A writ of error being brought, it was assigned that "this action lies not against a common bargeman without special promise.But all the Justices and Barons held, that it well lies as against a common carrier upon the land." If we follow this report, it seems at the first glance that importance was attributed to the common calling.But as the loss was clearly within the principle of Southcote's Case, which required neither special promise nor common calling for its application, and which remained unquestioned law for three quarters of a century later, the court must have referred to the form of action employed (case), and not to the liability of the defendant in some form of action (detinue).The objection was that "this action lies not," not that the defendant not liable, "without special promise." Even thus narrowed, it rather countenances the notion that allegations which were necessary to charge a man for damage happening through his neglect, in the more ancient and use of this action, were also necessary in this new extension of it to a different class of wrongs.As it was now pretty clear that case would lie for a nonfeasance, the notion was mistaken, and we shall see that it was denied in subsequent decisions. According to Hobart's report, it was alleged that the defendant was a common hoyman, to carry goods by water, for hire, &c., that by the custom of England such carriers ought to keep the goods, &c., so as they should not be lost by the default of them or their servants, &c."And it was resolved that, though it was laid as a custom of the realm, yet indeed it is common law." This last resolution may only mean that the custom of the realm and the common law are the same thing, as had been said concerning innkeepers long before. But the law as to innkeepers, which was called the custom of the realm in the writ, had somewhat the air of a special principle extending beyond the law of bailment, inasmuch as their liability extended to goods within the inn, of which they had not the custody, and the court may have meant to make an antithesis between such a special principle and the common law or general law of bailment governing the present case.
Whatever doubts some of Croke's language might raise, standing alone, the fact remains indisputable, that for nearly a century from Woodlife's Case the liability of carriers for loss of goods, whether the custom of the realm or the defendant's common calling was alleged or not, was placed upon the authority and was intended to be decided on the principle of Southcote's Case.
Symons v.Darknell 1 (4 Car.I., A.D.1628) is precisely in point.The declaration was, that, by the common law, every lighterman ought so to manage his lighter that the goods carried therein should not perish."And although no promise laid, it seemed to the court that the plaintiff should recover; and not alleging that defendant was common lighterman was no harm.Hyde, C.J., delivery makes the contract." This did not mean that delivery was a good consideration for a promise; but, as was laid down in Southcote's Case, that delivery, without a special acceptance to keep only as one's own goods, bound the bailee to keep safely, and therefore made it unnecessary to allege either an assumpsit or the defendant's common calling.Whitlock, J.
called attention to the fact that the action was tort, not contract."Et en cest case...Southcote's Case fuit cite."The same rule is stated as to bailments in general, the same year, by Sergeant Maynard arguendo in Williams v.Hide, again citing Southcote's Case.
In Kenrig v.Eggleston (24 Car.I., A.D.1648), "case against a country carrier for not delivering a box," &c., of which he was robbed, nothing was said about custom, nor being a common carrier, unless the above words imply that he was; but it was laid down, as in Southcote's Case, that "it must come on the carrier's part acceptance" if he would lessen his liability as bailee.
Nichols v.Moore (13 Car.II., A.D.1661) was case against a "water carrier," between Hull and London, laying a delivery to him at York.It was moved in arrest of judgment, that the defendant did not undertake to carry the goods from York to Hull.
"But notwithstanding this per totam curiam, the defendant shall be charged on his general receipt at York, according to Southcote's Case."It is fair to mention that in Matthews v.Hopkins (17 Car.
II.)the declaration was on the custom of the realm against a common carrier, and there was a motion in arrest of judgment, because there was a misrecital of the custom of the realm, and the defendant was not alleged to have been a carrier at the time of the receipt, and also because counts in trover, and in case on the custom, were joined.Judgment was arrested, it would seem on the latter ground, but the court continued: "And, although the declaration may be good without recital of the custom of the realm, as Hobart says, still it is the better way to recite it."We now come to the great case of Morse v.Slue (23 & 24 Car.
