Another circumstance may not have been without its influence. It
would seem that, in the period when assumpsit [286] 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. /1/ It was used in the same
sense in the action of assumpsit. /2/ 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. /3/ 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." /4/
Thus, where the defendant retained the plaintiff to be [287] 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. /1/ 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. /2/ There was the same remedy on a promise in
consideration that the plaintiff would marry the defendant's
daughter. /3/ 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. /4/
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.
Public-domain text, read in full here on John Shaqi.
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