portant in contract than elsewhere。 It could no longer be examined before the court。 /1/ It was a mere survival； and the transaction witness had ceased to be an institution。 Hence； the necessity of tendering the witness oath did not fix the limit of debt upon simple contract except by tradition； and it is not surprising to find that the action was slightly extended by analogy from its scope in Glanvill's time。
But debt remained substantially at the point which I have indicated； and no new action available for simple contracts was introduced for a century。 In the mean time the inversion which I have explained took place； and what was an accident of procedure had become a doctrine of substantive law。 The change was easy when the debts which could be enforced without deed all sprung from a benefit to the debtor。
The influence of the Roman law； no doubt； aided in bringing about this result。 It will be remembered that in the reign of Henry II。 most simple contracts and debts for which there was not the evidence of deed or witness were left to be enforced by the ecclesiastical courts； so far as their jurisdiction extended。 /2/ Perhaps it was this circumstance ＇266＇ which led Glanvill and his successors to apply the terminology of the civilians to common…law debts。 But whether he borrowed it from the ecclesiastical courts； or went directly to the fountain… head； certain it is that Glanvill makes use of the classification and technical language of the Corpus Juris throughout his tenth book。
There were certain special contracts in the Roman system called real； which bound the contractor either to return a certain thing put into his hands by the contractee； as in a case of lease or loan； or to deliver other articles of the same kind； as when grain； oil； or money was lent。 This class did not correspond； except in the most superficial way； with the common…law debts。 But Glanvill adopted the nomenclature； and later writers began to draw conclusions from it。 The author of Fleta； a writer by no means always intelligent in following and adopting his predecessors' use of the Roman law； /1/ says that to raise a debt there must be not only a certain thing promised； but a certain thing promised in return。 /2/
If Fleta had confined his statement to debts by simple contract； it might well have been suggested by the existing state of the law。 But as he also required a writing and a seal； in addition to the matter given or promised in return； the doctrine laid down by him can hardly have prevailed at any time。 It was probably nothing more than a slight vagary of reasoning based upon the Roman elements which he borrowed from Bracton。
＇267＇ It only remains to trace the gradual appearance of consideration in the decisions。 A case of the reign of Edward III。 /1/ seems to distinguish between a parol obligation founded on voluntary payments by the obligee and one founded on a payment at the obligor's request。 It also speaks of the debt or 〃duty〃 in that case as arising by cause of payments。 Somewhat similar language is used in the next reign。 /2/ So； in the twelfth year of Henry IV。； /3/ there is an approach to the thought： 〃If money is promised to a man for making a release； and he makes the release； he will have a good action of debt in the matter。〃 In the next reign /4/ it was decided that； in such a case； the plaintiff could not recover without having executed the release； which is explained by the editor on the ground that ex nudo pacto non oritur actio。 But the most important fact is； that from Edward I。 to Henry VI。 we find no case where a debt was recovered； unless a consideration had in fact been received。
Another fact to be noticed is； that since Edward III。 debts arising from a transaction without writing are said to arise from contract； as distinguished from debts arising from an obligation。 /5/ Hence； when consideration was required as such； it was required in contracts not under seal； whether debts or not。 Under Henry VI。 quid pro quo became a necessity in all such contracts。 In the third year of that reign /6/ it was objected to au action upon an ＇268＇ assumpsit for not building a mill； that it was not shown what the defendant was to have for doing it。 In the thirty…sixth year of the same reign （A。D。 1459）； the doctrine appears full grown； and is assumed to be familiar。 /1/
The case turned upon a question which was debated for centuries before it was settled； whether debt would lie for a sum of money promised by the defendant to the plaintiff if he would marry the defendant's daughter。 But whereas formerly the debate had been whether the promise was not so far incident to the marriage that it belonged exclusively to the jurisdiction of the spiritual courts； it now touched the purely mundane doubt whether the defendant had had quid pro quo。
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。 /2/ 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 ＇269＇ consideration； because it was a detriment to the promisee。 /1/ But the other opinion prevailed； at least for a time； because the defendant had had nothing from the plaintiff to raise a debt。 /2/
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； /3/ 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； /4/ and in equity。 /5/ 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。 /6/ 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； ＇270＇ 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〃 /1/ 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； /2/ which established such a duty by matter of record； or upon the defendant's admission recorded in like manner。 /3/
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 toindeed it was but a branch ofthe action for any form of personal property which the defendant was bound by contract or otherwise to hand over to the plaintiff。 /4/ If there was a contract to pay money； the only question was how you ＇271＇ 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。
I must now devote a few words to the effect upon our