/1/ The reason usually given is, that a right of
immediate possession is sufficient,--a reason which the notion
that the bailor is actually possessed.
The point which is essential to understanding the common-law
theory of possession is now established: that all bailees from
time immemorial have been regarded by the English law as
possessors, and entitled to the possessory remedies. It is not
strictly necessary to go on and complete the proof that our law
of bailment is of pure German descent. But, apart from curiosity,
the doctrine remaining to be discussed has had such important
influence upon the law of the present day, that I shall follow it
out with some care. That doctrine was the absolute responsibility
of the bailee to the bailor, if the goods were wrongfully taken
from him. /2/
The early text-writers are not as instructive as might be hoped,
owing to the influence of the Roman law. Glanvil, however, says
in terms that, if a borrowed thing be destroyed or lost in any
way while in the borrower's custody, he is absolutely bound to
return a reasonable price. /3/ So does Bracton, who partially
repeats but modifies the language of Justinian as to commodatum,
depositum, and pignus; /4/ and as to the duty of the hirer to use
the care of a diligentissimus paterfamilias.
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