Page:Harvard Law Review Volume 2.djvu/83

 THE HISTORY OF ASSUMPSIT 65

that, from the time of that case, Indebitatus Assumpsit was con- current with Debt in all cases, unless the debt was due by record, specialty, or for rent

The earliest reported case of Indebitatus Assumpsit upon a cus- tomary duty seems to be City of London v, Goree,* decided seventy years later than Slade's case. ** Assumpsit for money due by custom for scavage. Upon non-Assumpsit the jury found the duty to be due, but that no promise was expressly made. And whether Assumpsit lies for this money thus due by custom, without express promise, was the question. Resolved it does." On the authority of that case, an officer of a corporation was charged in Assumpsit, three years later, for money forfeited under a by-law.^ So, also, in 1688, a copyholder was held liable in this form of action for a customary fine due on the death of the lord, although it was objected ** that no Indebitatus Assumpsit lieth where the cause of action is grounded on a custom." ^ Lord Holt had not regarded these extensions of Indebitatus Assumpsit with favor. Accordingly, in York v. Toun,* when the defendant urged that such an action would not lie for a fine imposed for not holding the office of sheriff, " for how can there be any privity of assent implied when a fine is imposed on a man against his will?" the learned judge replied: these actions redressed. It is hard that customs, by-laws, rights to impose fines, charters, and everything, should be left to a jury." By another report of the same case,^ ** Holt seemed to incline for the defendant. . . . And upon motion of the plaintiff's counsel, that it might stay till the next term, Holt, C.J., said that it should stay till dooms-day with all his heart; but Rokesby, J., seemed to be of opinion that the action would lie. — Et adjourttatur. Note. A day or two after I met the Lord Chief Justice Treby visiting the Lord Chief Justice Holt at his house, and Holt repeated the said case to him, as a new attempt to extend the Indebitatus As- sumpsit, which had been too much encouraged already, and Treby, C.J., seemed also to be of the same opinion with Holt."
 * We will consider very well of this matter ; it is time to have

1 Lev. 174, I Vent. 298, 3 Keb. 677, Freem. 433, s.c.

2 Barber Surgeons v. Pelson (1679), 2 Lev. 252. To the same eflFect, Mayors. Hunt (1681), 37, Assumpsit for weighage; Duppa v, Gerard (1688), i Show. 78, Assumpsit for fees of knighthood.

• Shuttleworth v. Garrett, Comb. 151, i Show. 35, Carth. 90, 3 Mod. 240,3 Lev. 261 s. c. . * 5 Mod. 444. * I Ld. Ray. 502.