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.
[277] 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.
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