The Common Law [69]
/6/ [177] was an action of debt against the Marshal of the Marshalsea, or jailer of the King's Bench prison, for an escape of a prisoner. Jailers in charge of prisoners were governed by the same law as bailees in charge of cattle. The body of the prisoner was delivered to the jailer to keep under the same liabilities that cows or goods might have been. /1/ He set up in defence that enemies of the king broke into the prison and carried off the prisoner, against the will of the defendant. The question was whether this was a good defence. The court said that, if alien enemies of the king, for instance the French, released the prisoner, or perhaps if the burning of the prison gave him a chance to escape, the excuse would be good, "because then [the defendant] has remedy against no one." But if subjects of the king broke the prison, the defendant would be liable, for they are not enemies, but traitors, and then, it is implied, the defendant would have a right of action against them, and therefore would himself be answerable. In this case the court got very near to the original ground of liability, and distinguished accordingly. The person intrusted was liable in those cases where he had a remedy over against the wrong-doer (and in which, originally, he was the only person who had such a remedy); and, on the other hand, his liability, being founded on that circumstance, ceased where the remedy ceased. The jailer could not sue the soldiers of an invading army of Frenchmen; but in theory he could sue any British subject who carried off the prisoner, however little it was likely that he would get much satisfaction in that way.
A few years later the law is stated the same way by the famous Littleton. He says that, if goods are delivered to [178] a man, he shall have an action of trespass if they are carried off, for he is chargeable over. /1/ That is, he is bound to make the loss good to the party who intrusted him.
In 9 Edward IV., /2/ Danby says if a bailee received goods to keep as his proper goods, then robbery shall excuse him, otherwise not. Again, in a later case /3/ robbery is said not to be an excuse. There may have been some hesitation as to robbery when the robber was unknown, and so the bailee had no remedy over, /4/ or even as to robbery generally, on the ground that by reason of the felony the bailee could not go against either the robber's body or his estate; for the one was hanged and the other forfeited. /5/ But there is not a shadow of doubt that the bailee was not excused by an ordinary wrongful taking. "If the goods are taken by a trespasser, of whom the bailee has conusance, he shall be chargeable to his bailor, and shall have his action over against his trespasser." /6/ The same point was touched in other passages of the Year Books, /7/ and the rule of law is clearly implied by the reason which was given for the bailee's right to sue in the cases cited above.
The principle was directly decided in accordance with the ancient law in the famous case of Southcote v. Bennet. /8/ This was detinue of goods delivered to the defendant to [179] keep safely. The defendant confessed the delivery, and set up he was robbed of the goods by J.S. "And, after argument at the bar, Gawdy and Clench, ceteris absentibus, held that the plaintiff ought to recover, because it was not a special bailment; that the defendant accepted them to keep as his proper goods, and not otherwise; but it is a delivery, which chargeth him to keep them at his peril. And it is not any plea in a detinue to say that he was robbed by one such; for he hath his remedy over by trespass, or appeal, to have them again." The above from Croke's report implies, what Lord Coke expressly says, that "to be kept, and to be kept safe, is all one," and both reports agree that the obligation was founded on the delivery alone. Croke's report confirms the caution which Lord Coke adds to his report: "Note, reader, it is good policy for him who takes any goods to keep, to take them in special manner, scil. to keep them as he keeps his own goods, ... or if they happen
A few years later the law is stated the same way by the famous Littleton. He says that, if goods are delivered to [178] a man, he shall have an action of trespass if they are carried off, for he is chargeable over. /1/ That is, he is bound to make the loss good to the party who intrusted him.
In 9 Edward IV., /2/ Danby says if a bailee received goods to keep as his proper goods, then robbery shall excuse him, otherwise not. Again, in a later case /3/ robbery is said not to be an excuse. There may have been some hesitation as to robbery when the robber was unknown, and so the bailee had no remedy over, /4/ or even as to robbery generally, on the ground that by reason of the felony the bailee could not go against either the robber's body or his estate; for the one was hanged and the other forfeited. /5/ But there is not a shadow of doubt that the bailee was not excused by an ordinary wrongful taking. "If the goods are taken by a trespasser, of whom the bailee has conusance, he shall be chargeable to his bailor, and shall have his action over against his trespasser." /6/ The same point was touched in other passages of the Year Books, /7/ and the rule of law is clearly implied by the reason which was given for the bailee's right to sue in the cases cited above.
The principle was directly decided in accordance with the ancient law in the famous case of Southcote v. Bennet. /8/ This was detinue of goods delivered to the defendant to [179] keep safely. The defendant confessed the delivery, and set up he was robbed of the goods by J.S. "And, after argument at the bar, Gawdy and Clench, ceteris absentibus, held that the plaintiff ought to recover, because it was not a special bailment; that the defendant accepted them to keep as his proper goods, and not otherwise; but it is a delivery, which chargeth him to keep them at his peril. And it is not any plea in a detinue to say that he was robbed by one such; for he hath his remedy over by trespass, or appeal, to have them again." The above from Croke's report implies, what Lord Coke expressly says, that "to be kept, and to be kept safe, is all one," and both reports agree that the obligation was founded on the delivery alone. Croke's report confirms the caution which Lord Coke adds to his report: "Note, reader, it is good policy for him who takes any goods to keep, to take them in special manner, scil. to keep them as he keeps his own goods, ... or if they happen