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Updated: June 14, 2025
When it had thus been established that case would lie for damage when occasioned by the omission, as well as when caused by the act, of the defendant, there was no reason for denying it, even if the negligent custody had resulted in the destruction of the property. /3/ From this it was but a step to extend the same form of action to all cases of loss by a bailee, and so avoid the defendant's right to wage his law.
Then it is sure to be lost, when the lender writes to say he wishes to recover it. Lord Tennyson has suffered from all these troubles to an extent which the average Bailee can only fancy by looking with his mind's eye through "patent double million magnifiers."
As before, the breach of duty complained of might be such damage to property as had always been sued for in that form of action, or it might be a loss by theft for which detinue would formerly have been brought, and which fell on the bailee only by reason of the bailment.
He says that, if goods are delivered to 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.
It followed that if the bailee, or person so intrusted, sold or gave the goods in his charge to another, the owner could only look to the bailee, and could not sue the stranger; not from any principle in favor of trade, intended to protect those who bought in good faith from parties in possession, but because there was no form of action known which was open to him.
Which fact the court the next morning recognized, on the testimony of the interne, the physician and the day nurses of the hospital, to the extent of a continuance until the January term in the trial of the case. A thing which the court further recognized was the substitution of five thousand dollars in cash for the deeds of the Blue Poppy mine as security for the bailee.
Having traced the process by which a common carrier has been made an insurer, it only remains to say a word upon the origin of the admitted exceptions from the risk assumed. It has been seen already how loss by the public enemy came to be mentioned by Chief Justice Holt. It is the old distinction taken in the Marshal's case that there the bailee has no remedy over.
In this way, the Roman Prætor gave an immediate right of property to the person who had acquired a Res Mancipi by mere delivery, without waiting for the ripening of Usucapion. Similarly he in time recognised an ownership in the Mortgagee who had at first been a mere "bailee" or depositary, and in the Emphyteuta, or tenant of land which was subject to a fixed perpetual rent.
"Whose rug is she sitting on?" I said. "Pomfret's." "Pomfret is but the bailee of the rug, Alice." "Oh," she cried, "he's going to be a barrister!" "Talking of cats," I said stiffly, "and speaking as counsel of five years' standing " I stopped, for she was on her feet now, facing me, and standing very close, with her hands behind her and a tilted chin, looking into my eyes.
"Let them proceed against you," he said on this occasion, his brilliant legal mind taking in all the phases of the situation at once. "I don't see that there is anything more here than a technical charge. If it ever came to anything like that, which I don't think it will, the charge would be embezzlement or perhaps larceny as bailee. In this instance, you were the bailee.
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