paid, might have an action on the case upon the promise." This decision introduced the whole law of parol guaranty. Cases in which the plaintiff gave his time or labour were as much within the principle of the new action as those in which he parted with property. And this fact was speedily recognized. In Saint-Germain's book, published in 1522, the student of law thus defines the liability of a promisor: "If he to whom the promise is made have a charge by reason of the promise, . . . he shall have an action for that thing that was promised, though he that made the promise have no worldly profit by it." From that day to this a detriment has always been deemed a valid consideration for a promise if incurred at the promisor's request.‡ Jealousy of the growing jurisdiction of the chancellors was doubtless a potent influence in bringing the common-law judges to the point of allowing the action of assumpsit. Fairfax, J., in 1481, advised pleaders to pay more attention to actions on the case, and thereby diminish the resort to Chancery; and Fineux, C.J., remarked, after that advice had been followed and sanctioned by the courts, that it was no longer necessary to sue a subpana in such cases.|| That equity gave relief, before 1500, to a plaintiff who had * Y. B. 12 H. VIII. 11, pl. 3. † Doct. and Stud. Dial. II. c. 24. Y. B. 27 H. VIII. 24, pl. 3 [Pecke v. Redman (1555), Dy, 113, the earliest reported case of assumpsit upon mutual promises]; Webb's Case (1578), 4 Leon, 110; Richards v. Bartlett (1584), I Leon. 19; Baxter v. Read (1585), 3 Dyer. 272, b, note; Foster v. Scarlett (1588), Cro. El. 70; Sturlyn v. Albany (1588), Cro. El. 57; Greenleaf v. Barker (1590), Cro. El. 193; Knight v. Rushworth (1596), Cro. El. 469; Bane's Case (1611), 9 Rep. 93, b. These authorities disprove the remark of Mr. Justice Holmes (Common Law, 287) that "the law oscillated for a time in the direction of reward, as the true essence of consideration." In the cases cited in support of that remark, the argument turned upon the point of benefit, as the only arguable point. The idea that the plaintiff in those cases had, in fact, incurred a detriment would have seemed preposterous. Professor Langdell's observations (Summary of Contract, § 64) are open to similar criticism. § Y. B 21 Ed. IV. 23, pl. 6. * incurred detriment on the faith of the defendant's promise, is reasonably clear, although there are but three reported cases. In one of them, between 1377 and 1399, the defendant promised to convey certain land to the plaintiff, who, trusting in the promise, paid out money in travelling to London and consulting counsel; and upon the defendant's refusal to convey prayed for a subpoena to compel the defendant to answer of his "deceit." † The bill sounds in tort rather than in contract, and inasmuch as even cestuis que use could not compel a conveyance by their feoffees to use at this time, its object was doubtless not specific performance, but reimbursement for the expenses incurred. Appilgarth v. Sergeantson ‡ (1438) was also a bill for restitutio in integrum, savoring strongly of tort. It was brought against a defendant who had obtained the plaintiff's money by promising to marry her, and had then married another in "grete deceit."§ The remaining case, thirty years later,|| does not differ materially from the other two. The defendant, having induced the plaintiff to become the procurator of his benefice, by a promise to save him harmless for the occupancy, secretly resigned his benefice, and the plaintiff, being afterwards vexed for the occupancy, obtained relief by subpoena. Both in equity ¶ and at law, therefore, a remediable breach * [Two other cases are given by Mr. S. R. Bird, in the Antiquary, vol. iv. p. 185; vol. v. p. 38. See 8 Harv. L. Rev. 256.] † 2 Cal. Ch. II. I Cal. Ch. XLI. § An action on the case was allowed under similar circumstances in 1505, Anon., Cro. El. 79 (cited). || Y. B. 8 Ed. IV. 4, pl. II. The Chancellor (Stillington) says, it is true, that a subpoena will lie against a carpenter for breach of his promise to build. But neither this remark, nor the statement in Diversity of Courts, Chancerie, justifies a belief that equity ever enforced gratuitous parol promises [8 Harv. L. Rev. 255-258]. But see Holmes, I L. Q. Rev. 172, 173; Salmond, 3 L. Q. Rev. 173. The practice of decreeing specific performance of any promises can hardly be much older than the middle of the sixteenth century. Bro. Ab. Act. on Case, pl. 72 [Specific Performance of Contracts, Green Bag, vol. i. p. 26]. The invalidity of a nudum pactum was clearly stated by Saint-Germain in 1522. Doct. & St. Dial. II. Ch. 22, 23, and of a parol promise was originally conceived of as a deceit ; that is, a tort. Assumpsit was in several instances distinguished from contract. By a natural transition, however, actions upon parol promises came to be regarded as actions ex contractu. Damages were soon assessed, not upon the theory of reimbursement for the loss of the thing given for the promise, but upon the principle of compensation for the failure to obtain the thing promised. Again, the liability for a tort ended with the life of the wrong-doer. But after the struggle of a century, it was finally decided that the personal representatives of a deceased person were as fully liable for his assumpsits as for his covenants. Assumpsit, however, long retained certain traces of its delictual origin. The plea of not guilty was good after verdict, "because there is a deceit alleged." § Chief Baron Gilbert explains the comprehensive scope of the general issue in assumpsit by the fact that "the gist of the action is the fraud and delusion that the defendant hath offered the plaintiff in not performing the promise he had made, and on relying on which the plaintiff is hurt." || This allegation of deceit, in the familiar form: "Yet the said C. D., not regarding his said promise, but contriving and fraudulently intending, craftily and subtly, to deceive and defraud the plaintiff," etc., which persisted to the present 24. [See similar statements in a little treatise concerning writs of subpoena, Doct. & St. (18 ed.) Appendix, 17, Harg., L. Tr., 334, which was written shortly after 1523.] * Y. B. 27 H. VIII. 24, 25, pl. 3; Sidenham v. Worlington, 2 Leon. 224; Banks v. Thwaites, 3 Leon. 73; Shandois v. Simpson, Cro. El. 880; Sands v. Trevilian, Cro. Car. 107. [Doct. & St. Dial. II. ch. 23 and 24; Bret v. J. S., Cro. El. 756; Milles v. Milles, Cro. Car. 241; Jordan v. Tomkins, 6 Mod. 77. Contract originally meant what we now call a real contract, that is, a contract arising from the receipt of a quid pro quo, in other words, a debt. See 8 Harv. L. Rev. 253 n. 3.] + Williams v. Hide, Palm. 548, 549; Wirral v. Brand, 1 Lev. 165. Legate v. Pinchion, 9 Rep. 86; Sanders v. Esterby, Cro. Jac. 417. § Corby v. Brown, Cro. El. 470; Elrington v. Doshant, 1 Lev. 142. Common Pleas, 53. ¶ In Impey's King's Bench (5 ed.) 486, the pleader is directed to omit these century, is an unmistakable mark of the genealogy of the action. Finally, the consideration must move from the plaintiff to-day, because only he who had incurred detriment upon the faith of the defendant's promise, could maintain the action on the case for deceit in the time of Henry VII. The view here advanced as to the origin of special assumpsit, although reached by an independent process, accords with, it will be seen, and confirms, it is hoped, the theory first advanced by Judge Hare. The origin of indebitatus assumpsit may be explained in a few words: Slade's case,* decided in 1603, is commonly thought to be the source of this action. But this is a misapprehension. Indebitatus assumpsit upon an express promise is at least sixty years older than Slade's case. The evidence of its existence throughout the last half of the sixteenth century is conclusive. There is a note by Brooke, who died in 1558, as follows: "Where one is indebted to me, and he promises to pay before Michaelmas, I may have an action of debt on the contract, or an action on the case on the promise." § In Manwood v. Burston || (1588), Manwood, C. B., speaks of " three manners of considerations upon which an assumpsit may be grounded: (1) A debt precedent, (2) where he to whom such a promise is made is damnified by doing anything, or spends his labour at the instance of the promisor, although no benefit comes to the promisor . . . or there is a present consideration." ¶ words in declaring against a Peer: "For the Lords have adjudged it a very high contempt and misdemeanor, in any person, to charge them with any species of fraud or deceit." * 4 Rep. 92 a; Yelv. 21; Moore, 433, 667. Langdell, Cont. § 48; Pollock, Cont. (4 ed.) 144; Hare, Cont. 136, 137; Salmond, 3 L. Q. Rev. 179. Br. Ab. Act. on Case, pl. 105 (1542). § Br. Ab. Act. on Case, pl. 5. || 2 Leon. 203, 204. See further, Anon. (B. R. 1572), Dal. 84, pl. 35; Pulmant's case (C. B. 1585), 4 Leon. 2; Anon. (C. B. 1587), Godb. 98, pl. 12; Gill v. Harwood But The Queen's Bench went even further. In that court proof of a simple contract debt, without an express promise, would support an indebitatus assumpsit." The other courts, for many years, resisted this doctrine. Judgments against a debtor in the Queen's Bench upon an implied assumpsit were several times reversed in the Exchequer Chamber.t the Queen's Bench refused to be bound by these reversals, and it is the final triumph of that court that is signalized by Slade's case, in which the jury found that "there was no other promise or assumption, but only the said bargain ;" and yet all the judges of England resolved "that every contract executory implied an assumpsit." Indebitatus assumpsit, unlike special assumpsit, did not create a new substantive right; it was primarily only a new form of procedure, whose introduction was facilitated by the same circumstances which had already made Case concurrent with Detinue. But as an express assumpsit was requisite to charge the bailee, so it was for a long time indispensable to charge a debtor. The basis or cause of the action was, of course, the same as the basis of debt, i.e. quid pro quo, or benefit. This may explain the inveterate practice of defining consideration as either a detriment to the plaintiff or a benefit to the defendant. Promises not being binding of themselves, but only because of the detriment or the debt for which they were given, a need was naturally felt for a single word to express the additional and essential requisite of all parol contracts. No word was so apt for the purpose as the word "consideration." Soon after the reign of Henry VIII., if not earlier, it became the practice, (C. B. 1587), 1 Leon. 61. It was even decided that assumpsit would lie upon a subsequent promise to pay a precedent debt due by covenant. Ashbrook ▼. Snape (B. R. 1591), Cro. El. 240. But this decision was not followed. *Edwards v. Burr (1573), Dal. 108; Anon. (1583), Godb. 13; Estrigge v. Owles (1589), 3 Leon. 200. ↑ Hinson v. Burridge, Moore, 701; Turges v. Beecher, Moore, 694; Paramour v. Payne, Moore, 703; Maylard v. Kester, Moore, 711. |