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.”