THE HISTORY OF ASSUMPSIT, 1 5
them, in 1378, the defendant promised to convey certain land to the plaintifiF, who, trusting in the promise, paid out money in trav- elling to London and consulting counsel ; and upon the defend- ant's refusal to convey, prayed for a subpoena to compel the defendant to answer of his "disceit."^ The bill sounds in tort rather than in contract, and. inasmuch as even cestuis que use could not compel a conveyance by their feo£Eees to use at this time, its object was doubtless not specific performance, but reim- bursement for the expenses incurred. Appilgarth v. Sergeantson ^ (1438) was also a bill for restitutio in integrum^ savoring strongly of tort. It was brought against a defendant who had obtained the plaintiffs money by promising to marry her, and who had then married another in ^^grete deceit." ® The remaining case, thirty years later,* does not differ materially from the other two. The defend- ant, having induced the plaintiff to become the procurator of his benefice, by a promise to save him harmless for the occupancy, secretly resigned his benefice, and the plaintiff, being afterwards vexed for the occupancy, obtained relief by subpoena.
Both in equity* and at law, therefore, a remediable breach of a parol promise was originally conceived of as a deceit ; that is, a tort. Assumpsit was in several instances distinguished from I contract.® By a natural transition, however, actions upon parol'i promises came to be regarded as actions ex contractu,'* Damages were soon assessed, not upon the theory of reimbursement for the loss of the thing given for the promise, but upon the principle of compensation for the failure to obtam the thing promised. .Again, the liability for a tort ended with the life of the wrong-doer. But after the struggle of a century, it was finally decided that the per-
1 2 Cal. Ch. II. 2 , Cal. Ch. XLI.
• An action on the case was allowed under similar circumstances in 1 505, Anon., Cro. EL 79 (dted). * V. B. 8 Ed. IV. 4, pi. 11.
^ The Chancellor (Stillington) says, it is true, that a subpoena will lie against a car- penter for breach of his promise to build. But neither this remark, nor the statement in Diversity of Courts, Chancerie, justifies a belief that equity ever enforced gratuitous parol promises. But see Holmes, i L. Q. Rev. 172, 173 ; Salmond, 3 L. Q. Rev. 173. The practice of decreeing specific performance of any promises can hardly be much older than the middle of the sixteenth century. Bro. Ab. Act on Case, pi. 72. But the invalidity of a nudum pactum was clearly stated by Saint-Germain in 1 531. Doct. & St. Dial. II. Ch. 22, 23, and 24.
• Y. B. 27 H. VIII. 24, 25, pi. 3; Sidenham v, Worlington, 2 Leon. 224 ; Banks w Thwaites, 3 Leon. 73 ; Shandois v. Simpson, Cro. El. 880 ; Sands v, Trevilian, Cro Car. 107.
T Williams v. Hide, Pahn. 548, 549 1 Wirral r. Brand, i Lev. 165.