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Assumpsit, however, began as an action of trespass on the case, and the thing to be discovered is how trespass on the case ever became available for a mere breach of agreement.
An example like this raises no difficulty; it is as much an action of tort for a wrong as trespass itself. No contract was stated, and none was necessary on principle. But this does not belong to the class of cases to be considered, for the problem before us is to trace the origin of assumpsit, which is an action of contract.
So far as the use of words goes, I am not aware that consideration is distinctly called cause before the reign of Elizabeth; in the earlier reports it always appears as quid pro quo. One of the earliest references to what a promisor was to have for his undertaking was in the action of assumpsit. /1/ But the doctrine certainly did not originate there.
On the contrary, the very character of this simple litigation drew the lawyer into the street and neighborhood, and into close and active intercourse with all classes of his fellow-men. The suits consisted of actions of tort and assumpsit. If a man had a debt not collectible, the current phrase was, 'I'll take it out of his hide. "This would bring on an action for assault and battery.
This did not mean that delivery was a good consideration for a promise; but, as was laid down in Southcote's Case, that delivery, without a special acceptance to keep only as one's own goods, bound the bailee to keep safely, and therefore made it unnecessary to allege either an assumpsit or the defendant's common calling.
Lord Holt was well aware that the use of an assumpsit was not confined to contract. But as the duty of common carriers by reason of their calling was now supposed to extend to all kinds of losses, and the doctrine of Southcote's Case was probably supposed to extend to many kinds of damage, it became necessary, in a general discussion, to reconcile or elect between the two principles.
While covenants survive in a somewhat weak old age, and debt has disappeared, leaving a vaguely disturbing influence behind it, the whole modern law of contract has grown up through the medium of the action of Assumpsit, which must now be explained.
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., /3/ and it was never again doubted.
If you want to know the English law of book-debts, you will have to look for it under the head of Assumpsit in a treatise on Nisi Prius, while a lawyer of Scotland would unblushingly use the word itself, and put it in his index. So, too, our bailments are merely spoken of as bills, notes, or whatever a merchant might call them. Our garneshee is merely a common debtor.
It is more pertinent here to notice that his further qualification, exercising a public calling, was part of a protective system which has passed away. One adversely inclined might say that it was one of many signs that the law was administered in the interest of the upper classes. It has been shown above that if a man was a common farrier he could be charged for negligence without an assumpsit.
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