/1/
Whatever questions this case may suggest, the class of actions
which alleged an undertaking on the part of the defendant
continued to be dealt with as actions of tort for a long time
after Edward III. The liability was limited to damage to person
or property arising after the defendant had entered upon the
employment. And it was mainly through reasoning drawn from the
law of tort that it was afterwards extended, as will be seen.
At the beginning of the reign of Henry VI. it was probably still
the law that the action would not lie for a simple failure to
keep a promise. /2/ But it had been several times suggested, as
has been shown, that it would be otherwise if the omission or
neglect occurred in the course of performance, and the
defendant's conduct had been followed by physical damage. /3/
This suggestion took its most striking form in the early years of
Henry VI., when the case of the carpenter leaving a hole in the
roof was put. /4/ When the courts had got as far as this, it was
easy to go one step farther, and to allow the same effect to an
omission at any stage, followed by similar damage.
[283] What is the difference in principle, it was asked, a few
years later, /1/ between the cases where it is admitted that the
action will lie, and that of a smith who undertakes to shoe a
horse and does not, by reason of which the horse goes lame,--or
that of a lawyer, who undertakes to argue your case, and, after
thus inducing you to rely upon him, neglects to be present, so
that you lose it? It was said that in the earlier instances the
duty was dependent on or accessory to the covenant, and that, if
the action would lie on the accessory matter, it would lie on the
principal.
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