Furthermore, as formerly the
defendant's public calling had the same effect as an assumpsit
for the purpose of charging him in tort, it seems now to have
been thought an equally good substitute for a special promise, in
order to charge him in assumpsit. In Rogers v. Head, /1/ the
argument was, that to charge one in assumpsit you must show
either his public calling at the time of the delivery, or a
special promise on sufficient consideration. This argument
assumes that a bailee who received goods in the course of a
public employment, [186] for instance as a common carrier, could
be charged in this form of action for a breach of 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.
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