Page:Harvard Law Review Volume 2.djvu/26

 There is much in common between the two classes of actions on the case already discussed and still a third group of actions on the case, namely, actions of deceit against the vendor of a chattel upon a false warranty. This form of action; like the others, is ancient, being older, by more than a century, than special assumpsit. The words super se assumpsit were not used, it is true, in a count upon a warranty; but the notion of undertaking was equally well conveyed by “warrantizando vendidit.”

Notwithstanding the undertaking, this action also was, in its origin, a pure action of tort. In what is, perhaps, the earliest reported case upon a warranty, the defendant objects that the action is in the nature of covenant, and that the plaintiff shows no specialty but “non allocatur, for it is a writ of trespass.” There was regularly no allusion to consideration in the count in case; if, by chance, alleged, it counted for nothing. How remote the action was from an action of contract appears plainly from a remark of Choke, J.: “If one sells a thing to me, and another warrants it to be good and sufficient, upon that warranty made by parol, I shall not have an action of deceit; but if it was by deed, I shall have an action of covenant.” That is to say, the parol contract of guaranty, so familiar in later times, was then unknown. The same judge, and Brian, C.J., agreed, although Littleton, J., inclined to the opposite view, that if a servant warranted goods which he sold for his master, that no action would lie on the warranty. The action sounding in tort, the plaintiff, in order to charge the defendant, must show, in addition to his undertaking, some act by him, that is, a sale; but the owner was the seller, and not the friend or servant, in the cases supposed. A contract, again, is, properly, a promise to act or forbear in the future. But the action under discussion must be, as Choke, J., said, in the same case, upon a warranty of a thing present, and not of a thing to come. A vendor who gives a false warranty may be charged to-day, of course, in contract; but the conception of such a warranty, as a contract, is quite modern. Stuart v. Wilkins, decided in 1778, is said to have been the first instance of an action of assumpsit upon a vendor’s warranty.

We have seen that an express undertaking of the defendant was