The objection was that "this action lies not," not
that the defendant not liable, "without special promise." Even
thus narrowed, it rather countenances the notion that allegations
which were necessary to charge a man for damage happening through
his neglect, in the more ancient and use of this action, were
also necessary in this new [190] extension of it to a different
class of wrongs. As it was now pretty clear that case would lie
for a nonfeasance, the notion was mistaken, and we shall see that
it was denied in subsequent decisions. /1/
According to Hobart's report, it was alleged that the defendant
was a common hoyman, to carry goods by water, for hire, &c., that
by the custom of England such carriers ought to keep the goods,
&c., so as they should not be lost by the default of them or
their servants, &c. "And it was resolved that, though it was laid
as a custom of the realm, yet indeed it is common law." This last
resolution may only mean that the custom of the realm and the
common law are the same thing, as had been said concerning
innkeepers long before. /2/ But the law as to innkeepers, which
was called the custom of the realm in the writ, had 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.
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