But on
whatever ground Lotan v. Cross may stand, if on any, it cannot
for a moment be admitted that borrowers in general have not
trespass and trover. A gratuitous deposit for the sole benefit of
the depositor is a much stronger case for the denial of these
remedies to the depositary; yet we have a decision by the full
court, in which Lord Ellenborough also took part, that a
depositary has case, the reasoning implying that a fortiori a
borrower would have trespass. And this has always been the law.
/2/ It has been seen that a similar doctrine necessarily resulted
from the nature of the early German procedure; and the cases
cited in the note show that, in this as in other respects, the
English followed the traditions of their race.
The meaning of the rule that all bailees have the possessory
remedies is, that in the theory of the common law every bailee
has a true possession, and that a bailee recovers on the strength
of his possession, just as a finder does, and as even a wrongful
possessor may have full damages or a return of the specific thing
from a stranger to the title. On the other hand, so far as the
possessory actions are still allowed to bailors, it is not on the
ground that they also have possession, but is probably by a
survival, which [175] explained, and which in the modern form of
the an anomaly.
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