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