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Page:Harvard Law Review Volume 2.djvu/395

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ASSUMPSIT FOR USB AND OCCUPATION. 377

ASSUMPSIT FOR USE AND OCCUPATION-

IN an essay on the History of Assumpsit in the current volume of the Review it is stated (p. 65) 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 ex- clusive 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 prom- ise 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.^

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 lor rent before the Statute 11 Geo. II. c. 19, § 14 ; and in that case the reporter adds : " Note, there was not any excep- tion 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."^ This note is confirmed by several cases in which the plaintiff failed upon such a count as well when there was subse- quent express promise ^ as where there was no such promise.*

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

» Supra, 54-56.

  • Slack V. Bowsal f B. R. 1623), Cro. Jac. 668.

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

  • Reade v. Johnson (C. B. 1591), Cro. El. 242, i Leon. 155, s. a; Neck v, Gubb

(B. R. 1617), I Vin. Ab. 271, pi. 1, 2; Brett v. Read (B. R. 1634), Cro. Car. 343, W. Jones, 329, s. c.