"
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.
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