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. /1/ 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. /2/ 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."
/3/
[278] 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.
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