Fitzherbert, in his new Natura Brevium ( 1534 ) 94D, says that : " If a smith prick my horse with a nail, I shall have my action on the case against him, without any warranty by the smith to do it well "; and he supports it with an excellent reason : " for it is the duty of every artificer to exercise his art rightly and truly as he ought ".
22.
The bull is available in Latin here : Innocentius XII, Papa . 1870 . Romanum decet Pontificem [ . . . ] Dat . die 22 iunii 1692, pontif . anno 1 . In " Bullarium romanum ( Volume 20 ) : Bullarum diplomatum et privilegiorum santorum romanorum pontificum-taurinensis editio locupletior facta collectione novissima plurium brevium, epistolarum, decretorum actorumque S . Sedis a S . Leone Magnus usque ad praesens ", edited by Francesco Gaude, Luigi Tomassetti, Charles Cocquelines, and Luigi Bilio, 441 6.
23.
Brevium, 128, which is attributed to Lord Hale, it is said, " If A . and B . have lands adjoining, where there is no enclosure, the one shall have trespass against the other on an escape of their beasts respectively, Dyer 372, Rastal Ent . 621, 20 Ed . 4.10, although wild dogs, & c ., drive the cattle of the one into the lands of the other . " No case is known to us on which in replevin it has ever been attempted to plead in bar to an avowry for distress damage feasant, that the cattle had escaped without any negligence on the part of the plaintiff, and surely if that could have been a good plea in bar, the facts must often have been such as would have supported it.
24.
In 1534 FitzHerbert, in his " New Natura Brevium " 94D, said that " if a smith prick my horse with a nail . . . I shall have my action upon the case against him, without any warranty by the smith to do it well . . . for it is the duty of every artificer to exercise his art rightly and truly as he ought . " In 1802, in " Govett v Radnidge ", where the defendant undertook to load a hogshead of treacle on a cart, but, in doing so, negligently broke it open, Lord Ellenborough said that the action was founded " on neglect of duty and not upon breach of promise . " In 1895, in " Taylor v Manchester, Sheffield and Lincolnshire Railway Co Ltd ", where a passenger was injured by the negligence of the railway company who were carrying him under contract, it was held that the action was founded on tort.
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