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Updated: June 12, 2025
Perhaps the most striking authority for the position that the judge's duties are not at an end when the question of negligence is reached, is shown by the discussions concerning the law of bailment. Consider the judgment in Coggs v. Bernard, /1/ the treatises of Sir William Jones and Story, and the chapter of Kent upon the subject.
If the pawnee derives any profit from the use of the property, he must apply the profits, after deducting necessary expenses, toward the debt. Another kind of bailment is the hiring of property for a reward. If an article is injured or destroyed without any fault on the part of the hirer, the loss falls on the owner, for the risk is with him.
All the above peculiarities reappear in the Anglo-Norman law, and from that day to this all kinds of bailees have been treated as having possession in a legal sense, as I shall presently show. It is desirable to prove the native origin of our law of bailment, in order that, when theory comes to be considered, modern German opinion may not be valued at more than its true worth.
"Father," said Rollo, when he came back, "if James should give me his knife, or any thing, for my own, would that be a bailment?" "No," said his father. "A bailment is only where property is intrusted to another, for a certain purpose, to be returned again to the possession of the owner, when the purpose is accomplished.
Rollo's father felt somewhat relieved at finding that the loss was, after all, not very large. He placed confidence in Rollo's account of the facts, and having thus ascertained how the case stood, he began to consider what was to be done. "It is a case of bailment," said he to Rollo, "and the question is, whether you are liable." "A case of what?" said Rollo. "Bailment," said his father.
Boys bail things to one another very often, and a great many disputes arise among them, because they don't understand the law of bailment. It applies to boys as well as men. It is founded on principles of justice and common sense, and, of course, what is just and equitable among men, is just and equitable among boys.
Furthermore, notions of public policy which would not leave parties free to make their own bargains are somewhat discredited in most departments of the law. /1/ Hence it may perhaps be concluded that, if any new case should arise, the degree of responsibility, and the validity and interpretation of any contract of bailment that there may be, should stand open to argument on general principles, and that the matter has been set at large so far as early precedent is concerned.
Since he did reclaim it, Rollo did perfectly right to give it up, fish and all; and as he did so, it was a bailment for the benefit of the bailee, that is, Henry. And of course it was at his risk, and, in strict justice, Rollo has a right to claim compensation for the loss of his fish. But then I should hope he won't insist upon it." "Well, sir," said Rollo, "I don't care much about it now."
It appears, from the foregoing evidence, that we cannot determine what classes of bailees are subject to the strict responsibility imposed on common carriers by referring to the Praetor's Edict and then consulting the lexicons under Nautoe, Caupones, or Stabularii. The question of precedent is simply to what extent the old common law of bailment still survives.
The nature of bail has been explained, by Mr Justice Blackstone, to be "a delivery or bailment of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance: he being supposed to continue in their friendly custody, instead of going to gaol."
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