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[189] Returning now to the succession of the cases, Rich v.
Kneeland is the next in order (11 Jac. I., A.D. 1613). It was an
action on the case (tort), against a common hoyman. In Croke's
report nothing is said of custom; but the declaration avers that
the defendant was a common bargeman, that the plaintiff delivered
him a portmanteau, &c. to carry, and paid him for it, and that
the defendant tam negligenter custodivit, that it was taken from
him by persons unknown,--like the second count in Morse v. Slue,
below. The plea was demurred to, and adjudged for the plaintiff.
A writ of error being brought, it was assigned that "this action
lies not against a common bargeman without special promise. But
all the Justices and Barons held, that it well lies as against a
common carrier upon the land." If we follow this report, it seems
at the first glance that importance was attributed to the common
calling. But as the loss was clearly within the principle of
Southcote's Case, which required neither special promise nor
common calling for its application, and which remained
unquestioned law for three quarters of a century later, the court
must have referred to the form of action employed (case), and not
to the liability of the defendant in some form of action
(detinue).
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