It would seem from other books that this was spoken of bailments
generally, and was not limited to those which are terminable at
the pleasure of the bailor. Thus in 22 Edward IV., counsel say,
"If I bail to you my goods, and another takes them out of your
possession, I shall have good action of trespass quare vi et
armis." /1/ And this seems to have been Rolle's understanding in
the passage usually relied on by modern courts. /2/
It was to be expected that some action should be given 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. /3/ It should be
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. /4/ Even thus [173] the right to maintain trespass
is now denied where bailee has the exclusive right to the goods
by lease or lien; /1/ although the doctrine has been repeated
with reference to bailments terminable at the pleasure of the
bailor. /2/ But the modified rule does not concern the present
discussion, any more than the earlier form, because it still
leaves open the possessory remedies to all bailees without
exception. This appears from the relation of the modified rule to
the ancient law; from the fact that Baron Parke, in the just
cited case of Manders v. Williams, hints that he would have been
prepared to apply the old rule to its full extent but for Gordon
v. Harper, and still more obviously from the fact, that the
bailee's right to trespass and trover is asserted in the same
breath with that of the bailor, as well as proved by express
decisions to be cited.
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