pursuit" was ever a vital requisite to the appeals as distinguished from the local actions they superseded.

But if it is a big jump to argue from what is known of the early Germanic action for cattle stealing to the appeal of larceny of the 1200's, it is even more of a jump to argue from the former to the appeal of robbery, and although the fact has generally been overlooked, it is to the appeal of robbery rather than to the appeal of larceny that trespass is to be traced. In the older law robbery is not a kind of aggravated larceny, but a distinct offense,51 and the appeal of robbery antedates the appeal of larceny by some time.52

That the appeal of robbery rather than the appeal of larceny was the precursor of trespass in the king's court is evident in many ways. Larceny was a fraudulent taking, a taking by stealth; robbery, like trespass, a taking by force. Bracton apparently identifies the appeal of robbery with the actio vi bonorum raptorum of the Institutes.53 Bigelow gives as a "prototype" of trespass an appeal of robbery in 1194 when it was charged that the defendants came "cum vi et armis et robberia." 54 In later days it is from the appeal of robbery that Littleton 55 and Choke 56 argue to trespass. In fact the appeal of larceny seems to have been almost still-born. In Bracton's time it seems to have been used almost solely by the approver,57 and how little impression it made on the law may be gathered from the fact that, although Pollock and Maitland say that Bracton seems hardly to have known the appeal of larceny,58 it is only in a quotation from Bracton that the indexer of Staunford's Plees Del Coron saw any reference to it in that work,59 while the references to the appeal of robbery are numerous. It is scarcely

51 Ibid., 493.

52 Ibid., 494.

53 BRACTON & Azo, p. 182.

54 HIST. PROC. p. 277; PLACITA ANG.-NORM. p. 285. See also 2 P. & M., 2 ed., 526. 55 Y. B. 2 EDW. IV, 15-7.

56 Y. B. 9 EDW. IV, 33-9.

57 Six out of the ten appeals of larceny listed in Bracton's Note-Book involved approvers. In Pollock and Maitland's table of actions taken from the Northumberland Assize Rolls for the years of 1256, 1269, and 1279, and from the Roll of the Common Bench for the Easter term of 1271 (2 P. & M., 2 ed., 565, 567) there are ten appeals of robbery and only three appeals of larceny, all three of which were brought by approvers.

58 2 P. & M., 2 ed., 494.

59 Staunf. P. C., 28 a.

mentioned in Fitzherbert's 60 and Brooke's 61 Abridgments, while appeals of robbery are fairly common. The truth seems to be that the action for a theft hardly left the seclusion of the local courts, while the appeal of robbery had quite a vigorous existence even after the closely related vee de nam, replevin, and trespass had occupied much of its former field.

The speculative character of the denial of the appeals to the bailor is brought out by Pollock and Maitland's summary:

"And, having thus given the action to the bailee, we must in all probability deny it to the bailor. As already said, in the days when the actio furti still preserved many of its ancient characteristics, when it began with hue and cry and hot pursuit, it was natural that the bailee rather than the bailor should sue the wrongful possessor. But already in the thirteenth century a force was at work which tended to disturb this arrangement." 62

If it were necessary to choose between them, the one-time importance of fresh pursuit is a reason for assigning the appeals to the bailee and denying it to the bailor, but Mr. Justice Holmes, who argues that it was necessary to choose, has to go to the law of the Lombards to support his position.63 A century after Bracton's time Cavendish, C. J., saw no such necessity, but gave trespass to both.64 The foundations for his opinion lay in what had been said and practiced as to the appeals in Bracton's time and even before. If we proceed from what is better known to what is less known, it is believed that little reason will be seen for thinking that the exclusion of the bailor from any action against the third hand ever got any important foothold in our law.

In an action of trespass brought in 1374 65 by an agister, Cavendish, C. J., said:

"And I say in this case, he who has the property can have a writ of trespass, and he who has the custody, another writ of trespass."

60 Under "Corone et plees del corone," Fitzherbert mentions the appeal of robbery some twenty-seven times, the appeal of larceny six times, and the appeal of felony twice.

61 Under "Appell," Brooke mentions the appeal of robbery fourteen times, the appeal of larceny once, and the appeal of felony four times.

62 2 P. & M., 2 ed., 170.

63 COMMON LAW, p. 166. See also LAUGHLIN, ANG.-SAX. Law, p. 202. 64 Y. B. 48 EDW. III, 20-8.

65 Ibid.

Percy:

"Sir, it is true, but he who shall recover first will oust the other of his action; and so it will be in several cases, as if tenant by elegit is ousted, both shall have an assize, and if one recovers first, the writ of the others is abated, sic hic." 66

Like language was used by counsel in 1344 in an action for the recaption of beasts against the peace brought by one who claimed that the one from whom the beasts had been taken was his villein. Huse said:

"A writ of trespass and a writ of appeal are given to him to whom the property belongs, and also to one out of whose possession the goods are taken, because both servant and master will have an appeal in respect of the same felony."

99 67

It is evident that the twofold basis of property and custody or possession for an action for a taking against the peace was not new with Cavendish, C. J., in 1374, nor peculiar to trespass. As we shall see, it was the current doctrine as to the appeals in the preceding century. The special significance of this case is the argument for two actions based on the practice in the appeals as to the master and servant. That practice goes back to our earliest extant plea rolls in 1194.68

The notion that two rights were protected by the appeals of Robbery and Larceny is emphasized in the "Mirror of Justices:"

"In these actions two rights may be concerned the right of possession, as is the case where a thing is robbed or stolen from the possession of one who had no right of property in it (for instance, where the thing has been lent, bailed, or let); and the right of property, as is the case where a thing is stolen or robbed from the possession of one to whom the property in it belongs." 69

Britton also emphasizes both property and custody. He says "that if those who rob, or steal the goods of another, amounting to twelve pence or more, be freshly pursued for the same by those to whom the things belong, or by those out of whose custody the things were stolen or robbed and the goods are found on them, they shall

66 I GRAY, CASES ON PROPERTY, 255.

67 Y. B. 18 & 19 EDW. III, 508. See also FITZ. ABR. Rep. 32.

68 I ROT. CUR. REG. 51.

69 SEL. Soc., bk. II, c. 16, p. 57.

be forthwith taken." 70 And again, that if the defendant be acquitted "and yet the prosecutor has proved that the thing challenged belonged to him, and that it was stolen from him or out of his custody, in such case he must be answerable to the lord of the thing." " The corresponding passage in Bracton is to the same effect: "And it does not matter whether the thing carried away was the appellant's own or another's, provided it was in his custody." 72

71

These statements are brief and unsatisfactory. They were incidental to an account of criminal proceedings and lack the precision they would have had if they had been part of an exposition of the law of bailments. They allow the appeals to the owner and to the one having custody and leave us to speculate as to whether the owner whose goods were taken from the custody of another was allowed them or not. They give little if any indication, however, that such a one was denied them and by their emphasis on property and custody must have helped pave the way for the law as we find it in the following century.73

There are two other passages in Bracton bearing on the rights to the appeals. The first occurs in the general discussion of actions, and is as follows:

"And it is to be known that the actio furti sive condictio is competent to the owner of the thing against the thief and his successor and against the holder of the thing. The action vi bonorum raptorum, on account of movables carried off by force or robbed, is allowed to the owner of a thing or to him from whose custody they have been carried off and who has entered into payment in relation to his lord so that he has an interest to bring the action." 74

73 The emphasis on property and custody is merely a reflection of the case law of the time. Numerous appeals are quashed because the goods are not the appellant's. See SEL. PL. CR., pl. 138, and BRAC. No. BK., pl. 1664. In the latter case one of the appellants alleged custody in himself. This is one of the cases cited by Bracton to show that some interest in addition to custody was necessary to support an appeal. (Infra, p. 512.) See also BRAC. NO. BK., pl. 1456 and 723. In a case where one Edith had brought an appeal and had offered her brother Richard to wage battle for her, the appeal was quashed because it was waged by the said Richard of other cattle than his own and nothing was said in the appeal as to their having been stolen from his custody, nor was anything of his own involved. BRAC. No. BK., pl. 824.

74 TWISS, fol. 103 b; BRACTON & Azo, p. 179.

Maitland's note on this is instructive. He says:

...

"Bracton in a desultory way is endeavoring to identify English with Roman actions. .. Apparently when here and elsewhere Bracton speaks of the actio furti as of a practicable English action, he is referring to the exceedingly ancient procedure for the recovery of stolen goods which is lingering in the local courts, though its place is gradually being taken in the royal court partly by the definitely criminal appeal of larceny, partly by the civil actions of trespass and detinue. . . . He probably identifies the actio vi bonorum raptorum with the appeal of robbery. It will be noticed that he gives the actio furti sive condictio only to the dominus of the stolen goods, while the actio vi bonorum raptorum lies for the owner or for the person from whose custody the goods were taken if he has an interest in them. This is a curious departure from the Institutes and one that we should hardly have expected. All that we know of the history of the old English procedure for the recovery of stolen goods would lead us to believe that it was competent only to the person from whose possession the chattels had been taken, and that, therefore, if the goods were taken from the bailee, the action was open to the bailee, and not to the bailor. In the Institutes the actio furti is competent to many bailees. . . . In this respect the difference between the actio furti and the actio vi bonorum raptorum is not a strongly marked one. . . . ' The explanation may perhaps be that Bracton, in the furtherance of a movement which is gradually giving the bailor remedies against third persons, is inclined for the moment to go great lengths in the protection of mere dominium; but then we cannot be certain that there are not some kinds of bailment which in Bracton's view make the bailee dominus rei. English law is hesitating about these questions." 75

The second of the other two passages in Bracton occurs in the treatment of the appeal of robbery and is an elaboration of what had already been said as to the actio vi bonorum raptorum. It is as follows:

"A person sometimes appeals another concerning the goods of another, and not his own, as if a person has been robbed of certain things, which he had in his charge, being property belonging to his lord or to another, and in which case it behooves him to show that he has an interest to appeal, because otherwise he will not have an appeal, no more than for the death of a strange person and concerning which we have partly treated, according as he has received a wound or such like. But concerning another person's goods it behooves him to show that they

75 BRACTON & Azo, p. 182.