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o 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 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