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§ 73. Trespass. “If I lend to one my sheepe to tathe his land, or my oxen to plow the land, and he killeth my. cattell, I may well have an action of trespass against him, notwithstanding the lending” (1). The action of trespass lies for an injury to the possession. Consequently, in order to maintain it the plaintiff must, as a general rule, have had possession when the trespass was committed. In the passage quoted, however, Littleton seems to be putting the case of a gratuitous bailment and when the bailment is such the bailor has the right to terminate the bailment at any time and the immediate right of possession is deemed to be in him and, therefore, in such cases the bailor may maintain trespass against the bailee for an injury to the property. If, however, it be regarded as a bailment of hire for a definite period and the killing of the cattle be regarded as a destruction of the property, then, also, the bailor could maintain trespass, for the destruction of the property is regarded as so complete a termination of the bailment as to vest constructive possession in the bailor and give him the right to maintain trespass (2).

(1) Lit. $ 71.

(2) The origin of this principle, which is really a fiction, has been suggested to date from a period before the distinction between trespass and trespass on the case was clearly established.

Where a draper had a servant to sell cloths in his shop, and the latter took the cloths and converted them to his own use, it was held that trespass lay because the possession of the servant was the possession of the master (3), And in another case where a servant in a shop carried away his master's goods, it was held that the master could have trespass against the servant because the servant did not have the possession in the eye of the law (4).

§ 74. Trover. The plaintiff hired to the defendant certain theatrical property for a particular purpose. During the continuance of the contract, the defendant used it for an entirely different purpose, and to do so took it to pieces. The plaintiff brought an action of trover before the expiration of the contract term. The court held for the plaintiff, that the action lay. The taking the property to pieces and using it for a purpose different from that contemplated by the contract were treated by the court as a termination of the bailment, on the same principle as when there is a sale or destruction of the chattel by the bailee. The bailment being terminated, the bailor had the right of possession and could maintain an action of trover as for a conversion, although the original term of the bailment had not expired and under the terms of the contract the bailor was not entitled to possession when he brought his action (4a).

These cases show that, while a bailor out of possession could not generally maintain the possessory actions

(3) Anonymous, Moore 248, pl. 392.
(4) Bloss v. Holman, Owen 52.
(4a) Bryant v. Wardell, 2 Exch. 479.

against the bailee, yet where the bailment is such that constructive possession remains in the bailor or, if possession is in the bailee, when the wrongful act itself immediately determines the bailment, the possession at once revests in the bailor and he may maintain an action based on such possession.


$ 75. Trespass. The plaintiff delivered his horse to another to be pastured, and the defendant took him from the pasture. The plaintiff brought trespass. It was held that the action would not lie because the horse was not in the plaintiff's possession (5). On the same principle, where the plaintiff had let a furnished house by lease to another and the furniture was seized by the sheriff on execution against the lessee, and the plaintiff brought trespass against the sheriff, it was held that he could not maintain the action because he did not have possession (6). Where, however, the plaintiff had made a gratuitous loan of his chaise to a friend, and, while it was in the latter's possession, the defendant ran against it and injured it, it was held that the plaintiff might maintain an action of trespass against the defendant (7). The reason for the distinction taken between this case and the preceding two cases is the gratuitous nature of the bailment, which gave the bailor a right to terminate it at any time and hence the immediate right of possession.

It was to be expected that some action should be given

(5) Wilby v. Bower, Clayton 135, pl. 243.
(6) Ward v. Macauley, 4 T. R. 489.
(7) Lotan v. Cross, 2 Camp. 464.

to the bailor as soon as the law had got machinery which could be worked without help from the fresh pursuit and armed hands of the possessor and his friends. To allow the bailor to sue, and to give him trespass, were pretty nearly the same thing before the action on the case was heard of. Many early writs will be found which show that trespass had not always the clear outline which it developed later. The point which seems to be insisted on in the Year Books is, as Brooke sums it up in the margin of his abridgment, that two shall have an action for a single act—not that both shall have trespass rather than case. It should he added that the Year Books quoted do not go beyond the case of a wrongful taking out of the custody of the bailee, the old case of the folk laws. Even thus limited the right to maintain trespass is now denied where the bailee has the exclusive right to the goods by lease or lien, although the doctrine has been repeated with reference to bailments terminable at the pleasure of the bailor.

So far as the possessory actions are still allowed to bailors, it is not on the ground that they also have possession, but it is probably by a survival, which has been explained, and which, in the modern form of the rule, is an anomaly. The reason usually given is, that a right of immediate possession is sufficient—a reason which excludes the notion that the bailor is actually possessed” (8).

$ 76. Trover. The plaintiff was the owner of certain household furniture and had hired it to one Biscoe. While the furniture was in Biscoe's possession, it was seized by the sheriff on an execution against one Borrett who had



(8) Holmes, Common Law, 171-175.


been owner of the furniture before the plaintiff bought it. The plaintiff brought an action of trover. The furniture was seized by the sheriff and the action was brought and tried before the time for which the goods were hired had expired It was held that the plaintiff could not maintain his action. He did not have possession nor the right to possession until the end of the time for which the goods were hired (9). To maintain trover the plaintiff must have been in possession or have the right to immediate possession. In Smith v. Sheriff of Middlesex (10) the plaintiff had hired goods to a married woman living at that time apart from her husband under a deed of separation. The contract was held to be invalid as she was not capable of contracting with the plaintiff for the hire of the goods and it did not bind her husband. While in her possession the goods were taken on execution against her husband, the seizure being illegal. It was held, that the plaintiff could maintain an action of trover. The plaintiff had the present right of possession. He could terminate the bailment at any time by demand. It was terminated by the defendant's act, and the plaintiff became immediately entitled to the possession of the property.

§ 77. Case. In Hall v. Pickard (11) the plaintiff was the owner and proprietor of two horses which were hired for a certain term to A. While A was driving them, attached to his carriage, along the public highway, the defendant negligently drove a cart against them, whereby one of them was killed. The court held that the plaintiff

(9) Gordon v. Harper, 7 T. R. 9.
(10) 15 East 607.
(11) 3 Campbell 187.

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