respectively with operations of French speculators on the London Stock Exchange, and with a marriage at a registrar's office in London of Polish subjects domiciled in Paris in fraud of the French marriage law. There is also an interesting article containing a statement and criticism of the new Bankruptcy Act of the United States, passed 1st July, 1898. Contrary to English policy, corporations and joint stock companies fall within the Act.

Rivista di Diritto Internazionale e di Legislazione Comparata. (April-August, 1899.) Naples.

This review does high credit to the juristic capacity of the modern jurists of Italy, and to the collaborators of renown who support it in other countries. Among the latter may be named Professors Holland, Nys, and von Bar. Mr. Douglas Owen contributes a sketch of the proceedings of the recent conference in London of the Comité du Droit International Maritime. Some American decisions are noticed, but no English. English law and English events, however, sometimes come in for notice, as in the report of M. Desjardin as arbitrator on the power of the King of the Belgians to expel Mr. Ben Tillett from Belgian territory. The arbitrator decided that the power is a general one residing in the executive of practically all civilized governments, and a person expelled under such power has no ground of complaint.

Deutsche Juristen-Zeitung. (February-September, 1899.) Berlin. This is the fourth year of this interesting fortnightly legal review. The appendix of cases will repay reading by any one who wants to gain some knowledge of German law and procedure. There is one report of a case from the Civil Tribunal of the Seine which probably will not repeat itself for some time, as the point is the rights of property on the marriage of a Spaniard and an American lady at New York. There appears to be only one contribution by an English barrister. Mr. Hirschfeld has a short notice of the legal difficulties arising in a recent case at the Old Bailey, where it was held that a man who had made a statutory declaration, false to his knowledge, to be used in a court of the United States, had committed no crime known to English law. There is no further reference to English law, but Professor Ernest Freund of Chicago discourses on the constitution of the tribunals of the United States. Dr. Schuster of the English Bar contributes a short note on perjury

in a proceeding in a foreign court under 19 & 20 Vict., c. 113. Dr. Meisner of Posen writes an interesting study of Goethe as jurist. His juristic career was rather limited, in spite of the fifty-six theses composed by him. He remained a licentiate, and never attained. the doctorate. One article deals with a question which could hardly arise in England, the legal position of Privat-dozenten.

Rivista Scientifica del Diritto. (May, 1898-March, 1899.) (April-June, 1899.) Rome.

The reviews and bibliography are the best parts of this periodical. Signor Alessandro Sacchi's learned articles on Roman law are also worthy of notice. Italian jurists show a considerable acquaintance with modern English legal and political works. Sir Frederick Pollock and Mr. F. C. Montague are both cited.

There is also a notice of two books on a subject now exciting considerable interest both in the United States and the British colonies, viz. direct legislation by the people. Recent events in Australia afford a good object-lesson. The books are Mr. A. W. Thomas' Democracy and Direct Legislation, and Mr. C. E. Chadman's Direct Legislation by the Initiative and Referendum (both Chicago, 1898). As all such attempts are avowed amendments of the Swiss model, this fact explains the interest taken in the matter by Italian jurists, Switzerland being an adjoining State, and a considerable part of its inhabitants Italian in speech.

Kosmodike. (February-May, 1899.)

This periodical, dealing with international law, and containing articles in three languages, is published at no less than five places, Frankfort being the head office, London, Paris, Berlin, and Vienna aiding. We notice that one article from the February number of the Law Magazine and Review (on the Law of the Book of Mormon) is reprinted in full, without permission, but with due acknowledgment of the source, and another from our May number.

Rivista Politica e Letteraria. (April and May, 1899.) Rome.

The only article of much interest to lawyers is a very full and complete one by Professor Vincenzo Grossi on La Politica dell' Emigrazione nei Principali Stati d'Europa. A very good summary of the emigration laws of the United Kingdom is included, and the

learned essayist, unlike some Continental jurists, seems quite up to date in his English authorities.

Other periodicals received and examined are La Revue Générale, La Revue Bibliographique Belge, La Giustizia Penale, and Statsvetenskaplig Tidskrift. All these, however interesting in other respects, appear to contain nothing of much importance to the English lawyer.

JAMES WILLIAMS.

Received too late for notice in this issue :-Shaw's Manual of Vaccination (Shaw & Sons); Small Dwellings Acquisition Act, 1899, by M. ROBERTS-JONES (Western Mail, Cardiff); Byles on Bills of Exchange, by M. B. BYLES & W. J. B. BYLES (Sweet & Maxwell).

Other publications received :-Tabular Analysis of English Law of Contract; Ethics of Advocacy; Catalogue d'une Bibliothèque de Droit International et Sciences Auxiliaires; American and English Digest (Lawyers' Co-operative Publishing Co., Rochester, N.Y.); International Marine Insurance Rules.

The Law Magazine and Review receives or exchanges with the following, amongst other publications:-Review of Reviews, Juridical Review, Public Opinion, Law Times, Law Journal, Justice of the Peace, Law Quarterly Review, Irish Law Times, Scots Law Times, Australian Law Times, Speaker, Accountants' Journal, North American Review, Canada Law Journal, Chicago Legal News, American Law Review, Harvard Law Review, Case and Comment, Green Bag, Virginia Law Register, American Lawyer, Albany Law Journal, Madras Law Journal, Calcutta Weekly Notes, Law Notes, Queensland Law Journal, Law Students' Journal, Westminster Review, Concord, Bombay Law Reporter, MedicoLegal Journal.

THE

LAW MAGAZINE AND REVIEW.

No. CCCXV.-FEBRUARY, 1900.

THE

I. THE HISTORY OF ASSUMPSIT.*

I. EXPRESS ASSUMPSIT.

HE mystery of Consideration has possessed a peculiar fascination for writers upon the English Law of Contract. No fewer than three distinct theories of its origin have been put forward within the last eight years. According to one view, "the requirements of consideration in all parol contracts is simply a modified generalization of quid pro quo to raise a debt by parol."† On the other hand, consideration is described as "a modification of the Roman principle of causa, adopted by equity, and transferred thence into the common law." A third learned writer derives the action of assumpsit from the action on the case for deceit, the damage to the plaintiff in that action being the forerunner of the "detriment to the promisee," which constitutes the consideration of all parol contracts.§

* Reprinted by permission from vol. ii. of the Harvard Law Review [1888]. The author has enlarged the notes in a few instances. These additions are enclosed in brackets.

† Holmes, Early English Equity, 1 L. Q. Rev. 171; The Common Law, 285. .A similar opinion had been previously advanced by Professor Langdell. Contracts, § 47.

Salmond, History of Contract, 3 L. Q. Rev. 166, 178. § Hare, Contracts, Ch. VII. and VIII.

*

To the writer of this essay it seems impossible to refer consideration to a single source. At the present day it is doubtless just and expedient to resolve every consideration into a detriment to the promisee incurred at the request of the promisor. But this definition of consideration would not ⚫have covered the cases of the sixteenth century. There were then two distinct forms of consideration: (1) detriment; (2) a precedent debt. Of these detriment was the more ancient, having become established, in substance, as early as 1504. On the other hand, no case has been found recognizing the validity of a promise to pay a precedent debt before 1542. These two species of consideration, so different in their nature, are, as would be surmised, of distinct origin. The history of detriment is bound up with the history of special assumpsit, whereas the consideration based upon a precedent debt must be studied in the development of indebitatus assumpsit. These two forms of assumpsit will, therefore, be treated separately in the following pages.

The earliest cases in which an assumpsit was laid in the declaration were cases against a ferryman who undertook to carry the plaintiff's horse over the river, but who overloaded the boat, whereby the horse was drowned; † against surgeons who undertook to cure the plaintiff or his animals, but who administered contrary medicines or otherwise unskilfully treated their patient; ‡ against a smith for laming a horse while shoeing it; § against a barber who undertook to shave the beard of the plaintiff with a clean and wholesome razor, but who performed his work negligently and unskilfully to

*It seems proper to say that the substance of this article was in manuscript before the appearance of Judge Hare's book or Mr. Salmond's Essay.

† Y. B. 22 Ass. 94, pl. 41.

‡Y. B. 43 Ed. III. 6, pl. 11; 11 R. II. Fitz. Ab. Act. on the Case, 37; Y. B. 3 H. VI. 36, pl. 33; Y. B. 19 H. VI. 49, pl. 5; Y. B. 11 Ed. IV. 6, pl. 10; Powtuary v. Walton, 1 Roll. Ab. 10, pl. 5; Slater v. Baker, 2 Wils. 359; Stars v. Prentice, 8 East, 348.

§ Y. B. 46 Ed. III. 19, pl. 19; Y. B. 12 Ed. IV. 13, pl. 9 (semble).