To take an instance which is
substantially one of the earliest cases, suppose that a man left
a horse with a blacksmith to be shod, and he negligently drove a
nail into the horse's foot. It might be that the owner of the
horse could not have one of the old writs, because the horse was
not in his possession when the damage was done. A strict trespass
property could only be committed against the person in possession
of it. It could not be committed by one who was in possession
himself. /1/ But as laming the horse was equally a wrong, whether
the owner held the horse by the bridle or left it with the smith,
and as the wrong was closely analogous to a trespass, although
not one, the law gave the owner a writ of trespass on the case.
/2/
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.
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