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 modern action of contract in that form [197]
it was required.
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