Hence, it was inferred that, wherever an
assumpsit was laid, even in all action of tort for damage to
property, it was the allegation of a contract, and that a
consideration must be shown for the undertaking, although the
contrary had been decided in the reign of Queen Elizabeth. /1/
But the motion did not prevail, and judgment was given for the
plaintiff. Lord Holt was well aware that the use of an assumpsit
was not confined to contract. It is true that he said, "The
owner's trusting [the defendant] with the goods is a sufficient
consideration to oblige him to a careful management," or to
return them; but this means as distinguished from a consideration
sufficient to oblige him to carry them, which he thought the
defendant would not have been bound to do. He then expressly
says, "This is a different case, for assumpsit does not only
signify a future agreement, but, in such cases as this, it
signifies an actual entry upon the thing and taking the trust
upon himself"; following the earlier cases in the Year Books. /2/
This was enough for the decision, and the rule in Southcote's
Case had nothing to do with the matter. But as the duty of common
carriers by reason of their calling was now supposed to extend to
all kinds of losses, and the doctrine of Southcote's Case was
probably supposed to extend to many kinds of damage, it became
necessary, in a general discussion, to reconcile or elect between
the two principles.
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