How Lord Holt came to distinguish between bailees for reward and
others has been shown above. It is more pertinent here to notice
that his further qualification, exercising a public calling, was
part of a protective system which has passed away. One adversely
inclined might say that it was one of many signs that the law was
administered in the interest of the upper classes. It has been
shown above that if a man was a common farrier he could be
charged for negligence without an assumpsit. The same judge who
threw out that intimation established in another case that he
could be sued if he refused to shoe a horse on reasonable
request. /2/ Common carriers and common innkeepers were liable in
like case, and Lord Holt stated the principle: "If a man takes
upon him a public employment, he is bound to serve the public as
far as the employment extends, and for refusal an action lies."
/3/ An attempt to apply this doctrine generally at the present
day would be thought monstrous. But it formed part of a
consistent scheme for holding those who followed useful callings
up to the mark. Another part was the liability of persons
exercising a public employment for loss or damage, enhanced in
cases of bailment by what remained of the rule in Southcote's
Case. The scheme has given way to more liberal notions; but the
disjecta membra still move.
Lord Mansfield stated his views of public policy in terms [204]
not unlike those used by Chief Justice Holt in Coggs v. Bernard,
but distinctly confines their application to common carriers.
"But there is a further degree of responsibility by the custom of
the realm, that is, by the common law; a carrier is in the nature
of an insurer.... To prevent litigation, collusion, and the
necessity of going into circumstances impossible to be
unravelled, the law presumes against the carrier, unless," &c.
/1/
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account