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Updated: June 7, 2025
Lord Holt was well aware that the use of an assumpsit was not confined to contract. 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.
Bernard, and of Sir William Jones in his book on Bailments, to show that Southcote v. The same principle was laid down seven years before by Peryam, C. B., in Drake v. Royman, /1/ and Southcote's Case was followed as a leading precedent without question for a hundred years. Thus the circle of analogies between the English and the early German law is complete.
This did not mean that delivery was a good consideration for a promise; but, as was laid down in Southcote's Case, that delivery, without a special acceptance to keep only as one's own goods, bound the bailee to keep safely, and therefore made it unnecessary to allege either an assumpsit or the defendant's common calling.
The last extension was made about the time of Southcote's Case. /4/ But when the same form of action thus came to be used alike for damage or destruction by the bailee's neglect and for loss by a wrong-doer against whom the bailee had a remedy over, a source was opened for confusion with regard to the foundation and nature of the defendant's duty.
Whitlock, J. called attention to the fact that the action was tort, not contract. "Et en cest case ... Southcote's Case fuit cite." The same rule is stated as to bailments in general, the same year, by Sergeant Maynard arguendo in Williams v. Hide, /2/ again citing Southcote's Case. In Kenrig v. Nichols v.
It was moved in arrest of judgment, that the defendant did not undertake to carry the goods from York to Hull. "But notwithstanding this per totam curiam, the defendant shall be charged on his general receipt at York, according to Southcote's Case." It is fair to mention that in Matthews v.
We shall have to inquire, later, whether the principles of Southcote's Case were not also extended in the opposite direction to cases not falling within it.
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.
Southcote's Case, and the earlier authorities which have been cited, all refer to a loss by robbery, theft, or trespass, and hold the bailee liable, where, in theory at least, he has a remedy over.
Finally, on the question of negligence, that it was not sufficient to have the usual number of men to guard the ship, but that it was neglect not to have enough to guard the goods, unless in case of the common enemies, citing the case of the Marshal, which it will be remembered was merely the principle of Southcote's Case and the common law of bailment in another form. /3/
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