that the report in the Year Book is incomplete 48 and that instead of issue being taken on this plea,49 the plaintiff was driven over to take issue on the theft. If this explanation is correct the case is a strong authority that theft was available to the general bailee as a defense. In a case in 1354 or 1355 50 the goods had been pledged to the defendant. He pleaded that he had put them with his own goods and that they had been stolen, to which the plaintiff replied a tender and refusal before the theft on which issue was taken. This is the first of the cases in which any statement of the liability of the bailee is made. W. Thorpe, B., said: "If one bails me goods to keep, and I put them with mine [enter les mains] and they are stolen, I will not be charged." In the Michaelmas term of 11 Henry IV (1409) we have two of the cases where the defendant urged that the bailee should have brought a special writ de averiis in custodia sua existantibus.51 In the first case,52 which was a general replevin, Thirning, C. J., dismissed the matter with a curt "Plead no more about this matter, for against you he has property." In the second case 53 general trespass was brought by one who had hired certain beasts for a year from his servant, for a taking during the term. In his replication the plaintiff first alleged that the servant had taken them and sold them to the defendant. His counsel urged in his favor the holding in the replevin case, but Hankford, J., said: "and so he has entered on the action as of his own goods, because they were taken within the term and this he will not have for then he would recover the value of the beasts against him who has the property in the beasts and it is not reason and I agree that in a certain case one will have a general writ of trespass although the beasts are another's, but if I allow certain beasts to you for a certain time and take the beasts within the term you will not have a writ of trespass as of your own goods for 48 For abundant illustrations of just such variance in the different reports of a case at this time, see ibid., p. lxxii et seq. 49 It seems to have been possible at this time to traverse the bailment in detinue without responding to the tortious detainer (Y. B. 3 Edw. II, 78; Y. B. 6 EDW. II, 192; Ames, 3 SElect Essays, 432), but in another case in the same term the judges had little patience with an attempt to take issue on the kind of bailment and the party was "driven over" to a more substantial defense. See Y. B. 8 Edw. II, 270. 50 29 Ass. 163, pl. 28. See Beale, Carrier's Liability, 3 Select Essays, 152, n. 2. 51 Supra, p. 731. 52 Y. B. II HEN. IV, 17-39. 53 Y. B. II HEN. IV, 23-46. then you would recover damages against me for the true value of the beasts and this is not reason but you will have a writ of trespass on the case for the loss of the manurance and compesture." To the argument of counsel that they were in the case supposed because the action was against a stranger, Hankford replied: "In effect you are in the same case, for he who had the property sold them to the defendant and that is the effect of his justification, and that is the reason that you will not recover damages for the value against him and also you are not chargeable against him who loaned you the beasts for he has sold them to the defendant, but if a stranger who has nothing to do with them take beasts in my custody, I shall have writ of trespass against him and shall recover the value of the beasts, because I am charged with the beasts against him who bailed them to me and who has the property but here the case is wholly otherwise," which Hill and Culpeper conceded. Counsel for the plaintiff then shifted his plea and alleged that the defendant himself had taken the goods a long time before the sale. It was admitted that in such a case the plaintiff had at one time had an action. The only question was as to whether it had been affected by the subsequent sale. Culpeper urged that in trespass the return of the goods would be considered in mitigation of damages. This Hankford and Hill denied. Hankford said that a plea that the plaintiff was possessed of the goods would discharge the action, and Hill that if the defendant had pleaded not guilty the court could do nothing on the record but award full damages.54 It is believed that it was the difficulty of allowing anything less than a full recovery in general trespass as shown in this case rather than any theory of possession that accounts for the rule allowing the bailee the full recovery of damages. The general writ of trespass for the taking and carrying away of chattels gave the value of the chattels, and the judges felt loath to allow it where that was not a reasonable measure of damage. They felt that if less than that was the proper measure of damage that a special writ should be used. But the writ in which the full value of the property was given had come to be more and more the general form and it was hard to obtain any other, and it was allowed as against the third hand. Later Culpeper's view came to prevail. (See Ames, History of Trover, 3 SELECT ESSAYS, 426.) But the part played by procedural limitations in the modern rule allowing in general a full recovery for a conversion is not likely to be exaggerated. The judges drew the line, however, when its use was attempted against the bailor and reconciled the two cases by the statement that in the former case the bailee was responsible to the bailor. It is by no means clear that Hankford meant to impute an absolute liability to the bailee,55 but in making the recovery of damages dependent on responsibility he was making it necessary to impute an absolute liability to the bailee, if it was to be the rule that the bailee was to be entitled to general trespass against the third hand. There can be little doubt that some of the judges in following him did mean to impute an absolute liability to the bailee 56 and it is their apparent assumption of such liability that is the principal ground for Mr. Justice Holmes' contention that the absolute liability of the bailee was a part of the law of the Year Books.57 In 1431,58 in reply to the statement of counsel that theft would excuse a bailee, Cotesmore, J., said: "If I grant goods to a man to keep to my use, if the goods by his misguard are stolen, he will be charged to me for the goods, but if he be robbed of the goods, he is excusable by the law." In 1455 59 debt on a statute was brought against the marshal of the King's Bench for an escape. Choke pleaded that a great multitude of enemies of the king had broken open the jail and liberated the prisoner. Choke said: "If enemies of France or other enemies of the King were here the marshal would be discharged, or if they had burned a house of the tenant for term of life he would be discharged of waste, or otherwise by sudden tempest the house were burned he would be discharged, so here." Neither of the judges thought the plea sufficient, and Choke finally pleaded otherwise. Danby, J., said: "In your case of enemies of the king and of sudden tempest there is reason, for then there is remedy against no one, but it is otherwise where the lieges of the king so act, for there you have action against them." 55 He does not use the expression "chargeable over" which later became current. There would seem to be an implication of liability in the case at hand in this expression that there would not be in "chargeable" alone. The latter might well be used as equivalent to accountable or liable to account. 56 Y. B. 2 EDW. IV, 15–7; Y. B. 8 Edw. IV, 6–5; Y. B. 9 Edw. IV, 33-9; Y. B. 9 EDW. IV, 40-22; HOLMES, COMMON LAW, 177-78; Beale, Carrier's Liability, 3 SELECT ESSAYS, 152. 58 Y. B. IO HEN. VI, 21-69. 57 Supra, p. 735, n. 30. Prisot, C. J., emphasized the difference between alien enemies and traitors and said that if, say twelve or twenty persons, lieges of the king, should in the night break open the prison and take the prisoners out, "in this case the marshal would be charged for so negligently guarding and so here. But if by a sudden adventure of fire the prison were burned and they escaped, peradventure otherwise." Choke's argument was entirely from the law of waste. No reference was made by anyone to bailments. In the reign of Edward IV we find Hankford's reason for giving the bailee general trespass against the third hand working out to its logical result in an imputation of responsibility over to the bailor.60 Littleton went even further than Hankford's reason made necessary and imputed a like responsibility over in case of robbery.61 Danby also made an express statement that the bailee was liable in case of theft.62 This statement of Danby's played an important part in Coke's report of Southcote's case 63 and in the imposition on the common carrier of his extraordinary liability.64 In 1462 65 trespass was brought by one apparently a servant sent to collect his master's tithes. Littleton was counsel for the plaintiff. Objection was made that the plaintiff had done all in the right of the abbot, his master, and that the property was entirely in the master. The report reads: "Littleton: I understand there is no diversity where I tell my servant to bring me goods which are in such a place and as he is bringing them they are taken out of his possession and where I give goods to one to keep and they are taken out of his possession. Danvers: Here they are not his goods but he is only charged to the abbot for them. Danby: For that he ought rather to have trespass and in so far as he is chargeable by writ of detinue to the abbot. Littleton: If he be robbed and despoiled, I say that he will have an appeal of robbery because he is chargeable over, which was conceded." Six years 66 later trespass was brought by the wardens of a church, in which damage to the parishioners was alleged. It was objected 60 Supra, p. 734; infra, p. 741 et seq. 62 Y. B. 9 EDW. IV, 40-22; infra, p. 742 et seq. es Infra, pp. 746, 747. 66 Y. B. 8 EDW. IV, 6-5. 61 Y. B. 2 Edw. IV, 15-7; infra. 63 infra, p. 746. 65 Y. B. 2 EDW. IV, 15-7. that the writ ought to have read to the damage of the plaintiffs, but Littleton distinguished the case from that of the bailee in that the latter was chargeable to the bailor. In 1469 67 we have a remarkable discussion of the foundation of the right of the bailee to trespass by Needham and Choke and Brian and Littleton. Needham and Choke argued that the right was based on possession, but Brian and Littleton denied this and placed it on the bailee's liability to the bailor. It was Littleton that had the last word. The discussion arose over a question of "color" in an action brought by a prior for goods of the house taken away in the time of his predecessor. In the plea a bailment by the defendant had been alleged, but this had not been to the predecessor and the latter was rather in the position of a finder. Needham urged that when the predecessor "had possession of the goods by that possession he was able to maintain an action if they were taken out of his possession against anyone except him who had right." Brian to the contrary said: "If I bail certain goods to a man to guard if they are carried off, he will have a writ of trespass on the possession for he is chargeable over to me. But if goods bailed to a prior are carried off, the successor will not have an action for he is not chargeable and so to no mischief." Choke came to Needham's support with the case of the finder. "Sir, if I lose a bundle of cloth in the road and a man finds it he can take it to keep it to my use, and may justify this, for it is a good deed to guard safely or otherwise they are lost, and he who has the goods will have an action against anyone except him who has right if they are carried off." Littleton repeated Brian's argument that the prior would not be chargeable on the bailment to his predecessor, to which Choke replied that he would be if the bailment were under seal. Littleton: "Then he would have an action. But it is otherwise of a simple bailment. And so in this case the successor is not charged over by this possession so as to give him color of title by such possession that is sufficient. But if it be said that the predecessor took them damage feasant such color is good, for he ought to have detained them until he had made 67 Y. B. 9 Edw. IV, 33–9. |