Chapter VI: Front Matter (6)

Another case of conduct which is at the risk of the party without further knowledge than it necessarily imports, is the keeping of a tiger or bear, or other animal of a species commonly known to be ferocious. If such an animal escapes and does damage, the owner is liable simply on proof that he kept it. In this instance the comparative remoteness of the moment of choice in the line of causation from the effect complained of, will be particularly noticed. Ordinary cases of liability arise out of a choice which was the proximate cause of the harm upon which the action is founded. But here there is usually no question of negligence in guarding the beast. It is enough in most, if not in all cases, that the owner has chosen to keep it. Experience has shown that tigers and bears are alert to find means of escape, and that, if they escape, they are very certain to do harm of a serious nature. The possibility of a great danger has the same effect as the probability of a less one, and the law throws the risk of [155] the venture on the person who introduces the peril into the community.

This remoteness of the opportunity of choice goes far to show that this risk is thrown upon the owner for other reasons than the ordinary one of imprudent conduct. It has been suggested that the liability stood upon remote inadvertence. /1/ But the law does not forbid a man to keep a menagerie, or deem it in any way blameworthy. It has applied nearly as strict a rule to dealings which are even more clearly beneficial to the community than a show of wild beasts.

This seems to be one of those cases where the ground of liability is to be sought in policy coupled with tradition, rather than in any form of blameworthiness, or the existence of such a chance to avoid doing the harm as a man is usually allowed. But the fact that remote inadvertence has been suggested for an explanation illustrates what has been said about the difficulty of deciding whether a given rule is founded on special grounds, or has been worked out within the sphere of negligence, when once a special rule has been laid down.

It is further to be noticed that there is no question of the defendant's knowledge of the nature of tigers, although without that knowledge he cannot be said to have intelligently chosen to subject the community to danger. Here again even in the domain of knowledge the law applies its principle of averages. The fact that tigers and bears are dangerous is so generally known, that a man who keeps them is presumed to know their peculiarities. In other words, he does actually know that he has an animal with certain teeth, claws, and so forth, and he must find out the [156] rest of what an average member of the community would know, at his peril.

What is true as to damages in general done by ferocious wild beasts is true as to a particular class of damages done by domestic cattle, namely, trespasses upon another's land. This has been dealt with in former Lectures, and it is therefore needless to do more than to recall it here, and to call attention to the distinction based on experience and policy between damage which is and that which is not of a kind to be expected. Cattle generally stray and damage cultivated land when they get upon it. They only exceptionally hurt human beings.

I need not recur to the possible historical connection of either of these last forms of liability with the noxoe deditio, because, whether that origin is made out or not, the policy of the rule has been accepted as sound, and carried further in England within the last few years by the doctrine that a man who brings upon his land and keeps there anything likely to do mischief if it escape, must keep it in at his peril. /1/ The strictness of this principle will vary in different jurisdictions, as the balance varies between the advantages to the public and the dangers to individuals from the conduct in question. Danger of harm to others is not the only thing to be considered, as has been said already. The law allows some harms to be intentionally inflicted, and a fortiori some risks to be intentionally run. In some Western States a man is not required to keep his cattle fenced in. Some courts have refused to follow Rylands v. Fletcher. /2/ On the other hand, the principle has been applied to artificial [157] reservoirs of water, to cesspools, to accumulations of snow and ice upon a building by reason of the form of its roof, and to party walls. /1/

In these cases, as in that of ferocious animals, it is no excuse that the defendant did not know, and could not have found out, the weak point from which the dangerous object escaped. The period of choice was further back, and, although he was not to blame, he was bound at his peril to know that the object was a continual threat to his neighbors, and that is enough to throw the risk of the business on him.

I now pass to cases one degree more complex than those so far considered. In these there must be another concomitant circumstance known to the party in addition to those of which the knowledge is necessarily or practically proved by his conduct. The cases which naturally suggest themselves again concern animals. Experience as interpreted by the English law has shown that dogs, rams, and bulls are in general of a tame and mild nature, and that, if any one of them does by chance exhibit a tendency to bite, butt, or gore, it is an exceptional phenomenon. Hence it is not the law that a man keeps dogs, rams, bulls, and other like tame animals at his peril as to the personal damages which they may inflict, unless he knows or has notice that the particular animal kept by him has the abnormal tendency which they do sometimes show. The law has, however, been brought a little nearer to actual experience by statute in many jurisdictions.

Now let us go one step farther still. A man keeps an unbroken and unruly horse, knowing it to be so. That is not enough to throw the risk of its behavior on him. The [158] tendency of the known wildness is not dangerous generally, but only under particular circumstances. Add to keeping, the attempt to break the horse; still no danger to the public is disclosed. But if the place where the owner tries to break it is a crowded thoroughfare, the owner knows an additional circumstance which, according to common experience, makes this conduct dangerous, and therefore must take the risk of what harm may be done. /1/ On the other hand, if a man who was a good rider bought a horse with no appearance of vice and mounted it to ride home, there would be no such apparent danger as to make him answerable if the horse became unruly and did damage. /2/ Experience has measured the probabilities and draws the line between the two cases.

Whatever may be the true explanation of the rule applied to keeping tigers, or the principle of Rylands v. Fletcher, in the last cases we have entered the sphere of negligence, and, if we take a case lying somewhere between the two just stated, and add somewhat to the complexity of the circumstances, we shall find that both conduct and standard would probably be left without much discrimination to the jury, on the broad issue whether the defendant had acted as a prudent man would have done under the circumstances.

As to wrongs called malicious or intentional it is not necessary to mention the different classes a second time, and to find them a place in this series. As has been seen, they vary in the number of circumstances which must be known. Slander is conduct which is very generally at the risk of [159] the speaker, because, as charges of the kind with which it deals are manifestly detrimental, the questions which practically arise for the most part concern the defence of truth or privilege. Deceit requires more, but still simple facts. Statements do not threaten the harm in question unless they are made under such circumstances as to naturally lead to action, and are made on insufficient grounds.

It is not, however, without significance, that certain wrongs are described in language importing intent. The harm in such cases is most frequently done intentionally, if intent to cause a certain harm is shown, there need to prove knowledge of facts which made it that harm would follow. Moreover, it is often much easier to prove intent directly, than to prove the knowledge which would make it unnecessary.

The cases in which a man is treated as the responsible cause of a given harm, on the one hand, extend beyond those in which his conduct was chosen in actual contemplation of that result, and in which, therefore, he may be to have chosen to cause that harm; and, on the other hand, they do not extend to all instances where the damages would not have happened but for some remote election his part. Generally speaking, the choice will be found to have extended further than a simple act, and to co-ordinated acts into conduct. Very commonly it will have extended further still, to some external consequence. But generally, also, it will be found to have stopped short of the consequence complained of.

The question in each case is whether the actual choice, or, in other words, the actually contemplated result, was near enough to the remoter result complained of to throw the peril of it upon the actor.

[160] Many of the cases which have been put thus far are cases where the proximate cause of the loss was intended to be produced by the defendant. But it will be seen that the same result may be caused by a choice at different points. For instance, a man is sued for having caused his neighbor's house to burn down. The simplest case is, that he actually intended to burn it down. If so, the length of the chain of physical causes intervening is of no importance, and has no bearing on the case.

But the choice may have stopped one step farther back. The defendant may have intended to light a fire on his own land, and may not have intended to burn the house. Then the nature of the intervening and concomitant physical causes becomes of the highest importance. The question will be the degree of danger attending the contemplated (and therefore chosen) effect of the defendant's conduct under the circumstances known to him. If this was very plain and very great, as, for instance, if his conduct consisted in lighting stubble near a haystack close to the house, and if the manifest circumstances were that the house was of wood, the stubble very dry, and the wind in a dangerous quarter, the court would probably rule that he was liable. If the defendant lighted an ordinary fire in a fireplace in an adjoining house, having no knowledge that the fireplace was unsafely constructed, the court would probably rule that he was not liable. Midway, complicated and doubtful cases would go to the jury.

But the defendant may not even have intended to set the fire, and his conduct and intent may have been simply to fire a gun, or, remoter still, to walk across a room, in doing which he involuntarily upset a bottle of acid. So that cases may go to the jury by reason of the remoteness [161] of the choice in the series of events, as well as because of the complexity of the circumstances attending the act or conduct. The difference is, perhaps, rather dramatic than substantial.

But the philosophical analysis of every wrong begins by determining what the defendant has actually chosen, that is to say, what his voluntary act or conduct has been, and what consequences he has actually contemplated as flowing from them, and then goes on to determine what dangers attended either the conduct under the known circumstances, or its contemplated consequence under the contemplated circumstances.

Take a case like the glancing of Sir Walter Tyrrel's arrow. If an expert marksman contemplated that the arrow would hit a certain person, cadit qucoestio. If he contemplated that it would glance in the direction of another person, but contemplated no more than that, in order to judge of his liability we must go to the end of his fore-sight, and, assuming the foreseen event to happen, consider what the manifest danger was then. But if no such event was foreseen, the marksman must be judged by the circumstances known to him at the time of shooting.

The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without reference of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community.

But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feeling of revenge which leads to self-redress. It thus naturally adopted the vocabulary, [162] and in some degree the tests, of morals. But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is expected to equal at his peril.

In general, this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances. If there is danger that harm to another will follow, the act is generally wrong in the sense of the law.

But in some cases the defendant's conduct may not have been morally wrong, and yet he may have chosen to inflict the harm, as where he has acted in fear of his life. In such cases he will be liable, or not, according as the law makes moral blameworthiness, within the limits explained above, the ground of liability, or deems it sufficient if the defendant has had reasonable warning of danger before acting. This distinction, however, is generally unimportant, and the known tendency of the act under the known circumstances to do harm may be accepted as the general test of conduct.

The tendency of a given act to cause harm under given circumstances must be determined by experience. And experience either at first hand or through the voice of the jury is continually working out concrete rules, which in form are still more external and still more remote from a reference to the moral condition of the defendant, than even the test of the prudent man which makes the first stage of the division between law and morals. It does this in the domain [163] of wrongs described as intentional, as systematically as in those styled unintentional or negligent.

But while the law is thus continually adding to its specific rules, it does not adopt the coarse and impolitic principle that a man acts always at his peril. On the contrary, its concrete rules, as well as the general questions addressed to the jury, show that the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct. And it is certainly arguable that even a fair chance to avoid bringing harm to pass is not sufficient to throw upon a person the peril of his conduct, unless, judged by average standards, he is also to blame for what he does.

[164]

LECTURE V. -- 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 [165] 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 [166] 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. /1/

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 [167] 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. /1/ 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.

It is desirable to prove the native origin of our law of bailment, in order that, when theory comes to be considered, modern German opinion may not be valued at more than its true worth. The only existing theories on [168] the subject come from Germany. The German philosophers who have written upon law have known no other system than the Roman, and the German lawyers who have philosophized have been professors of Roman law. Some rules which we think clear are against what the German civilians would regard as first principles. To test the value of those principles, or at least to prevent the hasty assumption that they are universal, toward which there is a slight tendency among English writers, it is well to realize that we are dealing with a new system, of which philosophy has not yet taken account.

In the first place, we find an action to recover stolen property, which, like the Salic procedure, was based on possession, not on title. Bracton says that one may sue for his chattel as stolen, by the testimony of good men, and that it does not matter whether the thing thus taken was his own property or another's, provided it was in his custody. /1/

The point of especial importance, it will be remembered, was the oath. The oath of the probi homines would seem from the letter of Bracton to have been that the thing was lost (adirata), and this we are expressly told was the fact in a report of the year 1294. "Note that where a man's chattel is lost (ou la chosse de un home est endire), he may count that he [the finder] tortiously detains it, &c., and tortiously for this that whereas he lost the said thing on such a day, &c., he [the loser] came on such a day, &c. [169] (la vynt yl e en jour), and found it in the house of such an one, and told him, &c., and prayed him to restore the Sing, but that he would not restore it, &c., to his damage, &c.; and if he, &c. In this case, the demandant must prove (his own hand the twelfth) that he lost the thing." /1/

Assuming that as the first step we find a procedure kindred to that of the early German folk-laws, the more important question is whether we find any principles similar to those which have just been explained. One of these, it will be remembered, concerned wrongful transfer by the bailee. We find it laid down in the Year Books that, if I deliver goods to a bailee to keep for me, and he sells or gives them to a stranger, the property is vested in the stranger by the gift, and I cannot maintain trespass against him; but that I have a good remedy against the bailee by writ of detinue (for his failure to return the goods). /2/ These cases have been understood, and it would seem on the whole rightly, not merely to deny trespass to the bailor, but any action whatever. Modern writers have added, however, the characteristically modern qualification, that the purchase must be bona fide, and without notice. /3/ It may be answered, that the proposition extends to gifts as well as to sales by the bailee, that there is no such condition in the old books, and that it is contrary to the spirit of the strict doctrines of the common law to read it in. No lawyer needs to be told that, even so qualified, this is no [170] longer the law. /1/ The doctrine of the Year Books must be regarded as a survival from the primitive times when we have seen the same rule in force, unless we are prepared to believe that in the fifteenth century they had a nicer feeling for the rights of bona fide purchasers than at present.

The next point in logical order would be the degree of responsibility to which the bailee was held as towards his bailor who intrusted him. But for convenience I will consider first the explanation which was given of the bailee's right of action against third persons wrongfully taking the goods from his possession. The inverted explanation of Beaumanoir will be remembered, that the bailee could sue because he was answerable over, in place of the original rule, that he was answerable over so strictly because only he could sue. We find the same reasoning often repeated in the Year Books, and, indeed, from that day to this it has always been one of the commonplaces of the law. Thus Hankford, then a judge of the Common Bench, says (circa A.D. 1410), /2/ "If a stranger takes beasts in my custody, I shall have a writ of trespass against him, and shall recover the value of the beasts, because I am chargeable for the beasts to my bailor, who has the property." There are cases in which this reasoning was pushed to the conclusion, that if, by the terms of the trust, the bailee was not answerable for the goods if stolen, he would not have an action against the thief. /3/ The same explanation is repeated to this day. Thus we read in a well- known textbook, [171] "For the bailee being responsible to the bailor, if the goods be lost or damaged by negligence, or if he do not deliver them up on lawful demand, it is therefore reasonable that he should have a right of action," &c. /1/ In general, nowadays, a borrower or hirer of property is not answerable if it is taken from him against his will, and if the reason offered were a true one, it would follow that, as he was not answerable over, he could not sue the wrong-doer. It would only be necessary for the wrong-doer to commit a wrong so gross as to free the bailee from responsibility, in order to deprive him of his right of action. The truth is, that any person in possession, whether intrusted and answerable over or not, a finder of property as well as a bailee, can sue any one except the true owner for interfering with his possession, as will be shown more particularly at the end of the next Lecture.

The bailor also obtained a right of action against the wrong-doer at a pretty early date. It is laid down by counsel in 48 Edward III., /2/ in an action of trespass by an agister of cattle, that, "in this case, he who has the property may have a writ of trespass, and he who has the custody another writ of trespass. Persay: Sir, it is true. But [172] 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." /1/ And this seems to have been Rolle's understanding in the passage usually relied on by modern courts. /2/

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. /3/ 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. /4/ Even thus [173] the right to maintain trespass is now denied where bailee has the exclusive right to the goods by lease or lien; /1/ although the doctrine has been repeated with reference to bailments terminable at the pleasure of the bailor. /2/ 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, /3/ 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; /4/ 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 [174] his possession, the bailor has the same actions. /1/ A part 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. /2/ 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 [175] explained, and which in the modern form of the an anomaly. /1/ The reason usually given is, that a right of immediate possession is sufficient,--a reason which the notion that the bailor is actually possessed.

The point which is essential to understanding the common-law theory of possession is now established: that all bailees from time immemorial have been regarded by the English law as possessors, and entitled to the possessory remedies. It is not strictly necessary to go on and complete the proof that our law of bailment is of pure German descent. But, apart from curiosity, the doctrine remaining to be discussed has had such important influence upon the law of the present day, that I shall follow it out with some care. That doctrine was the absolute responsibility of the bailee to the bailor, if the goods were wrongfully taken from him. /2/

The early text-writers are not as instructive as might be hoped, owing to the influence of the Roman law. Glanvil, however, says in terms that, if a borrowed thing be destroyed or lost in any way while in the borrower's custody, he is absolutely bound to return a reasonable price. /3/ So does Bracton, who partially repeats but modifies the language of Justinian as to commodatum, depositum, and pignus; /4/ and as to the duty of the hirer to use the care of a diligentissimus paterfamilias. /5/

[176] The language and decisions of the courts are perfectly clear; and there we find the German tradition kept alive for several centuries. I begin with the time of Edward II., about 1315. In detinue the plea was that the plaintiff delivered the defendant a chest locked with his key, that the chattels were in the chest, and that they were taken from the defendant together with his own goods by robbery. The replication was that the goods were delivered to the defendant out of enclosure, and Fitzherbert says the party was driven to that issue; /1/ which implies that, if not in the chest, but in the defendant's custody, he was liable. Lord Holt, in Coggs v. Bernard, /2/ denies that the chest would make any difference; but the old books agree that there is no delivery if the goods are under lock and key; and this is the origin of the distinction as to carriers breaking bulk in modern criminal law. /3/ In the reign of Edward III., /4/ the case of a pledge came up, which seems always to have been regarded as a special bailment to keep as one's own goods. The defence was, that the goods were stolen with the defendant's own. The plaintiff was driven to reply a tender before the theft, which would have put an end to the pledge, and left the defendant a general bailee. /5/ Issue was taken thereon, which confirms the other cases, by implying that in that event the defendant would be liable.

Next I take a case of the time of Henry VI., A.D. 1455. /6/ [177] was an action of debt against the Marshal of the Marshalsea, or jailer of the King's Bench prison, for an escape of a prisoner. Jailers in charge of prisoners were governed by the same law as bailees in charge of cattle. The body of the prisoner was delivered to the jailer to keep under the same liabilities that cows or goods might have been. /1/ He set up in defence that enemies of the king broke into the prison and carried off the prisoner, against the will of the defendant. The question was whether this was a good defence. The court said that, if alien enemies of the king, for instance the French, released the prisoner, or perhaps if the burning of the prison gave him a chance to escape, the excuse would be good, "because then [the defendant] has remedy against no one." But if subjects of the king broke the prison, the defendant would be liable, for they are not enemies, but traitors, and then, it is implied, the defendant would have a right of action against them, and therefore would himself be answerable. In this case the court got very near to the original ground of liability, and distinguished accordingly. The person intrusted was liable in those cases where he had a remedy over against the wrong-doer (and in which, originally, he was the only person who had such a remedy); and, on the other hand, his liability, being founded on that circumstance, ceased where the remedy ceased. The jailer could not sue the soldiers of an invading army of Frenchmen; but in theory he could sue any British subject who carried off the prisoner, however little it was likely that he would get much satisfaction in that way.

A few years later the law is stated the same way by the famous Littleton. He says that, if goods are delivered to [178] a man, he shall have an action of trespass if they are carried off, for he is chargeable over. /1/ That is, he is bound to make the loss good to the party who intrusted him.

In 9 Edward IV., /2/ Danby says if a bailee received goods to keep as his proper goods, then robbery shall excuse him, otherwise not. Again, in a later case /3/ robbery is said not to be an excuse. There may have been some hesitation as to robbery when the robber was unknown, and so the bailee had no remedy over, /4/ or even as to robbery generally, on the ground that by reason of the felony the bailee could not go against either the robber's body or his estate; for the one was hanged and the other forfeited. /5/ But there is not a shadow of doubt that the bailee was not excused by an ordinary wrongful taking. "If the goods are taken by a trespasser, of whom the bailee has conusance, he shall be chargeable to his bailor, and shall have his action over against his trespasser." /6/ The same point was touched in other passages of the Year Books, /7/ and the rule of law is clearly implied by the reason which was given for the bailee's right to sue in the cases cited above.

The principle was directly decided in accordance with the ancient law in the famous case of Southcote v. Bennet. /8/ This was detinue of goods delivered to the defendant to [179] keep safely. The defendant confessed the delivery, and set up he was robbed of the goods by J.S. "And, after argument at the bar, Gawdy and Clench, ceteris absentibus, held that the plaintiff ought to recover, because it was not a special bailment; that the defendant accepted them to keep as his proper goods, and not otherwise; but it is a delivery, which chargeth him to keep them at his peril. And it is not any plea in a detinue to say that he was robbed by one such; for he hath his remedy over by trespass, or appeal, to have them again." The above from Croke's report implies, what Lord Coke expressly says, that "to be kept, and to be kept safe, is all one," and both reports agree that the obligation was founded on the delivery alone. Croke's report confirms the caution which Lord Coke adds to his report: "Note, reader, it is good policy for him who takes any goods to keep, to take them in special manner, scil. to keep them as he keeps his own goods,... or if they happen to be stolen or purloined, that he shall not be answerable for them; for he who accepted them ought to take them in such or the like manner, or otherwise he may be charged by his general acceptance."

Down to this time, at least, it was clear law that, if a person accepted the possession of goods to keep for another even as a favor, and lost them by wrongful taking, wholly without his fault, he was bound to make good the loss, unless when he took possession he expressly stipulated against such a responsibility. The attempts of Lord Holt in Coggs v. Bernard, and of Sir William Jones in his book on Bailments, to show that Southcote v. Bennet was not sustained by authority, were futile, as any one who will Study the Year Books for himself may see. The same principle was laid down seven years before by Peryam, [180] C. B., in Drake v. Royman, /1/ and Southcote's Case was followed as a leading precedent without question for a hundred years.

Thus the circle of analogies between the English and the early German law is complete. There is the same procedure for lost property, turning on the single question whether the plaintiff had lost possession against his will; the same principle that, if the person intrusted with the property parted with it to another, the owner could not recover it, but must get his indemnity from his bailee; the same inverted explanation, that the bailee could sue because he was answerable over, but the substance of the true doctrine in the rule that when he had no remedy he was not answerable; and, finally, the same absolute responsibility for loss, even when happening without fault on the part of the person intrusted. The last and most important of these principles is seen in force as late as the reign of Queen Elizabeth. We have now to follow its later fortunes.

A common carrier is liable for goods which are stolen from him, or otherwise lost from his charge except by the act of God or the public enemy. Two notions have been entertained with regard to the source of this rule: one, that it was borrowed from the Roman law; /2/ the other, that it was introduced by custom, as an exception to the general law of bailment, in the reigns of Elizabeth and James I. /3/

I shall try to show that both these notions are wrong, that this strict responsibility is a fragmentary survival from the general law of bailment which I have just explained; [181] the modifications which the old law has undergone were due in part to a confusion of ideas which came the displacement of detinue by the action on the case, in part to conceptions of public policy which were read into the precedents by Lord Holt, and in part to still later conceptions of policy which have been read into the reasonings of Lord Holt by later judges.

Southcote's Case was decided in the forty-third year of Queen Elizabeth (A.D. 1601). I think the first mention of a carrier, pertinent to the question, occurs in Woodlife's Case, /1/ decided four or five years earlier (38 or 39 Eliz., A.D. 1596 or 1597). It was an action of account for merchandise delivered to the defendant, it would seem as a factor ("pur merchandizer")--clearly not as a carrier. Plea, robbery at sea with defendant's own goods. Gawdy, one of the judges who decided Southcote's Case, thought the plea bad; but Popham, C. J. said that, though it would not be a good plea for a carrier because he is paid for his carriage, there was a difference in this respect between carriers and other servants and factors.

This is repeated in Southcote's Case, and appears to involve a double distinction,--first between paid and unpaid bailees, next between bailees and servants. If the defendant was a servant not having control over the goods, he might not fall within the law of bailment, and factors are treated on the footing of servants in the early law.

The other diversity marked the entrance of the doctrine of consideration into the law of bailment. Consideration originally meant quid pro quo, as will be explained hereafter. It was thus dealt with in Doctor and Student /2/ when the principle was still young. Chief Justice [183] Popham probably borrowed his distinction between paid and unpaid bailees from that work, where common carriers are mentioned as an example of the former class. A little earlier, reward made no difference. /1/

But in Woodlife's Case, in reply to what the Chief Justice had said, Gawdy cited the case of the Marshal of the King's Bench, /2/ stated above, whereupon Popham fell back on the old distinction that the jailer had a remedy over against the rebels, but that there was no remedy over in the case at bar.

The other cases relied on were some of those on general bailment collected above; the same authorities, in short, on which Southcote's Case was founded. The principle adopted was the same as in Southcote's Case, subject only to the question whether the defendant fell within it. Nothing was said of any custom of the realm, or ever had been in any reported case before this time; and I believe this to be the first instance in which carriers are in any way distinguished from any other class of persons intrusted with goods. There is no hint of any special obligation peculiar to them in the old books; and it certainly is not true, that this case introduced one. It will be noticed, with reference to what follows, that Popham does not speak of common carriers, but of carriers.

Next came Southcote's Case /3/ (43 Eliz., A.D. 1601), which presented the old law pure and simple, irrespective of reward or any modern innovation. In this and the earlier instances of loss by theft, the action was detinue, counting, we may presume, simply on a delivery and wrongful detainer.

[183] But about this time important changes took place in the procedure usually adopted, which must be explained. If the chattel could be returned in specie, detinue afforded no satisfaction for damage which it might have suffered through the bailee's neglect. /1/ The natural remedy for such damage was the action on the case. But before this could be made entirely satisfactory, there were certain difficulties to be overcome. The neglect which occasioned the damage might be a mere omission, and what was there akin to trespass in a nonfeasance to sustain the analogy upon which trespass on the case was founded? Moreover, to charge a man for not acting, you must show that it was his duty to act. As pleadings were formerly construed, it would not have been enough to allege that the plaintiff's goods were damaged by the defendant's negligence. /2/ These troubles had been got over by the well-known words, super se assumpsit, which will be explained later. Assumpsit did not for a long time become an independent action of contract, and the allegation was simply the inducement to an action of tort. The ground of liability was that the defendant had started upon the undertaking, so that his negligent omission, which let in the damage, could be connected with his acts as a part of his dealing with the thing. /3/ We shall find Lord Holt recognizing this original purport of assumpsit when we come to Coggs v. Bernard. Of course it was not confined to cases of bailment.

But there was another way besides this by which the defendant could be charged with a duty and made liable [184] in case, and which, although less familiar to lawyers, has a special bearing on the law of carriers in later times. If damage had been done or occasioned by the act or omission of the defendant in the pursuit of some of the more common callings, such as that of a farrier, it seems that the action could be maintained, without laying an assumpsit, on the allegation that he was a "common" farrier. /1/ The latter principle was also wholly independent of bailment. It expressed the general obligation of those exercising a public or "common" business to practise their art on demand, and show skill in it. "For," as Fitzherbert says, "it is the duty of every artificer to exercise his art rightly and truly as he ought." /2/

When it had thus been established that case would lie for damage when occasioned by the omission, as well as when caused by the act, of the defendant, there was no reason for denying it, even if the negligent custody had resulted in the destruction of the property. /3/ From this it was but a step to extend the same form of action to all cases of loss by a bailee, and so avoid the defendant's right to wage his law. Detinue, the primitive remedy, retained that mark of primitive procedure. The last extension was made about the time of Southcote's Case. /4/ But when the [185] same form of action thus came to be used alike for damage or destruction by the bailee's neglect and for loss by a wrong-doer against whom the bailee had a remedy over, a source was opened for confusion with regard to the foundation and nature of the defendant's duty.

In truth, there were two sets of duties,--one not peculiar to bailees, arising from the assumpsit or public calling of the defendant, as just explained; the other, the ancient obligation, peculiar to them as such, of which Southcote's Case was an example. But any obligation of a bailee might be conceived of as part of a contract of bailment, after assumpsit had become appropriated to contract, the doctrine of consideration had been developed, (both of which had happened in Lord Coke's time,) it seemed unnecessary to distinguish nicely between the two sets of duties just mentioned, provided a consideration and special promise could be alleged. Furthermore, as formerly the defendant's public calling had the same effect as an assumpsit for the purpose of charging him in tort, it seems now to have been thought an equally good substitute for a special promise, in order to charge him in assumpsit. In Rogers v. Head, /1/ the argument was, that to charge one in assumpsit you must show either his public calling at the time of the delivery, or a special promise on sufficient consideration. This argument assumes that a bailee who received goods in the course of a public employment, [186] for instance as a common carrier, could be charged in this form of action for a breach of either of the above sets of duties, by alleging either his public calling or his reward and a special promise. It seems to have been admitted, as was repeatedly decided before and since that case, that one who was not a common carrier could have been charged for non-delivery in a special action; that is, in case as distinguished from assumpsit.