According to modern notions there is almost always either a contract implied in fact or an express contract in any situation where the early common law recognized the creation of a debt; but such was not the doctrine formerly held. Debt as a remedy long antedates any recognition of simple contracts, and when the action of assumpsit first arose, even though there was an express contemporaneous promise to pay the price of goods or of services, assumpsit would not lie for the price because a debt had been created, and the action of debt was regarded as higher in its nature than the action on the case. Therefore, debt was the exclusive remedy.67

N. W. 993, 1049; Hen's Estate, 150 Pa. 346, 24 Atl. 676; Gourdin v. Tren-holm, 25 S. Car. 362; Shugart v. Shugart, 111 Tenn. 179, 76 8. W. 821. 102 Am. St. Rep. 777; M. T. Jones Lumber Co. v. Villegas, 8 Tex. Civ. App. 669, 28 8. W. 558; Stoneburner v. Motley, 05 Va. 784, 30 S. E. 364 In re Goddard's Estate, 66 Vt. 415, 29 Atl 634; Carstens Packing Co. v. Lewis C. Troughton, Inc., 90 Wash. 196, 196 Pac. 758; Bank of Commerce v. Roas, 91 Wis. 320,64 N. W. 993.

67Maylard v. Kester, Moore, 711; Edgcomb v. Dee, Vaugh. 89, 101; Ames, Hist, of Assumpsit, 2 Hat v. L. Rev. 54. The same sort of notion prevailed till a much later day in regard to the actions of assumpsit and covenant. Even though the facts afforded proof of a promise for good consideration upon which assumpsit would lie, were it not for the fact that a covenant had also been entered into, that fact made covenant the exclusive remedy. Inland v. Barry, 60 111. 348.

It was not until Slade's Case 68 in 1602, that it was decided that assumpsit would lie upon a contract which also created a debt. Nevertheless the courts had allowed, even before Slade's Case, an action of assumpsit to be brought upon a simple contract debt, provided the defendant made an express promise to pay the debt subsequent to its creation. The existence of the debt was regarded as a sufficient consideration to support the promise, on which the action was based.69 The object of the court in stretching the theory of consideration so as to allow redress in assumpsit upon a promise the only consideration of which was past, was chiefly to permit the plaintiff to sue in an action where trial by jury was the prescribed method of trial instead of compelling him to sue on the antecedent debt in an action where wager of law was allowed to the defendant.70 Also, in assumpsit the plaintiff was allowed a simpler method of pleading his right to recover a promised debt than was permitted in the action of debt. The common counts in indebitatus assumpsit seem to have become recognized early in the seventeenth century.71 At first, in order to support the action of assumpsit to recover a debt it was essential that the defendant should make an express promise to pay the debt, either subsequently to its creation or, after Slade's Case, at the time it was created. Later, a step in advance was taken by the recognition of promises implied in fact, not only for debts of specific amounts but also for unliquidated claims, when the elements of a contract could be found in the acts of the parties though not in their words.72

684 Coke, 92(b).

69Sidenbam v. Worlington, 2 Leon. 224; Field v. Dale, 1 Rolle Ahr. 11, pl. 8; Janson v. Collomore, 1 Rolle, 396; Hodge v. Vavisor, 1 Rolle, 413; Barton v. Shurley, 1 Rolle Abr. 16, pl. 12; Ames, Hist, of Assumpsit, 2 Harv. L. Rev. 54. But a promise by a husband to pay an antenuptial debt of his wife was held not sufficiently supported by the liability imposed by law upon him as husband, to be enforceable. Drue v. Thome, Aleyn, 72; Mitchinson v. Hen-son, 7 T. R. 348.

70 Slade's Case, 4 Coke, 92 (b); Ames,

Hist, of Assumpsit, 2 Harv. L. R. 57. As to the nature of trial by wager of law see Thayer's Preliminary Treatise on Evidence, p. 24.

71 Ames, Hist, of Assumpsit, 2 Harv. L. Rev. 57.

72 This implication was first made in favor of the innkeeper to allow him to recover from the guests all charges incurred in his entertainment. War-broke v Griffith, 2 Brownl. 255, s. c, Moore, 876. The tailor was also allowed similarly to sue on an implied promise, The Six Carpenters' Case, 146 (a), 147 (a); and before the middle of the seven-

A still further step was taken when quasi-contractual obligations were enforced in the action of indebitatus assumpsit under the guise of promises implied in law. This step was taken by the end of the seventeenth century.73 At the present day there seems no longer any necessity for recognizing the validity of a subsequent promise to pay a debt, unless the subsequent promise is under seal or is a negotiable instrument.74 Where common-law forms of action still prevail, the fact that there is a simple contract debt justifies the creditor in suing for it in assumpsit. He is, therefore, amply protected both as matter of substantive law and matter of procedure, and this without imposing the strain upon the doctrine of consideration of maintaining the exception to the general definition, involved in holding that a subsequent promise to pay the debt creates a new contract; and save as applied to a few exceptional cases, such as promises to pay debts barred by the Statute of limitations or Bankruptcy,75 the old doctrine might be considered wholly outgrown and be allowed to drop out of sight. There can be no doubt that this result has been reached in England. Before the end of the 18th century it was held by the House of Lords that a precedent debt was not sufficient consideration for any promise other than that which the law would imply.76 And so far as concerns express promises which are teenth century a similar right was permitted to any one who had rendered services without an express promise being made to pay for them. Sheppard, Actions on the Case (2d ed.), 50; Sheppard, Faithful Counsellor (2d ed.), 125.

73 The earlier eases seem to have been for the enforcement of customary duties. City of London v. Garry, 2 Lev. 174, s. c. 1 Vent. 298, 3 Keb. 677, Freeman, 433; Barber Surgeons v. Pelson, 2 Lev. 252; Mayor v. Hunt, 2 Lev. 37; Duppa v. Gerard, 1 Show. 78. But see York v. Toun, 5 Mod. 444. The remedy was extended to other debts imposed by law on quasi-contractual principles. Bonnele.Foulke, 2 Sid. 4; Martin v. Sitwell, 1 Show. 156, s. c. Holt, 25; Holmes v. Hall, 6 Mod. 161, s. c.