Page:Harvard Law Review Volume 8.djvu/273

PAROL CONTRACTS PRIOR TO ASSUMPSIT. 257 is, at about the same time as the Diversity of Courts, — occurs the following instructive passage : — "There is a maxim in the law that a rent, a common, annuity, and such other things as lie not in manual occupation, may not have com- mencement, nor be granted to none other without writing. And there- upon it followeth, that if a man for a certain sum of money sell another forty pounds of rent yearly, to be percepted of his lands in D, &c., and the buyer, thinking that the bargain is sufficient, asketh none other, and after he demandeth the rent, and it is denied him, in this case he hath no remedy at the common law for lack of a deed ; and therefore inas- much as he that sold the rent hath quid pro quo, the buyer shall be helped by a subpoena. But if that grant had been made by his mere motion, without any recompense, then he to whom the rent was granted should neither have had remedy by the common law nor by subpoena. But if he that made the sale of the rent had gone farther, and said that he, before a certain day, would make a sufficient grant of the rent, and after refused to do it, there an action upon the case should lie against him at the common law ; but if he made no such promise at the making of the contract, then he that bought the rent hath no remedy but by subpoena, as it is said before." Here the subpoena is allowed in the absence of a promise. There could, therefore, be no question of breach of faith. But the money having been paid and received under the expectation of both parties that the plaintiff would get a valid transfer of the rent, it was plainly just that equity should not permit the defend- ant to rely on the absence of a remedy at common law as a means of enriching himself at the expense of the plaintiff. It is hardly necessary to remind the learned reader of the analogy between the case just considered, and uses arising upon a bargain and sale, which were supported for the first time only a few years before.^ It was doubtless the same principle of preventing unjust enrichment which led the Chancellor in the reign of Henry V. to give a legal sanction to the duty of the feoffee to uses which before that time had been a purely honorary obligation. To sum up, then, the Ecclesiastical Court had no jurisdiction over agreements relating to temporal matters. Chancery gave relief upon parol agreements only upon the ground of compelling reparation for what was regarded as a tort to the plaintiff, or upon the principle of preventing the unjust enrichment of the defendant; 1 Y. B. 21 Hen. VII. 18-30.