question; but whether to place this liability on his hire,94 on the custom of the realm,95 or on his public calling, 96 there seems to have been no settled conviction. Equally it seems to have been accepted that the measure of his liability was that old liability that had filtered through the Marshal's case from the law of waste.97 For act of God 98 or the public enemy 99 he was alone excused.100 Lord Holt fixed on his public calling as the secret of his liability 101 and henceforth it was the common carrier who was to be thus burdened. How extended that burden was to be depended on the meaning to be given to act of God.102 Lord Mansfield gave it the old interpretation it had had in waste and made the common carrier an insurer.103 It is not believed that the liability is a survival of an older liability in the general bailee due to a confusion between detinue and case.104 Doctor and Student had started the idea of a special responsibility in the carrier.105 Gawdy seized on the case of the carrier to argue to the general liability of bailees and factors which he saw in Danby's statement in 9 Edward IV.106 Popham, C. J., distinguished between the carrier and others 107 and although Gawdy's reaffirmation of his opinion in Southcote's case was to be practically still-born,108 the distinction by Popham which it had originally drawn forth was to survive. It would appear to be a striking example of the eccentricities of case law.

But to return to the right of action of the bailee. It still remains to explain why, if trespass was not distinctly possessory, it seemed so natural to give the bailee an action that the judges in order to

4 See Beale, Carrier's Liability, 3 SELECT ESSAYS, 156, n. 2.

95 Rich v. Kneeland, Hobart 17 (1613); Matthews v. Hopkins, 1 Sid. 244 (1665). 96 Rich v. Kneeland, Cro. Jac. 330 (1613).

97 As to the influence of the Marshal's case, see HOLMES, 176, n. 6, and Beale, Carrier's Liability, 3 SELECT ESSAYS, 156.

98 For "act of God" in waste, see Y. B. 12 HEN. IV, 5-11; I GRAY, CASES ON PROPERTY, 630.

99 For "public enemy" in waste, see FITZ. ABR., Waste, pl. 30; I GRAY, CASES ON PROPERTY, 629.

100 Kirchwey, Liability for Waste, 8 COL. L. REV. 436, 624.

101 Coggs v. Bernard, 2 Ld. Raym. 909, 917 (1703).

102 Beale, Carrier's Liability, 3 SELECT ESSAYS, 159.

103 Kirchwey, Liability for Waste, 8 COL. L. REV. 436, 624.

104 As argued by Mr. JUSTICE HOLMES, COMMON LAW, Lecture V.

105 C. 38. See Beale, Carrier's Liability, 3 SELECT ESSAYS, 156.

106 Supra, p. 746.

107 Ibid.

108 See Beale, Carrier's Liability, 3 SELECT ESSAYS, 153.

support the action imputed to him a liability which at best would seem to have been long obsolete. Why did not the insistence on responsibility over instead of leading to the imputation of an absolute liability to the bailee lead to the denial of the action to the bailee or at least to the denial of his right to a full recovery? 109 How explain the bias of the judges in the bailee's favor? Mr. Justice Holmes' explanation is that it was a survival of the old Germanic scheme according to which the bailee and the bailee alone had an action, and in turn was absolutely liable for the goods.110 We have attempted to show that of two parts of that scheme there is very little evidence in the English authorities, the denial of the action to the bailor," the absolute liability of the bailee.112 It is possible that one part of the scheme did survive after the rest had become obsolete. It is possible that the bailee's right to general trespass had its origin in the fresh pursuit and the absolute liability of the primitive law. It is not necessary, however, to resort to the primitive law to account for the bailee's action.

It will be remembered that Bracton in one place seems to deny the bailee the appeal of larceny, but to allow him the appeal of robbery,113 and that Maitland wondered 114 at this, for it was contrary to Mr. Justice Holmes' theory and was without foundation in the Roman law. Whether or not such distinction did exist, Bracton's statement confirms the view previously expressed 115 that it is in the appeal of robbery rather than in the appeal of larceny that the explanation of the right of the bailee to trespass is to be found. Now robbery involved a taking from the person. It was violence to the person that distinguished it from larceny. The person from whom goods had been robbed had suffered a personal wrong whether the goods taken from him were his or those of another. He had been robbed and it must have been a temptation

109 The difficulty of procuring a special writ in trespass and the further difficulty of recovering less than full damages in general trespass has already been pointed out as an explanation of the rule allowing a bailee full recovery. (Supra, p. 738.) What follows is rather an explanation of his being allowed trespass at all and of its final attribution to his possession.

110 COMMON LAW, Lecture V.

Property in the Bailor, supra, p. 501 et seq.

112 Supra, p. 735 et seq.

113 TWISS, fol. 103 b; BRACTON & Azo, p. 179; supra, p. 510.

114 BRACTON & Azo, p. 182; supra, p. 511.

15 Supra, p. 507.

to the judges to give him the appeal of robbery even though they had to resort to a doubtful liability to do so. And the highly criminal character of the appeal would work to the same end.

The importance of the fact that general trespass was an action for a personal wrong has been seen in Brian's, C. J., reason for denying trespass against the second trespasser 116 and in the denial by some of trespass to a disseisee after reëntry for a trespass committed during the disseisin because it was not a trespass as to him.117 That it did not lead to a denial of trespass to the bailor would seem to be due to the fact that the bailee held under and not adversely to him.118

General trespass then, like the appeal of robbery, was an extension of the protection thrown around the person and was in that sense possessory.119 It did not purport to be based on possession, however, and in that respect was not an analogue to the assize of novel disseisin. And the right of the bailee to trespass was placed by Brian and Littleton, not on his possession, but on his responsibility over.120 It was not therefore a distinctly possessory action. It was trespass to land that first became such. Trespass for an ouster seems to have been first allowed the termor.121 In 1372 we find him allowed trespass quare clausum.122 His right to the action is there coupled with his responsibility over. Tenants at will, according to the custom of the manor 123 and possibly cestuis que use in possession,124 were likewise accorded trespass in the next century. So

121 What appears to be an early reference to trespass by a termor for an ouster occurs in an action of debt for rent where after disposing of the case of an ouster by the lessor, it is said that the lessee will be liable for the rent during the time he was tortiously ousted and that for such tort he is able to recover against him who ousted him. Y. B. 9 EDW. III, 7-16. For comment on this case, see AMES, LECTURES, p. 222, n. 7. See also ibid., p. 226.

122 Y. B. 47 EDW. III, 5-11; AMES, LECTURES, p. 226.

123 Y. B. 2 HEN. IV, 12-49. See AMES, LECTURES, p. 227.

124 Prior to the Statute of Uses, tenant at sufferance seems to have been used to indicate the cestui que use in possession. (1 SANDERS, USES, p. 65.) In 1489 it was said that if such a one brought trespass and the defendant did not raise the issue as to the title but pleaded not guilty the plaintiff might succeed. (Y. B. 4 HEN. VII, 3−6.) But see the cases cited in AMES, LECTURES, p. 227, n. 7, 8.

strong was the feeling that the copyholder should have some remedy in the king's court that he was allowed trespass even against his lord.125 This "exploit" has been attributed to Danby and Brian 126 and could hardly have been based on possession as a root of title or as in itself a foundation for trespass, for it was these judges who had combated such notions in trespass to chattels; but Brian had emphasized the idea of trespass to property as a personal wrong, and as an action to redress a personal wrong it was the natural instrument for the protection of hitherto unrecognized interests until finally those interests should come to be recognized as the basis of the action itself. This is believed to have been the history of trespass as a possessory action. In 1603 127 it was said that the lessor for a term would have case during the term but not trespass, "it being found merely on the possession," and in the following century we get the broad sweeping statements as to the possessory character of trespass to which we are accustomed but which cannot with accuracy be read into its past.128

Trespass to chattels could hardly help being influenced by the increasing importance attached to possession in trespass to land. In 1722, in Amory v. Delamirie,129 it was said that "the finder of a jewel, though he does not by such finding acquire an absolute property or ownership, yet he has such an property as will enable him to keep it against all but the rightful owner." As late as 1840,130 however, we find Baron Parke saying that it was unnecessary in the case at hand "to decide the question, whether, in an action of trespass or trover for personal property, the simple fact of possession, which is unquestionably evidence of title, is conclusive evi

125 LITTLETON, TENURES, § 77. Littleton probably did not write this passage. (Ed. by Wambaugh, p. 35.)

126 See I P. & M., 2 ed., 359.

127 Bedingfield v. Onslow, 3 Lev. 209 (1685). See supra, p. 517.

128 Willes, C. J.: "Trespass is a possessory action, founded merely on the possession, and it is not at all necessary that the right should come in question." Lambert v. Stroother, Willes 218, 221 (1740). Mansfield, C. J.: "Whoever is in possession, may maintain an action of trespass, against a wrongdoer to his possession." Harker v. Birkbeck, 3 Burr. 1556, 1563 (1764). Kenyon, C. J.: "Any possession is a legal possession against a wrongdoer." Graham v. Peat, 1 East 244, 246 (1801). See also Osway v. Bristow, 10 Mod. 37 (1711); Johnson v. Barret, Al. 10 (1670); and AMES, LECTURES, p. 227.

dence, and constitutes a complete title, in all cases, against a defendant who is a mere wrongdoer, as it does in actions of trespass to real property, and in those actions for injuries to personal chattels, in which the plaintiff had a special property in such chattels." Finally in the case of The Winkfield in 1901 131 the question which Baron Parke had raised was answered as Choke had argued it should be answered so long before and the postmaster-general was allowed to recover the full value of the thing bailed to him although he would not have been responsible for its loss.

STATE UNIVERSITY OF IOWA.

131 [1902] L. R. P. Div., 40.

Percy Bordwell.