Page:Harvard Law Review Volume 2.djvu/34

 16 representatives of a deceased person were as fully liable for his assumpsits as for his covenants. Assumpsit, however, long retained certain traces of its delictual origin. The plea of not guilty was good after verdict, “because there is a disceit alleged.” Chief Baron Gilbert explains the comprehensive scope of the general issue in assumpsit by the fact that “the gist of the action is the fraud and delusion that the defendant hath offered the plaintiff in not performing the promise he had made, and on relying on which the plaintiff is hurt.” This allegation of deceit, in the familiar form: “Yet the said C. D., not regarding his said promise, but contriving and fraudulently intending, craftily and subtly, to deceive and defraud the plaintiff,” etc., which persisted to the present century, is an unmistakable mark of the genealogy of the action. Finally, the consideration must move from the plaintiff to-day, because only he who had incurred detriment upon the faith of the defendant’s promise, could maintain the action on the case for deceit in the time of Henry VII.

The view here advanced as to the origin of special assumpsit, although reached by an independent process, accords with, it will be seen, and confirms, it is hoped, the theory first proclaimed by Judge Hare.

The origin of indebitatus assumpsit may be explained in a few words: Slade’s case, decided in 1603, is commonly thought to be the source of this action. But this is a misapprehension. Indebitatus assumpsit upon an express promise is at least sixty years older than Slade’s case. The evidence of its existence throughout the last half of the sixteenth century is conclusive. There is a note by Brooke, who died in 1558, as follows: “Where one is indebted to me, and he promises to pay before Michaelmas, I may have an action of debt on the contract, or an action on the case on the promise.” In Manwood v. Burston (1588), Manwood, C. B., speaks of “three manners of considerations upon which an