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It is this: Whenever a person bails a thing to another person, for a particular purpose, and receives a compensation for it, the bailor has no right to take it back again from the bailee, until a fair opportunity has been allowed to accomplish that purpose. For instance, if I go and hire a horse of a man to make a journey, I have a right to keep the horse until the journey is ended.
Perhaps the bailor has a right to claim his property again, at any time, if it is bailed gratuitously, though I am not certain. I will ask some lawyer when I have an opportunity.
She told him, first, that whenever one boy intrusted his property of any kind to the hands of another boy, it was a bailment; and that the question whether the one who took the thing ought to pay for it, if it was lost, depended upon the degree of care he took of it, considered in connection with the question, whether the bailment was for the benefit of the bailor, or the bailee.
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.
Indeed, it is sometimes laid down generally, in reputable text-books, that a gratuitous bailment does not change the possession, but leaves it in the bailor; /4/ that a gratuitous bailee is quasi a servant of the bailor, and the possession of one is the possession of the other; and that it is for this reason that, although the bailee may sue on his possession, the bailor has the same actions. /1/ A part of this confusion has already been explained, and the rest will be when I come to speak of servants, between whom and all bailees there is a broad and well-known distinction.
But when a thing is let for pay, or bailed on contract in any way, I am sure the bailor ought to leave it in the hands of the bailee, until the purpose is accomplished; or, at least, until there has been a fair opportunity to accomplish it.
It is a rule of the criminal law, that, if a bailee of such a chest or bale wrongfully sells the entire chest or bale, he does not commit larceny, but if he breaks bulk he does, because in the former case he does not, and in the latter he does, commit a trespass. /2/ The reason sometimes offered is, that, by breaking bulk, the bailee determines the bailment, and that the goods at once revest in the possession of the bailor.
The bailor has the power and intent to exclude the bailee from the goods, and therefore may be said to be in possession of them as against the bailee. /4/ On the other hand, a case in Rhode Island /1/ is against the view here taken. A man bought a safe, and then, wishing to sell it again, sent it to the defendant, and gave him leave to keep his books in it until sold.
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 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.
Harper, and still more obviously from the fact, that the bailee's right to trespass and trover is asserted in the same breath with that of the bailor, as well as proved by express decisions to be cited. It is true that in Lotan v.
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