the great injury of the plaintiff's face;* against a carpenter who undertook to build well and faithfully, but who built unskilfully.†

In all these cases, it will be observed, the plaintiff sought to recover damages for a physical injury to his person or property caused by the active misconduct of the defendant. The statement of the assumpsit of the defendant was for centuries, it is true, deemed essential in the count. But the actions were not originally, and are not to-day, regarded as actions of contract. They have always sounded in tort. Consideration has, accordingly, never played any part in the declaration. In the great majority of the cases and precedents there is no mention of reward or consideration. In Powtuary v. Walton‡ (1598), a case against a farrier who undertook to cure the plaintiff's horse, and who treated it so negligently and unskilfully that it died, it is said: "Action on the case lies on this matter without alleging any consideration, for his negligence is the cause of the action, and not the assumpsit." The gist of the action being tort, and not contract, a servant,§ a wife,|| or a child ¶ who is injured, may sue a defendant who was employed by the master, the husband, or the father. Wherever the employment was not gratuitous, and the employer was himself the party injured, it would, of course, be a simple matter to frame a good count in contract. There is a precedent of assumpsit against a farrier for laming the plaintiff's horse.** But in practice assumpsit was rarely, if

ever, resorted to.

14 H. VII. Rast. Ent. 2, b. I.

† Y. B. II H. IV. 33, pl. 6o ; Y. B. 3 H. VI. 36, pl. 33; Y. B. 2o H. VI. 34, pl. 4; Y. B. 21 H. VI. 55, pl. 12; 18 H. VII. Keilw. 50, pl. 4; 21 H. VII. Keilw. 77, pl. 25; Y. B. 21 H. VII. 41, pl. 66; Coggs v. Bernard, 2 Ld. Ray. 909, 920; Elsee v. Gatward, 5 T. R. 143. See also Best v. Yates, 1 Vent. 268. ‡ 1 Roll. Ab. 10, pl. 5. See also to the same effect, Reg. Br. 105 b. Everard v. Hopkins, 2 Bulst. 332.

What, then, was the significance of the assumpsit which appears in all the cases and precedents, except those against a smith for unskilful shoeing? To answer this question it is necessary to take into account a radical difference between modern and primitive conceptions of legal liability. The original notion of a tort to one's person or property was an injury caused by an act of a stranger, in which the plaintiff did not in any way participate. A battery, an asportation of a chattel, an entry upon land, were the typical torts. If, on the other hand, one saw fit to authorize another to come into contact with his person or property, and damage ensued, there was, without more, no tort. The person injured took the risk of all injurious consequences, unless the other expressly assumed the risk himself, or unless the peculiar nature of one's calling, as in the case of the smith, imposed a customary duty to act with reasonable skill. This conception is well shown by the remarks of the judges in a case against a horse-doctor.* Newton, C.J.: "Perhaps he applied his medicines de son bon gré, and afterwards your horse died; now, since he did it de son bon gré, you shall not have an action. . . . My horse is ill, and I come to a horse-doctor for advice, and he tells me that one of his horses had a similar trouble, and that he applied a certain medicine, and that he will do the same for my horse, and does so, and the horse dies; shall the plaintiff have an action? I say, No." Paston, J.: "You have not shown that he is a common surgeon to cure such horses, and so, although he killed your horse by his medicines, you shall have no action against him without an assumpsit." Newton, C.J.: "If I have a sore on my hand, and he applies a medicine to my heel, by which negligence my hand is maimed, still I shall not have an action unless he undertook to cure me." The court accordingly decided that a traverse of the assumpsit made a good issue.†

* Y. B. 19 H. VI. 49, pl. 5.

See to the same effect Y. B. 48 Ed. III. 6, pl. 11; 11 R. II. Fitz. Ab. Act. on Case, 37; Rast. Ent. 463 b.

It is believed that the view here suggested will explain the following passage in Blackstone, which has puzzled many of his readers: "If a smith's servant lames a horse while he is shoeing him, an action lies against the master, but not against the servant." This is, of course, not law to-day, and probably had ceased to be law when written. Blackstone simply repeated the doctrine of the Year-Books.t The servant had not expressly assumed to shoe carefully; he was, therefore, no more liable than the surgeon, the barber, and the carpenter, who had not undertaken, in the cases already mentioned. This primitive notion of legal liability has, of course, entirely disappeared from the law. An assumpsit is no longer an essential allegation in these actions of tort, and there is, therefore, little or no semblance of analogy between these actions and actions of

contract.

An express assumpsit was originally an essential part of the plaintiff's case in another class of actions, namely, actions on the case against bailees for negligence in the custody of the things intrusted to them. This form of the action on the case originated later than the actions for active misconduct, which have been already considered, but antedates, by some fifty years, the action of assumpsit. The normal remedy against a bailee was detinue. But there were strong reasons for the introduction of a concurrent remedy by an action on the case. The plaintiff in detinue might be defeated by the defendant's wager of law; if he had paid in advance for the safe custody of his property, he could not recover in detinue his money, but only the value of the property; detinue could not be brought in the King's Bench by original writ; and the procedure generally was less satisfactory than that in case. It is not surprising, therefore, that the courts permitted bailors to sue in case. The innovation would seem to have come in

i

*I Bl. Com. 431.

† Y. B. 11 Ed. IV. 6, pl. 10; 1 Roll. Ab. 94, pl. 1 ; 1 Roll. Ab. 95, pl. 1.

as early as 1449.* The plaintiff counted that he delivered to the defendant nine sacks of wool to keep; that the defendant, for six shillings paid him by the plaintiff, assumed to keep them safely, and that for default of keeping they were taken and carried away. It was objected that detinue, and not case, was the remedy. One of the judges was of that opinion, but in the end the defendant abandoned his objection; and Statham adds this note : .. "et credo the reason of the action lying is because the defendant had six shillings which he [plaintiff] could not recover in detinue." The bailor's right to sue in case instead of detinue was recognized by implication in 1472,† and was expressly stated a few years later.‡

The action against a bailee for negligent custody was looked upon, like the action against the surgeon or carpenter for active misconduct, as a tort, and not as a contract. The immediate cause of the injury in the case of the bailee was, it is true, a nonfeasance, and not, as in the case of the surgeon or carpenter, a misfeasance. And yet, if regard be had to the whole transaction, it is seen that there is more than a simple breach of promise by the bailee. He is truly an actor. He takes the goods of the bailor into his custody. This act of taking possession of the goods, his assumpsit to keep them safely, and their subsequent loss by his default, together made up the tort. The action against the bailee sounding in tort, consideration was no more an essential part of the count than it was in actions against a surgeon. Early in the reign of Henry VIII., Moore, Sergeant, said, without contradiction, that a bailee, with or without reward, was liable for careless loss of goods either in detinue or case; § and it is common

*Statham Ab. Act. on Case (27 H. VI.).

† Y. B. 12 Ed. IV. 13, pl. 10.

Y. B. 2 H. VII. 11, pl. 9; Keiiw. 77, pl. 25; Keilw. 160, pl. 2; Y. B. 27 H. VIII. 25, pl. 3.

Keilw. 160, pl. 2 (1510).

learning that a gratuitous bailee was charged for negligence in the celebrated case of Coggs v. Bernard. If there was, in truth, a consideration for the bailee's undertaking, the bailor might, of course, declare in contract, after special assumpsit was an established form of action. But, in fact, there are few instances of such declarations before the reign of Charles I.* Even since that time, indeed, case has continued to be a frequent, if not the more frequent, mode of declaring against a bailee.† Oddly enough, the earliest attempts to charge bailees in assumpsit were made when the bailment was gratuitous. These attempts, just before and after 1600, were unsuccessful, because the plaintiffs could not make out any consideration.‡ The gratuitous bailment was, of course, not a benefit, but a burden to the defendant; and, on the other hand, it was not regarded as a detriment, but an advantage to the plaintiff. But in 1623 it was finally decided, not without a great straining, it must be conceded, of the doctrine of consideration, that a bailee might be charged in assumpsit on a gratuitous bailment.§

The analogy between the action against the bailee and that against the surgeon holds also in regard to the necessity of alleging an express assumpsit of the defendant. Bailees whose calling was of a quasi public nature were chargeable by the custom of the realm, without any express undertaking. Accordingly, so far as the reported cases and precedents disclose, an assumpsit was never laid in a count in case against

* [As late as 1745, it was objected in Alcorn v. Westbrook Wils. 115, that Assumpsit was not the proper form of action against a pledgee.]

In Williams v. Lloyd, W. Jones, 179; Anon., Comb. 371; Coggs v. Bernard, 2 Ld. Ray. 909; Shelton v. Osborne, 1 Barnard, 260; 1 Selw. N. P. (13 ed.) 348, s. c. ; Brown v. Dixon, 1 T. R. 274, the declarations were framed in tort.

Howlet v. Osborne Cro. El. 380; Riches v. Briggs, Cro. El. 883, Yelv. 4; Game v. Harvie, Yelv. 50; Pickas v. Guile, Yelv. 128. See also Gellye v. Clark, Noy, 125, Cro. Jac. 188, s. c.; and compare Smith's case, 3 Leon. 88.

Wheatley v. Low, Palm. 281, Cro. Jac. 668, s. c.