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Updated: May 13, 2025
"Well," repeated his father, "now as this property was bailed to you solely for the advantage of the bailor, the question whether you ought to pay for the loss of it, depends on whether you was grossly careless, or not. If you took good ordinary care, and it was lost by accident, then you are not liable." "Well, father, I think it was accident; I do, truly."
But he who recovers first shall oust the other of the action, and so it shall be in many cases, as if tenant by elegit is ousted, each shall have the assize, and, if the one recover first, the writ of the other is abated, and so here." It would seem from other books that this was spoken of bailments generally, and was not limited to those which are terminable at the pleasure of the bailor.
But, apart from curiosity, the doctrine remaining to be discussed has had such important influence upon the law of the present day, that I shall follow it out with some care. That doctrine was the absolute responsibility of the bailee to the bailor, if the goods were wrongfully taken from him. /2/
Thus we read in a well- known textbook, "For the bailee being responsible to the bailor, if the goods be lost or damaged by negligence, or if he do not deliver them up on lawful demand, it is therefore reasonable that he should have a right of action," &c. /1/ In general, nowadays, a borrower or hirer of property is not answerable if it is taken from him against his will, and if the reason offered were a true one, it would follow that, as he was not answerable over, he could not sue the wrong-doer.
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