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om 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 modem action of contract in that form ＇197＇ it was required。 Hence； it was inferred that； wherever an assumpsit was laid； even in all action of tort for damage to property； it was the allegation of a contract； and that a consideration must be shown for the undertaking； although the contrary had been decided in the reign of Queen Elizabeth。 /1/ But the motion did not prevail； and judgment was given for the plaintiff。 Lord Holt was well aware that the use of an assumpsit was not confined to contract。 It is true that he said； 〃The owner's trusting ＇the defendant＇ with the goods is a sufficient consideration to oblige him to a careful management；〃 or to return them； but this means as distinguished from a consideration sufficient to oblige him to carry them； which he thought the defendant would not have been bound to do。 He then expressly says； 〃This is a different case； for assumpsit does not only signify a future agreement； but； in such cases as this； it signifies an actual entry upon the thing and taking the trust upon himself〃； following the earlier cases in the Year Books。 /2/ This was enough for the decision； and the rule in Southcote's Case had nothing to do with the matter。 But as the duty of common carriers by reason of their calling was now supposed to extend to all kinds of losses； and the doctrine of Southcote's Case was probably supposed to extend to many kinds of damage； it became necessary； in a general discussion； to reconcile or elect between the two principles。
The Chief Justice therefore proceeded to distinguish between ＇198＇ bailees for reward exercising a public employment； such as common carriers； common hoymen； masters of ships； &c。； and other bailees； denied the rule in Southcote's Case as to the latter； said that the principle of strict responsibility was confined to the former class； and was applied to them on grounds of public policy； and that factors were exonerated； not because they were mere servants； as had always been laid down （among others； by himself in arguing Morse v。 Slue）； but because they were not within the reason of the rule。
The reader who has followed the argument so far； will hardly need to be convinced that this did not mean the adoption of the Praetor's Edict。 There is further evidence at hand if required。
In the first place； as we have seen； there was a century of precedents ending with Morse v。 Slue； argued by Holt himself； in which the liability of masters of ships； hoymen； carriers； &c。 had been adjudicated。 Morse v。 Slue is cited and relied on； and there is no hint of dissatisfaction with the other cases。 On the contrary； they furnished the examples of bailees for reward exercising a public calling。 The distinction between bailees for reward and others is Chief Justice Popham's； the latter qualification （exercising a public calling） was also English； as has partly appeared already； and as will be explained further on。
In the next place； the strict rule is not confined to nautae； caupones； and stabularii； nor even to common carriers； but is applied to all bailees for reward； exercising a public calling。
In the next place； the degree of responsibility is precisely that of bailees in general； as worked out by the previous decisions； but quite unlike and much more severe ＇199＇ than that imposed by the Roman law； as others have observed。 /1/
And； finally； the exemption from liability for acts of God or the public enemy is characteristically English； as will be proved further on。
But it has been partially shown in this Lecture that the law of to…day has made the carrier's burden heavier than it was in the time of the Year Books。 Southcote's Case； and the earlier authorities which have been cited； all refer to a loss by robbery； theft； or trespass； and hold the bailee liable； where； in theory at least； he has a remedy over。 It was with reference to such cases； as has been seen； that the rule arose； although it is not improbable that it would have been applied to an unexplained loss； the writ against innkeepers reads absque subtractionie seu amissione custodire。 In later times； the principle may have been extended from loss by theft to loss by destruction。 In Symons v。 Darknoll /2/ （4 Car。 I。）； already cited as decided on the authority of Southcote's Case； the goods were spoiled； not stolen； and probably had not even perished in specie。 Before this time； the old rule had become an arbitrary precedent； followed according to its form with little thought of its true intent。
The language of Coggs v。 Bernard is； that 〃the law charges the person thus intrusted to carry goods as against all events but acts of God and the enemies of the king。〃 This was adopted by solemn decision in Lord Mansfield's time； and it is now settled that the common carrier 〃is liable for all losses which do not fall within the excepted ＇200＇ cases。〃 /1/ That is to say； he has become an insurer to that extent； not only against the disappearance or destruction； but against all forms of damage to the goods except as excepted above。
The process by which this came to pass has been traced above； but a few words may be added here。 The Year Books； even in dealing with the destruction （as distinguished from the conversion） of chattels in the hands of a bailee； always state his liability as based upon his fault； although it must be admitted that the language is used alio intuitu。 /2/ A jettison； in tempest； seems to have been a good plea for a factor in the time of Edward III。； /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。〃 /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。 /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 cont