Page:Harvard Law Review Volume 8.djvu/271

PAROL CONTRACTS PRIOR TO ASSUMPSIT. 25$ Nor has the present writer been able to discover any trace- able connection between the ecclesiastical claim of jurisdiction over Icesio fidei and the jurisdiction of the Chancellor the matter of parol agreements. If the Chancellor proceeded in the same spirit as the ecclesiastical judge, purely upon the ground of breach of faith, it would follow that in the absence of a remedy at com- mon law, equity would give relief upon any and all agreements,^ even upon gratuitous parol promises. And Mr. Justice Holmes seems to have so interpreted the following statement, which he cites from the Diversity of Courts (Chancery) : " A man shall have remedy in Chancery for covenants made without specialty, if the party have sufficient witness to prove the covenants, and yet he is without remedy at the common law ; " for he adds that the contrary was soon afterwards decided, citing Cary, 7: " Upon nudum pactum there ought to be no more help in Chan- cery than there is at the common law." But, with all deference, the passage in the Diversity of Courts seems to have been mis- apprehended. There is really no contrariety between that passage and the extract from Cary. It is not asserted in the Diversity of Courts that one should have remedy for all parol covenants, where there was no remedy at common law. Full effect is given to the language used if it is taken to import that reHef was given upon some parol covenants. So interpreted the Diversity of Courts accords with other authorities. For while it is confidently sub- mitted that no instance can be found prior to the time of Lord Eldon ^. in which Equity gave relief upon a gratuitous parol prom- ise, it is certainly true that Chancery did in some cases furnish a remedy upon parol covenants. But in all these Chancery cases it will be found that the promisee, acting in reliance upon the prom- ise, had incurred expense, or otherwise parted with property, and that the Chancellor, upon an obvious principle of natural justice, compelled the promisor to make reparation for the loss caused by II ; Y. B. 20 Ed. IV. 10-9; Y. B. 22 Ed. IV. 20-47 J Y. B. 12 Hen. VII. 22, b-2 ; Dr. & St. Dial. II. c. 24. 1 At the present day a gratuitous undertaking by the owner of property to hold the same in trust for another is enforced in equity. It is a singular fact that this anoma- lous doctrine seems to have been first sanctioned by the conservative Lord Eidon, in Ex parte Pye, 18 Ves. 140. It was well settled that a use could not be created by a similar gratuitous parol declaration. Indeed, as late as 1855, Lord Cranworth, in Scales 7/. Maude, 6 D. M. & G. 43. 51, said that a mere declaration of trust by the owner of property in favor of a volunteer was inoperative. In Jones v. Lock, i Ch. Ap. 25, 28, he corrected this statement, yielding to the authority of what seemed to him unfor- tunate decisions.