/5/ But there is not a shadow of doubt that the bailee
was not excused by an ordinary wrongful taking. "If the goods are
taken by a trespasser, of whom the bailee has conusance, he shall
be chargeable to his bailor, and shall have his action over
against his trespasser." /6/ The same point was touched in other
passages of the Year Books, /7/ and the rule of law is clearly
implied by the reason which was given for the bailee's right to
sue in the cases cited above.
The principle was directly decided in accordance with the ancient
law in the famous case of Southcote v. Bennet. /8/ This was
detinue of goods delivered to the defendant to [179] keep safely.
The defendant confessed the delivery, and set up he was robbed of
the goods by J.S. "And, after argument at the bar, Gawdy and
Clench, ceteris absentibus, held that the plaintiff ought to
recover, because it was not a special bailment; that the
defendant accepted them to keep as his proper goods, and not
otherwise; but it is a delivery, which chargeth him to keep them
at his peril. And it is not any plea in a detinue to say that he
was robbed by one such; for he hath his remedy over by trespass,
or appeal, to have them again." The above from Croke's report
implies, what Lord Coke expressly says, that "to be kept, and to
be kept safe, is all one," and both reports agree that the
obligation was founded on the delivery alone.
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