The action did not sound in contract.  The cause was for damage to the goods, and the plaintiff sued for a tort, laying an assumpsit by way of inducement to a charge of negligence, as in the days of Henry VI.  The plea was not guilty.  But after verdict for the plaintiff, there was a motion in arrest of judgment, “for that it was not alleged in the declaration that the defendant was a common porter, nor averred that he had anything for his pains.”  Consideration was never alleged or thought of in the primitive assumpsit, but in the modern action of contract in that form [197] it was required.  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.

The Chief Justice therefore proceeded to distinguish between [198] bailees for reward exercising a public employment, such as common carriers, common hoymen, masters of ships, &c., and other bailees; denied the rule in Southcote’s Case as to the latter; said that the principle of strict responsibility was confined to the former class, and was applied to them on grounds of public policy, and that factors were exonerated, not because they were mere servants, as had always been laid down (among others, by himself in arguing Morse v.  Slue), but because they were not within the reason of the rule.

The reader who has followed the argument so far, will hardly need to be convinced that this did not mean the adoption of the Praetor’s Edict.  There is further evidence at hand if required.