262 HARVARD LAW REVIEW. Indebitatus Assumpsit would not lie for it; but the only ground of the action in such cases was the mutual promises. That though there were a promise, yet Debt would not lie upon that." Accord- ing to another report of the same case Lord Holt said, " There* is no way in the world to recover money won at play but by special Assumpsit." ^ Originally there was no quid pro quo to create a debt against a defendant if the benefit was conferred upon a third person, although at the defendant's request. Y. B. 9 Henry V. 14-23 is a case in point. The plaintiff, having a claim for ^10 against T, released the claim upon the defendant's promise to pay him the same amount. The plaintiff failed because the benefit of the release was received by T.^ In Y. B. 27 Henry VIII. 23, upon similar facts, Fitz-James, C. J., thought the plaintiff should recover in an action on the case upon the promise, but not in Debt, " for there is no contract,^ nor has the defendant quid pro quo. Post, J ., and Spelman, J., on the other hand, thought there was a quid pro quo. It was also made a ques- tion, on the same ground, whether a defendant who promised money to the plaintiff if he would marry the defendant's daughter was liable in Debt to the plaintiff who married the daughter.* But here, too, the opinion finally prevailed that though the girl got the husband, her father did receive a substantial benefit.^ In Y. B. 37 Henry VI. 9-18, Moyle, J., said : " If I say to a Surgeon that if he will go to one J who is ill, and give him medicine and make him safe and sound, he shall have 100 shillings, now if the Surgeon gives J the medicines and makes him safe and sound, he shall have a good action [Debt] against me for the 100 shillings, and still the thing is to another and not to the defendant himself, and so he has not quid pro quo.hut 1 Walker z>. Walker, Holt, 328, 5 Mod. 13, Comb. 303 s. c. Per Holt, C. J., " This is merely a wager and no Indebitatus Assumpsit lies for it , for to make that lie, there must be a work done, or some meritorious action for which Debt lieth." Hard's case, I Salk 23 ; Bovey v. Castleman, i Ld. Ray. 69. Per Curiam : " For mutual promises As- smnpsit may lie, but not Indebitatus Assumpsit" These statements that Debt will not lie upon mutual promises bring out with great clearness the distinction already referred to between mutual promises and the mutual duties growing out of a parol bargain and sale. See Pollock, Contracts in Early English Law, 6 Harv. L. Rev. 398, 399. 2 The true ground of this decision seems sometimes to have been misunderstood. Holmes, Common Law, 267. 8 After Assumpsit came in, it was many years before it was called a contract. That term was still confined to transactions resting upon a quid pro quo. See 2 Harv. L. Rev. 15, and Jenks, Doctrine of Consideration, 134. ■♦ Y. B. 37 Hen. VL 8-18 ; Y. B. 15 Ed. IV. 32-14 ; Y. B. 20 Ed. IV. 3-17. 6 Applethwaite v. Northby, Cro. El. 29; Beresford v. Woodroff, i RoUe, R. 433.
