Assuming that as the first step we find a procedure kindred to
that of the early German folk-laws, the more important question
is whether we find any principles similar to those which have
just been explained. One of these, it will be remembered,
concerned wrongful transfer by the bailee. We find it laid down
in the Year Books that, if I deliver goods to a bailee to keep
for me, and he sells or gives them to a stranger, the property is
vested in the stranger by the gift, and I cannot maintain
trespass against him; but that I have a good remedy against the
bailee by writ of detinue (for his failure to return the goods).
/2/ These cases have been understood, and it would seem on the
whole rightly, not merely to deny trespass to the bailor, but any
action whatever. Modern writers have added, however, the
characteristically modern qualification, that the purchase must
be bona fide, and without notice. /3/ It may be answered, that
the proposition extends to gifts as well as to sales by the
bailee, that there is no such condition in the old books, and
that it is contrary to the spirit of the strict doctrines of the
common law to read it in. No lawyer needs to be told that, even
so qualified, this is no [170] longer the law. /1/ The doctrine
of the Year Books must be regarded as a survival from the
primitive times when we have seen the same rule in force, unless
we are prepared to believe that in the fifteenth century they had
a nicer feeling for the rights of bona fide purchasers than at
present.
Public-domain text, read in full here on John Shaqi.
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