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.
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