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The term "Involuntary Bailee" may or may not be a correct piece of legal terminology; at all events, it sounds very imposing, and can be easily explained. Most of us in our humble way are or have been Involuntary Bailees.
Yet Bracton, in the very passage in which he expressly makes that statement, uses a phrase which, but for the explanation, would seem to import ownership, "Poterit rem suam petere." /4/ The writs of later days used the same language, and when it was objected, as it frequently was, to a suit by a bailee for a taking of bona et catalla sua, that it should have been for bona in custodia sua existentia, it was always answered that those in the Chancery would not frame a writ in that form. /5/
This took place, and, curiously enough, two of the earliest instances in which I have found the latter phrase used are cases of a depositary, /2/ and a borrower. /3/ Brooke says that a wrongful taker "has title against all but the true owner." /4/ In this sense the special property was better described as a "possessory property," as it was, in deciding that, in an indictment for larceny, the property could be laid in the bailee who suffered the trespass. /5/
"You must remember that whenever any thing belonging to one boy is intrusted to another in any way, if it is for the benefit of the bailee, if any accident happens to it, he must make it good; unless it was some inevitable accident, which could not have been prevented by the utmost care.
If it is for the benefit of the bailor, that is, the boy who intrusts it, then he can't require the other to pay for it, unless he was grossly negligent. And if it was for the common benefit of both, then if the bailee takes what may be called good care of it, he is not liable to pay; if he does not take good care, he is." Here ended the lecture on the law of bailment.
We should call it a contract, but it probably presented itself to the mind of Glanvill's predecessors simply as a duty or obligation attached by law to a transaction which was directed to a different point; just as the liability of a bailee, which is now treated as arising from his undertaking, was originally raised by the law out of the position in which he stood toward third persons.
I cannot believe that, if the letter had been delivered to the promisee and was then snatched from his hands before he had read it, there would be no contract. /1/ If I am right, it appears of little importance whether the post-office be regarded as agent or bailee for the offerer, or as a mere box to which he has access.
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