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Updated: June 28, 2025
Bernard states the liability as applicable to all bailees for reward, exercising a public employment, and mentions common hoymen and masters of ships alongside of, not as embraced under, common carriers.
Those reasons apply to other bailees as well as to common carriers. Besides, hoymen and masters of ships were not originally held because they were common carriers, and they were all three treated as co-ordinate species, even in Coggs v. Bernard, where they were mentioned only as so many instances of bailees exercising a public calling.
Bernard whenever a peculiar responsibility was imposed upon bailees, we find that sometimes an assumpsit was laid as in the early precedents, /2/ or more frequently that the bailee was alleged to be a common bargeman, or common carrier, or the like, without much reference to the special nature of the tort in question; and that the true bearing of the allegation was sometimes lost sight of.
If it were, it would nevertheless be better to look at the front of the shield than at the reverse. But it is not the same if we give to the animus domini the meaning which the Germans give it, and which denies possession to bailees in general.
Indeed, it is sometimes laid down generally, in reputable text-books, that a gratuitous bailment does not change the possession, but leaves it in the bailor; /4/ that a gratuitous bailee is quasi a servant of the bailor, and the possession of one is the possession of the other; and that it is for this reason that, although the bailee may sue on his possession, the bailor has the same actions. /1/ A part of this confusion has already been explained, and the rest will be when I come to speak of servants, between whom and all bailees there is a broad and well-known distinction.
With regard to the act of God, it was a general principle, not peculiar to carriers nor to bailees, that a duty was discharged if an act of God made it impossible of performance. Whether the act of God has now acquired a special meaning with regard to common carriers may be left for others to consider.
The step was short, from saying that bailees could sue because they were answerable over, /6/ to saying that they had the property as against strangers, or a special property, because they were answerable over, /7/ and that they could sue because they had a special property and were answerable over. /8/ And thus the notion that special property meant something more than possession, and was a requisite to maintaining an action, got into the law.
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 Holt.
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 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.
It had begun to totter when the reporter cautioned bailees to accept in such terms as to get rid of it. /1/ Accordingly, although that decision was the main authority relied on for the hundred years between it and Coggs v.
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