Bernard whenever
a peculiar responsibility was imposed upon bailees, we find that
sometimes an assumpsit was laid as in the early precedents, /2/
or more frequently that the bailee was alleged to be a common
bargeman, or common carrier, or the like, without much reference
to the special nature of the tort in question; and that the true
bearing of the allegation was sometimes lost sight of. At first,
however, there were only some slight signs of confusion in the
language of one or two cases, and if the duty was conceived to
fall within the principle of Southcote's Case, pleaders did not
always allege the common or public calling which was held
unnecessary. /3/ But they also adopted other devices from the
precedents in case, or to strengthen an obligation which they did
not well understand. Chief Justice Popham had sanctioned a
distinction between paid and unpaid bailees, hence it was deemed
prudent to lay a reward. Negligence was of course averred; and
finally it became frequent to allege an obligation by the law and
custom of the realm. This last deserves a little further
attention.
There is no writ in the Register alleging any special obligation
of common carriers by the custom of the realm. But the writ
against innkeepers did lay a duly "by the [188] law and custom of
England," and it was easy to adopt the phrase.
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