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Updated: June 14, 2025
The point of especial importance, it will be remembered, was the oath. Assuming that as the first step we find a procedure kindred to that of the early German folk-laws, the more important question is whether we find any principles similar to those which have just been explained. One of these, it will be remembered, concerned wrongful transfer by the bailee.
"So Dave puts up a small dance, like a Navajo, accompanyin' of himse'f with outcries same as a Injun. But the Eytalian don't play Dave's kind of music, an' the bailee comes to a halt. "'Whatever is the matter with this yere tune-box, anyhow? says Dave. 'Gimme the music for a green-corn dance, an' don't make no delay. "'This yere gent can't play no green-corn dance, I says.
It has come to you by post, let us suppose, 'and to pack it up and send it back again requires a piece of string, energy, brown paper, and stamps enough to defray the postage. And it is a question whether a casual acquaintance 'has any right thus to make demands on a man's energy, money, time, brown paper, string, and other capital and commodities. There are other ways of making a man an involuntary bailee.
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.
There is the same procedure for lost property, turning on the single question whether the plaintiff had lost possession against his will; the same principle that, if the person intrusted with the property parted with it to another, the owner could not recover it, but must get his indemnity from his bailee; the same inverted explanation, that the bailee could sue because he was answerable over, but the substance of the true doctrine in the rule that when he had no remedy he was not answerable; and, finally, the same absolute responsibility for loss, even when happening without fault on the part of the person intrusted.
John Hornby had access to the diamonds, therefore it is possible that he stole them." "But surely he was responsible to the owners." "Not in the absence of gross negligence, which the owners would have difficulty in proving. You see, he was what is called a gratuitous bailee, and in such a case no responsibility for loss lies with the bailee unless there has been gross negligence."
Now he sleeps what Socrates calls the sweetest slumber of all, if it be but dreamless, or, somewhere, he enjoys all new experience, with the lusty appetite of old. Lord Tennyson is probably the most extensive Involuntary Bailee at present living.
An owner out of possession could sue the wrongful taker of his property, as well as one who had possession. But the strict liability of the bailee remained, as such rules do remain in the law, long after the causes which gave rise to it had disappeared, and at length we find cause and effect inverted. Now it was said he could sue because he was answerable to the owner.
A master has maintained trespass against a servant for converting cloth which he was employed to sell, /2/ and the American cases go the full length of the old doctrine. It has often been remarked that a servant must be distinguished from a bailee.
Then comes the trial of this man at the court with so queer a name Old Bailee. The papers are full of the terrible story again; of the dead man; how he looked killed; how he lay in a pool of blood; how they cut him open! Madame Holymead cannot pick up a paper without seeing these things, and she falls ill again. Then the jury say the man the police agents caught is not the murderer.
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