by which was meant those who held themselves out to serve the public generally. Even in the early cases there was an allegation of an assumpsit or undertaking of the defendant to serve the plaintiff. In time, however, as the allegation was repeated in the pleadings, the Courts came to look upon the undertaking as the real foundation of the action and when in 1505, it was said that "the taking of money beforehand by the promisor" was a sufficient undertaking, the germ of the ideas of consideration and contract had began to develop. The next step was taken when the holding out of the Common Calling was held to be an undertaking in itself, and the defendant was held liable for refusal to serve at all. 1450s was the period which followed the Black Death. This was when England was struggling with great shortages of manpower, and the statutes of Labourers 17 had enacted a system of compulsory labour. There were various enactments 16
.There followed the cases of a surgeon who negligently treated his patient [1 369: Waldon V.
Marshall], A Smith who lamed
A Horse while shoeing it (1 372), a carpenter who built unskilfully (1 409) and a clumsy barber who
damaged the Plaintiff's case (1 498).
17
.Edw III 1 349; 25 Edw III ST. 1, C. 6; 33 Edw III, C. 9-1 1 (1 359); 37 Edw III C. 5-1 4.
59 for victuallers 18 , and fishermen 19 , and tailors 20 all penalising a refusal to serve in nearly all trades. All these Tortious Duties were in fact a progenitor of our
