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.
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