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Updated: May 7, 2025
Plea, robbery at sea with defendant's own goods. Gawdy, one of the judges who decided Southcote's Case, thought the plea bad; but Popham, C. J. said that, though it would not be a good plea for a carrier because he is paid for his carriage, there was a difference in this respect between carriers and other servants and factors.
This is repeated in Southcote's Case, and appears to involve a double distinction, first between paid and unpaid bailees, next between bailees and servants. If the defendant was a servant not having control over the goods, he might not fall within the law of bailment, and factors are treated on the footing of servants in the early law.
On the second argument, it was again maintained for the plaintiff that the defendant was liable "at the common law on the general bailment," citing Southcote's Case, and also that, by the Roman and maritime law, he was liable as a public carrier and master of a ship. The opinion of the court was delivered by Chief Justice Hale.
That the master receives goods generally, citing Southcote's Case, and that in "only guardian in socage who hath the custody by law, who factor who is servant at the master's dispose, and so cannot take care, are exempt." 2. That the master has a reward for his keeping, and is therefore a proper person to be sued. 3.
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.
It will be observed that this case did not go on any special custom, either as to common carriers or shipmasters, but that all the arguments and the opinion of the court assumed that, if the case was to be governed by the common law, and not by the milder provisions of the civil law relied on for the defence, and if the defendant could be regarded as a bailee, and not merely a servant of the owners, then the general law of bailment would apply, and the defendant would be charged, as in Southcote's Case, "by his general acceptance."
We can only answer it by enumerating the decisions in which the old law is applied; and we shall find it hard to bring them together under a general principle. The rule in Southcote's Case has been done away with for bailees in general: that is clear. But it is equally clear that it has not maintained itself, even within the limits of the public policy invented by Chief Justice Holt.
But it formed part of a consistent scheme for holding those who followed useful callings up to the mark. Another part was the liability of persons exercising a public employment for loss or damage, enhanced in cases of bailment by what remained of the rule in Southcote's Case. The scheme has given way to more liberal notions; but the disjecta membra still move.
Kneeland, was soon to become complete. /1/ Holt became Chief Justice. Three of the cases in the last note were rulings of his. In Lane v. The overthrow of Southcote's Case and the old common law may be said to date from Coggs v.
Whatever doubts some of Croke's language might raise, standing alone, the fact remains indisputable, that for nearly a century from Woodlife's Case the liability of carriers for loss of goods, whether the custom of the realm or the defendant's common calling was alleged or not, was placed upon the authority and was intended to be decided on the principle of Southcote's Case. Symons v.
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