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Page:Harvard Law Review Volume 2.djvu/84

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But Rokesby's opinion finally prevailed. The new act^n continued to be encouraged. Assumpsit was allowed upon a-foreign judg- ment in 1705,^ and the " metaphysical notion"^ q^a promise im- plied in law became fixed in our law.

The equitable principle which lies at the foundation of the great bulk of quasi-contracts, namely, that one person shall not unjustly enrich himself at the expense of another, has established itself very gradually in the Common Law. Indeed, one seeks in vain to-day in the treatises upon the Law of Contract for an adequate account of the nature, importance, and numerous applications of this principle.^

The most fruitful manifestations of this doctrine in the early law are to be found in the action of Account One who received money from another to be applied in a particular way was bound to give an account of his stewardship. If he fulfilled his com- mission, a plea to that effect would be a valid discharge. If he failed for any reason to apply the money in the mode directed, the auditors would find that the amount received was due to the plaintiff, who would have a judgment for its recovery. If, for example, the money was to be applied in payment of a debt erroneously supposed to be due from the plaintiff to the defend- ant, either because of a mutual mistake, or because of fraudulent rep- resentations of the defendant, the intended application of the money being impossible, the plaintiff would recover the money in Account.* Debt would also lie in such cases, since, at an early period, Debt became concurrent with Account, when the object of the action was to recover the precise amount received by the defendant.* By means of the fiction of a promise implied in law Indebitatus Assumpsit became concurrent with Debt, and thus was established the familiar action of Assumpsit for money had and received to recover money paid to the defendant by mistake. Bonnel v. Fowke* (1657) is, perhaps, the first action of the kind.

��1 Dupleix V. De Rover, 2 Vern. 540. ^ Starke v. Cheeseman, i Ld. Ray. 538.

^ The readers of this Review will be interested to learn that this gap in our legal literature is about to be filled by Professor Keener*s ** Cases on the Law of Quasi- Contracts."

  • Hewer t/. Bartholomew (1597), Cro. El. 614; Anon. (1696), Comb. 447; Cavendish

V. Middleton, Cro. El. 141, W. Jones, 196, s.c.

» Lincoln v. Topliff (1597), Cro. El. 644.

• 2 Sid. 4. To the same effect, Martin v. Sitwell (1690), i Show. 156, Holt, 25; Newdigate v. Dary (1692), i Ld. Ray. 742 ; Palmer v. Staveley (1700), 12 Mod. 51a