The English law, therefore, had always assumed the existence of consideration except in the sole case at an intermediate period of the formal contract under seal. This does not mean that the term was used or that the modern refined ways of requiring a consideration and of then evading this requirement were known; but from the outset a gratuitous promise seems to have had no place at English law. With the development of the action of assumpsit, the doctrine of consideration became of the highest practical importance. If the courts were to enforce promises not under seal, and not based on antecedent debts, the question was: What promises should be enforced? Should actions for nonperformance of all promises, even gratuitous ones, be maintained? If some promises were to be selected as enforceable, which were they? These questions were complicated by the form of action necessary in case of breach of executory simple contracts. We have already seen that this form of action was trespass on the case,1 and that it was long before assumpsit was differentiated from the forms of trespass on the case which were used in case of tort.2 Now, as long as assumpsit was, by reason of the form of action used, confused with tort - a confusion most natural since trespass on the case was finally treated as an action ex delicto,3 it was difficult to state, in abstract general language, why consideration should be necessary in trespass on the case when brought on a promise, while it was not necessary in trespass on the case when brought on a tort.4 Still, the practice of the courts was more in conformity to the views of modern law than their theories. The necessity of consideration was always one of those rules of law that was taken for granted. In the leading case in which it was held that an executory simple contract was enforceable, irrespective of partial performance,5 it seems to have been felt that the declaration would be defective charging defendant with breach of contract to build a mill, if it did not declare clearly what the promisee was to give for doing it.6 In the same reign we find consideration under the name of quid pro quo, assumed to be essential to an enforceable simple contract.7 Much of the trouble in recognizing and enforcing executory contracts in the king's courts grew out of the fact that no rules of damages existed; that the only way of reaching a just result in enforcing an executory contract was to give to each party an action for the value of the performance due to him; and that, when from the circumstances of the case this action could not be granted to one, the courts confronted with the dilemma of giving to one party the full value of the performance due him, and denying all relief to the other party, on the one hand, and of denying relief to both parties on the other, chose the latter course and denied relief to both when they were unable to grant it to each.

2 For a general discussion of the history of consideration see Debt, Assumpsit and Consideration, by W. S. Holdsworth, 11 Michigan Law Review, 347; Afterthoughts on Consideration, by Sir Frederick Pollock, 17 Law Quarterly Review, 415; Consideration in Contracts - 601 A. D. to 1520 A. D., by Robert L. Henry, Jr., 26 Yale Law Jour. 664.

3 "Perhaps we may doubt whether in the thirteenth century a purely gratuitous promise, though made in a sealed instrument, would have been enforced if its gratuitous character had stood openly revealed." Pollock and Mait-land History of English Law, Vol. II, 213, 214 (second edition).

4 See Sec. 1166.