It will be remembered that the fact formerly sworn to by the transaction witnesses was a benefit to the defendant, namely, a delivery of the things sold or the money lent to him.Such cases, also, offer the most obvious form of consideration.The natural question is, what the promisor was to have for his promise. It is only by analysis that the supposed policy of the law is seen to be equally satisfied by a detriment incurred by the promisee.It therefore not unnaturally happened that the judges, when they first laid down the law that there must be quid pro quo, were slow to recognize a detriment to the contractee as satisfying the requirement which had been laid down.In the case which I have mentioned some of the judges were inclined to hold that getting rid of his daughter was a sufficient benefit to the defendant to make him a debtor for the money which he promised;and there was even some hint of the opinion, that marrying the lady was a consideration, because it was a detriment to the promisee. But the other opinion prevailed, at least for a time, because the defendant had had nothing from the plaintiff to raise a debt. So it was held that a service rendered to a third person upon the defendant's request and promise of a reward would not be enough, although not without strong opinions to the contrary, and for a time the precedents were settled.It became established law that an action of debt would only lie upon a consideration actually received by and enuring to the benefit of the debtor.
It was, however, no peculiarity of either the action or contract of debt which led to this view, but the imperfectly developed theory of consideration prevailing between the reigns of Henry VI.and Elizabeth.The theory the same in assumpsit, and in equity. Wherever consideration was mentioned, it was always as quid pro quo, as what the contractor was to have for his contract.
Moreover, before consideration was ever heard of, debt was the time-honored remedy on every obligation to pay money enforced by law, except the liability to damages for a wrong. It has been shown already that a surety could be sued in debt until the time of Edward III.without a writing, yet a surety receives no benefit from the dealing with his principal.For instance, if a man sells corn to A, and B says, "I will pay if A does not," the sale does B no good so far as appears by the terms of the bargain.For this reason, debt cannot now be maintained against a surety in such a case.
It was not always so.It is not so to this day if there is an obligation under seal.In that case, it does not matter how the obligation arose, or whether there was any consideration for it or not.But a writing was a more general way of establishing a debt in Glanvill's time than witness, and it is absurd to determine the scope of the action by considering only a single class of debts enforced by it.Moreover, a writing for a long time was only another, although more conclusive, mode of proof.
The foundation of the action was the same, however it was proved.
This was a duty or "duity" to the plaintiff, in other words, that money was due him, no matter how, as any one may see by reading the earlier Year Books.Hence it was, that debt lay equally upon a judgment, which established such a duty by matter of record, or upon the defendant's admission recorded in like manner. To sum up, the action of debt has passed through three stages.At first, it was the only remedy to recover money due, except when the liability was simply to pay damages for a wrongful act.It was closely akin to--indeed it was but a branch of--the action for any form of personal property which the defendant was bound by contract or otherwise to hand over to the plaintiff. If there was a contract to pay money, the only question was how you could prove it.Any such contract, which could be proved by any of the means known to early law, constituted a debt.There was no theory of consideration, and therefore, of course, no limit to either the action or the contract based upon the nature of the consideration received.
The second stage was when the doctrine of consideration was introduced in its earlier form of a benefit to the promisor.This applied to all contracts not under seal while it prevailed, but it was established while debt was the only action for money payable by such contracts.The precedents are, for the most part, precedents in debt.
The third stage was reached when a larger view was taken of consideration, and it was expressed in terms of detriment to the promisee.This change was a change in substantive law, and logically it should have been applied throughout.But it arose in another and later form of action, under circumstances peculiarly connected with that action, as will be explained hereafter.The result was that the new doctrine prevailed in the new action, and the old in the old, and that what was really the anomaly of inconsistent theories carried out side by side disguised itself in the form of a limitation upon the action of debt.That action did not remain, as formerly, the remedy for all binding contracts to pay money, but, so far as parol contracts were concerned, could only be used where the consideration was a benefit actually received by the promisor.With regard to obligations arising in any other way, it has remained unchanged.
