have been stolen out of his charge together with his own things, or without them, and that the keeper of them and the appellor has entered into the payment of so much money towards his lord." 76 In support of what he says, Bracton cites two cases, one of which we have in his Note-Book," and gives two illustrative counts. The great interest of the passage lies in the requirement of something more than custody to support the appeals. That is a matter for subsequent consideration, but in so far as Bracton would have denied the appeals to the custodian, it would seem that he must have allowed it to the owner. It is evident that the case Bracton had especially in mind in these passages as to the appeal of robbery was that of the servant or the villein who was acting for his lord,78 and the frequency with which the case of the servant or villein occurs in the case law of the time 79 makes it likely that the villein or servant was the one primarily in mind in the other and briefer passage from him and in those from Britton. In later times, too, it is the servant who is cited as having the appeals rather than the bailee.80 We need not on that account, however, restrict the application of these passages to the servant or villein. It was long before custody was to be especially appropriated to the servant.81 Bracton expressly includes the case where no lord is involved, 82 and writers with one accord have used these passages to show that the bailee had the appeals.83 But if it is true that it was the case of the servant that was especially in mind where property and custody were mentioned as the basis for the appeals, it tends to confirm that intimate connection between the two actions for the bailor and bailee and the appeal by both master and servant which is evidenced by the remark of counsel in 1344.84 The cases we have of that double appeal are cases where the master appealed first and the servant after him,85 but where the servant had agreed to be responsible for the goods it seems likely that two separate ap 76 Twiss, fol. 146. 77 Pl. 1664; supra, p. 510, n. 73. 78 See also MAITLAND, BRACTON & Azo, p. 183. 80 Y. B. 18 & 19 Edw. III, 508; Y. B. 2 Edw. IV, 15-7, per Littleton; Staunf. P. C. 60 a. 81 Supra, p. 502. 82 Supra, p. 511. 83 HOLMES, COMMON LAW, p. 168; Ames, "History of Trover," 3 SELECT Essays, 424; 2 P. & M., 2 ed., 170. 4 Supra, p. 508. 85 See AMES, 3 SELECT ESSAYS, 425, n. 7. peals must have been possible, for it does not seem likely that such an agreement could have been pleaded to defeat the appeal of the master. One thing that makes it likely that the appeals of robbery or larceny may have been allowed to more than one person was their highly criminal character.86 In an age when the criminal law was not contrary to but an expression of the spirit of the times, the increased importance of the criminal element in the appeals must have inclined the judges not to be overparticular as to the interest of the prosecutor when his interposition was not an impertinence. With all this, if the question had come before the judges of the 1200's it is possible that they would have denied the appeals to the bailor; but they do not seem to have passed on such a question and, when trespass came in, the groundwork was already laid for giving the action to bailor and bailee alike. How well the ground had been prepared 87 for Cavendish, C. J.'s, statement in 1374 giving trespass to the bailor on the basis of his property is evident from the unquestioned acceptance it received.88 And, as we have seen, property was not divested by a bailment for a term,89 nor at least in somewhat later days by a pledge.90 Judges were not willing to give trespass to the bailor against one who took by the tortious delivery of the bailee, for it was hard for them to find in such a case any trespass vi et armis,91 but some of them at least 86 This is also a reason given by Professor Ames for giving the action to the bailee. LECTURES, p. 221. 87 Professor Ames (3 SELECT ESSAYS, 424) cites Y. B. 16 Edw. II, 490, as evidence that the right of the bailor to trespass had already been recognized in 1323. This is probably an inference from Mutford and Herle, JJ.'s, distinction between a taking by a third party from the bailee and a devant en sa main. See AMES, LECTURES, p. 74, n. 1. Professor Ames, however, assumes that this was applicable only to the bailment at will. 3 SELECT ESSAYS, 424. 88 Y. B. 22 EDW. IV, 5-16; Y. B. 21 HEN. VII, 39-49; Y. B. 20 HEN. VII, 5-15; Y. B. 3 HEN. VII, 4-16; Y. B. 6 HEN. VII, 12-9; Y. B. 16 HEN. VII, 2–7; Y. B. 20 EDW. IV, 11-10; Y. B. 2 EDW. IV, 25-26; Y. B 49 HEN. VI, 18-23; 2 ROLLE Abr. 569, pl. 5; Coм. DIG. TRESPASS (B 4); BACON, Abr. Trespass (C 2); Parke, B., in Manders v. Williams, 4 Ex. 239 (1849); HOLMES, COMMON LAW, 171; Wms. Saunders, 47 a. 89 Supra, p. 3, and see also what is said by Brian, C. J., Y. B. 17 Edw. IV, 2−2, translated in Blackburn, Sale (Can. ed.), p. 286. 90 Fleming, C. J., in Ratcliff v. Davis, Yelverton 178, Bulstrode 29; Dodderidge, J., 3 Bulstrode, 17; Mores v. Conham, Owen 123. 91 Y. B. 21 HEN. VII, 39-49; Y. B. 16 HEN. VII, 2–7; Y. B. 2 EDW. IV, 5-9; Ames, "Disseisin of Chattels," 3 SELECT ESSAYS, 550; 2 P. & M., 2 ed., 172. 92 were willing to give it to him when without any delivery the third party took with the consent which the bailee had no right to give." And they allowed the action to the owner where the delivery to the third party was made by a servant. 93 The distinction between the servant and the bailee was gradually coming to be drawn. Brooke's reason 94 for denying trespass against the second trespasser that the property had been changed by the tort could not have been used against the bailor for property was not changed by the bailment, and that Brian, C. J.'s, reason in the same case 95 — that the second trespasser was not a trespasser as to the one from whom the property had first been taken-was not applied against the bailor is more easily understood when we remember that it was apparently through the case of the master and servant that the law worked to that of the bailor and bailee.96 The argument from the case of master and servant was used long afterwards to support the denial of trespass and trover to the bailor for a term,97 but that was when the necessity of finding a violation of the possession of the plaintiff had become much more pronounced than it was in the earlier law. 98 Mr. Justice Wright accepted the modification in the law wrought by Ward v. Macauley in 1791 and Gordon v. Harper in 1796 denying the bailor for a term of trespass,99 but, if in the following statement the words "under a revocable bailment" be omitted and the "right to possession" be changed to "right of property," it is believed to give a correct statement of the law as it existed before those cases were decided. "A right in one person to sue for a trespass done to another's possession . . . exists whenever the person whose actual possession was violated held as servant, agent or bailee under a revocable bailment for or under or on behalf of the person having the right to possession.” 100 Constructive possession in the later law came to be identified with right to possession,101 although as Mr. Justice Wright shows this 92 See citations in n. 88, supra. 93 Y. B. 2 EDW. IV, 4-9; POLLOCK & WRIGHT, p. 153, n. 1. 94 Supra, p. 383. 95 Ibid. 96 Supra, p. 512. 97 Ward v. Macauley, 4 T. R. 489, by Buller, J.; Gordon v. Harper, 7 T. R. 9, by Grose, J. 98 See infra, p. 518. This will be treated at greater length in a subsequent article. 99 See notes 97 and 98, supra. 100 POLLOCK & WRIGHT, POSSESSION, p. 145. 101 Gordon v. Harper, 7 T. R. 9 (1796). was by no means accurate even after Gordon v. Harper.102 In the earlier law the judges do not seem to have felt the need of working out a constructive possession to support the right of the bailor to trespass, but there was a class of cases in which a constructive possession had to be worked out, and there it was worked out, not on the ground of right to possession, for such a ground would have given a right against the second trespasser,103 but on the ground of property, and if in the earlier law need had been felt for it, this constructive possession could have been used to support the bailor's right. In 1323, in course of the discussion in an action of detinue it was said 104 that if, after the death of an ancestor, a stranger took the title deeds before the heir had them, the latter would have an action of trespass, and on this being denied "because he was never in possession and Quare vi et armis does not lie except of a thing taken from another's 105 possession," it was replied "that after the death of his father he has possession at once although he does not have them in his hands." This rule that the heir might have trespass for title deeds before seizure, though he was not entitled to trespass for an injury to the land until entry, marked an important difference between trespass to realty and trespass to personalty, and this found expression in a case in 1522, where it was said: "There is a diversity between a thing local and a thing transitory, for of those which are transitory one will be in possession without seizure as, if my tenant dies, his heir under age, I will have ravishment of ward without any seizure, but not an ejectment from wardship as to the land for that is local, and so if I give you my black horse which is in London now against any stranger the possession is in you and if any take him you will have an action of trespass for it is transitory." 106 This and an earlier case in 2 EDW. IV 107 were the foundation for Brooke's statement that "by the gift the property is in him, and 102 P. & W., Pt. III, ch. 1, 78. 103 Ibid. 104 16 EDW. II, 490. 105 Professor Ames translates dautri as "the plaintiffs" (LECTURES, p. 74, n. 1). It would seem, however, that the point made was that there could be no trespass vi et armis where the goods had not been taken from the possession of another and that here the heir had never had possession, so that it was not shown that any trespass vi et armis had been committed. 106 Y. B. 14 HEN. VIII, 23 b. 107 Fol. 25, pl. 26. seems to be the law This was applied in then the law adjudges possession . . . and it for goods are transitory while land is local." 108 Hudson v. Hudson 109 to the case of the executor, where it was said that "property draws with it the actual possession of goods." Williams, in his notes to Saunders' Reports,110 gives other examples illustrating the same principle, but he wrote after Gordon v. Harper,111 and at the end of the paragraph cites that case as showing that there must be a right of possession as well as of property. If, as seems likely, there was a time when delivery of seisin was as important in the transfer of a chattel as it was in the transfer of land,112 we should have expected the actual seizure of the chattel to have been as much a prerequisite to trepass as an actual entry on the land, but the remedies for chattels were very much more limited than those for land, and the judges were not overparticular as to the one bringing trespass provided there had been an unlawful taking.113 They harmonized the law of realty and personalty, however, by this fiction that the right of property in the case of personal chattels carried with it possession. It is not surprising that the lawyers were less troubled about the possession of the bailor than they were about that of the heir or executor or vendee. It was more difficult to acquire possession than to lose it.114 And where the goods had been taken from the bailee there was without doubt a trespass vi et armis, whoever might be entitled to sue for it. There was nothing in the writ to indicate that such violence as the writ called for had to be done to the plaintiff himself and, although the idea appeared at an early time that trespass to property was an extension of the protection thrown round the person,115 this seems to have been applied where the person from whose possession the property was taken held not under or on behalf of 116 but adversely to the plaintiff.117 108 BRO. ABR. TRES. 303. 109 Latch, 214, 263. 110 2 Wms. Saunders, 47 a. 111 Supra, p. 515. See also infra, p. 518. 112 2 P. & M., 2 ed., 180; Maitland, 2 LAW QUART. REV. 496 n.; Cochrane v. Moore, 25 Q. B. D. 57 (1890). 113 For abundant illustrations of this, see POLLOCK & WRIGHT, Pt. III, ch. 1, 5, 8. 114 See HOLMES, COMMON LAW, p. 235 et seq.; POLLOCK & WRIGHT, POSSESSION, p. 18. 115 Supra, p. 383. 116 Supra, p. 504. 117 See Ames, "History of Trover," 3 SELECT ESSAYS, 424, n. 5. |