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Next I take a case of the time of Henry VI., A.D. 1455. /6/ 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.
It has been said, for instance, in this connection, that a carrier is a servant; /1/ while nothing can be clearer than that, while goods are in custody, they are in his possession. /2/ So where goods remain in the custody of a vendor, appropriation to the contract and acceptance have been confounded with delivery. /3/ Our law has adopted the Roman doctrine, /4/ that there may be a delivery, that is, a change of possession, by a change in the character in which the vendor holds, but has not always imitated the caution of the civilians with regard to what amounts to such a change. /5/ Bailees are constantly spoken of as if they were agents to possess, a confusion made easier by the fact that they generally are agents for other purposes.
He had been dependent on the gritty and flaccid hospitalities of refreshment-rooms, on the sandwich and the bun. Now he felt faint as well as weary; but, rummaging amidst his cupboards, he could find no provisions more tempting and nutritious than a box of potted shrimps, from the college stores, and a bottle of some Hungarian vintage sent by an advertising firm to the involuntary bailees of St.
The writs in the Register against bailees to keep or carry goods, all have the general allegation of negligence, and so do the older precedents of declarations, so far as I have observed, whether stating the custom of the realm or not. /5/ But a bailee was answerable for goods wrongfully taken from him, as an innkeeper was for goods stolen from his inn, irrespective of negligence. /6/
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.
The notion was evidently gaining ground that the liability of common carriers for loss of goods, whatever the cause of the loss might be, arose from a special principle peculiar to them, and not applicable to bailees in general. The confusion of independent duties which has been explained, and of which the first trace was seen in Rich v.
All the above peculiarities reappear in the Anglo-Norman law, and from that day to this all kinds of bailees have been treated as having possession in a legal sense, as I shall presently show. It is desirable to prove the native origin of our law of bailment, in order that, when theory comes to be considered, modern German opinion may not be valued at more than its true worth.
In later days it made a few exceptions on practical grounds. Philosophy by denying possession to bailees in general cunningly adjusted itself to the Roman law, and thus put itself in a position to claim the authority of that law for the theory of which the mode of dealing with bailees was merely a corollary.
It is not true to-day that all bailees for reward exercising a public calling are insurers. No such doctrine is applied to grain-elevators or deposit-vaults. /1/ How Lord Holt came to distinguish between bailees for reward and others has been shown above.
It appears, from the foregoing evidence, that we cannot determine what classes of bailees are subject to the strict responsibility imposed on common carriers by referring to the Praetor's Edict and then consulting the lexicons under Nautoe, Caupones, or Stabularii. The question of precedent is simply to what extent the old common law of bailment still survives.
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