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； in a word。 It is therefore； as a preliminary to understanding the common…law theory of possession； to study the common law with regard to bailees。
The state of things which prevailed on the border between England and Scotland within recent times； and which is brought back in the flesh by the ballad of the Fray O'Suport； is very like that which in an earlier century left its skeleton in the folk…laws of Germany and England。 Cattle were the principal property known； and cattle…stealing the principal form of wrongful taking of property。 Of law there was very little； and what there was depended almost wholly upon the party himself to enforce。 The Salic Law of the fifth century and the Anglo…Saxon laws of Alfred are very full in their directions about following the trail。 If the cattle were come up with before three days were gone； the pursuer had the fight to take and keep them； subject only to swearing that he lost them against his will。 If more than three days went by before the cattle were found； the defendant 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 t