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of the goods might, however, clear himself of the charge of theft by showing that he had come honestly by the goods, as by purchase in open market; if he succeeded, he might go quit of the criminal charge: but the goods were nevertheless restored to their owner. It was moreover competent to the owner to sue civilly in this action for the restitution of the goods alone, merely alleging that the goods were gone out of his possession, without making a charge of theft (i). In such case, however, it appears from Bracton that he had to put a price on the goods, and that the defendant was not absolutely bound to restore the goods, but might absolve bimself by paying their value (k). These proceedings might be brought not only by an owner of goods, who had lost possession of them, but also by any one, who had the owner's goods in his keeping, and was unwillingly deprived of the possession of them (l). But the forms of the action of theft were archaic and cumbrous (m). On its civil side it was superseded by the action of trespass, which grew up in the course of the thirteenth century (11). Aud it retained a place in the ranks of legal remedies only as an appeal of larceny, that is, as a criminal proceeding (o) at suit of the party injured against one guilty of larceny or theft (p); an offence which mainly consists in taking and carrying away another's goods with intent to steal them, the felonious intent being a material ingredient (9). Still
Appeal of larceny.
(i) Bract. fo. 140 b, 150 b; Fleta, fo. 55, 63 ; Britt. liv. i. ch. 16, § 2 ; Y. B. 21 & 22 Edw. I. 467 ; 0. W. Holmes, Common Law, 168.
(k) Bract. fo. 102 b.
(1) Bract. fo. 103 b, 146, 151 a ; Britt. liv. i. ch. 16, § l; and see 0. W. Holmes, Common Law, 166.
(m) Sec Bracton's Note Book, pl. 67, 824, 1115, 1539 ; Selden Society, Select Pleas of the Crown, pl. 192.
(n) See Britt. liv. i. ch. 26, $ 2; Ames, Harvard Law Review, iii. 29.
(0) See Litt. ss. 500, 501 ; Co. Litt. 287 b.
(p) It was held in 1352 that an appeal did not lie against a miere receiver of stolen goods, so as to oblige him to restore the goods ; 27 Ass. pl. 69.
(9) Bract. fo. 150 b; 3 Inst. 107; 4 Black. Comm. 229 et seq., 314.
the restitution of the stolen goods might be obtained in an appeal of larceny, if promptly prosecuted (r) : but a very important difference in the nature of such restitution was introduced, owing to the grasping construction of the law, by which chattels were forfeited to the Crown upon their owner's conviction of felony or flight from justice (s). The early law was most astute to take advantage of any technical excuse for pronouncing that, upon the conviction of a thief in an appeal by the party robbed, the stolen goods should be forfeited to the Crown as well as the felon's own proper chattels (t). And in the case of a conviction of larceny Indictment in criminal proceedings by indictment, that is, at suit for larceny. of the Crown upon an accusation presented on oath by a jury (u), the stolen goods were also forfeited to the Crown, and by the common law the owner could not obtain their restitution unless he sued an appeal (c). Thus it came to be considered that the restitution of the stolen goods in an appeal of larceny was made, not, as of old, by virtue of the owner's title to have the goods as against all the world, but rather by a gracious waiver, in reward for prompt pursuit of a criminal, of the royal right to have the goods by forfeiture. And the owner's right to recover his stolen goods in an appeal was limited to goods which the King's officer or some other had seized to the King's use (y). A statute of Henry VIII. gave restitution to the owner
(r) See Staunf. Pl. Cor. liv. iii. liv. i. ch. 3, $ 6; Staunf. Pl. ch. 10; 1 Hale, P. C. eh. 47. Cor. liv. ii. ch. 23 et seq.; Co.
($) Bract. 128 b, 129 a ; Britt. Litt. 126 b; 2 Hale, P. C. ch. 21 ; liv. i. ch. 17 ; 5 Rep. 109; Co. 4 Black. Comm. 299. Litt. 391 a ; 4 Black. Comm. 386, (x) Fitz. Abr. Corone, 460 ; 387.
Staunf. Pl. Cor. 167 a ; 3 Inst. (1) See Y. B. 30 & 31 Edw. I. 242. 508, 512_514, 526 ; Fitz. Abr. (y) Staunf. Pl. Cor. l. iii. ch. Corone, 95, 162, 318, 319, 367, 5 Rep. 109. In 2 Inst. 714, 379, 392 ; Staunf. Pl. Cor. liv. iii. it is said that “ by the king's ch. 10.
seizure the property in the same. (21) Principally by the grand being tanquam in custodia legis, jury. See Bract. fo. 115 b, 116, cannot be altered by sale in 143, 150 b; Fleta, fo. 23 ; Britt.
market overt ;
see post, p. 14.
of stolen goods, after the attainder of the felon by his procurement upon indictment (-). In modern times, appeals of larceny went out of use (a); though they were not formally abolished until 1819 (6).
Early con- Now it is worthy of remark that the ancient action ception of
for theft or involuntary loss of the possession of goods ownership of goods. seems to support a fairly complete conception of owner
ship. For to have the right to maintain or recover possession of a thing as against all others appears to be the essential part of ownership (c); and we have seen that this ancient remedy for the recovery of goods was available against any person, to whose hands they might come by whatever means. But the protection of the ownership of goods in our ancient law appears
to have been incomplete in one important particular. Case of owner If the owner of goods voluntarily parted with the parting with possession of them by delivering them to another possession of for some temporary purpose, as for safe custody or his goods.
upon a loan, hiring or pledge, we have seen that the person who had the keeping of the goods had the remedy for the recovery of their possession (d). For this reason be appears in early times to have been absolutely responsible to the owner for the safe return of the goods, even though they had been stolen from him without any fault of his (e). And the owner might
(z) Stat. 21 Hen. VIII. c. 11, replaced by 7 & 8 Geo. IV. c. 29, s. 57, and now by 24 & 25 Vict. c. 96, s. 100, amended by 56 & 57 Vict. c. 71, s. 24.
(a) 2 Hale, P. C. 152; 4 Black. Comm. 312.
(6) By stat. 59 Geo. III. c. 46. (c) Williams, R. P. 2, 3, 17th ed. It is true that the ancient action for the recovery of goods was a remedy based on and protective of possession, and that it was available for possessors responsible for the safe return of
the goods to others : but the more important case is that of the possessor, who was not responsible to another for the safety of the goods ; and irresponsible possession, protected by a remedy availing against all others, makes ownership. See O. W. Holmes, Common Law, 165-169, 215 ct seq., 214—246 ; Ames, Harvard Law Review, iii. 314.
(d) Ante, p. 8.
(e) Glanv. x. 13; Bract. fo. 99 ; Selden Society, Select Civil Pleas, pl. 8; and see 0. W. Holmes, of them (I).
sue him for unjustly detaining the goods, if they were withheld or were not forthcoming at the proper time for their return; but in this action he must have named a price, by paying which the defendant would be absolved, if he preferred not to render the actual goods (f). But the owner, in such cases, seems originally to have had no remedy against any other but the person, to whom he had entrusted the possession of his goods, if the latter delivered over, lost or was deprived
Nevertheless it seems to have been conceived that the former still retained the ownership of the goods ; they were his goods, of which the other had the keeping (h). In such cases, it may be explained, Bailment. the transaction is called a bailment of the chattels, from the French word bailler, to deliver, the parties being distinguished as the bailor and the bailee (i). And before very long it was allowed that the bailor might bring an action as well as the bailee, if the goods were taken out of the bailee's possession by a third party (k).
When the ancient remedy for the recovery of goods Gradual stolen or lost ceased to be available against any person, of purely civil
development into whose hands the goods might come, and was remedies for reduced to a criminal action against a thief, the owner- of goods. ship of goods was deprived of its most essential safeguard. Indeed the very conception of ownership lost one of the main conditions of its existence. Ownership survived, however, in the common sense of lawyers and laymen as a thing which ought to be protected. Slowly and laboriously its defences were reconstructed
Litt. 89 a.
Common Law, 167, 176 ct seq.;
) Glanv. x. 13; Bract. fo. 102 h.
(g) See 0. W. Holmes, Common Law, 166--169.
(h) Glanv. X. 13; Bract. fo.
(1) 2 Black. Comm. 395, 451.
(k) Y. B. 48 Edw. III. 20, pl. 8 ; see 0. W. Holmes, Common Law, 171 et seq. And see Y. B. 2 Edw. IV.5, pl. 9, per Needham, J., that the property in goods bailed is in the bailor.
Trespass de bonis asportatis.
in the shape of a group of purely civil actions. And in place of the old proceedings for restitution, there were substituted, to protect the owner's right to maintain or recover possession of his goods against all others, the following remedies (l) :
1. When the owner, wrongfully deprived of his goods, could no longer use the old proceedings for restitution, except against a felonious taker, he had at first no other civil remedy than an action of trespass de bonis asportatis to obtain damages for directly taking his goods out of his possession (m). Upon such a wrongful taking therefore it was formerly held that the property in the goods taken passed to the trespasser, the late owner being left with a mere right of action against the trespasser personally, and that not for the recovery of his goods but for damages only (n). And if the trespasser were divested of the property, as by his delivery of the goods to another or by another's trespass against him, the original owner could not bring an action of trespass against that other, who bad not directly violated the original owner's possession (0).
2. After a time the dispossessed owner of goods was
(1) The account here given of the growth of the civil remedies for the recovery of goods is based upon a most brilliant and inte. resting series of articles by Professor J. B. Ames in the Harvard Law Review, iii. 23, 313 & 337, and upon the authorities there cited.
(m) Britt. liv. i. ch. 28, § 2, and ch. 29, § 1; F. N. B. 86 A. L. 87 E, 92 M. Trespass de bonis asportatis was a particular form of the action of trespass vi et armis, which lay for any direct and forcible violation of the posscssion of lands or goods, as well as for a direct and forcible injury to the person ; see 3 Black. Comm. 120, 138, 151, 153, 208; Bac. Abr.
(n) 27 Ass. pl. 64; Y. B. 2 Hen. IV. 12, pl. 51; Finch, L. Bk. III. ch. 6. In Y. B. 8 Edw. III. 10, pl. 30, the property in stolen goods is even ascribed to the thief : but see ante, p. 7, n. (9!; Bro. Abr. Eject. Cust, 9, Trespass, 256.
(0) Y. B. 21 Edw. IV. 74, pl. 6 ; see also 16 Edw. II. 490 ; 33 Hen. VI. 5, pl. 15, per Laicon ; 2 Edw. IV. 5, pl. 9; 4 Hen. VII. 5, pl. 1; 16 Hen. VII. 3 a, pl. 7 ; 21 Hen. VII. 39, pl. 49; Bro. Ab. Ejectione Custodiæ, 8, Tresp. 256 ; Staunf. Pl. Cor. 61 a ; Harvie v. Blacklole, Brownl. 236; Ames, 3 Harvard Law Review, 29, 30.