THE BAILEE AT COMMON LAW.
So far the discussion has been confined to the general principles of liability, and to the mode of ascertaining the point at which a man begins to act at his own peril.But it does not matter to a man whether he acts at his own peril or not, unless harm comes of it, and there must always be some one within reach of the consequences of the act before any harm can be done.Furthermore, and more to the point, there are certain forms of harm which are not likely to be suffered, and which can never be complained of by any one except a person who stands in a particular relation to the actor or to some other person or thing.Thus it is neither a harm nor a wrong to take fish from a pond unless the pond is possessed or owned by some one, and then only to the possessor or owner.It is neither a harm nor a wrong to abstain from delivering a bale of wool at a certain time and place, unless a binding promise has been made so to deliver it, and then it is a wrong only to the promisee.
The next thing to be done is to analyze those special relations out of which special rights and duties arise.The chief of them--and I mean by the word "relations" relations of fact simply--are possession and contract, and I shall take up those subjects successively.
The test of the theory of possession which prevails in any system of law is to be found in its mode of dealing who have a thing within their power, but not own it, or assert the position of an owner for with regard to it, bailees, in a word.It is therefore, as a preliminary to understanding the common-law theory of possession, to study the common law with regard to bailees.
The state of things which prevailed on the border between England and Scotland within recent times, and which is brought back in the flesh by the ballad of the Fray O'Suport, is very like that which in an earlier century left its skeleton in the folk-laws of Germany and England.Cattle were the principal property known, and cattle-stealing the principal form of wrongful taking of property.Of law there was very little, and what there was depended almost wholly upon the party himself to enforce.The Salic Law of the fifth century and the Anglo-Saxon laws of Alfred are very full in their directions about following the trail.If the cattle were come up with before three days were gone, the pursuer had the fight to take and keep them, subject only to swearing that he lost them against his will.If more than three days went by before the cattle were found, the defendant might swear, if he could, to facts which would disprove the claimant's loss.
This procedure was in truth a legal procedure; but it depended for its beginning and for its execution on the party making the claim.From its "executive" nature, it could hardly have been started by any other than the person on the spot, in whose keeping the cattle were.The oath was to the effect that the party had lost possession against his will.But if all that a man had to swear was that he had lost possession against his will, it is a natural conclusion that the right to take the oath and make use of the procedure depended on possession, and not on ownership.Possession was not merely sufficient, but it was essential.Only he who was in possession could say that he had lost the property against his will, just as only he who was on the spot could follow the cattle. This, so far as known, was the one means afforded by the early law of our race for the recovery of property lost against one's will.So that, in a word, this procedure, modelled on the self-redress natural to the case which gave rise to it, was the only remedy, was confined to the man in possession, and was not open to the owner unless he was that man.
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.It followed that if the bailee, or person so intrusted, sold or gave the goods in his charge to another, the owner could only look to the bailee, and could not sue the stranger; not from any principle in favor of trade, intended to protect those who bought in good faith from parties in possession, but because there was no form of action known which was open to him.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.An owner out of possession could sue the wrongful taker of his property, as well as one who had possession.But the strict liability of the bailee remained, as such rules do remain in the law, long after the causes which gave rise to it had disappeared, and at length we find cause and effect inverted.We read in Beaumanoir (A.D.
1283) that, if a hired thing is stolen, the suit belongs to the bailee, because he is answerable to the person from whom he hired. At first the bailee was answerable to the owner, because he was the only person who could sue.Now it was said he could sue because he was answerable to the owner.
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.
