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.

The other diversity marked the entrance of the doctrine of consideration into the law of bailment.  Consideration originally meant quid pro quo, as will be explained hereafter.  It was thus dealt with in Doctor and Student 2 when the principle was still young.  Chief Justice [183] Popham probably borrowed his distinction between paid and unpaid bailees from that work, where common carriers are mentioned as an example of the former class.  A little earlier, reward made no difference. 1

But in Woodlife’s Case, in reply to what the Chief Justice had said, Gawdy cited the case of the Marshal of the King’s Bench, 2 stated above, whereupon Popham fell back on the old distinction that the jailer had a remedy over against the rebels, but that there was no remedy over in the case at bar.

The other cases relied on were some of those on general bailment collected above; the same authorities, in short, on which Southcote’s Case was founded.  The principle adopted was the same as in Southcote’s Case, subject only to the question whether the defendant fell within it.  Nothing was said of any custom of the realm, or ever had been in any reported case before this time; and I believe this to be the first instance in which carriers are in any way distinguished from any other class of persons intrusted with goods.  There is no hint of any special obligation peculiar to them in the old books; and it certainly is not true, that this case introduced one.  It will be noticed, with reference to what follows, that Popham does not speak of common carriers, but of carriers.

Next came Southcote’s Case 3 (43 Eliz., A.D. 1601), which presented the old law pure and simple, irrespective of reward or any modern innovation.  In this and the earlier instances of loss by theft, the action was detinue, counting, we may presume, simply on a delivery and wrongful detainer.

[183] But about this time important changes took place in the procedure usually adopted, which must be explained.  If the chattel could be returned in specie, detinue afforded no satisfaction for damage which it might have suffered through the bailee’s neglect. 1 The natural remedy for such damage was the action on the case.  But before this could be made entirely satisfactory, there were certain difficulties to be overcome.  The neglect which occasioned the damage might be a mere omission, and what was there akin to trespass in a nonfeasance to sustain the analogy upon which trespass on the case was founded?  Moreover, to charge a man for not acting, you must show that it was his duty to act.  As pleadings