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THE HISTORY OF ASSUMPSIT

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sit may be grounded : (i) A debt precedent, (2) where he to whom such a promise is made is damnified by doing anything, or spends his labor a.t the instance of the promisor, although no ben- efit comes to the promisor ... (3) or there is a present consider- ation.'* 1

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} The other courts, for many years, re- sisted this doctrine. Judgments against a debtor in the Queen's Bench upon an implied assumpsit were several times reversed in the Exchequer Chamber.* 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 bar- gain;" 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 pro- cedure, whose introduction was facilitated by the same circum- stances 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 inveter- ate 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 natu- rally felt for a single word to express the additional and essential requisite of all parol contracts. No word was so apt for the pur- pose as the word " consideration." Soon after the reign of Henry VIII., if not earlier, it became the practice, in pleading, to lay all

1 See further, Anon. (B. R. 1572), Dal. 84, pi. 35; Pulmant's case (C. B. 1585), 4 Leon. 2; Anon. (C. B. i587),Godb. 98, pi. 12; Gill v. Har\N'ood (C. B. 1587), i 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. 1 591), Cro. El. 240. But this decision was not followed.

2 Edwards v. Burr (i573)» I>aL 108; Anon. (1583), Godb. 13; Estrigge z/. Owles (^589)» 3 Leon. 200.

• Hinson v. Burridge, Moore, 701 ; Turges v. Beecher, Moore, 694 ; Paramour z'. Payne, Moore, 703 ; Maylard v. Kester, Moore, 711.