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Page:Harvard Law Review Volume 2.djvu/31

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THE HISTORY OF ASSUMPSIT. 13

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, CJ., 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 under- took 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 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 alto- gether 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 mc. 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 pay- ment 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." ^

1 Y. B. 2 H. VII. 12, pi. 15. a Y. B. 3 H. VII. 14. pi- 20.

• Keilw. 77, pi. 25, which seems to be the same case as Y. B. 20 H. VII. 8, pi. 18, 21 H. VII. 41, pi. 66, per Fmeux, C.J„ accord. See also Brooke's allusion to an

    • action on the case upon an assumpsit pro tali summa*^ Br. Ab. Disceit, pi. 29.