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.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. 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.