the common law-第34节
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ad somewhat the air of a special principle extending beyond the law of bailment； inasmuch as their liability extended to goods within the inn； of which they had not the custody； and the court may have meant to make an antithesis between such a special principle and the common law or general law of bailment governing the present case。
Whatever doubts some of Croke's language might raise； standing alone； the fact remains indisputable； that for nearly a century from Woodlife's Case the liability of carriers for loss of goods； whether the custom of the realm or the defendant's common calling was alleged or not； was placed upon the authority and was intended to be decided on the principle of Southcote's Case。
＇191＇ Symons v。 Darknell 1 （4 Car。 I。； A。D。 1628） is precisely in point。 The declaration was； that； by the common law； every lighterman ought so to manage his lighter that the goods carried therein should not perish。 〃And although no promise laid； it seemed to the court that the plaintiff should recover； and not alleging that defendant was common lighterman was no harm。 Hyde； C。 J。； delivery makes the contract。〃 This did not mean that delivery was a good consideration for a promise； but； as was laid down in Southcote's Case； that delivery； without a special acceptance to keep only as one's own goods； bound the bailee to keep safely； and therefore made it unnecessary to allege either an assumpsit or the defendant's common calling。 Whitlock； J。 called attention to the fact that the action was tort； not contract。 〃Et en cest case 。。。 Southcote's Case fuit cite。〃
The same rule is stated as to bailments in general； the same year； by Sergeant Maynard arguendo in Williams v。 Hide； /2/ again citing Southcote's Case。
In Kenrig v。 Eggleston /3/ （24 Car。 I。； A。D。 1648）； 〃case against a country carrier for not delivering a box；〃 &c。； of which he was robbed； nothing was said about custom； nor being a common carrier； unless the above words imply that he was； but it was laid down； as in Southcote's Case； that 〃it must come on the carrier's part acceptance〃 if he would lessen his liability as bailee。
Nichols v。 Moore /4/ （13 Car。 II。； A。D。 1661） was case against a 〃water carrier；〃 between Hull and London； laying a delivery to him at York。 It was moved in arrest of ＇192＇ judgment； that the defendant did not undertake to carry the goods from York to Hull。 〃But notwithstanding this per totam curiam； the defendant shall be charged on his general receipt at York； according to Southcote's Case。〃
It is fair to mention that in Matthews v。 Hopkins /1/ （17 Car。 II。）the declaration was on the custom of the realm against a common carrier； and there was a motion in arrest of judgment； because there was a misrecital of the custom of the realm； and the defendant was not alleged to have been a carrier at the time of the receipt； and also because counts in trover； and in case on the custom； were joined。 Judgment was arrested； it would seem on the latter ground； but the court continued： 〃And； although the declaration may be good without recital of the custom of the realm； as Hobart says； still it is the better way to recite it。〃
We now come to the great case of Morse v。 Slue /2/ （23 & 24 Car。 II。； A。D。 1671； 1672）。 This was an action against the master of a ship lying in the river Thames； for the loss of goods intrusted to him。 The goods in question were taken away by robbers； and it was found that the ship had the usual guard at the time。 There seem to have been two counts； one on the law and custom of England （1 Vent。 190）； for masters of ships 〃carefully to govern； preserve； and defend goods shipped； so long as said ship should remain in the river Thames〃 （2 Keb。 866）； 〃to keep safely ＇goods shipped to be carried from London beyond sea＇ without loss or subtraction； ita quodpro defectu of them they may not come to any damage〃 （1 Vent。 190）； 〃to keep safely goods delivered to them to carry； dangers ＇193＇ of the sea excepted〃 （2 Levinz； 69； the exception last was perhaps drawn by the reporter from the usual bills of lading referred to in argument）。 The second count； which is usually overlooked； was a special count 〃on delivery and being stolen by his neglect。〃 /1/
The case was twice argued； and all the reports agree； as far as they go； in their statements of the points insisted on。
Holt； for the plaintiff； maintained： /2/ 1。 That the master receives goods generally； citing Southcote's Case； and that in 〃only guardian in socage who hath the custody by law； who factor who is servant at the master's dispose； and so cannot take care； are exempt。〃 2。 That the master has a reward for his keeping； and is therefore a proper person to be sued。 3。 That the master has a remedy over； citing the case of the Marshal of the King's Bench。 /3/ That the mischief would be great if the master were not liable； as merchants put their trust in him； and no particular default be shown； as appears by the bill of lading； and； finally； that neglect appeared。
On the other side； it was urged that no neglect was found； and that the master was only a servant； so that； if any one was liable； the owners were。 /4/ It was also suggested that； as there would have been no liability if the goods had been taken at sea； when the case would have within the admiralty law； it was absurd that a different rule should govern the beginning of the voyage from would have governed the rest of it。 /5/
＇194＇ On the second argument； it was again maintained for the plaintiff that the defendant was liable 〃at the common law on the general bailment；〃 citing Southcote's Case； and also that； by the Roman and maritime law； he was liable as a public carrier and master of a ship。
The opinion of the court was delivered by Chief Justice Hale。 It was held that； the ship being within the body of the county； the admiralty law did not apply； or； according to 1 Mod。 85； note a； 〃the master could not avail himself of the rules of the civil law； by which masters are not chargeable pro damno fatali〃； that the master was liable to an action because he took a reward； that 〃he might have made a caution for himself； which he omitting and taking in the goods generally； he shall answer for what happens。〃 /1/ The case of Kenrig v。 Eggleston /2/ seems also to have been referred to。 It was further said that the master was rather an officer than a servant； and in effect received his wages from the merchant who paid freight。 Finally； on the question of negligence； that it was not sufficient to have the usual number of men to guard the ship； but that it was neglect not to have enough to guard the goods； unless in case of the common enemies； citing the case of the Marshal； which it will be remembered was merely the principle of Southcote's Case and the common law of bailment in another form。 /3/
It will be observed that this case did not go on any special custom； either as to common carriers or shipmasters； but that all the arguments and the opinion of the court assumed that； if the case was to be governed by the common law； and not by the milder provisions of the civil ＇195＇ law relied on for the defence； and 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 up
