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Updated: June 14, 2025
The last extension was made about the time of Southcote's Case. /4/ But when the same form of action thus came to be used alike for damage or destruction by the bailee's neglect and for loss by a wrong-doer against whom the bailee had a remedy over, a source was opened for confusion with regard to the foundation and nature of the defendant's duty.
To this primitive condition of society has been traced a rule which maintained itself to later times and a more civilized procedure, that, if chattels were intrusted by their owner to another person, the bailee, and not the bailor, was the proper party to sue for their wrongful appropriation by a third.
It would only be necessary for the wrong-doer to commit a wrong so gross as to free the bailee from responsibility, in order to deprive him of his right of action.
There may have been some hesitation as to robbery when the robber was unknown, and so the bailee had no remedy over, /4/ or even as to robbery generally, on the ground that by reason of the felony the bailee could not go against either the robber's body or his estate; for the one was hanged and the other forfeited. /5/ But there is not a shadow of doubt that the bailee was not excused by an ordinary wrongful taking.
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/
A humble satellite who disapproved of these proceedings read aloud to the Bibliotaph that scorching little essay entitled Involuntary Bailees, written by perhaps the wittiest living English essayist. If a man insists upon lending you a book, you become an involuntary bailee. You don't wish to read the book, but you have it in your possession.
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.
But now he's gone vanished like a straw bailee, and all because that damned understrapper of Colonel Tarleton's must needs turn up his nose at a bit of sheriff's work. Curse him!" The candle was burning brightly now, and he crept catlike around the cask to peer into the bin beyond it.
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.
Thus we read in a well- known textbook, "For the bailee being responsible to the bailor, if the goods be lost or damaged by negligence, or if he do not deliver them up on lawful demand, it is therefore reasonable that he should have a right of action," &c. /1/ In general, nowadays, a borrower or hirer of property is not answerable if it is taken from him against his will, and if the reason offered were a true one, it would follow that, as he was not answerable over, he could not sue the wrong-doer.
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