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.
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