Odger's English Common Law

636 TORTS ARISING OUT OF CONTRACTS.
If a tortious act be done by a third person to goods whilst they are
under bailment and therefore out of the possession of their owner, an
action will in most cases be maintainable either by the bailor or by the
bailee. Thus a carrier may maintain an action against a stranger who
takes the goods out of his possession ; and so may a factor, a warehouse-
keeper or an auctioneer
;
1 and a trustee, pawnee, licensee or gratuitous
bailee may sue for a tort to the chattel held in trust or on bailment and,
in any such case, the owner of the goods may under certain circumstances
also sue. The distinction is this : where the bailor has entirely parted
with his possession of the goods, the bailee is the only person who can
bring an action the object of which is to vindicate the right of possession,
and the bailor will only be able to sue in cases where his reversionary
rights are impaired or endangered. 2 But a mere gratuitous permission to
a third person to use a chattel does not, in legal contemplation, take it
out of the possession of the owner. Hence for an injury done to the
chattel while so used, either the owner or the gratuitous bailee may
maintain an action. And where there is an injury to the reversion—as
in the case of a horse let on hire to A., which B. takes and kills by violent
driving— an action for the trespass lies against B. at the suit of A., the
party in possession, and the owner also has an action for the injury to his
reversion. But to entitle the reversioner to sue for an injury to a chattel,
such injury must be permanent in its nature.
An action will not in general lie at the suit of the owner for the
recovery of chattels which have been let on hire or demised for an
unexpired term. There are, however, cases which show that where the
bailment is determined by the tortious act of the bailee—as by his selling
goods entrusted to him for delivery to a third person—the property in
them reverts at once to the bailor, who will then be entitled to recover
the goods or their value, even from a bond fide purchaser, 3 unless they were
bought in market overt.
Bailments are usually classified under the three following
heads :
—
(i.) Bailments exclusively for the benefit of the bailor.
(ii.) Bailments exclusively for the benefit of the bailee,
(iii.) Bailments for the benefit of both parties.
(i.) Under the first head come gratuitous contracts of
deposit and carriage, e.g., where the bailor deposits goods
with the bailee to be kept by him without reward and returned
to the bailor when he shall require them, or where a friend
undertakes gratuitously to carry goods from one place to
1 Williams v. Millington (1788), 1 H. Bl. 81, 84 ; Robinson v. Butter (1855) , 24
L. J. Q. B. 250.
2 Hattiday v. Holgate (1868), L. R. 3 Ex. 299.
Bryant v. Wardell (1848), 2 Exch. 479, 482 ; Cltinery v. Mall (1860), 5 H. & N.
288,293.