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Page:Harvard Law Review Volume 2.djvu/397

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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 col- lateral to the reservation, which will continue though the lessee assign over." This doctrine was repeatedly recognized in the King's Bench ;^ it was adopted in the Exchequer in 1664;* and was finally admitted by the Common Bench in Johnson v. May * (1683), where, " because this had been vexata quastio 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 pay- ment of a sum certain. Assumpsit was also admissible where the amount to be recovered was uncertain ; namely, where the de- fendant promised to pay a reasonable compensation for the use and occupation of land. Indeed, in such a case Assumpsit was the sole remedy, since Debt would not lie for a quantum meruit.^

Such was the state of the law when the Statute 1 1 Geo. II. c. 19, § 14, was passed, which reads as follows : "To obviate some diffi- culties 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 reason- able 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 evi-

^ Putter V, Fletcher (1633), i RuU. Ab. S, pi. 7; Rowncevall v. Lane (1633), I RoIL Ab. 8, pi 8; Luther v, Malyn (1638), i Roll. Ab. 9, pL ii; Note (1653), Sty. 400; Lance 9. Blackman (1655), Sty. 463; IIow v, Norton (i666^ I Sid. 279; 2 Keb.8, i Lev. 379, s. c ; Chapman v. Sonthwick (1667), i Lev. 204, i Sid. 323, 2 Keb. 182, s. c; Free, man 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 ItuUHtatm Assumpsit,

  • Trever v, Robert^ Hard. 366. • 3 Lev. 150.
  • Mason v, Welland (1685), ^^^^' ^5^ ^4^ 3 ^^* 73» 8* c.; How v. Norton (1666),

I Lev. 179^ 2 Keb. 8, i Sid. 279, s. c. It is probable that a promise implied in fact was soflSdent to sapport 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. ( 1 701), I Com. Dig., assumpsit, C, pi 6.