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.
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