" /4/
Thus, where the defendant retained the plaintiff to be [287] to
his aunt at ten shillings a week, it was held that assumpsit
would lie, because the service, though not beneficial to the
defendant, was a charge or detriment to the plaintiff. /1/ The
old questions were reargued, and views which were very near
prevailing in debt under Henry VI., prevailed in assumpsit under
Elizabeth and James.
A surety could be sued in assumpsit, although he had ceased to be
liable in debt. /2/ There was the same remedy on a promise in
consideration that the plaintiff would marry the defendant's
daughter. /3/ The illusion that assumpsit thus extended did not
mean contract, could not be kept up. In view of this admission
and of the ancient precedents, the law oscillated for a time in
the direction of reward as the true essence of consideration. /4/
But the other view prevailed, and thus, in fact, made a change in
the substantive law. A simple contract, to be recognized as
binding by the courts of Henry VI., must have been based upon a
benefit to the debtor; now a promise might be enforced in
consideration of a detriment to the promisee. But in the true
archaic spirit the doctrine was not separated or distinguished
from the remedy which introduced it, and thus debt in modern
times has presented the altered appearance of a duty limited to
cases where the consideration was of a special sort.
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