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.