"For," as Fitzherbert says, "it is the duty of every
artificer to exercise his art rightly and truly as he ought." /2/
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.
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