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“ And these words became the peculiar mark of the technical action of assumpsit, as distinguished from other actions on the case against surgeons or carpenters, bailees and warranting vendors, in which, as we have seen, it was still customary to allege an undertaking by the defendant.
It follows, from what has been written, that the theory that consideration is a “modification of quid pro quo,” is not tenable. On the one hand, the consideration of indebitatus assumpsit was identical with quid pro quo, and not a modification of it. ”

“ The action sounding in tort, the plaintiff, in order to charge the defendant, must show, in addition to his undertaking, some act by him, that is, a sale; but the owner was the seller, and not the friend or servant, in the cases supposed. A contract, again, is, properly, a promise to act or forbear in the future. But the action under discussion must be, as Choke, J., said, in the same case, upon a warranty of a thing present, and not of a thing to come. A vendor who gives a false warranty may be charged to-day, of course, in contract ”

“ The grant of the use was furthermore assimilated to the grant of a chattel or money. A quid pro quo, or a deed, being essential to the transfer of a chattel or the grant of a debt, [89] it was required also in the grant of a use. Equity might conceivably have enforced uses wherever the grant was by deed. But the chancellors declined to carry the innovation so far as this. They enforced only those gratuitous covenants which tended to “the establishment of the house” of the covenantor; in other words, covenants made in consideration of blood or marriage. ”

“ The gist of the action being tort, and not contract, a servant, [11] a wife, [12] or a child, [13] who is injured, may sue a defendant who was employed by the master, the husband, or the father. Wherever the employment was not gratuitous, and the employer was himself the party injured, it would, of course, be a simple matter to frame a good count in contract. There is a precedent of assumpsit against a farrier for laming the plaintiff’s horse. ”

“ There is much in common between the two classes of actions on the case already discussed and still a third group of actions on the case, namely, actions of deceit against the vendor of a chattel upon a false warranty. This form of action; like the others, is ancient, being older, by more than a century, than special assumpsit. ”

“ And so, if I sell you my land and covenant to enfeoff you and do not, you shall have a good action on the case, and this is adjudged.... And if I covenant with a carpenter to build a house and pay him £20 for the house to be built by a certain day, now I shall have a good action on my case because of payment of money, and still it sounds only in covenant and without payment of money in this case no remedy, and still if he builds it and misbuilds, action on the case lies. And also for nonfeasance, if money paid case lies. ”

“ An action will not lie against a tenant-at-will generally, if the house be burnt down. But if the action had been founded upon a special undertaking, as that in consideration the lessor would let him live in the house he promised to deliver up the house to him again in as good repair as it was then, the action would have lain upon that special undertaking. ”

“ In all these cases, it will be observed, the plaintiff sought to recover damages for a physical injury to his person or property caused by the active misconduct of the defendant. The statement of the assumpsit of the defendant was for centuries, it is true, deemed essential in the count. But the actions were not originally, and are not to-day, regarded as actions of contract. They have always sounded in tort. Consideration has, accordingly, never played any part in the declaration. In the great majority of the cases and precedents there is no mention of reward or consideration. ”

“ If, on the other hand, one saw fit to authorize another to come into contact with his person or property, and damage ensued, there was, without more, no tort. The person injured took the risk of all injurious consequences, unless the other expressly assumed the risk himself, or unless the peculiar nature of one’s calling, as in the case of the smith, imposed a customary duty to act with reasonable skill. ”

“ The defendant, having induced the plaintiff to become the procurator of his benefice, by a promise to save him harmless for the occupancy, secretly resigned his benefice, and the plaintiff, being afterwards vexed for the occupancy, obtained relief by subpœna.
Both in equity [69] and at law, therefore, a remediable breach of a parol promise was originally conceived of as a deceit; that is, a tort. Assumpsit was in several instances distinguished from contract. [70] By a natural transition, however, actions upon parol promises came to be regarded as actions ex contractu. ”

“ Of these detriment was the more ancient, having become established, in substance, as early as 1504. On the other hand, no case has been found recognizing the validity of a promise to pay a precedent debt before 1542. These two species of consideration, so different in their nature, are, as would be surmised, of distinct origin. The history of detriment is bound up with the history of special assumpsit, whereas the consideration based upon a precedent debt must be studied in the development of indebitatus assumpsit. ”

“ A third learned writer derives the action of assumpsit from the action on the case for deceit, the damage to the plaintiff in that action being the forerunner of the “detriment to the promisee,” which constitutes the consideration of all parol contracts. [3]
To the present writer [4] it seems impossible to refer consideration to a single source. At the present day it is doubtless just and expedient to resolve every consideration into a detriment to the promisee incurred at the request of the promisor. ”

“ A debt precedent, (2) where he to whom such a promise is made is damnified by doing anything, or spends his labor at the instance of the promisor, although no benefit comes to the promisor... (3) or there is a present consideration.” [81]
The Queen’s Bench went even further. In that court proof of a simple contract debt, without an express promise, would support an indebitatus assumpsit. [82] The other courts, for many years, resisted this doctrine. Judgments against a debtor in the Queen’s Bench upon an implied assumpsit were several times reversed in the Exchequer Chamber. ”

“ The practice of decreeing specific performance of any promises can hardly be much older than the middle of the sixteenth century. Bro. Ab. Act on Case, pl. 72. But the invalidity of a nudum pactum was clearly stated by Saint-Germain in 1531. ”

“ Benj. Sale (3 ed.) , 620–631. ↑ Y. B. 2 H. IV. 3, pl. 9. ↑ Y. B. 11 H. IV. 33, pl. 60. See, also, 7 H. VI. 1, pl. 3. ↑ Covenant was often used in the old books in the sense of agreement, a fact sometimes overlooked, as in Hare, Contracts, 138, 139. ↑ Y. B. 3 H. VI. 36, pl. 33. One of the objections to the count was that it did not disclose how much the defendant was to have for his work. ”