f# J UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY \% m^M^ ^SW : ,.. iiif i . ;-'\\ AN ESSAY ON THE LMV OF BAILMENTS. A N ESSAY ON THE Hato of Bailments. By Sir WILLIAM JONES, Knt. I-ATE ONE OF THE JUDGES OF TriE SUPREME COURT OF JUDICATURE AT BENGAL. THE SECOND EDITION, With Introduftory Remarks, and Notes, comprising the most modern Authorities, By JOHN BALMANNO, OF lincoln's-inn, ESQi barrister at law. In tutells, societatibus, JiJuciis, manJatis, rebus emptla- venditis conduSl'ts-locatisy quibus vitas societas continetur, magni est judicis statiiere, (praesertim cum in plerisque fint judicia contraria,) quid quemque cuique pmstare oporteat. Q^ SciEvoLA, apud Cic. de Offic. lib. iii. LONDON, printed. PHILADELPHIA^ re-printed, EOR P. BYRNE. i804. T T7£S3k \ec4- TO THE HONOURABLE Sir SOULDEN LAWRENCE, Knt, ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF KING'S BENCH, THIS EDITION OF THE LAW OF BAILMENTS, IS RESPECTFULLY INSCRIBED, BY THE EDITOR. ADVERTISEMENT TO THIS EDITION. Should the delay in publishing this Edi- tion of the Law of Bailments be thought worthy of notice, it is hoped that the fol- lowing circumstance will operate as an apology. When the Essay was nearly prepared for the press, the Editor, in concurrence with the suggestion of a friend, was in- duced to attempt a sketch of the life of the late Sir William Jones, with an ac- count of his works, to be prefixed to the publication : — some time was occupied in colleding materials for this undertaking, and ADVERTISEMENT. and in its progress the Editor found that he must inevitably exceed the Hmits he had deemed it necessary to prescribe for its completion ; — perceiving also that by the Introduction, Notes, and Appendix, now added, the size of the original pub- Hcation would be considerably increased, he has declined to insert the biographical account alluded to, from a wish not to incur the charge of overwhelming a small though valuable treatise with extraneous matter. In a literai-y and critical point of view, the Editor has, perhaps, by this omission, better consulted his own repu- tation, and the justice due to the illus- trious memory of Sir William Jones. With respeft to the work in its present form, the Editor takes leave to observe that hie particular aim has been to render it an useful repository on the subjed of Bailments, ADVERTISEMENT. Bailments, to the merchant and the STUDENT OF THE LAW; he has there- fore occasionally dilated his references to the material modern cases, and has given, .in the form of an Appendix, the cele- brated case of " Coggs v. Bernard^' from Mr. Bayley's valuable edition of Lord Raymond's Reports. Sir William Jones (Law of Bailments, p. 59) modestly intimates that his Essay may be considered in the light of ''a commentary" on Lord Holt's famous argument in the case just mentioned ; it is, however, one of those rare commentaries which merit equal attention with the text. To every class of persons in a civilised community, the subjedl of our Author's treatise is im- portant ; and of the work itself, it is no extravagant encomium to pronounce, that the learning of Lord Coke could not have supplied A ADVERTISEMENT. supplied sounder law, and that more ap- posite and elegant illustration could not have flowed from the pen of Cicero. These are sufficient reasoris for pre- senting to the Public a new Edition of the Law of Bailments ; and in proportion to their weight, he who has undertaken the task will naturally be gratified, if it shall be thought that he has not performed less than his duty. Pump Court, Temple j NoY. lo, 1797. CONTENTS. *^* The paging of the former Edition is preserved in the margin of the Essay. Introduction by the Editoi^. The Subje<^ proposed, Page 4 I. The Analysis, 4—11 II. The History, 11 1. Jewish and Athenian law, 11, 12 2. Roman law, 11 Prejudices against It, 12 Distinction between the private and public, the rational and positive. laws qf RojviE, 13, 14 Two famous laws of Ulpian, 14— -16 Critical remarks on them, 17—21 Definitions and rules. 21—23 System of J. Godefroi, 24, 25 Opinions of Zasius and Donellus, 25, 26 System of Le Brun, 27 — 29 Viiidi- A2 CONTENTS. P*ge Vindication of the old system by POTHIER, 29 — 31 Observations on Le Brun^ 32 — 34t S. English law, 34 Lord Holt's ^^mV/o/z of bailments, 35 Neiv division and definitions, 35, 36 1. Law of J^cposits, , 36 Bonion's case, 36 — 40 Mosaic laws, 39 Southcote's case, 41 — 4-5 Rules and exceptions, 46 — 50 Grecian and Arabian laws, 50 — 52 2. Law of Mandates, 52, 5^ Distinction between ;zo;2fesance and ?;//.;fesance, '54 — 57 Case of CoGGS and Bernard, 58 — 62 Exceptions to the rule, 63 3. Law of Loans for Use, 6S — &5 Criticism on Bracton, 64, note. Opinion of Puffendorf disputed, 66, 67 Cases and distinctions, 68 — -70 Controversy among the Civilians, 70 Exceptions to the rule, 72 Mosaic and Attic laws, 73, 74 4. Law of Pledges, 74 Dodrine of Lord Coke denied, 75, 76 Conjedural criticism of Noodt, 76 Ca§e CONTENTS. Pa^e Case in the Book of Assises^ 77 — 79 Lord Coke's reasons contested, 79 — 83 Turkish law, 83 — 85 5. Law of Hiring : 85 1. Hiring of a Thing, ib. Lord Holt's dotl:rine explained, 8G,87 Rules and remarks, 88 — 90 2. Hiring of Work, 90,91 Law concerning Innholders^ 92 — 96 Remarky on St. German, 97, 98 Law concerning Factors and Traders^ 98, 99 Mahomedan law, 99 Rules and distinctions, 101 Celebrated law of Alfenus, 102 8. Hiring of Carriage, 102 Exception from the general rule, lO-i Modern cases, 105, 106 Law concerning masters of vessels, lOu — 109 Case of Lane and Cotton, 109, 110. Criticism on Doctor and 5//^- dent^ 110, note. 4. Laws of the Northern nations, 1 1 1 — i 14 5. Laws of the Britons, 112 6. Laws of the Indians, 115 — 1 16 IIL I'he CONTENTS, Page III. The Synthesis^ 117 1. Definitions, 117, 118 2. Rules, 119 S. Propositions, 119, 120 4. Exceptions, 120 5. General Corollary and Remark, 122 Conclusion, , 123, 124 APPENDIX. Lord Raymond's Report of Coggs o). Bernard, i — xxviij CASES. *#* The ADDITIONAL Cases are printed in Roman charaders. Page Alsept v. Eyles 104, n. Amies and Stevens^ 107 Barcroffs Case, ibid, Bennet v. Mellor, 92, ;/. Bonion's Case, 36 Calye's Case, 91 Cheetham 'u. Hampson, 89, ;/. Clay V. Willan, 106, ;/. Coggs and Bernard, 58 Dale and Hall, 105 Drinkwater v. The Corporation of the Lon- don Assurance, 104, 72. Elliot 'v. The Duke of Norfolk, 104, n. Elsee v. Gatward, 54, n. Same v. Same, 101, n. Forward v. Pittard, 104, n. Garside v. The Trent and Mersey Naviga- tion Company, 97, n, Garside CASES. Page Garside v. The Trent and Mersey Navi ga- tion Company, 104 Gibbon and Paynfon, 106 Case oi Gravesend Barge, 1 107 Hyde V. The Trent and Mersey Naviga - tion Company, 104, n. Lane and Cotton^ 109 Langdale v. Mason and Others, 104, n. Mors and. Slew, 108 Mosley and Fossef, 91 Mulgrave and Ogden^ 34 Mytton and Cock, 122 Pouley V. Walker, 90, n. PozvtULiry and VValfon, 61 Ratcliff and Davis, 79 Rich and Knceland, 106 Shiels v, Blackburn, .53, ;z. Countess of Shrewsbury's Case, 45 Soiithcote^s Case, 41 Sutton V. Mitchell, 109, n. Titchburne and White, 10 f> Vere and S?nith, 99 Wheat ly and Low, .50 Whitiield v. Lord Ic Despencer, 110, n. Woodliefe and dirties. 103 INTRO^ INTRODUCTION. 1 HE commercial intercourse of mankind is at once the most pleasing and important siibje6t of investigation : those various vv^ants which pervade the most barbarous and re- fined conditions of society, stimulate the warlike savage to commence the labours, and to barter the spoils of the chase ; while under a similar influence the inhabitant of the already opulent and civilized country endeavours to explore new sources of wealth, and tempts with avidity the pe- rilous vicissitudes [a) of mercantile adven- ture. {a) « Mercator ****** ,c ******** fnox reficit rates " Qu^assas, indocilis pauperiem pari." HOR. B Thus 2 INTRODUCTION. Thus It should seem, that with whatever difFerence of local circumstances, and wdth whatever varieties of mental and corpo- real charadler. Nature has distributed our species over the globe, she still intends that a general connexion shall subsist be- tween them, and has caused it to depend on motives too powerful or inviting to be counteraded by ferocity, indolence, or caprice. A propensity that so strongly indicates the policy of Nature ought obviously to receive every necessary encouragement from the policy of states ; nothing therefore but ignorance, or a despicable affedation of philosophy, can doubt or deny the ad- vantages of foreign commerce ; our gra- titude should avow, and our adivity strive to increase them : it may however, in per- fed consistency with this sentiment, be asserted, agreeably to the remark of a profound historian (Z*), that the improve- (^) Hume's Hist. Append. III. ment INTRODUCTION. 3 ment of the domestic trade of a country is to be considered as an objedt of much earlier and greater attention. Notwithstanding this truth, so obvious and important, it is a remarkable fad: in the history of commercial nations, that they have mostly established an extensive foreign intercourse, long before they ap- pear to have thought of promoting the facility of their internal trade, and of pro- tecting its growth, in the concomitant va- riety of civil transadions, by the applica- tion of those discriminating rules, which impart the ingenuity and the corredness of general reason, to systems of local ju- risprudence. What have been the specific causes of this negled, the most acute investigation would probably be unable to discover. In the frequently inexplicable condud: of man- kind, there is a crowd of instances in which B 2 advan- * INTRODUCTION. advantages important, and easy to he ob- tained, are disregarded, for the pursuit of others more distant and precarious. When nations thus deviate from the path of pru- dence, they are slower in recovering tlie prosped: of tlieir true interest than indi- viduals ; as error when consolidated into a mass is proportionably less penetrable by the light of reason and utility. However latent the causes why so great an object of national policy has expe- rienced such a comparatively slight atten- tion, it is easy to discern the beneficial influence w^hich, if properly cultivated, it has a tendency to produce on the man- ners and resources of a people. Super- ficial and often vicious refinements may he communicated by foreign connexions, but it is indisputably true that the real civilization of a country depends much less oil its commercial transad:ions with Other states, than on a close and constant • inter- INTRODUCTION. 5 intercourse among its own inhabitants. Such an intercourse is clearly requisite to supply a comnaunity with permanent means of subsistence and self-proteQion, and to promote the growth of social sympathy and confidence among its various mem- bers (r). It is also by being thus early and stea- dily attentive to the essential purposes of their connexion in single states, that men become adapted to form more extensive political and commercial relations ; for the mere wealth and intercourse of foreign traffic are not alone sufficient to give po- lish, humanity, and equity to national character, any more than permanency to national resources. Instances may be easily recollected of nations highly conspi- {c) Vattel's Law Nat. b. i. c. 8. § 84. 86. See also Smith's " Wealth of Nations," b. 3. c. 1. for a concise and masterly explanation of the principles of internal trade. CUOUS ^ INTRODUCTION. cuous In the annals of commerce, which have exhibited disgusting scenes of inter- nal barbarism and disorder, and which have incurred in their pubUc condudl the deserved imputations of fraud and cruelty. The vices however which a communi- ty Is liable to contrail from a too eager and exclusive pursuit of foreign commerce, are not upon the whole by far so inimical to the happiness of the world, as the er- roneous and destrudive policy that con- verges all the talent and industry of a state into a focus of warlike ambition. The spoils of military aggression are pal- pably more criminal than the gains of commercial avarice, and they are equally fugitive : to obtain them the earth must be ' desolated ; and when acquired, they consti- tute neither a just nor a permanent re- source. The INTRODUCTION. 7 The pernicious effeds of both these ex- treme pursuits are forcibly exemplified in the history of the celebrated rival powers of Carthage and Rome. The Carthagi- nians had engrossed nearly all the com- merce of the ancient world ; but their avidity in the acquisition of meretricious wealth estranged them from the more im- portant views of sound policy and legis- lation : their deficiency in this respect was conspicuous in the duplicity which fre- quently sullied the characSler of their public transadiions, and in the factious ebulli- tions [d) which destroyed- the internal vi- gour of the state. Under (J) It cannot be asserted that Rome was always free from the violence of party contentions ; the great aims of the comnionwealtli were, however, invariably supported by the proud zeal of all its members, and the passions and importance of the individual were absorbed in the grandeur of the republic. Tliis dif- ference is thus remarked by Montesquieu in a work of less genius but of closer reasoning than the " Esprit «« des Lo'ixP " A Rome 8 INTRODUCTION. Under this peculiar disadvantage was the strength of Cartilage opposed to that of Rome ; and though the former, hy the extent of its factitious resources, was ena- bled to protrad: the period of its downfall, yet the persevering energies and the severe discipline of the Romans, prompted by the congenial spirit of their political institu- tions, ultimately, and as it were by ne- cessity, prevailed. It was in vain that Annibal led his mercenary swarms with *' A Rome gouvernee par les loix, le peuple souf- «« ffoit que le scivat eut la dire£lion des affaires. A ** Carthage gouvernee par des abus, le peuple vou- ** loit tout faire par lui-meme. *' Carthage, qui faisoit la guerre avec son opulence " contre la pauvrete Romaine, avoit par cela meme " du dcsavantage : I'or & I'argent s'epuisent •, mais *' la vertu, la conftance, la force & la pauvrete ne " s'epuisent jamais. " Les Romains etoient ambitieux par orgueil, & *' les Cartliaginois par avarice ; les uns vouloient ** commander, les autres vouloient acquerir : & ces «' derniers calculant sans cesse la recette & la depense, *' iirent toujours la guerre sans I'aimer." Grand, et Dec. des Rom. c. 4. p. 34. triumph INTRODUCTION. 1 triumph over Italy, and threatened to ap- proach the walls of Rome ; he had to en- counter his greatest opposition in the in- flexibility of the Roman character ; and the vidiories to which his illustrious military talents had chiefly contributed, were des-. tined to immortalize the prudence of Fa- bius and the ardour of Scipio, and to serve merely as brilliant preludes to that catastrophe, the cause of which has been superficially recognized in the luxurious indulgences of Capua. The illicit conjunction of courage and rapine gave birth and importance to the Roman republic, which in its turn moulded the notions and habits of its citizens to a surprising and formidable perseverance {e) in (e) " Rome efoit faite pour s'aggrandir, & ses loix <' ctoient admirables pour cela. Aussi dans quelque *' gouvernement qu'clle ait etc, sous le pouvoir dc$ *' rois, dans rariilocratie, ou dans Tetat populaire, ** eiie n'a jamais cessc de faire des cntreprises qui C ** d«raan>. 10 INTRODUCTION. In the same system. The brilliancy of success with which that system operated on the vast theatre of the world, has at- tradied the applause which the bulk of mankind too willingly bestow on the triumphs of conquest, however ill they may accord with the principles of justice : The tremendous hostility of the Roman arms was generally unprovoked by ag- gression, and frequently attended by ra- pacious and tyrannous insolence ; and in- dependently of the disgust which these vices must excite in the mind of the phi- losophical politician, he will view the nar- row and improvident domestic policy of the all-vid;orious commonwealth with a *' demandaient de la conduite, & y a rgussi. Elte ne *' s'est pas trouv'ce plus sage que tous les autres ctats ** de la terre en un jour, mais contlnuellement : elle *' a soutenu une petite, une mediocre, une grande for- " tune avej la meme superiorite- ; & n'a point ea de *' prospc'"i'cS doiu elle n'ait profite, ni de malheurs ** dont elle ne se soit servi." Grand. €t Dec. des Rom. c. 9. p. 109. contempt INTRODUCTION. 11 contempt which cannot be dazzled by tlie splendour of its most unsullied atchieve- ments. Tlie Romans were indeed enabled to subsist by the spoils of conquest, while the uncorrupted science and spirit of tlicir military character secured them the supe- riority in the conflids of the field ; but |:heir notorious and avowed disregard of every pursuit {J^) but that of arms, threw a strong shade of wilful ignorance over the lustre of their warlike exploits ; nor when the energies of the republic were effaced by the magnificence of the em- pire, and satiated conquest afforded time (/) Trade, both foreign and domestic, together with philosophy and the arts, were despised and pro- hibited by the austere bigotry of the republican man- ners. Fabricius, when at the table of Pyrrhus, ex- pressed a wish that the peaceful doclrines of Cyneas, the Epicurean philosopher, who was present, might enervate all the enemies of Rome ; and the elder Cato is known to have advised the expulsion of a celcbtated sopliist from the city, that he might not corrupt the robull character of the Roman youil)^ by teaching tJiem the ingenious art of disputation. C^2 for 18 INTRODUCTION. for speculation, did the Roman govern- ment listen to the suggestions of national prudence : with a disgraceful anxiety the dominating power of the universe depended for subsistence on the tributary harvests of Africa, and the granaries of Egypt were emptied for the idle and licentious popu- lace of Rome. Such are the striking lessons imparted by the free pencil and the vivid colours of history : let them be contemplated not less for instruction than amusement ; and let that nation justly deem itself respedable which is enabled by commerce to increase its wealth, and by courage to protect its honour ; which is at once enterprising and generous abroad, and the free strucfture of whose government facilitates every im- provement at home (g) Next (g ) Why should we be deterred from applying this ehara<5ter to our own country, by the querulous and fasti- INTRODUCTION. 1^ Next to a convidion of the moral and political importance of domestic trade, faftldious reproach of national pride ? The philoso- phic and impartial Montesquieu has led the way; and another foreign writer of considerable estimation thus describes the community of which we are members: — *' That illustrious nation distinguishes itself in a ** glorious manner by its application to every thing *' that can remler the state the moll flouriniinj?. An <' admirable constitution there places every citizerhin ** a situation that enables him to contribute to this *< great end, and every where diffuses a spirit of true ** patriotism, which is zealously employed for the pub- ** lie welfare. We see there mere citizens form con- ** siderable enterprises in order to promote the glory '< and welfare of the nation ; and while a bad prince ** would be abridged of his power, a king endowed ** with wisdom and moderation finds the most powerful " succours to give success to his great designs. The " nobles and the representatives of the people form a " band of confidence between the monarch and the " nation ; concur with him in every thing that con- ♦* cerns the public welfare ; ease him in part of the « burden of government i confirm his power ; and *< render him an obedience the more perfeil, as it is <* voluntary : every good citizen sees that the strength " of the state is really the welfare of all, and not that " of a single person." Vattel Law Nat. b. i. c. 2. § 24- the 14 INTRODUCTION. the best means of improving it should employ our attention. There is certainly no department of public service more use- ful than the patronage of the mechanical ingenuity, by whose inventions and im- provements the necessity for animal la- bour (/6) is diminished, and the accom- plisliment {/:) No prejudice can be more absurd and mis- chiev«us than that which has frequently objedled to improvements in mechanism, on the ground of their tendency to abridge the employment of the laborious part of society. Among the principal advantages re- sulting from the civil association of manlcind, we may surely class the opportunity afforded to individuals, of dedicating their talents to the benefit of the public, and the power of the latter to bestow adequate remuf neration for the time and the ability which are so employed. In return for such disbursements from the common ftock, the personal convenience and profit of every member of the community are more than proportion- sbly increased. A solicitude to reduce animal labour within mode- rate and reasonable limits, is not merely to be recom- mended on the score of political economy, but as one of the mod amiable features of civilization: multi- tudes of our fellow-creatures are thereby rescued trom the deplorable ignorance that generally accompanies INTRODUCTION* 15 plishment of those great and beneficial works, by the assistance of which tlie na- tural and manufadured produd:ions of a country are conveyed with facility and cheapness to all its parts. Among the most powerful means by which these important objed:s have been promoted, we may rank the use of steam, and the increase of inland naviga- tion. The discovery of the wonderful powers and utility of condensed vapour is of a modern date, but would have been worthy of producing the traditional boast (/") of Archimedes. The variety of purposes (/) to the lot of manual drudgery, and being thus advanced a rank higher in the species, may become eligible for many employments in which-the understanding has a share, and which so greatly abound in a civilized and wealthy country. ( i ) That with a fulcrum for his engines he would be able to move the world. (k) The use of steam engines is now adopted in most works of magnitude, such as breweries, found- ries) 16 INTRODUCTION'. to which the agency of those powers is applied in this country, together with the many specimens of machinery by which our different mechanical operations are fa- cilitated, shew to what perfedion the im- provement of trade and manufa^lures may be advanced under the auspices of a free government, and an active commercial spirit. The importance of inland navigation cannot be too strongly asserted : Nature has greatly assisted the internal trade of some countries by abundance of rivers ; and it is a just tribute to the enterprising' genius of man, to admire the extent to which that advantage has been increased or supplied by the means of navigable ties, collieries, Sec. Much praise is due to *• Messrs. Boulton and Watt," of Birmingham, for their libe- ral, indefatigable, and successful endeavours to render the discovery beneficial to the public. canals. INTRODUCTION. 17 canals (/). Many of these stupendous mo- numents of human sagacity and persever- ance have distinguished the most enhght- ened and opulent countries of the ancient world. The Egyptians, who were justly renowned for science and the arts, com- pleted the charader of high civilization by an assiduous attention to their internal trade {??f), and the intercourse necessary to conduct: (/) Sinlth's Wealth of Nations, vol. i. p, 18. 228. 9. — A writer who has given much attention to the sub- ject, thus observes on the utihty of canals : *' All " canals may be considered as roads of a certain kind, ** on which one horse will draw as much as thirty ** horses do on the ordinary turnpike roads, or on *' which one man alone will transport as many goods <• as three men and eighteen horses usually do on com- " mon roads. Khe public would be great gainers were ** they to lay out upon the making of every mile of *< a canal tvventy times as much as they expend upon *' making a mile of turnpike road ; but a mile of «' canal m.ay ofren be made at a less expence than ** the mile of turnpike, consequently there is a great *' imJucement to multiply the number of canals." Phillips's Hist. In!?.nd Navig. pref. p. 9. (w) A fragment by Gray, in which philosophy and poetry are exq-j.;si:ely blended, has the follow- ing deseriptlve lines : D *' What 18 INTRODUCTION, condudl It was facilitated by the sarrre ca^^ nals, which were constructed by the pro- vident labour of that once free and polished people, to distribute the capricious bounty of the Nile. The large territory and immense popu- lation of China have always rendered domestic trade an objed: of peculiar im- portance to that venerable empire : its whole surface is intersed:ed by navigable •* What wonder, in the sultry climes, that spread, ** Where Nile redundant o'er his summer bed *' From his broad bosom life and verdure flings, ** And broods o'er Egypt with his wat'ry wings, *' If with advent'rous oar and ready sail *' The dusky people drive before the gale ; *' Or on frail floats to neighb'ring cities ride^. '■* That rise and glitter o'er the ambient tide.'* See Mason's edition of Gray's works, 4to. p. 199. When the taste, genius, and erudition of Gray are considered, it must be sincerely regretted that he did iiot complete a poem on a plan so excellent and ori- ginal. The chasm has been coarsely supplied by Mr. Knight's poem on " The progress of Civil Society,'*' 4to. -fublished 1797. canals. INTRODUCTION. 19 canals (//), which are constantly employed in the conveyance of produce and merchandize between its various towns and provinces. The tenacious formality of the Chinese charader, and a very partial commerce with European nations, have militated {«) One called the " Great Canal," is thus de- scribed by Mr. Phillips, in his " History of Inland Navigation," p. 8, y : " The Great Canal, which is also called the Royal ** Canal, is one of the wonders cf art : it was finished ^* about the year 980 ; thirty thousand men of all de- ♦* nominations were employed forty-three years in ** completing it. It runs from north to south, ex- " tending from the city of Canton to the extremity *^ of the empire ; and by it all kinds of foreign mer- ** chandize, entered at that city, are conveyed dire£l- *' \y to Pekin, being a distance of 825 miles. Its *' breadth is about fifty feet, and its depth a fathom *' and a half, which are sufficient to carry barks of ** considerable burthen, which are managed by mast ** and sails, as well as by oars ; and some of a smaller . ** sort are towed by hand. This Canal passes through, *' or near, forty-one large cities ; it has seventy-five *' vast sluices to keep up the water, and pass the barks •* and ships where the ground will not admit of suf'fi- ''* cient depth of channel, besides several thousands of " dr^w and other brii'ges." D 2 against 20 INTRODUCTION. against the introduction of modern im- provements in the sciences into China ; it- is however admitted, that from an imme- morial period of time, the hrst principles of the arts have been known in that coun-» try ; nor can we hesitate to ascribe the remarkable industry and highly civilized majincrs of its people, to the multifarious employments and perpetual intercourse created by a home trade, unexampled in magnitude (o) of consumption. The utility of navigable canals has not escaped the attention of European coun- tries. By the assistaiK:e of this species of navigation, Holland (/ ) has long been enabled (o) It is observed by a celebrated writer, that " the *' home market of China is perliaps, in extent, not " much inferior to the Market of all the difFerent ** countries of Europe put together." Wealth of Nations, vol. 3. p. 32. (/) " ^^'^ slow canals, the yellow-blossom'd vales, *' The willow tufted banks, the gliding sails, «' The crowded mart, the culuvaied plain,"— These INTRODUCTION, 21 enabled to combine, in an eminent de^ gree, the advantages of external and in- land trade. Russia (^), Sweden (r), Den- mark, These were among the features noticed by the de- scriptive pen of Goldsmith (Traveller J^ but the scene is now miserably changed j the acrimonious violence of faction has degraded the chara<5ler, subverted the independence, and ahnost annihilated the commerce of HoiJand. {q) The largest of the Russian canals is that of *' Vishnei'Voloshok." It was projected and finished in the time of Peter the Greats and eflfe6ls a commu- nication between the Caspian and the Baltic seas. See Phillips's Hist. Inland Navig. p. 26. The same writer, observing on the great opportu- nities for inland navigation in Russia, states, that ia that empire it is " possible to convey goods by water *' four thousand four hundred and seventy-iivo milesy '< from the frontiers of China to Petersburg, with an *' interruption of only about sixty miles ; and from *' Astracan to the same capital, (by the canal of " Vishnei-Voloshok,) through a space of one thoufand *^ Jour hundred and thirty-four miles \ a most astonish- <* ing tra£l of inland navigation:, almost equal to one •* fourth of the circumference of the earth." P. 26. (r) In canal experiments Sweden has been less for- tunate than its former rival. There remain the ruins of gome very costly but abortive works, patronized by Chafles 22 INTRODUCTION. mark (j-), and France {/), have also made prodigious exertions to eflcd such artificial communications. The beneficial consequences with which, for the most part, those endeavours have been attended, evince that there is scarcely any form of government, however depressing Charles the Xllth, during the lucid intervals of his military madness. (s) The canal of " Kiel," in the duchy of He I- stein, does great credit to the sagacity of the Danish government. This canal was projected to enable vessels, " not exceeding one hundred and twenty tons, ^' or not drawing above ten feet water, to pass imme- " diately from the Baltic into the German Ocean, and' " proceed without unloading to Hamburg ; or sail to " Holland, England, or other parts, which in times <' of war receive supplies from Denmark." Phillips's Hist. Inland Navig. p. 46. (t) Of the various canals of France, that of Lan- guedoc is the most remarkable : it was begun and completed by M. Riquet, a celebrated engineer, in the time of Louis the XlVth, and would alone be' sufficient to immortalize the reign of tlrat monarch.' For a circumstantial account of this truly magnificent, scientific, and useful work, see Phillips's Hist. Inland Navig. p. 53—5(5. in INTRODUCTION. 23 in some of its tendencies, under which do^ mestic trade, after a certain degree of en- couragement, will not rear its head and flourish. This must be a gratifying refle(rtion to the mind that is accustomed to contemplate, .with benevolent curiosity, every step that leads to the comfort and civilization of our species ; such a mind will therefore expe- rience peculiar satisfadion in viewing the velocity of the success that generally fol- lows the spirited commercial enterprises even of individuals, when favoured by the genius of free political institutions, and protected by the solicitude of nume- rous and equitable laws. The present state of the inland naviga- tion of our own country forcibly illustrates the preceding remark : notwithstanding a great increase of home trade, and the ex- ample of the means adopted by other countries 24 INTRODUCTIO]^. •countries to facilitate internal commerce, England, till within these fifty years, had negieded to improve the natural advan- tage of many rivers, hy the construction of navigable canals. The first navigable canal in this country -Was begun by a nobleman (i;), whoso various (v) The Duke of Bridgewater, who in the year 1759 obtained an a6l of Parliament, enabling him to make a navigable canal from Worsley to Sal- ford. For a particular and interesting account of the progress and completion of this canal, see Phillips's Hist. Inland Navig. c. 7. Vv'here the utility of the undertaking is thus described : — *' Before the dnke began his canal, the price of ** water carriage by the old navigation on the rivers «* Mersey and Irwcll, from Liverpool to IVLtnchester, «* was twelve shillings the ton, and from Warrington •* to Manchester, ten shillings the ton. Land car- <« riage was forty shillings the ton, and not less than •* two thousr.nd tons were yearly carried on anaveragf;. *' Coals at Manchester were retailed to the poor at *< seven-pence per hundred weight, and often dearer. •' The duke, by l)is navigation from Liverp»ol to *« Manchester, carries for only six shillings a ton, *' and in as short a time, and with as certain delivery « as INTRODUCTION. "25 various plans for the improvement of our inland navigation have been crowned with signal and deserved success. This respectable and spirited example has had its proper influence, by stimu- lating the plans and the completion of similar undertakinn;s. The number of na- vigable canals already construdied, and those which are in contemplation to be made in various parts of the kingdom, demonstrate at once the public utility, and *' as if by land carriage, because he is able, at the *■' lowest neap tides, to come into or go out of his f* canal at Runcorn Gap to Liverpool, which he could •f not do if he had gone in at the Hempstones, as was " at first intended ; consequently one half is saved to <' tlie public of the old water carriage, and almost six *' partb it; seven of the land carriage. Coals also are *' delivered at Manchester, seven score to the hundred '* weight, for three-pence halfpenny." In tlie projection and execution of this and similar works, the duke was assisted by the Lite Mr. Brindley, a 5r!f t.iught engineer of uncommon abilities. Parti- culars of rhe life of that extraordinary man are recorded 'in the Blographia ByiUvmica^ vol. :3l. 26 INTRODUCTION, the private advantages of this species of property ; shares in which are now become of such consequence, as to form very fre-^ quent funds for provisions in family set- tlements. Thus greatly has Britain, within the compass of half a century, improved her inland navigation ; and all who feel inte- rested in the prosperity of our country will be happy in perceiving, that while good faith, enterprising industry, and su- perior manufadures have placed it at the head of commercial nations, its internal trade is rapidly advancing to the utmost improvement of which it is apparently susceptible (//). The («) In a valuable work lately given to the public by a respe(ftable and intelligent mogi'^trate, it is ob- served, that in this country there has been *' an accu- •• mulation of not less than two thirds in commerce, " as well as manufactures." Treatise on the Police of the Metropolis, 4ih edit. p. 409. The INTRODUCTION. 27 The transadtions which form the inter* course of an extensive domestic trade, and the various confidential occurrences which attend the increased relations of a civil community, ohviously require for their de- finition and protedion a multiplying series of legislative provisions. The aptitude of The same work gives the following estimation of the annual commerce of the metropolis alone : — r *^ Above 13,500 vessels, including their repeated voy* ** ages, arrive at and depart from, the port of Lon- *' don with merchandize, in the course of a year ; ** besides a vast number of river craft employed in the f* trade of the interior country, bringing and carrying '' away property estimated at seventy millions sterling. *' In addition to this, it is calculated that above ** 40,000 waggons and other carriages, including their " repeated journies, arrive and depart laden, in both ** instances, with articles of domestic, colonial, and <' foreign merchandize ; occasioning a transmit of, ** perhaps, (when cattle and provisions sent for the *< consumption of the inhabitants are included,) Jifty ** viilliofis more." P. 410, 1 I. Dr. AiLin, in his History of Manchester (4to. 1797), remarks the interesting progress of manufactures and trade, and the concomitant habits of their respefllve stages, with a precision and philosophy not inferior to ;he pen of Smith. E % such 28 INTRODUCTION. such leQ::L\ regulations peculiarly- demands the care of those to whom the hiin^ic-r con- cerns of the state are entrusted; for if 'that vigilance were not exercised, it would he in vain that a country might lahour for its own prosperity, In proportion also as laws hecome necessarily more numerous, it should be recollected, that precision is their greatest ornament ; other productions of the human genius may be allowed to de^r rive their charms from the beauty of me- taphor and the grandeur of general ex- pression, but the utility and the praise of a municipal code will depend on the dry simplicity and scrupulous detail with which it is adapted to the purposes of public se- curity and social confidence. When we contemplate the slow progress by which nations, civilised in many other respeCts, have arrived at a moderate degree of perfedion in the legislative science, our wonder INTRODUCTION. 29 wonder is excited, that the very lir^t pur- poses of beneiit for which the species can be supposed to associate should be post- poned to the latest consideration. Philosophy would be idly occupied in attempting to develope, by hypothesis and conje^Sture, the cause of this inversion in the pursuits of society ; but concerning the spirit and the tendency of the positive institutions v^diich have prevailed in cele- brated states, disquisition may be profitably employed, and on this topic history pre- sents abundance of materials to excite the vivacity of speculation, and recompence the labour of research [w). Among {iv) The profound researches of Montesquieu, il- luminated by a genius powerful and vivid, have ex- plored the principles of a science the most important to the happiness of mankind. With some exception to the predominating tenet of the influence of cli- mate, the " Esprit des Loix" displays a fulness of learning, philosophy, and pohtical sagacity, before which 30 INTRODUCTION. Among the consequences of the great and rapid vicissitudes which have frequently befallen the grandeur of nations, none is more deeply to be regretted than the sub- version of those systems of internal polity which have resulted from mature civili- sation, together with that of the political importance of the countries where they have existed. This abuse of conquest is often produd:ive of a slothful and morbid degeneracy (x) of the human intellect, by ■which the superficial effusions of Voltaire, and even the ardent reveries of Rousseau, sink into insignifi- cance. It is however to be lamented, that their coun-* trymen have not taken tlie benefit of such a compari- son, and that, in the progress of the mighty revolution that still astonishes Europe, the dogmas of Rousseau-, Voltaire, and an imitative herd of declaimers on the science of government have been adopted, in pre- ference to the pra6lical, sober, and wise lessons of the immortal Montesquieu. • (.y) " Ut corpora lente augescunt, cito extinguun- *' tur, sic ingenia studiaque oppresseris facilius, quanx *' revocaveris. Subit quippe etiam ipsius ineriije dul- *' cedo : et invisa prime desidia postremo amatur.'* Tacitus in vit. Agric. destroy-% INTRODUCTION. 31 destroying tlie institutions which are cal- culated to excite and perfect its finer ex- ertions : the fire of national genius has indeed sometimes revived hy the energy of a few remaining sparks, and, after ages of dreary ignorance, has poured a sudden lustre on the clouded regions of art and literature. This, however, is hut a small recompence for the irretrievable loss of exemplary institutions, much more essen- tial to the happiness of society : the man- date of Omar, that consigned the Alexan- drian library to the flames, was infinitely less injurious to the improvement of man- kind, than the destrudion of the remains of the admirable polity which Egypt (j) had exhibited in its days of splendour, and from which accomplished Athens derived its infant rudiments of civilisation. {y) See Dlodorus Siculus, lib. I. Lord Kaims's His- torical Law Trafts, p. 77 (note); and Drummond's Review of the Governments of Sparta and Athens, p. 35. It is a subje£l of regret that a proper history of Egypt still remains among the desiderata of literature. The 32 INTRODLtCTIOX. The fragments that remain of the legal institutions of Athens have been chiefly preserved in the harangues of the orators. — From the frivolous and unjust grounds of accusation, the indecent violence and ca- pricious cruelty which history has imputed to most of their state prosecutions (ss), the criminal jurisprudence of the Athenians ap- pears to have been grossly defective. In adjusting the rights of property () *' Et penitus toto divisos orbe Britannos." ViRG. Ec. I. tied INTRODUCTION. 43 tied themselves in the fairest possessions of this island, were disposed to improve, by the arts of peace, the territory they had acquired by the violence of war, and re- tained the free spirit, while they gradually lost the ferocious charadler of the German tribes, whose manners and institutions are so expressively delineated by the pen of of Tacitus (/). By the wisdom and the patriotism of Alfred the Great, the Saxon customs were improved into a system of policy, the re- mains of which display the just pretensions of that amiable monarch to the grateful memory of Englishmen, The institutions of Alfred were impregnated with those genuine principles of legisl^vtion which assist and ex^ pand with the progressive improvements of a state, and a subsequent age might have seen the free model of the Anglo-Saxoij (i) " De Mor. Germ." G 2 juris;j 44 INTRODUCTION, junspmdence, adorned Vv-ith the cultivated reason of the civil law. It was, however, the fate of our country, that its political liberties should be surrendered to the sliac- kles of the feudal system, that the pos- sessions of its inhabitants should become a prey to the rapacity of foreign mercenaries, and that the bai"barous pomp of military pride should oppress, and spurn, the efforts and the blessings of industry and peace. The sanguinary violence which often attends the heat of conquest may be de- plored, but its deliberate and more lasting- injuries are inflicted on the laws of a van- quished people : the simple and equitable principles of jurisprudence w^hich were ripening to perfection among our Saxon progenitors, were soon perplexed by the subtilties, and vitiated by the cliicane, of the Normal;! lawyers {k) : corruption and {k) " Legibus tantum et moribus Normannicis om- <« nia Eubsellia strepebant." Cragii Jus Feudale, 1. \. partiality INTRODUCTION. 45 partiality began to disgrace the tribunals of Britain ; and wliile the conqueror af- feded to reign in the name of the law (/), himself and his followers placed their vi- sible dependancc on the* power of the sword (??i). These (/) Sir Matthew Hale (Hist. Com. Law, c 5.) and Sir William Blackstone (Com. vol. 2. p. ^8 — 52.) have laboured ro prove that the conquest o£ England by WilUam the First, is not to be understood in the military sense of the term, but as synonymous with legal acquisition or purchase. This construdliou has derived a feeble support from the equivocal use of the V'ord co?iquestus^ the vague pretensions of title to the crown on the part of the Norman duke, and his af- fe£led solicitude to restore the Saxon institutions -, but it is clearly repugnant to the plain fafts of that period of our history. See Hume's Hist. vol. i. p. 282 — 284. (w) At the distance of more tlian two centuries from the Norman conquest, and in the reign of a prince (Edward I.) whose improvement of our law lias procured him the appellation of the English Justi- nian, this iron evidence of title was produced by the celebrated Earl Warrenne, and with a prudent acqui- escence on the part of the monarch. Hume's Hist. voL 46 INTRODUCTION, These were the severest and most hu- miUathig marks of the subjugation of our country by the victorious Normans. The feudal laws which they introduced, and the inauspicious fluctuations of an unsettled government, restrained for many centuries the progress of British comm.erce and ma- nufactures : these obstructions were at length removed, and the lirst signal for the commercial prosperity and civil sta- bility of this kingdom was the abolition of the feudal tenures (/?). Some exception- able features of that system are undoubted- ly yet visible in the abstruser parts of our jurisprudence ; but the wisdom of gradual reform is preferable to the rage of extir- pation, and it was perhaps impracticable to extract, without violence, every fibre vol. 2. p. 238 — A similar explanation was given to Robert Bruce, King of Scotland, by some of his nobles : see Robertsor.'s Hist. Scot. vol. j. p. 48. («) i2lh cf Charles the Second, chap. 24. of INTRODUCTION. 47 of a root that liad struck so deeply, and spread so widely in the soil of Britain. The event [o) by which our constitution was settled, and our civil rights properly defined and secured, is to be regarded as another and still more important ssra in the history of our commerce : since that memorable period, a vast and increasing accession of external and internal trade has demanded the solicitude of the legislature, and amplified the jurisdi<£lion of our legal tribunals. The various lav/s which have taken every species of commercial pro- perty under protection ; the luminous ar- guments and solemn decisions by which the sense and spirit of those laws have been applied to the transad:ions of men, form a system of jurisprudence that we cannot comtemplate without gratitude, and resped:. It must also be recolled:ed that, (o) Accession of William the Third. as; 48 • INTRGDUCTIONr as the ben en t of the ]:.\\v is felt in its: ad- ministmtion, great encomium is due to the wisdom and integrity of the judge : he is the living organ of the law, and on his intelligent and upright interpretation of its precepts much of the welfare of the com- munity depends : there is, consequently, no department of science in whicli excel- lence more deserves to be applauded ; and such names as Holt, Hardwjgke, and Mansfield, will continue to be illus- trious, while the able and impartial dis- tribution of justice shall be thought an honour to the tribunals of a nation. In an age that has so peculiarly wit- nessed the pompous, but futile and disas- trous pretensions of speculative policy. Englishmen need not be exhorted duly to estimate laws which include the soundest maxims of moral experience, and the juridi- cal talents and probity that secure the efficacy of their application to the concerns of life. AN [ 1 ] AN ESSAY O N TH E LAW OF BAILMENTS, J1.AVING lately had occasion to exa- mine with some attention the nature and properties of that contradt, which lawyers call BAILMENT, or A delivery of goods 9n a cond'it'iofi, expressed or ImpUcd^ that they shall be restored by the bailee to the bailor^ or according to his direEltons^ as soon ns the piu'pose^ for ivhich they were bailed^ shall be anszvered^ I could not but observe with surprise, that a title in our English law, which seems the most generally in- H teresting, THE LAW OF BAILMENTS. teresting, should be the least generally understood, and the least precisely ascer- tained. Hundreds and thousands of men pass through life, without knowing, or caring to know, any of the numberless niceties which attend our abstruse, though [ 2 ] elegant, system of real property, and with- out being at all acquainted with that ex- quisite logic, on which our rules of special pleading are founded : but there is hardly a man of any age or station, who does not every week, and almost every day, contrad: the obligations or acquire the rights of a hirer ^ or a letter to hire., of a borrower or a letider^ of a depositary or a person depositing^ of a commissioner or an employer^ of a receiver or a giver ^ in pledge \ and what can be more absurd, as well as more dangerous, than frequently to be bound by duties without knowing the nature or extent of them, and to enjoy rights of which we have no just idea ? Nor must THE LAW OF BAILMENTS. rtiust it ever be forgotten, that the con- tracts above-mentioned are among the prin- cipal springs and wheels of civil society ; that, if a vv^ant of mutual confidence, or any other cause, were to weaken them or obstrudt their motion, the whole machine would instantly be disordered or broken to pieces : preserve them, and various ac- cidents may still deprive men of happiness ; but destroy them, and the whole species must infallibly be miserable. It seems, therefore, astonishing that so important a branch of jurisprudence should have been' so long and so strangely unsettled in a^ great commercial country ; and that, from the reign of Elizabeth to the reign of Anne, (be doBrine of bailments should have produced more contradictions and confu- sion, more diversity of opinion and incon- sistency of argument, than any other part, [ 3 ] perhaps, of juridical learning ; at least, than any other part equally simple. H 2 Such i THE LAW OF BAILMENTS. Such being the case, I could not help imagining that a short and perspicuous discussion of this title, an exposition of all our ancient and modern decisions con- cerning it, an attempt to reconcile judg- ments apparently discordant, and to illus- trate our laws by a comparison of them with those of other nations, together with an investigation of their true spirit and reason, would not be wholly unacceptable to the student of English law ; especially as our excellent Blackstone, who of all men was best able to throw the clearest light on this, as on every other subject, has comprised the whole docSlrine in three paragraphs, which, without afFeding the merit of his incomparable work, we may safely pronounce the least satisfactory part of it ; for he represents lending and letting to hirey which arc bailments by his own definition, as contrad:s of a distin£l species ; he says nothing of employment by com- mission I THE LAW OF BAILMENTS, mission ; he introduces tlie dodrine of a distress, which hjs an analogy to a pci'wn, but is not properly hailed \ and on the great question of responsibility for negleB^ he speaks so loosely and indeterminately, tliat no fixed ideas can be colleded from his words [^/]. His Commentaries are the most corred: and beautiful outline that ever was exhibited of any human science ; but [ 4 ] they alone will no more form a lawyer, than a general map of the world, how accurately and elegantly soever it may be delineated, will make a geographer : if, indeed, all the titles, which he professed only to sketch in elementary discourses, were filled up with exacTtness and perspi- cuity, E/igllshmcn might hope, at length, [^] 2 Comm. 452, 453, 454. (i) (i) See Christian's Edit. Black. Com. vol. 2. p. 453, note (11), where the learned coiTimentacor's inaccu- racy on the subjedi is also admnted, and wh.ere a just encomium is given to the elegance, the liberal learn- ing, and the sound law of this Essay. to *, THE I.AW OF BAILMENTS. to possess a digest of their laws, which would leave but little roojn for contro- versy, except in cases depending on their particular circumstances ; a work which every lover of humanity and peace must anxiously wish to see accomplished. The following Essay (for it aspires to no higher name) will explain my idea of supplying the omissions, whether designed or invo- luntary in the Commentaries on the Laws of England. Subjeft I propose to begin with treating the subjed: analytically^ and, having ti'aced every part of it up to the first principles of natural reason, shall proceed, historically^ to show with what perfect harmony those principles are recognised and established by other nations, especially the Romans, as well as by our English courts, when tlieir decisions are properly understood and clearly distinguished ; after which I shall resume THE LAW OF BAILMENTS. 4 resume synthetically the whole learning of bailments^ and expound such rules as, in my humble apprehension, will prevent any farther perplexity on this interesting title, except in cases very peculiarly circum- stanced. From the obligation, contained in the [ 5 ] definition of bailment, to restore the th'wg ^' ■^"^^y«="'* hailed at a certain time^ it follows that the bailee must keep it, and be responsible to the bailor if it be lost or damaged : but, as the bounds of justice would, in most cases, be transgressed, if he were made answerable for the loss of it without his faulty he can only be obliged to keep it with a degree of care proportioned to the nature of the bailment ; and the investigation of this de- gree in every particular contrad is the problem, which involves the principal diffi- culty. There THE LAW OF B/\ILMENTS. TKere are infinite shades of care or diligence from the slightest momentary thought, or transient glances of attention, to the most vigilant anxiety and soliji- tude ; but e:':tremcs in this case, as in m.ost others, ai'e 'mapplicabie to pracl'ice : the iirst extreme would seldom enable the bailee to perform the condition, and the second ought not in justice to be demanded ; since it would be harsh and absurd to exad: the same anxious care, which the greatest mi- ser takes of his treasure, from every man who borrows a book or a seal. The de- grees then ot care, for which we are seek- ing, must lie somewhere between these extremes ; and, by observing the different manners and characters of men, we mxay find a certain standard, which will greatly facilitate our inquiry ; for, although some are excessively careless, and others excess- ively vigilan*:, and some through life, others [ 6 ] only at particular times, yet we may per- ceive. THE LAV/ OF BAILMENTS. ceive, t/iat the gcncraUiy of rational men use nearly the same degree of diligence in the condud: of their oivn affairs ; and this care, therefore, wliich every person of common prndenie and capable of gov emu ig a family takes of his own concerns, is a proper measure cf that which would uni- formly be required in performing every contract, if tliere were not strong reasons for exacJ'nig in some of them a greater^ and permiifing in others a less^ degree of attention. Here then we may fix a con- stant determinate point, on each side of which there is a series consisting of vari- able terms tending indefinitely towards the above-mentioned extremes, in proportion as the case admits of indulgence or demandvS rigour : if the constru(^tion be favourable^ a degree of care less than the standard will be sufficient ; if rigorous^ a degree more will be required ; and, in the first case, the measure w^iU he that care w^hich every man of common scnsf^ though absent and I iiiat' THE LAW OF BAILMENT?. inattentive^ applies to his own affairs ; in the second, the measure will he that at- tention which a man remarkably exad afid thoughtful gives to the securing of his per- sonal property. The fixed mode or standard of diligence I shall (for want of an apter epithet) in- variably call Ordinary ; although that word is equivocal, and sometimes involves a notion of degradation, which I mean wholly to exclude ; but the unvaried use f 7 1 of the word in one sense will prevent the least obscurity. The degrees on each side of the standard, being indeterminate, need not be distinguished by any precise deno- mination : the first may be called less, and the second more, than ordinary diligence. Superlatives are exactly true in mathe- matics ; they approach to truth in abstract morality ; but in pradice and adual life they THE LAW OF BAILMENTS. they are commonly false ; they are often, indeed, used for mere intens'ives^ as the MOST diligent for very diligent (2); but this is a rhetorical figure ; and as Rhetoric, like her sister Poetry, delights in fidion, her language ought never to be adopted in sober investigations of truth : for this reason I would rejed: from the present inquiry, all such expressions as the utmost carCy all possible or all imaginable diligence^ and the like, w^hich have been the cause of many errors in the code of ancient Rome, whence, as it will soon be de- monstrated, they have been introduced into our books even of high authority. Just in the same manner, there are in-, finite shades of default or negle£t^ from the sliLrhtest inattention or momentarv absence of mind, to the most reprehensible supine- ness and stupidity : these are the omissions ("z) See Vinnius in Instit. lib. 3. tit. i^. I 2 of THE LAW OF r. AILMJiNTS. of the berore-mentioned degrees of dili- gence, and are exadUj correspondent Vv^ith them. Thus the orolssion of that care, which every prudent nijjt takes of his accordingly been adopted bv C'syjs^ P. Faber, Le Coxte^ Do- XELLUs, and most others, as giving a sense • both perspicuous in itself and consistent "v^-ith the second law ; but the Florextixb copy has qiiidtm.^ and the copies from which THE LAW OP BAILMENTS. 18 which the Basilica were translated three centuries after Justixias\ appear to have contained the same word, since the Greeks have rendered it by a particle of similar import. This variation in a single letter makes a total alteration in the whole doc- trine of Ulpiax ; for, if it be agreed, that diligentia means, by a figure of speech, a more than ordinary degree of diligence^ [ ^^ J the common reading will imply, conform- ably with the second law before cited, that *' SOME of the preceding contracts demand " that higher degree ;" but the Florentine reading will denote, in contradiction to it, that " ALL of them require more than ** ordinar)^ exertions." It is bv no means mv design to depre- •iate the authoritv of the venerable manu- script presented at Florence ; for although few civilians, I believe, agree with Poli- Tijx^ in supposing it to be one of the originals^ 19 THE LAW OF BAILMENTS. origw^Js (7), which were ser.t hy Justbiiait himself to the principal towns ol Italy [i], yet it may possibly be the very book, which the Emperor Lothjrius II. is sai^ to have found at Amalfi about ttie yeai* 1130, and gave to the citizens of Pisa^ from whom it was taken near three hundred years after, by the Florent'nies^ and haS been kept bv them with superstitious re- verence [/'] : be that as it may, the copy desei-v^es the highest respe THE LAW OF BAIT ME NTS* this has been the opinion of most foreign jurists from Azo and jIlciat down ta Heineccws and Huber ; v/ho, let their dissension he, on other points, ever so great, think ahke in distinguishing three degrees of negle'3:, which we may tern> gross^ ordinary^ and slight, and in deinand- ing respoi^sibihty for those degrees accords ing to the rule before expounded. The law, then, on this head, which prevailed in the ancient Roman empire, and still prevails in Germany, Spain, France^ Italy, Holland, constituting, as it were, a part of the law of nations, is in substance what follows. Definitions Gross negled:, lata cu-pa, or, as the and rules. ?-» i i n • Koman lawyers most accurately call it, dolo proxima, is in prad:ice considered as equivalent to dolus, or fraud, itself; and consists, according to the best inter- preterSj THE LAW OF BAILMFNTS. 21 preters, in the omission of that care, 'which even inatti'JitivL' and thotarhtless mtn never o fail to take of thei^' o'w?i property : this [ 22 ] fault they justly hold a violation oi good j'ulih. Ordinary neglcd, levis culpa ^ is the want of that diligence whicli the generality of mankind use in their own concerns ; that is, of ordinary care. Slight negle] Zas. S'tnguL Refp. lib. i. cap. 2. [?] " Q^o^'uni dcfinitiunes esedem sunt, ea inter se ** sunt eadem ; levls aiitem ciilpas et kvissini/v una et ** eadem dcfinitio est ; utraque igllur culpa eadtm." Ctfmni. Jur. Civ. lib. xvi. caul 7. old THE LAW OF BAILMENTS. 26 old Roman lawyers. True it is, that, in the ia\y Coiitrnctus^ the division appears to be 'twofuld only, dolus and cuLPA-y which differ in species^ when the lirst means aSlual fraud a?id malice ^ but in degree mere- ly when it denotes no more than gross ncgletl ; and, in either case, the second branch, being capable of more and Icss^ may be subdivided into ordinary and slight \ a subdivision which the law SI ut certo obviously requires : and thus are both laws perfectly reconciled. We may apply the same reasoning, changing what should be changed, to the 'triple division of dlUgence ; for, when good faith is considered as implying at least the exertion of slight attention, the other branch, Care^ is subdivisible into ordinary and extraordinary ; which brings us back to the number of degrees already establish- [ 27 1 ed both by the analysis and by aiitliority. Never- 2t: THE LAW OF BAILMENTS, System of Nevertheless, a system, in one part en- Le Brun, . , i i i . i tirely new, was broached in the present century by an advocate in the Parhament qf Paris, who may, probably, be now living, and, possibly, in that professional station (12). to which his learning and acuteness justly intitle him. I speak of (12) It is scarcely necessary to inform the reader, that the juridical system to which our author here alludes, and consequently the various departments of its administration, no longer subsist in France. The magisterial situations in the ancient French parlia- ments or courts of judicature, were notoriously ob- tained by purchase : history, however, to the honour of the members of the courts in question, records many instances of their spirited resistance to the arbi- trary edidls of the " Grand Monarque ;" and the pro- phetic penetration of Blackstone (Com, vol. i. p. 269.) pronounced, that the restoration of Gallic freedom, should it ever take place, would be owing *' to the *' efforts of those assemblies." This prediction has b?en strikingly verified -, but it cannot be supposed, that the patriotic members of the Parliament of Paris in the least anticipated the singular and furious excesses of mora' and political innovation, wliich their country has within these few years exhibited, to the astonish-^ ment of Europe. M, Lm THE LAW OF BAILMENTS. 27 M. Le Brun^ who published, not many years ago, an Essay on Rcsponsib'iHty for Negledl [r], which he had nearly finished before he had seen the Commentary of Godcfroi, and, in all probability, without ever being acquainted with the opinion of Donellus, This author sharply reproves the triple division of negledts, and seems to disre- gard the rule concerning a benefit arising to hoth^ or to one^ of the contracting par- ties ; yet he charges Godefroi with a want of due clearness in his ideas, and v^ith a palpable misinterpretation of several laws. He reads in his quidY^m et diligentiam ; and that with an air of triumph ; insinuating, that qiiidxm was only an artful conjecture of Cujas and Le Conte^ for the purpose of establishing their system ; and he supports ([r] Essai sur la Prestation d^s FauteSf k Faris» cher Saugrain, 1764. hii 27 THE LAW OF BAILMENTS. his rruDu reading by the aiitliority of the Basilica ; an authority, which, on an- other occasion, he depreciates. He derides f 28 ] the absurdity of penn'itiing negligence in any contracl, and urges, that sucli per- misslon^ as he calls it, is against express law : " now, says he, where a contract is " beneficial to both parties, the dodlors " permit slight negligence, which, how " slight soever, is still negligence, and ouglit " always to be inhibited."' He warmly contends, that the Roman laws, properly understood, a.dmit only two degrees of di- hgence ; one, measured by that, which a provident and attentive father of a family uses in his own concerns ; another, by that care, which the individual party, of whom it is required, is accustomed to take of his onjDn possessions ; and he, very ingeniously, substitutes a new rule in the place of that wdiich he rejeds ; namely, that, when the things in qncyfion are the sole property of the THE LAW OF BAILMENTS, 28 the person to njDhotn they must be restored^ the holder of them is ohhged to keep them with the first degree of diligence ; whence he decides, that a borrozver and a hirer are responsible for precisely the same ne- gietl ; that a vendor, who retains for a time the custody of the goods sold, is un- der the same obligation, in respedt of care, with a man, who undertakes to manage the affairs of another, either imthout his request as a negotioriun gestor, or tvith it, as a mandatary : " but," says he, " ivhen the " things are the joint property of the ** parties coritraEitng^ no higher diligence " can be required than the second degree, *' or that, which the acting party com- *' monly uses in his own affairs ; and it " is sufficient, if he keep them^ as he keeps T 29 ] " his own''' This he conceives to be the distinction between the eight contrads, which precede, and the two^ which follow, the words /// his quidem el diligentiam. O Through- 29 THE LAW OF BAILMENTS. Throughout his work he displays no small sagacity and erudition, but speaks with too much confidence of his own decisions, and with too much asperity or contempt of all other interpreters from BaRTOLUS to ViNNIUS. At the time when this author wrote, the learned M. Pothier was composing some of his admirable Treatises on all the different species of express or implied contrasts ; and here I seize, with pleasure, an opportunity of recommending those treatises to the English lawyer, exhorting him to read them again and again ; for, if his great master Littleton has given him, as it must be presumed, a taste for luminous method, apposite examples, and a clear manly style, in which nothing is redundant, nothing deficient, he will surely ^ be delighted with works, in which all those advantages are combined, and the greatest portion THE LAW OF BAILMENTS. ^ portion of which is law at West7ninster as well as at Orleans [j-] : for my own part, I am so charmed with them, that, if my undissembled fondness for the study of jurisprudence were never to produce any greater benefit to the public, than barely [ 30 ] the introdudiion of Potiiier to the ac- quaintance of my countrymen, I should think that I had in some measure dis- charged the debt, which every man^ ac- cording to Lord Coke (13), owes to his profession^ To this venerable professor and iudo-e, V'ndicatlon ^ -* ^ of the old for he had sustained both charadiers with system by deserved applause, Le Brun sent a copy of his little work; and M. Pothier ho- noured it with a short, but complete, answer £.f] Oeuvres de M. Pothier y a Paris, chez Debure ; i zS voUirriCs in duodecimo, or 6 in quarto. The iniistrious author died in 1772. (13) 8ih Rep. pref. p. 34. 02 in 50 THF, LAW OF BAILMENTS. in the form of a Gc?ieral observation on his Treatises [/] ; declaring, at the same time, that he would not enter into a literary contest y and apologizing for his fixed adherence to the ancient system, which he politely ascribes to the natural bias of an old man in favour of opinions formerly imbibed. This is the substance of his ansv/er : " That he " can discover no kind of absurdity in " the usual division of uegleEl and diligence^ " nor in the ruh\ by which different de^ ^^ grees of them are applied to different " contradls ; that, to speak with strid: ^ propriety, negligence is not permitted " in any contract, but a less rigorous con^ *' striiciion prevails in some than in others ; " that a hirer^ for instance, is not consi- *' dered as negligent^ when he takes the ^' same care of the goods hired, which the " generality of mankind take of their owm ; \_t\ It is printed apart, in fourteen pages,, at the end of his Treatise on the Marriage-Contra^. " that THE LAW OF BAILMENTS. 30 *' that the letter to hh'c^ who has hus re- " ward, must he presumed to liave de- " manded at first no higlier degree of [ 31 J " dihgencG, and cannot justly complain " of that inatttntioH^ which in another " case might have heen culpahle ; for a " lender^ who has ?io reward, may fairly ** exad: from the borrower that extraordi- ** fjary degree of care, which a very at- " tentive person of his age and quality would " certainly have taken ; that the diligence, " which the individual party commonly " uses in his oivn affairs^ cannot properly *' be the objed of judicial inquiry ; for " every trustee, administrator, partner, or " co-proprietor, must be presumed by the " court, auditors, or commissioners be- " fore whom an account is taken, or a " distribution or partition made, to use '* in their own concerns such diligence, as " is commonly used by all prudent men ; " that it is a violation of good faith for " any 31 THE LAW OF BAILMENTS. " any man to take less care of another's " property, which has been intrusted to " him, than of his own ; that consequent- " ly, the autlior of the new system de- " mands no more of a partner or a joint- '^ owner than of a depositary^ who is bound " to keep the goods deposited as he keeps " his own ; which is directly repugnant " to the indisputable an undisputed sensQ " of the law ContraBus^ I cannot learn whether M. Le Brun ever published a reply, but am inclined to believe that his system has gained very little ground in France^ and that the old [ 32 ] interpretation continues universally admit- ted on the Continent both by theorists and pradisers. Nothing material can be added to Po- ^ THIEr's argument, which in my humble opinion, is unanswerable ; but it may not be THE LAW OF BAILMENTS. 22 he wholly useless to set down a few ge- neral remarks on the controversy : parti- cular observations might be multiplied without end. The only essential difference between the Observa- tions on lut systems of Godefroi and Le Brun re- Bmn. lates to the tivo contrads, which follow the much-disputed clause ; for the Swiss lawyer makes the partner and co-proprietor answerable for ordinary neglect, and the French advocate demands no more from them than coinmon honesty ; now, in this respect, the error of the second system has been proved to demonstration ; and the author of it himself confesses ingenuously, that the other part of it fails in the article of Marriage-portions \ii\ In regard to the division of negleiS: and care into three degrees or two^ the dispute [m] See p. 71. note 'f and p. 126, appears 32 THE LAW OF BAILMENTS. appears to be merely verbal ; yet, even on this head, Le Brun seems to be self- confuted : he begins w^ith engaging to prove " that only two degrees of fault " are distinguished by the Iav;s of Romc^'' and ends with drawing a conclusion, that they acknowledge but one degree : nov*", though this might be only a slip, yet the whole tenor of his book establishes tivo r 33 1 modes of cilUgence^ the omissions of which are as r.iaiiy negied:s ; exclusively oi gross negled', which he likewise admits, for the culpa levissima only is that, which he re- pudiates. It is true, that he gives no epithet or name to the omission of his second mode of care ; and, had he searched for an epithet, he could have found no other than g7-oss ; which would have de- monstrated the weakness of his whole sys- tem [i']. [■u] See pages 32, 73, 74. 1 49. The THE LAW or BAILMENTS, 33 The disquisition amounts, in fa£t, to this : from the barrenness or poverty^ as Lucretius (14) calls it, of the Lathi language, the single vv^ord culpa includes, as a generic term, various degrees or shades oi faulty which are sometimes distinguished by epithets, and sometimes left without any distiniftion ; but tlic Greeky which is rich and flexible, has a term expressive of al- most every shade, and tlie translators of the law CoiitraBus ad:ually use the v/ords 'fa3uu.!i and «w!>s/«, which are by no means synonymous, the former implying a certain easiness of mind or remissness of attention^ while the second imports a higher and more culpable degree of negligence [y^\ This [w] Bqfil'ica, 1, 3. 23. See Demoslh. 3 Piiil, Reiske^s edit. I. 112. 3. For levlsstma culpa, which occurs but once in the whole body of Roman law, 'fotSoMia seems the proper word in Greek ; and It is actually so used in the BasVica, 60. 3. 5. where mention is made of the jiqiiUtan law, In qua, says Ulpian, et kv'tssima culpa venit. D. 9. 2. 44. (14) De Rcr. Nar. lib. «. line 140. P observ- » 34 THE LAW OF BAILMENTS* observation, indeed, seems to favour the system of GodefrrA ; but I lay no great stress on the mere words of the translation, as I cannot persuade myself, that the Greek jurists under Basilius and Leo were per- fectly acquainted with the niceties and genuine purity of their language ; and there are invincible reasons, as, I hope, it has been proved, for rejecting all systems but that, which PoTHiER has recommend- ed and illustrated. English law. I come now to the laws of our own country, in which the same distinctions and the same rules, notwithstanding a few clashing authorities, will be found to pre- vail ; and here I might proceed chrono- logically from the oldest Tear-book or Trea- tise to the latest adjudged Case; but, as there would be a most unpleasing dryness in that method, I think it better to ex- amine separately every distind: species of bailment. THE LAW OF BAILMENTS. 34 bailment (15), observing at the same time, under each head, a kind of historical order. It must have occurred to the reader, that I might easily have taken a wider field, and have extended my inquiry to every possible case, in which a man possesses for a tunc the goods of another ; but I chose to confine myself within certain limits, lest, by grasping at too vast a subjed:, I should at last be compelled, as it frequently hap- pens, by accident or want of leisure, to leave the whole work unfinished ; it will be sufficient to remark, that the rules are in general the same, by whatever means [ 35 ] the goods are legally in the hands of the possessor, whether by delivery from the owner, which is a proper bailment^ or from any other person, by finding [.y], or in consequence of some distinct contrad;, [x] Doft. and Stud. dial. 2. ch. 38. Lord Raym. 909. 917. See Ow. 141. I Leon. 224. i do. 219. Mul- gra'ue and Ogclen. (j5)iSee Gibbon's Rom. Emp. vol. 8. p. 8-i. 85, 87, P 2 Sir 33 THE LAW OF BAILMENTS. Lord Holt's Sir John Holt, whom every E/iglish- divi'sion of i i i • • i c^ \ r Bailments. ^^^^ should mention with respect, and troin whom na English lawyer should venture to dissent without extreme diflidence, has taken a comprehensive vievv^ -of this whole subject in his judgment on a celebrated case (16), which shall soon be cited at length ; but, highly as 1 venerate his deep learning and singular sagacity, I shall find myself constrained, in some few instances, to differ from him, and shall he presump- tuous enough to offer a corredion or two In part of the dodrine, which he pro- pounds in the course of his argument [j]. His division of bailments into six sorts appears, in the first place, a little inac- curate ; for, in truth, his Jifth sort is ao more than a branch of his third and he [jj Lord Jlaym. 91a, (16) Coggs V. Bernard, 2 l^ord Raym. 909. See post, p. 58. and tlic case i^t full in the Ap.pendjxv might tious. THE LAW OF BAILMENTS. S5 might, with equal reason, have added a seventh^ since the fifth is capable of another subdivision. I acknowledge, therefore, but Jive species of bailment ; which I shall now enumerate and define, with all the Lat'm names, one or two of which Lord Holt has omitted. 1. Depositum, which is a [ -"^^ ] , , , ., . , ^ c J Ni'w division. naked bailment, witnout reward, or goods a^d dcHni- ' to be ^^// for the bailor. 2. Mandatum, or commission ; when the mandatary under- takes, without recompence, to Jo some a£l about the things bailed, or simply to carry them; and hence Sir Henry Finch di- vides bailment into tivo sorts, to kecp^ and to employ [2:]. 3. Commodatum, or loan for use ; when goods are bailed, with- out pay, to be used for a certain time by the bailee. 4. Pignori acceptum ; when a thing is bailed by a debtor to his creditor in pledge, or as a security for the debt. 5, LocATUM, or hiring, which is [»] Law, b. 2. ch. 1 8. always 36 THE LAW OF BAILMENTS, always for a reward ; and this bailment is either, 1. locatio rcl^ by which th,e hirer gains the temporary use of the thing ; or, 2, locatio operls faciendi^ when work and labour^ or care and pains ^ are to be per- formed or bestowed on the thing delivered ; or, 3, locatio operis ?nerclum vehendarinn^ when goods are bailed for the purpose of being carried from place to place, either to a public carrier, or to a private per* son (17). Law ofde- I. The most ancient case, that I can find in our books, on the dodtrine of Deposits, (there w^ere others, indeed, 4 few years earlier, which turned on points of pleading,) was adjudged in the eighth of Edward II. and is abridged by Fit%-^ (17) This division and classification of the different species of Bailment, will be considered by tlie student of tlie English law, as preferable both to Lord Holt's Analysis and the Order of the Imperial Institutes. See Vinnius in Instit. lib. 3. tit. 15. herhertx THE LAW OF BAILMENTS. 36 Boiiion's case. herhert \c{\. It may be called Bon ion's case, from the name of the plaintiff, and [ "> ^ J was, in substance, this : An action of de- tinue was brought for scals^ plate^ and jewels^ and the defendant pleaded, " that " the plaintiff had bailed to him a chest *' to be kept^ which chest was locked ; that " the bailor himself took away the key, " without informing the bailee of the con- " tents ; that robbers came in the night, " broke open the defendant^ chamber, and " carried off the chest into the fields, where •' they forced the lock, and took out the " contents ; that the defendant was robbed *' at the same time of his own goods." The plaintiff replied, " that the jewels *' were delivered, in a chest not locked, " to be restored at the pleasure of the " bailor," and 07i this, it is said, issue was joined, [a] Mayn. Edw. II. 275. FItz. Abr. tit. Detinue, 59. Upon 3T THE LAW OF BAILMENTS. Upon this case Lord Holt observes, " that " he cannot see, why the bailee should not " be charged w^ith goods in a chest as well " as with goods out of a chest ; for, says " he, the bailee has as little power over " them, as to any benefit that he might " have from them, and as great power " to defend them in one case as in the " other [/>]." The very learned judge was dissatisfied, we see, with Sir Kd'ward Cokeys reason, " That, when the jewels " v/ere locked up in a chest, the bailee " was not, in fiid, trusted with them [f]." Now there was a diversity of opinion, upon r 38 1 '^-'^^s very point, among the greatest lawyers of Rome ; for " it was a question, whe- " ther, if a box sealed up had been de- " posited, the box only should be demand- " ed in an action, or the clothes, which " it contained, should also be specified ; {b~\ Lord Raym. 914. [f] 4 Rep. 84. " and THE LAW OF BAILMENT?. 38 " and Trebatjus insists, that the ])ox " only, not the particuhir contents of it, *' must he sued for ; unless the things were " previously shewn, and then deposited : " hut Labeo psserts, that he, who dcpo- " sits the hox, deposits the contents of it ; " and ought therefore, to demand the " clothes themselves. What then, if the ** depositary iViis igiiorant of the contents f ** It seems to make no great difference, " since he took the charge upon himself; *' and I am of opinion, says IJlpian^ that, " although the hox was sealed up, yet an *' ad:ion may be lirought for what it con- " tained \jl\' This relates chiefly to the form of the libel ; but, surely, cases may be put, in which the difference may be very material as to the defence. Diamonds, gold, and precious trinkets, ought, from their nature^ to be kept witli peculiar care under lock and key : it v/ould, therefore, ld-\ D. i6. 3. I. 4T. Q be • 3S THE LAW OF BAILMENTS. he gross negligence in a depositary to leave such a deposit in an open antichamber, and ordinary negled:, at least, to let them re- main on his table, where they might possi- bly tempt his servants ; but no man can proportion his care to the nature of things, without knowing them : perhaps, there- [ 39 ] fore, it would be no more than slight negledl, to leave out of a drawer a box or casket, which was neither known, nor could justly be susped:ed, to contain dia- inonds ; and Domat (18), who prefers the opinion of Trcbat'ius^ decides, " that, " in such a case, the depositary would ** only be obliged to restore the casket, *' as it was delivered, without being re- " sponsible for the contents of it." I con- fess, however, that, anxiously as I wish on all occasions to see authorities respected, and judgments holden sacred, Bonion's case appears to me wholly incomprehen- (18) Civ. Law, lib. 1. tit. 7. § i. sible ; THE LAW OF BAILMENTS. 39 sible ; for the defendant Instead of having been grossly negHgent, (which alone could have exposed him to an adlion,) seems to have used at least ordinary diligence ; and, after all, the loss was occasioned by ^ burglary^ for which no bailee can be re- sponsible without a very special under- taking. The plea, therefore, in this case was good, and the replication, idle ; nor could I ever help susped:ing a mistake in the last words alii quod 7ion ; although Richard de Winchedon^ or whoever was the compiler of the table to this Year-book, makes a distinction, that, " if jewels be " bailed to me, and / put them into a " casket, and thieves rob me of them //? th& " night-time^ I am answerable ; not, if '^ they be delivered to me in a chest sealed " up ;" which could never have been law ; for the next oldest case, in the book of Assise^ contains the opinion of Chief Justice Xhorpe, that " a general bailee to keep- Q2 39 THE LAW OF BAILMENTS. " is not responsible, if the goods he stolen^ [ 40 ] " wilhout his gj^oss negletSt [<:] ;" and it appears, indeed, from Fii-zhcrbert^ that the party was driven to this issne, " wli ether " the goods were taken away by robhci^s.^' Mosaic laws. By the Mosiac institutions, " if a man " delivered to his neighbour money or "stuff to kcep^ and it was stolen out of " his houpe, and tlie thief could not be *' found, the master of the house was to " be brought before the judge, and to be " discharged, if he could swear, that he *' had not put his hand unto his neigh- *' hour's goods [y]," or, as the Roman author of the Lex Dei translates it, iVi- hil se ?ieqiiiter gess'tsse \_g^ : but a distind:ion seems to have been made between a stealing [tf] 29 AdS. 28. Bro. Abr, tU. Bailment, pi. 7. [/J Exod. xxii. 7, 8. [^] Lib. 10. De Deposito. This book is printed ia the same volume with th-c: ^'Ihcodosum Code, Paris, 1586. by THE LAW OF BAILMENTS. 40- by day and a stealing by night \jj\ \ and *' if CATTLE were bailed and stolen, (by " day^ I presu:nc,) the person who ha4 ** the care of thein was bound to make " restitution to the owner [/];" for which the reason seems to be, that, when cattle are deUvered to be kcpt^ the bailee is rather a mandatary than a depositary, and is, consequently, obliged to use a degree of diligence adequate to the charge ; now sheep can hardly be stolen in the day-time with- out some negle^l of the shepherd ; and we find that, when Jacob, who was, for a long time at least, a bailee of a different [ 41 ] sort, as he had a re-ward, lost any of the beasts intrusted to his care, Lab an made him answer for them " whether stolen by ♦' day or stolen by night [>^]." [Z>] Gen. xxxi. 39, [;j Exod, xxii. 12. fij Qen. xxxi. 39. Notwith- 41 THE LAW OF BAILMENTS. Notwithstanding the high antiquity, as well as the manifest good sense, of the rule, a contrary dodrine was advanced by Sir Edward Coke in his Reports^ and afterwards deliberately inserted in his Commentary on Littleton, the great re- sult of all his experience and learning ; namely, " that a depositary is responsible, '^ if the goods be stolen from him, unless *' he accept them specially to keep as his ^ own^'' whence he advises all deposita- ries to make such a special acceptance [/]. This opinion, so repugnant to natural rea- son and the laws of all other nations, he grounded partly on some broken cases in the Year-books, mere conversations on the bench, or loose arguments at the bar ; and partly on South cote's case, which he has reported, and which by no means war- rants his dedud:ion from it. As I humbly conceive that case to be law, though the [/] 4 Rep. 83. b. I. Inst. 89. a. b. dodrine THE LAW OF BAILMENTS. 41 doctrine of the learned reporter cannot in' all points be maintained (19), I shall offer a few remarks on the pleadings in the cause, and the judgment given on them. SouTHcoTE declared in detinue, that Southcote'» he had delivered goods to Bennet, to be by him safely kept : the defendant con- [ 42 ] fessed such delivery, but pleaded in bar, that a certain person stole them out of his possession ; the plaintiff replied, pro- testing that he had not been robbed, that the person named in the plea was a ser- vant of the defendant, and demanded judgment ; which, on . a general demurrer to the replication, he obtained. *' The " reason of the judgment, says Lord Coke^ " was, because the plaintiff had delivered ** the goods to be safely kept, and the (19) See 2 Ld. Ray. 911, and note (c), 912 — 914. " defendant 42 THE LAW OF BAILMENTS. . " defendant had taken the cliarge of them " upon himself, hy accepting them on *' SUCH a deUvery." Had the reporter stopped here, I do not see what possible objediion could have been made ; but his /' exuberant erudition boiled over, and pro- duced the frothy conceit, w^hich has occa- sioned so many refiedions on the case it- self; namely, " that to keep and to keep " SAFELY are one and the sam.e thing;'* a notion, vs'^hich was denied to be law by the whole court in the time of Chief Justice Holt [/«]. It is far from my intent to speak in derogation of the great commentator on Littleton ; since it may truly be asserted of him, as QifintHia?i said of Cicero, that an admiration of his ivorks is a sure mark of some projicieney in the study of the [m] Ld. Raym. 911. margin. law ; THE LAW OF BAILMENTS. 42- law (20) ; but it must be allowed, that h'lS profuse learning often ran wild, and that he has injured miiny a good case by the vanity of thinking to improve them. The pleader, who drew the replication [ 43 ] in SoNt/jcoie's case, must have entertained (20) " Ille se profecisse sclat, cui Cicero valde " placeblt." Instit. Orat. lib. 10. c. i. § 6. Among the orators and statesmen of the ancient world, none has established a fairer claim to the applause and gra- titude of posterity than Cicero ; his orations are mo- dels of all that is to be admired and studied in elo- quence — hi? other valuable produclions have trans- mitred the best precepts of the rhetorical science, and tlie moral wi.sdom of a mind that, amidst the most important public avocations, cirefully and profoundly noted every circumstance illustrative of the duties of men. This example should not be forgotten by those who are most busily engaged in the pursuits of ho- nourable ambition : knowledge acquired by intercourse •with mankind is of the highest pra6lical value, and when communicated under the sanction of respedable talents and chara£ter, will not be imparted in v.in. Thus might many great men secure a celebrity inile- pendent of the caprice of contemporary applause, and close the scene of life v/ith the conscious exclamation of the poet, *• Exegi monumentum xre nerennius." R an 4S THE LAW OF B AILMENTS. an Idea, that the blame was greater^ if a servant of the depositary stole the goods, than if a mere stranger had purloined them ; since the defendant ought to have heen more on his guard against a person, who had so many opportunities of stealing j and it was his own fault, if he gave those opportuni- ties to a man, of whose honesty he was not morally certain : the court, we find, rejected this distindion, and also held the replication informal, but agreed, that no advantage could be taken on a general de- murrer of such informality, and gave judg- ment on the substantial badness of the plea \_n\ If the plaintiff, instead of re- plying, had demurred to the plea in bar, he might have insisted in argument, with reason and law on his side, " that, although " a general bailee to keep be responsible for " GROSS negle6t only^ yet Bennet had, by *' a special acceptance, made himself an- [«] I Cro. 815. ;' " swerable THi: LAW OF BAILMENTS. '43 '* swerable for ordinary neglect at least ; " that it was ordinary aegledt to let the *' goods be stolen out of his possession, and ^* he had not averred that they were stolen *' ivithont his default ; that he ouglit to " have put them into a safe place, accord- " ing to his undertaking, and have kept " the key of it himself; that the special " bailee was reduced to the class of a " condi'Mor operis^ or a workman y^r hire ; " and that a tailor, to whom his employer " has delivered lace for a suit of clothes, [ 44 "I " is bound, if the lace be stolen^ to restore '' the value of it [^]." This reasoning [0] " Alia est furt'i ratio ; id enim nan cafui, sed le'ui ** culpte, ferme ascribitur." Gothofr. Comm. in L. Con- fraSur, p. 145 See D. 1 7. 2, 52. 3. where, says tli,e annotator, " Adversus latrones parum prodest custodia } *' adversus furem prodesse potest, si quis advlgilct " See also PoTH. Contrat de Louage, n 429. and Contrat de Pret a ufage, n. 53 So, by Justice Cotiefmore, " Si jeo grante ** byens a uii home a garder a mon oeps, si Ics byens per <* son mesgarde sonC emhles, il sera charge a moy de mesmes *' les bycns, mez s'il soit robbe de mesmes ks byens, il est <♦ excusable per le ley." le Hen. VI. 21, R 2 would 44 THE LAW OF BAILMENTS. would not have been just, if the bailee had pleaded, as in B(jnion\ case, that he had been robbed by violence^ for no degree of care can, in general, prevent an open rob- bery : impdits prcedoHum^ says Ulpian, a nullo prcsstantur, Mr. Justice Powell, speaking of 5c/ ////?- cote\ case, which he denies to be law, admits, that, " if a man does undertake; *♦ specially to keep goods safely, that is ^' a warranty, and will oblige the bailee " to keep them safely against perils, where " he has a remedy over^ but not against " those where he has no remedy over [/>]•" One is unwilling to suppose, that this learned judge had not read Lord Coke\ report v>rith attention ; yet the case, Vv'hich he puts, is precisely that which he opposes, for Ben- net did undertake " to keep the goods " safely ;" and, with submission, the. [/3 Ld. Raym. 912. degree THE LAW OF BAILMENTS. 45 degree of care demanded^ not the remedy ovcr^ is tiic true measure of the obligation ; for the bailee might liave his appeal of rob- bcry^ yet he is not bound to keep the goods iiga-inst robbers without a most express agree- ment \jf\. This, I apprehend, is all that was meaned by St. German, Vv^hcn he fays, " that, if a man have nothing for *^ keeping tlie goods bailed, and promise, *' at the time of the delivery, to restore *' them safe at his pcrll^ he is not respon- *' sible for mere castialties [r] ;" but the rule extradied from this passage, " that a *' special acceptance to keep safely will ** not charge the bailee against the ads " of wrong-doers [j"]," to which purport HoBART also and Croke are cited, is too general, and must be confined to a£ts of violence. fy] 2 Sho. pi. 166. \r'\ Do£l. and Stud. dial. 2. chap. 38. fj] Com. 135. Ld. Raym. 915. I can- 45 TFIB LAW OF BAILMENTS. I cannot leave this point without re- marking, that a tctumt at will, whose in- terest, when he has it rent-free, tlie Romaiis C;i!lcd PRECARiUM, Stands in a situation exadly parallel to that of a depositary : lor, although the contradl he for his be- nefit, and, in some histances, for his be- nefit only, yet he has an interest in the land till the will is determined, " and, our *' law adds it is the folly of the lessor, if ^ he do not restrain him by a special " condition :" thence it was adjudged, in the Countess of Shreit'sbiwy^ case, " that [ 46 ] " an ad:ion will not lie against a tenant " at will generally, if the house be burned " through his negled: [/] ;" but, says Jus-^- tice Poivel, " had the adion been founded " on a special undertaking, as that, in con-. " sideration that the lessor would let him " live in the house, he would deliver it " up i?! as good repair as it then ivas iny [/] 5 Rep. 13. b. " such THE LAW OF BAILMENTS. 46 " such an action would have been main- " tainable [^^^J-" It being then established, that a bailee R^les and exceptions, of the jirst sort is answerable only for a fraud., or for gro^s negled:, which is con- sidered as evidence of it, and not for sUch ordinary inattentions as may be compatible with good faith ^ if the depositary be him- self a careless and inattentive man ; a ques- tion may arise, whether, if proof be given, that he is, in truth, very thoughtful and vigilant in his own concerns., he is not bound to restitution, if the deposit be lost through his negle£l, either ordinary or slight ; and it seems easy to support the affirmative ; since in this case the measure of diligence is that ivhich the bailee uses in his own affairs. It must, however, be confessed, that the charad:er of the indi- vidual depositary can hardly be an object [m] Ld. Raym. 911. of 46 THE LAW OF BAILMENTS. of judicial discussion : if he be sl'ightly or even ordinarily negligent in keeping the goods deposited, the favourable presump- tion is, that he is equally negled.ful of his own property ; but this presu'.T.ption, like all others, may be repelled ; and, if r 47 ] it be proved, for instance, that, his house being on lire, he saved his own goods, and having time and power to save also those deposited, suffered them to be burned, he shall restore the worth of them to the owner \w\ If indeed, he have time to save only one of two chests, and one be a deposit, the other his own property, he may justly prefer his ov/n ; unless that contain things of small comparative value, and the other be full of much more pre- cious goods, as hoe linen or si]ks ; in which case he oun:ht to save the more va- luable chest, and has a right to claim in- \jiu\ Yoiw. Conlrat de Depot, n. 29. Stiernh. de Jure Stieon. 1. 2. c. 5. demni- THE LAW OF BAILMENTS. 47 demnification from the depositor for the loss of his own. Still farther ; if he com- mit even a g?-oss negled: in regard to his own goods as isocll as those hailed, by which both are lost or damaged, he ca?i?iot be said to have violated good faith ^ and the bailor must impute to his own folly the confidence which he reposed in so improvident and thoughtless a person [x]. To this principle, that a depositary is answerable ojily for g?-oss negligence, there are some exceptions. First, as in Southcote\ case, where the bailee, by a special agreement, has engaged to answer for less : " Si quid nominatim convenit," says the Roman lawyer, " vel plus vel minus in singulis contradlibus, [ 48 ] hoc servabitur quod initio convenit ; le- [w] Braft. 99. b. Justin. Inst. 1. 3. tit. 15. gem S " 48 THE LAW OF BAILMENTS, *' gem enim contradiii dedit [j'] ;" bnt the opinion of Gels us, that an agree- ment to dispense 'with deceit is void, as being contrary to good morals and de- cency, has the assent both of Ulp'ian and our English courts [is]. Secondly ; when a man spontaneously and officiously proposes to keep the goods of another, he may prevent the onjuner from intrusting the?n utnth a person of more ap- proved vigilance ; for which reason he takes npon himself according to Julian, the risk of the deposit^ and becomes responsible at least for ordinary 7iegle£i^ but not for mere casualties \d\. Where things are deposited through necessity on any sudden emergence, as a f jV] 1. ConfraSus, 23. D, de reg. jtir. [a] Dod. and Stud. dial. 2. chap. 38. [a] D. 16. 3. I. 35. fire THE LAW OF BAILMENTS. 4S fire or a shipwreck, M, Le Br un in{;ists, *' that the depositary must answer for Less " than gross negled:, how careless soever " he may be in his own affairs ; since " the preceding remark, that a man^ ivIjo " reposes conjidcncc in an hnprovldcnt person^ " must impute i.iny loss to his oivn folly ^ ^' is inapplicable to a case w^here the de- " posit was not optional ; and the law *' ceases with the reason of it [/>] ;" but that is not the only reason ; and, though it is an additional misfortune, for a- man in extreme haste and deep distress to light upon a stupid or inattentive depositary, [ 49 ] yet I can hardly persuade myself, that more than perfed: good faith is demanded in this case, although a violation of that faith be certainly more criminal than in other cases, and was therefore punished at Rome by a forfeiture of the double value of the goods deposited^ [b'\ De la Prestatio?! des F aides, p. 77. S 2 ' In 49 THE LAW OF BAILMENTS. In these circumstances, however, a be- nevolent offer of keeping another's pro- perty for a time would not, I tldnk, Imng the case within Jidia7i\ rule before-men- tioned, so as to make the person ofiering answerable for slight^ or even ordincwy^ negligence ; and my opinion is confirmed by the authority of Labeo, who requires no more than good faith of a ncgotiorum gestor, when '■'• aifedtione coad:us, ne bona " mea distrahantur, negotiis se meis ob- ^' tulerit." Thirdly ; when the bailee, improperly called a depositary^ either d'jrcdlly demands and receives a reward y^/r his care^ or takes the charge of goods hi consequence of some lucrative contradt, he becomes answerable for ordinary negled; ; since, in truth, he is in both cases a conductor opcris^ and lets out his mental labour at a just price : thus, when clothes are left with a man, who THE LAW OF BAILMENTS. 49 who is paid for the use of his bath, or a trunk with an inn-keeper or his servants, or with a ferryman, the bailees are as much bound to indemnify the owners, if the goods be lost or damaged through their want of ordinary circumspedlion, as if they were to receive a stipulated re- co^xv^QVi.z'c any {famage inciin-ed^ and ivhile another person may be employed^ that he cannot perform the work, no process of law can enforce the per* formance of it. ■ A case in Brook, made complete from the Year-book, to which he refers, seems diredly in point ; for, by Chief Justice FiNEux, // had been adjudged, that, " if " a man assume to build a house for me " by a certain day, and do not build it, " and I suffer damage by his nonfesance, " I shall have an ad ion on the case, as " well as if he had done it amiss ;" but it is possible, that Fineux might suppose a consideration, though none be jnen- tioned \w\ [sz] Bio. Abi. tit. Adlion sur le Case, 72* (35) (25) 5 Term Rep. 143. Adlions THE LA.W OF BAILMENTS. 58 Actions on tliis contract are, indeed, very uncommon, for a reason not ex- tremely flattering to human nature ; be- cause it is very uncommon to undertake any office of trouble without compensation : but, whether the case really happened, or the reward, which had actually been stipulated, was omitted in the declaration, the question " whether a man was re- *' sponsible for damage to certain goods " occasioned by his negligence in perform- " ing a GRATUITOUS promise," came before the court, in which Lord Holt pre- sided, so lately as the second year of Queen Anne ; and a point, which the first elements of the Ro??ia/i law have so fully decided, that no court of judicature on the Continent would suffer it to be debated, was thought in England to deserve^ what it certainly received, very great consideratioti [;/]. [«] Ld. Raym. 909 — 920. I Salk. 26. Com. 133. Farr. 13. 131. 528. The 5^ THE LAW OF BAILMENTS. Case of The case was this: Bernard had as- Coggs and Bernard, suined 'Without pay safely to remove several • casks of brandy from one cellar, and lay them down safely in another, but managed them so negligently, that one of the casks was staved. After the general issue joined, ^ and a verdid: for the plaintiff Coggs, a motion was made in arrest of judgment on the irrelevancy of the declaration, in which it was neither alledged, that the defendant w^as to have any recompence for his pai?is^ nor that he was a common por^ [ 59 ] ter : but the court were unanimously of opinion, that the action lay ; and, as it was thought a matter of great conse- quence, each of the judges delivered his. opinion separately. The Chief Justice, as it has before been intimated [<>], pronounced a clear, me- thodical, elaborate argument ; in which - he distinguished bailments into sis^ sorts, [^3 P. 35. THE LAW OF BAILMENTS. 59 and gave a history of the principal au- thorities concerning each of them. This argument is justly represented by my learned friend, the annotator 07i the First hist'itute^ as " a most masterly view of " the whole subjedt of bailment [/] ;" and, if my little work be considered merely as a commentary on it, the student may, [p] Hargr. Co. LItt. 89. b. n. 3. The profession must lament the necessary suspension of this valuable work (36). (26) Perhaps it may be thought superfluous to in- timate that the cause of this regret no longer exists, the publication alluded to having been since com- pleated by Mr. Butler. The editorial labours of the learned gentleman who enjoyed the friendship of our author, extended to very nearly half the work, ssee Mr. Hargrave's Address to the Public, ist Instit. 13th edition,) and it has, upon the whole, been executed so much to the satisfaction of the profession, that a comparison of the merits of the two respectlable editors vrould be invidious, " et vitula tu dignus, et hie :" if the extensive legal learning and profound reason- ing (sometimes a little recherche') of Mr. Hargrave excite the admiration of the studious lawyer, he can- not but respedl the manly sense and useful industry of Mr. Butler. perhaps. THE LAW OF BAILMENTS. perhaps, think, that my time and atten- tion have not been unusefiilly bestowed. For the decision of the principal case, it would have been sufficient, I imagine, to insist that the point was not new^ but had already been determined ; that the writ in the Register, called, in the strange dialedl of our forefathers, De p'lpa v'lni carianda [^], was not similar, but identical ; for, had the reward been the essence of the a!', as v.'cll as age, of the borrow^er, he must be supposed to have demanded no hi(>-ber care tiian that of which suib a ■ person Vv^as capable ; as, if Paul lend a fine horse to a raw youth, he cannot exad: the same degree of management and circum- sped:ion, which he would expeft from a riding-master, or an officer of dragoons [ j']. From the rule, that a borrower is an- swerable for s//^bt negled, com.pared with r 66 1 t^^ distindion before made between sim- ple i/jcft and robbery [2], it follows, that, if the borrowed goods be stolen out of his possession by any person whatever, he must pay the worth of them to the lender, unless he prove that they were purloined \^y\ Dummil'in^ tra6^ De en quod interest, n. 185. [z] Sec u. 44. and note {_o~\, notwith- THE LAW OF BAILMENTS. 66 notwithstanding his extt-aordhiary care. The example given hy JuUaii^ is the lirst and best that occurs : Cuius- borrows a silver ewer of Tii'uis^ and ai'tcrwards delivers it, that it may be safely restored, to a bearer of such approved fidelity and wariness, that no event could be less ex- peded than its being stolen ; if, after all, the bearer be met in the vsay by scoun- drels, who contrive to steal it, Ca'ius ap- pears to be wholly blamelcos, and Tu'i/is has suffered damnum sine in'iuria. It seems hardly necessary to add, that the same care, which the bailee is bound to take of the pruicipal thing bailed, must be ex- tended to such accessory things as belong to it, and were delivered with it : thus a man v^iio borrows a watch, is responsible . for slight negledt of the chain and seals. Although the laws of Rome, with which OpJnlon of those of England in thia respect agree, disputed. y 2 most 66 THE LAW OF BAILMENTS. most expressly deckle, that a borrower, using more than oj'dinary diligence, sIuiH no^ he chargeable^ if there be a force 'which he cannot resist \_a\ yet Pljffendorf em- ploys much idle reasoning, which I am not idle enough to transcribe, in support of a new opinion, namely, " that the bor- [ 67 J « rower ought to indemnify the lender, " if the goods lent be destroyed by fu'e, " shipwreck, or other inevitable accident, " and ivithoi/.t his faulty unless his own *' perish with them :" for example, i£ Paul lend William a horse worth thirty guineas to ride from Oxford to London^ and William be attacked on a heath in that road by highwaymen, ,who kill or seize the horse, he is obliged, according to Pt/ffeiidorf and his annotator, to pay thirty guineas to Paul. The justice and good sense of tlie contrary decision are evinced beyond a doubt by M, PoTiiiER, [] ; as if Paiil^ having lent his horse, should be forced in the interval by some pressing business to Jj'ire another for himself; in this case the bor- rower ought, indeed, to pay for the hired horse, unless the lender had voluntarily submitted to bear the inconvenience caused by the loan ; for, in tiiis sense and in this instance, a bctiejii conferred should not be injurious to the benefactor. As to a con- dition presumed to be imposed by the lender, that he would not abide by any loss occasioned by the lending, it seems the wildest and most unreasonable of presump-^ [^] Pnth. Pret a Usage, n. ^^, Piif. with Barlcyrac\ notes, b. 5. c. 4. ^ 6. tions ; 67 THE L'AW OF BAILMENTS. tions : li Paul really intended to impose [ 68 J such a condition, he should liave declared his mind ; and 1 persuade myself, that William would have declined a favour so hardly obtained. Cases and j^^^^^j ^^^ borrower, indeed, been im- distindtions. prudent enough to leave the high road and pass through some thicket, where robbers might be supposed to lurk, or h;id he travelled in the dark at a very unseasonable hour, and had the horse, in either case, been taken from him or killed, he must have indemnified the owner ; for irj'esistihlc force is no excuse, if a man put himself in the way of it by his own rashness. This is nearly the case, cited by St. Gtrman from the Sumtna Rosella^ where a loaft must be meaned, though the word depositum be erroneously used \c\ ; and it is there decided, that, if the bor- [f] Docl. and Stud, where before cited. "rower THE LAW OF BAILMENTS. 68 rower of a horse will imprudently ride by ^? riunons house hi manifest diniger of fallingy and part of it a»£lually fall on the horse's head, and kill him, the lender is entitled to the price of him ; but that, if the house were in good condition and fell by the violence of a sudden hurricane, the bailee shall be discharged. For the same, or a stronger, reason, if William^ instead of coining to London^ for which purpose the horse was lent, go towards Batb^ or, having borrowed him for a week, keep him for a month, he becomes responsible for any accident that may befal the horse in his jourriey to Batb^ or after the ex- piration of the week [d\ Thus, if Charles^ In a case before put [ indeed, a poor artist, having lost or spoiled his violin or flute, be much distressed by this loss ; and a bro- ther-musician obligingly, though volufita- rily^ offer to lend him his ow^n, I cannot agree with Despeisses, a learned advo- cate of MoHtpelier and writer on Roman law, that the player may be less careful of it than any other borrower : on the contrary, he is bound, in conscience at least, to raise his attention even to a higher degree; and his negligence ought to be construed with rigour. By tlie law of Moses, as it is com- Mosaic and 1 11 1 1 1 T • r^ . Attic laws. monly translated, a remarkable distma:ion was made between the loss of borrowed cattle or goods, happening in the absence^ or the presence^ of the owner ; for, savs the divine legislator, " if a man borrow " aught of his neighbour, and it be hurt " or ^3 THE LAW OF BMLMENTS. *' or die, the ouovcr thereof not be'nig 'with " i/, he shatl surely make it good ; but " if the nivner thereof he with it, he shall " not make it good [ j] :" now it is by [ 74 ] no means certain^ that the original word signifies the owiicr^ for it may signify the possessor^ and the law i7iay import, that the borrower ' ought not to lose sight, when he can possibly avoid it, of the thing borrowed ; but if it was intended that the borrower should always answer for casualties, except in the case^ which must rarely happen, of the o'wners pre- sence^ this exception seems to prove, that no casualties were meaned, but such as extraordinary care might have prevented ; for I cannot see, what difference could be made by the presence of the owner, if the force, productive of the injury, were v>^holly irresistible, or the accident inevitable. [^] Exod. xxll. 14, 15. An THE LAW OF BAILMENTS. 74 An old Aihcnian Kuv is preserved by Dcniosihaics^ from wiiich little can be ga- thered on account of its generality and the use of an ara])iguous word [/;] : it is understood ov Pcin as relating to gu.nd- ians, mandataries, and commissioners ; and it is cited by tlie orator in the case of a guardianship. The j'Uhoi'uvis were, pro- bably, satisfied with speaking very gene- rally in their laws, and left their juries, for juries they certainly had, to decide favourably or severely, according to the circumstances of each particular case. IV. As to the degree of diligence which [" 75 ] the law requires from a paiviice^ I find Law of ir « ^ f 1 1' /-/-,. pledges. myseli agam obliged to dissent rrom Sir EdiDard Coke^ v/ith v»"hose opinion a simi- lar liberty has before been taken in regard ?%•<. Rerske's edition, 855. 3. Here tlie verb ;t«'':/ai/6v«; may imply slight, or ordinary, negleft ; or even fraud, as Pftii has rendered it. A a to 75 THE LAW OF BAILMENTS. Doftn'ne of fo a depositary ; for that very learned man Lord Coke . . denied. lays it down, that, " if goods be delivered y " to one as a gcige or pledge^ and they " be stolen^ he shall be discharged, because " he hath a property in them ; and, there- '•^ fore^ he ougiit to keep them no other 'Wise " than his own [/] :" I deny the first pro* position, the reason, and the conclusion. Since the bailment, which is the subje(3^ of the present article, is beneficial to the paivnee by securing the payment of his debt, and to the paivnor by procuring him credit, the rule which natural reason pre- scribes, and which the wisdom, of nations has confirmed, makes it requisite for the person to whom a gage or pledge is bailed, to take ordinary care of it ; and he must consequently be responsible for ordinary neglect [/]. Tliis is expressly holden by [i] I Inst. 8g. a. 4 Rep. 83. b. [ij Braa. 99. b. Bracton ; THE LAW OF BAILMENTS. 75 Br AC TON ; and, when I rely on his au- thority, I am perfectly aware tliat he copied Justinian ahnost word for word, and that Lord Holt, who makes consi- derable use of his Treatise, observes three or four times, " that he mms an old au- " thor [/] ;" but, although he had been a civilian, yet he was also a great common- [ *76 j lawyer, and never, I believe, adopted the rules and expressions of the Romans, ex- cept when they coincided with the laws of Efigland in his time : he is certainly the best of our juridical classics ; and, as to our ancie?it authors, if their doclrine be Tiot IcTw, it must be left to mere historians and antiquaries ; but, if it remain unim- peached by any later decision, it is not only equally binding with the most recent law, but has the advantage of being ma- tured and approved by the collecfied saga- city and experience of ages. The dod;rine [/] Ld. Raym. 915. 916. 919. A a 2 in 7$ THE LAW OF BAILMENTS. - i in question has the full assent of Lord Holt himself, who declares it to he " svjfi- *' cleiit^ li tlie pawnee use true and o7'di- " nary diligence for restoring the goods, " and that, so doing, he will he indemni- " fied, and, notwithstanding the loss, shall " resort to the pawnor for his debt (i^9).'* Now it has been proved, that " a bailee " cannot be considered as using ordinary " diligence, who suffers the goods bailed" " to be taken by stealth out of his cus- " tody \jif\ ;" and it follow^s, that " a " pawnee shall not be discharged, if the *' pawn be simply stolen from liirn ;" but if he be forcibly robbed of it ivitbout his faulty his debt shall not be extinguished, The passage in the Roman institutes, ^. which Braclon has nea^rly transcribed, by [w] p. 44. note [0]. {29^ Ld. Raynj. 917. no THE LAW OF BAILMENTS. 76 no means convinces M. Le Brun, that a pawnee and a borruivcr are not re- sponsibie for o}ic and the same degree ot [ 77 ] negligence ; and it is very certain that Ulpian speaking of the Aclio p'lgnoraiiUa^ uses these remarkable words : " Venit in *' hac aclione et dolus et culpa UT in ^' commodato^ venit et custodia ; vis major " non venit." To solve this difficulty Conjeaural criticism oi Isloodt has recourse to a conjedural emen- Noodt. dation, and supposes UT to have been inadvertently written for AT ; but if this was a mistake, it must have been pretty ancient, for the Greek translators of this sentence use a particle of similitude, not an adversative : there seems, however, no occasion for so hazardous a mode of cri- ticism. Ulpian has not said, " talis culpa *' quails in commodato ;" nor does the word UT imply an exadi resemblance: he meaned, that a pawnee was answer- able for fiegle&y and gave the hrst in- stance 77 THE LAW OF BAILMENTS. Stance that occurred of another contract, in which the party was Ukewise answer- able for negle&^ but left the sort or degree of negligence to be determined by his ge- neral rule ; conformably to which he him- self expressly mentions pi gnus among other contrads reciprocally useful^ and dis- tinguishes it from COM MO DATUM, whence the borrower solely derives advantage \n\. Case in the It is rather less easy to answer the case Bo k of . , ^ . Assise. in the Book of Assise^ v/hich seems wholly subversive of my reasoning, and, if it stand unexplained, will break the har- [ 78 ] mony of my system [o] ; for there, in an action of detinue for a hamper, which had been bailed by the plaintiff to the defendant, the bailee pleaded, " that it " was delivered to him in gage for a " certain sum of money ; that he had put " it among his other goods ; and that all [n] Before, p. i6. [o] 29 Ass. pi. 28. ** together THE LAW OF BAILMENTS. " together had been stolen from hun :' now according to my doctrine, the plain- tiff might have demurred to the plea ; but he was driven to reply, " that he tcn- " dered the money before the stealings and " that the creditor refused to accept it," on which fact issue was joined ; and the reason assigned by the Chief Justice was, that, " if a man bail goods to me to kecpy " and I put them among my own, I shall " not be charged if they be stolen^ To this case I answer : first, that, if the court really made no difference between 2l paivnec and a depositary they were indubitably mis- taken ; for which assertion I have the au- thority of BraElon^ Lord Holt^ and St. German^ who ranks the taker of a pledge in the same class with a hirer oi goods [/] ; next, that in a much later case, in the reign of Hen. VI. where a hiring of cus- tody seems to be meaned, the distinction [/] Doa. and Stud, dial 2. ch. 38. between 78 THE LAW OF BAILMCNTS. between a theft and a robbery is taken agreeably to the Roman law \_q\ ; and, lastly, that, although in the strid: pro- priety of our English language, to steal is to take clandestinely^ and to rob is to seize by violence^ corresponding with the Norman verbs embleer and robber^ yet those [ 79 ] words are sometimes used inaccurately ; and I always suspeded, that the case in the Book of Assise related to a robbery^ or a taking with force ; a suspicion confinncd beyond any doubt by the judicious Brook ^ who abridges this very case with the fol- lowino; title in the mariiin, " Cue serra " al perde, quant les biens sont robbcs [/"]:" and in a modern work, where the old cases are referred to, it appears to have been settled, in conformity to them and to reason, " that if the pawn be laid up, and the " pawnee be robbed^ he shall not be an- [y] Before, p. 44.. note [0]. [r] Abr. til. B..ilment, pi. 7. " swerable :" THE LAW OF BAILMENTS. '79 " swerable [.f] :" hut Lord Coke seems to have used the word slolcn \\\ its proper sense, because he plainly compares a pawn with a deposit. If, indeed, the thing pledged be taken openly and violent! ]> through the fault of the pledgee, he shall be responsible for it ; and, after a tender and refusal of the mo- ney owed, which are equivalent to actual payment^ the whole property is instaiitly re- vested in the pledgor^ and he may conse- quently maintain an adion of trover [/] : it is said in a most useful work, that by such tender and refusal the thing pawned " ceases to be a pledge and becomes a " deposit \ii\ ;" but this must be an error fj-] 2 Salk. 522. [/] 29 Ass. pi. 28. Yelv. 179. RalcTiff and Davis. [wj Law of A^ij-i Prills, 72. (30) (30) In the subsequent editions of that work, the words " fi?i(I becomes a deposit" are omitted. of Bb 79 THE LAW OF BAILMENTS* of impression ; for there can never be SL deposit without the owner's consent, and a depositary would be chargeable only for [ 80 ] gross negligence, whereas the pawnee^, whose special property is determined by the wrongful detainer, becomes liable in all possible events to make good the thing lost, or to relinquish his debt ['^J. Lord Colce"^ 'Xhe reason given by Coke for his doc-- reasons con- tested, trine, namely, " because the pawnee has " a property in the goods pledged," is ap- plicable to every other sort of bailment^ and proves nothing in regard to any par- ticular species ; for every bailee has a tem- porary qualified property in the things of which possession is delivered to him by the bailor, and has, therefore, a possessory adion or an appeal in his own name against any stranger who may damage or [w] Ld. Raym. 917. purloin . THE LAW OF BAILMENTS, 80 purloin them [x]. By the Roma?i law, indeed, " even the possession of the de- " pooitary was holden to he that of the " person depositing ;" but with us the general bailee has unquestionably a Ihnited property in the goods intrusted to his care : he may not, however, use them on any account without the consent of the owner, either expressly given, if it can possibly be obtained, or at least strongly presumed ; and this presumption varies, as the thing is likely to be better, or worse, or not at all atfecled, by usage ; since, if Cains de-. posit a scttbig-dog with Tltius^ he can hardly be supposed unwilling that the dog should be used for partridge-shooting, and thus be confirmed in those habits w^hich make him valuable : but, if clothes or Ihicii be deposited by him, one can scarce ima- gine that he would suffer them to be worn j and on the other hand it may justly be [.v] Yc\ub. 2 1 Hen. VIT. 14. b. 15. a. B b 2 inferred, [81 ] 81 THE LAW OF BAILMENTS. inferred, that he would gladly indulge Tt- tins in the liberty of using the books of which he had the custody, since even mo- derate care would prevent them from being injured. In the same manner it has been liolden, that the pawnee of goods, which will be impaired by usage, cannot use them ; but it would be otherwise, I ap- prehend, if the things pawned actually required exercise and a continuance of habits, as sporting-dogs and horses : if they cannot be hurt by being worn, they jnay be used, but at the peril of the pledgee ; as, if chains of gold, ear-rings, or bracelets, be left in pav»ai with a lady, and she vv^ear them at a public place, and be robbed of them on her return, she must make them good : " if she keep them \rx " a bag," says a learned and respectable writer, " and they are stole?!., she shall " not be charged [ j] ;'^ hut the bag could [j] Law of Ni;i Prlus, 'JZ. hardly THE LAW OF BAILMENTS. 81 hardly be \.dkQVi privately a?id quiclly \vith- out her omission of ordinary diligence \ and the manner in which Lord Holt jnits the case establishes my system, and confirms the answer just oifered to the case from the Year-book ; for, " if she keep the *' jewels," says he, " locked up in her cabi- ^' net, and her cabinet be broken opcn^ and *'' the jewels taken thence, she will not be [ 82 ] " answerable [2]." Again ; it is said, that, where the pawnee is at any expence to maintain the thing given in pledge, as, if it be a horse or a cow, he may ride the horse moderately, and milk the cow re- gularly, by way of compensation for the charge \ci\ ; and this do£lrine must be equally applicable to a general bailee, who ought neither to be injured nor benefited in any resped: by the trust undertaken by him ; but the Roman and French law, niore agreeably to principle and analogy, [zj Ld. Raym. 917. [aj Ovv. 124. permits 82 THE LAW OF BAILMENTS. periBits indeed both the pawnee and th^ depositary to milk the cows delivered to them, but requires them to account with tlie respective owners for the value of the milk and calves, deducting the reasonable charges of their nourishment [/»]. It fol- iow^s from these remarks, that Lord Coke lias assigned an inadequate reason for the degree of diligence which is demanded of a pawmee ; and the true reason is, that the law requires nothing extraordinary of him, But, if the receiver in pledge were the only bailee who had a special property in the thing bailed, it could not be logically inferred, " that, therefore^ he ought to " keep it merely as his owfi ;" for, even if Cains have an absolute undivided pro- perty in goods, jointly or in common with Septimius^ he is bound by rational, as well [^j Poth. Depot, 11. 47. Nantissement, n. l^. as THE LAW OF BAILMENTS. 83 as positive, law to take more care of them than of his owfi^ unless he be in fad: a prudent and thoughtful manager of his own concerns : since every man ought to use ordhiary diligence in affairs which in- terest another as well as himself; " AVtcna " negotia," says the emperor Constan- TiNE, " exa&o officio geruntur [^]." The conclusion, therefore, drawn by Sir Echvard Coke^ is no less illogical than his premises are weak ; but here I must do M. Le Brun the justice to observe, that the argument, on which his whole system is founded, occurred likewise to the great oracle of Efiglish law ; namely, that a person who had a property in things com- mitted to his charge, was only obliged to be as careful of them as of his oizm goods ; which may be very true, if the sentence be predicated of a man ordinarily careful W C. 4. 35. 21. of 83 THE LAW OF BAILMENTS. of his own ; and, if that was Le B}-uji*s hypothesis, he has done little more than adopt the system of Godefro'i^ who exacts ordinary diligence from a partner and a co-proprietor ^ hut requires a higher degree in eight of the ten preceding contra<5ls. Pledges for deht are of the highest an- tiquity : they were used in very early times by the roving Arabs ^ one of whom finely remarks, " that the life of Man is no " more than a pledge in the hands of " Destiny (31) ;" and the salutary laws (31) This sentiment is peculiarly oriental: it is naturally suggested by the liazardous viciositudeswhich attend the pursuits of the wandering Arab. Under its ycligifjiis influence tiie believers in Mahomet have fiercely encountered the dangers of battle, or have supinely fallen by the ravages of the plague : it has tolerated the iiorrors of a bloody and degrading des- potism, and it su] p'ies the " carpe diem'^ in the vo- luptuous effusions of the Eastern poets. The moral it contains is more properly applied, and very pathe- tically dilated, it: the Book of Job. of THE L^W OF BAILMENTS. 83 of Moses, which forbade certain imple- ments of husbandry and a vvidow's rai- ment to be given in p;iwn, deserve to be [ 84 ] imitated as well as admired. The dis- tinflion hciw^Qn pledging^ where possession is transferred to the creditor, and hypo- thecation^ where it remains with the debtor, was originally Attic ; but scarce any part of the Athe7ilan law\s on this subject can be gleaned from the ancient orators, except w^hat relates to bottomry in five speeches of Demosthenes, I cannot end this article wnthout men- Turkish tionmg a smgulai" case irom a curious ma- nuscript preserved at Cajnbridge^ which contains a colleclion of queries in Turkish^ together with the decisions or concise an- swers of the Mufti at Constantinople: it is commonly imagined, that the 'Turks have a translation in their own language of the Qreek code, from which they have supplied C c the 84 THE LAW OF BAILMENTS^ the defeats of their Tartarian and Arah'uiM jurisprudence [<:/] ; but I have not met with any such translation, although I admit the conjecture to be highly probable, and am persuaded, that their numerous treatises on Mahomedan law are worthy, on many accounts, of an attentive examination. The case was this : " Zaid had left with Amrii ' " divers goods in pledge for a certain sum " of money, and some ruffians^ having " entered the house of Afnru^ took away *' his own goods together with those pawn- *' ed by ZaidT Now we must necessarily suppose, that the creditor had by Ins own fault given occasion to this robbery ; other- r 85 1 wise we may boldly pronounce, that the Turks are wholly unacquainted with the imperial laws of Byzantiimiy and that their own rules are totally repugnant to natural justice ; for the party proceeds to ask, *' whether, since the debt became extind by [(/J Duck dc Auth, Jur. Civ. Rom. I. 2, 6. " the THE LAW OF BAILMENTS, 85 " the loss of the pledge^ and since tlie goods ^' pawned exceeded in value the amount " of the debt, Zaid could legally demand " the balance of Amru ;" to which ques- tion the great law-officer of the Othman court answered with the brevity usual on such occasions, Olmaz, // cannot be \e\ This custom, we must confess, of pro- posing cases both of law and conscience under feigned names to the supreme judge, whose answers are considered as solemn decj'eesy is admirably calculated to prevent partiality, and to save the charges of liti^ gation. V. The last species of bailment is by Law of hiring. no means the least important of the live, whether we consider the infinite conve- nience and daily use of the contrad; itself, [f] Piibl. Libr. Cambr. MSS. Dd. 4. 3. See Wotton, LL. IJyiiel Dihi. lib. 2. cap. 2. § 29. note x. It may possibly be the usrige in Tiirly to stipulate " ut amissio pig- *' noris liberet dcbitorem," as in C. 4. 24. 6. Cc2 or THING. 85 THE LAW OF BAILMENTS. or the variety of its branches, each of * which shall now be succindly, but accu- rately, examined. Hiring of a !• Locatlo^ or locatio-conducf'io^ rei, is a contrad: by which the hirer gains a transient qualiiied property in the thing hired, and the owner acquires an absolute property in the stipend, or price, ot the f 86 ] hiring ; so that, in truth, it bears a strong resemblance to the contract of empt'io-ven- dltio^ or SALE ; and, since it is advan- tageous to both contracting parties, the harmonious consent of nations will be in- terrupted, and one objed: of this Essay defeated, if the law^s of England shall be found, on a fair inquiry, to demand of the hirer a more than ordmary degree of diligence. In the most recent pubHcation that I have read on any legal siibjed:, it is expressly said, " that the hirer is to ** take all hnaglnable care of the goods \\ delivered THE LAW OF BAILMENTS. 86 ** delivered for hire [y] :" the words all tmaginablc^ if the principles before esta- blished be just, are too strong for practice even in the strid: case of borrowmg ; but, if we take them in the mildest sense, they must imply an extraordinary degree of care ; and this dodtrine, I presume, is founded on that of Lord Holt in the case of Coggs and Bernard^ where the great Lord Holt's judge lays it down, " that, if goods are plained. " let out for a reward^ the hirer is bound *' to the UTMOST diligence, such as the ^ MOST diligent father of a family uses [^"J." It may seem bold to controvert so respect- able an opinion : but, without insisting on the palpable injustice of making a borrower and a hirer answerable for precisely the sajue degree of negled, and without urging that the point was not then before the ^/] Law of Klisi Prlus, 3d edition corrected, 72. [^] Ld, Raym. 916. court, 80 THE LAW OF BAILMENTS. court, 1 will engage to show, by tracing the dod:rine up to its real source, that the di&um of the Chief Justice was entirely f 87 1 grounded on a grammatical mistake in the translation of a single Lat'ni word. In the first place, it is indubitable that his lordship relied solely on the authority of BraSion ; wliose words he cites at large, and immediately subjoins, " 'whence it ap- " pears ^ ^c." now the words " talis ab " eo desideratur custodia, qualem dili- " GENTissiMUS paterfamilias suis rebus " adhibet," on which the whole question depends, are copied exaQly from Justm- ia?i [y6], who informs us in the proeme to his Institutes, that his decisions in that work were extracted prmcipally from the Commentaries of Gaius ; and the epithet r/j] Braft. 62. b. Justin. Inst. 3. 25. 5. where Theo- ph'tlus has a-Oo^s^ix, s;r'|t4sA3j«Toj. dili^ THE LAW OF BAILMENTS. 87 Ailige7itissimus is in f:i£l used by this ancient lawyer [/'], and by h'lm alojic^ on the siib- jedt of hiring : but Gains is remarked for writing with energy, and for being fond of using superlatives where all other writers are satisfied with positives \Ii\ ; so that his forcible manner of expressing himself, in this instance as in some others, misled the compilers employed by the Emperor, whose words Theophllus rendered more than lite- rally, and BraSloJi transcribed ; and thus an epithet w^hich ought to have been trans- lated ordinarily diligent, has been supposed to mean extremely careful. By red:ifying this mistake, we restore the broken har- mony of the PandeBs with the Institutes^ which, together with the Code^ form one [ 88 ] conneSled 'work [/], and, when properly understood, explain and illustrate each other ; nor is it necessary, I conceive, to 0'] D. 19. 2. 25. 7. [/■] Le Brim, p. 93. [/] Burr. 426. adopt 88 THE LAW CF BAILMENTS, adopt the interpretation of M. De FeR- RIERE, who imagines, that l)oth Justln'um and Gains are speaking only of cases, which from their nature demand extraordinary care \jn\ Rules and There is no authority then against the rule, which requires of a hirer the same degree of diUgence that all prudent men^ that is, the generality of mankind^ use in keeping their own goods ; and the just distin(£tion between borroivinjr and hirinjy;. which the Jezvish lawgiver emphatically makes, by saying, " if it be an hired " thing, // eame for its hire [//J," remains established bv the concurrent wisdom of nations in all ages. If Caius^ therefore, hire a horse, he is bound to ride it as moderately and treat it as carefully, as any man of commo?i dis- [«] Lut. vol. V. p. 138. [«] Ex(jd. xxii. 15. cretion THE LAVv* OF BAILMEN'TS. 88 treilon would ride and treat h'ls oivn horse j und If, through his negligence, as by leaving the door of his stable ope.i at night, the ho';sc be sto!e?i^ he must answer for it ; but not, if he be robbed of it by- highwaymen, unless by his imprudence he gave occasion to the robbery, as by tra- velling at unusuiil hours, or by taking an •unusual road : if, indeed, he hire a car- riage and any number of horses, and the owner send with them his postilion or [ 89 ] coachman, Cains is discharged from all attention to the horses, and remains obliged only to take ordinary care of the glasses and inside of the carriage, while he sits in it. Since the negligence of a servant, acting under his master s dire&ions express or im- plied^ is the negligence of the master, it follows, that, if the servant of Cains injure «r kill the horse by riding it immoderately, D d or. 89* THE LAW OF BAILMENTS^ or, by leaving the stable-door open, suffc]!' thieves to steal it, Caliis must make the owner a compensation for his loss [o] ; and it is just the same if he take a ready- furnished lodging, and his guests, or ser- vants, while they ad: under the authority given by him, damage the furniture by the omission of ordinary care. At Rome the law was not quite so rigid ; for PoM- PONius, whose opinion on this point was ge- nerally adopted, made the master liable only when he iims culpably negUge?it in admltthig careless guests or servants^ wKose bad qua- lities he ought to have known [/]: but this distindion must have been perplexing enough in practice ; and the rule which^ by making the head of a family answerable indiscriminately for the faults of those whom he receives or employs, compels him to keep a vigilant eye on all his domestics, [o] Salk. 282. Ld. Raym. 916. [/] D. 19. 2. XI. id THE LAW or BAILMENTS. 6. is not only more simple, but more con- ] dacive to the public security, although it may be rather harsh in some particular [ 90 J instances [q]. It may here be observed, that this is the only contract to which the French^ from whom our word bailment was borrowed, apply a word of the same ori- gin ; for the letting of a house or chamber for hire is by them called bail a loyci\ and the letter for hire, bailkur^ that is bailor ^ both derived from the old verb bailie?'^ to deliver ; and though the contracts which are the subjed; of this Essay, be generally confined to moveable things, yet it will not be improper to add, that, if Immoveable property, as an orchard, a garden, or a farm, be letten by parol, with no other stipulation than for the price or rent, the lessee is bound to use the same diligence (32) in [y] Poth. Louage, n. 193. (j2; It sliouM seem that upcn a s"ni',iar principle the Chief Justice, in tl -.■ cai;."of Ch;cthani v. Hamp- D d 2 sou. 90' THE LAW OF BAILMENTS. ill preserving the trees, plants, or imple- ments, tJiat every prudent person would use, if the orchard, garden, or farm, were his own. WORK. Hiring of 2. Locatlo OPERis, whlch is properly subdivisible into two branches, namely, fac'iendl^ and merciiim vehendanwi^ has a most extensive influence in civil life ; bat the principles, by which the obligations of the contradiing parties may be ascer- tained, are no less obvious and rational, son, 4 Terin. Rep. 3195 ol)serves, " It is so no- *' toriously the dury of the a(^l;ual occupier to repair '« the fences y antl so lirtle the duty cf the landlord, *' that, ivitbout any agreement to that eff'eciy the Innd- *< lord may maintain an action against the tenant for *' not so doing, upon the ground of the injury done " to the inheritance." See also the case of Powley. V, Walker, 5 TcMm Rep. 373, in which it was decided that the *' }7n're rehuion of landlord and te- <' nant" was a consideration to entitle the plaintiff to recover dairr.^cs in an atlicMi of assumpsit " for not " pianaging a Itir.T. iu an husbandlikc inanner." than THE LAW or BAILMENTS, 90 than the objects of the contract are often vast and important [r]. If Tltius deliver silk or velvet to a tailor [ 91 ] for a suit of clothes, or a gem to a jevvreller to be set or engraved, or timber to a car- penter for the rafters of his house, the tailor, the engraver, and the builder, are not only obliged to perform their several undertakings in a workmanly manner [j], but, since they are entitled to a reivard^ either by express bargain or by implication [r] It may be useful to mention a nicety of the Lahn language in tlit: application of thtt verbs Lccare and condw ce^e : the employer, who gives the reward, is locator opens ^ but condudor operarum ; while the party employed, who receives the pay? is locator ope arum , but condiiRor oper'is. Heinecc. in Pand. par. 3. ^ 320. So, in Horace^ " Tu secauda marmora " Locus''— which the stoneaewer or mason cor.duxit. Fj] I Ventr. 268. erroneously printed 1 Vern. 268. ix^ all the editions of Bl Com. ii. 452. The innumerable Biultitude of irsaccurnte or idle references in our best re- ports and law-trads, i? the bane of t!ie student and of the praftiaer. they 91 THE LAW OF BAILMENTS. they must also take or Ji nary care of the things respectively bailed to tliein : an4 thus, if a horse be delivered either to an agisting fanner for the purpose of depas- ' turing in his meadows, or to an hostler to be dressed and fed in his stable, the bailees are answerable for the loss of the liorse, if it be occasioned by the ordinary ncgled: of themselves or their servants. It lias, indeed, been adjudged, that, if the liorse of a guest be sent to pasture by the owner s desire^ the innholder is not, as [ 92 ] S'^^^i-^-i responsible for the loss of him by tueft or accident [/] ; and in the case of Mosley and Fosset^ an adion against an agister for keeping a horse so negligently that it ivds stolen^ is said to have been held maintainable only by reason of a special assumption [//] ; but the case is differently reported by Rolle^ who mentions no such [<] 8 Rep. 32. Ci^je's case. ^u^^ Mo. 543. I Ro. Abr. 4. reason j THE LAW OF BAILMENTS. 92 ireason ; and, according to him, Chief Jus- tice Popbam advanced generally, in con- formity to the principles before established, that, " if a man, to whom horses are " bailed for agistment, leave opefi the gates " of his field, in consequence of which " negled: they stray and are stole??, tlie " owner has an a6lion against him :" it is the same if the innkeeper send his guest's Law con- 1 2 r 1 ■ J c cernlng Inn- horse to a meadow oj his oiun accord, tor holders. he is bound to keep safely all such things as his guests deposit within his i?in [o'2t)y ill) " Although the guest doth not deliver Ms ** goods to the innkeeper to keep," is the doiflrine laid down in Cayle^s Cafe^ 8 Rep. 33, § 4. The faw of this case was recognized in Bentiet v. Meilcr^ 5 Term Rep. 273, where it was determined that ** if an innkeeper refuse to take charge of goods till •* a future day, because his house is full of parcels, •* still he is liable to make good the loss if the owner « stop as a gucsty and the goods be stolen during liis " stay." rhis latter case was so peculiarly circum- stanced, as to produce the individual hardship, which somerimcs occurs in the necessarily rigorous c^nstrucb- ion of laws founded on principles of public policy. and 92 THE LAW OF BAILME>;TS. and shall not discharge himself by his own adl from that obligation ; and even v/hen he turns out the horse by order of the ozvncry and receives pay for his grass and care, he is chargeable, surely, for ordinary negligence, as a bailee for h'lre^ though not as an hikeeper by the general custom of the realm. It may be worth while to investigate the reasons of this general cus- tom^ which, in truth, means no more than comtnon law^ concerning innholders ["^J. ^^ Although a stipend or rev/ard in money be the essence of the contra(fi called locatlo^ [ 93 »] yet the same responsibility for ncgledt is justly demanded in any of the innoininate contrails, or whenever a valuable consi- deration of any kind is given or stipulated. This is the case where the contrad: do ut des is formed by a reciprocal bailme?it for use ; as if Robert' permit Henry to use his [w] Reg. Orlg. 105. a. Noy, Max. ch. 43. • pleasure.-' tHC LAW OF BAILMENT?. 93 pleasure-boat for a day, in consideration that Henry will give Iiim the use of his chariot for tlic same time ; and so in ten thousand instances, that might be im.agined, oi dou- ble bailments : this too is the case if the absolute property of one thing be given as an equivalent for the temporary or Umiccd. property of another, as if Charles gl\e George a brace of pointers for the use of his hunter during the season. The same rule is applicable to the contrad facio ut facias, where two persons agree to per- form reciprocal works ; as if a mason and a carpenter have each rcspeclively under- taken to build an edifice, and they mu- tually agree, that the first shall finish all the masonry, and the second all the wood- work, in their respedlive buildings ; but, if a goldsmith make a bargain with an architect to give him a quantity of wrought plate for building his house, this is the con- tract do ut facias^ or facio ut des ; and in E e all 93* THE LAW OF BAILMENtS* all these cases, the bailees must answer fof the omission of on/hiarj diligence in pre- serving the things with which ihey are intrusted : so, when Mico5 undertook the care of Lahan^ flocks and herds for no less a reward than his younger daughter, [ 94 J whom he loved so passionately, that seven years ivere m his eyes like a feuo days^ he was bound to be just as vigilant as if he had been paid in shekels of silver. Now the obligation is precisely the samCj a& we have already hinted \x\ when a man takes upon himself the custody of goods- in consequence and consideration of another gainful contrail ; and though an innholder be not paid in money for securing the traveller's trunk, yet the guest facit tit faciat^ and alights at the inn, not solely for his own refreshment, but also that his goods may be safe : independently of this [xj P. 49, 50. reasoning THE LAW OF BAILMENTS. 94 reasoning, the custody of the goods may- be considered as accessary to the principal contrail, and the money paid for the apartments as extending to the care of the hox or portmanteau ; in which hght Gains and, as great a man as he. Lord Holt^ seem to view the obHgation ; for they agree, " th^it, although a bargeman ** and a master of a ship receive their ^ fare for the passage of travellers, and ** an innkeeper his pay for the accom- ** modation and entertainment of them, '^ but have no pecuniary reward for the " mere custody of the goods belonging to " the passengers or guests, yet they are ^ obiip-ed to take ordinary care of those •* <>-oods ; as a fuller and a mender are " paid for their skill ojily^ yet are answer- " able, ex locato^ for ordinary neglect, if ^' the clothes be lost or damaged [/]?'" Fj] D. 4. 9. 5. and 12 Mod. 487. Ee 2 In 95 THE LAW OF BAILMENTS. Ill wliateve:!* point of view we considei^ this bailment, no more is regularly de- manded of the bailee than the care which every prudent man takes of hJ3 own pro- perty ; but it has long been hoiden, that an hinkeeptr is bound to restitution, if the trunks or parcels of his guests, committed to him either personally qr through one of his agents,' be damaged in bis inn^ or stolen out of it by a f?y person whatever [z] : nor shall he discharge himself from this responsibility by a refusal to take any care of the goods, because there are suspeBed persons in the house for vohose condudl he cannot be answerable \a'\\ it is otherwise, indeed, if he refuse admission to a tra-^ veller because he really has no room for. him, and the traveller, nevertheless, insist upon entering, and place his baggage in a cham.ber without the keeper's consent \l)\. [2] Yearb. 10 Hen. VII. 26. 2 Cio. 189. [a] Mo. 78, r^j By, 158. h. I And. 29. Add Tll'C LAW OF BAILMENTS. 9^ Add to this, that, if he fail to provide honest servants and honest inmates, accord- ing to the confidence reposed in him by the puhUc, his negUgence in that respect is highly culpable, and he ought to answer civilly for their adts, even if they should fob the guests who sleep in his chambers [c\ Rigorous as this law may seem, and hard as it may ad:ually be in one or two par- ticular instances, it is founded on the great principle of public utility, to which all f 96 1 private considerations ought to yield ; for travellers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innholders, w^hose education and morals are usually none of the best, and who might have frequent opportunities of associating with ruffians or pilferers, while the injured guest could seldom or never obtain legal proof of such combinations, or even of [c] 1 Bl. Comrr.. 430. their 96 THE LAW OF BAILMENTS. their iieQ-l'icreuce. if no a^lual fraud had been committed by them. Hence tlie Proctor de- clared, according to Pomponius, his de- sire of securing the public from the dishonesty of such men^ and by his edi£l gave an ad:ion against them, if the goods of travellers or passengers were lost or hurt by any means, except damno fataJi or by inevitable acci- dent ; and Ulpian intimates, that even this severity could not restrain them from knav- ish practices or suspicious negled: [d\ In [i] D. 4. 9. I. and 3. (34) (34) The corriment, and the complainr, of Ulpian are thus expressed: " Maxima utilitasest hiljus edi£li j ** quia necesse est plerumque eorum fidem sequi, et *• res custodix eorurr. committere. Neque qiii;;quam ** putet graviter hoc advers s eos constitutum : nam ** est ift ipsorum arbitrioy ve quern renpianty et nisi hoc *' Cbset statutuni, materia darctur cum faribui;. ad- **' versus eos quos recipiunt, coeandi : cum ne nunc ** quidem abstineant hujusmodi fraudibus." ft will be obvious that the part of Ulpian's reason *' nam est^^ &c. includes an option of receiving or refusing guests, in which the Roman caupones differed from our iuo-; dera THE LAW OF BAILMENTS. 96 In all such cases, however, it is com- petent for the innholder to repel the pre- sumption of his knavery or default, hy proving that he took ordinary care, or that the force^ which occasioned the loss or da- mage, was truly irresistible. When a private man demands and re- ceives a compensation for the bare ciistodf of goods in his warehouse or store-room^ this is not properly a deposit^ but a hiring f)f care and attention : it may be called locatio custodia^ and might have been made [ 97 ] a distind: branch of this last sort of bail^ ment, if it had not seemed useless to mul- tiply subdivisions ; and the bailee may still be denominated locator opcrce^ since the vigilance and care, which he lets out for dern innkeepers, the latter being liable to an aclion if they refuse, without an adequate reason, to admit and accommodate a traveller. Black. Com. vol. 3, p. 164. 5 Term Rep. 276. ?>7 The law of bailments. pay-, are In truth a mental operation* Whatever be his appelhition, either m English or Latin^ he is clearly responsible^ like other interested bailees, for ordinary Remarks on negligence ; and although St. German seems St. German. , ..^r • ^i • rv t_ to make no dnierence ni tins respect be- tween a keeper of goods for hire and a sin/pie depositary y yet he uses the word default, like the culpa of the Komaiis^ as a gene- rical term, and leaves the degree of it to be ascertained by the rules of lav^ [], it is indisputably ^lear, that an action lies in both cases for a reparation in damages, Vv'^hencver the work was undertaken for a reward, either ac- tually paid, expressly stipulated, or in the case of a common trader, strongly implied ; [oj Rosar. Polit. cap. 7. There are numberless traft^ ^n j^rablc, Persian, and Turhhh, on every branch of ju- risprudence ; from the best of whicli it would not be diffi- cult to extvaft a complete system, and to compare it with, pur own : nor would it be less easy to explain in Persian or Arabic such parts of our Engl'i h law, as either coincide with that of the Jsiatics, or are manifestly preferable to it. [/.] P. 54, Sec. of 101 THE LAW OF BAILMENTS. of which Blackstone gives die follow- ing instance : " If a builder promises, un- ** dertakes, or assumes- to Calus^ that he " will build and cover his house within " a time limited, and fails to do it, Cains ** has an adtion on the case against the " builder for this breach of his express ** promise, and shall recover a pecuniary " satisfaction for the injury sustained by " such delay [^]." The learned author meaned, I presume, a commoji builder {^^^^ or Sjf\ 3 Comm. J57. (36) See " Elsee v. Gativardy^ 5 Term Rep, 150. The first count of the declaration in that cascj, and upon which it principally turned, alleged, that the defendant, who was a carpenter, was retained by the plaintiffs to build and to repair certain houses, but it was not stated that he was to receive any cofisider- ation, or that he entered upon his work. Lord Kenyon observed, " no consideration results from the defend- " ant's situation as a carpenter, nor is he bound to ** perform all the work that is tendered to him." Mr. Justice Ashhurst, in giving his opinion on the same case, remarked the following discmtlions : " If a pnrry ** undertake to perform work, and proceed on the ♦' employ* THE LAW OF BAILMENTS. 101 Of supposed a consideration to be given ; and for this reason I forbore to cite liis dodrine as in point on the subjcdl of an adion for the ;^o/?-performance of a mandatary \r\ Before we leave this article, it seems Rules and distindions, proper to remark, that every bailee lov pay^ whether conduclor rci or conduSlor opcrlsy must be supposed to know, that the goods and chattels of his bailor are in many cases [r] p. 56. 57. 61. »* employment, he makes himself liable for any mis- *^ fesa?ice in the course of that work : but, if he ua- ♦' dertakc, and do not proceed on the work, no acl^dn ** will lie against him for tlie nonfesance. — In this •* case the defendant's undertaking was merely voluil- ** tary, no consideration for it being stated. — There ♦' was no custom of the realm, or any legal obligatloa •* to compel him to perform this work, and that dis- '* tinguishes this case from those of a common carrier, '* porter, and ferryman, ivho arc bound by their sittt- « aticns in life to perform the work tendered to them ; •* but a carpenterf as such, is not bound by any such ** obligation." distrainablo 101 THE LAW OF BAILMENTS. distrahiahle for rent, if his landlord, who might otiierwise be shamefully defrauded, find them on the premises [.r] : and, as they cannot be distrained and sold without his ordinary default at least ^ the owner has a remedy over against him, and must re- ceive a compensation for his loss [/] : even if a depositary w^ere to remove or conceal his ozvn goods, and those of his depositor were to be seized for rent-arrere, he would unquestionably be bound to make restitu- [ 102 1 tion ; but there is no obligation in the bailee to suggest ivise precaiitloizs against inevitable accident ; and he cannot, there- fore, be obliged to advise insurance from fire ; much less to insure the things bailed without an authority from the bailor. It may be right also to mention, that the distindion, before taken in regard to [i] Burr, 1498, &c. [/] 3 Bl. Comm. 8. loans^ THE LAW OF BAILMENTS, 102 loans \ji\ between an obligation to restore tlie specific tilings, and a power or necessity of returning o/he?'s equal in value ^ holds good likewise in the contradts of hiring and depositing : in the first case, it is a regular bailment ; in the second, it becomes a debt. Thus, according to Alfenus in Celebrated 1 . r 1 1 • 1 1 • T - ^^^^' cf Al- his lamous law, on wiiich the judicious fcnus. Bynhershoek has learnedly commented, " if " an ingot of silver be delivered to a silver- *' smith to make an urn, the zvhole pro- " perty is transfeiTed, and the employer ** is only a creditor of metal equally va- " luable, which the workman engages to '''■pay m a certain shape [-if^] :" the smith tnay consequently apply it to his own use ; but, if it perish, even by unavoidable mis- chance or irrcsistablc violence, he, as owner of it, niust abide the loss, and the creditor [m] p. 64, Gs. [<('] D. 19, 2. 31. Bynk. Ohf. Jur. Rom. lib. VIII. G g '■ must 102 THE LAW OF BAILMENTS. must have his urn in due time. It would be otherwise, no doubt, if the same silver, on account of its pecuiidr fineness, or any uncommon metal, accc^rJine: to the whim [ 103 ] of the owner, were agreed to be spcaftcally redelivered in the form of a cup or a standish. CARRIAGE. Hmngof 3. Locatio operis mercium vehenda- RUM is a contract v/hich admits of many varieties in forniy but of none, as it seems at length to be settled, in the sKhstantkil oblisiations of the bailee. 'to*^ A carrier for hire ought, by the rule, to be responsible only for ordinary ncglcd: ; and in the time of Henry VIII., it ap- pears to have been generally holden, " that " a common carrier vv^as chargeable, in case " of a loss by robbery^ only when he had ** travelled by ij:jays dangerous fgr robbing y 'i or THE LAW OF BAILMENTS. 103 " or driven by ^ng^'Ji^ or at any hicon- ^^ valient hour [a- j : ' but in the com- mercial reign of Eijzabetii, it was re- solved, upon the sair.e broad principles of policy and convenience that have been mentioned in the case of innholders^ " that, " if a common carrier be robbed of the " goods delivered to him, he shall answer " for the value of them [ J']." Now the reivard or h'trCy which is con- sidered by Sir Edward Coke as the reason of this decision, and on which the principal stress is often laid in our own times, makes the carrier liable, indeed, for the omission of ordinary care, but cannot extend to irresistible force ; and though some other bailees have a rccompeiicc^ as factors and workmen for pay^ yet even in Wood lief e's [ 104 ] [.v] Doft. and Stud, where often before cited. [j] I Inst. 89. a. Mo. 462. I Ro, Abr. 2. JVood- fiefe and CurUes. G g 2 cajse, 104 THE LAW OF BAILMENTS. case the Chief Justice admitted, that rob" bcry was a good plea for a faBor^ though it was a bad one for a carrier : the true ground of that resohition is the piibl'ic em- ployment exercised by the carrier, and the danger of his combining with robbers to the infinite injury of commerce and extreme inconvenience of society [s]. Exceptions from the ge- -I nc modcrn rule concerning a common carrier is, that " nothing will excuse him, " except the act of God (37), or of the " Kings [2;] Ld. Raym. 917. 12 Mod. 487. (37) See the cnse of <' Forivard v. Plttard" I Term Rep. 27, wliere the excuse founded on the •* A£l of God" is very fully considered, and where the defendant, a common carrier, was held answer- able, *' /'; the nature of an insurer" for goods which were accidentally consumed by fire. A similar decision was given in the case of " Hyde v. the Trent and ** Mersey Navigation Company , ; Term Rep. 389. T^e^)e two cases difTered in circumstances, but were both governed by the contract: of undertaking to de- livar. THE LAW OF feAILMENTS. 104 " King's enemies [^7] ;" but a momentary attention to the principlca must convince us, that tliis exception is in truth part of tlie rule itself, and that the responsibiUty for a loss by robbers is only an exception to it : a carrier is regularly answerable for negled:, but not, regularly^ for damage occasioned by the attacks of riifficms^ any more than for hostile violence or unavoid- able misfortune ; but the great maxims of \_a\ Law of iVwJ Prius, 70, 71." //Wr, it appearing in evidence, that the goods had not reached the phice of their^wfl/ destiiration. Vv^here, however, goods not having arrived at the place of final delivery, are out of the custody of the carrier as stn/j, this construction does not apply 5 and it was accordingly detennined in the case of " C a side v. the Proprietors of the Trent and Alcrsey Nnvigaiiofiy* 4 Term R. 589. that a common carrier between A. and Br employed to carry goods from A. to J5., to be forwarded to a third place (by another carrier^ according to the custom J, and pulling them gratuitously in his warehouse at B., where they were accidmtai'ly destroyed by fire, before he had an opportunity rffcrivai'difig theniy was not responsible for the loss. policy 104 THE LAW OF BAILMENTS. policy (38) and good government make it necessary to except irom this rule the case of robbery^ lest confederacies should be formed between carriers and desperate vil- lains v^itli little or no chance of deted;ion. Although the a£f tf God., w'-hich the an- cients too called osS Z^o-.-^ and %um divinaiTi^ be an exprebsioii, which long habit has ren- dered familiar to us, yet perhaps, on that very account, it might be more proper, [ 10.5 ] as well as more decent, to substitute in its place inevitable accident : religion and rea- (38; Upon i^imilar grounds of policy it is settled, that nothing can excuse a gaoler from responsibility in an adlion of debt for the escape of a prisoner in exe- cution, but " the act of God or of the King's enemies." See the case of " Alfept v. Eyles^' 2 H. Black. Rep. 108; and " Elliot v. the Duke nf Notfolk" c\ Term Rep. 789. See also tlie argument of Lord Chief Jus- tice V/ihriOt in '< Drink'zvnter v. the Corporrdicn cf the London Assurance" 2 Wilson^ 363 .• and Lord Mans- field's address to the jury in tlie cause of '* Lnvrdale V. Mason and others" at GiiiidhrJl, Trin. Vac. 1780 i Park c7i Insurance, ^^i edinoUy p. 446. son. THE LAW OF BAILMENTS. 105 son, which can never be at variance wirli- out certain injury to one of them, assure us, that " not a gust of wind blows, nor " a Hash of hghtning gleams, without the " knowledge and guidance of a superin- " tending mind ;" but this dodlrinc loses its dignity and sublimity by a technical ap- plication of it, wliich may, in some in- stances, border even upon profaneness ; and law, which is merely a pradical sci- ence, cannot use terms too popular and perspicuous (39). In {39) Long use seems to have reruiered the legal sense and meaning of the words " acl of God" sufH- ciently perspicuous, and wouid perhaps, make t^e substituiK-n of others attended with iuconvenience. It must be admitted, generally, tliat the <•' technical ap- plication" of solemn expresbions is highly indecorous; but if, hcsidci /.H'o/ogy, there be any science, in treating of which such expressions are allowable, it is faii>. The daily alT.urs of life evince how infimately and necessarily the sanrtionsof religion are pra«fiica!!y blended with hu- inan jurisprudence: the rational connexion betweea them is devoutly intimated by Justinian (Prooem. ad Instit.), 105 THE LAW OF BAILMENTS. In a recent case of an adlion against a carrier, it was holden to be no excuse, *' that the ship was tight when the goods " were placed on board, but that a rat, '" hy gnawing out the oakum, had made " a small hole, through v/hich the water " had gushed [/^] ;" but the true reason of this decision is not mentioned by the reporter : it was, in fact, at least ordinary negligence, to let a rat do such mischief in the vessel ; and the Roman law has, on this principle, decided, that, " si fullo ves- " timenta polienda acceperit, eaque mures " roserint^ ex locato tenetur, quia dcbuit " ah hac re cavere \c\r [/>] I Wils. part I. 281. Dale -^nA Hall. [c] D. 19. 2. 13. 6. Instit.), and sublimely personified i;i a much admired passr.ge of an English classic — *' Of Law no less can " be acknowledged than that her seat is the bosom of *' God, and her voice tlie harmony of ti)C world;' all *' things in heaven and on earth do her homage, the *f very least, as feeling her care, and the greatest, as " not exempted from her power." (Hooker, Ecc. Pol.) Whatever THE LAW OF BAILMENTS. 105 Whatever doubt there may be among civiHans and common-lawyers in regard to a casket^ the contents of 'which are con^ cealed from the depositary \d\ it seems [ 106 ] to be generally understood, that a common carrier is answerable for the loss of a box or parcel, be he ever so igfiorant of its contents^ or be those contents ever so va- luable, unless he make a special accept- ance \e'\ : hwX. gross fraud and imposition by the bailor will deprive him of his action, and if there be proof that the parties were apprised of each other's intentions, although there was no personal communication, the bailee may be considered as a special ac-. ceptor : this was adjudged in a very modern case particularly circumstanced, in which the former cases in Fentris^ yJlleyne, and Cartheit\ are examined with liberality and wisdom ; but, in all of them, too great [^/] Before, p. 37, 3S, 39. ^fj I Stra. 145. T'ttchburn and White. Stress Hh 106 THE LAW OF BAILMENTS. Stress is laid on the rezvard^ and too little on the important motives of puhl'ic nlUity^ which alone distinguish a carrier from other bailees for hire \_f\ Though [/] Burr. 2298. Gibbon and Paynton. See i Vent. 238. All. 93. Carth. 485. (40J (40) See the case of Clay v. Wiliati and others^ I H. Black. Rep. 298. An aclion in the usual form against common carrieys was brought against the de- fendants, who were proprietors of a stage coach : they had published printed proposals, nr^.sntioning " that cash, writings, &c. and similar valuable articles, exceed' trig the sum of z^l. nvould nrA be accounted jor if lest .^ unless entered as such^ and a penny insurance paid for each pound value" when delivered to the book-keeper or any other person in trust, to be coiiveyed by any carriage belonging to their inn. The person who brought the plaintiff's parcel to be booked knew of the above terms, and that the parcel was above 5/. value, but did not discover the contents, and paid only the ordi- nary pri«-e of carriage, which amounted to 2s. with an additional demand of id. for booking. There were counts in the declaration for money had and re- ceived, lent and advanced, &c. : and the plaintiff find- ing that by the express terms of the printed proposal, he could not recover even to the amount of 5/,. claimed a ver- THE LAW OF BAILMENTS. 106 Though no substaatial difTerence is assign- Law con- cerning masttrs vessels. , - / , . cerning able between carnage by land and carriage masttrs of by izuilcr^ or, in other words, between a ivaggon and a bargc^ yet it soon became necessary for the courts to declare, as they did in the reign of James I., that 2i com- mon hoyman^ like a common waggoner^ is responsible for goods committed to his cus- [ 107 ] tody, even if he be robbed of them [^] ; but the reason said to have been given for [^] Hob. ca. 30. 2 Cro. 330. Rich and Kneeland. *♦ i h^Jirst case of the kind," said Lord Holty " to be found " in our books " iz Mod. 480. a verdi(£t for the is. 2d. in order to secure his costs, no money having been paid into court by the de- fendants, or tendered before the action was com- menced i but the court decided that the plaituifF vvas not entitled either to the 5/. or the money advanced for the carriage or booking. In the above case no proof appears to have been adduced of negligence^ or conversion of the parcel, by the defendants or their servljnts; and it would have been inconsistent with legal princ'ples to have presumed that the defendants a£led contrary to the trust reposed in them. this Hh 2 107 THE LAW OF BAILMENTS. this judgment, namely^ because he had his hlrc^ is not the true one ; since, as we have before suggested, the recompcncc could only make him liable for temerity and im^ prudence ; as if a bargemaster were rashly to shoot a bridge, ivheii the bent of the wea'- ther is tempestuous ; but not for a ?/iere ca^ sualty^ as if a hoy in good condition, shoot- ing a bridge at a proper time^ were driven- against a pier by a sudden breeze, and overset by the violence of the shock [/?] ; nor, by parity of reason, for any other force too great to be resisted [i] : the public employment of the hoyman^ and that distrust which an ancient writer justly calls the sinevD of wisdom^ are the real grounds of the law's rigour in making such a person Responsible for a loss by robbery. [A] I Stra. 1 2 8. Amies and Stevens. [i] Palm. 548. W. Jo. 159. See the dodtrine of in- evitable accident moat learnedly discussed in Desid. Heraldi Animudv. in Salmaiti Obseiv. in Jus /itt, ct Rom. cap. xv. All THE LAW OF BAILMENTS. 107 All that has just been advanced concern- ing a Idud-carnei' may, therefore, be ap- plied to a bargemasttr or boatman : but, in case of a tempest, it may sometimes happen that the law of jetsoii and average may oc- casion a difference. Barc7'oft\ case, as it [ 108 ] is cited by Chief Justice Rolle^ has some appearance of hardship : " a box of jewels "had been delivered to a ferryman, ivho ** knew not what it contained^ and a sudden *' storm arising in the passage, he threw " the box into the sea ; yet it was resolved *' that he should ansiver for it [i] :" now I «annot help suspedling, that there was proof in this case of culpable negHge?ice^ and pro- bably the casket was both small and light enough to have been kept longer on board than other goods ; for in the case of Graves- end barge, cited on the bench by Lord Coke^ it appears, that the pack which was thrown Overboard in a tempest, and for w^hich the W AH. 93. baro^eman 108 THE LAW OF BAILMENTS. bargeman was holdeii 71 ot a'iswerahlt\ was of great value aiid great zvtight ; although this last circumstance be omitted by Rollc^ who says only, that the master of the vessel had no information of its contents [/]. The subtility of the human mind, in finding distinctions, has no bounds ; and it was imagined by some, that, whatever might be the obligation of a bargc-uidiSier^ there was no reason to be equally rigorous in regard to the master of a ship ; who, if he carry goods iox profit^ must indubitably answer for the ordinary neglcB of himself or his mariners, but ought not, they said, to be chargeable for the violence of rob- bers : it was, however, otherwise decided r 109 ] in the great case of Mors and Slciv^ where " eleven persons armed came on board the " ship in the river ^ under pretence of /;«- " pressing seamen^ and forcibly took the (/] 2 Bulstr, 280. 2 Ro. Abr. 567. " chests THE LAW OF BAILMENTS, 109 " chests which the defendant had engaged " to cany ;" and though the master was entirely blameless, yet Sir Matthezv Hale and his brethren, having heard both ci- vilians and common lawyers, and, among them, Mr. Holt for the plaintiff, deter- mined, on the principles just before es- tablished, that the bailor ought to reco- ver \in\. This case was frequently men- tioned afterwards by Lord Holt^ who said, that " the declaration was drawn by the " greatest pleader in England of his " time [w]." [?w] I Ventr. 190. 238. Raym. 220. (41) [«] Ld. Raym. 920. (41) By Stat. 7 Geo. II. chap. 15, §1, it is ena£ted, that ship-owners shall not be liable for any loss arising from the misconduft of the master or ma- riners, beyond the value of the ship and freight : see the case of *« Sutton v. Mitchell," 1 Term Rep. 18. Still lOB THE LAW OF BAILMENTS, Still farther : since neither the element y on which the goods arc carried, nor the magnitude and foryn of the carriage, make any difference in the responsibility of the bailee, one would hardly have conceived, that a diversity could have been taken be- tween a letter and any other thing. Our common law, indeed, was acquainted with no such diversity ; and 2. private post-rmaster was precisely in the situation of another carrier ; but the statute of Charles II, having established a general post-office, and taken away the liberty of sending letters by a private post [0], it was thought, that an alteration was made in the obligation f 110 1 of the post-master general ; and in the case Case of of Lane and Cotton , three judges deter- CoTTON. mined, against the fixed and well-supported opinion of Chief Justice Holt, " that the " post-master was not answerable for the [0] 12 Cha. II. ch. i^. See the subsequent statutes^ ^* loss THE LAW OF BAILMENTS. 110 ** loss of a letter with exchequer-bills in ^* it [/>] :" now this was a case of ordinary jiegledl:, for the bills were stolen out of the plaintiff 's letter hi the defendant's office [y] ; and [/] Caith. 487. 12 Mod. 482. (42) [y] In addition to the authorities before cited, p, 44. n. [o], for the distinftion between a loss by Jlcalth and by robbery, see DumouUn, traft. De eo quod iiiitrest, n. 184. arid RosELLA casuum, 28. b. This last is the book which St. German improperly calls Summa Rosella, and by misquoting which he misled me in the passage concerning the fall of a house, p. 68. The words of the author, 'Tro- "vamala, are these : *' Domu* tua mlnalatur ruinam ; do- " mus (42) I Ld. Raym. 646. S. C. See also Whit- field V. Lord !c Dcspcncer, Cowper, 754. whf.re the decisions in Liine v. Cotton is confirmed: and where it is settled, that no adlion of the kind can be sup-^ ported except in the circumstance oi personal miscon- dud in any party employed by the Post-Office, Lord Holt's, and our author's, reasoning on the subje6l cer- tainly possesses the advantage of analogy ^ but in the last case Lord Mansfield (764) places the post esta- blishment in a new light j and the two concurring determinations now give the laiv on this point, pro^ ducing that •* certainty," which, as Lord Coke observes, " is the mother of quiet and repose," li 110 THE LAW OF BAILMENTS. and as the master has a great salary for the discharge of his trust ; as he ought clearly to answer for the acts of Lis clerks and agents ; as the statute, professedly enaded for safety as well as dispatch could not have been intended to deprive the svibjeO; of any benelit which he before enjoyed \ for these reasons, and for many others, I - believe that Cicero would have said what r 111 1 ^^ wrote on a similar occasion to Trebatlus^ " Ego tamen scjEVOLje assentior [r]." It would, perhaps, have been different under the statute^ if the post had been robbed either by day or by nighty when there is a ne- cessity of travelling, but even that question would have been disputable ; and here I may conclude this division of my Essay with observing, in the plain but emphatic^ ** mus corruit, et intecficit eqnum tibi commodatum ; certe ** non potest diet casus furtuitus ; quia iHt'igev.t'usimvs repa- " rasset domum, vel Ibi non habitasoet ; si autcm domus ** non minabatnr riiinam, sed impetu tempestatis validat *' corruit, noii est tibi impiitandiim." Tr] Epist. ad Fam. Mil, 2 2. language THE LAW OF BAILMENTS. Ill language of St. German, " that all the ^^ former diversities be granted by secondary " conclusions derived upon the law of rea- " son, 'without any statute made in that he- " half : and, perad venture, laws and the " conclusions therein be the more plain " and the more open ; for if any statute " iverc made therein^ I think verily, more " doubts and questions would arise upo7t " the statute^ than doth now, when they " be only argued and judged after the " common law [x]." Before I finish the historical part of my Essay, in which I undertook to demonstrate " that a perfed: harmony subsisted on this " interesting branch of jurisprudence in the " codes of nations most eminent for legal " 'wisdo?n [^]," 1 cannot forbear adding a few remarks on the institutions of those [j] Doft. and Stud. dial. 2. chap. 38. last sentence. CO p. II. I i 2 nations Ill THE LAW OF BAILMENTS. Laws of nations who are 2;enerally called barbarous^ the Noi th- ^ ^ ' ' ern nations, and who Seem in many instances to have [ 112 J deserved that epithet: although traces of sound reasoning and solid judgment appear in most of their ordinances. By the ancient laws of the Wisigoths, which are indeed rather obscure, the " keeper " of a horse or an ox for bh-e^ as well as a " hirer for use^ was obliged, if the ani- " mal perished^ to return another of equal " worth :" the law of the Baiuvarians on this head is nearly in the same words ; and the rule is adopted with little alteration in the capitularies of Charlemagne and Lewis the Pious \ii\ w^here the Mosaic law before cited concerning a boj'-rozver may also be found \w\ In all these codes a depositary of gold, silver, or valuable trinkets, is made [k] Lindenbrog, LL. IVhl^oth. lib. 5. tit. 5. $ I, 2, 3. and LL. Baiuvar. tit. 14. § i, 2, 3, 4. Capitul. lib. 5. § 204. \jw~\ Capitul. lib. 6. § 22, Exod. xxii. 14, 15. chargeable. THE LAW OF BAILMENTS. Il2 chargeable, if they are destroyed by fre^ and bis own goods perish not with them ; a circumstance which some other legislators have considered as conclusive evidence of gross nej^led: or fraud: thus by the old ^^"'i.°/ ° ° ^ the Bntons. British Trat^, called the Book of Cynawg, a person, who had been robbed of a deposit, was allowed to clear himself by makin": oath, with compurgators, that he had no concern in the robbery, unless he had saved his own goods ; and it was the same, I be- lieve, among the Britons in the case of a loss by Jire^ which happened without the fault of the bailee ; although Howel the Good seems to have been rigorous in this [ 113 ] case for the sake of public security \x\ There was one regulation in the Northern code, which I have not seen in that of any other nation : if precious things were de- [.v] LL, Hywel DJa, lib. 3. cap. 4. § 22. and lib. 3. cap 3. § 40. See also Stknih. De Jur. Sveon. p. 256, 257. posited 113 THE LAW OF HArLMENTS, posited and stolen^ time wa.s given to search for the thief, and if he could not be found within the time limited, a moiety of the value was to be paid by the depositary to the owner, " ut damnum ex medio uterque " sustineret [jl']." Now I can scarce persuade myself, that the phrase used in these laws, si id perierit, extends to a perishing by irievitable acci- dent ; nor can I think that the old Gothic law, cited by Stiernhook^ fully proves his assertion, that " a depositary was respon- " sible for irresistible force ;" but I observe, that the military lawgivers of the North, who entertained very high notions of good faith and honour, were more stri(!3: than the Romans in the duties by vv^hich depo- sitaries and other trustees were bound : an exad: conformity could hardly be expelled between the ordinances of polished states, [j'] LL. Wi^igoth. lib. 5. tit. 5. ^ 3. and s THE LAW OF BAILMENTS. 113 aud these of a people who could suffer ilisputes coaceiTiing baihnents to be de- cided by cv}-ibat ; for it was the Emperor Frederick 11. who abohbhed the trial by [ 114 ] battle in cases of contested deposits, and substituted a more x'ational mode of proof \%\ I purposely reserved to the last the Laws of the Indians. mention of the Hindu, or Indian^ code, which the learning and industry of my much-esteemed friend Mr. Halhed has made accessible to Europeans (43), and the Per- sian [k] LL. Longohard. lib. 2. tit. ^<^. ^ ^^. Constit. Neapol. lib. 2. tit. 34.. (43) By an EngHsh translation published in lySi. the prefr.ce to the work con'aiiis many valuable re- marks on the hibtory and antiquities of India : with respecl: to the code, Sir Williaui Jones truly observes that " the rules of the Pundits concerning sitccessicn ♦< to property^ the punishment of offences^ and the cere- *» monies of religion^ are widely different from ours ;" it may, howeve^r, be remarked, that the chapter " of «' the 114 THE LAW OF BAILMENTS, SI AN translation of whicii I have had the pleasure of seeing : these laws, wlilch must in all times be a singular ohjed: of curiosity, are ?io'w of inhnite importance ; since the happiness of miiHons, whom a series of " the division of inheritable property," and that " of *« justice," are by no means unworthy the attention of the British lawyer, who is disposed to extend the re- searches connefled with his professional science. From the follosving passage in the chapter " of justice," a tyro at the bar may derive some profitable instru6tion ia the important and difficult art of cross-examination, *' When two persons, upon a quarrel, refer to arbi- *' trators, those arbitrators, at the time of examina- *' tion, shall observe both the plaintiff and defendant *' narrowly, and take notice if either, and which of ** them, when he is speaking, hath his voice faulter *' in his throat, or his colour change, or his forehead *' sweat, or the hair of his body stand ere6l, or a *' trembling come over his limbs, or his eyes vi'ater j " or if, duriiig the trial, he cannot stand still in his *' place, or frequently licks and moistens his tongue, *^ or hath his face grow dry, or in speaking to one *' point, wavers and shufHes off to another, or if any *' person puts a question to him, is unable to return, ** an answer , — from the circumstances of such com-^ *' motions they shall distinguish the guilty party.* Haihed'b Code of Gentoo Laws, c. 3. p. 105. amazing THE LAW OF BAILMENTS. 114 amazing events has subjected to a British power, depends on a strict observance of them. It is pleasing to remark the similarity, or rather identity, of tliose conclusions, which pure unbiassed reason in all ages and nations seldom fliils to draw, in such ju- ridical inquiries as are not fettered and manacled by positive institution ; and al- though the rules of the Pundits concerning succession to property^ the punishment of offences^ and the ceremonies of religion^ are widely different from ours, yet in the great system of contrciEfs and the common in- tercourse between man and man, the Poo- tee of the Indians (44) and the Digest of the Romans are by no means dissimilar[rt:], [a] " Haec omnia," says Grot i us, " Roman'is qm'detn *' congruunt legibus, sed non ex illis primitus, sed fx " ^quitate nalurali. veniunt : quare eadem apud alias *• quoque gentes reperire est," De Jure Beli ac Pacisy lib. 2. cap. 12, ^ 13. (44) Dr. Robertson (see his Disquisition on India, Ap- pendix, p. 247 — 254.) bestows his approbation on toe Indian Code, and compares it with that of Justinian. • Kk Thus 115 THE LAW OF BAILMENTS. Thus it is ordained by the sages of Hin- dustan^ that " a depositor shall carefully " inquire into the character of his intended " depositary ; who, if he undertake to " keep the goods, shall preserve them with " care and attention ; but shall not be " bound to restore the value of them if " they be spQiled by iinjm'esccn accident^ or ^^ burned y or stolen; unless he conceal " any part of them that has been saved, " or unless his ozvn ejects be secured^ or " unless the accident happen after his re- ^^ fiisal to redeliver the goods on a demand " made by the depositor, or while the de- ** positary, against the nature of the trust, " presumes to make use of them :" in other words, '* the bailee is made answerable for ^^ frauds or for such negligence (45) as ap- " proaches to it [^]." So [ir\ Genloo Laws, chap. 4. See before, P. 47. (c|5) The words of this part of the Braminical institutions are soiemn and remaikabie ; they prove that THE LAW OF BAILMENTS. 315 So a borrower is declared to be charge- able even for casualty or violence^ if he fail to return the thing after the completion of the business for wliich he borrowed it ; but not, if it be acddentaUy lost or forcibly seized, before the expiration of the time, or the conclusion of the affair, for which it v/as lent [r] : in another place it is pro-^ vided, that, if a pledge be damaged or lost by mforeseen accident^ the creditor shall nevertheless recover his debt with interest, [" 116 1 but the debtor shall not be intided to the [c] Same chapter. See before, p. 68. that the oriental notions on the subjetl of hospitality to persoTis, are extended with scrupulous consistency to the deposit of goods. '* If a person should make use ** of any property intrusted to him, or it be spoiled " for want of his care and arteruion, then whatever " crime it is for a woman to abuse her husband, or ♦' for a man to murder his friend, the same decree of " guilt shall be imputed to him, and the value of *' the trust must be made good." Geiitco Laws, c. 4. p. 120. value Kk2 116 THE LAW OF BAILMENTS* value of his pawn [) case is a strong authority, • and the reason of it comes home to this, because the general bailment is there taken to be an undertaking to deliver the goods at all events, and so the judgment is founded upon the un- (b) That notion in Southcote's case, 4 Rep. 83. b. that a general baihnent and a bailment to be safely kept is all one, was denied to be law by the whole court, ex relatione m'ri Bunbury. Note to 3d Ed. N n dertaking. 'Vili APPENDIX. dertaking. But I cannot think, that a general baihnent is an undertaking to keep the goods safely at all events. That is hard. Coke feports the case upon that reason, but makes a difference where a man undertakes specially, to keep goods as he will keep his own. Let us consider the reason of the case. For nothing is law that is iLd.Raym. not reason. Upon consideration of the autho- 91^' rities there cited, I find no such difference. In 9 Ed. 4. 40. b. there is such an opinion by Danby. The case in 3 H. 1. 4. was of a spe- cial bailment, so that that case cannot go very far in the matter. 6 H, 7. 12. there is such an opinion by the bye. And this is all the foundation of Souf/jcote's case. But there are cases there cited, which are stronger against it, as 10 H. 7. 26. 29 Jss. 28. the case of a pawn. My lord Coke would distinguish that case of a pawn from a bailment, because the pawnee has a special property in the pawn ; but that will make no difference, because he has a special property in the thing bailed to him to keep. 8 Ed. 2* Fitzb. Detinue, 59. the case of goods beiiled to a man, locked up in a chest, and stolen ; and for the reason of that case, sure it Would be hard, that a man that takes goods into his custody to keep for a friend, purely out of kindness to his friend, should be chargeable a>t all APPENDIX, ^ all events. Bat then it is answered to that, that the bailee might take them specially, 'Inhere are many lawyers don't know that dilFerence, or however it may be with them, half mankind never heard of it. So for these reasons, I think a general bailment is not, nor cannot be taken to be, a special undertaking to keep the goods bailed safely aoainst all events. But if (a) a man (^) vide ante - ^ , V -^ 44. does undertake specially to keep goods safely, that is a warranty, and will oblige the bailee to keep them safely against perils, where he has his remedy over, but not against such where he has no remedy over, Holf, Chief Justice, The case is shortly this. This defendant undertakes to remove goods from one cellar to another, and there lay them down safely, and he managed them so negligently, that for v/ant of care in him some of the goods v/ere spoiled. Upon not guilty pleaded, there has been a verdicl for the plaintiff, and that upon full evidence, the cause being tried before me at Guildhall, There has been a motion in arrest of judgment, that the declaration is insuiHcient, because the defendant is neither laid to be a com- mon porter, nor that he is to have anv reward for his labour. So that the defendant is not chargeable by his trade, and a private parson N n 3 cannot K APPENDIX. cannot be cliargcd in an aflion without a re* ward. I have had a great consideration of this case,, and because some of the books make the action lie upon the reward, and some upon the pro- mise, at fii:st I made a great que'Stion, whether this declaration was good. Bui upon consider- ation, as this declaration is, I think the aclion will well lie. In order to shew the grounds, upon which a man shall be charged with goods put into his ciistody, I must shew the several («) vide ante sorts oi bailments. And (a^ there are six sorts of '^"'* bailments. The first sort of bailment is, a bare naked bailment of goods, delivered by one man 2Ld.Raym> to another to ke^^^p for the use of the bailor; 913. and this I call a dcpoaitum^ and it is that sort of bailment which is mentioned in Southcote^s case. Accommoda- ^ he second sort is, v/hen s:oods or chattels that turn. , . are useful, are lent to a friend gratis, to be used by him ; and this is called coinmodatum, because the thing is to be restored in specie. The third sort is, Vv'hen goods are left with the bailee to be used by him for hire ; this is called hcatio et condu£lio, ..and the lender is called locator, and PawB'. the borrov/er conductor. The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money bor- rov/ed APPENDIX, XX rowed of him by the bailor ; and this is called in Latin vadium, and in English a pa\\'n or a pledge. The fifth sort is when goods or chattels Things to be are delivered to be carried, or something is to ^"'re^vid^'^* ^* be done about them for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. The sixth sort To he canicd is when there is a delivery of goods or chattels ^"rj." to somebody, who is to carry them, or do some- thing about them gratis, without any reward for such his work or carriage, which is this present case. I mention these things, not so much that they are all of them so necessary in order to maintain the proposition which is to be proved, as to clear the reason of the obligation, which is upon persons in cases of trust. As to the (^) hrst sort, where a man takes a man who re- goods in his custody to keep for the use of the keep gratis for bailor, I shall consider, for what things e-iich a baUoTis^no?^ bailee is answerable. He is not answerable, if answerable for they are stole WLthout any tc-ult m mm, neittier for any damage will a common negleft make him chargeable, [J^^ unLThe but he must be (ruilty of some p-ross nes-lecl:. ^^' g"''')' of o y o ^ o some j^ross nc- There is I confess a great authority against me, ciea with re- spedt to them. (a) Vide ante 36. where 3CU APPENDIX. Vide Str. 1099. Nor even then if he was guilty of the same ne gled: with re Bped to his own. D. ace. 2 lA. Rayni. 6.';5. Semb. ace Burr. 23^0. Vide ante \6. 62. {a) Vide i Ld, Raym. 655. Ante 41. . where it is held, that a general delivery will charge the bailee to answer for the goods if they are stolen, unkvSS the goods are specially ac- cepted, to keep them only as you v/ill keep your own. But (a) my lord Coke has improved the case in his report of it, for he will have it, that there is no difference between a vspecial ac- ceptance to keep safely, and an acceptance ge-. nerally to keep. But there is no reason nor justice in such a case of a general bailment, and where the bailee is not to have any reward, but keeps the goods merely for the use of the bailor, to charge him without some default in him. For if he keeps the goods in such a case with an ordinary care, he has performed the trust reposed in him. But according to this doctrine the bailee must ansv»^er for the wrongs of other peo-. ple, which he is not, nor cannot be, sufiiciently armed against. If the law be so, there must be some just and honest reason for it, or else some universal settled rule of law, upon which it is grounded ; and therefore it is incumbent upon them that advance this doctrine, to shew an undisturbed rule and practice of the law accords ing to this position. But to shew that the tenor of the law was alv/ays otherwise, I shall give a history of the authorities in the books in this matter^ APPENDIX. "x:m matter, and by them shew, that there never was iLd.Rapiu any such resolution given before Soittbcote^s case. '^^'^' The 29 Ass. 28. is the first case in the books upon that learning, and there the opinion is, that the bailee is not chargeable, if the goods are stole. As for 8 Edw. 2. Fitz, Detinue, 59* where goods were locked in a chest, and left with the bailee, and the owner took away the key, and the goods were stolen, and it was held that the bailee should not answer tor the goods. That case they say differs, because the bailor did not trust the bailee with them. But I can- not see the reason of that difference, nor why the bailee should not be charged with goods in a chest, as well as with goods out of a chest. For the bailee has as little power over them, when they are out of a chest, as to any benefit he might have by them, as when they are in a chest ; and he has as great power to defend them in one case as in the other. The case of 9 Edw. 4. 40. b. was but a debate at bar. For Danby was but a counsel then, though he had been chief justice in the beginning of Ed. 4. yet he was removed and restored again upon the restitution of Hen. 6. as appears by Dugdale^s Chronica Scries. So that what he said cannot be taken to be any authority, for he spoke only for his client j and Genney for his client said the contrary. XIV APPENDIX. contrary. The case in 3 Hen. 7. 4. is but a sudden opinion, and that but by half the court ; and yet that is the only ground for this opinion of niy Lord Coke, which besides he has im- proved. But the pradice has been always at Guildhall, to disallow that to be a sufficient evi- dence to charge the bailee. And it was prac- tised so before my time, ail Chief Justice Peni- berton's time, and ever since, against the opi- nion of that case. When I read Soiithcote^s case heretofore, I was not so discerning as my bro- ther Pozvys tells us he w^as, to disallow that case at first, and came not to be of this opinion, till I had well conpidcrod and digested that matter. Though I must confess reason is strong against the case to charge a man for doing such a friendly a£t for his friend, but so far is the law from being so unreasonable, that such a bailee is the least chargeable for negleft of any. For if he keeps the goods bailed to him but as he keeps his own, though he keeps his own but negligently, yet he is not chargeable for them ; for the keep- ing them as he keeps his own, is an argument of his honesty. A fortiori he shall not be charged, where they are stolen without any neglect in him. Agreeable to this is Bradon, lib, 3. r. 2. 99. b. J. S. apud quern res deponitur, re ohUgatur, ct de ea re, qiiam accepit, restituenda ienetur, et etiam APPENDIX. Xr etiam ad id^ si quid i?i re deposita dolo cofiunls' erit ; culpa: autcm no?ninc non tenetur, scilicet de- sidiiZ vcl negligentia , quia qui ncgligenti amico rem custodioidam tradit, sibi ipsi et propria fa- tuitati hoc debet impiitare. As suppose the bailee is an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open, and by reason thereof the goods happen to be stolen 2Ld,Raym. with his own; yet he shall not be charged, be- ^15. cause it is the bailor's own folly to trust such an idle fellow. So that this sort of bailee is the least responsible for negleds, and under the least obligation of any one, being bound to no other care of the bailed goods, than he takes of his own. This Bra6ion I have cited is, I confess, an old author, but in this his do£lrine is agree- able to reason, and to what the law is in other countries. The civil law is so, as you have it in Justinian's Inst. lib. 3. fit. 15. There the law goes farther, for there it is said. Ex eo solo tenetur, si quid dolo commiserit : culpa aute?n no- mine^ id est, desidia ac negligentia, non tenetur, Itaque securus est qui paruni dilige?iter custoditani rem furto amiserit, quia qui negligejiti a?nico rem custodiendam tradit non ci, sed sua facilitati id imputare debet. So that a bailee is not charge- able without an apparent gross negled. And if -^ g^^oss negledk , . , i ol • • 1 1 J ^" evrdence of there is such a gross neglect, it is looked upon fraud. O o as KVl APPENDIX. Though a man who takes goods to keep gratis for the use of the bailee ex- pressly under- takes to redeli- ver them safely, he is not re- sponsible for any loss or damage occasioned by a ivrong-doer. Sed vide ante 45. The borrower of goods is re- sponsible for any damage or 'loss if it was occa- sioned by his neglect. Vide ante 65. 72, 73. as an evidence of fraud. Nay, suppose the bailee undertakes safely and securely to keep the goods, in express words, yet even that won't charge him with all sorts of neglects. For if such a promise were put into writing, it would not charge so far, even then. Hob. 34. a covenant, that the covenantee shall have, occu- py, and enjoy certain lands, does not bind against the acts of wrong-doers. 3 Cro. 2 1 4. ace. 2 Cro. 425. dec. upon a promise for quiet enjoyment. And if a promise will not charge a man against wrong-doers when put in writing, it is hard it should do it m.ore so when spoken. Doc^. and Stud. 130. is in point, that though a bailee do promise to re-deliver goods safely, yet if he have nothing for keeping of them, he will not be ansY/erable for the acts of a v/rong-doer. So that there is neither sufficient reason nor authority to support the opinion in Sontbcote's case ; if the bailee be guilty of gross negligence, he will be chargeable, but not for any ordinary negle6t. As to the second sort of bailment, viz. co?iimo- datwn or lending gratis^ the borrower is bound to the stri6test care and diligence to keep the goods, so as to restore them back again to the lender, because the bailee has a benefit by the use of them, so as if the bailee be guilty of the least negleft, he will be answerable : as if a man should APPENDIX. XVU should lend another a horse, to po Westward, orif heused the " goods m a man- or for a month ; if the bailee go Northward, or ncr not war- , , , , ST • I ranted by the keep the horse above a month, it any accident term? of the happen to the horse in the Northern journey, ^^°^^^" oz'^'tl. or after the expiration of the month, the bailee will be chargeable ; because he has made use of the horse contrary to the trust he was lent to him under, and it may bo if the horse had been used no otherwise than he was lent, that accident would not have bef^dlen him. This is mentioned in Bradon, ubi supra : his words are. Is autem citi res all qua iitenda datiir, re obligatur^ qucs commodata est, sed magna differentia est inter mu- tuum et conimodatum ; quia is qui rem mutuam ac- cepit, ad ipsam restitucndam tenetur, %'el ejus 2Ld.Ray7n, pretium, si forte ineendio, ruina, naufragio, aut ^lt». latronuni vel hostium incursu, conswnpta fuerit, njel depcrdita, subtrada vel ablata. Et qui rem Note in the , . ,T, . , . ,. , Braiflon before utenaam accepit, non sujjicit ad rei custoaiam, quod me, it is com- taleni diligcntiam adhibcat, qualem suis rebus J5i°^'*nn'i^t bl"l propriis adhibere solet, si alius earn dilizentius """'stai^f' as yoa . ,. . . . ^ will fnul by potuit custodire ; ad vim autem majorem, vel casus Justinian, ubi fortuitos non tenetur quis, nisi culpa sua inter- wEceE^aoion venerit. Ut si rem sibi commodatam domi. secum ^':*'* "'^^'\'''^ ^ his distmc'iions, detulerit cum percgre profcdus fuerit, et illam and tiuit almost 7 . , ' , , r. . word for word. incursu bostium vet praaonunij vel naufragio ,.£imiserit non est dubium quin ad rei rcstltutionem teneatur, I cite this author, though I confess he Oo 2 XVlll APPENDIX. The horrowi^t of goods hall lot be respons - ble for a loss by robb r , un ss the robbery was occasion d or facilitated by some negledl on i is part Vide, ante 66. he is an old one, because his opinion is reason- able, and very much to my present purpose, and there is no authority in the law to the con-! trary. But if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him. But if he or his servant leave the house or stable doors open, and the thieves take the opportunity of that, and steal the horse, he v.ill be- chargeable j because the neglect gave the thieves the occasion to steal the horse. Bracfon &iys, the bailee must use the utmost care, but yet he shall not be chargeable, where there is such a force as he cannot resist. The hirer of goods is respon- sible wherever the borrower woi.ld be, sed vide ante 86. and not else- where. (a) Vide ante 87. As to the third sort of bailment, scilicet loca- tio or lending for hire, in this case the bailee is also bound to take the utmost care and to return the goods, when the time of the hiring is expired. And here again I must recur to my old author, fol. 62. b. Qid pro usu 'vcst'imentorum auri vel argenti, vel ahcrius ornamenti^ vel jumenti^ mer- cedem dcderit vel promiserit^' talis ah eo desidera^ tur custodia^ qualem {d) diligentissimus paierfa- milias suis rebus adhibct, quavi si prastiterit, et re?n aliquo casii ainiserit, ad rem restituendam non Unebiiur, Nee sufficit aliquem talem diligentiani adhiberCt qualem suis rebus -proprih adhiberety ni^i APPENDIX. XIX nisi talcm adbibiicrit, de qua superius diSium est. From whence it appears, that if goods are let out for a reward, the hirer is bound to the ut- most diligence, such as the most diligent father of a family uses ; and if he uses that, he shall be discharged. But every man, how diligent soever he be, being liable to the accident of rob- bers, thouj-h a dilio-ent man is not so liable as a careless man, the (a) bailee shall not be an- C'^) D.acc.az^, swerable in this case, if the goods are stolen. As to the fourth sort of bailment, viz. 'va- dium or a pawn, in this I shall consider two things ; first, what property the pawnee has in the pawn or pledge, and secondly, for what ne- glects he shall make satisfaction. As to the first, he has a special property, for (b') the pawn (^) -'^- P- •^ Saik. 1 ,,,,,, 28. Holt 528. is a securing to the pawnee, that he shall be re- saik. 522. paid his debt, and to compel the pawnor to pay him. But if the pawn be such as it will be the ^Ld. Raym* worse for using, the {c) pav/nee cannot use it, '* as clothes, EfrV. but if it be such, as will be l"-*/'^"?' ^^?' ' ' 2 6 Hok _5 28. never the worse, as if jewels for the purpose were s^'i^- i^z. pawned to a lady, she {d) might use them. But ( 22 vide _ '■ ^te 8o, 8i. point Bradon 99, b. gives you the answer. Cre- ditor^ qui pigniis acccpit^ re obligatur, et ad //- la?n restituendam tenetur ; et cum hujusmodi res in pignus data sit utriusque gratia, scilicet debi- torisj quo --tiiagis ci pecunia crederetiir, et credi- toris quo magis ei in tuto sit creditum, siifficit ad ejus rei custodiam diligentiam exadam adbiberCy quam si prcsstiterit, et rem casii amiserit, securus esse possit, nee ifnpedietur creditum peter e. In The pawnee of effeft, if a Creditor takes a pawn, he is hound vo ds is respon-j . r i i i i sibie for an loss to rcstorc it upon the payment oi the debt ; but respect ^tfthr'' Y^^ it is sufFicieut, if the pawnee use true dili- pawn while he gencc, and he will bo indemnified in so doing^, is warranted in o ' o ' detaining it, if and notwithstandmg the loss, yet he shall resort It was occasion- ^ c- i*ii. \ ■'i^^i.* ed by his negii- to the pawuor tor his debt. Agreeaoie to this gcnce. Vide jg 29 Ass. 28, and Sautliccie's case is. But in- ^ce ^5^ - , , deed APPENDIX. XXI deed the reason given in Southcofe^s (iase is, be- cause the pawnee has a special property in the pawn. But that is not the reason of the case ; and there is another reason given for it in the Book of Assize^ m hich is indeed the true reason of all these cases, that the law requires nothing extraordinary of the pawnee, but only that he shall use an ordinary care for restoring the goods. But indeed, if the money for which the goods were pawned, be tendered to the pawnee before they are lost, then the pawnee shall be answer- able for them ; because the pawnee, by detain- ing them after the tender of the money, is a wrong-doer, and it is a wrongful detainer of the goods, and the special property of the pawnee is determined. And a man that keeps goods by wrong, must be answerable for them at all events, for the detaining of them by him is the reason of the loss. Upon the same difference as the law is in relation to pawns, it will be found to stand in relation to goods found. otherwise he is not. S. P. 3 Salk. 16 .Salk. 5IZ. vide aute 75- But he is an- swerable at all events for any loss or damage which happehs after he ou^hr to have returned the pawn. S. P. ; Salk. 26 i. Holt 5i?. Salk. 5^2. vide 2 Ld R.iym. 7 -3. Ante 79. A man that keeps jj ods by W'ong is at all events answer- able for their loss or damage, vide ante 70, 71- As to the fifth sort of bailment, viz. a deli- very to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts ; either a delivery to one that exercises a public employment, or a dehvery to a private person. XXII appeN'dix^ ^Ld.Raym. 918. If goods are delivered to a person in a public employ- ment for a purpose in re- spcd; .. f which he is to have a reward, he is answerable for any less or daaiage which Is not occa- sioned by the ad of God or the king's enemies. S. P. Holt 1,1. R. ace. I Wils. a8i. Barclay v. Yann B. R. E.T 24 G V Trent and Mer- sey Company v. Wood, ii R. E. T. 25 G. 3. 3. T. R. 27. a6:^. Str. 128. Burr. 2300. Sjay. Ante 103. A bailiff or faftor, though he is to have a reward, is not ansvve'able for any loss or da- mage which was per~on. First if it be to a person of the first sort, and he is to have a reward, he is bound x.6 answer for the goods at all events. And this is the case of the common carrier, common hoy- man, master of a ship, l^c. which case of a master of a ship was first adjudged 26 Car. 2. in the case of Mors v. Slew. Raym. 220. 1 Vent. 190. 238. The law charges this person thus intrusted to carry goods, against all events but ads of God and of the enemies of the king. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves, l^c. and yet doing it in such a clan- destine manner, as would not be possible to be discovered. And this is the reason the law is founded upon in that point. The second sort are bailees, fadors, and such like. And though a bailie is to have a reward for his management, yet he is only to do the best he can. And if he be APPENDIX. XXlli be robbed, bV. it is a good account. And the .'ll^'f.JJi'^J^^/jJ^ •reason of" his beinu; a servant is not the thlnir ; his i.c^rL-^t. ,. r , . .^.1'. Holt r.^i. for he is at a distance from his master, and a(i:ts viae i Vc ..t. at discretion, receiving rents and selling corn, **^* ^ *'''^' Esff. And yet if he receives his master's money, and keeps it locked up with a reasonable care, he shall not be answerable for it though it be stolen. But yet this servant is not a domestic servant, nor under his master's immediate care. But the true reason of tlie case is, it would be unreasonable to charge him with a trust, farther than the nature of the thing puts it in his power to perform it. But it is allowed in the other cases, by reason of the necessity of the thing. The same law of a factor. As to the sixth sort of bailment, it is to be taken, that the bailee is to have no reward for his pains, but yet that by his ill management the goods are spoiled. Secondly, it is to be understood, that there was a negle£t in the ma- nagement. But thirdly, if it had appeared that the mischief happened by any person that met the cart in the way, the bailee had not been chargeable. As if a drunken man had come by in the streets, and had pierced the cask of brandy, in this case the defendant had not been answerable for it, because he was to have nothing for pp A man to whom goods are de- livered for a purpose in re- spect of which he is to have no reward, is not answerable for any loss or da- mage occasion* ed by a third person. XXit APPENDIX. ' for his pains. Then the bailee having undei^* taken to manage the goods, and having ma- naged them ill, and so by his negleO; a damage has happened to the bailor, which is the case in Case lies for question, what will you call this ? In Bradon, execu^bga ^'^b. 3. lOO. it is Called mandatum. It is an gratis commis- obligation which arises ex mandato. It is what sion. Vide I H. o Bi. ij8. we call in English an afting by commission. And if a man acts by commission for another gratis^ and in the executing his commission behaves ^Ld.Raym. himself negligently, he is answerable. Vinnius "^^' in his Commentaries upon Justinian.,' lib. 3. tit. 27. 684-. defines inandatum to be contractus quo aliquid geratuito gercndum committitur et accipi- iur. This undertaking obliges the undertaker to a diligent management, EraBon^ ubi siipray says, contrahitur etiam obligatio non solwn scripto €t verbis^ sed et consensu^ sicut iji contraBibus bona Jidei ; ut in emptionibiis^ venditionibus^ lo- cationibus, conduHionibm, socictatibus, et man' datis. I don't find this word in any other au.^ thor of our law besides in this place in BraBon, tl'hich is a full authority, if it be not thought too old. But it is supported by good reason and authority. The reasons are, first, because in such a case, a negle^ is a deceipt to the bailor. For when he APPENDIX. Jl-XV he intrusts the bailee upon his undertaking to be careful, he has put a fraud upon the plaintiff by being negligent, his pretence of care being the persuasion that induced the plaintiff to trust him. And a brcacji of a trust undertaken vo- a breach of a trust undcrtak- luntarily will be a good ground for an adion. en voluntarily is r Roll. Abr. 10. 2 Hen, 7. 11. a strong case ft/an*^aaion" to this matter. There the case was an action ^"^^ ^"'^ ^^^ 57' against a man, who had undertaken to keep an hundred sheep, foj* letting them be drowned by his default. And there the reason of the judg- ment is given, because when the party has taken upon him to keep the sheep, and after suffers them to perish in his default ; inasmuch as he has taken and executed his bargain, and has them in his custody, if after he does not look to them, an action lies. For here is his own aft, viz. his agreement and promise, and that after broke of his side, that shall give a sufficient cause oi ^dion. But, secondly, it is objected, that there is no consideration to ground this promise upon, andi therefore the undertr.king is but nudum paBum. But to this I answer, tliat the owner's twisting him with the goods is a sufficient consideration to oblige him to a careful management, Indeed if the agreement had been executory, tQ carr^' P p 2 thesQ XXVI APPENDIX. these brandies from the one place to the other (a) Vide nnte siich a day, the (r?) defendant had not been ^ '^^' " bound to cany them. Bat this is a diflerent case, for assumpsit does not only signify a future agreement, but in such a case as this, it signifies an adual entry upon the thing, and taking the trust upon himsclf. And if a man will do that, and miscarries in the performance of his trust, an action will lie against him for that, though no body could have compelled him to do the thing. The 19 Hen. 6. 49. and the other cases cited by my brothers, sheAv that this is the dif- ference. But in the 1 1 He??. 4. 33. this differ- ence is clearly put, and that is the only case con- cerning this matter, which has not been cited by my brothers. There the action was brought against a carpenter, for that he had undertaken to build the plaintiff a house within such a time, and had not done it, and it v/as adjudged the action would not lie. But there the question lLd,Raym. -was put to the court, what if he had built the ,, house unskilfully, and it is acreed in that case If a man pro- ■' ^ *-* niises tofe-de- an aclion would have lain. There has been a liver goods in . , .^,. ' . rcnsideration of question made, ir 1 deliver goods to A. and m de)Iwfe?tT consideration thereof he promise to re-deliver him, ar.-adion them, if an adion will lie for not re-delivering vvili He as^ainst , . . ^, , . , . , himforiiot them; and m Jt/t'. 4. judgment was given that Set!' vlde^ the action would lie. But that judgment was a^^te JO, 51, afterward^ APPENDIX. JtXVU aftei'wards reversed, and according to that re- versal, there was judgment afterwards entered for the defendant in the like case. Teh. 128. But those cases were grumbled at, and the re? versal of that judgment in 7\'lv. 4. was said by the judges to be a bad resolution, and the con- trary to that reversal was aftenvards most so- lemnly adjudged in 2 Cro. 667. Tr. 21 Jac. 1. in the King's Bench, and that judgment affirmed upon a writ of error. And yet there is no be- nefit to the defendant, nor no consideration in that case, but the having the money in his pos- session, and being trusted with it, and yet that was held to be a good consideration. And so a bare being trusted with another man's goods, must be taken to be a sufficient consideration, if the bailee once enter upon the trust, and take the goods into his possession. The declaration in the case of Mors v, Sle^vU was drawn by the. greatest drawer in En'gland in that time, and in that declaration, as it was always in all such cases, it was thought most prudent to put in, that a reward was to be paid for the carriage. And so it has been usual to put it in the writ, where the suit is by original. I have said thus much in this case, because it is of great conse- quence that the law should be settled in this point J but I don't know whether I may have. §ettle<^ XXvill APPENDIX, settled it, or may not rather have unsettled it. But however that happen, I have stirred these points, which wiser heads in time may settle, And judgment was given for the plaintiff. THE END. UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. PiJ 3 1992 Law Library Rec'd. AUG 3 W92 315 LAW LIBRARY univeh3:ty of CALIFOHNIA LOS ANGELES / /( \