The person intrusted was liable in those cases where
he had a remedy over against the wrong-doer (and in which,
originally, he was the only person who had such a remedy); and,
on the other hand, his liability, being founded on that
circumstance, ceased where the remedy ceased. The jailer could
not sue the soldiers of an invading army of Frenchmen; but in
theory he could sue any British subject who carried off the
prisoner, however little it was likely that he would get much
satisfaction in that way.
A few years later the law is stated the same way by the famous
Littleton. He says that, if goods are delivered to [178] a man,
he shall have an action of trespass if they are carried off, for
he is chargeable over. /1/ That is, he is bound to make the loss
good to the party who intrusted him.
In 9 Edward IV., /2/ Danby says if a bailee received goods to
keep as his proper goods, then robbery shall excuse him,
otherwise not. Again, in a later case /3/ robbery is said not to
be an excuse. There may have been some hesitation as to robbery
when the robber was unknown, and so the bailee had no remedy
over, /4/ or even as to robbery generally, on the ground that by
reason of the felony the bailee could not go against either the
robber's body or his estate; for the one was hanged and the other
forfeited.
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