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. /3/ The plaintiff alleged
that the defendant undertook to carry the plaintiff's horse
safely across the Humber, but surcharged [276] 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. /1/ 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 does not charge any forcible act, nor indeed
any act at all, but a mere omission.
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