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The principle was directly decided in accordance with the ancient law in the famous case of Southcote v。 Bennet。 /8/ This was detinue of goods delivered to the defendant to ＇179＇ keep safely。 The defendant confessed the delivery； and set up he was robbed of the goods by J。S。 〃And； after argument at the bar； Gawdy and Clench； ceteris absentibus； held that the plaintiff ought to recover； because it was not a special bailment； that the defendant accepted them to keep as his proper goods； and not otherwise； but it is a delivery； which chargeth him to keep them at his peril。 And it is not any plea in a detinue to say that he was robbed by one such； for he hath his remedy over by trespass； or appeal； to have them again。〃 The above from Croke's report implies； what Lord Coke expressly says； that 〃to be kept； and to be kept safe； is all one；〃 and both reports agree that the obligation was founded on the delivery alone。 Croke's report confirms the caution which Lord Coke adds to his report： 〃Note； reader； it is good policy for him who takes any goods to keep； to take them in special manner； scil。 to keep them as he keeps his own goods； 。。。 or if they happen to be stolen or purloined； that he shall not be answerable for them； for he who accepted them ought to take them in such or the like manner； or otherwise he may be charged by his general acceptance。〃
Down to this time； at least； it was clear law that； if a person accepted the possession of goods to keep for another even as a favor； and lost them by wrongful taking； wholly without his fault； he was bound to make good the loss； unless when he took possession he expressly stipulated against such a responsibility。 The attempts of Lord Holt in Coggs v。 Bernard； and of Sir William Jones in his book on Bailments； to show that Southcote v。 Bennet was not sustained by authority； were futile； as any one who will Study the Year Books for himself may see。 The same principle was laid down seven years before by Peryam； ＇180＇ C。 B。； in Drake v。 Royman； /1/ and Southcote's Case was followed as a leading precedent without question for a hundred years。
Thus the circle of analogies between the English and the early German law is complete。 There is the same procedure for lost property； turning on the single question whether the plaintiff had lost possession against his will； the same principle that； if the person intrusted with the property parted with it to another； the owner could not recover it； but must get his indemnity from his bailee； the same inverted explanation； that the bailee could sue because he was answerable over； but the substance of the true doctrine in the rule that when he had no remedy he was not answerable； and； finally； the same absolute responsibility for loss； even when happening without fault on the part of the person intrusted。 The last and most important of these principles is seen in force as late as the reign of Queen Elizabeth。 We have now to follow its later fortunes。
A common carrier is liable for goods which are stolen from him； or otherwise lost from his charge except by the act of God or the public enemy。 Two notions have been entertained with regard to the source of this rule： one； that it was borrowed from the Roman law； /2/ the other； that it was introduced by custom； as an exception to the general law of bailment； in the reigns of Elizabeth and James I。 /3/
I shall try to show that both these notions are wrong； that this strict responsibility is a fragmentary survival from the general law of bailment which I have just explained； ＇181＇ the modifications which the old law has undergone were due in part to a confusion of ideas which came the displacement of detinue by the action on the case； in part to conceptions of public policy which were read into the precedents by Lord Holt； and in part to still later conceptions of policy which have been read into the reasonings of Lord Holt by later judges。
Southcote's Case was decided in the forty…third year of Queen Elizabeth （A。D。 1601）。 I think the first mention of a carrier； pertinent to the question； occurs in Woodlife's Case； /1/ decided four or five years earlier （38 or 39 Eliz。； A。D。 1596 or 1597）。 It was an action of account for merchandise delivered to the defendant； it would seem as a factor （〃pur merchandizer〃）clearly not as a carrier。 Plea； robbery at sea with defendant's own goods。 Gawdy； one of the judges who decided Southcote's Case； thought the plea bad； but Popham； C。 J。 said that； though it would not be a good plea for a carrier because he is paid for his carriage； there was a difference in this respect between carriers and other servants and factors。
This is repeated in Southcote's Case； and appears to involve a double distinction；first between paid and unpaid bailees； next between bailees and servants。 If the defendant was a servant not having control over the goods； he might not fall within the law of bailment； and factors are treated on the footing of servants in the early law。
The other diversity marked the entrance of the doctrine of consideration into the law of bailment。 Consideration originally meant quid pro quo； as will be explained hereafter。 It was thus dealt with in Doctor and Student /2/ when the principle was still young。 Chief Justice ＇183＇ Popham probably borrowed his distinction between paid and unpaid bailees from that work； where common carriers are mentioned as an example of the former class。 A little earlier； reward made no difference。 /1/
But in Woodlife's Case； in reply to what the Chief Justice had said； Gawdy cited the case of the Marshal of the King's Bench； /2/ stated above； whereupon Popham fell back on the old distinction that the jailer had a remedy over against the rebels； but that there was no remedy over in the case at bar。
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 /3/ （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。
＇183＇ 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。 /1/ 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。 /2/ 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。 /3/ 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 ＇184＇ 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。〃 /2/
When it had thus been established that case would lie for damage when occasioned by the omission；