Page:Harvard Law Review Volume 2.djvu/85

 THE HISTORY OF ASSUMPSIT. 67

Although Assumpsit for money had and received was in its infancy merely a substitute for Account, it gradually outgrew the limits of that action. Thus, if one was induced by fraudulent representations to buy property, the purchase-money could not be recovered from the fraudulent vendor by the action of Account. For a time, also, Indebitatus Assumpsit would not lie in such a case. Lord Holt said in 1696: " But where there is a bargain, though a corrupt one, or where one sells goods that were not his own, I will never allow an indebitatus^ ^ His successors, however, allowed the action. Similarly, Account was not admissible for the recovery of money paid for a promise which the defendant refused to perform. Here, too. Debt and Indebitatus Assumpsit did not at once transcend the bounds of the parent action.^ But in 1704 Lord Holt reluctantly declined to nonsuit a plaintiff who had in such a case declared in Indebitatus Assumpsit^ Again, Account could not be brought for money acquired by a tort, for example, by a disseisin and collection of rents or a conversion and sale of a chattel.^ It was decided, accordingly, in Philips v, Thompson^ (^675), that Assumpsit would not lie for the proceeds of a conversion. But in the following year the usurper of an office was charged in Assumpsit for the profits of the office, no objection being taken to the form of action.^ Objection was made in a similar case in 1677, that there was no privity and no contract; but the Court, in disregard of all the precedents of Account, answered : *• An Indebitatus Assumpsit will lie for rent received by one who pretends a title ; for in such cases an Account will lie. Wherever the plaintiff may have an Account an indebitatus will lie." ^ These precedents were deemed conclusive in Howard v. Wood ® (1678), but Lord Scroggs remarked : " If this were now an original case, we are agreed it would by no means lie.*' Assumpsit soon became concurrent with Trover, where the goods had been sold.^

1 Anon. Comb. 447.

(1696). Comb. 447.
 * Brig's Caue (1623), Palm. 364; Dewbery z^. Chapman (1695), Holt. 35; Anon.

Stra. 406, 2 Burr. loio, s. c. ; Anon., i Stra. 407.
 * Holmes v. Hall, 6 Mod. 161, Holt. 36, s. c See, also, Dutch v. Warren (1720), i

an account of the profits of a tort cannot be obtained in equity to-day except as an incident to an injunction. ^ 3 Lev. 191.
 * Tottenham v. Bedingfield (i 572), Dal. 99, 3 Leon. 24, Ow., 35, 83, s. c. Accordingly,

. • Woodward v. Aston, a Mod. 95. "^ Arris v. Stukely, 2 Mod. 260.

I Salk. 27; Lamine r. Dorell (1705), 2 Ld. Ray. 1216. Phillips ». Thompson, w/ra, was overruled in Hitchins v. Campbell, 2 W. Bl. 827.
 * 2 Show. 23. 2 Lev. 245, Freem. 473, 478, T. Jones, 126, s. c. ; Jacob v. Allen (1703),