There is the same procedure for lost
property, turning on the single question whether the plaintiff
had lost possession against his will; the same principle that, if
the person intrusted with the property parted with it to another,
the owner could not recover it, but must get his indemnity from
his bailee; the same inverted explanation, that the bailee could
sue because he was answerable over, but the substance of the true
doctrine in the rule that when he had no remedy he was not
answerable; and, finally, the same absolute responsibility for
loss, even when happening without fault on the part of the person
intrusted. The last and most important of these principles is
seen in force as late as the reign of Queen Elizabeth. We have
now to follow its later fortunes.
A common carrier is liable for goods which are stolen from him,
or otherwise lost from his charge except by the act of God or the
public enemy. Two notions have been entertained with regard to
the source of this rule: one, that it was borrowed from the Roman
law; /2/ the other, that it was introduced by custom, as an
exception to the general law of bailment, in the reigns of
Elizabeth and James I. /3/
I shall try to show that both these notions are wrong, that this
strict responsibility is a fragmentary survival from the general
law of bailment which I have just explained; [181] the
modifications which the old law has undergone were due in part to
a confusion of ideas which came the displacement of detinue by
the action on the case, in part to conceptions of public policy
which were read into the precedents by Lord Holt, and in part to
still later conceptions of policy which have been read into the
reasonings of Lord Holt by later judges.
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