B. And hence it
appeared that, however much the bad treatment may have aggravated
matters, the maiming was properly attributable to T.B., and that
the plaintiff had an action against him. This may have led the
defendant to adopt the course he did, because he felt uncertain
whether any action of tort would lie. He took issue on the
undertaking, assuming that to be essential to the plaintiff's
case, and then objected that the writ did not show the place of
the undertaking, and hence was bad, because it did not show
whence the inquest should be summoned to speak to that point. The
writ was adjudged bad on that ground, which seems as if the court
sanctioned the defendant's view. Indeed, one of the judges called
it an action of covenant, and said that "of necessity it was
maintainable without specialty, because for so small a matter a
man cannot always have a clerk at hand to write a deed" (pur
faire especially). At the same time the earlier cases which [282]
have been mentioned were cited and relied on, and it is evident
that the court was not prepared to go beyond them, or to hold
that the action could be maintained on its merits apart from the
technical objection. In another connection it seems to have
considered the action from the point of view of trespass.
Pages:
330
331
332
333
334
335
336
337
338
339
340
341
342
343
344
345
346
347
348
349
350
351
352
353
354