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may have been a mere omission letting in the operation of natural forces。 But if you connect it； as it was connected in fact； with the previous dealings； you have a course of action and conduct which； taken as a whole； has caused or occasioned the harm。
The objection may be urged； to be sure； that there is a considerable step from holding a man liable for the consequences of his acts which he might have prevented； to making him answerable for not having interfered with the course of nature when he neither set it in motion nor opened the door for it to do harm； and that there is just that difference between making a hole in a roof and leaving it open； or cutting the cord and letting it bleed； on the one side； and the case of a farrier who receives a sick horse and omits proper precautions； on the other。 /1/
There seem to be two answers to this。 First； it is not clear that such a distinction was adverted to by the court which decided the case which I have mentioned。 It was alleged that the defendant performed his cure so negligently that the horse died。 It might not have occurred to ＇280＇ the judges that the defendant's conduct possibly went no further than the omission of a series of beneficial measures。 It was probably assumed to have consisted of a combination of acts and neglects； which taken as a whole amounted to an improper dealing with the thing。
In the next place； it is doubtful whether the distinction is a sound one on practical grounds。 It may well be that； so long as one allows a trust to be reposed in him； he is bound to use such precautions as are known to him； although he has made no contract； and is at liberty to renounce the trust in any reasonable manner。 This view derives some support from the issue on which the parties went to trial； which was that the defendant performed the cure as well as he knew how； without this； that the horse died for default of his care （cure？）。 /l /
But it cannot be denied that the allegation of an undertaking conveyed the idea of a promise； as well as that of an entering upon the business in hand。 Indeed； the latter element is sufficiently conveyed； perhaps； without it。 It may be asked；
therefore； whether the promise did not count for something in raising a duty to act。 So far as this involves the consequence that the action was in fact for the breach of a contract； the answer has been given already； and is sustained by too great a weight of authority to be doubted。 /2/ To bind the defendant by a contract； an instrument under seal was essential。 As has been shown； already； even the ancient sphere of debt had been limited by this requirement； and in the time of Edward III。 a deed was necessary even to bind a surety。 It was so ＇281＇ a fortiori to introduce a liability upon promises not enforced by the ancient law。 Nevertheless； the suggestion was made at an early date； that an action on the case for damage by negligence； that is； by an omission of proper precautions； alleging an undertaking by way of inducement； was in fact an action of contract。
Five years after the action for negligence in curing a horse； which has been stated； an action was brought /1/ in form against a surgeon； alleging that he undertook to cure the plaintiff's hand； and that by his negligence the hand was maimed。 There was； however； this difference； that it was set forth that the plaintiff's hand had been wounded by one T。B。 And hence it appeared that； however much the bad treatment may have aggravated matters； the maiming was properly attributable to T。B。； and that the plaintiff had an action against him。 This may have led the defendant to adopt the course he did； because he felt uncertain whether any action of tort would lie。 He took issue on the undertaking； assuming that to be essential to the plaintiff's case； and then objected that the writ did not show the place of the undertaking； and hence was bad； because it did not show whence the inquest should be summoned to speak to that point。 The writ was adjudged bad on that ground； which seems as if the court sanctioned the defendant's view。 Indeed； one of the judges called it an action of covenant； and said that 〃of necessity it was maintainable without specialty； because for so small a matter a man cannot always have a clerk at hand to write a deed〃 （pur faire especially）。 At the same time the earlier cases which ＇282＇ have been mentioned were cited and relied on； and it is evident that the court was not prepared to go beyond them； or to hold that the action could be maintained on its merits apart from the technical objection。 In another connection it seems to have considered the action from the point of view of trespass。 /1/
Whatever questions this case may suggest； the class of actions which alleged an undertaking on the part of the defendant continued to be dealt with as actions of tort for a long time after Edward III。 The liability was limited to damage to person or property arising after the defendant had entered upon the employment。 And it was mainly through reasoning drawn from the law of tort that it was afterwards extended； as will be seen。
At the beginning of the reign of Henry VI。 it was probably still the law that the action would not lie for a simple failure to keep a promise。 /2/ But it had been several times suggested； as has been shown； that it would be otherwise if the omission or neglect occurred in the course of performance； and the defendant's conduct had been followed by physical damage。 /3/ This suggestion took its most striking form in the early years of Henry VI。； when the case of the carpenter leaving a hole in the roof was put。 /4/ When the courts had got as far as this； it was easy to go one step farther； and to allow the same effect to an omission at any stage； followed by similar damage。
＇283＇ What is the difference in principle； it was asked； a few years later； /1/ between the cases where it is admitted that the action will lie； and that of a smith who undertakes to shoe a horse and does not； by reason of which the horse goes lame；or that of a lawyer； who undertakes to argue your case； and； after thus inducing you to rely upon him； neglects to be present； so that you lose it？ It was said that in the earlier instances the duty was dependent on or accessory to the covenant； and that； if the action would lie on the accessory matter； it would lie on the principal。 /2/ It was held on demurrer that an action would lie for not procuring certain releases which the defendant had undertaken to get。
Five years later another case /3/ came up； which was very like that of the farrier in the reign of Edward III。 It was alleged that the defendant undertook to cure the plaintiff's horse； and applied medicine so negligently that the horse died。 In this； as in the earlier case； the issue was taken on the assumpsit。 And now the difference between an omission and an act was clearly stated； the declaration was held not to mean necessarily anything more than an omission； and it was said that but for the undertaking the defendant would have owed no duty to act。 Hence the allegation of the defendant's promise was material； and an issue could properly be taken on it。
This decision distinctly separated from the mass of actions on the case a special class arising out of a promise as the source of the defendant's obligation； and it was only a matter of time for that class to become a new and distinct ＇284＇ action of contract。 Had this change taken place at once； the doctrine of consideration； which was first definitely enunciated about the same time； would no doubt have been applied； and a quid pro quo would have been required for the undertaking。 /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。 The attorney rendered the service； and then brought debt。 It was objected that debt did not lie； because there was no contract between the parties； and the defendant had not any quid pro quo。 The court adopted the argument； and said that there was no contract or