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lO HARVARD LAW REVIEW,

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 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.*

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 contrib- uted, indirectly, to the introduction of special assumpsit, there is yet a fourth class of cases which seem to have been more inti- mately connected with the development of the modern parol con- tract than any of those yet considered. These cases were, also, like the actions for a false warranty, 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, /.^., 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 specialty.* 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 prede-

1 3 M. & w. 390.

^ Co. lit., 101 a.; Springwell v. Allen (1649) ^' 9'« ^ East, 448, n. (a), s. c

  • Crosse v. Gardner, 3 Mod. 261 ; i Show. 65, s. c. ; Medina v. Stoughton, i Ld

Ray. 593, I Salk. 210, s. c.

  • Eichholtz V, Bannister, 17 C. B. N. s. 708; Benj. Sale (3 ed.), 620-631.

6 Y. B. 2 H. IV. 3, pi. 9.

  • Y. B. 1 1 H. IV. 2iZ^ pi. 60. See also 7 H. VI. i, pi. 3.