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Page:Harvard Law Review Volume 2.djvu/73

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allow the action, when the receipt of the quid pro quo was contem- poraneous with or subsequent to the promise? The solution of this puzzle must be sought, it is believed, in the nature of the action of Debt A simple contract debt, as well as a debt by specialty, was originally conceived of, not as a contract, in the modern sense of the term, that is, as a promise, but as a grant.^ A bargain and sale, and a loan, were exchanges of values. The action of debt, as several writers have remarked, was a real rather than a personal action. The judgment was not for damages, but for the recovery of a debt, regarded as a res. The conception of a debt was clearly expressed by Vaughan, J., who, some seventy years after Slade's case, spoke of the action of Assumpsit as ** much inferior and ignobler than the action of Debt," and characterized the rule that every contract executory implies a promise as "a false gloss, thereby to turn actions of Debt into actions on the case ; for contracts of debt are reciprocal grants." ^

Inasmuch as the simple contract debt had been created from time immemorial by a promise or agreement to pay a definite amount of money in exchange for a quid pro quo, the courts could not allow an action of Assumpsit also upon such a promise or agreement, without admitting that two legal relations, fundamentally distinct, might be produced by one and the same set of words. This implied a liberality of interpretation to which the lawyers of the sixteenth century had not generally attained. To them it seemed more natural to consider that the force of the words of agreement was spent in creating the debt. Hence the necessity of a new promise, if the creditor desired to charge his debtor in As- sumpsit.

As the actions of Assumpsit multiplied, however, it would natu- rally become more and more difficult to discriminate between promises to pay money and promises to do other things. The rec- ognition of an agreement to pay money for a quid pro quo in its double aspect, that is, as being both a grant and a promise, and the consequent admissibility of Assumpsit, with its procedural advantages, as a concurrent remedy with Debt were inevitable. It was accordingly resolved by all the justices and barons in Slade*s case, in 1603, although " there was no other promise or assumption but the said bargain," that **^very contract executory imports

1 See Langdell, Contracts, § 100.

  • Edgecomb v. Dee, Vaugh. 89, loi.