Page:Harvard Law Review Volume 2.djvu/24

 declaring against a bailee. Oddly enough, the earliest attempts to charge bailees in assumpsit were made when the bailment was gratuitous. These attempts, just before and after 1600, were unsuccessful, because the plaintiffs could not make out any consideration. The gratuitous bailment was, of course, not a benefit, but a burden to the defendant; and, on the other hand, it was not regarded as a detriment, but an advantage to the plaintiff. But in 1623 it was finally decided, not without a great straining, it must be conceded, of the doctrine of consideration, that a bailee might be charged in assumpsit on a gratuitous bailment.

The analogy between the action against the bailee and that against the surgeon holds also in regard to the necessity of alleging an express assumpsit of the defendant. Bailees whose calling was of a quasi public nature were chargeable by the custom of the realm, without any express undertaking. Accordingly, so far as the reported cases and precedents disclose, an assumpsit was never laid in a count in case against a common carrier or innkeeper for the loss of goods. They correspond to the smith, who, from the nature of his trade, was bound to shoe skilfully. But, in order to charge other bailees, proof of an express assumpsit was originally indispensable. An assumpsit was accordingly laid as a matter of course in the early cases and precedents. Frowyk, C.J., says, in 1505, that the bailee shall be charged “per cest parol super se assumpsit.” In Fooley v. Preston, Anderson, Chief Justice of the Common Bench, mentions, it is true, as a peculiarity of the Queen’s Bench, that “it is usual and frequent in B.R. if I deliver to you an objection to rebail unto me, I shall have an action upon the case without an express promise.” And yet, twelve years later, in