/3/ It is another form of the principle which has
been laboriously reargued in our own day, that parties are
excused from the performance of a contract which has become
impossible before breach from the perishing of the thing, or from
change of circumstances the continued existence of which was the
foundation of the contract, provided there was no warranty and no
fault on the part of the contractor. Whether the act of God has
now acquired a special meaning with regard to common carriers may
be left for others to consider.
It appears, from the foregoing evidence, that we cannot determine
what classes of bailees are subject to the strict responsibility
imposed on common carriers by referring to the Praetor's Edict
and then consulting the lexicons under Nautoe, Caupones, or
Stabularii. The question of precedent is simply to what extent
the old common law of bailment still survives. We can only answer
it by enumerating the decisions in which the old law is applied;
and we shall find it hard to bring them together under a general
principle. The rule in Southcote's Case has been done away with
for bailees in general: that is clear. But it is equally clear
that it has not maintained itself, even within the limits of the
public policy invented by Chief Justice [203] Holt.
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