An example like this raises no difficulty; it is as much an action of tort for a wrong as trespass itself.No contract was stated, and none was necessary on principle.But this does not belong to the class of cases to be considered, for the problem before us is to trace the origin of assumpsit, which is an action of contract.Assumpsit, however, began as an action of trespass on the case, and the thing to be discovered is how trespass on the case ever became available for a mere breach of agreement.
It will be well to examine some of the earliest cases in which an undertaking (assumpsit) was alleged.The first reported in the books is of the reign of Edward III. The plaintiff alleged that the defendant undertook to carry the plaintiff's horse safely across the Humber, but surcharged the boat, by reason of which the horse perished.It was objected that the action should have been either covenant for breach of the agreement, or else trespass.But it was answered that the defendant committed a wrongful act when he surcharged the boat, and the objection was overruled.This case again, although an undertaking was stated, hardly introduced a new principle.The force did not proceed directly from the defendant, to be sure, but it was brought to bear by the combination of his overloading and then pushing into the stream.
The next case is of the same reign, and goes further. The writ set forth that the defendant undertook to cure the plaintiff's horse of sickness (manucepit equum praedicti W.de infirmirate), and did his work so negligently that the horse died.This differs from the case of laming the horse with a nail in two respects.It docs not charge any forcible act, nor indeed any act at all, but a mere omission.On the other hand, it states an undertaking, which the other did not.The defendant at once objected that this was an action for a breach of an undertaking, and that the plaintiff should have brought covenant.The plaintiff replied, that he could not do that without a deed, and that the action was for negligently causing the death of the horse; that is, for a tort, not for a breach of contract.Then, said the defendant, you might have had trespass.But the plaintiff answered that by saying that the horse was not killed by force, but died per def.de sa cure; and upon this argument the writ was adjudged good, Thorpe, J.saying that he had seen a man indicted for killing a patient by want of care (default in curing), whom he had undertaken to cure.
Both these cases, it will be seen, were dealt with by the court as pure actions of tort, notwithstanding the allegation of an undertaking on the part of the defendant.But it will also be seen that they are successively more remote from an ordinary case of trespass.In the case last stated, especially, the destroying force did not proceed from the defendant in any sense.And thus we are confronted with the question, What possible analogy could have been found between a wrongful act producing harm, and a failure to act at all?
I attempt to answer it, let me illustrate a little further by examples of somewhat later date.Suppose a man undertook to work upon another's house, and by his unskilfulness spoiled his employer's timbers; it would be like a trespass, although not one, and the employer would sue in trespass on the case.This was stated as clear law by one of the judges in the reign of Henry IV. But suppose that, instead of directly spoiling the materials, the carpenter had simply left a hole in the roof through which the rain had come in and done the damage.The analogy to the previous case is marked, but we are a step farther away from trespass, because the force does not come from the defendant.Yet in this instance also the judges thought that trespass on the case would lie. In the time of Henry IV.the action could not have been maintained for a simple refusal to build according to agreement; but it was suggested by the court, that, if the writ had mentioned "that the thing had been commenced and then by not done, it would have been otherwise."
I now recur to the question, What likeness could there have been between an omission and a trespass sufficient to warrant a writ of trespass on the case? In order to find an answer it is essential to notice that in all the earlier cases the omission occurred in the course of dealing with the plaintiff's person or property, and occasioned damage to the one or the other.In view of this fact, Thorpe's reference to indictments for killing a patient by want of care, and the later distinction between neglect before and after the task is commenced, are most pregnant.The former becomes still more suggestive when it is remembered that this is the first argument or analogy to be found upon the subject.
The meaning of that analogy is plain.Although a man has a perfect right to stand by and see his neighbor's property destroyed, or, for the matter of that, to watch his neighbor perish for want of his help, yet if he once intermeddles he has no longer the same freedom.He cannot withdraw at will.To give a more specific example, if a surgeon from benevolence cuts the umbilical cord of a newly-born child, he cannot stop there and watch the patient bleed to death.It would be murder wilfully to allow death to come to pass in that way, as much as if the intention had been entertained at the time of cutting the cord.
It would not matter whether the wickedness began with the act, or with the subsequent omission.
