The attorney rendered the service, and
then brought debt. It was objected that debt did not lie, because
there was no contract between the parties, and the defendant had
not any quid pro quo. The court adopted the argument, and said
that there was no contract or consideration to ground this
action, but that the plaintiff might have sued in assumpsit. /1/
It was, perhaps, the lingering of this idea, and the often
repeated notion that an assumpsit was not a contract, /2/ to
which was attributable a more enlarged theory of consideration
than prevailed in debt. It was settled that assumpsit would lie
for a mere omission or nonfeasance. The cases which have been
mentioned of the reign of Henry VI. were followed by others in
the latter years of Henry VII., /3/ and it was never again
doubted. An action for such a cause was clearly for a breach of
promise, as had been recognized from the time of Edward III. If
so, a consideration was necessary. /4/ Notwithstanding occasional
vagaries, that also had been settled or taken for granted in many
cases of Queen Elizabeth's time. But the bastard origin of the
action which gave rise to the doubt how far any consideration at
all was necessary, made it possible to hold considerations
sufficient which had been in debt.
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