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