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a common carrier * or innkeeper † for the loss of goods. They correspond to the smith, who, from the nature of his trade, was bound to shoe skilfully. But, in order to charge other bailees, proof of an express assumpsit was originally indispensable. An assumpsit was accordingly laid as a matter of course in the early cases and precedents. Frowyk, C.J., says, in 1505, that the bailee shall be charged “per cest parol super se assumpsit.1 In Fooley v. Preston, Anderson, Chief Justice of the Common Bench, mentions, it is true, as peculiarity of the Queen's Bench, that “it is usual and frequent in B. R. if I deliver to you an obligation to rebail unto me, I shall have an action upon the case without an express promise.” And yet, twelve years later, in Mosley v. Fosset || (1598), which was an action on the case for the loss of a gelding delivered to the defendant to be safely kept and redelivered on request, the four judges of the Queen's Bench, although equally divided on the question whether the action would lie without a request, which would have been necessary in an action of detinue, “all agreed that without such an assumpsit the action would not lie.” ( But with the lapse of time an express undertaking of the bailee ceased to be required, as we have already seen it was dispensed with in

* i Roll. Ab. 2, pl. 4; Rich v. Kneeland, Hob. 17; 1 Roll. Ab. 6, pl. 4; Kenrig v. Eggleston, Al. 93; Nichols v. More, i Sid. 36 ; Morse v. Slue, 1 Vent. 190, 238 ; Levelt v. Hobbs, 2 Show. 127; Chamberlain v. Cooke, 2 Vent. 75; Matthews v. Hoskins, i Sid. 244 ; Upshare v. Aidce, Com. 25; Herne's Pleader, 76; Brownl. Ent. II; 2 Chitty, Pl. (1 ed.) 271.

+ Y. B. 42 Lib. Ass. pl. 17; Y. B. 2 H. IV. 7, pl. 31 ; Y. B. 11 H. IV. 45, pl. 18; Cross v. Andrews, Cro. El. 622 ; Gellye v. Clark, Cro. Jac. 189; Beedle v. Norris, Cro. Jac. 224; Herne's Pleader, 170, 249.

# Keilw. 77, pl. 25. § 1 Leon. 297.

ll Moore, 543, pl. 720; 1 Roll. Ab. 4, pl. 5, s. C. The criticism in Holmes' Common Law, 155, n. 1, of the report of this case seems to be without foundation.

I See also Evans v. Yeoman (1635), Clayt. p. 33: “Assumpsit. The case upon evidence was, that whereas the plaintiff did deliver a book or charter to the defendant, it was holden that unless there had been an express promise to redeliver this back again, this action will not lie.”

the case of a surgeon or carpenter. The acceptance of the goods from the bailor created a duty to take care of them in the same manner that a surgeon who took charge of a patient became bound, without more, in modern times, to treat him with reasonable skill.

Symons v. Darknoll * (1629) was an action on the case against a lighterman, but not a common lighterman, for the loss of the plaintiff's goods. “And, although no promise, the court thought the plaintiff should recover.” Hyde, C.J., adding: “Delivery makes the contract." The later precedents in case, accordingly, omit the assumpsit.

The writer is tempted to suggest here an explanation of an anomaly in the law of waste. If, by the negligence of a tenant-at-will, a fire breaks out and destroys the house occupied by him as tenant, and another also belonging to his landlord, he must respond in damages to the landlord for the loss of the latter, but not of the former. Lothrop v. Thayer, 138 Mass. 466. This is an illustration of the rule that a tenant-at-will is not liable for negligent or permissive waste. Is it not probable that the tenant-at-will and a bailee were originally regarded in the same light? In other words, neither was bound to guard with care the property intrusted to him in the absence of a special undertaking to that effect. This primitive conception of liability disappeared in the case of chattels, but persisted in the case of land, as a rule affecting real property would naturally persist. In the Countess of Salop v. Crompton, Cro. El. 777, 784, 5 Rep. 13. S. C., a case against a tenant-at-will, Gawdy, J., admits the liability of a shepherd for the loss of sheep, “because he there took upon him the charge. But here he takes not any charge upon him but to occupy and pay his rent.” So also in Coges v. Bernard, 2 Ld. Ray. 909. Powell, J., referring to the case of the Countess of Salop, says: “An action will not lie against a

* Palm. 523. See also Stanian v. Davies, 2 Ld. Ray: 795
† 2 Inst. Cler, 185; 2 Chitty, Pl. i7 el.) 506, 507.

tenant-at-will generally, if the house be burnt down. But if the action had been founded upon a special undertaking, as that in consideration the lessor would let him live in the house he promised to deliver up the house to him again in as good repair as it was then, the action would have lain upon that special undertaking.

undertaking. But there the action was laid generally.”

There is much in common between the two classes of actions on the case already discussed and still a third group of actions on the case, namely, actions of deceit against the vendor of a chattel upon a false warranty. This form of action, like the others, is ancient, being older, by more than a century, than special assumpsit. The words super se assumpsit were not used, it is true, in a count upon a warranty ; but the notion of undertaking was equally well conveyed by “warrantizando vendidit.

Notwithstanding the undertaking, this action also was, in its origin, a pure action of tort. In what is, perhaps, the earliest reported case upon a warranty,* the defendant objects that the action is in the nature of covenant, and that the plaintiff shows no specialty but “non allocatur, for it is a writ of trespass." There was regularly no allusion to consideration in the count in case ; if, by chance, alleged, it counted for nothing. How remote the action was from an action of contract appears plainly from a remark of Choke, J.: “If one sells a thing to me, and another warrants it to be good and sufficient, upon that warranty made by parol, I shall not have . an action of deceit; but if it was by deed, I shall have an action of covenant." That is to say, the parol contract of guaranty, so familiar in later times, was then unknown. The same judge, and Brian, C.J., agreed, although Littleton, J., inclined to the opposite view, that if a servant warranted

* Fitz. Ab. Monst. de Faits, pl. 160 (1383).
Moor v. Russel, Skin. 104; 2 Show. 284, s. C.
I Y. B. 11 Ed. IV. 6, pl. 10.

goods which he sold for his master, no action would lie on the warranty. The action sounding in tort, the plaintiff, in order to charge the defendant, must show, in addition to his undertaking, some act by him, that is, a sale; but the owner was the seller, and not the friend or servant, in the cases supposed. A contract, again, is, properly, a promise to act or forbear in the future. But the action under discussion must be, as Choke, J., said, in the same case, upon a warranty of a thing present, and not of a thing to come. A vendor who gives a false warranty may be charged to-day, of course, in contract; but the conception of such a warranty, as a contract, is quite modern. Stuart v. Wilkins,* decided in 1778, is said to have been the first instance of an action of assumpsit upon a vendor's warranty.

We have seen that an express undertaking of the defendant was originally essential to the actions against surgeons or carpenters, and bailees. The parallel between these actions and the action on a warranty holds true on this point also. A case in the Book of Assizes is commonly cited, it is true, to show that from very early times one who sold goods, knowing that he had no 'title to them, was liable in an action on the case for deceit.f This may have been the law. But, this possible exception apart, a vendor was not answerable to the vendee for any defect of title or quality in the chattels sold, unless he had either given an express warranty, or was under a public duty, from the nature of his calling, to sell articles of a certain quality. A taverner or vintner was bound as such to sell wholesome food and drink. Their position was analogous to that of the smith, common carrier, and innkeeper.

The necessity of an express warranty of quality in all other

3 Doug. 18. + 3 Y. B. 42, Lib. Ass. pl. 8.

# But see Kenrick v. Burges, Moore, 126, per Gawdy, J., and Roswell v. Vaughan, Cro. Jac. 196, per Tanfield, C.B.

Ş Y. B. 9 H. VI. 53, pl. 37 ; Keilw. 91, .pl. 16; Roswell v, Vaughan, Cro. Jac. 196; Burnby v. Bollett, 16 M. & W. 644, 654.

cases is illustrated by the familiar case of Chandelor v. Lopus (1606-1607). The count alleged that the defendant sold to the plaintiff a stone, affirming it to be a bezoar stone, whereas it was not a bezoar stone. The judgment of the King's Bench, that the count was bad, was affirmed in the Exchequer Chamber, all the justices and barons (except Anderson, C.J.) holding, “that the bare affirmation that it was a bezoar stone, without warranting it to be so, is no cause of action; and although he knew it to be no bezoar stone, it is not material; for every one in selling his wares will affirm that his wares are good, or that his horse is sound ; yet, if he does not warrant them to be so, it is no cause of action." The same doctrine is repeated in Bailie v. Merrill.t The case of Chandelor v. Lopus has recently found an able defender in the pages of this Review. In the number for November, 1887, Mr. R. C. McMurtrie urges that the decision was a necessary consequence of the rule of pleading, that the pleader must state the legal effect of his evidence, and not the evidence itself. It is possible that the judgment would have been arrested in Chandelor v. Lopus, if it had come before an English court of the present century. But it is certain that the judges in the time of James I. did not proceed upon this rule of pleading. To their minds the word “warrant,” or, at least, a word equally importing an express undertaking, was as essential in a warranty as the words of promise were in the Roman stipulatio. The modern doctrine of implied warranty, as stated by Mr. Baron Parke in Barr v. Gibson,|| "But the bargain and sale of a chattel, as being of a particular description, does imply a contract that the article sold is of that description," would have sounded as strangely in the ears of

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Dy. 75 a, n. (23); Cro. Jac. 4. See also 8 Harv. L. 282. 4 i Roll. R. 275. See also Leakins v. Clizard, 1 Keb. 522, per Jones.

i Harv. L. Rev. 191. § But see Crosse v. Gardner, 3 Mod. 261, Comb. 142, S. C.; Medina v. Stoughton, i Lu. Ray. 593, I Salk, 210, s. c.

II 3 M. & W. 390.

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