The most important of all personal actions ex contractu is that of assumpsit. The action of assumpsit grew out of the Statute of Westminster II,9 and was an off-shoot of the action of case. We thus have the strange situation of the leading modern action ex contractu having originated in a tort action.

7 Street's Foundations of Legal Liability, Vol. III, p. 116.

8 Martin on Civil Procedure, p. 65.

9 See Vol. I, Sub. 2, Section 68.

'The action of assumpsit is a specialized form of case which gradually acquired recognition and individuality in the fifteenth century as the proper remedy for the breach of a simple promise. It was not from any subtle perception of the tie resulting from the making of the oral promise that the courts were led to countenance this form of case. The advance was due to a very natural extension of the older delictual remedy which we will now trace. The fact that the step by which assumpsit was differentiated from case was taken is not more surprising than the fact that the courts were so long about it.

"By way of anticipation it may be said that the conception which is at the root of liability in assumpsit is that of damage done by deceitful artifice. Thus, if A contrives to obtain a thing of value from B on the faith of a promise to do some act for B in the future, and A subsequently refuses to fulfil the promise, it is not difficult to look upon A's refusal or failure to perform as being the culmination of a false pretense.

"The situation here conceived disclosed the existence of a detriment to B, the promise, which in later times is denominated the consideration for the promise, and also an actionable deceit on the part of A. The deceit is of an ex post facto nature, it is true, since the presumption of deceitful intent does not arise until the subsequent breach. But in a legal system where simple promises were pressing for recognition as a source of legal duty, this objection could not stand; and accordingly an action on the case in the nature of deceit was permitted to be maintained upon the promise. Such was assumpsit. The full and final establishment of the remedy did not take place until near the end of the fifteenth century." 10

10 Street's Foundations of Legal Liability, Vol. III, p. 172-3.

Assumpsit had the great advantage over debt that the defendant in such an action was not permitted to wage his law.

In Slade's Case,11 decided in 1608, it was decided that assumpsit could be used in suing upon simple debts.

Assumpsit is divided into special assumpsit and general assumpsit.

Special assumpsit relies on the special facts of the particular case, and the declaration should set forth all the material parts of the contract upon which the suit is based.

In general assumpsit the action is founded on an obligation raised by law independent of express contract. If there was an express undertaking, this is ignored and the action grounded upon certain facts happening or existing between the parties from which the law raised the implication of a promise, which, although fictitious, had to be alleged by the pleader.12

The declaration in general assumpsit contains one or more of what are known as the common counts. The character of these counts has been thus discussed by a recent writer:13

"Common counts, or General Assumpsit. These counts were generally used in connection with some count in special assumpsit preceding them in the same declaration. This was not invariably the case. It appears that they were sometimes used independently of any count in special assumpsit, although such use was subject to the objection of inducing surprise at the trial, on account of the general and indefinite terms in which they disclosed the cause of action. Whenever, in the count on special assumpsit, the contract sued on contained in its nature the receipt of a consideration delivered or given at the instance of the defendant, upon which a promise to pay money had been expressed, or could be implied by law, one or more of the common counts might generally be added. They were always predicated upon a precedent and existing debt or executed consideration, for which the law raised an implied promise to pay in money. They were all developed from the count on special assumpsit upon an express promise. The courts permitted the jury to infer an actual promise from circumstantial evidence. They next inferred the promise themselves in clear cases, when it was in accord with the natural and evident intention of the parties."

1 41 Coke, 92.

12 Gutter vs. Powell, 2 Smith Ld. Oases, 61; Martin on Civil< Procedure, Sec. 54; Gould Pl., Vol. 3, Sec. 19. 13 Martin on Civil Procedure, Section 55.

The various common counts are as follows: (a) Indebitatus assumpsit. In this count it is alleged that the defendant was indebted to the plaintiff in a certain sum of money; as for real property sold or used and occupied, or for personal property sold; or for personal services rendered; or for money loaned or paid and expended to defendant's use; or for money paid to and received by defendant to plaintiff's use; all of which was incurred in some way at his special instance and request; and that being so indebted, the defendant promised in consideration thereof to pay to the plaintiff the said money. Of the indebitatus counts, those relating to transactions based on the payment or receipt of money are called the money counts; as, money lent to defendant; money paid and expended for his use; and money had and received by defendant to plaintiff's use.

(b) Quantum meruit, wherein it is alleged that plaintiff had done certain work for the defendant at his request, and that therefore the defendant is indebted to the plaintiff to the amount that the plaintiff reasonably deserved.

(c) Quantum valebant, wherein it is alleged that the plaintiff delivered certain goods to the defendant at his request, and that the defendant owes the plaintiff the amount that these goods are reasonably worth.

(d) Insimul convputasset, or account stated, which is on a balance agreed between the parties to be due.