory hardened, the question of consideration was seen to be irrelevant;3 nevertheless, the ambiguity of the word “assumpsit” was ineradicable—and fortunately so, for it helped us through a very difficult stage in the history of contract.
ASSUMPSIT FOR NON-FEASANCE
Thus far we have been concerned with damage to the person or to chattels, which was treated as akin to trespass.4 The assumpsit, although it suggested covenant, was primarily meant to fix a tortious liability on the defendant. If, however, the defendant failed to act at all, then the idea of trespass or quasi-trespass was no longer helpful. Non-feasance, therefore, raised a different problem.
At the beginning of the fifteenth century we find assumpsit brought on certain cases of non-feasance—and for a time unsuccessfully. As the fifteenth century proceeds, however, it becomes more clear that a remedy for non-feasance is desirable.
The question was first raised in connection with building contracts. Thus Watton v. Brinth5 was brought on an assumpsit to build a house within a certain time. The suggestion was made that if the work had been begun but not finished, then the action might lie for “negligence”, but there was no discussion of this;1 the action was dismissed because the matter was covenant, and no deed was shown. Several similar cases met the same fate. In 1424 an inconclusive discussion2 ranged over several points. It was suggested that the non-performance of a promise to roof a house would be actionable if the interior of the house was damaged by rain, on the analogy of trespass; an obscure allusion to the price paid to the contractor produced a comment based on the action of deceit—an omen whose significance will soon be appreciated. In 1436 arose the case from which we have already printed an extract.3 It concerned a sale of land, the defendant having promised to secure certain releases to the plaintiff purchaser. It was argued that misfeasance and non-feasance were not necessarily distinct, “for it all depends from the covenant”. No franker statement that contract is the root of the matter could be desired; but these expressions do not go so far as actually to give judgment in favour of the plaintiff.4
ASSUMPSIT COUPLED WITH DECEIT
These cases show the impossibility of bringing cases of non-feasance under the old type of assumpsit—the defendant had done nothing which could by any stretch of logic be construed as a trespass to the plaintiff’s person or goods. A new principle was needed, and it was finally found in the notion that the breach of an undertaking constitutes a deceit.5
The earlier instances seem to indicate that this action was often begun by bill, because it was primarily designed for use against officers of a court, or against persons already within its jurisdiction. There was also an original writ for deceit, which, like the bill, was concerned with the abuse of legal procedure, and could be brought by the Crown if the injured party did not do so, for its nature was essentially penal.6 The writ is as old as 1201,7 and a bill of deceit for what was in substance a breach of contract8 was proffered in 1293, while a writ of deceit, on facts which were seemingly contractual,9 occurs in 1311. By the fifteenth century it had been classified as trespass on the case for deceit, and considerably extended in scope. Late in the fourteenth century it entered upon a useful career by enforcing express warranties of the quality of goods sold. Such warranties, to be actionable, had to be made in words which showed that the seller meant to undertake a legal obligation: mere “selling talk”, even assertions, were not sufficient, without the word “warrant” or something equally technical and precise.1
There is an obvious similarity between the express warranty and the express assumpsit. If an express warranty could be coupled with a deceit in order to found an action, might not the breach of an express assumpsit be laid as a deceit, and so become actionable?
This provided the eventual solution of the problem of non-feasance. In 1428 we find this idea carried out.2 The plaintiff brought “a writ on his case in the nature of a writ of deceit”, and counted that he had agreed to marry the defendant’s daughter, and the defendant agreed to enfeoff the pair of certain land. The defendant later married his daughter to someone else. The answer was short and significant: he had not shown that the defendant had received a quid pro quo, and so there was no bargain. Already the contractual element was clearly recognised. The next example is Somerton’s Case.3 The plaintiff had retained the defendant (for a fee) as his legal adviser in connection with his proposed purchaser or lease of a manor. The defendant undertook (assumpsit) these duties, but “falsely and in deceit of the plaintiff” he revealed the plaintiff’s counsel, allied himself with a stranger and negotiated a lease to that stranger. There were long discussions on pleading points, and the usual argument that the matter was one of covenant provoked the reply that matters of covenant may be transformed by subsequent events into deceits. Attempts to plead to the action were abandoned, and the parties eventually pleaded to an issue.
In Somerton’s Case, therefore, we are very near to a remedy for non-feasance. The peculiar facts, however, seem to have left their mark for some years in the distinction between such a case and a pure case of non-feasance. In Somerton’s Case the defendant not only failed to perform his undertaking, but had done something which “disabled” him from ever performing it, for he had arranged a lease to another. Doige’s Case,4 shortly afterwards, was a bill of deceit in the King’s Bench, but it raised the same questions. The plaintiff paid Doige £100 for some land. Instead of enfeoffing the plaintiff, Doige enfeoffed someone else. Doige demurred to the bill and the case was argued in the Exchequer Chamber. To some it seemed important that Doige had “disabled” himself from ever performing the undertaking; to others this seemed immaterial. The general question whether the only remedy would be a writ of covenant was argued at length, but the roll, of course, only contains the formal pleadings. They consist of a declaration and a plea that the remedy should have been covenant, and not deceit. Judgment was enrolled for the plaintiff.1
These two lengthy arguments seem to have created a hopeful impression, if nothing more, and a generation later we find the action clearly upheld. In 1476 “deceit on the case” was successfully brought against a defendant who had received the purchase price of some land, and had enfeoffed another.2 In 1487 the strength of the “disablement” idea was shown when it was held that the action could not be brought unless it was counted and proved that the defendant enfeoffed another,3 but in 1504 this old distinction is abandoned, and we have a broad general statement of the nature of the remedy for non-feasance:
“Frowyke, C.J. 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 time, now I shall have a good action on my case because of the payment of money. . . .”4
This result was not achieved merely through the enterprise of the common lawyers; on the contrary, it is clear that for some time the chancellors had been giving relief, certainly from the reign of Henry V onwards, to purchasers who had paid their money and had not got their land or goods. Indeed, they were even enforcing purely consensual contracts for the sale of land.5
The cases just discussed show deceits of an aggravated sort: the plaintiff has parted with money, and that money is in the defendant’s pocket. Cases might easily arise, however, where the plaintiff’s loss did not in fact enrich the defendant. Here, as in other instances, Chancery may have shown the way. As early as 1378 it heard a petition from a disappointed purchaser whose loss consisted in travelling and legal expenses connected with a sale of land which the defendant refused to complete.1 The common law over a century later slowly reached the same position. In 1520 a plaintiff succeeded on a declaration that he sold goods to A. in reliance upon B.’s (the defendant’s) assurance that he would be duly paid. The defendant derived no benefit from the arrangement, nor did he profit by the breach of it, but the plaintiff suffered loss through the deceit.2 Shortly afterwards, St Germain3 regarded it as settled that “if he to whom the promise is made have a charge by reason of the promise . . . he shall have an action . . . though he that made the promise had no worldly profit by it”.
That seems to have helped forward the next development, which lay in the solution of the problem created by mutual promises. As we have already seen, the mediaeval English law of sale rested where Glanvill left it: the sale was effected by delivery.4 If the price was paid, the buyer could bring detinue for the goods; if the goods were delivered, the seller could bring debt for the price. If neither party had performed, neither could have an action. This rule was not relaxed until the close of the middle ages, as a result of a process beginning, it seems,5 in 1442, although the first steps in that direction had been taken a century earlier. Its implication was not at first recognised. It was certainly not regarded as showing the enforceability of mutual promises, still less was there any discussion of consent. When an explanation was needed, recourse was had to a theory that each party “granted” (not promised) to the other—a theory derived from what the fifteenth-century lawyers took to be the true nature of the action of detinue.6
At the close of the middle ages, when the problem of mutual promises was being attacked, this peculiarity of the law of sale was constantly cited, and there can be no doubt that the basis of assumpsit was gradually shifted; at first the emphasis was on the final result of the parties’ acts—the deception of the plaintiff, but as time goes on attention is fixed upon the beginning of their story—the assumpsit, and concurrently the habit grows of discussing these matters in terms of promises rather than deceits, of contract rather than tort. When this stage is reached, it becomes necessary to decide the effect of an exchange of promises. In 1558 we find the famous words “every contract executory is an assumpsit in itself”, which suggest that the mediaeval “contract” (of which sale and loan are typical) is now being interpreted as an exchange of promises.1 In 1589 the process is complete and the result clear: “a promise against a promise will maintain an action upon the case”.2
The idea of deceit was carried a step further. If a defendant is indebted to a creditor, the latter has an action of debt, not because the one has promised to pay the other, but because the parties are in a relationship which has been covered by the action of debt ever since the twelfth century at least, and certainly before there was any theory of contract. But suppose that a promisor, being already in a situation which renders him liable to an action of debt, subsequently expressly undertakes to pay the debt by a certain date. In this situation it was possible to say that besides being liable in debt, the promisor by his undertaking had now rendered himself liable to an action of assumpsit if he did not fulfil that undertaking, for he has deceived the plaintiff. Consequently we find a new variety of assumpsit appearing in the middle of the sixteenth century called indebitatus assumpsit, in which the plaintiff declares that the defendant, being already indebted (indebitatus), undertook (assumpsit) to pay a particular sum.3 The earliest example seems to be in 1542, and a few years afterwards we find the statement (apparently a comment or generalisation by Sir Robert Brooke) that “where a man is indebted to me and promises to pay before Michaelmas, I can have an action of debt on the contract or an action on the case [assumpsit] on the promise; for on the promise no action of debt will lie”.4 In all the early cases the distinction between debt and indebitatus assumpsit is strictly maintained. The subsequent assumpsit must be alleged, and, if traversed, must be proved.5
At this point there enters a factor of much importance in the legal history of the sixteenth and seventeenth centuries—the competition between the courts for jurisdiction. Assumpsit, being a form of trespass, could be brought either in the King’s Bench or Common Pleas: debt, on the other hand, could only be brought in the Common Pleas. The King’s Bench could therefore not resist the temptation to use indebitatus assumpsit as an equivalent to debt. This was easily done by holding that where a debt existed, a subsequent assumpsit would be presumed in law, and need not be proved as a fact.1 This device captured much business (for litigants in King’s Bench were glad to employ barristers instead of the costly serjeants, and appreciated the swifter process, and the absence of compurgation), but at the expense of confounding legal theory. The Common Pleas carefully distinguished “contract” (situations in which debt would lie without a specialty)2 from assumpsit or “promise” (which was actionable as a deceit). The justices of the Common Pleas had a chance of checking this audacious manœuvre, however, for under Elizabeth’s statute error lay from King’s Bench as a court of first instance to the Exchequer Chamber, and that Chamber contained all the Common Pleas judges and the barons of the Exchequer, but none of the King’s Bench justices.3 The Exchequer Chamber therefore promptly reversed such cases when they were brought up from the King’s Bench. This unseemly situation lasted for almost a generation, until the question was finally referred to that other assembly, also called the Exchequer Chamber, consisting of all the judges of all three courts assembled for discussion, in Slade’s Case (1602).
SLADE’S CASE, 1602
The whole matter was thoroughly examined in this memorable case.4 The facts were the simplest possible. The plaintiff’s bill of Middlesex declared that the defendant, Humphrey Morley, “in consideration that the said John [Slade], . . . at the special instance and request of the said Humphrey Morley had bargained and sold5 unto the said Humphrey . . . all the ears of wheat and corn which then did grow upon the said close called Rack Park . . ., did assume, and then and there faithfully promised” to pay a sum of money at a future fixed date. Upon the general issue, the jury found the bargain and sale, but said that there was no subsequent assumpsit. The objections raised in the course of the ensuing argument were: (a) since an action of debt lay on the facts, that therefore case (i.e. indebitatus assumpsit) could not lie; and (b) that this new form of action deprives the defendant of his right to wage his law.
The King’s Bench, realising the scandal caused by the difference between their rule and that in the Common Pleas, adjourned the case into the Exchequer Chamber of all the judges of England (not the chamber set up by Elizabeth), and then to the conference at Serjeants’ Inn, where Coke, Attorney-General, argued for the plaintiff and Bacon for the defendant. It was finally resolved that indebitatus assumpsit was an alternative to debt, at the plaintiff’s choice; that by assumpsit the plaintiff should recover not only damages but the original debt; that recovery in assumpsit should be a bar to an action of debt; that in the case of instalment debts, assumpsit can be brought on the first default, but debt only after all the days of payment have passed; and (most important of all) that a subsequent assumpsit need not be proved, but will be presumed:
“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, both parties may have an action of debt or an action of the case on assumpsit, for the mutual executory agreement of both parties imports in itself actions upon the case as well as actions of debt.”
Above, p. 372.
Above, p. 470.
Y.B. 43 Edward III, Michs. no. 38.
Ames, Lectures on Legal History, 131.
The idea comes out clearly in Y.B. 19 Henry VI, Hil. no. 5 (1441).
Y.B. 14 Henry VI, no. 58.
Y.B. 11 Richard II (ed. Thornley), 223, 227.
Ames, 130-131. With newer views on tort liability the allegation of an assumpsit was no longer felt necessary and the action in such cases of damage to the person or chattels was brought simply as “case”.
The extract above from the case of 1436 shows how physical damage to the person or to chattels began to be silently abandoned.
Y.B. 2 Henry IV, Michs. no. 9 (1400).
The idea reappears several times, e.g. Y.BB. 11 Henry IV, Michs. no. 80 (1409); 2 Henry VII, Hil. no. 9 (1487).
Y.B. 3 Henry VI, Hil. no. 33.
Y.B. 14 Henry VI, no. 58; above, p. 639.
Ames, Lectures on Legal History, 140, assumes that judgment went (against all authority) for the plaintiff, but without influencing subsequent decisions. Apparently there was no decision.
For Italian parallels, see Pollock and Maitland, ii. 196.
F.N.B., 95 E.
Pollock and Maitland, ii. 534.
Plaintiff paid defendant for a plot of land; defendant sold the land to another, and retained the money (note that there is no question of deceiving the court): Select Bills in Eyre (Selden Society), 62 no. 92. There is no decision known. (Compare Doige’s Case, below, p. 642).
Defendant agreed to compromise a case in the king’s court, but later pursued the case to judgment: Y.BB. Edward II (Selden Society), x. 11. There is no decision enrolled.
Ames, op. cit., 136-138; for a case in a local court a century earlier than Ames cited, see Sayles, King’s Bench, i. 34, iii. p. xcix.
Y.B. 7 Henry VI, Michs. no. 3.
(1433). The reports in the Year Book have been misplaced; the true order seems to be as follows. The original writ is appended to Y.B. 11 Henry VI, Pasch. no. 1 at f. 25; the arguments begin in the passage printed as Y.B. 11 Henry VI Trin. no. 26, are continued ibid., Hil. no. 10, and conclude to an issue ibid., Pasch. no. 1. The case is discussed at length in Holdsworth, iii. 431-434.
(1442). Y.B. 20 Henry VI, Trin. no. 4; Select Cases in Exchequer Chamber (ed. Hemmant, Selden Society), 97 (but the first line on p. 98 is mis-translated; omit “to be”). The record has now been found: A. K. Kiralfy, Action on the Case, 227 (the lady in the case is “Dogge”, not “Doige”). For a full analysis of the case, see Holdsworth, iii. 435-439.
Kiralfy, loc. cit. Compare the curiously similar bill in eyre, above, p. 640 n. 8. The idea of “disablement” was part of the law of covenants: Lit. s. 355; Holdsworth, ii. 594 n. 5.
Y.B. 16 Edw. IV, Pasch. no. 7.
Y.B. 2 Henry VII, Hil. no. 15. When it was argued in a similar case the same year that no action lies for such a “non-feasance” the court replied that the sale to a stranger was “a great misfeasance”; Y.B. 3 Henry VII, Michs. no. 20 (1487).
Keilway, 77; Y.B. 20 Henry VII, Michs. no. 18.
Barbour, Contract in Early English Equity, 118-119; case 98 (ibid., p. 173) can hardly be later than 1424.
2 Calendar of Proceedings in Chancery (Record Commission), ii; Ames, Lectures, 143-144.
Y.B. 12 Henry VIII, Michs. no. 3.
Doctor and Student, ii. c. 24.
Above, p. 629; Glanvill, x. 14; Bracton, f. 62; Fleta, ii. 58, § 8.
Doig’s Case, Y.B. 20 Henry VI, Trin. no. 4; Select Cases in Exchequer Chamber (Selden Society), 97 at 101. The example of Chancery is a possible source (above, p. 642 n. 5). A suggestive discussion of the transition from the “real” to the “consensual” contract is in C. H. S. Fifoot, History and Sources: Contract and Tort, 227 ff.
Upon this, see further Holdsworth, iii. 355-357.
Norwood v. Reed (1558), Plowd. 180.
Strangborough v. Warner (1589), 4 Leo. 3. “Have you ever found any logical reason why mutual promises are sufficient consideration of one another? . . . I have not”, wrote Pollock, and Holmes agreed: The Pollock-Holmes Letters, i. 146, 177.
It has been observed (Pollock and Maitland, ii. 196) that this curious notion has a mediaeval counterpart in Italy, when a subsequent promise might be a vestimentum for a pre-existing nudum pactum; the results are similar but the theories are different.
Brooke, Abr. Action sur le Cas, 105; ibid., 5.
Anon. (1572), Dalison, 84, no. 35.
Edwards v. Burre (1573), Dalison, 104 no. 45.
The regular mediaeval sense of the word—“loan or the like” (Y.B. 41 Edward III, Pasch. no. 5).
Above, p. 171.
4 Rep. 92 b.
For references upon the meaning of “bargain and sale” see S. J. Stoljar, Substantial Performance in Contracts of Sale, Canadian Bar Review, xxxii. 272 n. 98.