Indeed, the latter element is
sufficiently conveyed, perhaps, without it. It may be asked,
therefore, whether the promise did not count for something in
raising a duty to act. So far as this involves the consequence
that the action was in fact for the breach of a contract, the
answer has been given already, and is sustained by too great a
weight of authority to be doubted. /2/ To bind the defendant by a
contract, an instrument under seal was essential. As has been
shown, already, even the ancient sphere of debt had been limited
by this requirement, and in the time of Edward III. a deed was
necessary even to bind a surety. It was so [281] a fortiori to
introduce a liability upon promises not enforced by the ancient
law. Nevertheless, the suggestion was made at an early date, that
an action on the case for damage by negligence, that is, by an
omission of proper precautions, alleging an undertaking by way of
inducement, was in fact an action of contract.
Five years after the action for negligence in curing a horse,
which has been stated, an action was brought /1/ in form against
a surgeon, alleging that he undertook to cure the plaintiff's
hand, and that by his negligence the hand was maimed. There was,
however, this difference, that it was set forth that the
plaintiff's hand had been wounded by one T.
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