/1/ But the notion
of tort was not at once abandoned. The law was laid down at the
beginning of the reign of Henry VII., in accordance with the
earlier decisions, and it was said that the action would not lie
for a failure to keep a promise, but only for negligence after
the defendant had entered upon his undertaking. /2/
So far as the action did not exceed the true limits of tort, it
was immaterial whether there was a consideration for the
undertaking or not. But when the mistake was made of supposing
that all cases, whether proper torts or not, in which an
assumpsit was alleged, were equally founded on the promise, one
of two erroneous conclusions was naturally thought to follow.
Either no assumpsit needed any quid pro quo, /3/ as there was
clearly none in the older precedents, (they being cases of pure
tort,) or else those precedents were wrong, and a quid pro quo
should be alleged in every case. It was long recognized with more
or less understanding of the true limit, that, in cases where the
gist of the action was negligent damage to property, a
consideration was not necessary. /4/ And there are some traces of
the notion that it was always superfluous, as late as Charles I.
[285] In a case of that reign, the defendant retained an attorney
to act in a suit for a third person, and promised to pay him all
his fees and expenses.
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