/5/
[176] The language and decisions of the courts are perfectly
clear; and there we find the German tradition kept alive for
several centuries. I begin with the time of Edward II., about
1315. In detinue the plea was that the plaintiff delivered the
defendant a chest locked with his key, that the chattels were in
the chest, and that they were taken from the defendant together
with his own goods by robbery. The replication was that the goods
were delivered to the defendant out of enclosure, and Fitzherbert
says the party was driven to that issue; /1/ which implies that,
if not in the chest, but in the defendant's custody, he was
liable. Lord Holt, in Coggs v. Bernard, /2/ denies that the chest
would make any difference; but the old books agree that there is
no delivery if the goods are under lock and key; and this is the
origin of the distinction as to carriers breaking bulk in modern
criminal law. /3/ In the reign of Edward III., /4/ the case of a
pledge came up, which seems always to have been regarded as a
special bailment to keep as one's own goods. The defence was,
that the goods were stolen with the defendant's own. The
plaintiff was driven to reply a tender before the theft, which
would have put an end to the pledge, and left the defendant a
general bailee.
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