Persay: Sir, it is true.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.Thus in 22 Edward IV., counsel say, "If I bail to you my goods, and another takes them out of your possession, I shall have good action of trespass quare vi et armis." And this seems to have been Rolle's understanding in the passage usually relied on by modern courts. 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.Many early writs will be found which show that trespass had not always the clear outline which it developed later.The point which seems to be insisted on in the Year Books is, as Brooke sums it up in the margin of his Abridgment, that two shall have an action for a single act,--not that both shall have trespass rather than case. It should be added that the Year Books quoted do not go beyond the case of a wrongful taking out of the custody of the bailee, the old case of the folk-laws. Even thus the right to maintain trespass is now denied where bailee has the exclusive right to the goods by lease or lien; although the doctrine has been repeated with reference to bailments terminable at the pleasure of the bailor. But the modified rule does not concern the present discussion, any more than the earlier form, because it still leaves open the possessory remedies to all bailees without exception.This appears from the relation of the modified rule to the ancient law; from the fact that Baron Parke, in the just cited case of Manders v.Williams, hints that he would have been prepared to apply the old rule to its full extent but for Gordon v.Harper, and still more obviously from the fact, that the bailee's right to trespass and trover is asserted in the same breath with that of the bailor, as well as proved by express decisions to be cited.
It is true that in Lotan v.Cross, Lord Ellenborough ruled at nisi prius that a lender could maintain trespass for damage done to a chattel in the hands of a borrower, and that the case is often cited as authority without remark.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; 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. Apart 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.But on whatever ground Lotan v.Cross may stand, if on any, it cannot for a moment be admitted that borrowers in general have not trespass and trover.A gratuitous deposit for the sole benefit of the depositor is a much stronger case for the denial of these remedies to the depositary; yet we have a decision by the full court, in which Lord Ellenborough also took part, that a depositary has case, the reasoning implying that a fortiori a borrower would have trespass.And this has always been the law.
It has been seen that a similar doctrine necessarily resulted from the nature of the early German procedure; and the cases cited in the note show that, in this as in other respects, the English followed the traditions of their race.
The meaning of the rule that all bailees have the possessory remedies is, that in the theory of the common law every bailee has a true possession, and that a bailee recovers on the strength of his possession, just as a finder does, and as even a wrongful possessor may have full damages or a return of the specific thing from a stranger to the title.On the other hand, so far as the possessory actions are still allowed to bailors, it is not on the ground that they also have possession, but is probably by a survival, which explained, and which in the modern form of the an anomaly. The reason usually given is, that a right of immediate possession is sufficient,--a reason which the notion that the bailor is actually possessed.
