Holt, 36; Woodward v. Aston, 2 Mod. 95; Arris v. Stukely, 2 Mod. 260; Jacob v. Allen, 1 Salk. 27; Lamina v. Dorrell, 2 Ld. Ray. 1216. See further Ames, Hist, of Assumpsit, 2 Harv. L. Rev. 64-68.
74 In such cases the formal instrument cancels the original debt. So far as consideration is necessary, it is not the existence, but the satisfaction of the precedent debt which furnishes it. See supra, Sec. 108.
75See infra, Sec.Sec.157 et tag.
76Rann v. Hughes, 7 T. R. 350, note (a). It was therefore held that a promise by an administratrix to pay personally the debt of her intestate was not binding. Lord Chief Baron Skynner delivering the opinion of the judges said: "The being indebted is of itself a mere repetitions of the obligation of the debt, though the practice of declaring upon such a promise or as if there had been such a promise continued as long as common-law pleading in indebitatus assumpsit lasted,77 nevertheless, the promise if made added nothing to the obligation created by the debt except to start afresh the running of the Statute of Limitations; 78 and not only there are no modern precedents in special assumpsit, of a declaration based on a new express promise to pay a precedent debt, but there is express authority for the statement that a new promise creates no new obligation.79 That the real basis of the plaintiff's right in indebitatus assumpsit in modern times has been the debt and not the alleged promise, whether that promise was in fact real or fictitious, is shown by the circumstance that though in form the defendant in the action pleaded non assumpsit, in substance that traverse put in issue the existence of the debt.80 sufficient consideration to ground a promise; but the promise must be coextensive with the consideration, unless some particular consideration of fact can be found here to warrant the extension of it against the defendant in her own capacity." 80 in Hopkins v. Logan, 6 M. & W. 241, a precedent debt was held insufficient to support a promise to pay the debt at a fixed future day.
77 The declaration in indebitatus as-sumpsit alleged a debt, and further that the defendant "bang indebted promised to pay." As this alleged promise was said to be implied by law in any case where there was a debt, such as the count described, it was impossible to tell from the declaration whether an actual promise had been made or whether the plaintiff relied merely on a promise implied by law; and at the trial the only essential fact to be proved was the debt. A promise to pay it, if made, was immaterial.
78See infra, Sec. 160.
79 In Deacon v. Gridley, 15 C. B. 295, 309, Maule, J., said: "When the Statute [of Limitations] does not come in question, assuming that the letter does contain an acknowledgment, or even a promise, it amounts to no more than this,-that a man, being liable to pay a debt, promises to pay it. Such a promise, which leaves the legal rights of the parties just where they were, creates no new cause of action." In Leake on Contracts (6th ed.), 444, the author says: "A promise to perform an existing obligation, without some new consideration to support it, is a voluntary promise, which, unless made under seal, does not create any new obligation." In a case not of debt but of a contractual obligation of another sort the Supreme Court of Maine held that a contract to marry, though evidenced by promises at different times, is but a single contract, and a breach thereof is but one breach of one contract. Garmong v. Henderson, 112 Me. 3S3, 92 A. 322.
80 Langdell, Summ. Contracts, Sec. 95. The danger of maintaining the old mode of reasoning is that it furnishes an apparent basis for conclusions at variance with both ancient and modern law.
Sec. 144. Promises in consideration of an act previously done at the request of the promisor. It was natural that the early courts should be even more desirous of affording a remedy in assumpsit for cases now covered by promises implied in fact than in cases where the plaintiff could maintain an action of debt, for in the former class of cases the plaintiff had no remedy at all until the action of assumpsit was permitted. Debt would not lie since the claim was unliquidated,81 and promises implied in fact were not recognized. In allowing assumpsit on a subsequent promise not unnaturally the courts did not confine the remedy to cases where a quid pro quo had been given, sufficient to create a debt if a definite price had been agreed upon, but also allowed the remedy where any consideration had been given at the request of the defendant which would have supported a promise had the promise been given contemporaneously with the consideration. In both classes of cases there is the same reason, in justice, for allowing relief, and in both classes at the present day the plaintiff can unquestionably-recover on the theory of a promise implied in fact. Relief was granted if a subsequent express promise was made in such cases before the end of the sixteenth century.82 The
Thus in Webster v. LeCompte, 74 Md. 249, 257, 22 Atl. 232, in a dictum unnecessary for the decision, the court says that if a debtor's own debt is sufficient consideration for a promise to pay it, another person's debt must be equally good, and that therefore a gratuitous promise to pay the debt of another which has been discharged by bankruptcy proceedings is binding.
81 See supra, Sec. 11.
82 In Hunt v. Bate, Dyer, 272 , the plaintiff who had become surety for the defendant's servant was promised indemnity by the defendant and the court arrested judgment because "the master did never make request to the plaintiff for his servant to do so much, but he did it out of his own head." In Sidenham v. Worlington, 2 Leon. 224 115851, the plaintiff declared that at the defendant's request he became surety and was obliged to pay, after which the defendant promised the plaintiff to repay him and judgment was given for the plaintiff. Rhodes, J., said: "If one serve me for a year, and hath nothing for his service, and afterwards, at the end of the year, I promise him 20 l. for his good and faithful service ended, he may have and maintain an action upon the case upon the same promise, for it is made upon a good consideration; but if a servant hath wages given him, and his master ex abundanti doth promise him 10 l. more after his service ended, he shall not maintain an action for that 10 l. upon the said promise; for there is not any new cause or consideration preceding the promise; which difference was agreed by all the justices." See also Riggs v. Bullaction was on the promise, which was said to be supported by the previous act of the plaintiff requested by the defendant. In order to reconcile these decisions with the accepted theory of consideration, the courts by a fictitious doctrine of relation said either that the consideration continued until the promise or that the promise related back to the consideration.83 With the recognition of promises implied in fact, the necessity of resorting to such a fiction ceased. Though it is still occasionally stated as representing the English law,84 this is only to explain certain anomalous cases of revival of past liability. That a subsequent promise to do anything beyond what the law would imply is ineffectual except in those cases seems clear. Indeed in the nineteenth century it was squarely held that a consideration furnished at request would not support a subsequent express promise, which went beyond those boundaries.85 The value of a subsequent express promise in the modern English law has been thus expressed: "Probably at the present day, such service on such request would have raised a promise by implication to pay what it was worth; and the subsequent promise of a sum certain would have been evidence for the jury to fix the amount." 86 But if the amount subsequently promised were so extravagant as to appear to be based on affection rather than on an estimate of the value of the service, the evidence might be of little worth.87