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The next point in logical order would be the degree of responsibility to which the bailee was held as towards his bailor who intrusted him. But for convenience I will consider first the explanation which was given of the bailee's right of action against third persons wrongfully taking the goods from his possession.
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/
It will be observed that this case did not go on any special custom, either as to common carriers or shipmasters, but that all the arguments and the opinion of the court assumed that, if the case was to be governed by the common law, and not by the milder provisions of the civil law relied on for the defence, and if the defendant could be regarded as a bailee, and not merely a servant of the owners, then the general law of bailment would apply, and the defendant would be charged, as in Southcote's Case, "by his general acceptance."
The truth is, that any person in possession, whether intrusted and answerable over or not, a finder of property as well as a bailee, can sue any one except the true owner for interfering with his possession, as will be shown more particularly at the end of the next Lecture. The bailor also obtained a right of action against the wrong-doer at a pretty early date.
It is that of an agent constituted for the very point and purpose of possession. A bailee may be an agent for some other purpose. A free servant may be made a bailee. But the bailee holds in his own as we say, following the Roman idiom, and the servant or agent holding as such does not.
For some reason or another Oriel took them in, and, having become their bailee, refused to part with them, possibly and plausibly alleging that the University was not in a position to give a valid receipt.
If a bailee intends to exclude strangers to the title, it is enough for possession under our law, although he is perfectly ready to give the thing up to its owner at any moment; while it is of the essence of the German view that the intent must not be relative, but an absolute, self-regarding intent to take the benefit of the thing.
Nor would my opinion be changed by assuming, what the report does not make perfectly clear, that the defendant received the safe as bailee, and not as servant or agent, and that his permission to use the safe was general. The argument of the court goes on the plaintiff's not being a finder. The question is whether he need be.
Since he did reclaim it, Rollo did perfectly right to give it up, fish and all; and as he did so, it was a bailment for the benefit of the bailee, that is, Henry. And of course it was at his risk, and, in strict justice, Rollo has a right to claim compensation for the loss of his fish. But then I should hope he won't insist upon it." "Well, sir," said Rollo, "I don't care much about it now."
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.
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