/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?). /1/
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.
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