At a time when assumpsit could not be maintained without proof of an express promise, it is too early to expect to find any remedy in assumpsit for obligations which are created without promise either express or implied. Eventually, however, soon after the courts recognize a genuine implied promise, and with but little discussion, assumpsit is recognized as a proper action in cases in which money is due and owing from one person to another, although the person who owes such money has made no genuine promise either express or implied, to pay such money.1 Assumpsit was recognized as an action to recover money paid by mistake,2 or to recover money paid by void authority,3 or to recover money due by custom,4 or to recover fees,5 as for being knighted.6 While it is possible that there may have been in, some of these cases a genuine agreement for the payment of money for which the action is brought, no emphasis is laid upon such promise, and in some of the cases it is very clear that there was no genuine agreement to pay the money.7 To go from genuine implied contract to quasi-contract as a basis of assumpsit seems to have been much easier than to go from express contract to genuine implied contract.

3 Toth. 162 to 164.

4 I Spence on Equitable Jurisdiction of the Court of Chancery, 694.

1 Warbrook v. Griffin, 2 Brownl. 254; sub nomine, Watbroke v. Griffith, Moore, 876; Six Carpenters' Case, 8 Coke Rep. 147a; Nicholls v. More, 1 Sid. 36.

2 Warbrook v. Griffin, 2 Brownl. 254; sub nomine, Watbroke v. Griffith, Moore, 876.

It was said to be unnecessary in an action against a carrier for loss of goods, to allege that the owner had promised to pay a sum certain; since the carrier could declare on a quantum meruit: Nicholls v. More, 1 Sid. 36.

When this step was taken in the development of procedure, an action had been devised which was capable of enforcing every sort of duty to pay money and which was capable of indefinite expansion.8

Two problems still remained for solution. One of them was a relic of the earlier condition of law. It involved the question of the extent to which the existence of an earlier remedy such as debt would preclude the later and less formal remedy of assumpsit. The rule that an earlier action would exclude a later and better one, died hard. In spite of the dislike of creditors to subject themselves to the defence of wager of law, which lay to the action of debt, and in spite of the resultant pressure upon the king's courts, it was long before they would permit assumpsit to be brought for a debt, even where the debtor had made an express promise to pay the debt after he had incurred it.9 The willingness of the courts to enforce express promises as compared with their unwillingness to enforce implied promises or constructive contracts made them unwilling to allow assumpsit on a debt without an express promise to pay it long after they allowed assumpsit upon an express promise to pay a prior debt.10 Finally the view that assumpsit would lie upon a debt even without a subsequent express promise to pay it, prevailed.11 The reasons which the court gave for reaching this result amount to a renunciation of several long-cherished ideas of the common law.12

1 Bonnel v. Foulke, 2 Sid. 4; Duppa v. Gerrard, 1 Shower, 78; Mayor, etc, of London v. Gorry, 2 Lev. 174, 1 Vent. 298, 3 Keb. 677; Barber Surgeons of London v. Pelson, 2 Lev. 252; Newdi-gate v. Davy, 1 Ld. Baym. 742.

2 Bonnel v. Foulke, 2 Sid. 4.

3 Newdigate v. Davy, 1 Ld. Raym. 742.

4 Mayor, etc., of London v. Gorry, 2 Ley. 174, 1 Vent. 298, 3 Keb. 677.

5 Duppa v. Gerrard, 1 Shower, 78.

6 Duppa v. Gerrard, 1 Shower, 78.

7 Bonnel v. Foulke, 2 Sid. 4; Newdi-gate v. Davy, 1 Ld. Raym. 742.

8 For a discussion of the development of assumpsit as a means of enforcing quasi contractual obligations, see Norfolk v. Norfolk .County, Va., 91 S. E. 820.

9 Brooke's Abridgment (Action sur le case), 105.

10 Maylord v. Kester, Moore, 711.

The other problem looked to the future. It involved the question of the facts which would be regarded as creating the duty by one to pay money to the other upon- which the action of assumpsit could be brought.13