This appears from the relation of the modified rule to
the ancient law; from the fact that Baron Parke, in the just
cited case of Manders v. Williams, hints that he would have been
prepared to apply the old rule to its full extent but for Gordon
v. Harper, and still more obviously from the fact, that the
bailee's right to trespass and trover is asserted in the same
breath with that of the bailor, as well as proved by express
decisions to be cited.
It is true that in Lotan v. Cross, /3/ Lord Ellenborough ruled at
nisi prius that a lender could maintain trespass for damage done
to a chattel in the hands of a borrower, and that the case is
often cited as authority without remark. Indeed, it is sometimes
laid down generally, in reputable text-books, that a gratuitous
bailment does not change the possession, but leaves it in the
bailor; /4/ that a gratuitous bailee is quasi a servant of the
bailor, and the possession of one is the possession of the other;
and that it is for this reason that, although the bailee may sue
on [174] his possession, the bailor has the same actions. /1/ A
part of this confusion has already been explained, and the rest
will be when I come to speak of servants, between whom and all
bailees there is a broad and well-known distinction.
Pages:
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
221
222
223
224
225
226
227
228