The other cases relied on were some of those on general bailment collected above; the same authorities, in short, on which Southcote's Case was founded.The principle adopted was the same as in Southcote's Case, subject only to the question whether the defendant fell within it.Nothing was said of any custom of the realm, or ever had been in any reported case before this time;and I believe this to be the first instance in which carriers are in any way distinguished from any other class of persons intrusted with goods.There is no hint of any special obligation peculiar to them in the old books; and it certainly is not true, that this case introduced one.It will be noticed, with reference to what follows, that Popham does not speak of common carriers, but of carriers.
Next came Southcote's Case (43 Eliz., A.D.1601), which presented the old law pure and simple, irrespective of reward or any modern innovation.In this and the earlier instances of loss by theft, the action was detinue, counting, we may presume, simply on a delivery and wrongful detainer.
But about this time important changes took place in the procedure usually adopted, which must be explained.If the chattel could be returned in specie, detinue afforded no satisfaction for damage which it might have suffered through the bailee's neglect. The natural remedy for such damage was the action on the case.But before this could be made entirely satisfactory, there were certain difficulties to be overcome.The neglect which occasioned the damage might be a mere omission, and what was there akin to trespass in a nonfeasance to sustain the analogy upon which trespass on the case was founded? Moreover, to charge a man for not acting, you must show that it was his duty to act.As pleadings were formerly construed, it would not have been enough to allege that the plaintiff's goods were damaged by the defendant's negligence. These troubles had been got over by the well-known words, super se assumpsit, which will be explained later.Assumpsit did not for a long time become an independent action of contract, and the allegation was simply the inducement to an action of tort.The ground of liability was that the defendant had started upon the undertaking, so that his negligent omission, which let in the damage, could be connected with his acts as a part of his dealing with the thing. We shall find Lord Holt recognizing this original purport of assumpsit when we come to Coggs v.Bernard.0f course it was not confined to cases of bailment.
But there was another way besides this by which the defendant could be charged with a duty and made liable in case, and which, although less familiar to lawyers, has a special bearing on the law of carriers in later times.If damage had been done or occasioned by the act or omission of the defendant in the pursuit of some of the more common callings, such as that of a farrier, it seems that the action could be maintained, without laying an assumpsit, on the allegation that he was a "common" farrier./l /The latter principle was also wholly independent of bailment.It expressed the general obligation of those exercising a public or "common" business to practise their art on demand, and show skill in it."For," as Fitzherbert says, "it is the duty of every artificer to exercise his art rightly and truly as he ought." When it had thus been established that case would lie for damage when occasioned by the omission, as well as when caused by the act, of the defendant, there was no reason for denying it, even if the negligent custody had resulted in the destruction of the property. From this it was but a step to extend the same form of action to all cases of loss by a bailee, and so avoid the defendant's right to wage his law.Detinue, the primitive remedy, retained that mark of primitive procedure.The last extension was made about the time of Southcote's Case. But when the
same form of action thus came to be used alike for damage or destruction by the bailee's neglect and for loss by a wrong-doer against whom the bailee had a remedy over, a source was opened for confusion with regard to the foundation and nature of the defendant's duty.
In truth, there were two sets of duties,--one not peculiar to bailees, arising from the assumpsit or public calling of the defendant, as just explained; the other, the ancient obligation, peculiar to them as such, of which Southcote's Case was an example.But any obligation of a bailee might be conceived of as part of a contract of bailment, after assumpsit had become appropriated to contract, the doctrine of consideration had been developed, (both of which had happened in Lord Coke's time,) it seemed unnecessary to distinguish nicely between the two sets of duties just mentioned, provided a consideration and special promise could be alleged.Furthermore, as formerly the defendant's public calling had the same effect as an assumpsit for the purpose of charging him in tort, it seems now to have been thought an equally good substitute for a special promise, in order to charge him in assumpsit.In Rogers v.Head, the argument was, that to charge one in assumpsit you must show either his public calling at the time of the delivery, or a special promise on sufficient consideration.This argument assumes that a bailee who received goods in the course of a public employment, for instance as a common carrier, could be charged in this form of action for a breach of either of the above sets of duties, by alleging either his public calling or his reward and a special promise.It seems to have been admitted, as was repeatedly decided before and since that case, that one who was not a common carrier could have been charged for non-delivery in a special action; that is, in case as distinguished from assumpsit.
