The Common Law

by Oliver Wendell Holmes

After the Norman conquest all ordinary actions were begun by a writ issuing from the king, and ordering the defendant to be summoned before the court to answer the plaintiff. These writs were issued as a matter of course, in the various well-known actions from which they took their names. There were writs of debt and of covenant; there were writs of trespass for forcible injuries to the plaintiff's person, or to property in his possession, and so on. But these writs were only issued for the actions which were known to the law, and without a writ the court had no authority to try a case. In the time of Edward I. there were but few of such actions. The cases in which you could recover money of another fell into a small number of groups, for each of which there was a particular form of suing and stating your claim.

These forms had ceased to be adequate. Thus there were many cases which did not exactly fall within the definition of a trespass, but for which it was proper that a remedy should be furnished. In order to furnish a remedy, the first thing to be done was to furnish a writ. Accordingly, the famous statute of 13 Edward I., c. 24, authorized the office from which the old writs issued to frame new ones in cases similar in principle to those for which writs were found, and requiring like remedy, but not exactly falling within the scope of the writs already in use.

Thus writs of trespass on the case began to make their appearance; that is, writs stating a ground of complaint [275] to a trespass, but not quite amounting to a trespass as it had been sued for in the older precedents. To take an instance which is substantially one of the earliest cases, suppose that a man left a horse with a blacksmith to be shod, and he negligently drove a nail into the horse's foot. It might be that the owner of the horse could not have one of the old writs, because the horse was not in his possession when the damage was done. A strict trespass property could only be committed against the person in possession of it. It could not be committed by one who was in possession himself. /1/ But as laming the horse was equally a wrong, whether the owner held the horse by the bridle or left it with the smith, and as the wrong was closely analogous to a trespass, although not one, the law gave the owner a writ of trespass on the case. /2/

An example like this raises no difficulty; it is as much an action of tort for a wrong as trespass itself. No contract was stated, and none was necessary on principle. But this does not belong to the class of cases to be considered, for the problem before us is to trace the origin of assumpsit, which is an action of contract. Assumpsit, however, began as an action of trespass on the case, and the thing to be discovered is how trespass on the case ever became available for a mere breach of agreement.

It will be well to examine some of the earliest cases in which an undertaking (assumpsit) was alleged. The first reported in the books is of the reign of Edward III. /3/ The plaintiff alleged that the defendant undertook to carry the plaintiff's horse safely across the Humber, but surcharged [276] the boat, by reason of which the horse perished. It was objected that the action should have been either covenant for breach of the agreement, or else trespass. But it was answered that the defendant committed a wrongful act when he surcharged the boat, and the objection was overruled. This case again, although an undertaking was stated, hardly introduced a new principle. The force did not proceed directly from the defendant, to be sure, but it was brought to bear by the combination of his overloading and then pushing into the stream.

The next case is of the same reign, and goes further. /1/ The writ set forth that the defendant undertook to cure the plaintiff's horse of sickness (manucepit equum praedicti W. de infirmirate), and did his work so negligently that the horse died. This differs from the case of laming the horse with a nail in two respects. It does not charge any forcible act, nor indeed any act at all, but a mere omission. On the other hand, it states an undertaking, which the other did not. The defendant at once objected that this was an action for a breach of an undertaking, and that the plaintiff should have brought covenant. The plaintiff replied, that he could not do that without a deed, and that the action was for negligently causing the death of the horse; that is, for a tort, not for a breach of contract. Then, said the defendant, you might have had trespass. But the plaintiff answered that by saying that the horse was not killed by force, but died per def. de sa cure; and upon this argument the writ was adjudged good, Thorpe, J. saying that he had seen a man indicted for killing a patient by want of care (default in curing), whom he had undertaken to cure.

[277] Both these cases, it will be seen, were dealt with by the court as pure actions of tort, notwithstanding the allegation of an undertaking on the part of the defendant. But it will also be seen that they are successively more remote from an ordinary case of trespass. In the case last stated, especially, the destroying force did not proceed from the defendant in any sense. And thus we are confronted with the question, What possible analogy could have been found between a wrongful act producing harm, and a failure to act at all?

I attempt to answer it, let me illustrate a little further by examples of somewhat later date. Suppose a man undertook to work upon another's house, and by his unskilfulness spoiled his employer's timbers; it would be like a trespass, although not one, and the employer would sue in trespass on the case. This was stated as clear law by one of the judges in the reign of Henry IV. /1/ But suppose that, instead of directly spoiling the materials, the carpenter had simply left a hole in the roof through which the rain had come in and done the damage. The analogy to the previous case is marked, but we are a step farther away from trespass, because the force does not come from the defendant. Yet in this instance also the judges thought that trespass on the case would lie. /2/ In the time of Henry IV. the action could not have been maintained for a simple refusal to build according to agreement; but it was suggested by the court, that, if the writ had mentioned "that the thing had been commenced and then by not done, it would have been otherwise." /3/

[278] I now recur to the question, What likeness could there have been between an omission and a trespass sufficient to warrant a writ of trespass on the case? In order to find an answer it is essential to notice that in all the earlier cases the omission occurred in the course of dealing with the plaintiff's person or property, and occasioned damage to the one or the other. In view of this fact, Thorpe's reference to indictments for killing a patient by want of care, and the later distinction between neglect before and after the task is commenced, are most pregnant. The former becomes still more suggestive when it is remembered that this is the first argument or analogy to be found upon the subject.

The meaning of that analogy is plain. Although a man has a perfect right to stand by and see his neighbor's property destroyed, or, for the matter of that, to watch his neighbor perish for want of his help, yet if he once intermeddles he has no longer the same freedom. He cannot withdraw at will. To give a more specific example, if a surgeon from benevolence cuts the umbilical cord of a newly-born child, he cannot stop there and watch the patient bleed to death. It would be murder wilfully to allow death to come to pass in that way, as much as if the intention had been entertained at the time of cutting the cord. It would not matter whether the wickedness began with the act, or with the subsequent omission.