Page:Harvard Law Review Volume 8.djvu/280

264 * HARVARD LAW REVIEW. dered to B at A's request. If B is a debtor A is not, but only collaterally liable in Assumpsit.^ The distinction between Debt and Special Assumpsit, as illus- trated in the cases mentioned in the preceding paragraph, is ot practical value in determining whether a promise is in certain cases within the Statute of Frauds relating to guaranties. If B gets the enjoyment of the benefit furnished by the plaintiff at A's request, but A is the only party liable to the plaintiff, A's promise is not within the statute. If, on the other hand, B is liable to the plain- tiff for the benefit received, that is, is a debtor, A's promise is clearly a guaranty and within the statute.^ There were obviously many parol agreements that did not come within the scope of Debt, Detinue, or Account. This difficulty was at length met by the action of Assumpsit, which became, indeed, a remedy upon all parol agreements.^ But the distinction between Debt and Assumpsit is fundamental. For, while Assump- sit might always be brought where Debt would lie upon a simple contract, the converse is not true. There were many cases where Assumpsit was the only remedy. Assumpsit would He both where the plaintiff had incurred a detriment upon the faith of the defend- ant's promise, and where the defendant had received a benefit. Debt would lie only in the latter class of cases. In other words, Debt could be brought only upon a real contract, — Assumpsit upon any parol contract. y. B. Ames. Hart V. Langfitt, 2 Ld. Ray. 841, 842, 7 Mod. 148 s. c. ; Rozer v. Rozer, 2 Vent. 36, overruling Kent v. Derby, i Vent. 311, 3 Keb. 756, s. c. 1 Alford V. Eglisfield, Dy. 230, pi. 56; Baxter v. Reed, Dy. 272 n. (32); Nelson's Case, Cro. El. 880 (cited) ; Trevilian v. Sands, Cro. Car. 107, 193, i Roll. Ab. 594, pi. 14. A was the debtor and B was not liable in Woodhouse v. Bradford, 2 Rolle R. 76, Cro. Jas. 520 s. c. ; Hart v. Langfitt, 2 Ld. Ray. 841, 7 Mod. 145 s. c; Jordan v. Tomp- kins, 2 Ld. Ray. 982, 6 Mod. 77 s. c. ; Gordon v. Martin, Fitzg. 302 ; Ambrose v. Roe, Skin. 217, 2 Show. 42 s. c. 2 Watkins v. Perkins, i Ld. Ray. 224 ; Buckmyr v. Darnell, 2 Ld. Ray. 1085, 3 Salk. 15 s. c. ; Jones v. Cooper, Cowp. 227 ; Matson v. Wharam, 2 T. R. 80. 8 For an account of the development of Assumpsit see 2 Harv. L. Rev. 1-19, 53-69.