Assumpsit in lieu of debt

Abstract

Once it was established that the action of assumpsit would lie for nonfeasance, thoughts turned to using it for the non-payment of debts. This would enable the action of debt to be avoided, and thus prevent debtors from escaping their debts by waging law. The development was accepted by the King’s Bench in 1532, but resisted for over sixty years by the Common Pleas, which regarded wager of law as a right worth preserving. This chapter shows the arguments that were advanced on both sides, how the clash between the courts came to a head with the creation of the Exchequer Chamber in 1585, with jurisdiction to reverse King’s Bench judgments, and how the dispute was finally ended (by the barest majority) in Slade’s Case (1602). The 1602 decision was that every debt included an implied undertaking on which assumpsit would lie. This effectively put an end to wager of law.