Page:Harvard Law Review Volume 8.djvu/276

260 26o HARVARD LAW REVIEW. It remains to consider the most prominent of all the English real contracts, the simple contract debt. The writ in Debt, like writs for the recovery of land, was a praecipe quod reddat. The judgment for the plaintiff is that he recover his debt. In other words, as in the case of real actions, the defendant was conceived of as having in his possession something belonging to the plaintiff which he might not rightfully keep, but ought to surrender. This doubtless explains why the duty of a debtor was always for the payment of a definite amount of money or a fixed quantity of chattels.^ A promise to pay as much as certain goods or services were worth would never support a count in Debt,^ In Y. B. 12 Edw. IV. 9-22, Brian, C. J., said : " If I bring cloth to a tailor to have a cloak made, if the price is not determined beforehand that I shall pay for the making, he shall not have an action of Debt against me." ^ For the same reason, the quantum meruit and quantum valebant counts seem never to have gained a footing among the common counts in Debt, and in Assumpsit the quan- tum meruit and quantum valebant counts were distinguished from the indebitatus counts. But principle afterwards yielded so far to convenience that it became the practice to declare in hidebitatus Assumpsit when no price had been fixed by the parties, the verdict mon-law defect by compelling the seller to hold the land to the use of the buyer, if the latter had either paid or agreed to pay the purchase-money. Br. AJo. Feoff, al Use, 54 ; Barker v. Keate, i Freem. 249, 2 Mod. 249 s. c. ; Gilbert, Uses, 52 ; 2 Sand. Uses, 57. The consideration essential to give the buyer the use of land was, therefore, identical with the quid pro quo which enabled him to maintain Detinue for a chattel Inasmuch as the consideration for parol uses was thus clearly borrowed from the common-law doctrine of quid pro quo, it seems in the highest degree improbable that the consideration for an Assumpsit w^.s borrowed by the Common Law from Equity. 2 Harv. L. Rev. i8, 19. But see Salmond, Essays in Jurisprudence, 213. 1 A debtor might as easily owe chattels as money. A debt of chattels would arise from the same quid pro quo as a debt of money. A lessee might accordingly be charged in debt for chattels by the lessor. Y. B. 20 and 21 Ed. I. 139 ; Y. B. 50 Ed. III. 16-8. Y. B. 34 Hen. VI. 12-23; Anon. 3 Leon. 260; Denny z/. Parnell, i Roll. Ab. 591, pi. i. Or an employer by his employee. Y. B. 7 Ed. III. 12-2 ; Weaver v. Best, Winch. 75. Or a vendor by his vendee. Y. B. 34 Ed. I. 150; Y. B. 27 Hen. VII. 8-20. As Inde- bitatus Assumpsit would lie for a debt payable in money, it was also an appropriate remedy for a debt payable in chattels. Cock v. Vivyan, 2 Barnard, 293, 384 ; Fal- mouth V. Penrose, 6 B. & C. 385 ; Mayor v. Clerk, 4 B. & Al. 268. The judgment in Debt for Chattels was like that in Detinue that the plaintiff recover his chattels. The essential distinction between Detinue and Debt for chattels seems to be this, — Detinue was the proper remedy for the recovery of a specific chattel, Debt, on the other hand, for the recovery or a specific amount of unascertained chattels. 2 Johnson v. Morgan, Cro. El. 758. ^ See to the same effect Y. B. 3 Hen. VI. 36-33 ; Anon., 2 Show. 183 ; Young v. Ashr burnham, 3 Leon. 161 ; Mason v. Welland, Skin. 238, 242.