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his (the defendant's) own boat, that it was upset and the cattle were drowned; the objection that the action should have been in covenant was over-ruled; and it was held that the overloading of the boat was a trespass." The second case of misfeasance was in 1370 (still in the reign of Edward III). In this case, the defendant, having undertaken to cure the plaintiff’s horse, had done the work so negligently that the horse died; again it was objected by the defendant that the proper action was covenant; and again this objection was over-ruled ; and it was held that the action was rightly framed in tort for negligence." In the reign of Henry IV the Judges refused to extend the principle of the law with regard to misfeasance; they decided that mere nonfeasance could not be triable by action of trespass on the case." But in 1425 there was a difference in the opinions of the Judges; and though the opinion of Martin prevailed, viz., that mere nonfeasance was not triable by action of trespass on the case, yet there was a dissenting judgment in favour of extending the scope of this action.” The next recorded action of trespass on the case, in which the principle of the law with regard to misfeasance was further extended, was in 1433, viz., the case of J. Somerton.* In this case the facts were as follows: The defendant had agreed to act as counsel for the plaintiff in negotiating for the purchase of a manor, and plaintiff had agreed to pay defendant a fixed sum for his services; but the defendamt. in fraud of his agreement, had become of counsel to a second employer, to whom he betrayed the plaintiff’s secrets, and bought the manor for the second employer instead. The actual issue of this case is uncertain ; but it would seem that the Judges held that the defendant’s deceit was actionable even apart from his having entered on his proper work. “Matter which lies in covenant may by matter arising er post facto become deceit * [per Cotesmore]. And this extended principle of the action of trespass on the case was distinctly affirmed three years later by Newton in 1436:” after laying down certain principles already recognized, he said: “If a doctor takes upon himself to cure me, and he gives me medicines but does not cure me, I shall have action on my case . . . and the cause is in all these cases that there is an understanding and a matter in fact beyond the matter which sounds merely in covenant: in these cases the plaintiffs have suffered a wrong.” And Judges Juyn and Paston held that nonfeasance was actionable as well as misfeasance: “ for all that [misfeasance] is dependent upon the agreement and merely accessory to it: and as I have action upon that which is accessory, I shall have an action on the principal.” These decisions mark some advance on those of the reign of Henry IV, in which it had been decided that mere nonfeasance was not triable by action of trespass on the case. This advance is distinctly noticeable in the reign of Henry VI: in 1425 it was first suggested that mere nonfeasance was actionable as well as misfeasance. It would seem, however, that even in 1436 this was still merely an obiter dictum ; and Judge Martin had previously said in 1425 that it would mean “ that one shall have trespass for any breach of covenant in the world,” and Dr. Holdsworth considers that its acceptance would have made it impossible to distinguish between agreements which the law would inforce and those which it would not enforce.” In 1442, a Bill of Deceit was brought in the King's Bench,” it being alleged that the defendant had agreed to sell land to the plaintiff, that plaintiff had actually paid him £100 for it, and that defendant in fraud of his agreement had then enfeoffed another person instead. Here the distinction between misfeasance and nonfeasance was further narrowed down; it was pointed out that to enfeoff a strenger and not to enfeoff the plaintiff was the same thing; if no action lay for the latter, how could there be an action for the former? It seems to have had some weight with the Judges that the price had already been paid, but Judges Newton and Prisot held that a mere contract to sell land at a fixed price would entitle the purchaser to an action even though the price had not been paid, and would entitle the vendor to an action even though the land had not been conveyed. It would seem that the above cases of misfeasance were decided against the defendants on the ground that there was an element of deceit in the defendant’s conduct. In 1487, however, it was held that the traverse of the alleged feoffment to another was good, because the feoffment to another was essential to an action for misfeasance;” but this was the last time the old distinction was upheld, for in 1504, Frowych, C.J., says:–“If I sell you my land and agree to enfeoff you and do not, you shall have a good action on the case.” The reign of Henry VII. marks the definite abandonment of the old distinction between misfeasance and nonfeasance in the action of deceit on the case. The reason for this gradual recognition of executory contracts by the Common-law Courts was, that in so many cases the Court of Chancery was ready to grant a remedy where the Common law failed to do so. It is even said that there had been, as early as the beginning of the reign of Henry VI., a Chancery writ for an action on a wholly executory contract. But it was not till late in the reign of Henry VII. that the Common-law Judges distinctly recognized the right to proceed by action of assumpsit for nonfeasance as well as for misfeasance. Even then the words of Frowych leave it very doubtful whether the plaintiff could have succeeded under any circumstances, unless he had already performed his part of the agreement (viz., paid the money). in other words, it was not yet settled law that a wholly executory contract could be sued on. But at last, in the case of Norwood v. Read,” it was definitely decided that “every contract executory is an assumpsit in itself.” In Slade's Case " it was finally settled that assumpsit lay upon any debt, and that “every contract executory imports in itself an assumpsit.” But the great case in point is the case of Nichols v. Raynberd," in this case plaintiff had agreed to deliver to defendant a cow; in consideration of which promise, the defendant had promised to pay plaintiff 50s. Plaintiff brought action of assumpsit; and it was held that he need not aver the delivery of the cow, because the consideration was promise for promise. And thus, there is yet another respect in which these decisions, and especially this last, are important. In the course of these decisions, which first made nonfeasance as well as misfeasance actionable, and then made a wholly executory contract actionable, there grew up the doctrine of consideration. It would seem that this doctrine of consideration was originally an equitable doctrine, and that it was adopted by the Common-law Courts from the Court of Chancery. As the action for nonfeasance of an executory contract was evolved out of the old action of trespass on the case, so meanwhile the doctrine of consideration (or quid pro quo) advanced pari passu. In those nonfeasance cases in the reign of Henry VII., the consideration for the defendant's promise was nothing less than actual performance by the plaintiff, which the defendant had obtained in fraud of his own agreement; hence the “action of deceit.” But in these later cases of executory contracts in the reigns of Elizabeth and James I., it was not thought necessary that the defendant should have reaped any actual advantage from his breach of faith; the consideration (or quid pro quo) was promise for promise; and the test-question was not what the defendant had gained, but what the plaintiff had lost. As the action of assumpsit gradually acquired a more contractual and less of a delictal character, the meas. ure of the damages became settled on the principle of what the plaintiff had lost by the defendant's conduct—and by the defendant's conduct, not necessarily in first making the agreement and then breaking it, but merely in breaking the agreement when made. From this it is but a short step to regard contractual right as a right in rem, viz., a right not merely as against the other party to the contract, but as against all the world; and for which right an action for damages will lie against anybody who interferes with it. In 1844, in the case of Brown v. Boorman,” Lord Campbell held that “wherever there is a contract, and something to be done in the course of the employment which is the subject of that contract, if there is a breach of duty in the course of that employment, the plaintiff may either recover in tort or in contract.” Only nine years later, in the case of Lumley v. Gye,” it was held for the first time that an action lay (against a third party) for procuring a breach of any contract; though as it seems there had been an old Common-law action by a master against a third party (in tort) “for harbouring a servant.”
* 22 Ass., pl. 41, f. 94; the Register, ff. 105b, 108, 110b. *Y. B., 43 Edw. III, Mich., pl. 38. “Ibid., 2 Hen. IV, Mich., pl. 0. * Ibid., 3 Hen. VI. Hil., pl. 33. *Ibid., 11 Hen. VI, Hil., pl. 10; Pasch., pl. 1; Trin., pl. 26. * Y. B., 14 Hen. VI, p. 18.
vol. XXXIII. C.L.T.-35
* Y. B., 3 Hen. VI, Hil., pl. 33. * History of English Law. Vol III, p. 337. * Y. B., 20 Hen. VI, Trin., pl. 4.
* Ibid., 2 Hen. VII, Hil., pl. 15. “Ibid., 20 Hen. VII, Mich., pl. 18. * 1557, Plowden, 180. * 1603, 4 Co. Rep. 92a. * 1615, Hobart, 88.
The cases illustrating the gradual evolution of a great part of the law of contract from the law of tort must show that as there is practically no limit to the possible kinds of trespass for which an action may be available, so there is primâ facie no limit to the conceivable instances of broken contracts for which damages may be claimed. In other words, the validity of a contract is the rule, its invalidity the exception.
The doctrine of consideration was adopted by the Common-law Courts from the Chancery; there is evidence of the origin of this doctrine in the practice of the Chancellor of inquiring into the intentions of the parties, in those contracts where there was no special solemnity of form (viz., the sealed document) to constitute the contract and make it absolute in itself. The consideration was held to supply evidence of the intentions of the parties, and hence of the nature of the contract. There was little, if any, connection between the old Common-law theories of trespass and the new equitable principle of consideration; though the former may have prepared the way for the latter. It is one thing to say that the plaintiff must have incurred some detriment through acting in reliance on the defendant's promise; and quite another to say that the defendant must have had some legally sufficient inducement for making his promise. The consideration (or quid pro quo) is not and never was the essence of a contract; and much less is the execution of the consideration (as work done) by the promisee. This is a most important particular to which we shall revert later. The mere fact of work having been done is not a causa debenski, and creates no obligation whatever. And whatever the causa debendi may be, the debitum which does constitute the obligation is the promise by one of the parties and the agreement of both. The consideration whether executed or executory is not the essence of the contract, but rather a sort of buttress to support it. As late as 1765, Lord Mansfield (a great authority on moral obligation) held that agreements in writing, at all events in commercial affairs, were valid without any consideration at all." And though this particular
* 3 Burrows, 1663.