Suppose, next, that the plaintiff sued in case for a tort.As before, the breach of duty complained of might be such damage to property as had always been sued for in that form of action, or it might be a loss by theft for which detinue would formerly have been brought, and which fell on the bailee only by reason of the bailment.If the goods had been stolen, the bailee's liability rested neither on his common calling nor on his assumpsit and his neglect, but arose from the naked facts that he had accepted a delivery and that the goods were gone, and in such cases it ought to have been enough to allege those facts in the declaration. But it was very natural that the time-honored foundations for the action on the case in its more limited application should still be laid in the pleadings, even after the scope of the action had been enlarged.We shall have to inquire, later, whether the principles of Southcote's Case were not also extended in the opposite direction to cases not falling within it.The reasons for the rule which it laid down had lost their meaning centuries before Gawdy and Clench were born, when owners had acquired the right to sue for the wrongful taking of property in the hands and the rule itself was a dry precedent likely to be followed according to the letter because the spirit had departed.
It had begun to totter when the reporter cautioned bailees to accept in such terms as to get rid of it. Accordingly, although that decision was the main authority relied on for the hundred years between it and Coggs v.Bernard whenever a peculiar responsibility was imposed upon bailees, we find that sometimes an assumpsit was laid as in the early precedents, or more frequently that the bailee was alleged to be a common bargeman, or common carrier, or the like, without much reference to the special nature of the tort in question; and that the true bearing of the allegation was sometimes lost sight of.At first, however, there were only some slight signs of confusion in the language of one or two cases, and if the duty was conceived to fall within the principle of Southcote's Case, pleaders did not always allege the common or public calling which was held unnecessary. But they also adopted other devices from the precedents in case, or to strengthen an obligation which they did not well understand.Chief Justice Popham had sanctioned a distinction between paid and unpaid bailees, hence it was deemed prudent to lay a reward.Negligence was of course averred; and finally it became frequent to allege an obligation by the law and custom of the realm.This last deserves a little further attention.
There is no writ in the Register alleging any special obligation of common carriers by the custom of the realm.But the writ against innkeepers did lay a duly "by the law and custom of England," and it was easy to adopt the phrase.The allegation did not so much imply the existence of a special principle, as state a proposition of law in the form which was then usual.There are other writs of trespass which allege a common-law duty in the same way, and others again setting forth a statutory obligation.
So "the judges were sworn to execute justice according to law and the custom of England." The duties of a common carrier, so far as the earlier evidence goes, were simply those of bailees in general, coupled with the liabilities generally attached to the exercise of a public calling.The word "common" addressed itself only to the latter point, as has been shown above.This is further illustrated by the fact that, when the duty was thus set forth, it was not alleged as an obligation peculiar to common carriers as such, but was laid as the custom of law of common hoymen, or lightermen, &c., according to the business of the party concerned.It will be noticed that Chief Justice Holt in Coggs v.Bernard states the liability as applicable to all bailees for reward, exercising a public employment, and mentions common hoymen and masters of ships alongside of, not as embraced under, common carriers.It will also be noticed in the cases before that time, that there is no settled formula for the obligation in question, but that it is set forth in each case that the defendant was answerable for what he was said to have done or omitted in the particular instance.
Returning now to the succession of the cases, Rich v.
Kneeland is the next in order (11 Jac.I., A.D.1613).It was an action on the case (tort), against a common hoyman.In Croke's report nothing is said of custom; but the declaration avers that the defendant was a common bargeman, that the plaintiff delivered him a portmanteau, &c.to carry, and paid him for it, and that the defendant tam negligenter custodivit, that it was taken from him by persons unknown,--like the second count in Morse v.Slue, below.The plea was demurred to, and adjudged for the plaintiff.
