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.
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