the common law-第39章
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if the defendant could be regarded as a bailee； and not merely a servant of the owners； then the general law of bailment would apply； and the defendant would be charged； as in Southcote's Case； 〃by his general acceptance。〃
It can hardly be supposed； however； that so enlightened a judge as Sir Matthew Hale would not have broken away the Year Books； if a case had arisen before him where property had been received as a pure favor to the plaintiff； without consideration or reward； and was taken from the defendant by robbery。 Such a case was tried before Chief Justice Pemberton； and he very sensibly ruled that no action lay； declining to follow the law of Lord Coke's time to such extreme results /1/ （33 Car。 II。； A。D。 1681）。
About the same time； the defendant's common calling began to assume a new importance。 The more important alternative allegation； the assumpsit； had the effect in the end of introducing the not intrinsically objectionable doctrine that all duties arising from a bailment are founded on contract。 /2/ But this allegation； having now a special action to which it had given rise； was not much used where the action was tort； while the other averment occurs with increasing frequency。 The notion was evidently gaining ground that the liability of common carriers for loss of ＇196＇ goods； whatever the cause of the loss might be； arose from a special principle peculiar to them； and not applicable to bailees in general。 The confusion of independent duties which has been explained； and of which the first trace was seen in Rich v。 Kneeland； was soon to become complete。 /1/ Holt became Chief Justice。 Three of the cases in the last note were rulings of his。 In Lane v。 Cotton /2/ （13 Will。 III。； A。D。 1701）； he showed his disapproval of Southcote's Case； and his impression that the common law of bailment was borrowed from Rome。 The overthrow of Southcote's Case and the old common law may be said to date from Coggs v。 Bernard /3/ （2 Anne； A。D。 1703）。 Lord Holt's famous opinion in the latter case quotes largely from the Roman law as it filtered to him through Bracton； but； whatever influence that may have had upon his general views； the point decided and the distinctions touching common carriers were of English growth。
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 modem 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。
In the first place； as we have seen； there was a century of precedents ending with Morse v。 Slue； argued by Holt himself； in which the liability of masters of ships； hoymen； carriers； &c。 had been adjudicated。 Morse v。 Slue is cited and relied on； and there is no hint of dissatisfaction with the other cases。 On the contrary； they furnished the examples of bailees for reward exercising a public calling。 The distinction between bailees for reward and others is Chief Justice Popham's； the latter qualification （exercising a public calling） was also English； as has partly appeared already； and as will be explained further on。
In the next place； the strict rule is not confined to nautae； caupones； and stabularii； nor even to common carriers； but is applied to all bailees for reward； exercising a public calling。
In the next place； the degree of responsibility is precisely that of bailees in general； as worked out by the previous decisions； but quite unlike and much more severe ＇199＇ than that imposed by the Roman law； as others have observed。 /1/
And； finally； the exemption from liability for acts of God or the public enemy is characteristically English； as will be proved further on。
But it has been partially shown in this Lecture that the law of to…day has made the carrier's burden heavier than it was in the time of the Year Books。 Southcote's Case； and the earlier authorities which have been cited； all refer to a loss by robbery； theft； or trespass； and hold the bailee liable； where； in theory at least； he has a remedy over。 It was with reference to such cases； as has been seen； that the rule arose； although it is not improbable that it would have been applied to an unexplained loss； the writ against innkeepers reads absque subtractionie seu amissione custodire。 In later times； the principle may have been extended from loss by theft to loss by destruction。 In Symons v。 Darknoll /2/ （4 Car。 I。）； already cited as decided on the authority of Southcote's Case； the goods were spoiled； not stolen； and probably had not even perished in specie。 Before this time； the old rule had become an arbitrary precedent； followed according to its form with little thought of its true intent。
The language of Coggs v。 Bernard is； that 〃the law charges the person thus intrusted to carry goods as against all events but acts of God and the enemies of the king。〃 This was adopted by solemn decision in Lord Mansfield's time； and it is now settled that the common carrier 〃is liable for all losses which do not fall within the excepted ＇200＇ cases。〃 /1/ That is to say； he has become an insurer to that extent； not only against the disappearance or destruction； but against all forms of damage to the goods except as excepted above。
The process by which this came to pass has been traced above； but a few words may be added here。 The Year Books； even in dealing with the destruction （as distinguished from the conversion） of chattels in the hands of a bailee； always state his liability as based upon his fault； although it must be admitted that the language is used alio intuitu。 /2/ A jettison； in tempest； seems to have been a good plea for a factor in the time of Edwar
