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.
Pages:
215
216
217
218
219
220
221
222
223
224
225
226
227
228
229
230
231
232
233
234
235
236
237
238
239