9 sary. Bracton, however, expressly includes the case where goods other than those of a lord are involved,10 and the line between the servant and the bailee was so hazy at this time, if it existed at all,11 that it does not seem possible that the lawyers of the time had in mind that such an agreement would convert a servant into a bailee. They may have thought of such an agreement as imposing a like responsibility on the servant, or say a gratuitous bailee, as was imposed on a hirer or borrower, by the nature of his undertaking, and if such were the case, it may have been sufficient for the appellor to allege the hiring or borrowing without more. But if the responsibility imposed by such an agreement was an absolute responsibility, it is doubtful whether at this time any bailees were subject to such a responsibility without express agreement.12 However general the requirement of the allegation of such an agreement may have been, the fact that it had become a common form would indicate a general acceptance of responsibility as a reason for giving an appeal and would make it extremely likely, even though a hirer or borrower need not have made such an allegation, that such responsibility as he had was generally accepted as a reason for giving him the action. On the other hand, the only authority in Bracton's time which gives possession or seisin as a reason for giving him the action in such case is the Mirror of Justices.13 In the other authorities 14 custody is used where, if the appeals had been thought of as distinctly possessory, we should expect seisin or possession. Custody in itself denotes a care or responsibility or trust which we would not associate with possession. And even if possession had been used it is very likely that the action would have been thought of as given for such responsibility as the possession of chattels carried with it,15 rather than on the now accepted ' Maitland would seem to think that such an allegation was required only of servants. BRACTON & Azo, p. 183. And see 2 P. & M., 2 ed., 172, n. 2. 10 Fol. 146. See supra, pp. 511, 512. 11 See 2 P. & M., 2 ed., 172, n. 2, and supra, p. 502, n. 9. 12 See infra, p. 735 et seq. 13 SEL. SOC. Bk. II, c. 16, p. 57; supra, p. 509. 14 Supra, p. 501, p. 509 et seq., and see 2 P. & M., 2 ed., 176. 15 Professor Ames gives as one reason why the bailee was allowed trespass and the appeals and at the same time the assize denied the termor, "the fact that an actual possessor of personal property being accountable therefor to the true owner needs a remedy to protect himself: whereas the land could not be carried off." LECTURES, p. 221. See also the argument of Brian, C. J., infra, p. 741 et seq. theory that possession gives title as against strangers. The ready acceptance of responsibility as a basis for both trespass to chattels and trespass to land in the later law 16 would confirm the impression from what authority we have in the 1200's that the notion of responsibility as the basis for an action was deep-rooted. The tendency in Bracton's text and the case law of Bracton's time "to require of the bailee who brings an appeal of larceny or an action of trespass something more than mere possession, some interest in the thing, some responsibility for its safety," 17 is pointed out by Pollock and Maitland, but as yet they thought it had not gone very far.18 It is true that most of the authorities in which responsibility is emphasized as the reason for the action are somewhat later.19 But there was no occasion in the earlier law to account for the right of the bailee to recover full damages against a stranger, and it was in this connection that the attribution of the bailee's right to general trespass to his responsibility over gained such general currency.20 The earlier authorities on the point are meager, but so far as they go they strengthen the impression that the bailee's right of action was associated with his responsibility from the first. This impression that the bailee's right to an action was attributed at a very early time to his responsibility is further strengthened by the fact that it was not long after Bracton wrote that the same explanation was made on the Continent by Beaumanoir.21 Mr. Justice Holmes has argued that Beaumanoir's explanation was an inverted one, and that the bailee did not have the action because of his responsibility, but that his responsibility was due to the fact that he and he alone had the action.22 That he had the action was ascribed to the importance of fresh pursuit in the executive procedure of the old Germanic action for cattle stealing.23 But that the importance of fresh pursuit was the cause and that the liability of the bailee was the consequence of giving the action to the bailee would seem to be an entire assumption. Professor Ames gives them 16 Infra, p. 737 et seq., p. 749 et seq. 18 Ibid. 19 See infra, p. 737 et seq. 20 See infra, p. 734. 17 2 P. & M., 2 ed., 172. 21 Coutumes du Beauvoisis, XXXI, 16, cited by HOLMES, COMMON LAW, p. 167. 22 Ibid. 23 Ibid., p. 165 et seq. See also supra, p. 505. 26 as concurring causes and Pollock and Maitland say that "perhaps we come nearest to historical truth if we say that between the two old rules there was no logical priority. The bailee had the active because he was liable and was liable because he had the action"5 The liability Mr. Justice Holmes and the others had in mind was an absolute liability on the part of the bailee for goods taken from him, and if such a liability did exist it mattered Ettle to the bailee whether his right of action was based on possession or on his responsibility to the bailor. In either case he would have the action. If, however, he was not liable to the bailor where the goods were taken from him without his fault, as in the case of robbery. the insistence on his responsibility to entitle him to the action would lead to a denial of the action where he was not at fault or to giving him the action in such a case, not because he was liable in the case at hand, but because of his general liability as bailee, whatever that might be. It must have been this general accountability on which his right to trespass was based by those who, notwithstanding the repudiation in Coggs v. Bernard of the absolute liability of the bailee, continued to place his right of action on his responsibility to the bailor. But while this general accountability might have been a satisfactory explanation of his right to an action and even to the specific recovery of the goods, it could not have been a satisfactory explanation of the recovery by the bailee of the full value of the goods. If his recovery depended on his responsibility, the damages to which he was entitled must have been measured by his responsibility, and unless he had been at fault, his damages would have been nominal, beyond the value of his interest. If the judges of the Year Books wished to allow the bailee the full recovery allowed in general trespass, they had to abandon the notion that his right of action was based on his responsibility over and place it squarely on the ground that the possessor was owner as to third parties, or to retain it and make that responsibility absolute. Such great judges as Littleton and Brian chose the latter course." Their equally eminent companion, Choke, chose the former,28 and in the end his view was to prevail. But it shows how vital Littleton and Brian thought something beyond mere possession was to support 24 LECTURES, p. 221. 25 2 P. & M., 2 ed., 171. 27 Y. B. 9 Edw. IV, 33-9; infra, p. 741. general trespass that the absolute liability which they assumed found little support in the English authorities,29 and that their assumption of such a liability was the main foundation for the argument of Mr. Justice Holmes 30 in support of the two judges in Southcote's case 31 that such absolute liability was once a part of the law of the English courts. 35 The measure of the liability of the bailee and his right of action. are so closely connected that they will be considered together. This involves going over the ground traversed by Coke in Southcote's case,32 by Lord Holt in Coggs v. Bernard,33 and in our own day by Mr. Justice Holmes 34 and Professor Beale; but the cases are approached from a somewhat different angle, and it is hoped that their reëxamination will shed some light not only on the early liability of the bailee but also on the foundation of his right of action. The borrower was held by Glanvill to be absolutely bound to restore the thing or its value,36 and was held to an almost equal degree of liability by Bracton,37 but as to other bailees Bracton followed the more liberal tenets of the Roman law.38 In 1200 39 a plaintiff who had delivered two charters to the defendant for custody was allowed to recover although the defendant had pleaded that the charters had been stolen and burned when his house was burned and that he was appealing the burners whereof the plaintiff was one. But after pleading, the defendant had made default and the plaintiff had craved that it be allowed in his favor that the defendant had admitted that the charters had been lost after action brought. If the case is one of a loss after demand and refusal, it has not such significance as to the absolute liability of the bailee. In the other case (1299) cited by Pollock and Mait 29 See infra, p. 744. 30 See COMMON LAW, p. 177 et seq., and especially the notes on p. 178. That the cases in question were Mr. Justice Holmes' principal English authorities, see Beale, Carrier's Liability, SELECT ESSAYS, 152, and infra, p. 736 et seq. 34 COMMON LAW, p. 175 et seq. 35 Carrier's Liability, 3 SELECT ESSAYS, 148. 36 Lib. X, c. 13, cited 2 P. & M., 2 ed., 171, and HOLMES, COMMON Law, p. 175. 27 Fol. 99 b; BRACTON & Azo (S. S.), p. 147. 38 Fol. 62 b, 99; 2 P. & M., 2 ed., p. 171. 39 SEL. CIV. PL. (S. S.), pl. 8, cited 2 P. & M., 2 ed., 171. land 40 the defendant in detinue for charters tendered the charters without the seals and alleged that robbers had cut off the seals, and on the admission that this had been so the action was dismissed. Pollock and Maitland cite this case in illustration of their summary "that already in his [Bracton's] day English lawyers were becoming familiar with the notion that bailees need not be absolutely responsible for the return of the chattels bailed to them, and that some bailees should perhaps be absolved if they have attained a certain standard of diligence." 41 The authorities on the right of action of the bailee and the extent of his liability in the 1300's are scanty. Attention has already been called to the case in 1374 42 where trespass was given to both the bailee and the bailor, to the one on account of his custody, to the other on the ground of his property, and to the remark of counsel in 13443 in an action for the recaption of beasts against the peace brought by one who claimed that the one from whom the beasts had been taken was his villein, that "a writ of trespass and a writ of appeal are given to him to whom the property belongs, and also to one out of whose possession the goods are taken." In 1315 # in detinue the defendant pleaded that the chattels had been locked in a chest to which the plaintiff had the key and that the chest had been broken open by thieves and the chattels carried away by them together with the defendant's own goods. The reports are conflicting as to the issue finally taken. Fitzherbert's account, on which the older authorities rely, says that the plaintiff was driven to take issue on the theft, and this has been taken to mean that it was the plea of a delivery in inclosure that had made theft a valid defense; but the printed Year Book says that the plaintiff replied that the chattels were delivered out of inclosure and that issue was taken on this allegation. A most probable explanation of Fitzherbert's remark, and one that in part reconciles the two reports, is that the plaintiff pleaded tentatively as in the Year Book," but 40 Page 171 (N. 6). Y. B. 48 Edw. III, 20-8; supra, p. 508. 4 Y. B. 18 & 19 EDW. III, 508; supra, p. 509. 4 Y. B. 8 Edw. II, 275; FITZ. ABR., Detinue 59. 45 4 Co. 83 b. Page 171. As to the expression chacé outre, see Maitland's Introduction, Y. B. 3 Edw. II (S. S.), vol. iii, p. lxx. 47 As to tentative oral pleading in the time of Edward II, see ibid., p. lxv et seq. |