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Chap. I.

possession of the goods.1 Where the wrong was done to the actual possession, the defendant could not defend himself by showing that the right to possess was in a third person; but Jus tertii. where the wrong was done to an alleged right to possess, such a defence was effectual.3

Examples. A. is in possession of a house; B. comes and takes possession. This is a wrong done to the actual possession, and therefore A. could bring either trespass or ejectment against B., and B. could not defend himself by showing that the house belonged to C.4

A. is in possession of a house. B., alleging that he has the right to possess it, so that the possession of A. is an injury to his alleged right to possess, brings ejectment against A. A. can successfully defend himself by showing that the house belongs to C.

A. is in possession of goods. B. takes them out of his possession; A. brings trover; B. proves that the goods belong to C.; this is no defence.2

A. bought goods from B. and allowed him to remain in possession. B. became bankrupt. As the goods were in his possession with the consent of the true owner, the ownership and the right to possess passed to his assignees in bankruptcy. The sheriff seized under a fi. fa. A. brought trover against the sheriff, and it was held that the sheriff might defend himself by setting up the right of the assignees who claimed the goods.

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Detinue was an action by a person who had the right to imme- Detinue. diate possession3 against a person who had lawfully come into possession of goods for unlawfully detaining them. But the plaintiff was not bound to show the circumstances under which the goods came into the defendant's possession. The judgment was originally that the plaintiff should recover the goods or their value. The Court may now order the defendant to deliver up the goods without the option of keeping them and paying their value. And a writ of delivery may be issued under which the sheriff will distrain the defendant by all his lands and chattels until he delivers the property, or a writ of assistance may be

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Chap. I.

issued under which the sheriff will put the plaintiff in possession of the property.1

A. hires furniture from B. and obtains possession of it. At the end of the term for which it is hired, A. declines to give the furniture back to B. In this case A. came lawfully into possession of the furniture; the injury done to B. is the detention, and the action of detinue was the appropriate form of action to enable B. to recover possession of the furniture.

The fundamental difference between real estate and chattels real on the one hand and personal chattels on the other, appears distinctly from the consideration of these actions. A person entitled to possess property of the former class could, by bringing an action of ejectment, obtaining judgment, and suing out execution on that judgment, obtain actual possession of the land. On the other hand, if the action was that of detinue, the only action to recover possession of a specific chattel, and the defendant declined to give it up, there was formerly no mode in which the plaintiff could obtain possession of the chattel.3

1 R. S. C. Ord. XLVIII.; Wyman v. Knight, 39 Ch. D. 165; Winfield v. Boothroyd, 34 W. R. 501. See Peruvian Co. v. Dreyfus, [1892] A. C. 176; Ex p. Drake, 5 Ch. D. 866.

2 M. L. R. P. 7.

3 See M. L. R. P. 7, note (c).

CHAPTER II.

BAILMENTS-POSSESSORY LIEN.

Bailments.

A BAILMENT has been defined to be1 "a delivery of goods Chap. II on a condition, expressed or implied, that they shall be restored

Definition of

by the bailee to the bailor, or according to his directions, as soon bailment. as the purpose for which they are bailed shall be answered." In

this definition the "bailor" is the person who delivers the goods

to the "bailee."

A bailment must be distinguished from an alienation of the property with a proviso for repurchase, and from an alienation of the property upon trust.

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bailments.

Holt, C.J., in his celebrated judgment in Coggs v. Bernard, Classes of divided bailments into six classes, viz., (1) Depositum, which is "a bare naked bailment of goods delivered by one man to another to keep for the use of the bailor," without reward; (2) Commodatum, "when goods or chattels that are useful are lent to a friend gratis, to be used by him "; (3) Locatio et Conductio, "when goods are left with the bailee to be used by him for hire"; (4) Pawn or Pledge," when goods or chattels are delivered to another to be a security to him for money borrowed of him by the bailor"; (5) "when goods or chattels are delivered to be carried, or something is to be done about them, for a reward"; and (6) “when there is a delivery of goods or chattels to somebody who is to carry them, or do something about them, gratis, without any reward for such his work or carriage."

Again, bailments may be classified according as they are for the benefit of (a) the bailor only, as in the case of a deposit without reward; or (B) for the benefit of the bailee only, as in the case of goods lent gratuitously; or (y) for the benefit of both

1 Jones on Bailments, p. 1; Story on Bailments, p. 2.

2 2 Ld. Raym. 909; 1 Sm. L. C. 173.

Chap. II. bailor and bailee, as in the cases of the hiring of a thing for use, or of a delivery of goods to a bailee who, for a reward, is to carry them, or otherwise bestow care or labour upon them. This class includes bailments to pawnbrokers, innkeepers, and carriers.

Bailee has exclusive control.

Delivery.

By change of character of possession.

Taking with consent of

owner.

"Qualified"

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The delivery must be made for the purpose of giving the exclusive control of the goods. In ordinary cases a man does not create a bailment by putting the goods in the charge or custody of his servant, nor by delivering them to a person to be used in his presence or in his house, though the mere fact that they are not to be carried away from the house does not prevent the transaction from being a bailment.

The delivery need not be made by the bailor himself. Thus, A. may sell goods to B. and, with B.'s consent, deliver them to a warehouseman to hold as a bailee for B.

A bailment may arise from a mere change in the character of the possession, without any change in the possession itself. Thus, A., being in possession of the goods, either as owner or as bailee for B., may (in the latter case with B.'s consent) agree with C. to hold them as his bailee. This is called "bailment by attornment."3

A person who takes a thing with the consent of the owner becomes his bailee.*

The bailee has always possession of the goods and the right to "special pro- possess, though his right to possess may be determinable at any

ownership or

perty."

instant at the will of the bailor, or otherwise in accordance with the terms of the bailment. The bailee may lawfully exercise over the goods all the rights which are annexed by law to the possession, except so far as he may be precluded from exercising them by the nature of the bailment or by express contract. He has an insurable interest, and he may sue for injury to or interference with the goods, and recover from a person who injures the goods the amount of such injury, as damages. The bailee is said to have a "special property," or " qualified ownership," in the goods,

92.

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1 See Ultzen v. Nicols, [1894] 1 Q. B.

2 Pollock and Wright on Possession,
138, 160 3 Inst. 108; Chisser's Case,
T. Raym. 275.

3 Gosling v. Birnie, 7 Bing. 339; 33
R. R. 497; Holl v. Griffin, 10 Id. 246;
Woodley v. Coventry, H. & C. 164;
Stonard v. Dunkin, 2 Camp. 344; 11

R. R. 724; Crawshay v. Thornton, 2 My. & Cr. 1; Mills v. Charlesworth, 25 Q. B. D. 421, 425.

+ Pollock and Wright on Possession, 163.

5 Waters v. Monarch, &c., Co., 5 E. & B. 870.

6 The Winkfield, [1902] P. 42.

while the bailor is said to have the "general property" or "general ownership."

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2

Chap. II.

without con

There may be a complete bailment without any contract express Bailment or implied, as where the bailee is an infant; or, in cases not falling within the Married Women's Property Act, 1882, where the bailee is a married woman.3

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tract.

Unless the identical goods, either in the original or an altered Identical form, are to be applied or returned, the transaction is not a bail- goods. ment; as, for instance, where coin is paid to a man and he is not to apply or return it in specie. On the other hand, if the identical coins are to be applied or paid, as where they are special foreign coins, or are enclosed in a bag or letter, the transaction is a bailment.7

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But a bailment may exist although it may be the duty or right of the bailee to sell the goods, as in the case of an auctioneers or pledgee, in either of which cases, if a sale is made, it is impossible for the bailee to restore the goods to the bailor. It may even exist where, on the happening of certain events, the general property in the goods will be transferred to the bailee, so that he will not have to restore them to the bailor. Thus, where an abstract of the title of real estate is delivered to a person who has contracted to purchase it, if the purchase goes off, he must restore the abstract to the vendor; if the purchase is completed, he has the right to retain it. So, in the case of goods let under a hire and purchase agreement, under which, if default is made in payment of rent or instalments, the original owner has the right to require the hirer to return the goods hired, but, if no default is made, they become, at the expiration of the stipulated term or on payment of the stipulated amount of hire, the absolute property of the hirer.10

The bailee may re-deliver the goods to the bailor for a special purpose without determining the bailment. In a case of this

1 Co. Litt. 145 b; Plowd. 524; Campbell on Sale, 39; ante, p. 16.

The Queen v. McDonald, 15 Q. B. D. 323.

3 R. v. Robson, 9 Cox, 29.

South Australian, &c., Co. v. Randell, L. R. 3 P. C. 101.

Pott v. Clegg, 16 M. & W. 321; Tassell v. Cooper, 9 C. B. 509.

Bretton v. Barnet, Ow. 86.

7 See the cases collected, Pollock and Wright on Possession, 161.

8 See Williams v. Millington, 1 H. Bl. 84; 2 R. R. 724; Barker v. Furlong, [1891] 2 Ch. 172; Consolidated Co. v. Curtis, [1892] 1 Q. B. 495.

9 Roberts v. Wyatt, 2 Taunt. 268; 11
R. R. 566.

10 See Re Blanshard, 8 Ch. D. 601;
Ex
p. Crawcour, 9 Ch. D. 419; Helby v.
Matthews, [1895] A. C. 471, post, p. 49.

Baileè may

not have to restore goods -auctioneer -pledgee.

Re-delivery to bailor for special pur. pose.

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