6o HARVARD LAW REVIEW.
meruit^ and to indemnify a surety, would be the more surprising, but for the fact that Equity gave relief to tailors and the like, and to sureties long before the common law helped them. Spence, although at a loss to account for the jurisdiction, mentions a suit brought in Chancery, in 1567, by a tailor, to recover the amount due for clothes furnished. The suit was referred to the queen's tailor, to ascertain the amount due, and upon his report a decree was made. The learned writer adds that ** there were suits for wages and many others of like nature." ^ A surety who had no counter bond filed a bill against his principal, in 1632, in a case which would seem to have been one of the earliest of the kind, for the reporter, after stating that there was a decree for the plaintifTy adds " quod notay ^
The account just given of the promise implied in fact seems to throw much light upon the doctrine of ** executed consideration." One who had incurred a detriment at the request of another, by rendering service, or by becoming a surety with the reasonable expectation of compensation or indemnity, was as fully entitled, in point of justice, to enforce his claim at law, as one who had acted in a similar way upon the faith of an express promise. Nothing was wanting but an express assumpsit to make a perfect cause of action. If the defendant saw fit to make an express as- sumpsit , even after the detriment was incurred, the temptation to treat this as removing the technical objection to the plaintiffs claim at law might be expected to be, as it proved to be, irresist- ible.^ The already established practice of suing upon a promise to pay a precedent debt made it the more easy to support an ac- tion upon a promise when the antecedent act of the plaintif!" at the defendant's request did not create a strict debt.* To bring the new doctrine into harmony with the accepted theory of considera- tion, the promise was " coupled with " the prior request by the fiction of relation,^ or, by a similar fiction, the consideration was brought forward or continued to the promise.^ This fiction doubt-
1 I Spence, Eq. Jur. 694. " Ford v. Stobridge, Nels. Ch. 24.
' The view here suggested is in accordance with what has been called, in a questioning spirit, the "ingenious explanation" of Professor Langdell. Holmes, Common Law, 286. The general tenor of this paper will serve, it is hoped, to remove the doubts of the learned critic.
- Sidenham z'. Worlington (1585), 2 Leon. 224.
- Langdell, Contracts, § 92.
- Langdell, Contracts, § 92 ; i Vin. Ab. 280, pi. 13.
