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Updated: May 13, 2025
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.
If he has paid his bailor instead, he has paid one whom he was not bound to pay, and no general principle requires that this should be held to divest the plaintiff's right.
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.
"What is bailor and the bailee?" said Henry. "Why, Rollo bailed you his fish," said Mary. "Rollo was bailor, and you bailee." "No," said Henry, "he only gave me back my dipper, and the fish was in it." Mary asked for an explanation of this, and the boys related all the circumstances. Mary said it was an intricate case. "I don't understand it exactly," said Mary.
The next point in logical order would be the degree of responsibility to which the bailee was held as towards his bailor who intrusted him. But for convenience I will consider first the explanation which was given of the bailee's right of action against third persons wrongfully taking the goods from his possession.
"The law requires," continued his father, "that you should take greater care of any thing, if it is bailed to you for your benefit, than it does if it is for the benefit of the bailor.
"No, I certainly should not. I am only telling what I should have a right to do if I chose. "Sometimes a thing is bailed to a person," continued Rollo's father, "for the benefit of both persons, the bailor and the bailee." "The bailee?" said James. "Yes, the bailee is the person the thing is bailed to.
The right to these remedies extends not only to pledgees, lessees, and those having a lien, who exclude their bailor, but to simple bailees, as they have been called, who have no interest in the chattels, no right of detention as against the owner, and neither give nor receive a reward. /1/
It was to be expected that some action should be given to the bailor as soon as the law had got machinery which could be worked without help from the fresh pursuit and armed hands of the possessor and his friends. To allow the bailor to sue, and to give him trespass, were pretty nearly the same thing before the action on the case was heard of.
But as the remedies were all in the bailee's hands, it also followed that he was bound to hold his bailor harmless. If the goods were lost, it was no excuse that they were stolen without his fault. He alone could recover the lost property, and therefore he was bound to do so. In the course of time this reason ceased to exist.
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