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 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。
＇191＇ 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； /2/ again citing Southcote's Case。
In Kenrig v。 Eggleston /3/ （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 /4/ （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 ＇192＇ 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 /1/ （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。〃