In a case of that reign, the defendant retained an attorney to act in a suit for a third person, and promised to pay him all his fees and expenses.The attorney rendered the service, and then brought debt.It was objected that debt did not lie, because there was no contract between the parties, and the defendant had not any quid pro quo.The court adopted the argument, and said that there was no contract or consideration to ground this action, but that the plaintiff might have sued in assumpsit. It was, perhaps, the lingering of this idea, and the often repeated notion that an assumpsit was not a contract, to which was attributable a more enlarged theory of consideration than prevailed in debt.It was settled that assumpsit would lie for a mere omission or nonfeasance.The cases which have been mentioned of the reign of Henry VI.were followed by others in the latter years of Henry VII., and it was never again doubted.An action for such a cause was clearly for a breach of promise, as had been recognized from the time of Edward III.If so, a consideration was necessary. Notwithstanding occasional vagaries, that also had been settled or taken for granted in many cases of Queen Elizabeth's time.But the bastard origin of the action which gave rise to the doubt how far any consideration at all was necessary, made it possible to hold considerations sufficient which had been in debt.
Another circumstance may not have been without its influence.It would seem that, in the period when assumpsit was just growing into its full proportions, there was some little inclination to identify consideration with the Roman causa, taken in its broadest sense.The word "cause" was used for consideration in the early years of Elizabeth, with reference to a covenant to stand seized to uses. It was used in the same sense in the action of assumpsit. In the last cited report, although the principal case only laid down a doctrine that would be followed to-day, there was also stated an anonymous case which was interpreted to mean that an executed consideration furnished upon request, but without any promise of any kind, would support a subsequent promise to pay for it. Starting from this authority and the word "cause," the conclusion was soon reached that there was a great difference between a contract and an assumpsit; and that, whereas in contracts "everything which is requisite ought to concur and meet together, viz.the consideration of the one side, and the sale or the promise on the other side,...to maintain an action upon an assumpsit, the same is not requisite, for it is sufficient if there be a moving cause or consideration precedent; for which cause or consideration the promise was made." Thus, where the defendant retained the plaintiff to be to his aunt at ten shillings a week, it was held that assumpsit would lie, because the service, though not beneficial to the defendant, was a charge or detriment to the plaintiff. The old questions were reargued, and views which were very near prevailing in debt under Henry VI., prevailed in assumpsit under Elizabeth and James.
A surety could be sued in assumpsit, although he had ceased to be liable in debt. There was the same remedy on a promise in consideration that the plaintiff would marry the defendant's daughter. The illusion that assumpsit thus extended did not mean contract, could not be kept up.In view of this admission and of the ancient precedents, the law oscillated for a time in the direction of reward as the true essence of consideration. But the other view prevailed, and thus, in fact, made a change in the substantive law.A simple contract, to be recognized as binding by the courts of Henry VI., must have been based upon a benefit to the debtor; now a promise might be enforced in consideration of a detriment to the promisee.But in the true archaic spirit the doctrine was not separated or distinguished from the remedy which introduced it, and thus debt in modern times has presented the altered appearance of a duty limited to cases where the consideration was of a special sort.
The later fortunes of assumpsit can be briefly told.It introduced bilateral contracts, because a promise was a
detriment, and therefore a sufficient consideration for another promise.It supplanted debt, because the existence of the duty to pay was sufficient consideration for a promise to pay, or rather because, before a consideration was required, and as soon as assumpsit would lie for a nonfeasance, this action was used to avoid the defendant's wager of law.It vastly extended the number of actionable contracts, which had formerly been confined to debts and covenants, whereas nearly any promise could be sued in assumpsit; and it introduced a theory which has had great influence on modern law,--that all the liabilities of a bailee are founded on contract. Whether the prominence which was thus given to contract as the foundation of legal rights and duties had anything to do with the similar prominence which it soon acquired in political speculation, it is beyond my province to inquire.
