the early lawyers as their archaic doctrine sounds in ours. The warranty of title stood anciently upon the same footing as the warranty of quality.* But in Lord Holt's time an affirmation was equivalent to a warranty, and to-day a warranty of title is commonly implied from the mere fact of selling.t However much the actions against a surgeon or carpenter for misfeasance, those against a bailee for negligent custody, and, above all, those against a vendor for a false warranty, may have contributed, indirectly, to the introduction of special assumpsit, there is yet a fourth class of cases which seem to have been more intimately connected with the development of the modern parol contract than any of those yet considered. These cases also, like the actions for a false warranty, were actions on the case for deceit. That their significance may be fully appreciated, however, it will be well to give first a short account of the successive attempts to maintain an action for the simple breach of a naked parol promise, i.e. for a pure nonfeasance. The earliest of these attempts was in 1400, when an action was brought against a carpenter for a breach of his undertaking to build a house. The court was unanimous against the plaintiff, since he counted on a promise, and showed no speciality. In the same reign there was a similar case with the same result.|| The harmony of judicial opinion was somewhat interrupted fifteen years later in a case against a millwright on a breach of promise to build a mill within a certain time. Martin, J., like his predecessors, was against the action; Cockayne, J., favoured it. Babington, C.J., at first agreed with Cockayne, J., but was evidently shaken by *Co. Lit. 102 a; Springwell v. Allen (1649), Al. 91, 2 East, 448, n. (a), s. c. t Crosse v. Gardner, 3 Mod. 261; 1 Show. 65, s. c.; Medina v. Stoughton, 1 Ld. Ray. 593, 1 Salk. 210, s. c. Eichholtz v. Bannister, 17 C. B. N. s. 708; Benj. Sale (3 ed.), 620-631. § Y. B. 2 H. IV. 3, pl. 9. Y. B. 11 H. IV. 33, pl. Co. See also 7 H. VI. 1, pl. 3. the remark of Martin, J.: “Truly, if this action is maintained, one shall have trespass for breach of any covenant* in the world," for he then said: "Our talk is idle, for they have not demurred in judgment. Plead and say what you will, or demur, and then it can be debated and disputed at leisure." The case went off on another point. Martin, J., appears finally to have won over the Chief Justice to his view, for, eight years later, we find Babington, C.J., Martin and Cotesmore, JJ., agreeing in a dictum that no action will lie for the breach of a parol promise to buy a manor. Paston, J., showed an inclination to allow the action. In 1435 he gave effect to this inclination, holding, with Juyn, J., that the defendant was liable in an action on the case for the breach of a parol promise to procure certain releases for the plaintiff.§ But this decision was ineffectual to change the law. Made without a precedent, it has had no following. The doctrine laid down in the time of Henry IV. has been repeatedly reaffirmed. *Covenant was often used in the old books [for example, in Sharrington v. Strotton, Plow. 298, passim ; Diversite of Courts, Chancerie] in the sense of agreement, a fact sometimes overlooked, as in Hare, Contracts, 138, 139. † Y. B. 3 H. VI. 36, pl. 33. One of the objections to the count was that it did not disclose how much the defendant was to have for his work. The remarks of the judges and counsel upon this objection seem to have been generally misapprehended. Holmes, Common Law, 267, 285; Hare, Contracts, 162. The point was this: Debt would lie only for a sum certain. If, then, the price had not been agreed upon for building the mill, the millwright, after completing the mill, would get nothing for his labour. It could not, therefore, be right to charge him in an action for refusing to throw away his time and money. Babington, C.J., and Cockayne, J., admitted the force of this argument, but the latter thought it must be intended that the parties had determined the price to be paid. There is no allusion in the case to a quid pro quo, or a consideration as a basis for the defendant's promise. Indeed, the case is valueless as an authority upon the doctrine of consideration. Y. B. 11 H. VI. 18, pl. 10, 24, pl. I, 55, pl. 26. § Y. B. 14 H. VI. 18, pl. 58. Y. B. 20 H. VI. 25, pl. 11, per Newton, C.J.; Y. B. 20 H. VI. 34, pl. 4, per Ayscoghe, J.; Y. B. 21 H. VI. 55-12; Y. B. 37 H. VI. 9, pl. 18, per Moyle, J.; Y. B. 2 H. VII. II, pl. 9, and Y. B. 2 H. VII. 12, pl. 15, per Townsend, J.; 18 H. VII. Keilw. 50, pl. 4, per curiam ; Doct. & St. Dial II. c. 24; Coggs v. Bernard, 2 Ld. Ray. 909, 919, per Lord Holt; Elsee v. Gatward, 5 T. R. 143. Newton, C.J., said on several occasions (Y. B. 19 H. VI. 24 b, The remaining actions on the case for deceit before mentioned may now be considered. In the first of these cases the writ is given, and the reader will notice the striking resemblance between its phraseology and the later count in assumpsit. The defendant was to answer for that he, for a certain sum to be paid to him by the plaintiff, undertook to buy a manor of one J. B. for the plaintiff; but that he, by collusion between himself and one M. N., contriving cunningly to defraud the plaintiff, disclosed the latter's evidence, and falsely and fraudulently became of counsel with M. N., and bought the manor for M. N., to the damage of the plaintiff. All the judges agreed that the count was good. Babington, C.J.: "If he discovers his counsel, and becomes of counsel for another, now that is a deceit, for which I shall have an action on my case." Cotesmore, J.: "I say, that matter lying wholly in covenant may by matter ex post facto be converted into deceit. . . . When he becomes of counsel for another, that is a deceit, and changes all that was before only covenant, for which deceit he shall have an action on his case." The act of the defendant did not affect, it is true, the person or physical property of the plaintiff. Still, it was hardly an extension of the familiar principle of misfeasance to regard the betrayal of the plaintiff's secrets as a tortious invasion of his rights. But the judges encountered a real difficulty in applying that principle to a case that came before the Exchequer Chamber a few years later. It was a bill of deceit in the King's Bench, the plaintiff counting that he bargained with the defendant to buy of him certain land for pl. 47; Y. B. 20 H. VI. 34, pl. 4; Y. B. 22 H. VI. 43, pl. 28), [as did Prisot, C.J., in Y. B. 37 H. VI. 8-18], that one who bargained to sell land for a certain sum to be paid might have debt for the money, and, therefore, on the principle of reciprocity, was liable in an action on the case to his debtor. But this view must be regarded as an idiosyncracy of these judges, for their premise was plainly false. There was no quid pro quo to create a debt. [See Y. B. 20 H. VI. 35-4.] * Y. B. 11 H. VI. 18, pl. 10, 24, pl. 1, 55, pl. 26. 25, pl. 11. + Y. B. 20 H. VI. 34, pl. 4. See also Y. B. 20 H. VI. £100 in hand paid, but that the defendant had enfeoffed another of the land, and so deceived him. The promise not being binding of itself, how could the enfeoffment of a stranger be a tortious infringement of any right of the plaintiff? What was the distinction, it was urged, between this case and those of pure nonfeasance, in which confessedly there was no remedy? So far as the plaintiff was concerned, as Ayscoghe, J., said, "it was all one case whether the defendant made a feoffment to a stranger or kept the land in his own hands." He and Fortescue, J., accordingly thought the count bad. A majority of the judges, however, were in favour of the action. But the case was adjourned. Thirty-five years iater (1476), the validity of the action in a similar case was impliedly recognized.* In 1487 Townsend, J., and Brian, C.J., agreed that a traverse of the feoffment to the stranger was a good traverse, since "that was the effect of the action, for otherwise the action could not be maintained." † In the following year, the language of Brian, C.J., is most explicit: "If there be an accord between you and me that you shall make me an estate of certain land, and you enfeoff another, shall I not have an action on my case? Quasi diceret sic. Et Curia cum illo. For when he undertook to make the feoffment, and conveyed to another, this is a great misfeasance." In the Exchequer Chamber case, and in the case following, in 1476, the purchase-money was paid at the time of the bargain. Whether the same was true of the two cases in the time of Henry VII., the reports do not disclose. It is possible, but by no means clear, that a payment contemporaneous with the promise was not at that time deemed essential. Be that as it may, if money was in fact paid for a promise to convey land, the breach of the promise by a conveyance to a stranger was certainly, as already seen, an * Y. B. 16 Ed. IV. 9, pl. 7. actionable deceit by the time of Henry VII. This being so, it must, in the nature of things, be only a question of time when the breach of such a promise, by making no conveyance at all, would also be a cause of action. The mischief to the plaintiff was identical in both cases. The distinction between misfeasance and nonfeasance, in the case of promises given for money, was altogether too shadowy to be maintained. It was formally abandoned in 1504, as appears from the following extract from the opinion of Frowyk, C.J.: "And so, if I sell you ten acres of land, parcel of my manor, and then make a feoffment of my manor, you shall have an action on the case against me, because I received your money, and in that case you have no other remedy against me. And so, if I sell you my land and covenant to enfeoff you and do not, you shall have a good action on the case, and this is adjudged. . . . And if I covenant with a carpenter to build a house and pay him £20 for the house to be built by a certain day, now I shall have a good action on my case because of payment of money, and still it sounds only in covenant and without payment of money in this case no remedy, and still if he builds it and misbuilds, action on the case lies. And also for nonfeasance, if money paid case lies." * The gist of the action being the deceit in breaking a promise on the faith of which the plaintiff had been induced to part with his money or other property, it was obviously immaterial whether the promisor or a third person got the benefit of what the plaintiff gave up. It was accordingly decided, in 1520, that one who sold goods to a third person on the faith of the defendant's promise that the price should be * Keilw. 70, pl. 25, which seems to be the same case as Y. B. 20 H. VII. 8, pl. 18; Y. B. 21 H. VII. 41, pl. 66, per Fineux, C.J., accord. See also Brooke's allusion to an "action on the case upon an assumpsit pro tali summa.” Br. Ab. Disceit, pl. 29. [In 1455 there was an action on the case for a nonfeasance against a defendant who "assumpsit super se pro certa pecuniat summa," but "machinans, etc., made no enrolment." Y. B. 34 H. VI. 4, pl. 12.] ΙΟ |