The allegation did
not so much imply the existence of a special principle, as state
a proposition of law in the form which was then usual. There are
other writs of trespass which allege a common-law duty in the
same way, and others again setting forth a statutory obligation.
/1/ So "the judges were sworn to execute justice according to law
and the custom of England." /2/
The duties of a common carrier, so far as the earlier evidence
goes, were simply those of bailees in general, coupled with the
liabilities generally attached to the exercise of a public
calling. The word "common" addressed itself only to the latter
point, as has been shown above. This is further illustrated by
the fact that, when the duty was thus set forth, it was not
alleged as an obligation peculiar to common carriers as such, but
was laid as the custom of law of common hoymen, or lightermen,
&c., according to the business of the party concerned. It will be
noticed that Chief Justice Holt in Coggs v. Bernard states the
liability as applicable to all bailees for reward, exercising a
public employment, and mentions common hoymen and masters of
ships alongside of, not as embraced under, common carriers. It
will also be noticed in the cases before that time, that there is
no settled formula for the obligation in question, but that it is
set forth in each case that the defendant was answerable for what
he was said to have done or omitted in the particular instance.
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