Page:Harvard Law Review Volume 5.djvu/241

225 GRATUITOUS UNDERTAKINGS. 225 It seems, then, that in all such cases the liability of the party at fault is to be decided by certain principles of the common law, distinct from those governing liability in cases of tort or breach of contract, which should be grouped together into another division of personal rights, coordinate with torts and contracts. It is true that such a division of personal actions has never been explicitly recognized in our law. But before the present division of actions into torts and contracts, a somewhat similar state of affairs prevailed. There seems at one time to have been a three- fold division of personal actions into (1) trespass, and trespass on the case ; (2) case induced by assumpsit; (3) covenant. 1 Actions on the case induced by assumpsit included not only breaches of simple contracts, but also breaches of gratuitous undertakings, 2 which therefore in their origin are more nearly allied to simple contracts than to torts. When those actions in which the assumpsit was merely an inducement were differentiated from those in which it was the gist of the action, the former would properly have united with the old action of detinue, founded on bailment, to make up the grand division of undertakings; just as the latter united with actions of debt and covenant to form the grand division of contracts. Bailments, however, were after a struggle drawn off into the division of contracts; and the few other cases of undertaking then known, not being of sufficient importance to form a separate division, either followed bailments, or with other actions on the case sank back into the division of torts. This fact, singular as it is, may be accounted for by the well-known early neglect of all rights that did not concern tan- gible property. Injuries to intangible property might, it is true, be redressed after the statute of Westminster II. by an action on the case. But the recognition of such injuries was a gradual process ; and before such as were in the nature of breaches of undertaking were recognized, the twofold division of actions was fully established. Thus the earliest sorts of undertaking recog- nized were those of a farrier, 3 surgeon, 4 innkeeper as to the goods of the guest, 6 carrier, 6 and bailee. 7 It is only recently that such 1 43 Ed. III. 33, pi. 38; 11 Hen. IV. 33. 2 2 H. IV. 3, pi. 9. 8 46 Ed. III. 19, pi. 19. * 48 Ed. III. 6, pi. 11. 6 42 Ed. III. 11, 13 ; 42 Lib. Ass. 260, pi. 17. 6 Y. B. 22 Ass. 94, pi. 41. 7 8 Ed. II. 275.