ndant might swear； if he could； to facts which would disprove the claimant's loss。
This procedure was in truth a legal procedure； but it depended for its beginning and for its execution on the party making the claim。 From its 〃executive〃 nature； it could hardly have been started by any other than the person on the spot； in whose keeping the cattle were。 The oath was to the effect that the party had lost possession against his will。 But if all that a man had to swear was that he had lost possession against his will； it is a natural conclusion that the right to take the oath and make use of ＇166＇ the procedure depended on possession； and not on ownership。 Possession was not merely sufficient； but it was essential。 Only he who was in possession could say that he had lost the property against his will； just as only he who was on the spot could follow the cattle。 /1/
This； so far as known； was the one means afforded by the early law of our race for the recovery of property lost against one's will。 So that； in a word； this procedure； modelled on the self…redress natural to the case which gave rise to it； was the only remedy； was confined to the man in possession； and was not open to the owner unless he was that man。
To this primitive condition of society has been traced a rule which maintained itself to later times and a more civilized procedure； that； if chattels were intrusted by their owner to another person； the bailee； and not the bailor； was the proper party to sue for their wrongful appropriation by a third。 It followed that if the bailee； or person ＇167＇ so intrusted； sold or gave the goods in his charge to another； the owner could only look to the bailee； and could not sue the stranger； not from any principle in favor of trade； intended to protect those who bought in good faith from parties in possession； but because there was no form of action known which was open to him。 But as the remedies were all in the bailee's hands； it also followed that he was bound to hold his bailor harmless。 If the goods were lost； it was no excuse that they were stolen without his fault。 He alone could recover the lost property； and therefore he was bound to do so。
In the course of time this reason ceased to exist。 An owner out of possession could sue the wrongful taker of his property； as well as one who had possession。 But the strict liability of the bailee remained； as such rules do remain in the law； long after the causes which gave rise to it had disappeared； and at length we find cause and effect inverted。 We read in Beaumanoir （A。D。 1283） that； if a hired thing is stolen； the suit belongs to the bailee； because he is answerable to the person from whom he hired。 /1/ At first the bailee was answerable to the owner； because he was the only person who could sue。 Now it was said he could sue because he was answerable to the owner。
All the above peculiarities reappear in the Anglo…Norman law； and from that day to this all kinds of bailees have been treated as having possession in a legal sense； as I shall presently show。
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 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。〃
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 m