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maintainable : and in moving for the rule the case of Gordon v. Harper, 7 Term Rep. 9, was cited and relied upon, to show that the action did not lie, inasmuch as the plaintiff had not the right of possession as well as the property of the goods in him at the time of the taking and supposed conversion, by reason that the right of possession was then in Mrs. East under the general contract of hiring.

Park, and Marryat, showed cause against the rule.
Garrow, and Reader, contra.

LORD ELLENBOROUGH, C. J. This case has been presented during parts of the argument in different points of view from what it appeared in at the trial. In order to maintain trover the plaintiff must bave a present right of property in the goods; the first question therefore is whether the plaintiff had put the right of property out of him by a valid contract for the hire of the goods with Mrs. East? If the contract were for a year, it would put the property out of him for that time; or if, according to Mrs. East's evidence, the hiring were only general, without determining either price or time, it would operate as a contract for a reasonable price, so long as both parties pleased ; and still the property would be out of him for the time if it were a valid contract. That brings it to the question whether Mrs. East, being a married woman, could make a valid contract for the hire of the plaintiff's goods. Now a contract to be valid must bind both parties ; but she being married, it could not bind her. It is said, however, that it would bind her husband, being for necessaries for her use; but I know of no case where a husband has been held liable upon a contract of this sort made by his wife living apart from him, as for necessaries; and no such case was made before the jury. Then has he confirmed the contract? There is no such evidence. The case therefore stands upon her own contract unconfirmed, which is liable to the infirmity of her being a married woman. It was argued on the other hand, that supposing the contract was good, the notice given by the plaintiff to the sheriff's officer would have determined it: but to that I cannot accede ; for to determine a contract, which is determinable upon notice, the notice should be brought home to the other contracting party ; and it is not enough that it should be given to one acting adversely under some supposed derivative title in the law from that party. The notice therefore which was given to the sheriff's officer would not alter the case. The conclusion is that this action lies, because the plaintiff had the present right of property in him at the time, inasmuch as the married woman to whom he sent the goods was not capable of contracting with him for the bire, so as to take the property out of him.

Grose J. I am of the same opinion. It is argued that the plaintiff had not a vested property in the goods in him at the time; but it is not shown who had any property in them adverse to him. The property was clearly once in him, and nothing is shown to devest it out of him.

LE BLANC J. This is a mere question of law. The plaintiff cannot recover unless he can show a present right of property. But it is clear that originally the property was in him; and if he had parted with it, somebody else must have it. It is contended that either Mrs. East or her husband took it. But she being a married woman could make no contract: and as to her husband, it is said that he was bound for nec. essaries for her ; but these are not found to be necessaries. Then as to his adoption of the contract, it does not appear that he was even cognizant of it, and therefore had not adopted it. If then the property had not passed to another, it must have remained in the plaintiff. This distinguishes the present from the former case, where the property had passed from the original owner to another, and was out of the plaintiff who brought the action.

Rule discharged.

I "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., 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 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

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 limited, the right to maintain trespass is now denied where the 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 anthority 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. A part of this confusion has already been explained, and the rest will be


G. Actions of Bailee against Third Person.


King's BENCH. 1374.

[Reported Year Book, 48 Edw. III. 20 pl. 8.) A MAN brought a writ of trespass in the King's Bench for certain oxen and cows taken with force and arms in a certain vill.

Hasty. Where you bring this writ of trespass for your beasts, ut supra, we say that the said beasts, at the time of the taking, belonged to Walter Wich', of W., and that Walter W., whose the beasts were, sued a replevin in the County; and thereupon the delivery was made, and then [the suit] was removed into the Common Bench, and we say against you, that we took the said beasts for rent arrear, issuing from the same place as to which he complains (and he showed for what term), and we demand judgment if you can take such beasts as belong to others than yourselves.

Ham. To this we say that Walter W. bailed to us the said beasts to agist on our land, so they were in our keeping, and an action for them given to us. Wherefore we demand judgment whether our writ is not good.

Hasty. And since you have confessed property of the beasts in Walter W., and also that the said beasts were in your custody, you may have an action of trespass by another writ, making mention of the fact that they were in your custody, and not by a general writ wherefore, &c. CAVENDISH, (C. J.] There is no other writ in the Chancery in the

Sed vide, that for executors the writ will be in custodia sua


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 has been explained, and which in the modern form of the rule is an anomaly. The reason usually given is, that a right of immediate possession is sufficient, reason which excludes the notion that the bailor is actually possessed.” Holmes, Com. Law, 171-175.

existentia. And I say in this case, he who has the property can have a writ of trespass, and he who has the custody, another writ of trespass.

Percy. Sir, it is true, but he who shall recover first will oust the other of his action; and so it will be in several cases, as if tenant by elegit is ousted, both shall have an assize, and if one recovers first, the writ of the other is abated, sic hic. And afterwards the issue was laken whether they were agisted on the plaintiff's land or not. Et sic ad patriam.

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[Reported Year Book, 11 Hen. IV. 17, pl. 39.} A man sued a general replevin for his cattle wrongfully taken.

Trem.' said that the cattle were another's, and not the plaintiff's, and he made an avowry for a return.

Skrene. He whom you allege to have the property in the cattle lent the cattle to us to manure and improve our land, by force whereof they were in our custody, and we demand judgment, and we pray damages.

Trem.' And we demand judgment, because you knew the property was in another, as we have alleged, and we pray for a return.

COLEPEPER [J]. He supports his action well enough on the special matter which he has shown, why do you demur?

Trem.' He ought to have alleged in his writ de averiis in custodia sur existentibus.

Skrene. It is at our election to do either the one or the other.

THIRNING [C. J.] Plead no more about this matter, for against you he has property, &c.?

1 “HANKFORD (J.] If a stranger who has no right 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 charged with the beasts against him who has bailed them to me, and who has the property; but here the case is wholly otherwise, quod Hill et COLEPEPER (JJ.] concesserunt. Et nota that COLEPEPER (J.) said in this case that a man shall have a writ de averiis in custodia sua existentibus. Sed vide that those of Chancery will not grant such a writ in custodia sua.Year Book, 11 Hen. IV. 24, pl. 46 (1409).

“On the evidence, I admit it is questionable whether the plaintiff had a sufficient right of property. But the error, if any, lay with the jury. They were instructed that a mere servant, who, as such, has only the charge or custody of goods, has not a special property in them, but that the property remains in the master, and the action for their recovery must be brought in his name; and that unless the goods in question had been delivered by Weir to the plaintiff as a bailee, and under a particular responsibility, this action could not be sustained. This was a direction as favorable to the defendant as the law would warrant. The judge left the application of the rule to the jury, whose business it was to apply it to the facts." Per Gibson, J., in Harris v. Smith, 3 S. & R. 20, 23.

See Tuthill v. Wheeler, 6 Barb. 362.


KING's BENCH. 1817.

(Reported 1 B. & Ald. 59.) CASE against the defendant for not repairing the fences of a close adjoining that of the plaintiff, whereby a certain horse of plaintiff, feeding in the plaintiff's close, through the defects and insufficiencies of the fences, fell into the defendant's close and was killed. Plea, not guilty. At the trial before Richards, Baron, at the last Spring Assizes for the county of Nottingham, it appeared that the horse was the property of the plaintiff's brother, who sent it to him on the night before the accident; that the plaintiff put it into his stable for a short time, and then turned it, after dark, into his close, where his own cattle usually grazed, and that on the following morning the horse was found dead in the close of the defendant, having fallen from the one to the other. The liability to repair was admitted. Defence, that the plaintiff had not such a property in the horse as to entitle him to maintain this action. The learned Judge, however, suffered the cause to proceed, and the jury found a verdict for the plaintiff. In Easter Term last a rule was obtained by Reader for setting aside this verdict and having a new trial, against which cause was now shown by

Copley, Serjt.
Reader, contra.

LORD ELLENBOROUGH, C. J. The plaintiff certainly was a gratuitous bailee, but as such he owes it to the owner of the horse not to put it into a dangerous pasture; and if he did not exercise a proper degree of care he would be liable for any damage which the horse might sustain. Perhaps the horse might have been safe during the daylight, but here he turns it into a pasture to which it was unused after dark. That is a degree of negligence sufficient to render him liable: such liability is sufficient to enable the plaintiff to maintain this action ; he has an interest in the integrity and safety of the animal, and may sue for a damage done to that interest.

BAYLEY, J. I am entirely of the same opinion : the plaintiff by receiving the horse becomes accountable. Case is a possessory action ; the declaration merely states that it was the horse of the plaintiff'; if this had been an indictment, might it not have been described as the horse of the plaintiff, as in the common case of goods stolen from a washerwoman?

ABBOTT, J. I think that the same possession which would enable the plaintiff to maintain trespass, would enable him to maintain this action.

HOLROYD, J. The plaintiff was entitled to the benefit of his field not

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