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Page:Harvard Law Review Volume 2.djvu/81

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In the cases already considered the innovation of Assumpsit upon a promise implied in fact gave a remedy by action, where none existed before. In several other cases the action upon such a promise furnished not a new, but a concurrent remedy. Assump- sit, as we have seen,^ was allowed, in the time of Charles I., in competition with Detinue and Case against a bailee for custody. At a later period Lord Holt suggested that one might " turn an action against a common carrier into a special assumpsit (which the law implies) in respect of his hire."^ Dale v, HalH (1750) is understood to have been the first reported case in which that sug- gestion was followed. Assumpsit could also be brought against an innkeeper.*

Account was originally the sole form of action against a factor or bailiff. But in Wilkins v, Wilkins* (1689) three of the judges favored an action of Assumpsit against a factor because the action was brought upon an express promise, and not upon a promise by implication. Lord Holt, however, in the same case, attached no importance to the distinction between an express and an implied promise, remarking that ** there is no case where a man acts as baih'ff, but he promises to render an account." The requisite of an express promise was heard of no more. Assumpsit became theoretically concurrent with Account against a bailiff or factor in all cases, although by reason of the competing jurisdiction of equity, actions at common law were rare.®

In the early cases of bills and notes the holders declared in an action on the case upon the custonni of merchants. " Afterwards they came to declare upon an assumpsit^* '*

It remains to consider the development oi Indebitatus Assumpsit as a renredy upon quasi-contracts, or, as they have been com- monly called, contracts implied in law. The contract implied in fact, as we have seen, is a true contract. But the obligation created by law is no contract at all. Neither mutual assent nor consideration is essential to its validity. It is enforced regardless of the intention of the obligor. It resembles the true contract, however, in one important particular. The duty of the obligor is a positive one, that is, to act. In this respect they both differ

1 SuprOy 7. * Comb. 334.

• I Wils. 281. See, also. Brown v. Dixon, i T. R. 274, per Buller, J.

  • Morgan v. Ravey. 6 H. &. N. 265. But see Stanley v, Bircher, 78 Mo. 245.

» Carth. 89, I Salk. 9. • Tompkins v. Willshaer, 5 Taunt. 430.

7 Milton's Case (1668), Hard. 485, per Lord Hale.