;
/3/ but that cannot be relied on for an analogy. The argument
from the Marshal's case /4/ is stronger. There it appears to have
been thought that burning of the prison was as good an excuse for
an escape as a release by alien enemies. This must refer to an
accidental fire, and would seem to imply that he was not liable
in that event, if not in fault. The writs in the Register against
bailees to keep or carry goods, all have the general allegation
of negligence, and so do the older precedents of declarations, so
far as I have observed, whether stating the custom of the realm
or not. /5/ But a bailee was answerable for goods wrongfully
taken from him, as an innkeeper was for goods stolen from his
inn, irrespective of negligence. /6/
It is true that the Marshal's case speaks of his negligent [201]
keeping when the prisoners were released by rebels, (although
that was far less likely to result from negligence, one would
think, than a fire in the prison,) and that after Lord Coke's
time negligence was alleged, although the goods had been lost by
wrongful taking. So the writ against innkeepers is pro defectu
hujusmodi hospitatorum. In these instances, neglect only means a
failure de facto to keep safely. As was said at a much later
date, "everything is a negligence in a carrier or hoyman that the
law does not excuse.
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