Page:Harvard Law Review Volume 2.djvu/79

 THE HISTORY OF ASSUMPSIT. 6 1

less enabled plaintiffs sometimes to recover, although the promise was not identical with what would be implied, and in some cases even where it would be impossible to imply any promise.^ But after the conception of a promise implied in fact was recognized and un- derstood, these anomalies gradually disappeared, and the subse- quent promise came to be regarded in its true light of cogent evidence of what the plaintiff deserved for what he had done at the defendant's request.

The non-existence of the promise implied, in fact, in early times, also makes intelligible a distinction in the law of lien, which greatly puzzled Lord Ellenborough and his colleagues. Williams, J., is reported to have said in 1605 : *' If I put my cloths to a tailor to make up, he may keep them till satisfaction for the making. But if I contract with a tailor that he shall have so much for the mak- ing of my apparel, he cannot keep them till satisfaction for the making." ^ In the one case, having no remedy by action, he was allowed a lien, to prevent intolerable hardship. In the other, as he had a right to sue on the express agreement, it was not thought necessary to give him the additional benefit of a lien.^ As soon as the right to recover upon an implied quantum meruit was admitted, the reason for this distinction vanished. But the acquisition of a new remedy by action did not displace the old remedy by lien.* The old rule, expressed, however, in the new form of a distinction between an express and an implied contract, survived to the pres- ent century.^ At length, in 1816, the judges of the King's Bench, unable to see any reason in the distinction, and unconscious of its origin, declared the old dicta erroneous, and allowed a miller his lien in the case of an express contract®

��1 Langdell, Contracts, §§ 93, 94.

« 2 Roll. Ab. 92, pi. I, 2.

' An innkeeper had the further right of selling a horse as soon as it had eaten its value, if there were no express contract. For, as he had no right of action for its keep, the horse thereafter was like a damnosa hereditas. The Hostler's case (1605), Yelv. 66, 67. This right of sale disappeared afterwards with the reason upon which it was founded. Jones V. Pearle, i Stra. 556.

he may have an action on the case for the meat." Watbrookez'. Griffith (1609), Moore, 876, 877.
 * " And it was resolved that an innkeeper may detain a horse for his feeding, and yet

(x), per Lord Holt; Brennan v, Currint (1755), Say. 224, Buller, N. P. (7 ed.) 45. n. (c) ; Cowell v. Simpson, 16 Ves. 275, 281, per Lord Eldon ; Scarfe v. Morgan, 4 M. & W. 270, 283, per Parke, B.
 * Chapman v. Allen, Cro. Car. 271 ; Collins v. Ongly, Sclw. N. P. (13 ed.) 131 2, n.

« Chase v. Westmore, 5 M. & Sel. 180.