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 upon his general views, the point decided and the distinctions touching common carriers were of English growth.