Page:Harvard Law Review Volume 2.djvu/397

Rh better security of payment thereof that the lessor should have his remedy by action of debt upon the reservation, or action upon this collateral promise at his election, and this being the intent at the beginning, the making of the lease, though real, would not toll this collateral promise, as a man may covenant to accept a lease at a certain rent and to pay the rent according to the reservation, for they are two things, and so the promise of payment is a thing collateral to the reservation, which will continue though the lessee assign over." This doctrine was repeatedly recognized in the King's Bench; it was adopted in the Exchequer in 1664; and was finally admitted by the Common Bench in Johnson v. May (1683), where, " because this had been vexata quætio the court took time to deliver their opinion,. . . and all four justices agreed that the action lay, for an express promise shall be intended, and not a bare promise in law arising upon the contract, which all agree will not lie."

In the cases thus far considered the assumpsit was for the payment of a sum certain. Assumpsit was also admissible where the amount to be recovered was uncertain; namely, where the defendant promised to pay a reasonable compensation for the use and occupation of land. Indeed, in such a case Assumpsit was the sole remedy, since Debt would not lie for quauanturn meruit.

Such was the state of the law when the Statute II Geo. II. c. 19, § I4, was passed, which reads as follows: "To obviate some difficulties that may at times occur in the recovery of rents, where demises are not by deed, it shall and may be lawful to ańd for the landlord, where the agreement is not by deed, to recover a reasonable satisfaction for the lands, tenements, and hereditaments held or occupied by the defendant in an action on the case for the use and occupation of what was so held and enjoyed; and if, in evi-