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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。 /3/ 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。 /4/ But when the ＇185＇ 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； /1/ 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； ＇186＇ 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。
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。 /1/ 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 ＇187＇ 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。 /1/
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； /2/ 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。 /3/ 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 ＇188＇ 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。 /1/ So 〃the judges were sworn to execute justice according to law and the custom of England。〃 /2/
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。 /3/
＇189＇ 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。 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 ＇190＇ 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。 /1/
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。 /2/ But the law as to innkeepers； which was called the custom of the realm in the writ； had somewhat