The Common Law [68]
on whatever ground Lotan v. Cross may stand, if on any, it cannot for a moment be admitted that borrowers in general have not trespass and trover. A gratuitous deposit for the sole benefit of the depositor is a much stronger case for the denial of these remedies to the depositary; yet we have a decision by the full court, in which Lord Ellenborough also took part, that a depositary has case, the reasoning implying that a fortiori a borrower would have trespass. And this has always been the law. /2/ It has been seen that a similar doctrine necessarily resulted from the nature of the early German procedure; and the cases cited in the note show that, in this as in other respects, the English followed the traditions of their race.
The meaning of the rule that all bailees have the possessory remedies is, that in the theory of the common law every bailee has a true possession, and that a bailee recovers on the strength of his possession, just as a finder does, and as even a wrongful possessor may have full damages or a return of the specific thing from a stranger to the title. On the other hand, so far as the possessory actions are still allowed to bailors, it is not on the ground that they also have possession, but is probably by a survival, which [175] explained, and which in the modern form of the an anomaly. /1/ The reason usually given is, that a right of immediate possession is sufficient,--a reason which the notion that the bailor is actually possessed.
The point which is essential to understanding the common-law theory of possession is now established: that all bailees from time immemorial have been regarded by the English law as possessors, and entitled to the possessory remedies. It is not strictly necessary to go on and complete the proof that our law of bailment is of pure German descent. But, apart from curiosity, the doctrine remaining to be discussed has had such important influence upon the law of the present day, that I shall follow it out with some care. That doctrine was the absolute responsibility of the bailee to the bailor, if the goods were wrongfully taken from him. /2/
The early text-writers are not as instructive as might be hoped, owing to the influence of the Roman law. Glanvil, however, says in terms that, if a borrowed thing be destroyed or lost in any way while in the borrower's custody, he is absolutely bound to return a reasonable price. /3/ So does Bracton, who partially repeats but modifies the language of Justinian as to commodatum, depositum, and pignus; /4/ and as to the duty of the hirer to use the care of a diligentissimus paterfamilias. /5/
[176] The language and decisions of the courts are perfectly clear; and there we find the German tradition kept alive for several centuries. I begin with the time of Edward II., about 1315. In detinue the plea was that the plaintiff delivered the defendant a chest locked with his key, that the chattels were in the chest, and that they were taken from the defendant together with his own goods by robbery. The replication was that the goods were delivered to the defendant out of enclosure, and Fitzherbert says the party was driven to that issue; /1/ which implies that, if not in the chest, but in the defendant's custody, he was liable. Lord Holt, in Coggs v. Bernard, /2/ denies that the chest would make any difference; but the old books agree that there is no delivery if the goods are under lock and key; and this is the origin of the distinction as to carriers breaking bulk in modern criminal law. /3/ In the reign of Edward III., /4/ the case of a pledge came up, which seems always to have been regarded as a special bailment to keep as one's own goods. The defence was, that the goods were stolen with the defendant's own. The plaintiff was driven to reply a tender before the theft, which would have put an end to the pledge, and left the defendant a general bailee. /5/ Issue was taken thereon, which confirms the other cases, by implying that in that event the defendant would be liable.
Next I take a case of the time of Henry VI., A.D. 1455.
The meaning of the rule that all bailees have the possessory remedies is, that in the theory of the common law every bailee has a true possession, and that a bailee recovers on the strength of his possession, just as a finder does, and as even a wrongful possessor may have full damages or a return of the specific thing from a stranger to the title. On the other hand, so far as the possessory actions are still allowed to bailors, it is not on the ground that they also have possession, but is probably by a survival, which [175] explained, and which in the modern form of the an anomaly. /1/ The reason usually given is, that a right of immediate possession is sufficient,--a reason which the notion that the bailor is actually possessed.
The point which is essential to understanding the common-law theory of possession is now established: that all bailees from time immemorial have been regarded by the English law as possessors, and entitled to the possessory remedies. It is not strictly necessary to go on and complete the proof that our law of bailment is of pure German descent. But, apart from curiosity, the doctrine remaining to be discussed has had such important influence upon the law of the present day, that I shall follow it out with some care. That doctrine was the absolute responsibility of the bailee to the bailor, if the goods were wrongfully taken from him. /2/
The early text-writers are not as instructive as might be hoped, owing to the influence of the Roman law. Glanvil, however, says in terms that, if a borrowed thing be destroyed or lost in any way while in the borrower's custody, he is absolutely bound to return a reasonable price. /3/ So does Bracton, who partially repeats but modifies the language of Justinian as to commodatum, depositum, and pignus; /4/ and as to the duty of the hirer to use the care of a diligentissimus paterfamilias. /5/
[176] The language and decisions of the courts are perfectly clear; and there we find the German tradition kept alive for several centuries. I begin with the time of Edward II., about 1315. In detinue the plea was that the plaintiff delivered the defendant a chest locked with his key, that the chattels were in the chest, and that they were taken from the defendant together with his own goods by robbery. The replication was that the goods were delivered to the defendant out of enclosure, and Fitzherbert says the party was driven to that issue; /1/ which implies that, if not in the chest, but in the defendant's custody, he was liable. Lord Holt, in Coggs v. Bernard, /2/ denies that the chest would make any difference; but the old books agree that there is no delivery if the goods are under lock and key; and this is the origin of the distinction as to carriers breaking bulk in modern criminal law. /3/ In the reign of Edward III., /4/ the case of a pledge came up, which seems always to have been regarded as a special bailment to keep as one's own goods. The defence was, that the goods were stolen with the defendant's own. The plaintiff was driven to reply a tender before the theft, which would have put an end to the pledge, and left the defendant a general bailee. /5/ Issue was taken thereon, which confirms the other cases, by implying that in that event the defendant would be liable.
Next I take a case of the time of Henry VI., A.D. 1455.