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Updated: June 14, 2025
The error was made easier by a different use of the phrase in a different connection. A bailee was in general liable for goods stolen from his custody, whether he had a lien or not.
The defence was, that the goods were stolen with the defendant's own. The plaintiff was driven to reply a tender before the theft, which would have put an end to the pledge, and left the defendant a general bailee. /5/ Issue was taken thereon, which confirms the other cases, by implying that in that event the defendant would be liable.
Southcote's Case, and the earlier authorities which have been cited, all refer to a loss by robbery, theft, or trespass, and hold the bailee liable, where, in theory at least, he has a remedy over.
They are so many attempts to state the duty of the bailee specifically, according to the nature of the bailment and of the object bailed.
Submitting, then, to the constitutional interdict already glanced at, and availing myself of the implied license to utilise that homely talent of which I am the bailee, I purpose taking certain entries from my diary, and amplifying these to the minutest detail of occurrence or conversation.
It vastly extended the number of actionable contracts, which had formerly been confined to debts and covenants, whereas nearly any promise could be sued in assumpsit; and it introduced a theory which has had great influence on modern law, that all the liabilities of a bailee are founded on contract. /1/ Whether the prominence which was thus given to contract as the foundation of legal rights and duties had anything to do with the similar prominence which it soon acquired in political speculation, it is beyond my province to inquire.
The meaning of the rule that all bailees have the possessory remedies is, that in the theory of the common law every bailee has a true possession, and that a bailee recovers on the strength of his possession, just as a finder does, and as even a wrongful possessor may have full damages or a return of the specific thing from a stranger to the title.
This argument assumes that a bailee who received goods in the course of a public employment, for instance as a common carrier, could be charged in this form of action for a breach of either of the above sets of duties, by alleging either his public calling or his reward and a special promise.
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.
If, however, the action be on a deposit occasioned by a riot, a fire, the fall of a building, or a shipwreck, the praetor enables the depositor to recover double damages, provided he sues the bailee in person; he cannot recover double damages from the bailee's heir, unless he can prove personal fraud against the latter. In these two cases the action, though on contract, is mixed.
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