" /1/ The allegation is simply the usual
allegation of actions on the case, and seems to have extended
itself from the earlier declarations for damage, when case
supplanted detinue and the use of the former action became
universal. It can hardly have been immaterial to the case for
which it was first introduced. But the short reason for
disbelieving that there was any warrant in the old law for making
the carrier an insurer against damage is, that there seem to be
no early cases in which bailees were held to such a
responsibility, and that it was not within the principle on which
they were made answerable for a loss by theft.
Having traced the process by which a common carrier has been made
an insurer, it only remains to say a word upon the origin of the
admitted exceptions from the risk assumed. It has been seen
already how loss by the public enemy came to be mentioned by
Chief Justice Holt. It is the old distinction taken in the
Marshal's case that there the bailee has no remedy over.
With regard to the act of God, it was a general principle, not
peculiar to carriers nor to bailees, that a duty was [202]
discharged if an act of God made it impossible of performance.
Lord Coke mentions the case of jettison from a Gravesend barge,
/1/ and another of a party bound to keep and maintain sea-walls
from overflowing, as subject to the same limitation, /2/ and a
similar statement as to contracts in general will be found in the
Year Books.
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