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Updated: June 12, 2025
It is a rule of the criminal law, that, if a bailee of such a chest or bale wrongfully sells the entire chest or bale, he does not commit larceny, but if he breaks bulk he does, because in the former case he does not, and in the latter he does, commit a trespass. /2/ The reason sometimes offered is, that, by breaking bulk, the bailee determines the bailment, and that the goods at once revest in the possession of the bailor.
But if he is indebted to only a small amount in proportion to the value of his property, and wholly unembarrassed, the gift is not rendered voidable by his indebtedness, even though he should afterwards become insolvent. Bailment. The word bailment is from bail, French, to deliver.
The more important alternative allegation, the assumpsit, had the effect in the end of introducing the not intrinsically objectionable doctrine that all duties arising from a bailment are founded on contract. /2/ But this allegation, having now a special action to which it had given rise, was not much used where the action was tort, while the other averment occurs with increasing frequency.
The circuit and supreme courts of the several states, though the slave cases which they tried were for the most part concerned only with such dry questions as detinue, trover, bailment, leases, inheritance and reversions, in which the personal quality of the negroes was largely ignored, occasionally rendered decisions of vivid human interest even where matters of mere property were nominally involved.
This last resolution may only mean that the custom of the realm and the common law are the same thing, as had been said concerning innkeepers long before. /2/ But the law as to innkeepers, which was called the custom of the realm in the writ, had somewhat the air of a special principle extending beyond the law of bailment, inasmuch as their liability extended to goods within the inn, of which they had not the custody, and the court may have meant to make an antithesis between such a special principle and the common law or general law of bailment governing the present case.
When he saw the children coming in, he asked Mary, who was foremost, what they wanted. She said they had a law question, which they wanted him to decide. "A law question?" said he. "Yes," she replied; "a case of bailment." "O, very well; walk in," said he. There was a sofa at one side of the room, and he seated the children all there, while he drew up his arm-chair directly before them.
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.
The other diversity marked the entrance of the doctrine of consideration into the law of bailment. Consideration originally meant quid pro quo, as will be explained hereafter. It was thus dealt with in Doctor and Student /2/ when the principle was still young.
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.
It will be observed that this case did not go on any special custom, either as to common carriers or shipmasters, but that all the arguments and the opinion of the court assumed that, if the case was to be governed by the common law, and not by the milder provisions of the civil law relied on for the defence, and if the defendant could be regarded as a bailee, and not merely a servant of the owners, then the general law of bailment would apply, and the defendant would be charged, as in Southcote's Case, "by his general acceptance."
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