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Updated: June 26, 2025
Clearly the delivery would be sufficient consideration to enable the owner to declare in assumpsit for the breach of those duties which arose, irrespective of contract, from the defendant's having undertaken to deal with the thing. /1/ It would be a sufficient consideration for any promise not involving a dealing with the thing for its performance, for instance, to pay a thousand dollars. /2/ And the law has not pronounced the consideration good or bad according to the nature of the promise founded upon it.
The counsel for Sir John laid great stress upon the erroneous manner in which the action had been laid, and contended that as the English form of' assumpsit' had been taken, in order to get both debt and damages, instead of a single action of damages being brought, all the consequences of the form adopted must be taken by the plaintiff, who, not having proved damages, or even stated them, must be held by the court to have made out no case, and be cast accordingly.
Negligence, it might be said, had nothing to do with the common-law liability for a nuisance, and it might be added that, where negligence was a ground of liability, a special duty had to be founded in the defendant's super se assumpsit, or public calling. /1/ On the other hand, we shall see what can be said for the proposition, that even in trespass there must at least be negligence.
I ought to add that I do not suppose that Mr. Ames would disagree with what I suggest. However, if we consider the law of contract, we find it full of history. The distinctions between debt, covenant, and assumpsit are merely historical. The classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi contracts, is merely historical.
Furthermore, as formerly the defendant's public calling had the same effect as an assumpsit for the purpose of charging him in tort, it seems now to have been thought an equally good substitute for a special promise, in order to charge him in assumpsit. In Rogers v.
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. /1/ It was, perhaps, the lingering of this idea, and the often repeated notion that an assumpsit was not a contract, /2/ to which was attributable a more enlarged theory of consideration than prevailed in debt.
It was, however, no peculiarity of either the action or contract of debt which led to this view, but the imperfectly developed theory of consideration prevailing between the reigns of Henry VI. and Elizabeth. The theory the same in assumpsit, /4/ and in equity. /5/ Wherever consideration was mentioned, it was always as quid pro quo, as what the contractor was to have for his contract.
Bernard whenever a peculiar responsibility was imposed upon bailees, we find that sometimes an assumpsit was laid as in the early precedents, /2/ or more frequently that the bailee was alleged to be a common bargeman, or common carrier, or the like, without much reference to the special nature of the tort in question; and that the true bearing of the allegation was sometimes lost sight of.
The chief reason why debt was supplanted for centuries by a later remedy, assumpsit, was the survival of this relic of early days. Finally, in England as in Germany, debt for the detention of money was the twin brother of the action brought for wrongfully withholding any other kind of chattel. The gist of the complaint in either case was the same.
Head, /1/ the argument was, that to charge one in assumpsit you must show either his public calling at the time of the delivery, or a special promise on sufficient consideration.
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