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Updated: June 26, 2025
Assumpsit did not for a long time become an independent action of contract, and the allegation was simply the inducement to an action of tort.
As pleadings were formerly construed, it would not have been enough to allege that the plaintiff's goods were damaged by the defendant's negligence. /2/ These troubles had been got over by the well-known words, super se assumpsit, which will be explained later.
'Oh, very well, my lord; you know best. If you choose to make an assumpsit, I'm sure I shall not object to the security. Your lordship will be of age soon, I know I'm sure I'm satisfied but, added he with a malicious smile, 'I rather apprehend you don't know what you undertake; I only premise that the balance of accounts between us is not what can properly be called a paltry consideration.
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 President and his immediate followers were eager for war, Calhoun and his faction regarded the whole question as only matter for "an action of assumpsit," while Mr. Webster and Mr. Clay desired to avoid hostilities, but wished the country to maintain a firm and dignified attitude. Under the lead of Mr. Clay, the recommendation of reprisals was rejected, and under that of Mr.
It seems to have been admitted, as was repeatedly decided before and since that case, that one who was not a common carrier could have been charged for non-delivery in a special action; that is, in case as distinguished from assumpsit. Suppose, next, that the plaintiff sued in case for a tort.
A man went bail for his friend's servant, who had been arrested. Afterwards the master promised to indemnify the bail, and on his failure to do so was sued by him in assumpsit.
So far as the action did not exceed the true limits of tort, it was immaterial whether there was a consideration for the undertaking or not. But when the mistake was made of supposing that all cases, whether proper torts or not, in which an assumpsit was alleged, were equally founded on the promise, one of two erroneous conclusions was naturally thought to follow.
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/
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.
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