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Updated: July 26, 2025
To go, however, was his destiny; and when he had made a highly laudable and far-away salute, it happened in the shift of people, and of light, and clothing, which goes on so much in the winter-time that a little hand came into his, and rose to his lips, with ground of action, not for assault and battery, but simply for assumpsit. Snowy weather now set in, and people were content to stay at home.
If damage had been done or occasioned by the act or omission of the defendant in the pursuit of some of the more common callings, such as that of a farrier, it seems that the action could be maintained, without laying an assumpsit, on the allegation that he was a "common" farrier. /1/ The latter principle was also wholly independent of bailment.
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.
But suppose the property has not come back to the hands of the true owner. If the thing remains in the hands of the defendant, it is clearly right that he should surrender it. And if instead of the thing itself he holds the proceeds of a sale, it is as reasonable to make him pay over its value in trover or assumpsit as it would have been to compel a surrender of the thing.
So when debt was brought on a deed to pay the plaintiff ten marks, if he would take the defendant's daughter to wife, and it was objected that the action should have been covenant, it was answered that the plaintiff had a contract precedent which gave him debt. /2/ The first case in assumpsit /3/ only meant to adopt this long familiar thought.
The cause was for damage to the goods, and the plaintiff sued for a tort, laying an assumpsit by way of inducement to a charge of negligence, as in the days of Henry VI. The plea was not guilty.
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. /1/ 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.
But after verdict for the plaintiff, there was a motion in arrest of judgment, "for that it was not alleged in the declaration that the defendant was a common porter, nor averred that he had anything for his pains." Consideration was never alleged or thought of in the primitive assumpsit, but in the modern action of contract in that form it was required.
"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."
Five years later another case /3/ came up, which was very like that of the farrier in the reign of Edward III. It was alleged that the defendant undertook to cure the plaintiff's horse, and applied medicine so negligently that the horse died. In this, as in the earlier case, the issue was taken on the assumpsit.
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