[191] Symons v.  Darknell 1 (4 Car.  I., A.D. 1628) is precisely in point.  The declaration was, that, by the common law, every lighterman ought so to manage his lighter that the goods carried therein should not perish.  “And although no promise laid, it seemed to the court that the plaintiff should recover; and not alleging that defendant was common lighterman was no harm.  Hyde, C. J., delivery makes the contract.”  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.  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.  Eggleston 3 (24 Car.  I., A.D. 1648), “case against a country carrier for not delivering a box,” &c., of which he was robbed, nothing was said about custom, nor being a common carrier, unless the above words imply that he was; but it was laid down, as in Southcote’s Case, that “it must come on the carrier’s part acceptance” if he would lessen his liability as bailee.

Nichols v.  Moore 4 (13 Car.  II., A.D. 1661) was case against a “water carrier,” between Hull and London, laying a delivery to him at York.  It was moved in arrest of [192] 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.  Hopkins 1 (17 Car.  II.)the declaration was on the custom of the realm against a common carrier, and there was a motion in arrest of judgment, because there was a misrecital of the custom of the realm, and the defendant was not alleged to have been a carrier at the time of the receipt, and also because counts in trover, and in case on the custom, were joined.  Judgment was arrested, it would seem on the latter ground, but the court continued:  “And, although the declaration may be good without recital of the custom of the realm, as Hobart says, still it is the better way to recite it.”

We now come to the great case of Morse v.  Slue 2 (23 & 24 Car.  II., A.D. 1671, 1672).  This was an action against the master of a ship lying in the river Thames, for the loss of goods intrusted to him.  The goods in question were taken away by robbers, and it was found that the ship had the usual guard at the time.  There seem to have been two counts, one on the law and custom of England (1 Vent. 190), for masters of ships “carefully to govern, preserve, and defend goods shipped, so long