Page:Harvard Law Review Volume 2.djvu/74

 56 HARVARD LAW REVIEW,

in itself an assumpsit, for when one agrees to pay money, or to deliver anything, thereby he assumes or promises to pay or deliver it; and, therefore, when one sells any goods to another, and agrees to deliver them at a day to come, and the other, in consideration thereof, agrees to pay so much money at such a day, in that case both parties may have an action of Debt, or an action on the case on assumpsit, for the mutual executory agreement of both parties imports in itself reciprocal actions upon the case as well as actions of Debt/* Inasmuch as the judges were giving a new interpreta- tion to an old transaction ; since they, in pursuance of the presumed intention of the parties, were working out a promise from words of agreement which had hitherto been conceived of as sounding only in grant, it was not unnatural that they should speak of the promise thus evolved as an ** implied assumpsits But the promise was in no sense a fiction. The fictitious assumpsit, by means of which the action of Indebitatus Assumpsit acquired its greatest expansion, was an innovation many years later than Slade*s case.

The account just given of the development of Indebitatus As" sumpsit, although novel, seems to find confirmation in the parallel development of the action of Covenant. Strange as it may seem, Covenant was not the normal remedy upon a covenant to pay a definite amount of money or chattels. Such a covenant being re- garded as a grant of the money or chattels. Debt was the appro- priate action for their recovery. The writer has discovered no case in which a plaintiff succeeded in an action of Covenant, where the claim was for a sum certain, antecedent to the seventeenth century ; but in an action of Debt upon such a claim, in the Queen's Bench, in 1585, " it was holden by the Court that an action of Cove- nant lay upon it, as well as an action of Debt, at the election of the plaintiff."^ The same right of election was conceded by the Court in two cases ^ in 1609, in terms which indicate that the privilege was of recent introduction. It does not appear in what court these cases were decided ; but it seems probable that they were in the King's Bench, for, in Chawner v, Bowes,* in the Com- mon Bench, four years later, Warburton and Nichols, JJ., said: " If a man covenant to pay j^ 10 at a day certain, an action of debt

. 1 Anon., 3 Leon. 1 19.

2 Anon., I Roll. Ab. 518, pi. 3; Strong z^. Watts, i Roll. Ab. 518, pi. 2. See also Mordant v. Watts, Brownl. 19 ; Anon., Sty. 31 ; Frere v, •^—, Sty. 133 ; Norrice's Case, Hard. 178. « Godb. 217.