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Mosley v. Fosset[1] (1598), which was an action on the case for the loss of a gelding delivered to the defendant to be safely kept and redelivered on request, the four judges of the Queen’s Bench, although equally divided on the question whether the action would lie without a request, which would have been necessary in an action of detinue, “all agreed that without such an assumpsit the action would not lie.”[2] But with the lapse of time an express undertaking of the bailee ceased to be required, as we have already seen it was dispensed with in the case of a surgeon or carpenter. The acceptance of the goods from the bailor created a duty to take care of them in the same manner that a surgeon who took charge of a patient became bound, without more, in modern times, to treat him with reasonable skill.

Symons v. Darknoll[3] (1629) was an action on the case against a lighterman, but not a common lighterman, for the loss of the plaintiff’s goods. “And, although no promise, the court thought the plaintiff should recover.” Hyde, C.J., adding: “Delivery makes the contract.” The later precedents in case, accordingly, omit the assumpsit.[4]

  1. Moore, 543, pl. 720; 1 Roll. Ab. 4, pl. 5, s. c. The criticism in Holmes’ “Common Law,” 155, n. 1, of the report of this case seems to be without foundation.
  2. See also Evans v. Yeoman (1635), Clayt. p. 33: “Assumpsit. The case upon evidence was, that whereas the plaintiff did deliver a book or charter to the defendant, it was holden that unless there had been an express promise to redeliver this back again, this action will not lie.”

    The writer is tempted to suggest here an explanation of an anomaly in the law of waste. If, by the negligence of a tenant-at-will, a fire breaks out and destroys the house occupied by him as tenant, and another also belonging to his landlord, he must respond in damages to the landlord for the loss of the latter, but not of the former. Lothrop v. Thayer, 138 Mass. 466. This is an illustration of the rule that a tenant-at-will is not liable for negligent or permissive waste. Is it not probable that the tenant-at-will and a bailee were originally regarded in the same light? In other words, neither was bound to guard with care the property intrusted to him in the absence of a special undertaking to that effect. This primitive conception of liability disappeared in the case of chattels, but persisted in the case of land, as a rule affecting real property would naturally persist. In the Countess of Salop v. Crompton, Cro. El. 777, 784, 5 Rep. 13, s. c., a case against a tenant-at-will, Gawdy, J., admits the liability of a shepherd for the loss of sheep, “because he there took upon him the charge. But here he takes not any charge upon him, but to occupy and pay his rent.” So also in Coggs v. Bernard, 2 Ld. Ray. 909. Powell, J., referring to the case of the Countess of Salop, says: “An action will not lie against a tenant-at-will generally, if the house be burnt down. But if the action had been founded upon a special undertaking, as that in consideration the lessor would let him live in the house he promised to deliver up the house to him again in as good repair as it was then, the action would have lain upon that special undertaking. But there the action was laid generally.”

  3. Palm. 523. See, also, Stanian v. Davies, 2 Ld. Ray. 795.
  4. 2 Inst. Cler. 185; 2 Chitty, Pl. (7 ed.) 506, 507.