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THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
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Philadelphia, 9 N. Fourth St.
May 1830..
TO THE
mtmtttn of ttie Batt of tije m. Statesi.
Gentlemen:
Having made an arrangement with Mr Peters, the Re-
porter of the Decisions of the Supreme Court of the United
States, for the publication of the future volumes of his Reports
of Cases decided in that Court; being in possession of a num-
ber of copies of the First and Second Volumes of those Reports;
and having already become the Publisher of his " Condensed
Reports of Cases in the Supreme Court, containing the
whole series of decisions in that court from its organization
to the commencement of Mr Peters'' s first volume in 1827,"
I am prepared to supply the profession and booksellers with any
number of copies of the published works, and those which will
follow. I therefore take the liberty to address this letter to
you, and I respectfully submit to your attention the following
statements and considerations.
By the '' Condensed Reports,'' the first volume of which
has been published, and the second volume of which is in the
press, the Members of the Bar of the United States will have
an opportunity to become possessed of the whole of the deci-
sions of the Supreme Court from 1791 to 1827, at little more
than one fourth of the cost of the original works in which those
cases were originally published. The whole cost of the Con-
densed Reports, to be contained in six volumes, will not exceed
thirty-six dollars bound ; and they will comprehend the United
States Cases to be found in the four volumes of Mr Dallas, the
nine volumes of Mr Cranch, and the twelve volumes of Mr
Wheaton. The first and second volumes of this publication
will include the cases in the four volumes of Mr Dallas, and the
nine of Mr Cranch.
But this description of the work does not fully convey a
statement of its contents. The notes subjoined to the cases
will contain, arranged under their appropriate heads, all the
principles ruled and decided in the Circuit Courts of the United
States, as the same have been reported by Mr Gallison, by Mr
Mason, by Mr Paine, by Mr Peters, by Mr Justice Wash-
ington, Mr Bee and Mr Day, and in the " Admiralty Deci-
sions." Well founded expectations are also entertained, that
abstracts from the manuscript decisions of Mr Chief Justice
Marshall in the circuit in which he presides, will be made to
contribute to the value of this work.
The <' Condensed Reports" and the Reports of Mr Peters
commencing in 1827, it is submitted, will in themselves fur-
nish almost a Complete Law Library. There is scarcely a
part of the law of the United States, or of the individual States,
which has not been examined and settled in the Courts of the
United States.
The jurisdiction of the Circuit Courts of the United States,
extending to cases between citizens of different States, and be-
tween foreigners and citizens of these States, as well on subjects
vvithin the laws of the States, as those which are regulated by
general law, — The exclusive Admiralty Jurisdiction of the
Courts of the United States, as well as the special Jurisdiction
of those Courts in cases under acts of Congress, — The home
jurisdiction of those courts in cases arising in the District of
Columbia — have, during the past forty years, brought into ex-
amination and decision a variety of cases of the highest and
of the most general importance, the extent and number of
which can only be known by an examination of the volumes
in which they are reported. Nor is it only in cases of great
and general importance that the jurisdiction of those courts
has been applied. The Laws of Evidence — the Land Laws of
many of the States of the Union — the Law of Contracts — the
Law of Insurance — the Law of Chancery — the Rules of Prac-
tice — all these in all their various forms have been under con-
sideration in the courts of the United States.
Are not the decisions of the courts of the United States of
the highest authority? In the courts of the United States
they are certainly so ; and it is claimed that their influence, if
not their authority, is equal in the courts of the individual
States. What Judge of a State Court would willingly attempt
the establishment of a rule of property or of evidence differ-
ing from or opposed to that which had been settled by solemn
adjudication of the Supreme Court of the United States ; a tri-
bunal composed of men of the highest judicial eminence in the
nation ?
It is admitted that a State Court is not bound to submit
to the decision of that court in any case not exclusively within
its jurisdiction; but it is again asked, will a Judge of a State
Court pass by with disregard a decision of that court in a
case which has been regularly and properly before it ? While
he may be doing this in a case before him between citizens
of his own State; the Circuit Court of the United States, in
the legitimate application of the law of the Supreme Court
of the United States, in a similar case depending in the Cir-
cuit Court in the same state, between one of the very parties
to the case in the State Court, and' a citizen of another State
or a foreigner, may be enforcing the law differently. The
high character of State tribunals, the possibility of the state
of things described, have always given, and will continue to
give the decisions of the Courts of the United States the
grave and serious consideration, and respect of the Judges
of the Courts of all the States of the Union.
Nor are the decisions of the Judges of the Supreme Court
of the United States; abstracts of all which, as has been
said, will be given in notes to the Condensed Reports ; to be
considered as cases adjudged in courts of inferior jurisdiction
only. The right of appeal and writ of error to the Supreme
Court in those cases — the fact that those courts are held
by the justices of the higher and highest tribunal, who, in
their annual session in the Supreme Court, have opportunities,
which are certainly employed, of investigation, and of thus
ascertaining and fixing principles of law — give to the Circuit
Court decisions very high, if not conclusive authority.
In every State in the Union, Circuit or District Courts of
the United States are held twice a year and oftener, and thus to
every Member of the Bar, practising, or who may practise in
those courts, the Reports which are the subject of this Letter
are of essential necessity. If, in the State Courts, they are
respected as of high influence, and entitled to receive such con-
sideration and respect ; in the Federal Courts they are exclu-
sively the law of every case which comes before these courts.
Containing, as they do, so large a body of the supreme law
of the land, applicable to all the business and to every condi-
tion of persons and things, it is respectfully urged for your
attention, that every lawyer ought, with a just regard to the
safety and interest of his clients, to possess the " Condensed
Reports," and Mr Peters's " Reports of Cases decided in the
Supreme Court of the United States, commencing at January
t^m 1828."
Very respectfully,
. JOHN GRIGG.
CHANCERV RSPORTS.
JOHN GRIGG, No. 9. North Fourth street, has also in press
the Decisions of the English Chancery Courts^ upon the plan
which has been adopted and syccessfully executed with the " En-
ghsh Common Law Reports." The work will comprehend, in a
condensed form, all the Reports which have not been republished
in the United States ; and it will be continued, so as to present to
the profession annually, the Chancery Reports as they shall here-
after appear in Great Britain.
The work will also contain references to the Decisions of the
Chancery Courts of the United States, and of the several states.
J. G, amongst a large assortment of Law Books^ has for sale
Atkyns's Reports. By Saunders, 3 vols.
Blackstone's Commentaries. By Christian, Archbold, and Chitty,
new edition.
Caines's New York Term Reports, 3 vols.
CHITTY ON CONTRACTS, 1 vol. 8vo, new edition.
Chitty's Pleadings, 3 vols, new edition.
Clancy on the Rights of Married Women.
Comyn on Contracts, new edition. Clerk's Assistant.
Cruise on Real Property, new edition, 4 vols.
Coke's Reports, 7 vols. Coke's Reports, abridged.
Coxe's New Digest of United States Reports.
Durnford's and East's Reports, 4 vols, new edition.
FONBLANQUE'S Celebrated TREATISE ON EQUITY. A
new edition, with considerable additions from the last London
edition, by a distinguished Member of the Philadelphia Bar, in
1 vol. royal 8vo.
Jones on Bailments, a new edition. In 1 vol. 8vo.
Laws of United States, 3 vols. Story's edition.
Long on Sales of Personal Property.
Maddock's Chancery, 2 vols.
Merivale's Chancery Reports, 3 vols. Montagu on Lien.
Peake's Evidence, by Norris.
Roberts on Fraudulent Conveyances.
SAUNDERS'S REPORTS, in 3 vols, Bvo. The 4th American,
from the 5th considerably enlarged London edition. ^
STARKIE ON EVIDENCE, 3 vols, royal 8vo, new ediiion.
Starkie's CriminalPleading. Starkie on Slander.
Sugden on Law of Vendore, new edition.
Swanston's Chancery Reports, 3 vols.
TOLLER'S LAW OF EXECUTORS AND ADMINISTRA-
TORS. With Notes and References to American Authori-
ties, by E. D. Ingraham, Esq. new edition.
Vernon's Chancery Reports, a new edition, by Raithby, in 2 vols.
Vattel's Law of Nations, new edition.
AN
ESSAY
LAW OF BAILMENTS
SIR WILLIAM JONES Knt.
'(2:f)i«;D loitDon JDitfon,
WITH
NOTES AND REFERENCES
ON THE SUBJECT OF
CARRIERS, INNKEEPERS, WAREHOUSEMEN, AND OTHER BAILEES.
Bv WILLIAM NICHOLS, Esq.
Of Lincoln's Inn, Barrister at Law.
WITH ADDITIONAL NOTES AND REFERENCES TO
AMERICAN DECISIONS,
BY
WILLIAM HALSTED, Jun. Esq.
JVEW-YORK:
PUBLISHED BY O. HALSTED,
and
JOHN GRIGG, PHILADELPHIA.
1§28.
T
T7283 b
Southern Districts of New-York, ss.
BE IT REVIEVTBCRED, That on the 51st day of December, A.
D. 1827. in the 52nd year of the Indepeodance of the United States of
America, O. Halsted of the said Disirict, hath deposited in this oflSce
the title of a Book th • right whereof he claims as Proprietor in the
words following-, to wit:
An Essay on the Law of Bailments, by Sir William Jones, Knt.
Third London Edition, with notes and references on the snbject of
Carriers, Innkeepers, Warehousemen, and other Bailees. Py William
Nichols, Esq of Lincoln's Inn, Barrister at Law. Wjth additional
notes and references lo American Decisions, by William Halsted
Jun. Esq.
In conformity to the Act of Congress of the United States, entitled
" An Act for the encouragement of Learning, by securing the copies
of Maps, Charts, and Books, to the authors and proprietors of such
copies, during the time therein mentioned." And also to an Act,
entitled •* An Act, supplementary to an Act, entitled an Act for the
encouragement of Learning, by securing the copies of Mips, (harts,
and Books, to the authors and proprietors of such copies, during the
times therein mentioned, and extending the benefits thereof to the
arts of designing, engraving, and etching historical and other prints."
FRED. I BETTS,
Clerk of the Southern District of New-York.
PREFACE.
In publishing a new edition of the present Essay, the
object in view has been to render a work of great and
acknowledged merit of some degree of practical utility ;
and, by combining the decisions of our courts with the
masterly and elegant exposition of the general princi-
ples upon which they are established, to make it acceptr
able to a more numerous class of persons. For this pur-
pose, the various cases upon the different species of bail-
ments have been collected and arranged in the notes ;
and as these upon the subject of carriers are numerous,
the note upon that part of the work has unavoida-
bly extended to some length, but not so much so,
it is hoped, as to prove inconvenient to those who may
be desirous of perusing the text. The authorities in the
Civil Law, from whence the important principles dis-
closed in the following Essay have been derived, are also
referred to, and the laws of foreign countries have, in
some few instances, been remarked.
It is proper to add, that of the former edition, pub-
lished by Mr. Balmanno, a few references to authorities
inserted in the commencement of that edition, have been
retained, and also one or two notes which are to be found
in the concluding part of that work.
3, Inner Temple T.ane, )
Ibth March, 1823. \
THE
CONTEIVTS.
*^* The paging of the original Edition is preserved in the
margin of the Essay.
Page.
1—4
Introduction -------
The Subject proposed _.---- 4
I. The Analysis ------- 4 11
II. The History * *!
1. Jewish and Athenian law - - - - 11,12
3. Roman law --'--.- " 1^
Prejudices against it * - - - - _ 12
Distinction between the private and public, the rational
and positive, laws of Rome - - - 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 ----- 2/ 29
Vindication of the old system by Pothier 29 — 31
Observations on Le Brun - - - 32 — 34
3. English law .-----" ^^
Lord Holt's division of bailments - - - 35
New division and definitions - - - 35,36
, 1. Law of Deposits - . - . - 36
Bonion's case ------ 36 — 40
Mosaic laws ------ 39
Southcote's case ----- 41 — 45
Rules and exceptions - - - - 46 — 50
Oiecian and Arabian laws - - - 50 — 52
2. Law of Mandates ----- 52, 53
Distinction between nonfeasance and misfeasance 54 — 57
Case of Coggs and Bernard - - 58 — 62
Exceptions to the rule - - - - 63
3. Law of Loans for Use - - - - 63 — 65
Criticism on Bracton - - - * 64, note
VI CONTENTS.
Opinion of Puffendorff disputed - - - 66,67
Cases and ^iisiiiictions ... - gy — jq
Controversy among the Civilians - - 70
txcf'lJtions to til • rule - . - - - 72
Mosaic and Attic laws ----- 73574
4. Law of Pledges - - - _ . 7
Doctrine of Lord Coke denied - . - 75,76
Conjectured criticism of Nooilt - - - yQ
Case in the Book of Assises - - - Y7 — 79
L'>rd Cuke's reasons contested - - - 79 S3
Turkish law 83—85
5 Law of Hiring --._-- 85
1. Hiring of a Thing ----- i6.
Lord Holt's doctrine explained - - 86, 87
Rules and remarks - . - . 88 — 90
2. firing of Work - - - - -90,91
Law concerning Innholders - . - 92 — 96
Remarks on S^t. German - - - - gj, 98
Law concerning Factors and Traders - 98, 99
Mahomedan Law -_,_.- (jg
Rules and distinctions ... lOl
Celebrated law of Alfenus - - . . 102
3. Hiring of Carriage - - _ _ . 102
Exception from the general rule - - - 104
Modern cases 105, 106
Law concerning masters of vessels - 106 — 109
Case of Lane and Cotton - - - 109,110
Criticism on Doctor and Student - 110, note
4. Laws of the Northern nations - . - m — 194
5. Laws of the Britons - - . - . ii2
6. Laws of the Indians - . . _ 113 — 116
HL The Synthesis 117
l.Defini;ions 117,118
2. Rules - - - - - ■ - - - 119
3. Propositions --.... 119,120
4. Exceptions ....... 12O
5. General Corollary and Remark ... - 122
Conclusion -.-.-.. 123, 124
APPENDIX.
Lord Raymond's Report of Coggs v. Bernard - - i — xx
TABL.E
OP
THE CASES CITED.
A.
Abbot V. Smith, 2 Blac. 947 .... 107 d.
Amies V. Stevens, 1 Stran. 128 .... 104 c.
Anonym. 2 Salk. 655 ..... 107 h.
Astey V. Emery, 4 M. & S. 262 - - - . 106 d.
Aston V. Heaven, 2 Esp. N. P. C. 533 - . 103 a.
Attersol v. Briant, 1 Camp. 409 .... 107 h.
B.
Baglehole V. Walters, 3 Camp. 154 ... 69, n 4.
Baldway v. Ouston, 1 Vent. 71 - - - - 95 a.
Baldwin v. Cole, 6 Mod. 212 - - - - 107 f.
Barcroft's Case, All. 93 107 s.
Barker v. M'Crae, 3 Camp. 144 ... - 107 h. p.
Bastard v. Bastard, 2 Show. 81 - - - - 103
Batson v. Donovan, 4 Barn. & Aid. 21 38 a. 103 f. h. 105 e.
Beck v. Evans, 16 East, 245 103 g. 104 k. 105 c. 107 m.
Beedle v. Morris, Cro, Jac. 224 - - - - 94, 95
Bennett v. Mellor, 5 T. R. 273 - - - - 94, 95
Bignold V. Waterhouse, 1 M. & S. 26l - - 104 a.
Bird V. Thompson, 1 Esp. N. P. C. 339 - - 107 c. o.
Birkett V. Willan, 2 B. & A. 356 - - 105 d.k. 1071.
Bl;ike V Nicholson, 3 M. & S. I67 - - 91, 105 n.
Bodenham V. Bennett, 4 Price, 31 - - 105 b. d.k.
Bonion's Case ....... 3Q
Boson V. Sandford, Salk, 440 - . 103 b. 107 c. e.
Bothlingk v. Inglis, 3 East, 380 - - - - 106 i.
Boucher v. Lawson, Ca. Temp. Hard. 194 103 b. 107h.
Boville v. Bradbury, 1 Stark. N. P. C. 136 - 97 a. n 8
Bowcher v. Noidstrom, 1 Taun. 568 - - - 89
Bremin v. Currint, Bull. N. P. 45 - - - 105 nor.
Brenan v. Currint, MSS. Selw. N. P. 1280 - - ib.
Bromley v. Coxwell, 2 Bos. & Pull. 439 - - 107 f,
Brotherton v. Wood, 3 Bro & Bin. 54 - ' 107 e.
Brown v. Crump, 1 Marsh R. 567 . - - 90
viii CASES CITED.
Browa v. Hodgson, 2 Camp. 36 - - -• 106c. 107 h.
Buck V. Hatfield, 5 B. & .\. 632 ... io6
Buckman V. Levi, 3 Camp. 414 - - 103 f. 107 n.
Buddie V. Wilson, 6 T. R 369 - - - - 107 c.
Bullock V. Domitt, 6 T. R. 650 - - - - 45
Burgess V Clements, 4 M. & S. 306, 311 - - 94,95,
Bush V. Steiiira in, I Bos. & Pul, 404 - - 89
Busk V. Davis, 2 M. & S. 397 - - - 86, 106 q.
Butler V. Heane, 2 Camp. 415 - - - 104i.j. 105
V. Woolcott, 2 Bos. & Pill. N. R. 64 104, 106 a. g.
Cailiff V. Danvers, Peake N. P. C. 114 - - 97 n.
Case of Gravesend Barge, 2 RdII. Ab. 567. - 108
Cayle's Case, 8 Rep. 33 94
Catley v Wintringham, Peake N. P. C. 140 - 105 k.
Cavenagh v. Such, t Price, 328 - 103 c e. 107 h. i.
Chase v. Westmore, 5 M & S. 180 - 91, 105 1. ra. n.
Cheethara v. Hara"Soni4T. R 318 . - - 90
Christie v. Griggs, 2 Camp. 79 - - - - 103 a.
v. Lewis, 2 Bro. & Bin. 110 - - - 105 o.
Churchman v. Tunstall, 3 Hard. l63 - - 54, n 4
Clark v. Gray, 4 Esp. 177 - 103 b. 107 k. 1. 104 h.
Clarke v. Hutchins, 14 East, 475 - 103 g. 104 k. 106 b..
Clay V. Willan, 1 Hen. Blac."298 - - - 105 a.
Clayton v. Andrews, 4 Burr. 2101 ... 49
V Hunt, 3 Camp. 27 . - - - 104 j.
Cobban v. Downe, 5 Esp. N P. C. 41 - I03c. f.
Cobden v. Bolton. 2 Camp 108 - 104 j, 105 a. 107 n.
Coggsv. Bernard, 2 Ld. Raym. 909 - - lOS d. 104c.
Collins V. Onglev, Sel. N. Pri. 1280 - - - 105 m.
Cooke V. Ludlow, 2 Bos & Pul. N. R. 119 - 106 a. b.
Cooper V. Barter, 3 Camp. 5 (n) , . _ 88
Coth;iy V. Tute, 3 Camp 129 - - - - 103 g.
Countessof Shrewsbury's Case, 5 Rep. 13 b. - 45
Cowellv. Simpson, 16 Ves. 275 - - - 105 m.
Cpwper V. South,4Taun. 802 - - - 107 e.
Coxe V. Harden, 4 East, 211 .... 106 w.
V. Lumsden, Peake N. P. C. 189 - - 106 w.
Craven v. Ryder, 6 Taun 435 ... 106 w.
Crawshay v. Homfray, 4 B. & A. 50 - 105 m. 106 a.
Croft V. Allison, B irn. and Aid 590 - - 79, 89
Cross V. Andrewj", Cro. Eliz. 622 - - - 94,95
Cummins V. Brown, 9 East, 586 - - - 106 w.
D.
D'Aguila V. Lambert, Ambler, 399 * - - 106 d.
CASES CITED. ix
Dale V. Hall, 1 Wils. 281 103 c. 104 b. 10? b. e. i. n.
Driubigiiy V Duval, 5T. P. 604, 606 75, 105.
Davey v. Chamberlain, 4 Esp. N. P. C. 229 88
Davies v. James, 5 Burr, 2680 107 h.
Davis V. Reynolds, 4 (.'amp. 267 . 107 b.
V. WilbuK 2 Stark. 279 104 i.j.
Dawes V Peck, 8 T. R 334 106 b. 107 h.
Dean v. Keate, 3 Camp. 4 87
Devereaiix v. Barclay, 2 B & A. 704 107 g.
Dick V L>ims(leii,Peake N. P. C. 189 107 b.
Dicki.n v rlifton, 4 Wil.son 319 107 d. f.
Dixon v. Baldwin, 5 East. 184 1061. r.
Doe v. Kersie, Butler's Fearn Ex. Dev. 535 25, n3
Down v. Fromont, 4 Camp. 41 104 g. k.
Drope V. Thaire, J Latch 127 94,95,
Duff v. Budd, 3 Bro. and Bing. 177 105 g. k. 107 i.
Durton V. olomonson, 3 Bos & Pul. 582 106 b. c. d.
Dyer v. Ashton, 6 B. & A. 3 107 1.
Doe, ex dem. Pitt. v. Laming, 4 Camp. 77 94 b.
E
Earl of Chesterfield v. Duke of Bolton, Com. Rep. G27 45
East India Company v. Pullen, I Stra. 690 104 e.
Edwards v Sherratt, 1 East. 604 103 e.
Ellis v. Turner, 8 T. R. 533 105 b. c.
V Hunt, 3 T R. 469 106d. h. q.
Elsee v Gatward,5 T. R. 143 54, n 4, 61, n 8. 91
Evans V. Soule, 2M. & S. 1 104 h.k. 105
Eyre v. Durnford,^! East. 318 70. n 5
F
Fail v Pickford, 2 Bos. & Pul. 234 107 1.
Ferse v. Wray, 3 East, 93 106 e.
Flewellin v. Rave, 1 Bulsti;ode. 68 9I
Fituirane, v. Small, I Esp N. P. C. 315 44. 75, n 1. 76, 81
Forw Md v Pittard, I T. R. 33 104 a. c.
Fowler v. M'Faggart, 7 T R. 442 1061.
Freeman v. East India Company, 1 Dow. & Ryl. 234 107 f. g-
G
Gale V. Reed, 8 East, 89 10
Garhutt V. Watson, 1 Dowl. & Ry. 219 49
Garnett v. W iHan, 5 B & \ 53 105 b. c. f. h i. k.
Garside V. The Proprietors of the Trent and Mersev Naviga-
tion, 4 T. R. 581 96 a. n 7- 104 d.
Grllev v. Clark, Cro. Jac 189 94
G.t.bon V. P-iynton, 4 Burr. 2301 103 g. h. i. 104 h. 105 d.
Gibson V. Wells, i Bos. & Pul. N. R. 290 90
X CASES CITED.
Gi!>boiirnc v. llmst, 1 .S,tlk.. 249 103 a.
Godi.ey V. Fur/xs 3 P. Will. 185 106 c.
Golden V. M.uiiimg, S W lis 2 Ul. 9l6, 429 105 i,
Goo('\vinv. Ul.ickbmue, 1 Hen. i>lHC 158 53
Gootihart V. Li>\ve, 2 Jac. .VkJ VVal. 349 i06 d e. i.
Gurdun V. Harper. 7 T R. 9 80, n 3
Gosling V. Higgins, 1 Camp. 451 105 k.
Goveu V. Radiiidge, 3 Last. 62 107 e. f. b.
Greaves v Ashlin, 3 Camp 426 80
Green v. Greenb.mk., 2 Marsh. 485 107 e.
V. New River Company, 4 T, R. 589 107 o.
Griffin v. Langlield, 3 Camp. 225 106 b.
Groves V. Buck, 3 M. & S- 178 49
H
Hallle V. Smith, 1 Bos. & Pul. 563 i06w.
Hall V. Tickard, 3 Camp. 187 80
Hallet V. East India Company, 4 Burr. 1120 107 k.
Hanmiond v. Anderson, 1 N R. 69 106 p.
Hanson V. Arraitage, 5 B & A. 557 106 d.
Hanson v. JMeyer, 6 East. 514 106 p. 86
Harmaii v Andeison, 2 Camp. 243 106 p.
Harris v. Baker, 4 M. & S. 27 89
Harris v. Packwood, 3 Taun. 272 104 g. 105 a. 197 m.
Hawkins v. Kutt, Peake N. P. C. 186 103 f, 106 a.
Hmde V. Wiiitehouse, 7 East. 571 86, 106 p.
H.rst V. Ward, 3 T R. 497 10() m.
Hon re v Parker, 2 T. R 376 75, n 8
Horkless v. Miichell, 4 Esp 86 _ 107 o
Hodgson V FuUarton, 4 Taun 787 " 103 d
■ V Loy, 7 T R 445 106 c. g
Hoist V Pownal, 1 Esp N P. C 240 106 n
Ho 'per V PanKsbottom 4 Camp 121 75. n 8
Horncdstlc v Farren, 3 B- & A 497 105 n
Howarth V. Pickford, 3 B & P- 44 n. (a) 106
Hunter v Beal. 3 T- R 466 106 h 1
V M'Taggart, 7 T. R. 442 106 i
V- Princep, 10 East, 378 105 n
Hurry v Mangles. 1 Camp 452 106 p
Hussey V. C:hristie,9 F^ist, 426 105 o
Hutton V. Bohon, 1 H Blac. 299 n l- 107 k. 1
V Osborne, Selw- i\. P. 4th Ed- 282 n. 103 d
V Bragg, 2 Marsh, 345 105 I m
Hyde v. Trent and Mersey Navigation Company, 5 T- R. 396
104 f. 105 i. k
I
Iggnlden v ?'lay, 7 East, 241 10
Inglis V. Usher wood J 1 East, 515 106 i
CASES CITED. xi
Izett V. Mountain, 4 East, 371 105 a
J.
Jackson v Rogers, 2 Shnv. 129 103 e
James v- Jones, 3 Esp N- P C 41 103 f.
Jenkins v Reynolds, 3 Bto. & Bin- 14 49
Jervisv. H;iyes, 2 Stran 1083 107 o.
Jones V. Pearle, Stran 566 95, 105 1.
Junes V. Thiirloe, 8 Mod. 172 105 1.
Joseph V. Knox, 3 Camp- 320 107 h.
K.
Kenrig v- Eggleston, Aleyn, 93 103 h.
Kerr, v VVillan, 2 Stark. \- P C 53 104 j.
Kettle V BronisHll, Willes Rep IJl 42
Key worth v- Hill, 3 B- and A 637- 107 f.
Kmlock V. Craig, 3 i- R- 119 105 n. 106 g.
The King v- Mayor & Burgesses of Lyme Reg's,
1 Doug 149- 69, n 4
King V. Meredith, 2 Camp. N. P- C 639 106 b 107 h.
Kirkman v. Shawcross, 6 T R 14 91, 105 b.
Kuckein v. Wilson, 4 B. and A. 443 69, n 4. 75
L.
Lane v. Cotton, 1 Ld- Raym. 646 103 d..l09
Lanlbrtv. Administratrix of Tyler, 1 Salk. 113 86
Lacluugh V. Towlo, 3 Esp. N. P C. 115 107 ni.
Lav V. Holock, Peake N. P- C 101 107 p.
Leeds v. Wright, 3 Bos. and Pul 320 106 s v
Leeson v- Hok, 1 Stark. N- P. C 186 104 i
Leigh V. Hewitt, 4 East, 154 89
Levi V. Waterhouse, 1 Price, 280 105 d
Levy V. Waterhouse, Sel. N. P. 4th Ed. 388 105
Lickbarrow v Mason, 3 T. R 63. 6 East, 24 106 e v
Litt v. Cowley, 2 Marsh, 459 106 h o
Loescham v. Williams, 4 Clamp. 181. 106 v
Lotan v. Cross, 2 Camp 464 80
Lovett v Hobbs, 2 Show. 128 103 a e
Lyon v. Mells, 5 East, 427 105 c 107 p
M.
M'Manus v- Cricket, 1 East, 106 89
M'Coombie v- Davies, 7 East, 56 105 n. l07 f
6 East, 53S 75
Mainwaring v. Brandon, 3 J B Moore, 125 97
Man V. Shiffner, 2 East, 523 105 n
Martini v. Coles, 1 M. and S. 140 75
Martyn v- Hendrickson, 1 Salk. 287 107 o
Maving v. Todd, 1 Stark. N. P. C. 72 103 c 104 g k
xii CASES CITED.
Max V- Roberts, 2 N- R- 454 107 d Iv
Ui\y, Assii,Mi(>e of Tavlor v Harvey, 13 East, 197 52, n 9
Meyer v- Everth, 4 Camp. 22 Gy, n 4
Micldleton v- Fowler, I Salk 282 103 a 107 i
Miller v Falconer, 1 Camp. 251 107 o
Mills V. Ball, 2 Bos and Pul- 457 106 ^ f
Moore V. Morgue, Cowp. 479 9<
V Wilson, 1 T- R 660 105 k. 106 a 107 h-
Morse V- Slue, 2 Lev- 69 103 b- e. h. 104 f
Mosley V Tosset, 1 Mo- 543- 1 Ro- Abr. 4 91a
Mulgrave v 0, . • • 1 • 1 1 />
r 14 1 ®^ private jurisprudence as mcapable or answermg even
the purpose of illustration. Many positive institutions
of the Romans are demonstrated by Fortescue, with
great force, to be far surpassed in justice and sense by
our own immemorial customs ; and the rescripts of Se-
VERUS or Caracalla, which were laws, it seems, at
Rome, have certainly no kind of authority at Westmin-
ster ; but, in questions of rational law, no cause can be
assigned why we should not shorten our own labour by
resorting occasionally to the wisdom of ancient jurists,
many of whom were the most ingenious and sagacious
of men. What is good sense in one age must be good
sense, all circumstances remaining, in another; and pure
unsophisticated reason is the same in Italy and in
England, in the mind of a Papinian and of a Black-
stone.
Without undertaking, therefore, in all instances, to
reconcile Nerva with Proculus, Labeo with Julian,
and Gaius either with Celsus or with himself, I shall
proceed to examine a summary of the Roman law on the
subject of responsibility for neglect.
Two famous The two great sources, whence all the decisions of
laws of UI- . 11-1 I £•
pian. Civilians on this matter must be derived, are two laws oi
IJlpian; the first of which is taken from big work on
Sabiniis, and the second from his tract on the Edict : of
both these laws I shall give a verbal translation ac-
cording to my apprehension of their obvious meaning,
and shall then state a very learned and interesting con-
troversy concerning them, with the principal arguments
on each side, as far as they tend to elucidate the question
before us.
THE LAW OF BAILMENTS. 14
** Some contracts, says the great writer on Sabinus,
make the party responsible for deceit only ; some,
for both DECEIT AND NEGLCT. Nothing more than
responsibility for DECEIT is demanded in deposites and
POSSESSION at will ; both deceit and neglect
are inhibited in commissions, lending for use, cus-
tody after sale, taking in pledge, hiring ; also
in portions, guardianships, voluntary work:
among these some require even more than ordinary
diligence.) Partnership and undivided proper-
ty make the partner and joint proprietor answerable
for both deceit and NEGLIGENCE."(e)
*' In contracts, says the same author in his other
work, we are sometimes responsible for deceit
ALONE ; sometimes for neglect also ; for deceit
ONLY in DEPOSITS J bccausc, since no benefit ac- [ 16 ]
crues in the depositary, he can justly be answerable
for no more than deceit ; but if a reward happen
to be given, then a responsibility for neglect also is
required ; or, if it be agreed at the time of the con-
tract, that the depositary shall answer both for neg-
lect and for accident : but, where a benefit ac-
crues to both parties, as in keeping a thing sold,
as in hiring, as in portions, as in pledges, as in
partnership, both deceit and neglect make the
party hable. Lending for use, indeed, is for the
most part beneficial to the borrower only ; and,
for this reason, the better opinion is that of Q. Mu-
cius, who thought, that he should be responsible not
(e) Contractjus quidam dolum malum duntaxat recipiunt; quidam, et
dolum et culpam. Dolum tantum depositum et precarium ; dolum et
culpam, mandatum commodatum, venditum, pignori acceptum, locatum :
item dotisdatio, tutelae, negotia gesta: (in his quidam et diligentiara.)
Societas et rerum communio et dolum et culpam recipit. D, 50. 17. 23.
16 THE LAW OF BAILMEiM^S.
" only for neglect, but even for the omission of more
** than ordinary diligence."(/)
Critical Qnc would scarce have believed it possible, that there
remarks. i i i i
could have been two opinions on laws so perspicuous and
precise, composed by the same writer, who was indubi-
tably the best expositor of his own doctrine, and appa-
rently written in illustration of each other ; the first
comprising the rule, and the second containing the rea-
son of it : yQt the single passage extracted from the book
of Sabinus has had no fewer than twelve particular
commentaries in Latin,(g) one and two in GreeJc,(h) and
some in the modern languages of Europe, besides the
general expositions of that important part of the digest,
in which it is preserved. Most of these I have perused
with more admiration of human sagacity and industry
than either solid instruction or rational entertainment ;
for these authors, like the generality of commentators,
treat one another very roughly on very little provocation,
and have the art of rather clouding texts in themselves
clear, than of elucidating passages which have any ob-
(/) In contractibus inteidum dolum solum, interdiim et culpam, praes-
/ tamui; — dolum in deposito — nam, quia nulla utilitas ejus versatur, apud
quem deponitur, merito dolus praestatur solus — nisi forte et merces acces-
sit, tunc enim, utest et constitutum, etiam culpa exhibetur — aut, si hoc ab
initio convenit, utet culpam et periculum praestet is, penes quem deponitur
— sed, ubi tit'-iusquc utilitas vevtitur, ul in empto, ut in locato, ut in dote,
lit in pignore, ut in societat", et dolus et culpcn praestatur. Commodatum
autem plerumque solam utilitatem continet ejus, cui commodatur — et ideu
verior est Q. Mucii sententia existimantis et culpam praestandara et dili-
gentiam. D. 13- 6. 5. 2. (5).
(g) Bocerus, Campanus, D'Avezan, Del Rio, Le Conte, Rittershusius,
tiijjlianius, J. Godefroi, and others.
(/i) The scholium on Harmenopulus, 1. 6. tit. de Reg. Jur. n. 55- may be
roiisidered as a commentary on this law.
(.■j)See Domat. Civ. Law, lib. 1. tit. 1. ^3. and Vinn. in Instit. lib.
THE LAW OF BAILMENTS. 18
scurity in the words or the sense of them. Campanus,
indeed, who was both a lawyer and a poet, has turned
the first law of Ulpian into Latin hexameters ; and his
authority, both in prose and verse, confirms the inter-
pretation which I have just given.
The chief causes of all this perplexity have been, first,
the vague and indistinct manner in which the old Roman
lawyers, even the most eminent, have written on the sub-
ject; secondly, the loose and equivocal sense of the
words DILIGENTIA and culpa ; lastly and principally,
the darkness of the parenthetical clause in his quidam
ET DILIGENTIAM, which has produced more doubt, as
to its true reading and signification, than any sentence of
equal length in any author Greek or Latin. Miniate as
the question concerning this clause may seem, and dry
as it certainly is, a short examination of it appears abso-
lutely necessary.
The vulgate editions of the Pandects, and the manu-
scripts from which they were printed, exhibit the reading
above set forth ; and it has accordingly been adopted by
CuJAS, P. Faber, Le Conte, Donellus, and most
others, as giving a sense both perspicuous in- itself and
consistent with the second law; but the Florentine
copy has quidem^ and the copies from which the Basilica
were translated centuries after Justinian, appear to
have contained the same word, since the Greeks have
rendered it by a particle of similar import. This varia-
tion in a single letter makes a total alteration in the
whole doctrine of Ulpian ; for, if it be agreed, that
diligcntia means, by a figure of speech, a more thaii or-
dinary degree of diligence, the common reading will im- [ 1^ 3
ply conformably with the second law before cited, that
" some «f the preceding contracts demand that higher
" degree ;" but the Florentine reading will denote, in
19 THE LAW OF BAILMENTS.
contradiction to it, that " all of them require more than
*' ordinary exertions."
It is by no means my design to depreciate the autho-
rity of the venerable manuscript preserved by Florence;
for although few civilians, I believe, agree with PoLi-
TIAN, in supposing it to be one of the originals,{7) which
were sent by Justinian himself to the principal towns of
Italy, (i) yet it may possibly be the very book which the
Emperor Lotharius IL is said to have found at Amalfi
about the year 1130, and gave to the citizens of PiSA,
from Avhom it was taken near three hundred years after,
by the Florentines, and has been kept by them with su-
perstitious reverence '.(k) (8) be that as it may, the copy
(t) tpist. X. 4.Miscell. cap. 41. See Gravina, lib. i. § 141.
(Jfc) Tanrelli, Praef. ad Pand. Florent.
(7) See Gibbon's Dec. and Fall Rom, Emp. 8ro edit. vol. 8. c. 44. p.
44, 45, and notes.
(8) The texts of the Pandects being almost wholly lost^ accident
led, some time about the year 1137, to the discovery of a complete
copy of them, at Amalphi, a town in Italy, near Salerno. From
Amalphi the copy found its way to Pisa, and Pisa having submitted
to the Florentines, in 1406, the copy was removed in great triumph
to Florence. By the direction of the magistrates of the town, it was
immediately bound in a superb manner, and deposited in a costly
chest. This copy of it is generally called the Florentine Pandects.
Formerly they were shown only by torch light, in the presence of two
magistrates, and two Cistercian monks with their heads uncovered.
They have been successively collated by Politian, Bolognini, and
Antonius Augustinus, and an exact copy of them was published
in 1553, by Franciscus Taurellus ; for its accuracy and beauty,
this edition ranks high among the ornaments of the press; it should
be accompanied by the treatise of Antonius Augustinus on the proper
names in the Pandects, published by him at Tarragona, in 1579.
About the year 1710, Henry Brenchman, a Dutchman, was per-
mitted, at the earnest solicitation of our George the First, to col-
late the manuscript. He employed ten years upon it, and in the in-
vestigation of various topics of literature connected with the Justi-
THE LAW OF BAILMENTS. . ' 19
deserves the highest respect ; but if any proof be requi-
site, that it is 710 faultless transcript, we may observe,
that, in the very law before us, acccdunt is erroneously
written for cmJimi; and the whole phrase, indeed, in
which that word occurs, is different from the copy used
by the Greek interpreters, and conveys a meaning, as [ 20 ]
BocERUs and others have remarked, not supportable by
any principle or analogy.
This, too, is indisputably clear ; that the sentence, in
his QUIDEM et diligcntiam, is ungrammatical, and cannot
be construed according to the interpretation which some
contend for. What verb is understood ? Rccipiuni.
What noun ? Contractus. What then becomes of the
words in Ms, namely contractihus, unless in signify among'?
And in that case, the difference between quidem and
QUIDAM vanishes ; for the clause may still import,
that *' AMONG the preceding contracts (that is, in some
" of them), more than usual diligence is exacted:" in
this sense, the Greek preposition seems to have been
taken by the scholiast on harmenopulus ; and it may
iiere be mentioned, that diligentia, in the nominative,
appears in some old copies, as the Greeks have rendered
it ; but AccuRSius, Del Rio, and a few others, consi-
nian Code. His elegant and curious Historia Pandectarum, pub-
lished at Utrecht, in l?!^, gives an interesting account of his
labours; and shows, like the labours of Welstein and Mill,'that great
fire of imagination, exquisite taste, minute and patient investigation,
and the soundest judgment may be found in the same mind. Some
have supposed that the Florentine manuscript is the autograph of the
Pandects ; for this opinion there is no real ground or authority ; but
Brefachman refers it to the sixtli century, a period not very remote
from the era of Justinian. Breuchman's work forms a small part of an
original design, and is so ably executed that all must lament his having
left any part of his design unfinished. See Butler's Iloras Juridicfe
subsecivse, 62.
.3
20 thl: law of bailments.
der the word as implying no more than diligence in ge-
neral, and distinguish it into various degrees applicable
to the several contracts, which Ulpian enumerates. We
may add, that one or two interpreters thus explain the
whole sentence, "in his contractibus qu'idam jurisconsulti
" et diligentiam requirunt:^^ but this interpretation, if it
could be admitted, would entirely destroy the authority
of the clause, and imply, that Ulpian was of a different
opinion. As to the last conjecture, that only certain
[ 21 ] cases and circumstances are meaned by the word quidam,
it scarce deserves to be repeated. On the whole, I
strongly incline to prefer the vulgate reading, especially
as it is not conjectural, but has the authority of manu-
scripts to support it ; and the mistake of a letter might
easily have been made by a transcriber, whom the pre-
faces, the epigram prefixed, and other circumstances,
prove to have been, as TaurelU himself admits, a
Greelc.i^) Whatever, in short, be the genuine words
of this much-controverted clause (1), I am persuaded,
that it ought by no means to be strained into an incon-
sistency with the second law j and this has been the opi-
nion o^ most foreign jurists, from Azo andALCiAT down
(0) See Gibbon's Kom. Emp. vol. 8. p. 44. note 87.
(l)Few verbal controversies have been equally important with
that on the construction of the disputed sentence in Ulpian's Commen-
tary ; for, though the preponderancy of any of the various opinions
urged on this subject may have little or no influence on the settled
maxims of our law, it must be obvious, that the accuracy of the deci-
sion is materially connected with the clearness and arrangement of the
general doctrine of bailments ; as the Roman jurisprudence is the
source from which this general doctrine is derived, the learned and
liberal lawyer will acknowledge considerable obligation to Sir William
Jones for the acute and well-supported reasoning by which he esta-
blishes the true reading of the clause (" in his quidam et diligentiam,")
in opposition (o fanciful conjecture and dogmatical assertion.
THE LAW OF BAILMENTS. 21
to Heineccius and Huber ; who, let their dissension
be, on other points, ever so great, think alike in distin-
guishing three degrees of neglect, which we may term
gross, ordinary, and slight, and in demanding responsibi-
lity for those degrees according to the rule ^before ex-
pounded, f 2)
(2) As there are three degrees of diligence, viz. ordinary diligence,
extraordinary diligence, and most exact diligence ; so there are three
degrees of fault or neglect. Lata culpa, a great fault ; levis culpa, a
small fault; levissima culpa, the smallest fault or neglect. A great
fault is a gross and supine negligence ; as not to understand what all
men are supposed to understand. Thus it is, if a man should not
observe what was publicly proclaimed ; or when one alone is ignorant
of all that which all in the city besides him are well acquainted with ;
or when one leaves open his doors in the night time. A fault of this
nature is said to be next to deceit, and sometimes termed absolutely so ;
though it is no*t truly deceit, but only by the presumption of law. A
small fault, is that sort of negligence where a man does not take such
care about the concerns of other men, as discreet and diligent men
make use of about their own affairs ; and this is esteemed a culpable
neglect, though this person is not more diligent about concerns that a^e
his own. Thus it is, when one leaves open the upper windows of his
house, whereby thieves with ladders enter and steal the goods of ano-
ther man, which were pawned or lent. The smallest fault or neoflect
is, when a man does not take that care which the most exact and most
diligent men are wont to do ; as when a man suffers a thing in his cus-
tody to be stolen, Tt'hich might some way or other have been prevent-
ed ; as, not to fix bars in the upper windows of those chambers which
are y/mote from the family, and toward the street.
If there is no particular agreement, these rules will instruct what
diligence is required to make an act not culpable. First, in contracts
to the advantage of the giver only, the receiver is answerable only for
deceit, and a great fault or neglect, as in the case of a depositum, or
any moveable thing delivered to a friend to be kept for him. 2dly.
When a contract is made for the sake of the receiver only, there de-
ceit, and every fault, even the smallest, will affect, as in the case of a
thing lent. 3dly. If the contract is both for the sake of the giver and
receiver, there Iheprrson guilty ofdereit. a ;;reaf or small fai^lt, must
21 ■ THE LAW 01 BAlLMi:rsTS.
The law, then, on this head, which prevailed in the an-
cient 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,
iu^d "uie"^ Gross neglect, lata culpa, as the Roman lawyers most
accurately call it, dolo proxima, is in practice considered
as equivalent to dolus, or fraud, itself; and consists,
according to the best interpreters, in the omission of that
[ 22 ] care, xohich even inattentive and thoughtless men never fail
to take of their own property : this fault they justly hold a
violation Osgood faith.
Ordinary neglect, Icvis culpa, is the want of that dili-
gence which the generality of mankind use in their own
concerns ; that is, of ordinary care.
Slight neglect, levissima culpa, is the omission of that
care which very attentive and vigilant persons taJce of their
oivn goods, or, in other words, of very exact diligence.
Now, in order to ascertain the degree of neglect, for
which a man, who has in his possession the goods of ano-
ther, is made responsible by his contract, either express or
implied, civilians establish three principles, which they de-
duce from the law of Ulpian on the Edict ; and here it
may be observed, that they frequently distinguish this law
by the name of Si ut certo, and the other by that of Con-
tractus ;{l)(2>) as many poems and histories in ancient lan-
guages are denominated from their initial words.
(/)0i- 1. 5. § 2- ff. Commod. and \. 23. ff. de reg. jur. Instead of ff, Which
is a barbarous corruption of the initial letter of TraviWIai, many write D, for
Digest, with more clearness and propriety.
bear the blame and damages ; as in selling, letting to hire, the case of
a pledge, and of partnership. Sec Wood's Institutes of the Civil Law,
106. where the reference to the Digest, from which these principles
are derived, are pointed out. Halifax's Analysis of the Roman Civil
Law, 61.
(3) It may not be amiss, for the sake of beginners, to explaio here
THE LAW OF BAILMENTS. 22
First, in contracts which are beneficial solely to the own-
er of the property holden by another, no more is demand-
ed of the holder than ^oorf/azV/i, and he is consequently
responsible for nothing less than gross neglect ;(a) this,
therefore, is the general rule in deposits ;(4) but, in re-
the method of quoting the several parts which now compose the Corpus
Juris Romano-Civilis- The institutions are contained in four books,
each book is divided info titles, and each title into paragraphs, of which
the first described by the letters, Pr. or princip. is not numbered. The
Digests, or Pandects, are in fifty books, each book is distributed into
titles, each title into laws, and very frequently laws into paragraphs, of
which the first is not numbered. The code is comprised in twelve
books, each of which is divided, like the digests, into titles and laws ;
and sometimes, laws into paragraphs. The novels are distinguished by
their number, chapter, and paragraphs.
The old way of quoting was much more troublesome, by only men-
tioning the number or initial words of the paragraph or law, without
expressing either the number of the book or title. Thus, 5 Si adversvs
12. Inst, de JVvptiis, means the 12th paragraph of the title in the " Insti-
tutions de Nuptiis," which paragraph begins with the word, >S'i adversvs ;
and which a modern civilian would cite thus, I. 1. 10. 12. So 1. 30. D.
de R. J. signifies the 30lh law of the title in the Digests de Regidis Ju-
ris, according to the modern way, thus, D. 50. 17. 30. Again, 1. 5. J 3.
ff. dejurejur. means the 3d paragraph of the 5th law of the title in the
Digests de Jurejurando : better thus, D. 12. 2. 5. 3. And here note,
that the Digests are sometimes referred to, as in the last instance, by a
double f, and at other times bj the Greek n or -. Halifax's Analysis
of the Roman Civil Law, 2. 2 ed. Taylor's Elements of the Civil Law,
24. 2 ed. See Gibbon's Rom. Emp. vol. 8. p. 2, note 1, for an obvious
improvement on the old and confused manner of referring to the civil
law.
(4) A deposit, in the civil law, is a contract, by which a thing is com-
mitted to the custody of one, to be kept without reward, upon condi-
tion that the same thing shall be returned when he that deposits the
[(a) There is an exception to this rule, where the bailee by special
agreement extends his liability. The above rule only applies to oases
where the law fixes the liability. Ld. Raym, 910.]
22 THE LAW OF BAILMENTS
gardlo COMMISSIONS, or, as foreigners call them, man-
dates, (5) and the implied contract, negotiorum gestorum,
thing' shall demand it. Wood's Institutes of the Civil Law, 210. D. 16.
3. 1.8. It must be gratuitous ; for otherwise it would be a hiring and
letting to hire, where the depositary would let out his care. Domat's
Civil Law, part I. b. 1. t. 7. s. 3. Wood's Inst. 218. The depositary
is bound to take the same care of the things deposited as he does of
his own, and to return them, paying only for the damages committed
tlirough deceit, or a gross neglect, for it was designed to be no advan-
tage to him. but rather a burden. As to a small neglect, he that depo-
sited may complain of his own easiness and inconsideration, that be
should put a trust in a person that vfas not so circumspect as he intend-
ed. Inst. 3. 15. 3. D. bO. 17. 23. Grotius, b. 2. c. 12. s. 13. Puf. b-
5. c. 4.S. 7. Domat's Civil Law, b. 1. 1. 7. s. 3. Wood's Inst, of the
Civil Law, 218. Eden's Elementa Juris Civilis, 175.
By the Code Napoleon, art. 1927, a depositary is bound to exercise
the same degree of care which he employs in his own affairs. But this
rule is applied, art. 1928, with greater strictness, First, if the deposita-
ry has voluntarily offered to take charge of the deposit. 2d]y. If he
has stipulated for a reward. 3dly. If the deposit has been made solely
for the benefit of the depositary. 4thly. If it has been expressly agreed,
that the depositary shall answer for every description of default. A de-
positary is iKjt responsible, art- 1929, for injuries resulting from irre-
sistible force, unless he has been placed in legal default, en demeure,
for not restoring the deposit.
The various degrees of care required by the civil law from different
bailees, and referred to in this and in the following notes, will be found
to correspond with the law of England ; for the general principles dis-
cussed and established in this Essay, which govern the different cases of
bailment, are, in various instances, susceptible of modification upon
proof of the character of the particular bailee, and the care he exer-
cises in his own affairs. See post, p. 47. The use of superlatives also,
which is not uncommon in the civil law, in speaking upon subjects of
this nature, but which is rejected in this Essay, would appear to require
a greater degree of care than is actually demanded ; but in many cases
they are interpreted to convey only a positive signification ; and, in
others, they imply no more than an ordinary degree of care. See Vin-
nius in Inst. 3. 25. 5. n. 2. post 87.
(5) A mandate is a contract by which an affair is committed to the
management of another, and by him undertaken to be performed gratis.
THE LAW OF BAILMENTS. ' 23
a certain care is requisite from the nature of the thing ;
and as good faith itself demands, that such care be pro-
portioned to the exigence of each particular case, the
law irresumesy that the mandatary or commissioner, and,
by parity of reason, the negotiorum gesto reengaged at the
time of contracting to use a degree of diligence ndequate
to the performance of the work underial{:en.(m)
Secondly, in contracts reciprocally beneficial to both
parties, as in those of sale, (6) hiring, (7) pledg-
(m) Spondet diligentiam, say the Roman lawyers, gerendo negotio paiem.
He is bound, both in dut}' and honour, to take care of the affairs which
he has undertaken to look after, and to manage them not only with in-
tegrity, but with diligence and exactness. Although he is negligent in
his own affairs, yet he onght to have more circumspection in the con-
cerns of others, which he undertakes to manage, than in his own ; and
he is accountable for the damage which his negligence may have occa-
sioned, but not for accidents. Domat's Civil Law, part I. b. 1. t. 15. s.
3. Wood's Institute of the Civil Law, 242. Inst. 3. 27. D. 16. 3. 1. 9.
Grotius, b. 2. c- 12- s. l3. Piif. b. 5. c 4. s. 3. Code Napoleon, Code
Civil, 1. 3. tit. 13. ch. 1,2.
(6) A sale, according to the civil law, was perfected by the bare con-
sent of the parties, where the price was agreed upon, although the
thing sold was not delivered, nor the price paid, and the property im_
mediately passed to the buyer ; but he was not entitled to a delivery
and possession of the property without first paying the price, or other-
wise satisfying the seller. Inst. 3. 2. 4. Domat's Civil Law, part I. b. 1.
tit. 2. s. 1 and 2. Puf. b. 5. c 5. s. 2. Wood's Institute of the Civil Law,
230. Eden's Elementa Juris Civilis, 190. See post 86. n.
By the Code Napoleon, art. 1651, when the time and mode of pay-
ment is not fixed by the terms of the sale, the price must be paid at the
time and place of delivery.
During this intermediate period, between the completion of the sale,
and the actual delivery of the article sold, the propertj was at the risk
of the buyer; and, on the other hand, he was entitled, upon principles
of equal justice, to whatever benefit might accrue to it during that
time. Inst. 3. 24. 3. But since the contract was mutually beneficial
!o th9 buyer and seller, the latter was bound to exercise ordinary care
'2^ ' THE LAW OF BAILMENTS.
i\G,(8) PARTNERSHIP,(9) and the contract implied in
JOINT PROPERTY, such care is exacted as every prudent
ia reserving the article, and was responsihle for losses which arose from
Jiis negligence. Inst. 3. 24. 3. D. 18. 6. 8. Grotius, b. 2. c. 12. s. 15.
Puf. b. 5. c. 6. s. 5. Domat's Civil Law, part 1- b. 1- tit. 2. s. 3.
(7) Locatio-conductio, is a contract whereby the use of a thing, or the
service and labour of a person is gained for some time for a certain re-
ward. — Wood's Institute of the Civil Law, 235, 236. Inst. 3. 25- 5-
D. 19. 2. Puf. b. 5.C. 6. s. 2. Grc b. 2. c. l2s. 18. Domat's Civil Law.
p. 1. b. 1. tit. 4. This contract consists of many branches, but it will
be sufficient to remark those which more particularly relate to this
Essay, and in which goods are the subject of bailment. Artificers are
responsible for injuries occasioned by their ignorance ; and are respon-
sible if the thing be stolen, burnt, or damaged for want of having been
laid up. in a secure place, or for not being carefully looked after, or if
it be delivered to a wrong person by mistake. Domat's Civil Law, part
1. b-1. tit. 4. s. 8.
The engagement between an innkeeper and a traveller is usually
formed without any express covenant, by the traveller's bare entry in-
to the inn, and depositing his baggage in the hands of the master of the
inn, or of those whom he appoints to take care of them. The innkeep-
er is responsible for the acts of his family, and of his domestics, accord-
ing to the functions in which they are employed- To avoid collusion,
he is answerable for thefts, and is bound to fake all possible care of
goods entrusted to them, and is only discharged from what may hap-
pen by such accidents as the greatest care could not have prevented.
— Domat's Civil Law, part 1. b. 1. t. l6. s. 1. Code Napoleon, art.
1953.
In the same manner the master of a ship, or other vessel, who un-
dertakes to carry goods and merchandize by sea, or those who under-
take the carriage of goods by Itnd or water, are answerable for the
baggage and goods which they take charge of, and are responsible in
the same manner as innkeepers. — Domat's Civil Law, part 1. b. 1. tit-
16. s. 2.
The Code Napoleon upon commerce, art- 103, makes the carrier re-
sponsible for the damage or loss of goods in every case, except where
the damage arises from some vice inherent in the article, or where the
loss or damage arises from irresistible force. With the former exemp-
?ion our law corresponds ; for if game or poultry become tainted and
THE LAW OF BAILMEiNTS. 23
man commonly takes of his own goods ; and, by conse-
quence, the vendor, the hirer, the taker in pledge, the
partner, and the co-proprietor , are answerable for ordina-
ry neglect.
Thirdly, in contracts, from which a benefit accrues
only to him who has the goods in his custody, as in that
of LENDING FOR USE,(1) an extraordinary degree of care
unfit for food, in the ordinary course of the journey, the carrier is not
responsible. But the exemption from irresistible force is more exten-
sive than that which is given by the law of England, for the carrier is
answerable for losses occasioned by tumultuous bodies of people, and
every other case, except where they arise from the act of God, or of the
king's enemies-
C8) A pledge creates a contract, in which a thing is given by the
debtor to the creditor for security of the debt, upon condition that
when the debt is paid, the same thing in specie shall be returned. And
since the contract is reciprocally beneficial, to the debtor, by procuring
him an advance of money, and to the creditor, by securing to him the
repayment, the creditor is bound to exercise that degree of care which
prudent men generally employ in their own affairs. — Inst. 3. 15. 4. with
Vinnius's notes. Domat on the Civil Law, part 1. b. 3. tit. 1. Puf. b.
5. c. 10. s. 13. Wood's Institute of the Civil Law, 219. D. 13. 7, 14.
(9) A partnership is a contract, where money; goods, or labour are
put in common, that each may share in the gain and loss, in proportion
to his contribution. — Puf. b. 5. c. 8. s. 1. Wood's Institute of the Ci-
vil Law, 240. Inst. 3. 26. The care and vigilance which the partners
owe to one another, is regulated by the care which they have of what
is their own, and does not extend to the greatest exactness that the
most careful and diligent persons are capable of, but is limited to make
them responsible for all deceit and for all gross faults. For it is suffi-
cient, if they exercise, with reference to the partnership property, tbs
same diligence which tiiey employ in their own affairs. And if a part-
ner exercises this degree of care, he will not be responsible for a slight
fault, for the other partners ought to blame themselves for not hav-
ing made choice of a more careful partner. Domat's Civil Latv, b. 1,
tit. 8. s. 4. Inst. 3. 26. 9. with Vinnius's notes. D. 17. 2. 52. 4. Puf.
b. 5. c. 8, s. 2. Gro. b. 2. c. 12; s. 24.
(1) A commodatum is a contract in which a thing is granted gratis to
4
[24]
23 THE LAW OF BAILMENTS.
is demanded ; and the borroiver is, therefore, responsible
for slight neghgence.
This had been the learning generally, and almost una-
nimously, received and taught by the doctors of Roman.
law ; and it is very remarkable, that even Antoine Fa-
VRE, or Faher, who was famed for innovation and para-
dox, who published two ample volumes, De Erroribu^
Interpretum, and whom Gravina justly calls the boldest
of expositors and the keenest adversary of the practisers,{n)
discovered no error in the common interpretation of two
celebrated laws, which have so direct and so powerful
an influence over social life, and which he must repeat-
edly have considered : but the younger Godefroi, of
Geneva, a lawyer confessedly of eminent learning, who
died about the middle of the last century, left behind him
(n) Orig. Jur. Civ. lib. i. § 183.(2)
another for a certain use, upon condition, that, after the use of it, the
same thing shall be returned in as good plight as it was when it was
first delivered. The borrower is not responsible for injuries which
happen in the use of the article for the purpose and during the time for
which it was lent, for} the lender has tacitly consented not to demand
any indemnity upon that account. Puf. b. 5. c 4. s. 6. Wood's In-
stitute of the Civil Law, 215. But he is bound not merely to exercise
that degree of diligence which he employs in his own transactions, but
that care which very diligent persons employ in their own affairs, and is
consequently answerable for whatever losses may happen for want of
such care. Inst. 3. 15. 2. Domat's Civil Law, part 1. b. 1. tit. 5. s. 2.
Puf. b. 5. c. 4. s. 6. Gro. b. 2. c. 12. s. 13.
(2) The whole of Gravina's animadversion deserves to be quoted for
the implied and salutary lesson it offers to the juvenile Quixotes, whose
paradoxical weapons are frequently displayed with such exulting con-
fidence in the field of literary controversy : — " Tandem in Antonio
" Fabro consistam audacissimo, et pragmaticorum faoste vehementissi-
" mo: qui aliis quidem in operibus acumenm agis, quam veritatem praea-
*'titit : in codice vero suo usum rerum, et ingenii sui jam maturi reddi-
" dit nobis utilitatera ; ut meliora sint iUius, quae minus amta.^''
THE LAW OF BAILMENTS. 24
a regular commentary on the law Contractus, in which he
boldly combats the sentiments of all his predecessors,
and even of the ancient Romans, and endeavours to sup-
port a new system of his own.
He adopts, in the first place, the Florentine reading, l^dgj",^^ ^'
of which the student, I hope, has formed, by this time,
a decided opinion from a preceding page of this Essay.
He censures the rule comprised in the law Si ut certo
as weak and fallacious, yet admits, that the rule, which
he condemns, had the approbation and support of Mo-
DESTiNUS, of Paulus, of Africanus, of Gaius, and
of the great Papinian himself; nor does he satisfacto-
rily prove the fallaciousness to which he objects, unless
every rule be fallacious to which there are some excep-
tions. He understands by diligentia, that care which
a very attentive and vigilant man takes of his own pro- [ 25 1
perty ; and he demands this care in all the eight con-
tracts, which immediately precede the disputed clause ;
in the tivo which follow it, he requires no more than or-
dinary dWigence. He admits, however, the three degrees
of neglect above stated, and uses the common epithets,
levis and levissima ; but, in order to reconcile his system
with many laws which evidently oppose it, he ascribes
to the old lawyers the wildest mutability of opinion, and
is even forced to contend, that Ulpan himself must have
changed his mind.
Since his work was not published, I believe, in his
life-time, there may be reason to suspect, that he had
not completely settled his own mind ; and he concludes,
indeed, with referring the decision of- every case on this
head to that most dangerous and most tremendous pow-
er, (3) the discretion ofthejudge.(o)
(o) " Ergo certe hac in re censentibus accedo, vix quidquam geneialiiis
" definiri posse — remque hanc ad .irbitrinm ju28. Bac. Abr- 374. But <
if a man lend to another sheep to stock bis land, and the bailee kill
tliem, llie owner shall have a general action of trespass, or an action
of trover, at his election ; for though the use is in the borrower, yet 1 .^
tlie property is in the lender, and the killing of the sheep is in open 9
violation of another's property, which is complained of in the general
action of trespass. Co. Lit. 57. Cro. Eliz. 784. Moore, 248. Owen, 52.
Dyer, 121. pi. 17. 1 Bac. Abr. 374- No action will lie against a mere
naked bailee, to recover goods in his possession, until after a demand
aud refu-sal. Brown and Hotchkiss v Cook, 9 Johns. Rep. 361. If
goods are bailed by B. to C, C. must deliver them to B., for C. cannot
pretend to remove or alter that possession committed to him in order to
restore it to the right owner, for the right of restitution must be de-
manded of him that did the injury, of which C. has no pretence to
udge, and therefore it would be downright treachery in him to deliver
them to any other than him from whom he had them. Roll. Abr. 607.
1 Bac. Ab 369. This is io accordance with the provisions of the
Code Napoleon on this subject^ article 1937, " Le depositaire ne doit
THE LAW OF BAILMENTS. 51
Among the curious remains of Attic law, which phi- Grecian aud
lologers have collected, very little relates to the con-
tracts which are the subject of this Essay ; but I re-
member to have read of Demosthenes, that he was
advocate for a person, with whom three men had depo-
sited some valuable utensil, of which they were joint
owners ; and the depositary had delivered it to one of
them, of whose knavery he had no suspicion ; upon
which the other two brought an action, but were non-
suited on their own evidence, that there was a third
bailor, whom they had not joined in the suit; for, the
truth not being proved, Demosthenes insisted, that his
clients could not legally restore the deposit, unless all three
proprietors were ready to receive it; and this doctrine
was good at Rome as well as at Athens, when the thing
deposited was in its nature incapable of partition ; it is
also law, I apprehend, in Westminster Hall. (e)(9)
(e) D. 16 3 1. 36. Bro. Abr. tit. Bailment, pi. 4.
(9) Property belonging to several joint owners, wlio concurrently
deposit itwitb a bailee by wbom it is accepted on their joint account,,
vestituer la chose deposee, qu^a celui qui la lui a confiee, ou a celui
au nonj duquel le depot a ete fait, ou a celui qui a ete indique pour le
recevoir. Article 1938. line peut pas exiger de celui qui a fait le
depot." But if A. bails goods to B. to which C. has a right, and B.
dies, his executors are ehargeable only to C. that has right, for
the executors came to the possession by the law, and therefore
must deliver it to those peisons in whom the law has establislied
the property; and the taking up of au executorship is an engagement to
answer all debts of the deceased, and all un^^takings that create a
debt, so far as there are assets, but doth not embark the executor in
the personal trusts of the deceased, any more than he is obliged to
answer for his several injuries. Rol. Ab. 607. 1 Bac. Ab. 3C9.
[52 1
52 THE LAW OF BAILMENTS.
The obligation to return a deposit faithfully was, io
very early times, holden sacred by the Greeks, as we
learn from the story of Glaucus, (1) who, on consult-
ing the oracle, received his answer, ." that it was crimi-
" nal even to harbour a thought of withholding deposited
" goods from the owners, who claimed them ;"(/) and
a fine application of this universal law is made by an
Arabian poet contemporary with Justinian, who re-
jmarks, "that life and wealth are only deposited with us
" by our Creator, and, like all other deposits, must in due
"time be restored." (g.)
taw of n>aji- II. Employment by commission was also known to
our ancient lawyers ; and Bracton, the best writer of»
them all, expresses it by the Roman word mandatum;
now, as the very essence of this contract is the gratuitous
performance of it by the bailee, and as the term cortv-
mission is also pretty generally applied to bailees, who
receive hire or compensation for their attention and trou-
ble, I shall not scruple to adopt the word mandate as
(/) Herod. VI. 86. Juv. Sat. XIII. 199.
cannot be legally demanded without the consent of all parties. If,
however, the bailee is not privy to such arrangement, but accepts the
property from one of them, by whom as well as by the bailee, it is
treated as belonging to him exclusively, the bailee cannot set up the
want of consent of the other party, not privy to the deposit, to prevent
liis.re-delivery of the property to him who bailed it, or to his legal repre-
sentatives. May and another, assignees of Taylor, v. Harvey, 13
East, 197.
(1) Vide Seneca de Benef. 4. 10. Cic. de Off. lib. 1. Eden's Ele-
menta Juris Civilis, 175.
f (g.) When a bailee may be guilty of fjarceny. See 1 Hawk. P. C.
144 b. 1 c. 19. s. 8, 9, 10. The State v. Long, 1 Haywood Rep. 155.]
THE LAW OF BAILMEiNTS. 53
appropriated in a limited sense to the species of bailmcHt
now before us ; nor will any confusion arise from the
common acceptation of the word in the sense of a judi-
cial command or precept, which is, in truth, only a se-
condary and inaccurate usage of it. The great dis-
tinction then between one sort of mandate and a deposit
is, that the former lie.o in fesance, and the latter, simply
in custody : whence, as we have already intimated, a
difference often arises between the degrees of care de-
manded in the one contract and in the other ; for,
the mandatary being considered as having engaged
himself to use a degree of diligence and attention ade-
quate to the performance of his undertaking, the omis-
sion of such diligence may be, according to the na-
ture of the business, either ordinary, or slight, neg-
lect ; although a bailee of this species ought regu-
larly to be answerable only for a violation of good
faith. [2) This is the common doctrine taken from the
(2) A person, who undertakes, without a reward, to perform a par-
ticular service, where his situation is not such as to imply skill, or
knowledge, in the particular transaction, will not be responsible for a
loss, when he has acted bona Jide, and exercised the same care which
he takes in his own affairs.
The defendant, who was a general merchant in London, having re-
ceived orders from his correspondent in Madeira, to send thither a
quantity of leather cut out for shoes and boots, employed Goodwin the
bankrupt, who was a shoemaker, to execute' the order. Goodwin ac-
cordingly prepared the leather for the defendant, packed it in a case
for exportation, and at the same time prepared another parcel of the
same kind of leather, on bis own account, which he packed in a sepa-
rate case, to be sent to Madeira on a venture, requesting the recom-
mendation of the defendant to his correspondents in the sale of it. The
two cases were sent to the defendant's house, with bills of parcels, and
he, in order to save the trouble of a separate entry at the custom house,
voluntarily, and without any compensation, by agreement witb Good-
53 , THE LAW OF BAILMENTS.
law of Ulpian ; but there seems, in reality, to be no
exception in the present case from the general rule ; for,
win, made one entry of both the cases, but did it under the denomina-
tion of wrought leather, instead of dressed leather, which it ought to
have been. In consequence of this mistake in the entry, the two ca-
ses were seized, and this action was brought by the assignees of Good-
win, to recover the value of the leather, which he had prepared to ex-
port on his own account. The court held that the defendant was not
liable for the loss, since he had acted bonajide, and taken the same care
of the goods as of his own, and, not being of a profession which implied
knowledge in the particular transaction, the wrong entry could not in
him be considered as gross negligence. Lord Loughborough, C J.
observed, " 1 agree with Sir VV. Jones, that where a bailee undertakes
" to perform a gratuitous act, from which the bailor alone is to receive
"benefit, there the bailee is only liable for gross negligence; but if a
" man gratuitously undertakes to do any thing to the best of his skill,
" where his situation or profession is such as to imply skill, an omission
'■ of that skill is imputable to him as gross negligence. If in this case a
" ship-broker, or a clerk in the custom-house, had undertaken to enter
" the goods, a wrong entry would in them be gross negligence, because
*' their situation and employment necessarily imply a competent degree
"of knowledge in making such entries ; but wheaan application, un-
" der the circumstances of this case, is made to a general merchant to
" make an entry at the custom-house, such a mistake as this is not to
" be imputed to him as gross negligence." Shiells and Thome, assign-
ees of Goodwin, v. Blackburne, 1 Hen. Bl. 158. See Nelson v. Mcin-
tosh, 1 Stark. 238.
So, a gratuitous b ailee, who turns a horse after dark into a dangerous
pasture to which it was unaccustomed, in consequence of which it
meets with its death, is guilty of that degree of negligence which will
render him responsible to the bailor. In an action for not repairing the
fences of a close adjoining that of the plaintiff, in consequence of which
the plaintiff's horse fell into the defendant's close, and was killed, it ap'
peared tha t the horse was the property of the plaintiff's brother, who
sent it to him the night before the accident ; that the plaintiff put it in-
to his stable for a short time, and then turned it after dark into his close
where his own cattle usually grazed, and that on the following morn,
ing the borse was found dead in the close of the defendant, having fall-
en from the one to the other. Lord Ellenborough, C. J. observed)
THE LAW OF BAILMENTS. 53
since good faith itself obliges every man to perform his
actual engagements, it of course obliges the mandatary
to exert himself in proportion to the exigence of the af-
fair in hand, and neither to do any thing, hoAV minute so-
ever, by which his employer may sustain damage, nor
omit any thing, however inconsiderable, which the nature
of the act requires :{g) nor will a want of ability to per-
form the contract be any defence for the contracting par-
ty ; for, though the law exacts no impossible things, yet it
may justly require that every man shovdd know his own
strength before he undertakes to do an act, and that, if
he delude another by false pretensions to skill, he shall
be responsible for any injury that may be occasioned by
such delusion. If, indeed, an unskilful man yield to the
pressing instances of his friend, who coidd not otherwise
have his work performed, and engage reluctantly in the
(g) Lord Raym. 910.
that the plaintiff, although he was a gratuitous hailce, owed it to the
bailor, not to put the horse into a dangerous pasture. Perhaps the
horse might have been safe during the day-light, but that the turning
it into a pasture to wliich it was un-uscd. after dark, was a degree of
negligence sufficient to render him liable, and that consequently the
plaintiff might maintain an action in his own name. Booth v. Wilson,
1 Barn, and Aid. 59.(n)
[(h) Where the bailee undertakes to perform a gratuitous act, from
which the bailor alone receives benefit, there the bailee is liable only
for gross neglect. Sccus, where the profession of the bailee implies
skill, for then want of skill is imputable as gross neglect. Stanton v-
Bell, 2 Hawks. North Car. Rep. 145.
A person or corporation allowing his or its servants, or clerks, to re-
ceive for custody the goods of another, especially in relation to special
deposits, will be considered the bailee of the goods so received, and
will incur all the duties and liabilities belonging to that relation. Fos-
ter V. Essex Bank, 17 Mass. Rep. 479.]
8
53
THE LAW OF BAILMENTS.
[54]
Distinction
between ni'S-
fea$ance and
«07i) " In privatis rebus, siquis rem raandatam non modo malitiosiiis ges-
sisset, sui qutestfts aut commodi causa, verum etiam iiegligentiiis, cum ma-
jores summum admisissc dedecus existimabant ; itaque mandati constitu-
turo est judicium, non minns turpequam furfi.'" Pro S. Rose. p. 116. Gl3«g.
63 THE LziW OF BAILMENTS.
work for the benefit of an absent person, and without '
his knouletfge, is the negotiorum gestor of the civilians,
and the obligation resulting from his implied contract
has been incidentally mentioned in a preceding page.
[ 64 J III. On the third species of bailment, which is one of
Law of luans
for use. the most usual and most convenient in civil society, little
remains to be observed ; because our own, and the Ro-
man law, are on this head perfectly coincident. I call
it, after the French lawyers, loan for use, to distinguish
it from their loan for consumption, or the MUTUUM of
the Romans ; by which is understood the lending of mo-
ney, U'ine, corn, and other things, that may he valued by
number, tveight, or measure, and are to be restored only in
equal value or quantity (x) : this latter contract, which,
according to St. Ger3IAN, is most properly called a loan,
does not belong to the present subject ; but it may be
right to remark, that, as the specific things are not to be
returned, the absolute property of them is transferred to the
borrower, who must bear the loss of them, if they be des-
troyed by wreck, pillage, fire, or other inevitable misfor-
tu7ie.{l) Very diflerent is the nature of the bailment in
(x) Docl. and ctud dial. 2. chap. 38. Bract. 99. a. b. In Ld. Rajm.
9; 6. where this passage from Bracton is cited by the Chief Justice, mutuam
is printed for commodatuin ; but what then can be made of the words ad
ipsam restituendam .' There is certainly some mistake in the passage, which
must be very ancient, for the oldest MS. that I have seen, is conformable to
Tottel's edition. I suspect the omission of a whole line after the word
precium, where the manuscript has a full point: and possibly the sentence
omitted may be thus supplied from Justinian, whom Bracton copied. " At
is, qui mutuam accepit, obligatus remanet," si forte incendio, &c. Inst. 3>
13 2.
(!) If mone}', corn, wine, or any other such thing wliich canapt be
re-delivered, or occupied, be borrowed, and it perish, it is at the peril
of the borrower. But if a horse, or cart, or such other things, as may
THE LAW OF BAILMENTS. 65
qestion ; for a horse, a chariot, a book, a greyhound, or
a fowHng piece, which are lent for the use of the bailee,
ouoht to be re-cljelivered specifically ; and the owner must
abide the loss, if they perish through any accident which
« very careful and vigilant man could not have avoided.
The negligence of the borrower, who alone receives
benefit from the contract, is construed rigorously, and,
although slight, makes him liable to indenmify the lend-
er ; nor will his incapacity to exert more than ordinary
attention, avail him on the ground of an impossibility,
" which the law," says the rule, never " demands;" for
that maxim relates merely to things absolutely impossi-
ble ; and it was not only very possible, but very expedi-
ent, for him to have examined his own capacity of per-
forming the undertaking, before he deluded his neigh-
bour by engaging in it : if the lender, indeed, was not
deceived, but perfectly knew the quality, as well as age,
of the borrower, he must be supposed to have demand-
ed no higher care than that of which such a person was
capable ; as, if Paul lend a fine horse to a raw youth,
be used and delivered again, be used according to the purpose for
which they were lent, if they perish, he who owns them shall bear the
loss, if they perish not through default of him who borrowed them, or
he made a promise at the time of delivery to re-deliver them«afe again.
If they be used in any other manner than according to the lending, in
whatever manner they may perish, if it be not by default of the owner,
he who borrowed them shall be charged with them, in law and con-
science. Noy's Maxims, 91. Bythewood's Ed. 2I1.(k)
[(k) So it has been decided in South Carolina, " That even though
the bailee used due care, if he used the property for a different pur-
pose than that for which it was bailed, the bailee is liable. 1 Const. Rep.
S. C. I2ft De ToUenere v. Fuller. See also Code Napoleon, liv. 3-
tit.lO. cl.s. 2. art.l88l.]
(i5 THE LAW OP BAILMENTS
he cauHOt exact the same degree of management and
circumspection, which he would expect from a riding-
master, or an officer of dragoons. (y)
From the rule, that a borrower is answerable for slight
[ 66 J neglect, compared with the distinction before made be-
tween simple theft and rohhery, {z), it follows, that, if
the borrowed goods be stolen out of his possession by
any person whatever, he must pay the worth of them l»
the lender, unless he prove that they were purloined
notwithstanding his extraordinary care. The example
given by Julian is the first and best that occurs : Caius
borrows a silver ewer of Titius, and afterwards delivers
it, that it may be safely restored, to a bearer of such ap-
proved fidelity and wariness, that no event could be less
expected than its being stolen ; if, after all, the bearer
be met in the way by scoundrels, who contrive to steal
it, Caius appears to be wholly blameless, and Titius has
suffered damnum sine injuria. It seems hardly necessary
to add, that the same care, which the bailee is bound co
take of the principal thing bailed, must be extended to
such accessory things as belong to it, and were delivered
with it ; thus a man who borrows a watch, is responsible
for slight neglect of the chain and seals,
opiaion of Although the laws of Rome, with which those o;.
ruffendorf -r^ 7 t . , • 1 1 • >
disputed. hngland in this respect agree, most expressly decide^
that a borrower using more than ordinary dliii- euce, sli,ail
not he chargeable, if there be a force which he cannot re-
sist,{a) yet PuFFENDORF employs much idle reasoning,
which I am not idle enough to transcribe, in support of
r g7 -1 a new opinion, namely, " that the borrower ought to
" indemnify the lender, if the goods lent be destroyed
(y) Dumoulin, tract. De eo quod interest, n. 185.
(s) See p. 44. and note (o)-
(a) D. 44. 7. I. 4, Ld. Raym. 9\e.
THE LAW OF BAILMENTS. 67
*' by fire, shipwreck, or other inevitable accident, and
" without his fault, unless his own perish with them ;"
for example, if 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 Puf-
fcndorf and his annotator, to pay thirty guineas td
Paul. The justice and good sense of the contrary
decision are evinced, beyond a doubt, by M. Pothier,
who makes a distinction between those cases, where
the loan was the occasion merely of damage to the
lender, who might in the mean time have sustained
a loss from other accidents, and those where the loan
was the sole efficient cause of his damage(6) : as if
Paul, having lent his horse, should be forced, in the in-
terval, by some pressing business to hire another for
himself; in this case the borrower ought, indeed, te
pay for the hired horse, unless the lender had voluntarily
submitted to bear the inconvenience caused by the loan ;
for, in this sense, and in this instance, a benefit conferred
should not be injurious to the benefactor. As to a condi-
tion 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 presumptions : if i f»o t
Paul really intended to impose such a condition, he
should have declared his mind ; and I persuade myself,
that William would have declined a favour so hardly
obtained.
Had the borrower, indeed, been imprudent enough to ^^^^^ ^^^ ^^j^,
leave the high road, and pass through some thicket, tinctions.
where robbers might be supposed to lurk, or had he
travelled in the dark at a very unseasonable hour, and
{by Poth. Pr^t a Usage, n. 55. Puf. with Barbeyrac's notes, b. 5, c. 4>
§6.
^ THE LAW OF BAILMENTS.
had the horse, in either case, been taken from him or
killed, he must have indemnified the owner ; for irre-
sistible 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. German from the Summa Rosella, where a
loan must be meaned, though the word depositum be
erroneously used ;(c) and it is there decided, that, if the
borrower of a horse will imprudently ride by a ruinous
house in manifest danger of falling, and part of it ac-
tually 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 sud-
den hurricane, the bailee shall be discharged. For the
same, or a stronger reason, if William, instead of com-
ing to London, for which purpose the horse Avas lent, go
towards Bath, or, having borrowed him for a week, keep
him for a month, he becomes responsible for any acci-
dent that may befal the horse in his journey to Bath, or
r g9 -j after the expiration of the week.(^<:/j(2)(L)
Thus, if Charles, in a case before put,(f) wear the
masked habit and jewels of George at the ball, for which
they were borrowed, and be rohhed of them in his return
(c) Doct. and Stud, where before cited.
(J) Ld.Raym. 915. (e) P. 50.
(2) SeeNoy'3 Maxims, 92. Bythewood's Ed. 212.
[(l) If a man borrow a horse for one day, and he keep him two, and
the horse is lost on the second day, the bailee is liable, for he detained
him wrongfully. This rule, though applied to a borrower is applicable
to bailees of every description. 1 Pow. on Con. 249. Cro. Ja. 244.
The law of the Code Napoleon, corresponds with this : " Si I'emprun-
teur emploie la chose a un autre usage, ou pour un temps plus lon^
qu'il ne devait, il sera teniu de la perte arrivee, meme par cas forluit."
Code Nap. I. 3. t. 10. c. 1. s. 2. art. 1881. And see 1 Con- Re. s. 6. 121.
THE LAW OF BAILMENTS. ^
home at the usual time and by the usual way, he can-
not be compelled to pay George the value of them ; but
it would be otherwise, if he were to go with the jewels
from the theatre to a gaming-house, and were there to
lose them by any casualty whatever. So, in the in-
stance proposed by Gains in the Digest, if silver utensils
be lent to a man for the purpose of entertaining a party
of friends at supper in the metroiiolis, and he carry them
into the country, there can be no doubt of his obligation
to indemnify the lender, if the plate be lost by accident
however irresistible.
There are other cases, in which a borrower is charge-
able for inevitable mischance, even when he has not, as
he legally may, taken the whole risk upon himself by
express agreement. For example, if the house of Caius
be in flames, and he, being able to secure one thing
only, save an urn of his own in preference to the silver
ewer, which he had borrowed of Titius, he shall make
the lender a compensation for the loss ;(3) especially if
the ewer be the more valuable, and would consequently
have been preferred, had he been owner of them both :
even if his urn be the more precious, he must either
leave it, and bring away the borrowed vessel, or pay
Titius the value of that which he has lost ; unless the f 70 1
alarm was so sudden, and the fire so violent, that no de-
liberation or selection could be justly expected, and
(3) Puff. b. 5. c 4. s. 6. Cod Nap, liv. 3. tit.* 10. c. 1. s. 2. art.
1882.
But wliere a slave was delivered to a person to be kept or upon trials
and the bailee, suffered the slave to go to the next village in the eve-
ning, when the slave ran away, it was held that the bailee tvas not re-
sponsible. De Fouslear vs. Shotterkick 3 v. Rep. 170 ]
10
70 THE LAW OF BAILMENTS.
Caius had time only to snatch up the first utensil that
presented itself.
Since openness and honesty are the soul of con-
tracts, (4) and since " a suppression of truth is often as
" culpable as an express falsehood, "(5) I accede to the
opinion of M. Pothicr, that, if a soldier were to borrow
a horse of his friend, for a battle expected to be fought
the next morning, and were to conceal from hm, that his
ovn horse was as Jit for the service, and if the horse so
borrowed were slain in the engagement, the lender ought
to be indemnified ; for probably the dissimulation of the
borrower induced him to lend the horse ; but, had the
soldier openly and frankly acknowledged, that he ivas
(4) A seller, in disposing- of an article, is not bound to disclose its
defects to the buyer, by the law of England, which differs in this re-
spect from the sentiments of moral writers upon the subject (PufT. b. 5.
c- 3. s. 2. Grot. b. 2. c. 12. s. 9. Paley's Moral Philos. vol. 1. b. 3-
c. 7. ;) but he must not practice any artifice to conceal them, or make
any misrepresentations for the purpose of throwing the buyer off his
guard. Baglehole v. Walters, 3 Camp. 154. Meyer v. Everth, 4 Camp.
22. Pickeringv. Dowson,4Taun. 779. Vernon v. Keyes, 4 Taun. 488.
In such case the maxim, caveat emptor, universallyapplies where there
is no fraud ; and to obtain protection from latent defects there must be
an express warranty. Parkinson v. Lee, 2 East. 322. Buller's Nisi
Prius, Bridgeman's Ed. 32.
(5) For an illustration of this principle, see the case of Eyre v. Durn-
ford, 1 East, 3f8; where the defendant, who was referred to upon the
subject of the credit of a third person, with whom the plaintiff was in
treaty for the purchase of a quantity of goods, having suppressed a ma-
terial circumstance within his knowledge, was holden liable for the in-
jury resulting to the plaintiff in consequence of his misrepresentation.
See Buller's Nisi Prius, Bridgeman's Ed. 32. b. " Fraud may consist
" as well in the sppression of what is true, as in the representation of
" what is false." Per Chanibre, J. 3 Bos. and Pul. 371. So in the
case of a false return to a mandamus, an action may be maintained, as
TTtU for a suppicssio veri, as for an aUegafiofalsi. King v. The Mayor
aud Burgesses of Lyme Regis, 1 Douglas, 149.
THE LAW OF BAILMENTS. 70
unwl'ling to expose his own horse, since, in case of a loss,
lie was unable to purchase another, and his friend, never-
theless, had generously lent him one, the lender would
have run, as in other instances, the risk of the day.
If the bailee, to use the Roman expression, be IN
MORA, that is, if a legal demand have been made by the
bailor, he must answer for any casualty that happens
after the demand ; unless in cases where it may be strong-
ly presumed, that the same accident would have befallen
the thing bailed, even if it had been restored at the
proper time ; or, unless the bailee, have legally tendered
the thing, and the bailor have put himself in mor'> by
refusing to accept it : this rule extends of course to eve- [ 71 ]
ry species of bailment.
" Whether in the case of a valued loan, or where the Controversy
goods lent are esttmated at a certain price, the borrow- viiians.
" er must be considered as bound in all events to restore
" either the things lent or the value of them," is a ques-
tion upon which the civilians are as much divided, as
they are upon the celebrated clause in the law Contrac-
tus: five or six commentators of high reputation enter
the lists against as many of equal fame, and each side
displays great ingenuity and address in this juridical
tournament. D'Avezan supports the affirmjitive, and
Pothier the negative ; but the second opinion seems the
more reasonable. The word periculum, used by Ul~
pian, is in itself equivocal : it means hazard in general,
proceeding either from accident or from neglect ; and in
this latter sense it appears to have been taken by the
Roman lawyer in the passage which gave birth to the
dispute. But, whatever be the true interpretation of
that passage, I cannot satisfy myself, that, either in the
Customary Provinces of France, (6) or in England, a
(6) The bcrroweria this case, b.y the Code Napoleon, art. 1883, is
71 TPIE LAW OF BAILMENTS.
borrower can be chargeable for all events without his
consent unequivocally given : if William, indeed, had said
to Paul alternatively, " 1 promise, on my return to
" Oxford, either to restore your horse or to pay you thirty
[ 72 ] u guineas, ^^ he must in all events have performed one
part of this disjunctive obligation ;(/) but, if Paid had
only said, " the horse, which I lend you for this journey,
" is fairly worth thirty guineas," no more could be im-
plied from those words, than a design of preventing any
future difficulty about the price, if the horse should be
killed or injured through an omission of that extraordi-
nary diligence which the nature of the contract required.
Exceptions to Besides^jthe general exception to the rule concerning
the rule. jj,g degrees of neglect, namely, Si quid convenit vel plus
vel minus, another is, where goods are lent for a use, in
which the lender has a common interest with the borrow-
er : in this case, as in other bailments reciprocally ad-
vantageous, the bailee can be responsible for no more
than ordinary negligence ; as, if Stephen and Philip in-
vite some common friends to an entertainment prepared
at their joint expense, for which purpose Philip lends a
service of plate to his companion, who undertakes the
whole management of the feast, Stephen is obliged only
to take ordinary care of the plate ; but this, in truth, is
rather the innominate contract do ut facias, than a pro-
per loan.
Agreeably to this principle, it must be decided, that,
if goods be lent for the sole advantage of the lender, the
borrower is answerable for gross neglect only : as, if a
(/) Palm. 551.
responsible for losses arising from accident, unless there is an express
stipulation to the contrary.
[73]
THE LAW OF BAILIMENTS. 73
passionate lover of music were to lend lii.s own instiii-
nient to a player in a concert, merely to augment his
pleasure from the performance ; but here again, the
bailment is not so much a loan^ as a mandate ; and, if
the musician were to play witha 11 due skill and exertion,
but were to break or hurt the instrument without any
malice or very culpable negligence, he woikld not be
bound to indemnify the amateur, as he was not in want
of the instrument, and had no particular desire to use it.
If, indeed, a poor artist, having lost or spoiled his violin
or flute, be much distressed by this loss ; and a brother
musician obligingly, though voluntarily, offer to lend hira
his own, I cannot agree with Despeisses, a learned
advocate of Montpelkr, and writer on Roman law, that
the player may be less careful of it than any otficr bor-
rower : 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 the law of Moses, as it is commonly translated, a ^^o^^ic and
• . . "^ ' AUic laws.
remarkable distmction was made betAveen the loss of
borrowed cattle or goods, happening in the absence or
the presence of the owner(7) ; for, says tlje divine le-
gislator, "if a man borrow anght of his neighbour, and
" it be hurt or die, the oivner thereof not being iv-ith it,
" he shall surely make it good ; but if the oumer thereof
*' be with it, he shall not make it good ;"(,§•) now it it is by
nomeanscer/'am, that the original word signifies the owner,- f 74 1
for it may signify the possessor, and the law may import,
that the borrower ought not to lose sight, when he can
possibly avoid it, of the thing borrowed ; but if it was
(g) Exod. xxii. 14, 15.
(7) See Puff, with Barbeyrac's notes, b. 5. c- 4. s. 6. n. 2.
74
THE LAW OF BAILMENTS.
[75]
Law ot
pledges.
Doctrine of
Lord Coke
denied.
intended that the borrower should ahvays answer for
casualties, except in the case, which must rarely happen,
of the owner's presence^ this exception seems to prove,
that no casualties were meaned, but such as extraordina-
ry care might have prevented ; for I cannot see, what
difference could be made by the presence of the owner,
if the for(^, productive of the injiiry, were wholly irre-
sistible, or the accident inevitable.
An old Athenian law is preserved by Demosthenes,
from which little can be gathered on account of its gene-
rality, and the use of an ambiguous word (A) : it is un-
derstood by Petit ^^ relating to guardians, mandataries,
and commissioners ; and it is cited by the orator in the
case of a guardianship. The Athenians were, probably,
satisfied with speaking very generally in their laws, and
left their juries, for juries they certainly had, to decide
iavourably or severely, according to the circumstances of
each particular case.
IV. As to the degree of diligence which the law re-
quires from a pawnee, I find myself again obliged to dis-
sent from Sir Edward CoJce, with whose opinion a simi-
lar liberty has before been taken in regard to a depositor-
ry ; for that very learned man lays it down, that, "if
" goods be delivered to one as a gage or pledge, and they
" be stolen, he shall be discharged, because he hath a
'^property in them: and, therefore, he ought to keep
/' them no otherwise than his own(i) :" I deny the first
proposition, the reason, and the conclusion.
(/i) Ilfpi b>v Ka9v(}>T]Ki nj, i/iOia)j dipXtcKdvciv, SxTTztp itv avToi cxJi, Reiske' Sedi-
tion, 855. 3. Here the verb Kadvfiivai may imply slight, or ordinary,
neglect: or even fraud, as Petit has rendered it.
(i) Inst. 89. a. 4. Rep. 83. b. (8).
(8) See Hargravc's note (10) upon the above passage, where the
THE LAW OF BAILMENTS. 75
Since the bailment, which is the subject of the pre-
sent article, is beneficial to the paivnee by securing the
payment of his debt, and to the pawnor by procuring him
credit, the rule which natural reason prescribes, and
which the wisdom of nations has confirmed, makes it re-
quisite 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 neg\ect.{k) This is express-
ly holdenby Bracton ; and, when I rely on his authori-
ty, I am perfectly aware that he copied Justinian almost
Avord for word, and that Lord Holt, who makes considera-
ble use of his Treatise, observes three or four times,
"that he was an old author ;"(Z) but, although he had
(it) Bract. 99. b. (/) Ld. Raym. 915, 916. 919.
learned editor, adverting to the authority of Lord C. J. Holt, who
thought the reasoning in the text insufficient, also objects to the doc-
trine there stated. The nature and object of this species of bailment,
entitles the pawnee to detain the article, until he is repaid the sum ad-
vanced upon it ; but it may be observed, that where goods have been
pledged by a person having a limited interest, the pawnee cannot de-
tain them for the sum advanced, against the party entitled to it after
that interest has expired. As where a tenant for life of plate, pledged
it with a pawnbroker, who had no notice of the settlement under whick
the interest was derived ; the pawnbroker was not allowed to retain
the property, after the death of the tenant for life, against the remain-
der man, notwithstanding his ignoraxice of the pawnor's partial inter-
est. Hoare v. Parke, 2 T. R. 376. See 16 Viner's Abr. title Pawn.
264. Hooper v. Ramsbottom, 4 Camp. 121. M'Combie v. Davies,
7 East, 5. So where a factor pledges the goods of his principal with-
out authority, the pawnee cannot detain them against the principal, un-
til he is repaid the sum advanced. Paterson v. Tash, 2 Sir. 1178. Dau-
bigny V. Duval, 5 T. R. 604. M'Combie v. Davies, 6 East, 538. Mar-
tini V. Coles, 1 M. and S. 140. Shipley v. Kymer, 1 M. and S. 484.
Kuckein v. Wdson, 4 B. and A. 443. not even to the extent of the loan,
which the factor would be entitled to, had they remained in his posses-
sion. M'Combie y. Davies, 7 East. 6.
76 THE LAW OF BAILME^^TS.
been a civilian, yet he was also a great common-lawyer,
and never, I believe, adopted the rules arid expressions
of the Romans, except when they coincided with the laws
of England in his time : he is certainly the best of om* juri-
dical classics ; and, as to our ancient authors, if their doc-
trine be 7iot law, it must be left to mere historians and an-
tiquaries ; but, if it remain unimpeached by any later
decision, it is not only equally binding with the most re-
cent law, but has the advantage of being matured and
approved by the collected sagacity and experience of
ages. The doctrine in question has the full assent of
Lord Holt himself, who declares it to be " sufficient, if
"the pawnee use true and ordinary diligence for restoring
" the goods, and that, so doing, he will be ifidemnified,
" and, notwithstanding the loss, shall resort to the paw-
" nor for his debt. "(9) Now, it has been proved, that
" a bailee cannot be considered as using ordinary dili-
" gcjicc who suffers "the goods bailed to be taken by
" stealth out of his custody ;"(w) and it follows, that
" a pawnee shall not be discharged, if the pawn be
simply stolen from him ;"(1) but if he bo forcibly robbed
of it ivithout his fault, his debt shall not be extinguished.
(m) P. 44. n. (o).
(9) Ld. Raym. 917.
(1) A pawnee, and a depositary of g-oo^s for bire, are responsible for
tlte same degree of negligence, that is, for the want of ordinary care;
but where a'truuk, containing goods, was deposited jvith an upholsterer
for a reu'ard, the contents of which were stolen by his servants not-
withstanding he had put it in a place of safe custody, he was holden
not responsible for the value, since he had taken as much care of them
as of his own, and that positive evidence of negligence must be given to
•i sustain such an action. The mere proof that at different times seve-
ral articles of value had been stolen from the defendant, and that he
had frequently been heard to complain of (he dislionesty of his servants,
is not sufficient. Finucaue v. Small, 1 Esp. N- P. G. 315. The distinct
THE LAW Of BAILMENTS. 76
/
The passage in the Roman institutes, which Bracion
has nearly transcribed, by no means convinces M. Le
Brun, that a puivnee and a borroiver are not responsible [ 77 ]
for one and the same degree of negligence ; and it is very
certain that Ulpian, speaking of the Actio jpignoratiUa,
uses these remarkable words : " Venit in hac actione et
*' dolus et culjpa UT in commodato, venit et custodia; vis
" major non venit." To solve this difficulty Noodt had StTdsmTf
recourse to a conjectural emendation, and su})poses UT N«odt.
to have been inadverdently 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 si-
militude, not an adversative ; there seems, however, no
occasion for so hazardous a mode of criticism. Ulpian
has not said, " tolls culpa qualis in commodato ; nor
does the word ut imply an exact resemblance : he mean-
ed, that a pawnee was answerable for neglect, and gave
the first instance that occurred of another contract, in
which the party was likewise answerable for neglect, but
left the sort or degree of negligence to be determined by
his general rule ; conformably to whieh he himself ex-
pressly mentions pignus among other contracts recipro-
cally useful, and distinguishes it from commodatum,
whence the borrower solely derives advantage.(/i.)
(»i) Before, p. 16.
tion between a theft and robbery is clearly established in the civil law.
D- 17.2. 52. 3. See Abbott on Shipping, 234. n. 1. Ante p. 44. n.{o)[m)
[(m) The rule laid down by Sir William Jones in the text, viz. - that
" if the goods are stolen the pawnee shall not be discharged," does not
appear to be the correct rule ; neither is the reverse of the proposition
as laid down by Ld. Coke correct. But the true rule is : that if the goods
are stolen through the want of ordinary care in the pawnee, he is liable,
otherwise he is not. Salk. 522. Ld. Ray. 917, 13. Civil Code of Louisia-
na, 446— 45Q. 1 Pow. on Cont. 252.]
11
77 THE LAW OF BAiLMENTi^.
Case in the It is latlier less easy to answer the case in the Book
Book of Assise . ^ • , • i
ot Assise, which seems wholly subversive of my reason-
ing, and, if it stand unexplained, Avill break the harmo-
[ "78 j ny 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 to-
*' gether had been stolen from him :" now, according to
my doctrine, the plaintiff might have demurred to the
plea; but he was driven to reply, "that he tendered the
" money before the stealing, and that the creditor re-
" fused 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 keep, 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 a pawnee and a
depositary , they were indubitably mistaken ; for which
assertion I have the authority of Bracton, Lord Holt,
and St. German, who ranks the taker of a pledge in the
same class with a 'hirer of goods ;(p) next, that in a
much later case, iii the reign of Hen. VI. where a hiring
of custody seems to be meaned, the distinction between
a theft and a robbery is taken agreeably to the Roman
law(5') ; and, lastly, that, although in the strict propriety
of our English language, to steal is to take clandestinely,
and to rob is to seize by violence, corresponding with the
'- ' iVorwif/M verbs emblcer and robber, yet those words arc
sometimes used inaccurately ; and I always suspected,
that the case in the Book of Assise related to a robbery.
(o) 29 Ass. pi. 28.
ip) Uoct. and Sdid. dial. 2. chap, 38.
(Q) Before, p. 44. note.(o)
THE LAW 0F BAILMENTS. 79
or a taking with force ; a suspicion confirmed beyond any
doubt by the judicious Broolc, who abridges this very
case with the following title in the margin, " Que serra
" al perde, quant les biens sont rohbes;''\r) and in a mo-
dern work, where the old cases are referred to, it ap-
pears 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 answerable:" (a) but Lord
Coke seems to have used the word stolen in its proper
sense, because he plainly compares a pawn with a de-
posit.
If, indeed, the thing pledged be taken openly and vio-
lently through the fault of jthe pledgee, he shall be re-
sponsible for it; and, after a tender axvA refusal o^ i\\e
money owed, which are equivalent to actual payment,
the U'hole property is instantly revested in the pledgor, and
he may consequently maintain an action of trover :(2^)(n)
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 ;"(w) but this must be an error of im
pression ; for there can never be a deposit without the
owner's consent, and a, depositary would be chargeable
only for gross negligence, whereas the pawnee, whose i gQ t
f (r) Abr. tit. Bailment, pi. 7.
(s) 2 Salk. 522. (/) 29 Ass. pi. 28. Yelv. 179. Ratcliff and Davis.
(m) Law of Nisi Priss, 72. {2)
(2) In the subsequent editions of tliat work, the words " andbecomes
" a deposW are omitted.
[(n) It is laid down by Holt in 2 Salk 522. That if a pawnbroker re-
fuse upon tender of the money to rc-deliverihe goods pledged, he may
be indicted; for being secretly pawned, it may be impossible to prove
a delivery in trover for want of witnesses. This appears to beihe bet-
ter opinion, though it is made a quere, in some of (he books. See Carth
Rep. 277. Salk. 309. 1 Hawk. Tl. of Cr. Garwood's Edit. 14-1.1 Dane Abr,
fl05. 1 Bac.abr. 373.]
80 THE LAW OF BAILMENTS.
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.(w)(o)
{w) Ld. Raym.9l7.
[(o) As to rights of the Pawnee. 1. The Pawnee may maintain his
action of debt for the money lent, although the pawn remains in his
hands, for the pawn is a mere collateral securitv, and the right of ac-
tion is not suspended by it. Yelv. 178. Vide 12 Mod. 564. 2 Starkie
Eep. 72. 2 Stra. 919.
So he may maintain an action of debt for his money, though the goods
pledged may have been recovered from him by the pawnor in an action
of trover ; because, though the security ceases, yet the duty remains,
inasmuch as the money lent is not paid tiack to the party from whenc
it came. Cro. Ja. 243. 1 Bac. Abr. 370. But where a tender has been
made to the pawnee, and he has refused to accept it, he should demand
the money before he brings his action. 1 Bac. Abr. 370. Buls. Rep. 29.
31.
If A. pawn goods to B. for 25/. and B. delivers them over to C. and
makes D. his Executor and dies, A. shall tender the 25/. to the execu-
tor, and not to C, for C. is no more than a bailee, and hath only the
custody of them; but the qualified property of them is in D. as repre-
sentative of B. and therefore to him must the tender be made ; other-
wise it is,- in the case of a mortgage, where the tender may be to the
assignee, because the property of the land is in him. Cro. Ja. 244-
Yelv. 178, 179. 1 Bac. Abr. 370.
The goods taken to pledge cannot be forfeited by the pawnbroker
for his offence, nor can they be taken in execution, nor attached for
bis debt, for the absolute properly is in another, and therefore they are
not alienable, nor by consequence forfeitable, because they cannot be
forfeited without loss and danger to the absolute owner, and all qualifi-
ed possessors take the thing, under the restriction to preserve it for the
right owner. Dyer 67. b. Owen 124. 1 Bac. Abr. 370. ] Dane Abr. 305
If the money was not paid at the day, the property became absolute at
law, in the pawnee, but still the right owner has his redemption in equi-
ty, as in the case of a mortgage, and he may recover it by paying the
debt and interest, but if the pawnee has sold it he cannot be compelled
tore-purchase it. Shep. Touch. 106. 1 Inst. 205. 3 Atk. 395. 1 Dane
Abr. 306. art- 4. s. 4
See further as to the right and property of the pledgee in the thing
THE LAW OF BAILMENTS. 80
reasons coii-
The reason given by Coke for his doctrine, namely, Lord Coke's
' ' because the pawnee has a property in the goods tested.
" pledged," is applicable to every other sort of bail-
ment, and proves nothing in regard to any particular
species ; for every bailee has a temporary quaUfied pro-
pledged,15 Mass. Rep. 389. Jarvis v. Rodgers, 13 Ibid. 105. Garlick v.
James, 12 Johns. Rep. 146.
Lien. — Pawnee's ri^ht of Lien — Pawning, in itself, creates a right ot'
lien. And the pawnee has a right to retain the pledge, not only as a
security for the money lent upon it, but also for any other money lent
to the pawnor, or debt incurred by him to'the pawnee, since the pawn-
ee's possession of the pawn. Prec in Chan. 419. 2 Vern. Rep. 691. De-
maubray v. Metcalfe, 1 Dan- Abr. 306.
By the civil law the pawnee might always retain the pledge not only
for the sum for which it was specifically pledged but for all other mo.
nies due to him on any account whatever. Cod. 8. 27. Hein. Elem.
Juris, p. 4. s. 46. Bu). Praec. lib. 20 tit. B. s. 1.
It does not appear to be settled whether, by the Common Law, the
pawnee has a right to retain the pawn for a debt due him previous to
his obtaining the possession of the pawn. 15 Mass. Rep. 397 ; opinioa
of Wilde, Just.
But though the pawning creates a lien in favour of the pawnee,
he cannot have more interest in the thing pledged than the pawnor
had. As if the tenant of plate for life, pawn it to a broker and die,
and he have no notice of the pawnor's property, the pawnee has no lien
on the plate as against him in remainder. 2 Term Rep. 376. Hoare
v. Parker lane Abr. 306.
Yet it has been decided that if A. gets my goods by fraud, and
pawns them to B. an innocent person, and for a valuable considera-
tion, I cannot recover them of B. till his debt is paid. 5 Term Rep.
175. Parker V. Patrick, 1 Dane Abr. 306. See on the subject of Zzen
generally, 2 Dane. Abr. 262—283.
Redemption. — Paionor'^s right of redemption. Where no time o^
redemption is fixed, the pawnor has his life to redeem the pledge ; but
this is to be understood with this qualification, that the pawnee does
not sooner call on him to redeem, which he certainly has a right to do.
Before making such call, the pawnee has no right to sell the pledge ;
and if he does, the pawnor may recover, from him the value of it at
80 THE LAW OF BAILMENTS;
perty in the things of which possession is delivered to him
by the bailor, and has, therefore, a possessory action, (3)
(3) A gratuitous bailee may maintain an action in his oivu name, for
an injury occasioned by that degree of gross negligence which rfcnders
him responsible to his bailor ; as where he turns a horse after dark into
a strange pasture, which through a defect in the fences, which his
neighbour is bound to repair, falls into the adjoining close, and is killed,
Roothv. Wilson, 1 Barn, and Aid. 59. See ante, p. 53. n. 1. S), a per-
son who hires a chariot for the day. and furnishes it with a coachman
and horses, and then lets it out for the day, may sue in hi- own name,
for an injury to the chariot whilst in the use of the person to whom he
had let it, and may properly describe himself as the owner an ] pro-
prietor. Croft V. Alison, 4 Barn, and Aid. 590.
A gratuitous permission to another to use a chattel does not, in con-
templation of law devest the owner of the possession but it remains
constructively in him, and accordingly he may maintain an action of
trespass for an injury done to it whiht it is so used. Lotan v. Cross, 2
Camp. 464. But the hirer for a different period, acquires an actual
and exclusive possession for that time, and the owner has only a rever-
sionary interest in the property hired, and consequently cannot main-
tain an action of trespass for an injury to it; his remedy must be an ac-
tion upon the case. Hall v. Pickard, 3 Camp. 187. See Gordon v. Har-
per, 7 T. R. 9.
the time of applying for a return, without tendering the debt, because
by the wrongful sale, the pawnee has incapacitated himself to perform
his part of the contract to return the pledge, and it would therefore be
nugatory to make the tender. Cortelyou v. Lansing, 2 Cain. Ca. in.
Er. 199. McLean & Perrine v. Walker, 10 Johns. Rep. 472. Kemp
V. Westbrook, 1 Vez. sen. 278, Where the pledge is for an indefinite
period, the pawnor should be called on to redeem, before the pawnee
can dispose of the property ; and if he is absent, or cannot be found,
judicial proceedings should be had to bar his redemption. Garlick v.
James, 12 Johns. Rep. 146. Hart v. Ten Eyck, 2 Johns. C. R. 100.
Though the pawnor does not redeem during his life, yet the right of
redemption descends to his executors, who may redeem after his
death. Cortelyou v. Lansing, 2 Cain. Ca. in. Er. 199. Bui. 29.30.
1 Bac. Abr. 372.
Where no time is limited for the redemption of the pledge, the
Statute of Limitations will not attach. 1 Vez. sen. g78. Kemp. v.
Westbrook.
THE LAW OF BAILMENTS. 80
©r an appeal in his own name against any stranger who
may damage or purloin them.(x) By the Roman law,
indeed, " even the possession of the depositary was
(x) Year B. 21 Hen. VII. 14. b. 15. a.
And if the pledgee becomes bankrupt, his assignee may file a bill
in Chancery for the redemption of the pledge- for, being a stranger
to what is due, he cannot otherwise ascertain the precise sum he is to
tender. Ibid. 1 Bac Abr. 372.
Where property is held under a pledge, the possession of the bailee
is the possession of the owner; and if he sell to a third person, and
the bailee will not give up the property to the vendee on being tendered
the amount of the debt, or conceal the precise amount, so that no
precise tender can be made, it is suflBcient evidence of a conversion to
sustain the action of trover by the vendee. Eatcliff v. Vance, 2 Con.
Hep. S. C. 239.
Assignment of Pawn- Some have holden, that upon a valuable con-
sideration a pledge is assignable over; and that on such assignment the
tender of the money to the pledgor must be to the assignee, because
the pawnbroker hath a special property, and what he hath he may
transfer over. Bulst- 31. Owen 124. 1 Bac. Abr. 372.
But if a thing is not in my possession, I cannot grant it as a pawn,
though I have a right to it ; for a naked right is not transferrable over.
2 Rol. Rep. 439. I Bac Abr. 372. See also RatclifT v. Vance, 2
Con. Rep. of S. C 239.
Of Pawns by Agents and Factors. A factor halh no authority to
pledge the goods of his principal ; and if he do, the latter may recover
the value of them from the pawnee, on tendering to the factor what is
due to him, without any tender to the pawnee. Patterson v. Tash, 2
Stra. 1178. Daubigny v. Duval, 5 Term. Rep. 604.
But in the case of Daubigny v. Duval, above cited, Ld. Kenyon
thought that the principal was bound to make tender to the pawnee to
the extent of the money due from the principal to the factor, though
not beyond that sum.
An agent, to whom a power of attorney is given to sell, assign, and
transfer stock, cannot pledge it for his own debt; if he does. Chancery
will order the pledgee to re-transfer it. It is a principle of the law of
England, as well as of the civil law, that if a person is acting ex man-
data^ those dealing with him must look to his authoritv.
80 THE LAW OF BAILMENTS.
" holden to be that of the person depositing ;" but with
us the general bailee has unquestionably a limited pro-
perty in the goods intrusted to his care : he may not how-
ever me them on any account without the consent of
the owner, either expressly given, if it can possibly be
obtained, or at least strongly presumed ;(p) and this pre-
sumption varies, as the thing is likely to be better, or
Avorse, or not at all affected, by usage ; since, if Cuius
deposit a setting-dog with Titius, he can hardly be
supposed unwilling that the dog should be used for
L ^1 J partridge-shooting, and thus be confirmed in those
habits which make him valuable ; but, if clothes or
linen be deposited by him, one can scarce imagine that
he would suffer them to be worn; and on the other
hand, it may justly be inferred, that he would gladly
indulge Titius in the liberty of using the booTcs of which
^ he had the custody, since even moderate care would
prevent them from being injured. In the same manner
it has been holden, that the pawnee of goods, which will
be impaired by usage, cannot use them ; but it would
be otherw ise, f apprehend, if the things pawned actually
required exercise and a continuance of habits, as sport-
ing-dogs and horses : if they cannot be hurt by being-
worn, they may be used, but at the peril of the pledgee ;
as, if chains of gold, ear-rings, or bracelets, be left in
[ ( p) If the pawnee use the pledge where the law docs not permit him
to use it, he uses it at his peril, and is liable not only for all losses during
that use, but is also guilty of a conversiou. 1 Leon. 224. Cro. Eliz.
219. 6 Bac Abr. 680.
IV'here property is bailed for a particular purpose, if it be used for a
different purpose, and a loss happens, the bailee is liable, even if it
appears that he has used due care and attention ; the legal presump-
tion being that the loss happened in consequence of the misuse. De
Tollemere v. Fuller, I Rep. Con. Ct 121 ■]
THE LAW OF BAILMENTS, 81
pawn with a lady, and she wear them at a public place,
and be robbed of them on her return, she must make
them good: " if she keep them in a bag," says a learned
and respectable writer, " and they are stolen, she shall
" not be charged ;"(y) but the bag could hardly be taken
privately and quietly without her omission of ordinary
diligence ; and the manner in which Lord Holt puts the
case establishes my system, and confirms the answer just
offered to the case from the Year-book ; for, " if she
"*' keep the jewels," says he, " locked up in her cabinet,
*' and her cabinet be broken open, and the jewels taken
** thence, she will not be answerable."(z) Again ; it is [ 82 1
said, that, where the pawnee is at any expense to main-
tain the thing given in pledge, as, if it be a horse or a
cow, he may ride the horse moderately, and milk the
eow regularly, by way of compensation for the charge ;(a)
and this doctrine must be equally applicable to a gene-
ral bailee, who ought neither to be injured or benefited
in any respect by the trust undertaken by him ; but the
Roman and French law, more agreeably to principle
and analogy, permits indeed both the pawnee and the
depositary to milk the cows delivered to them, but re-
quires them to account with the respective owners for
the value of the milk and calves, deducting the reason-
able charges for their nourishment. (/>) It follows from
these remarks, that Lord Coke has assigned an inade-
quate reason for the degree of diligence which is de-
manded of a pawnee ; and the true reason is, that the
}aw requires nothing extraordinary of him.
iy) Law of Nisi Prius, 72. (4)
(z) Ld. Raym. 917- {a) Ow. 124.
(h) Poth. Depcft, n. 47. Nantissement, n. 35.
(-1) See Finiirnne v. Small. 1 Esp. N. P. €. 315. ante, p. 76. 1-.
12^
82 THE LAW OF BAlLMExNTS.
But, if the receiver in pledge icere the only hailce 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 oini ;" for, even if Cuius have anahsolutc
undivided property in goods, jointly or in common with
[ S3 ] Septimius, he is bound by rational, as well as positive
law, to take more care of them than of his oun, unless
he be in fact a prudent and thoughtful manager of his
own concerns; since every man ought to use ordinary
diligence in aft'airs which interest another as well as him-
self : " Aliena ncgotia," says the emperor CoNSTANTlNE,
" exacto officio geruntur."(f)
The conclusion, therefore, drawn by Sir Edward CoJtC,
is no less illogical than his premises are weak ; but here
I must do M. Le Brnn the justice to observe, that the
argument on which his whole system is founded, occur-
red likewise to the great oracle o? English law ; namely,
that a person who had ^iprcpcrty in things committed to
his charge, was only obliged to be as careful of them as
of his own goods ; which may be very true, if the sen-
tence be predicated of a man ordinarily careful of his
own ; and, if that was Le Brun's hypothesis, he has done
little more than adopt the system of Godcfroi, who ex-
acts ordinary diligence from a partner and a coproprictor,
but requires a higher degree in eight of the ten prece-
ding contracts.
Pledges for debt arc of the highest antiquity ; they
were used in very early times by the roving Arabs, one
of whom finely remarks, " tliat the life of man is no
*' more than a pledge in the hands of destiny ;" and the
salutary laws of Moses, which forbade certain imple-
[ 84 ] ments of husbandry and a widow's raiment to be given
in pawn, deserve to be imitated as well as admirotl. The
,V, C.4. 35. 21.
THE LAW OF BAILMENTS. 84
distinction between ijkdging, Mlicre possession is trans-
terrcd to the creditor, and ht/pothccaiion, ^vllere it re-
mains with tlie debtor, was originally Attic ; l)nt scarce
any part of the Athenian laws on this subject can be
i»lcaned from the ancient orators, except what relates to
bottomry, in five speeches of Demosthenes.
I cannot end this article without mentioning a singu- Tui^kish law.
lar case from a curious maiuiscript preserved at Ca7n-
bridge, which contains a collection of queries in T^urkish,
together with the decisions or concise answers of the
Mi'FTi at Constantinople : it is commonly imagined, that
th(! Turks have a translation in their own language of
the Greek code, from which they have supplied the de-
fects of their Tartarian and Arabian jurisprudence :{d)
but I have not met with any such translation, although I
admit the conjecture to be highly probable, and am per-
suaded that their numerous treaties on Mahomedan law
are worthy, on many accounts, of an attentive examina-
tion. The case was this : " Zaid had left with Amru
" divers goods in pledge for a certain sum of money, and
" some ruffians, having entered the house of ^mrw, took
" away his own goods, together with those pawned by
" Zaid.''^ Now, we must necessarily suppose, that the
creditor had by his onm fault given occasion to this rob-
bery ; otherwise we may boldly pronounce, that the Turks [ 85 ]
are wholly unacquainted with the imperial laws of By-
zantium, and that their own rules are totally repugnant
to natural justice ; for the party proceeds to ask, " whe-
ther, since the " debt became extinct by the loss of the
^^ pledge, and since the goods ])awned exceeded in value
'• the amount of the debt, Zaid could legally demand the
•' balance of Amru ;" to which question, the great law
ofHcer of the Othman court ajiswered with the brevity
{(1) Duck de Auth. Jur. Civ. Kom. I. 2. G.
85 THK LAW OF BAILMENTS.
usual on such occasions, Olmaz, It cannot hc.{e) This
custom, we must confess, of proposing cases both of law
and conscience, under feigned names to the supreme
judge, wnose answers are considered as solemn decrees^
is admirably calculated to prevent partiality, and to save
the charges of litigation.
i,aw of hiring. V. The last species of bailment is by no means the
least important of the five, whether we consider the infi-
nite convenience and daily use of the contract itself, or
the variety of its branches, each of which shall now be
succinctly, but accurately examined.
Hiring of a J. Locatio, OX Jocotio-conductio, REI, is a contract by
"^ which the hirer gains a transient qualified property in
£ 86 ] the thing hired, and the owner acquires an absolute pro-
perty in the stipend, or price, of the hiring ; so that, in
truth, it bears a strong resemblance to the contract of
emptio-venditio, or SALE ;(5) and, since it is advantageous
(c)Piibl. Libr Cambr MSS. D6ha. i-'-
(i) D. 19. 2. 25. 7. (/.) Le Briin, p. 03.
THE LAW OF BAILMENTS. 88
Code^ form one connected work^(J) and, when properly
understood, explain and illustrate each other ; nor is it
necessary, I conceive, to adopt the interpretation of M.
De Ferriere, who imagines, that both Justinian and
Gains are speaking only of cases, v^\nc\\ from their nature
demand extraordinary care.(?«)
There is no authority then against the rule, which re- ^arks *^
quires of a hirer the same degree of diligence that all
•prudent men, that is, the generality of manMnd, use in
keeping their own goods, (6) and the just distinction be-
tween borrowing and hiring, which the Jervish lawgiver
emphatically makes, by saying, " if it be an hired thing,
" it came for it;: hire,^^{n) remains established by the con-
current wisdom of nations in all ages.(Q)
If Caius, therefore, hire a horse, he is bound to ride it
(/) Burr. 426. (m) Inst. vol. v. p. 138.
(ji) Exod. xxii> 15.
(6) This principle was recognized in the case of Dean v. Keate,
3 Camp. 4. where the defendant, who had hired a pair of job coach
horses, having himself, instead of calling in a farrier, imprudently
prescribed for one of the horses which had fallen ill, in consequence of
which it died, was holden responsible for the loss, by reason of his
not having exercised that degree of care which might be expected
from a prudent man towards his own horse. But had he called in a
farrier, he would not have been responsible for the medicines he might
liave prescribed. S. C.
In an action for not taking proper care of a hired horse, whereby
his knees were broken, the plaintiff must give some positive evidence
of negligence ; and it is not enough to prove, that the animal was
returned by the defendant with his knees broken, and that before that
time he had often been let out to hire, and had never fallen down-
Cooper V, Barter, coram Le Blanc J. Lancaster Lent assizes, 1810-
3 Camp 5- n.
[(q) And in conformity with the opinion of Sir W. Jones, is the de-
cision of the Supreme Court of New-York, in the case of Miller r.
80 THE LAW OF BAILMENTS.
as moderately, and treat it as carefully, as any man oT
common discretion would ride and treat his own horse ;
and if, through his negligence, as by leaving the door of
his stable open at night, the horse be stolen, he must an-
swer for it ; but not, if he be robbed of it by highway-
men, unless by his imprudence he gave occasion to the
robbery, as by travelling at unusual hours, or by taking
an unusual road ;(7) if, indeed, he hire a carriage and
I 89 ] any number of horses, and the owner send with them his
postilion or coachman. Cuius is discharged from all at-
tention to the horses, and remains obliged only to take
ordinary care of the glasses and inside of the carriage,
while he sits in it. (8)
Since the negligence of a servant, acting under his
master's directions, cxjiress or implied, is the negligence of
the master, (9) it follows, that, if the servant of Corns in-
jure or kill the horse by riding it immoderately, or, by
Salisbury. 13 Johns. Rep 211. ; that if a horse be hired to go on a jour-
ney, and during the due prosecution of the journey, without any ill
treatment by the hirer, become lame, the hirer is not answerable foi*
damajjes.
(7) Vide 2 Lord Raym. 1087.
(8) So, ii horses are hired to draw a private carriage, but are driven
by the servants of the stable keeper who lets them out, he will be
liable for any injury done by them in the course of their journey.
Sammel v. Wright, 5 Esp. N. P. C. 263. But if two persons hire ahorse
and chaise on their joint account, both are answerable for any acci-
dent arising from the misconduct of either in the driving of the chaise
while it is in their joint care. Davey v- Chamberlain, 4 Esp. N. P. C.
223. However, if a person, driving his own carriage, were to invite
another to accompany him, he would not be responsible for any mis.
conduct in the driving by the proprietor of the carriage. S. C.
(9) See Noy's Maxims, c. 44. Bythewood's ed, 217. I Bl. Comm.
431. 1 Lord Raymond, 739. Bush v. Steinman, 1 Bos. and Pul. 404.
Harris v- Baker, 4 M. and S. 27. Nicholson v. Mounsey, 15 East,
THE LAW OF-BAILMENTS.
leaving the stable-door open, suffer tliiev(?s to steal it,
Caius 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 servants, while they act un-
der the authority given by him, damage the furniture by
the omission of ordinary care. At Rome the law was
not quite so rigid ; for Pompomus, whose opinion on
this point was generally adopted, made the master lia-
ble only when he was culpably negligent in admitting
careless guests or servants, whose bad qualities he ought
to have known :(p) but this distinction must have been
perplexing enough in practice , and the rule which, by
(o) Salk. 282. Ld. Raym. 916. (p) D. 19. 2. 11.
384. Bowcher v. Noidstrom, 1 Taun. 368. Ellis v. Turner, 8 T R.
533. But the act must be done in tlie master's service, and in obediv
ence to his orders, for the master is not responsible for an injury wil-
fully committed by the servant, without his knowledge or assent.
Where a servant of the defendant wilfully drove his chariot against
the plaintiff's chaise, by which he was tlnown out and considerably
hurt, but the defendant was not present, nor did he in any manner di-
rect or assent to the act of the servant, it was decided, that the owner
of the chaise could not maintain an action of trespass against the mas-
ter. M'Manus v. Cricket, 1 East, 106. And in a late case, where
an action was brought, and damages recovered for an injury sustained
by the plaintiff's charriot being overturned by the defendant's carriage,
in which it appeared, that the accident arose from the defendant's ser-
vant striking the plaintiff's horses when the two carriages were entan-
gled, in consequence of which they moved forward, and the carriage
was overturned, this distinction was laid down by the court : " If a ser-
" vant driving a carriage, in order to effect some purpose of his own.,
" wantonly strikes the horses of another person, and produce the acci-
" dent, the master will not be liable. But if, in order to perform his
" master's orders, he strikes but injudiciously, and in order to extricate
" himself from the difficulty, that will be negligent and careless con-
*' duct, for which the master will be liable, being an act done m pursu-
" ance of the servant's employment." Croft v. Alison, 4 B. and A. 590,
13
89
3& THE LAW OF BAILMENTS.
making the head of a family answerable indiscriminate-
ly for the faults of those whom he receives or employs,
compels him to keep a vigilant eye on all his domestics,
is not only more simple, but more conducive to the pub-
lic security, although it may be rather harsh in some
[ 90 ] particular instances. (5^) 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 origin ; for the letting of a house or chamber for
hire is by them called bail a loycr, and the letter for
hire, baiUeur, that is, bailor, both derived from the old
verb bailler, to deliver ; and, though the contracts
which are the subject of this Essay be generally confin-
ed 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 on parol, with no other stipulation
than for the price or rent, the lessee is bound to use the
same diligence (1) in preserving the trees, plants, or im-
(7) Poth. Louage, n. 193.
(1) In this case a contract is implied by law, on the part of a tenant
that he will occupy the farm in a husbandlike manner, and the mere
relation of landlord and tenant is a sufficient consideration for the ten-
ant's promise to manajre a farm in that mode, according to the custom
of the country. Powley v. Walker, 5 T. R. 573. Leigh v. Hewit,
4 East, 154. The repair of the fences also devolves upon the tenant;
and if any injury accrues to another by reason of their being out of
repair, the action should be brought against the occupier, and not tiie
owner of the fee. " It is," Lord Kenyon, C. J. observed, "so noto-
" riously the duty of the actual occupier to repair the fences, and so
" little the duty of the landlord, that, without any agreement to that
•' effect, the landlord may maintain an action against the tenant for not
" so doing, upon the ground of the injury done to the inheritance."
Cheelham v. Hampson, 4 T. R. 318. Payne v. Rogers, 2 H. Bl. 350.
Vide Gibson v. Wells, 1 Bos. and Pul. N. R. 290. Brown v. Crump.
1 Marsb R. 66f
THE LAW OF BAILMENTS. 90
|)lenients, tijat. every prudent person would use, if the or-
chard, garden, or farm, were liis own.(ii)
2. Locatio operis, which is properly subdivisible into Hiring of
work,
two branches, namely, facitndi, and mercium vehenda-
rim, has a most extensive influence in civil life ; but the
principles by which the obligations of the contracting
parties may be ascertained, are no less obvious and ra-
tional, than the objects of the contract are often vast
and important. (r)
If Tidus deliver silk or velvet to a tailor for a suit of [ 91 ]
clothes, or a gem to a jeweller to be set or engraved,
or timber to a carpenter for the rafters of his house, the
tailor, the engraver, and the builder, (2) are not only
(r) It may be useful to mention a nicety of the Latin Language in the
application of the verbs locare and conducere ; the employer, who gives
the reward, is locator operis, but conductor operarum ; while the party
employed, who receives the pay, is locator operarum, but conducter operis.
Heinecc. in Pand. par. 3 s.320. So, in Horace,
" Tu secanda marmora
" Locas" —
which the stonehewer or mason eonduxit.
(2) Contracts of tliis nature caa only arise from the mutual assent of
both parties ; for persons of the above description are not, like com-
mon carriers, innkeepers or farriers, obliged to perform the work be-
longing- to their respective occupations, but having performed it ac-
cording to their undertaking, thej^ are entitled to detain the article
until they are paid the charges for their workmanship. Elsee v.
Gatward, 5 T. R. 150. ante, 54. n. 4. The obligation of restoring the
subject of the bailment, after the object for which it was deposited
has been completed, must therefore be qualified by this right of lien.
And in any of the above cases, wherever a debt accrues to the bailee
from the bailor, in consequence of the bailment, as when the tailor
has made the suit for which the cloth was delivered. 2 Roll. Abr. 92.
(M.) pi- 1- ; or the jeweller has set or engraved the seal ; or where a
hosre has been agisted by the farmer, or corn ground by the miller,
[ (r) Where a chattel is let for hire, the bailor is not bound to keep
it in repeir ; it is the bailee's business. Taylor v. Whitehead, Dong.
720. Pomfret v. Bicroft, 1 Saund, 321.
Ql THE LAW OF BAILMENTS.
obliged to perform their several undertakings in a work-
manly manner, (s) but since they are entitled to a reward,
either by express bargain or by implication, they must
also take ordinary care of the things respectively bailed
to them : and thus, if a horse be delivered either to an
agisting farmer for the purpose of depasturing in his
(.?) 1 Ventr. 268. erroneously printed 1 Vern. 268. in all the editions
of Bl. Coram, ii. 452. The innumerable multitude of inaccurate or idle
references iu our best reports and law tracts, is the bane of the student
and of the practistr.
Chase v. Westmore, 5 M- and S. 180, the bailee has a lien upon the
subject of the bailment, which he cannot be compelled to re deliver
until his demand has been previously satisfied. This right, bj the
common law, attaches only upon the particular article in respect of
which the charges have been incurred, but may be extended, by
agreement between the parties, to all the articles in the possession of
the person entitled to it, not only for the charges with respect to them,
but also for charges upon articles previously delivered, but not satisfied-
Kirkmanv. Shawcross, 6T.R. 17. Rushforth v. Hadfield,6 East, 519.
7 East, 224. But where a quantity of goods are delivered in sepa-
rate parcels at different times, yet if the agreement under which the
work is done be entire, tlie right of lien attaches upon each part for
the expenses arising with respect to the whole. Blake v. Nicholson,
3 M. and S. 167. Chase v. Westmore, 5 M. and S. 181. A more
extended lien, however, may exist by a special agreement between
the parties ; and where a person has given notice to his employer that
he will not take in goods, without having alien for his general balance,
and goods are sent after such notice, then the bailee can detain the
bailment until he is paid all that is due to him. Persons also in par-
ticular trades, as dyers, bleachers, &c. may join in such resolution, and
their customers, who have had notice of it, will be bound by its terms.
Kirkman v. Shawcross, 6 T. R. 14. A bailee, having a qualified
property in the subject of the bailment, and being responsible to his
bailor for the safe custody of it, may maintain an action for any injury
which it may sustain. The bailor may also have an action, but not
both of them, for he that first begins the action must go on with it, and
judgment obtained by one is a good bar to the action of the other.
Flewellin v. Rave, 1 Bulstrode, 69. Booth v. Wilson, 1 Barn, and
Aid. 59. J Wms,' Saund. 47 e. a. 1. 2 Bl. Comm. 395.
THE LAW OF BAILMENTS. 91a.
meadows, or to an hostler to be dressed and fed in his'
stable, the bailees are answerable for the loss of the
horse, if it be occasioned by the ordinary neglect of
themselves or their servants. It has, indeed, been ad-
judged, that, if the horse of a guest be sent to pasture
by the oivncr''s desire, the innholder is not, as such, re- L "^ J
sponsible for the loss of him by theft or accident ;{t)
and in the case of Mosley and Fosset, an action against
an agister for keeping a horse so negligently that it was
stolen, is said to have been held maintainable only by
reason of a special assumption ;(m) but the case is dif-
ferently reported by Rolle, who mentions no such rea-
son ; and, according to him. Chief Justice Popham ad-
vanced generally, in conformity to the principles before
established, that, " if a man, to whom horses are bailed
*' for agistment, leave opeu the gates of his field, in con-
" sequence of which neglect they stray and are stolen,
" the owner has an action against him :" it is the same
if the innkeeper send his guest's horse to a meadow ofj^^^- concem-
his oivn accord, for he is bound to keep safely all such '"^ >nn-hoid*
things as his guests deposit xvithin his inn,{^) and shall
not discharge himself by his own act from that obliga-
tion ; and even when he turns out the horse hy order of
the owner, and receives pay for his grass and care, he is
chargeable, surely, for ordinary negligence, as a bailee
for hire, though not as an innkeeper by the general cus-
tom of the realm. It may be worth while to investigate
the reasons of this general custom, which, in truth, means
no more than common law concerning innholders.{t«)
(0 8 Rep. 32. Calye's case.
(m) Mo. 543. l-Ro A.br. 4.
{w) Reg. Oiig 105. a. Noy. Max. ch. 43.
(3) See page 94 c. n, 5.
93 THE LAW OF BAILMENTS.
Although a stipend or reward in money be the essence
of the contract called locatio, yet the same responsibility
for neglect is justly demanded in any of the innominate
contracts, (4) or whenever a valuable consideration of
any kind is given or stipulated. This is the case where
the contract do ut des is formed by a reciprocal bailment
for use ; as if Robert permit Henry to use his pleasure-
boat for a day, in consideration that Henry will give him
the use of his chariot for the same time ; and so in ten
thousand instances, that might be imagined, of double
bailments : this too is the case if the absolute property of
one thing be given as an equivalent for the temporary or
limited property of another, as if Charles give George a
brace of pointers for the use of his hunter during the
season. The same rule is applicable to the contract
facia ut facias, where two persons agree to perform re-
ciprocal worJcs ; as if a mason and a carpenter have each
respectively undertaken 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 respective
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 contract do ut facias, or
facio ut des ; and in all these cases, the bailees must an-
swer for the omission of ordinary diligence in preserving
the things with which they are intrusted : so, when Jacob
undertook the care of Laban's flocks and herds for no
less a reward than his younger daughter, whom he loved
[ 94 ] so passionately, that seven years ivere in his eyes like a few
days, he was bound to be just as vigilant as if he had
been paid in shekels of silver.
(4) See Halifax's Analysis of the Roman Civil Law, 62. Wood's In-
stitutes of the Civil Law, 206. 2- Bl. Coram- 444. where the nature
of this species of contract is explained and illustrated.
THE LAW OF BAILMENTS. 94
Now, the obligation is precisely the same, as we have
already hinted, (a:) when a man takes upon himself the
custody of goods in consequence and consideration of an-
other gainful contract; and though an innholder be not
paid in money for securing the traveller's trunk, yet the
guest facit ut faciat, and alights at the inn, not solely
for his own refreshment, but also that his goods may be
safe : independently of this reasoning, the custody of the
goods may be considered as accessary to the principal
contract, and the money paid for the apartments as ex-
tending to the care of the box or portmanteau ; in which
light Gaius and, as great a man as he. Lord Holt, seem
to view the obligation ; for they agree, " that, although
" a bargeman and a master of a ship receive their fare
" for the passage of travellers, and an innkeeper his pay
'.' for the accommodation 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 obliged to take ordinary care of those goods ;
" as a fuller and a mender are paid for their skill only,
'* yet are answerable, ex locato, for ordinary 'neglect, [if
" the clothes be lost or damaged. "(?/)
In whatever point of view we consider this bailment,
no more is regularly demanded of the bailee, than the
care which every prudent man takes of his own property ;
but it has long been holden, that an imikeeper is bound
to restitution, if the trunks or parcels of his guests, com-
mitted to him either personally, or through one of his
agents, be damaged in his inn, or stolen out of it by any
person whatever ',{z){S) nor shall he discharge himself
(x) p. 49, 50.
(y) D. 4. 9. 5. and 12 Mod. 487.
(z) Year B. 10. Hen. VII. 26. 2 Cio. 189.
(5) This proposition is laid down rather too extonsirelv ; for an inn-
94a. 'f^I*^ LAW OF BAILMENTS.
from this responsibility by a refusal to take any care of
the goods, because there are suspected persons in the
keeper will uot be responsible, if the guest be robbed by his own
servant, or companion, or any one whom he desires to be lodged with
him ; for in these cases, the loss is rather attributable to the guest, than
to any fault on the part of the innkeeper. Calye's Case, 8 Rep. 33.
Noy's Maxims, Bythewood's ed. 213. Edwards' Case, Cro. Eliz. 285,
Burgess v. Clements, 4 M. and S. 311.
The liability of an innkeeper, as defined by a writ of trespass in the
Registrum Brevium, fo. If 5. Fitz. N. B. 94. against an innkeeper, for
the loss of the goods of his guest, vvhich is the foundation of the com-
mon law upon this subject, and upon which Calye'scase, 8 Rep. 32. is
a commentary, is not so extensive as that of a common carrier ; yet up-
on principles of public policy is greater than what, according to the
principle contained in this essay, would be exacted from him by
reason of his reward. According to the terms of that writ, an inn-
keeper, who keeps a common inn for the entertainment of travellers*
is bound to take care of the goods and chattels of his guest, which
are within his inn, without loss or damage, so that no injury arises
by any means through the default of him, or his servants. J^ide Beedle
V. Morris, Cro. Jac. 224. Cross v. Andrews, Cro. Eliz. 622. Noy's
Maxims, Bvthewood's Ed. 213. 1 Com. Dig. 298. 1 Roll. Abrid. 2.
(D.)1.4. "
An inn may be defined to be a house kept open publicly, for the
lodging and entertainment of travellers and others, paying a reasona-
ble compensation for the acccommodation which is professed to be
given. Calye's case, 8 Rep. 32. Parkhurst v. Foster, Carth 417.
Thompson v. Lacy, 3 Barn, and Aid. 285. It is said if a man puts a
sign at his door, and harbours guests, that shall be deemed a common
inn, and the owner chargeable as an innkeeper : and that if, after
taking down the sign, he continues to entertain travellers, it shall be
deemed a common inn, as if he had a sign. 2 Roll. Rep. 344, 5. A
sign is not essential to an inn, but is evidence of it. Per Holt, C J.
in Parker v. Flint, 12 Mod. 255. But a person who lived at Epsom,
and lodged strangers in the season for drinking the waters, and dressed
victuals for them, and sold beer to his lodgers, and to none else, and
found hay for their horses, is not an innkeeper, nor can bis house be
considered as an inn. Parkhurst v. Foster, Carth. 417. 5 Mod. 427.
1 Salk. 387. S. C.
A house of public eDtertaioment in London, in this case, a tarern
THE LAW OF BAILMENTS. 94}).
house for lohose conduct he cannot he answerahle :{a) it is
otherwise, indeed, if he refuse admittance to a traveller
(a) Mo. 78.
and coffee-house, where lodging and entertainment are provided for
travellers and others indiscriminately, but which was not frequented
by stage-coaches, and waggons, and had no stables belonging to it,
was considered as an inn, and the owner subject to the liabilities of an
innkeeper, even where the guest did not appear to have been a travel-
Jer, but one who had previously resided in ready furnished lodgings.
Thompson v. Lacy, 3 Barn, and Aid. 285.
In a case where a question arose whether a coffee-house came with^
in the description of an inn in a policy of insurance against fire, enu-
merating the trade of an innkeeper with others as doubly hazardous,
Lord Ellenborough, C. J. observed, " I think a coffee-house is not an
" inn, within the meaning of the policy. Horses, waggons, and
" coaches come to an inn, there are stables and outhouses attached to
" it, people are going to these with lights at all hours; hence there is
" an increased danger of fire, and the trade of an innkeeper is conside '.
" red doubly hazardous. But the trade of a eoffee house keeper is of
" a very different description." Doe, ex dem. Pitt, v. Laming, 4 •
Camp. 77.
Common inns, according to the commentary in Calye's case, 8 Eep. Gucsf&.
32., were instituted for passengers and wayfaring men, for the latin
word for an inn is diver sorium, because he who lodges there is quasi
divertens se a via, and theref.^^e if a neighbour who i? not a traveller,
at the request of the innkeeper, lodges there as a friend, and his goods
are stolen, he shall not have an action. Fide 1 Foil. Abr. 3. (E.)pl. 4.
So if a man hires a chamber for a term, or sojourns in an inn upon a
special agreement. Latch. 127. Moore, 877. Per Holt, C. J. in
Parker v, Flint, 12 Mod. 254. or if a person be a guest, but deliver
the goods to an innkeeper upon another account. 1 Roll. Abr. 3 (E.)
pi. 1. the innkeeper is not chargeable. But a person who continues
for a week or more ; or goes out, and says that he will return at night,
Drope v. Thaire, I Latcli. 127. Moore, 8C7. Gelley v- Clark, Cro.
Jac. 189. or if, during a temporary absence, he leaves goods, as a
horse, from which the owner may derive a profit on account of their
keep, Gelley v. Clark, Cro. Jac. ISO. Buller, N. P. 72. Bridgeman's
Ed. York v. Grindstone, 1 Salk. 388. 2 L. Ray. 860. S. C such person
will be entitled to be considered as a guest- But if the goods are
11
94c. THL: law of BAlLMENTri.
because lie really has no room for him, and the travel-
ler, nevertheless, insist upon enter in<^, and place his bag-
gage in a chamber without the keeper's consent.(6)
{b) Dy. 158. b. 1 And. 29.
sucli as the innkeeper can derive no benefit from on account of their
keep, a guest will not continue to be such after ho has quitted the inn,
Gellcy V. Clark, supra. So if a servant come into an inn and ask to
leave his master's goods till the next market day. and the innkeeper
refuses, because his house is full of parcels, and the servant sit dowif
and drink as a guest, and put the goods behind him, and they are lost,
the innkeeper is liable to the master Bennett v. Mellor, 5 T. R. 273.
Duties of an An innkeeper is bound to receive a guest, having room for him, and
c^peJ- jf Y\e refuse, ivithout a reasonable ground for his refusal, as on a false
pretence that his liouse is full, he will be liable to an action. Dyer,
158. b. 1 Roll. Abrid. 3. (F.) pi. 1. 2 Roll. Rep. 345. Carth. 418.
1 Hawk. P. C. 225. 52. Per Duller and Grose, J. in Bennett v
Mellor, 5 T. R. 274. But an innkeeper does not absolutely engage to
receive every person who comes to his house, but only those who are
capable of paying a compensation suitable to the accommodation pro-
vided. Per Abbot, C. J. and Bailey, J. in Thompson v. Lacy, 3
Barn, and Aid- 285.
An innkeeper is also bound to take care of the goods of his guest
being within his inn, although the guest neither delivers them to the
innkeeper, nor acquaints him with them.(T) Calye's case, 8 Rep. 33.
[(t) Jn the ease of Quinton v. Courtney, Hayw. North Car- Rep.
41. a traveller who had saddle bags, in which were two hundred dollars,
upon alighting at tiie inn, delivered the bags to a servant of tlic
tavern-keeper, but did not inform either the servant or tavern-keeper
that money was in the bags. These bugs were placed in the bar-
room, and vvcre afterwards found on the lot, cut open, and the money
gone, it was held that the innkeeper was liable. So in the case ai
Clutev. Wiggins, 14 Johns. Rep. 173. It was decided thai to make
the innkeeper liable it was not necessary that the goods should be
delivered into his special keeping; nor to prove negligence. But if
the truit was hot reposed in the innkeeper, but in another person, who
ivas not in the capacity of a servant, but occasionally in the business
of the family, the case is taken out of the general rule, and the inn-
keeper is not liable. 1 Yeates' Rep. 34.
THE LAW OF BAILMENTS. 95
^ Add If) this, that if he fail to provide honest servcmis,
and honest inmates, according- to the confidence reposed
A'oy's Maxims, 92- Bj-tbcwood^s Ed. 213. But if nn innkeeper re-
fuse to receive a guest because Iiis house is really full, and j'et the
party says lie will sliift for liimself, if he be robbed, the innkeeper is
discharged. White's case, Dyer, 15R. b. Doct. and Stu. 23?-, 239- F.
jV. B. 94. 95. Dyer, 266. This liability extends to all goods, by the
loss of which damage may arise to the guest, as deeds, bonds, or other
specialties, but doos not extend to any personal injury to the guest •
but only to his moveables. C'alye's case, 8. Eep. 33. 2 Roll. 53.
Dyer, 5. pi. 2. Yelv 68. But they must be within the inn at the time
of the loss, for if the horse of the guest be put out to pasture at his
own desire, and it is then stolen, tlie innkeeper will not be responsible .
but if iie do it without tlie guest's order, he will remain liable. C'alye's
case, 8 Rep. 32. Noy's Maxims, 93. Bythcwoods Ed. 213. So if the
guest leave the goods in an outer court, in consequence of which they
are stolen, the innkeeper is not responsible. JVoy's IMaxims, 93.
Bythewood's Ed. 213.
A traveller for orders who put up at the defendant's inn, had appi'O-
priated to him, at his own desire, a private room whicli opened into a
gateway leading to the street, for the purpose of showing his goods to
bis customers. After dining in the traveller's room, where upon his
arrival he had been conducted, and his goods placed, he removed to
tlie private room, and while displaying bis goods, which consisted
chiefly of articles of jewellery, he was twice interrupted by a stranger.
Tliere was a key to the door, wliich he was told he might have, but
upon his leaving the inn he did not' lock tlie door, nor did he know
that he even shut it, and upon his return in the evening, two of his
boxes were missing. In an action against the innkeeper for the loss
of the goods, a verdict was found in his favour, which was afterwards
sanctioned by the court, upon the ground, that tiie room was not as-
signed to the traveller merely as a guest, but for a purpose for which
the innkeeper was not bound to provide it, and wliich led to the intro-
duction of persons over whom be bad no controul, and that after the
interruption of the stranger, it became the c'uty of the traveller to use
ordinary care for the preservation of liis goods, and that it was owing to
his neglect, and not to the fault of the innkeeper, that tlic loss had
happened Burgess v. C'b mrnts, 4 iM. and S. 306.
J'jom this obligation the innkeeper cannot discharge hir7i=plf. and de-
95a. THE LAW OF BAILMENTS.
ill him by the pubhc, his negligence in that respect is
highly culpable, and he ought to answer civilly for their
feat the provisions of the law by anj- act of his own, as by putting bis
guest's horse out to pasture without his consent- Cal3e's case, sup.
So, " it is DO excuse for an innkeeper to say that he delivered the key
of the chamber-door to his guests, in which he is lodged, and that he
left the chamber door open ; but he ought to keep the goods and chat-
tels of his guests in safety." 22 U. VI. 21. ll H. IV. 45. 42 Ed. HI.
11. Calye's case, 8 Rep. 33. But if there is evidence that he accepted
the key, and took upon himself the care of his goods, it will be for a
. jury to determine whether this evidence of his receiving the key proves
that he did it animo custodiendi, and with a purpose of exempting the
innkeeper, or whether he took it merely because the landlord forced it
upon him, or for the sake of securing greater privacy, in order to pre-
vent persons from intruding themselves into his room. Burgess v. Cle-
ments, 4 M. and S. 310. Nor can he discharge himself by a plea that
lie was sick, and of non-sane memory, at the time the guest lodged with
hisn, for an innkeeper must at his peril keep safely his guest's goods ;
and if he be sick, his servant then ought carefully to look to them.
Cross v. Andrews, Cro. Eliz. 622. The liability of the innkeeper ex-
tends only to losses which arise from bis want of care, or that of his
servants, and not to an injury committed by the King's enemies. Plow.
Com. 9. 1. Nor to any damage arising from the default of the guest.
Calye's case, 8 Rep. 20. Nov's Maxims, By the wood's Ed. 213. And
therefore, if an innkeeper requires his grfest to lock up his goods in
such a chamber, or he will not warrant their safety, and the guest suf-
fers them to lie open in an outer court, the host is not liable if they are
stolen. Sanders v. Spencer, Dyer, 2GC. I. Noy's Maxims, Bythewood's
Ed. 213.
The keeper of an hotel is not liable to pay for the washing of the lin-
en of the guests at liis house. Callard v. White, 1 Stark. N P. C. 171.
Kiglitof lien. An innkeeper, like a common carrier, is entitled to a right of lien
upon the goods of the guest, and may detain them for what is due to
him for the lodging and entertainment provided, for the guest, until
the debt is paid. York v. Grindstone, 1 Salk. 388. Thompson v. Lacy,
3 B. and A. 285. Nor can the guest defeat this right by directing that
the horse shall not have any more food, but he shall pay for it after-
wards, otherwise t^-.e innkeeper shall lose the horse, which is his securi-
ty. Per Holt, C. J. Skinner, 648. But on the other hand, the inn-
kcrpcr cr.nnotseil tlie goods detained ; for, like a distress at common
THE LAW OF BAILMENTS. 96b.
acts, even if they should roh the guests who sleep in his
chambers. (c) Rigorous as this law may seem, and hard
(c) 1 Bl. Comm. 430.
law, the detention is only to insure the payment due to the innkeeper.
2 Roll. Abr. 85 A. pi. 5 Bulst. '207- Bac. Abr. tit. Inns. He has no
power, therefore, to sell his guest's horse when he has eaten his value,
but such rig-ht may exist by special custom, as in London and Exeter.
2 Roll. Abr. 85. (A.) pi. 6. Moor, 876. Baldway v. Ouston, 1 Vent- 71.
In trover aj^ainst an innkeeper, for the sale of horses belonging to his
guests, to indemnify him for their keep, which exceeded their value, it
was liolden on demurrer, that an innkeeper has no power to sell horses,
except within the City of London, and that when the horses had been
once out, the power of detaining them for what was due before did not
subsist at their coming in again. Jones v. Pearle, 1 Sir. 556.
The remedies against an innkeeper for the loss or injury of goods pleadings,
are similar to those against a common carrier. See post, 103 n- 3. A
master may maintain an action in his own name for property stolen
from his servant, while a guest at the defendant's inn. Beedle v. Mor-
ris, Cro. Jac. 224. Drope v. Thaire, Latch. 127. Robinson v. Walter,
1 Roll. Abrid. 3. 1. 40. Bennett v. Mellor, 5 T. R. 273. But it ap-
pears that if a person take another's horse to an inn, without the own-
er's consent, where it is stolen, the owner cannot maintain an action
against the innkeeper, for he was not his guest. 1 Roll. Abr. S. 1. 32.
See 1 Com. Dig. 297. Yelv. 162. In an action against an innkeeper
for property stolen out of his inn, the declarations must allege that he
kept a common inn. Saunders v. Spencer, Dyer, 266. C. but the cus-
tom of the realm need not be set out, and if it is, a mis-recital will not
prejudice the case. Latch. 127. Chitty on Pleading, 2 vol'. 322. n. e.
In an action of trover against an innkeeper for a horse detained for
his keep, a denial is not evidence of a conversion, unless the plaintiff
tender what the horse has eaten out, and it is a question for the jury
to determine whether sufficient were tendered, Anon. 2 Show. 161.
Buller's Nisi Prius, Bridgeman's Ed. 72.
To sustain this action, the plaintiff must prove all the material alle- Evidence,
gations in his declaration, as, in addition to proof of the loss of the
goods, that the defendant kept a common inn, and that he, his son, or
servant, was a guest at the time, and that the goods were brought witli-
ia the inn, and remained under the care of the defendant. Buller N. P.
72. Bridgeman's Ed. But it is not necessary to prove negligence on
96 THE LAW OF BAILMENTS.
as it may actually be in one or two particular instant'c^
Ch. J. Kent combats the doctrine of Sir W. Jones, and shows con-
clusively, that by the common law, a mandatary, or one who undertakes
to do an acl! for another without reward, is not answerable for omitting
to do the act; and is only responsible where he attempts to do it, and
docs it amiss. In Rutgers v. Lucet, 2 Johns. Ca. 92. the court
sav, that a mere agreement -to undertake a trust, in futuro, without
THE LAW OF BAILMENTS. 101
be shamefully defrauded, find them on the premises ;(s)
and, as they cannot be distrained and sold without his
ordinary default at least, the owner has a remedy over
against him, and must receive a compensation for his
loss :{t) even if a depositary were to remove or conceal
his own goods, and those of his depositor were to be
seized for rent-arri^re, he would unquestionably be
bound to make restitution ; but there is no obligation in [ 102 ]
the bailee to suggest ivise precautio7is against inevitable
accident ; and he cannot, therefore, 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 distinction,
before taken, in regard to loans, {u) between an obliga-
tion to restore the specific things, and a power or neces-
sity of returning others equal in value, holds good likewise
in the contracts 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 his famous law. Celebrated
on which the judicious Bynkershoek has learnedly com- '''^^°^"^^'^^""*-
mented, " if an ingot of silver be delivered to a silver-
" smith to make an urn, the whole property is transfer-
" red, and the employer is only a creditor of metal equal-.
" ly valuable, which the workman engages to pay in a
" certaiia shape :"(zt') the smith may consequently apply
(s) Burr. 1498, Sic (/) 3 Bl. Comm. 8. ^
(u) P. 64, 65.
(le) D. 19. 2. 81. Bynk. Obs. Jur. Rom. lib. VIII.
compensation, is not obligatory ; but when once undertaken, and the
trust actually entered upon, the bailee is bound to perform it according
tt) the terms of his agreement. See also, Elsee v. Gatwood, 5. Term
Rep. 150. opinion of Ashurst, J. and 1 Esp. N. P. Cas. 75.
A mere mandatary who receives no reward, is liable only for /rand
or ^ross neglect. Stanton t. Bell, 2 Hawks. 145.]
102 THE LAW OF BAILMENTS.
it to his own use ; but if it perish, even by unavoidable
mischance or irresistible violence, he, as owner of it,
must abide the loss, and the creditor must have his urn
in due time. It would be otherwise, no doubt, if the
same silver, on account of its peculiar fineness, or any
uncommon metal, according to the whim of the owner,
[ 103 ] were agreed to be specifically redelivered in the form of
a cup or a standish.(x)
Hiring of car- 3^ Locatio OVcHs MERCIU3I VEHENDARUM is a COU-
nage. -i
tract which admits of many varieties in form, but of
none, as it seems at length to be settled, in the substan-
tial obligations of the bailee.
[(x) If a person having charge of the property of another, so con-
founds it with his own, that it cannot be distinguished, he must bear
all the inconvenience of the confusion, and he must distinguish his own
property, or lose it; and if damages are given against him, it will be to
the utmost value of the article. Hart v. Ten Eyck, 2 Johns. Ch. Ca.
108. Lupton V. White, 15 Ves. Rep. 32 .
But where no inconvenience results to the owner from the mixture,
and the property is lost by an accident totally unconnected with the mix-
ture, there appears to be no good reason why the bailee should bear
the "loss. This distinction is sanctioned by the opinion of Ch J.
Spencer, in the case of Seymour v. Brown, 19 Johns. Rep. 44. Thus,
where a person sent to a miller a quantity of wheat, to be exchanged
for flour, and the miller mixed it with a mass of wheat of the same
quality belonging to himself and others ; but before the flour was de-
livered to the plaintiif, the mill of the defendant, with all its contents,
wheat and rye flour, was entirely destroyed by fire, from some un-
known cause, and without any fault or negligence on the part of the
defendant; it was held that the defendant was not responsible for the
loss of the plaintiff's wheat, there being no contract of sale by which
the property was transferred to the defendant. A similar decision was
also made in the case of Slaughter v. Green and others, 1 Rand. Vir-
gin, Rep. 3. where wheat was delivered at a mill to be ground, upon an
agreement that the miller should return to the farmer a given quantity
of flour for so many bushels of wheat, the miller was considered as a
bailee, and not a purchaser ; and therefore the wheat being consumed
THE LAW OF BAILMEiNTS. 103
A Carrier for hire ought, by the rule, to be responsible
only for ordinary neglect ;(8) and in the time of Henry
ty accidental fire, was held not responsible for it. And this conclu-
sion would not be, altered by au understandipg between the parties,
that the miller is not bound to return flour made from that identical
wheat, but flour of a certain quality made from any wheat in the mill.
Where wheat is delivered at a mill to be ground, upon an agree-
ment that the miller shall return to the farmer a g-iven quantity of flour
for so many bushels of wheat, tlie miller is a bailee, and not a purchas-
er; and therefore, if the wheat be consumed by accidental fire, the
miller will not be responsible for it- The conclusion will not be alter-
ed by an understanding between the parties, that the miller is not
bound to return flour made from that identical wheat, but flour of a
certain quality made from any wheat in the mill. Slaughter v. Green
et al. 1 Randolph's Rep. 3. See also the case of T. & H, Seymour v.
Brown et al. 19 Johni. Rep. 44. J
(3) This extensive and important species of bailment, far
more so than any of the others, from its daily concurrence to an
immense extent in this great commercial country, and the nume-
rous questions of importance which are continually arising upon
it, requires to be examined more in detail. For this purpose,
in the examination of the subject, it is proposed to consider, first,
who are those persons who may be considered as common carriers,
or, who, not being such, nevertheless render themselves liable to
similar duties by their private engagements ; secondly, the duties
af a common carrier ; and, thirdly, his rights. As, however, the
effect of a bailment of this nature is very frequently to introduce
another party, who is entitled to demand a delivery of the goods,
and to insist upon a compensation for the loss or damage they
may sustain in the course of their conveyance, it is proposed to
consider, fourthly, the eflect of a delivery of goods to a carrier
on behalf of a purchaser, as between the consignor and the con-
signee, and the right of the consignor to stop them intransittr;
and in the last place will be considered, the remedies which mav
16
103 THE LAW OF BAILMENTS.
VIII., it appears to have been generally holden, *' that
" a common carrier was chargeable, in case of a loss by
be adopted against the carrier for the breach of his engage-
ments, and the evidence required on those occasions.
Descript'on of Persons who come within the description of common carriers,
rim'"*^" ^^^ ^^^ ^^^ persons who carry goods generally for liire. But no spe-
cial agreement for a reward is requisite to bring a person within
this description ; for, since he is entitled by law to a reasonable
reward, he is as much liable as if there were a special agreement
for a sum certain. Bastard v. Bastard, 2 Show. 81. Rogers v.
HeadjCro. Jac 222. Harris v. Packwood, 3 Taun. 272. [Mc'-
Cluies v. Hammond, 1 Ray. Rep. 99. Harrington v. Tyles,
2 Nott & McC, 88.] Within this class of persons are includ-
ed the proprietors of stage-waggons, and of stage-coaches, who
carry goods as well as passengers for hire, the master and own-
er of ships, hoymen, lightermen, barge-owners, ferrymen, and
wharfingers. [But a person who receives and forwards goods,
taking upon himself the expenses of transportation, for which he
[ 103a. ] receives a compensation from the owner of the goods, but has
no concern in the vessels by which they are forwarded, or inte-
rest in the freight, is not a common carrier. Roberts v. Turner,
12 Johns. Rep. 232.]
Proprietors of. rpj^ proprietors of staee-waggons have at all times been con-
stage wag- f f to oo
gons. sidered as common carriers, and appear to be peculiarly the ob-
ject of the law in this respect. [If a waggoner by whom goods
are sent to be delivered to A. sell them openly in a street of a
city to B. the sale vests no property in the purchaser. Leeky
V. McDermott, 8 Serg. & Raw. 500,] See cases, infra. So
where a person who brought goods to London on his private ac-
count,*and on his return in the country took such goods as he
could obtain ; the court decided, that any man undertaking for
hire to carry the goods of all persons indifferently, was so far a
common carrier as to protect the goods from a distress. Gis-
bourne v. Hurst, 1 Salk. 249-
Proprietors of rpj proprietors of stace-coaches, in the conveyance of pas-
stage-coaches, f f a 1 . I • •
sengers, are not liable for the same responsibility which is im-
THE LAW OF BAILMENTS, lOSeu
'• robhenj, only when he had travelled by loays dangerous
*^ for robbing, or driven by night, or ut any inconvenient
posed upon them in the carriage of goods ; and if their eraploy-
ment extended only to the former service, they would not be
considered as common carriers. Christie v. Griggs, 2. Camp.
79. White v. Boulton, Peake N. P. C. 80. Aston v. Heaven,
2 Esp. N. P. C. 533. If, however, they carry goods as well as
passengers for hire, they will come within that description ; and
accordingly, in an action for the loss of a passenger's luggage, it
was decided, that if a coachman commonly carry goods, and take
money for so doing, he will be in the same case with a common
carrier, and is a carrier for that purpose, whether the goods be-
long to a passenger or a stranger. Per Jones, J. in Lovett v.
Hobbs, 2 Show. 128. A distinct charge for the goods as well .
as for the passenger was formerly deemed to be necessary ; and
in an action against the master of a stage-coach, for the loss of
a trunk belonging to the plaintiff, (a passenger,) which was dc:-
livered to the driver, and stolen in the course of the journey, it
was holden that this action did not lie against the master, and
that a stage-coachman was not within the custom as a carrier is,
unless such as take a distinct price for the carriage of goods as
well as persons, as waggons with coaches. Per Holt, C. J. in
Middleton v. Fowler, Salk. 282. So a hackney coachman was
holden not to be a common carrier within the custom of the
realm, and could not be charged for the loss of a passenger's
goods, except where there was a special agreement and money
paid for the carriage of the goods. Per Holt, C. J. in Upshare
v. Aidee, Corny. 25. But since it may reasonably be presum-
ed, that the care of the luggage is an inducement for the pas-
senger to take his place, and that the coachmaster, like an inn-
keeper (ante, p. 94.) includes in the fare his charge for such
responsibility ; the same principles of public policy which invest
him with the character and responsibility of a common carrier,
when he charges a distinct price for the carriage of goods, would
appear to require a similar rule when no such charge is made,
lG3b. THE LAW OF BAILMENTS.
" hour ;"{x) but in the commercial reign of Elizabeth,
it was resolved, upon the same broad principles of policy
(x) Doct. and Slud. where ©ften before cited.
but the goods are received as accompanying the passenger. The
point does not appear to have been judicially decided in any
modern reported case ; but Mr. Justice Chambre, in delivering
his opinion in the case of Robinson v. Dunraore, 2 Bus. and Pul.
419. observed, that it had been decided, that if a man travel in
a stage-coach, and take his portmanteau with him, though he has
his eye on the portmanteau, yet the carrier is not absolved from
his responsibility, but will be liable if the portmanteau be lost.
So, in an action for the value of a passenger's trunk, which was
stolen in the course of the journey, and for the carriage of which
no distiuct charge appears to have been made ; the defendant
insisted that he was not responsible for the loss, inasmuch as he
was exempted by a general notice not to be liable for parcels
above the value of 5/., unless entered as such and paid for accor-
dingly : the plaintiff's counsel insisted that the notice applied
only to goods sent to be carried, and not to the case of a pas-
senger's luggage. But Lord Ellcnborough observed, that the
luggage of passengers came within the exception. Clark v.
Gray, 4 Esp. 177. 6 East, 564. S. C. [The practice of car-
rying for hire in a stage-coach parcels not belonging to passen-
gers constitutes the proprietors of the coach common carriers,
and they will be held liable for the loss of such a parcel by the
driver, who was one of the proprietors. Dwight et al. v. Brews-
ter, 1 Picker. Rep. 50.]
Masters of The master of a vessel also comes within the description of a
vessels. common carrier, for he is rather in the nature of a confidential
officer than a servant, although he is paid by the owners. In
the case of Morse v. Slue, 2 Lev. 69. 1 Vent. 190. 228. Sir
Thomas Raymond, 220. which was an action brought against
the master of a vessel for the loss of goods which happened with-
out his default, it was objected that the action should have been
brought against the owners of the vessel, and not against the
THE LAW OP BAILMENTS. 103b.
and convenience that have been mentioned in the case
of innholders, " that, if a common carrier be robbed of
master, who was no more than a servant to them at a certain sala-
ry ; but the court decided that he was responsible as master,
and that the case was not different from a common hoyman, u
common carrier, or innkeeper. See Abbot on Shipping, 234.
4th ed.
[Masters and owners of vessels, who undertake to car-
ry goo is for hire, are liable as common carriers, whether the
transportation be from port to port, within the state, or beyond
sea, at home or abroad, and they are answerable, as well by tlie
marine law as by the common law of England, for all losses not
arising from inevitable accidents, or such as could not be fore-
seen or prevented. Elliot & Stewart v. Rossell & Lewis, 10
Johns. Rep. 1. Clark and others v. Richards, 1 Conn. Rep.
54. 5 Day. Rep. 415.J
The owners of a vessel are also common carriers equally with Owners of
•^ vessels.
a carrier by land, and are liable, in respect of the freight, for
goods spoiled by default of the master ; but they must be charg-
ed on the custom of the realm, or as usually carrying goods for
hire. Boucher v. Lawson, Ca. temp Hard. 1^4. Boson v.
Sandford, Salk. 440. 3 Lev. 258. 1 Show. 29. 2 Show. 478. [ 103c. ]
Skin. 278. 3 Mod. 321. Carth. 58. S. C See Abbott on
Shipping, 231. 4th ed. Asa shipmaster, or keelman who carries
goods from port to port. Dale v. Hall, 1 Wils. 281. So a
hoyman, by the custom of the realm, is a common carrier. 1
Roll. Abr. 2. c. 2. pi. 2. See Wardell v. Moujillyan, 2 Esp. N.
P. C. 693. So an action lies equally against a common barge-
man without any special agreement, as against a common carrier.
Rich, V. Kneeland, Cro. Jac. 330. Hob. 18. And in the same
manner it lies against a ferryman. See p. 108.
[Where the master of a vessel received several hogsheads of
gin on board, to transport from Hartford to Boston, at customa-
ry freight, which was stowed on deck, and ejected during the
voyage by reason of tempestuous weather, it was held that the
103c. THE LAW OP BAILMENTS.
" the goods delivered to him, he shall answer for the va^
" luc of them. "(y)
(y) 1 Inst. 89. a. Mo. 40-2. 1 Ro. Abr. 2. Woodliefe and Curties.
owners were liable for the loss, unless such stowage were au-
thorized by the consent of tlie shipper, or by custom. Barber
V. Brace, 3 Conn. Rep. 9. Smith v. Wright, 1 Ca. Rep. 43.
It is sufficient to subject the owner for the acts of the master,
that the latter is in fact master with the privity of the owner
without any special appointment. Clark et al. v. Richards,
1 Conn. Rep. 54 ]
Wharfingers. So, wharfingers are equally common carriers, between whom
and other carriers no distinction can be made. Ross v. John-
son, 5 Burr. 2825, And in an action for the loss of goods acci-
dentally destroyed by fire, while upon the defendants' premises,
who were wharfingers, and whose duty it was to convey the goods
from the wharf in their lighter to the vessel in the river. Lord
EUenborough, C. J. was of opinion, upon an objection being
made as to their responsibility for theioss, that the liability of a
wharfinger, whilst he has possession of the goods, was similar to
that of a carrier. xMaving v. Todd, 1 IN. P. C. 72. See Cobban
V. Downe, a Esp. N. P. C. 41.
aiuei s sei- ^ rommon carrier is responsible for the acts of his servant or
vants. '
agent whom he employs in the execution of the duty which be-
longs to him ; an'' no '•ontract will be implied between the owner
of the goods and the person whom the carrier may employ for
that purpose ; until they are porformed, his character of a com-
mon carrier continues. See Cavenagh v. Such, 1 Price, 32"8.
And the driver of a stage-coach, to whom a parcel is delivered,
will he presumed to receive it on his master's account ; and the
mere previous delivery of several parcels by the driver, for which
there appears no contract for the payment of a reward, will not
be sufficient to render him a common carrier, so as to make him
responsible for the loss of a parcel intrusted to him upon the
same terms. A habit of carrying goods for hire, or some con-
THE LAW OF BAILMENTS. iGSc
Now, the revjard or hire, which is considered by Sir
Edioard Coke as the reason of this decision, and on
tract indicating that the servant acted as a common carrier, and
not in his ostensible capacity of a servant, is necessary to make
him a carrier. Wilhams v. Cranston, 2 Stark. N, P. C. 82.
In the conveyance of letters by the post established by the officers be-
governraent for the public convenience, and under the guidance "f^'J ^ ^*
of its own officers, regulated by various acts of parliament, the [ lOStl. ]
persons concerned in that employment are not considered as
commoh carriers, although they are personally responsible for
their individual neglect. In an action, therefore, against the
Postmaster-General, for the loss of exchequer bills taken out of
a letter delivered into the office, the court decided, contrary to
the opinion of Holt, C. J., who delivered an elaborate judgment
to the contrary, that the action was not maintainable. Lane v.
Cotton, Ij^otd Raym. 646. 1 Salk. 17. So, upon the same
principles, an action was holden not to lie against the Postmas-
ter-General, for a bank-note stolen by one of the sorters out of
a letter delivered into the post-office. Whitfield v. Lord Le
Despenser, 2 Cowp. 754. See post, p. 110. n.
A private person, who undertakes the carriage of goods, will Piivate per*
be responsible for their safe conveyance, according te the terms
of his agreement, though not as a common carrier. The chief
distinctions which exist between these different persons, appear
to be, that the former is not obliged, like a common carrier, to
undertake the carriage of goods, and is responsible only to the
extent of his contract, and not for that additional degree of re-
sponsibility which is required from a common carrier. See
Coggs V. Bernard, 2 Lord Raym. 909. Hutton v. Osborne,
Selwyn's Nisi Prius, 382. n. (j) 4th ed. Robinson v. Dunmore,
2 Bos. and Pul. 417- Thus, a person who had undertaken the
carriage of goods, and warranted that they should go safe, was
hoklen to be liable, not as a common carrier, but upon his spe-
cial undertaking. Robinson v. Dunmore, 2 Bos. and Pul. 417.
So an action lies against the commander of a ship of war, who
lOSd. THE LAW OF BAILMENTS,
which the principal stress is often laid in our own times,
makes the carrier liable, indeed, for the omission ofordi-
takes the bullion of a private merchant on board, for not safely
keeping and delivering it. Hodgson v. Fullarton, 4 Taun. 787.
An agreement will not be implied on the part of a servant at
an inn, in order to render him responsible for goods left there
for delivery by a carrier, nor will the division of the profits aris-
ing from the porterage of goods, adopted as a mode of remune-
ration, vary his character ; and, in the case of a porter of an inn,
who had charge of all parcels brought to the coach-:ȣBce, and
whose duty it was to deliver them to the persons to whom they
were directed, and for which he received half of the porterage,
[ 10-je. J it was holden, that he was not personally liable for the loss of
a parcel delivered to him by the guard of a mail-coach, which
stopped at the inn, but a mere servant to the proprietor, and, as
such, not responsible. Cavenagh v. Such, 1 Price, 328. Vide
Hyde v. the Trent and Mersey Navigation Co. 5 T. R. 397.
The degree of care required of a private person who undertcikes
the carriage of goods for a reward, is regulated by the general
rule in the text, and extends only to a responsibility for ordina-
ry negligence. But this may be increased or diminished by
particular stipulations. As where the defendant, having under-
taken the conveyance of some furniture, and warranted that it
should go safe, was holden responsible for damage sustained by
rain in the course of the journey, and that he was not discharged
from his liability by the owner sending a porter with him for the
purpose of watching and taking care of the goods. Robinson
V. Dunraore, 2 Bos. and Pul. 417.
6bIigations to By the general custom of the realm, that is, by the common
law, 1 Roll. Abr. 2 (C ) pi. 1. 2 Bl. Coram. 6T. Rushforth v.
Hadfield, 6 East, 525. a common carrier is bound to carry the
goods of the subject for a reasonable reward ; and if he refuse
to do so, having convenience, and being tendered satisfaction
for the carriage, he will be liable to an action, unless he has rea-
sonable ground for i^is refusal. Jackson v. Rogers, 2 Show.
receive.
THE LAW OF BAILMENTS. 103e.
vary care, but cannot extend to irresistible force ; and
tlioiigh some other bailees have a recompence, as factors
129. 1 Show. 104, 105. Morse v. Slue, 1 Vent. 238. Cull. N.
P. 70. Per Holroyd, J. in Balson v. Donovan, 4 B. and A. 32.
1 Wms's. Saund. 312. n. 2.
If a coachman refuse to take charge of goods, because his
coach is full, and the goods are nevertheless put on the coach,
without the coachman's knowledge, who, as soon as lie perceives
it, refuses to take charge of them, he will not be responsible for
their loss. Lovett v. Ilobbs, 2 Show. 12S. So a refusal would
be considered reasonable, where it at)peared, that it was a time
of public commotion, and that the goods whicli die carrier was
desired to carry, were the object of popular fury, and would
be attended with a risk, against which his precaution would be
inadequate to secure him. Edwards v. Sherratt, 1 East, 604. [ 103l. ]
So, it would be a reasonable excuse for not carrying goods of
great value, either if it appeared that the carrier did not hold
himself out as a person ready to carry all sorts of goods, or that
he had no convenient means of conveying such articles with se-
curity. Per llolroyd, J. in Batson V. Donov/in, 4 Barn, and
Aid. 32.
To render a carrier responsible for goods, there must be a Nature of De-
delivery to him, or his servant, or some person acting on his "^^'-^'*
behalf, so as to charge him with their custody, for otherwise
there can be no inception of the contract. And, therefore,
when goods were left at an inn yard, where the defendant and
several other carriers put up, but without proving any delivery
to him or his servant, this was holden not to be sulhcient to
charge the defendant with their custody. Selway v. Ilollowa3',
1 Lord Raym. 46. See BuUer's Nisi Prius, 36. Biidgman's cd.
.Tames v. Jones, 3 Esp. N. P- C. 2T. Hawkins v Rutt, Peake's
N. P. C. 186. So, where a quantity of goods were left at a
wharf, piled up among other goods, with a direction to the con-
signee, but no receipt was taken, nor were the goods booked,
<=ir any jicrson belonging to the wharf fixed with a privity of
17
103f. THE LAW OF UAILMEISTS.
[ 103f. ] and workmen for pay, yet, even in WoodUefe^s case, the
Chief Justice admitted, that robbery was a good plea
their being left there, the carrier was holden not to be charged
with such a delivery as would render him responsible to the
buyer, in the event of a loss. Buckraan v. Levi, 3 Camp. 414.
A delivery to the mate of a vessel bj' a wharfinger, in the usu-
al course of trade, will discharge him of his responsibility ; for
by that means the mate is charged with the care of the goods,
and will be liable, although they may be lost whde on the wharf.
Cobban v. Downe, 5 Esp. N. P. C 41.
The delivery to a carrier may be complete, so as to charge the
carrier, although not sufficient to charge the purchaser, for in
this latter case the delivery must be such as to give the consignee
a right of action against the carrier, in the event of the loss of
the goods. Buckman v. Levi, 3 Camp. 414. See 1 Stark. N.
P. C. 17. If, therefore, goods are delivered to a carrier, with-
out specially entering them as required by a general notice,
which is known to tho consignor, and the goods are lost, the
buyer is not liable for their value. In this case the seller has an
implied authority ; and it is his duty to do whatever is neces-
sary to secure the responsibility of the carrier for the safe de-
livery of the goods, and to put them in such a course of convey-
r lOS"" 1 '^"^^j '^^ that, in case of a loss, the buyer miglit have his indem-
nity against the carrier. Per Lord Ellenborough, in Clarke v.
riutchins, 14 East, 475. But the necessity of complying with
the terms of the notice may be dispensed with by the purchas-
er, as where goods have been previously sent without being en-
tered and insured as above the limited sum, and no objection
made upon that account. Cothay v. Tute, 3 Camp. 129.
The goods must also be packed properly, and in fit condition
for their journey at the time they are delivered to the carrier,
for, otherwise, if any loss arise on that account durmg their con-
veyance, the carrier will not be responsible. See Beck v.
Evans, 16 East, 245 Stuart v. Crawley, 2 Stark. 324. Where,
however, there was a complete delivery, acknowledged by a re-
THE LAW OF BAILMENTS. jOSo^.
lor a factor, though it was a bad one for a carrier : the
true ground of that resohition is the public employment
ceipt, of a greyhound, which afterwards escaped, and was lost,
the carrier was not allowed to set up as a defence, that the dog
was not properly secured when delivered to him, for, after the
delivery, he hecame responsible for the animal, and was bound
to lock him up, or take other moans to secure him. Stuart v.
Crawley, 2 Stark. N P. C. 323.
[Where a common carrier pays damages for the loss of goods
by negligence or unskilful management, it is tantamount to a
safe delivery, and he is entitled to freight. Hammond v. Mc-
Clures, 1 Bay. Rep. 101.]
Cut a person delivering goods to a carrier is not bound, by „ . <• .,
' ° ° ' -^ Nature of the
the common law, to specify their equality or value, for it is the contract,
duty of the carrier to make inquiry, if he desires to secure him-
self against particular hazard, or to receive a larger premium.
Titchburne v. White, 1 Str. 14.'). Per Holroyd, J. in Batspn v.
Donovan, 4 B. and A. 31. An acceptance of goods generally
will, therefore, render him responsible, whatever may be their
value, and notwithstanding he is ignorant of that circumstance.
But if a parcel is received upon condition that there is no money
in it, the carrier will not be liable, if the parcel is lost, and did
in truth contain money. Titchburne v. White, 1 Str. 145. So,
where two bags, sealed up, were delivered to the carrier, and
said to contain 200/ ; for which sum the carrier gave a receipt,
when in fact it contained 400/., Holt, C. J. decided, that the car-
rier was responsible only for 200/., because there was a particu-
lar undertaking for the carriage of that sum ; and that the re-
ward, which was the measure of his responsibility, did not ex-
tend further. Tyly v. Morrice, Garth. 485. See 4 Burr.
2301. In the same manner, where the plaintiff delivered to the
defendant, a carrier, a box, telling him only, " that there was a [ 103p. ]
hook and tobacco in the box," whereas, in fact, it contained
100/., Roll, C. J. was of opinion, that as the carrier had not
made a special acceptance, he was answerable ; hut, with res-
103h. THE LAW OF BAILMENTS.
exercised by the carrier, and the danger of his combining
with robbers to tlie inlinite injury of commerce and ex-
treme inconvenience of society. (c)
(z) Ld.Raytn.917. 12 Mod 487.
pect to the intended cheat upon the carrier, he told the jury
tliiey might consider him in damages, but they, notwithstanding,
gave a verdict for 97^. againstthe carrier. " Quod,'' observes
the reporter, " durum videbatur circumstantibus." Kenrig v.
Eggleston, Aleyn, !J3. So, where one brought a box to a carri-
er, in which ther'^ was a hirgc sum of money, who demanded of
the owner what was in it ; he answered, it was filled with silks
and such like goods of mean value ; upon which the carrier took
it, and was robbed ; and resolved that he was liable. But, if
the carrier had told the owner, that it was a dangerous time, and,
if (here was money in it he durst not take charge of it, and the
owner had answered as before, this mtitter would have excused
the carrier. Morse v. Slue, 1 Vent. 238, And Lord Mansfield,
(y. J. in Gibbon v. Paynton, 4 Burr. 2301. commenting on the
two preceding cases, observed, that in the first case he should
have agreed in opinion, cum circitmstantihtts, and that, in the
second, he should have thougiit the carrier excused, although
he had not expressly proposed a caution agtinst being answera-
ble for tile money, for it was artfully concealed from him, that
there was any mone\' in the box. The delivery, indeed, must
be free from artifice or misrepresentation, made with a view to
deceive the carrier; for honesty and good faith are as requisite
in thi.-;, as in every other contract, and, consequently, any con-
ce;ilment or fraudidenl device in the delivery of goods, will dis-
charge the carrier. See Gibbon v. Paynton, 4 Burr, 2298.
Batson v. Donovan, 4 B. and A. 2l. And where the carrier
has given notice, that he will not be liable for parcels of value,
unless they are entered, and a proportionate premium paid, this
will be equivalent to a special acceptance, and render it incum-
bent upon the owner to disclose the value, in order to make the
carrier responsible. The effect of the notice will be, when no
THE LAW OF BAILMENTS. 1031i.
The modern rule concerning a common carrier is that Exceptions
from the fifcnC"
" nothing will excuse him, except the act o/God, or oi ,ai rule.
special entry is made, to entitle the carrier to consider the par^
eel as of an ordinary nature, and not falling within that descrip-
tion of goods for which he refuses to he liable without a compli-
ance with the terms of the notice ; and in such cases, the hold- [ 104 ]
ing out, as an ordinary risk, what is, in truth, an extraordinary
one, will be considered as a legal fraud. And the legal maxim
applies, " Ex dolo malo non oritur actio." Per Bailey, J. in
Batsoa v. Donovan, 4 Barn, and Aid. 37- In the before men-
tioned case of Gibbon v. Paynton, the carrier, who was protect-
ed by a general notice, received a quantity of gold, packed in an
old nail-bag, which was stuffed with hay, to give it a mean ap-
pearance. The court considered this mode of packing so valu-
able an article as a fraud, and, on that ground, gave judgment for
the defendant. See Buller's IS'isi Prius, Jl a. Bridgman's ed.
Batson V. Donovan, 4 Barn, and Aid. 31. So, in the last men-
tioned caseof Batson V. Donovan, where no concealment or ac-
tual fraud was practised upon the carrier: he had however given
notice within the plaintilT's knowledge, that he would not be ac-
countable for bills, bank-notes, &c. unless notice was given, and
an additional premium paid ; but the plaintiff, nevertheless, de-
livered to him a banker's parcel, containing articles of that de-
scription to a large amount, without disclosing the nature or value
of its contents, and the parcel was subsequently lost ; the court
held, that the plaintiiChaving knowledge of the notice, v/as bcund
to have informed the carrier of the value, in order to render
liim responsible iind Mr. Justice Bailey observed, that "the
holding out as an ordinary risk, what is really an extraordinary
one, is a legal fraud." 4 Barn, and Aid. 3". So, where there
is' a general notice not to be responsible for articles of a particu-
lar description, and goods of that nature are delivered to a car-
rier, whether he is to receive a rewanl or not, the nature and
value of the parcel should be communicated, to enable him to
adopt proper precautions for their safety. Bignold v. Water-
house, 1 Maule and Selw. 2Gl.
104 THE LAW OF BAILMENTS.
V the king's enemies'^a) but a momentary attention to
the principles must convince us, tliat this exception is
(a) Law of Nisi Prius, 70, 71.
But directing a banker's parcel, containing bank-notes and
bills to a large amount, to their clerk, in order to conceal the
nature of its contents, and without giving the carrier any notice
of its value, will not be deemed fraudulent, so as to deprive the
owner of his remedy for a loss, in a case where the carrier was
r iQif, I deprived of the benefit of his notice by misfeasance. Sleat v.
Fagg. 5 B. and A. 343.
In the case of a partnership, the acts of each partner in the
name of the firm, and for partnership purposes, are binding up-
on all the partners; but the transaction must be hona fide, and
free from fraud, and not transacting by oue partner, for his indi-
vidual benefit, behind the backs of his co-partners. For, where
an agreement was entered into with a banker by one partner,
for his sole benefit, without the knowledge of his co-partners, to
take the banker's private parcels free of expense, and, in pursu-
ance of this arrangement, banking parcels had been sent for two
years ; in an action for the value of a parcel containing bills and
notes to a considerable value, which was received in the usual
way, and subsequently lost, the court held, that the other part-
ners were not liable. Bignold v. AVaterhouse, 1 M. and S. 255.
Obligation to The responsibility required of a carrier with reference to the
carry safelv. ,, ,.,,., i • i • i i
care oi goods with which he is entrusted with the carnage, rests
upon two foundations ; the particular nature of his contract, and
the obligations superadded by law upon |jrinciples of public po-
licy. A carrier, like every other bailee, may stipulate to sus-
tain any degree of risk, or perforin services however burthen-
some, and he will be bound to perform, to the extent of his con-
tract, the engagements into which he has entered. But where
no specific agreement is entered into, the acceptance of a re-
ward would render him responsible only for ordinary negligence.
See ante, p. I03f. A$ this degree of responsibility, however",
would not be sufficient to protect the public interests from the
THE LAW OF BAILMENTS. 104a.
in truth part of the rule itself, and that the responsihility
for a loss by robbers is only an exception to it ; a car-
fraud of a class of persons who are not entitled to extraordina-
ry confidencej and are exposed to great temptations to be fraudu-
lent with little chance of discovery, the common law, to pre-
vent collusion between carriers and robbers, considerably enlarg-
ed their liability, even in some cases beyond what those princi-
ples would appear to warrant. See 1 T. R. 32. By the custom
of the realm a carrier is responsible for events which are inde^
pendent of his contract, and is liable for all losses, whether aris-
ing from accident, robbery, irresistible force, or any other means
whatever, except they arise from the act of God, or of the
King's enemies. " By the nature of his contract, as observed by [ 104b. ]
" Lord Mansfield, C. J. in Forward v. Pittard, 1 T. R. 33. a
" carrier is liable for all due care and diligence ; and for any ne-
"gligence he is suable on his contract. But there is a further
"degree of responsibility by the custom of the realm, that is, by
" the common law ; a carrier is in the nature of an insurer. It
" is laid down that he is liable for every accident, except by the
'•' act of God, or the King's enemies. Now, what is the act of
" God ? I consider it to mean something in opposition to the act
" of man : for every thing is the act of God that happens by his
"permission; everything, by his knowledge. But to prevent
'• litigation, collusion, and the necessity of going into circumstan-
" ces impossible to be unravelled, the law presumes against the
"' carrier, unless he shows it Avas done by the King's enemies, or
"by such act as could not happen by the intervention of man ;
" as storms, lightning, and tempests. If an armed force come
" to rob the carrier of the goods, he is liable ; and a reason is
" given in the books, which is a bad one, viz. that he ought to
" have sufficient force to repel it ; but that would be impossible
" in some cases, as for instance in the riots in the year 1780.
" The true reason is, for fear it may give room for collusion, that
" the master may contrive to be robbed on purpose, and share
" the spoil." See Proprietors of Trent Navigation v. Wood,
3 Esp. N. P. r. 231. Abbott on Shipping, 231, 4th ed. Dale
1041). THE LAW OF BAILMENTS.
rier is rcgidarJij answerable for neglect, but not, regularly,
for damage occasioned by the attacks of rujjians, any
V, Hall, 1 Wils. 281, supra, p. 104a. But it will be no excuse
for a carrier that the loss arose from the act of God, or of the
King's enemies, if it were occasioned by his negligence. As
where the plaintiff put goods on board the defendant's hoy, who
was a common carrier : coming through a bridge, by a sudden
gust of wind the hoy sunk, and the goods wer,e spoiled. Pratt,
C. J. held the defendant not answerable, the damage being oc-
casioned by the act of God ; for, though the defendant ought
not to have ventured to slioot the bridge, if the general bent of
the weather had been tempestuous, yet this being only a sudden
gust of wind, varied the case. The plaintiff's counsel having
L * J offered some evidence, that if the hoy had been in better condi-
tion it would not have sunk. The Chief Justice said, that a car-
rier was not obliged to have a new carriage for every journey ;
it was sufficient, if he provided one which, without any extraor-
dinary accident such as this was, would probably perform the
journey. Amies v. Stcv'ens, 1 Str. 128.
[Where a vessel was beating up the Hudson, against a light
and variable wind, and being near shore, and while changing
lier tack the wind suddenly failed, in consequence of which she
ran aground and sunk. It was held that this sudden failure of
the wind was the act of God, and excused the master, there be-
ing no negligence on his part. Colt and Colt v. McMecken, G
Johns. Rep. l60.
If a loss happens, the onus probandi lies on the carrier to
exempt him from the liability : and it is not enough for him to
prove, where the goods arc carried by water, that the navigation
is attended with so much danger that a loss may happen not-
withstanding the utmost endeavours of the watermen and crew
to prevent it ; that the person conducting the boat possesses
competent skill and due diligence, and provided hands of suffi-
cient strength and experience to assist him. Murphy, Brown &
Co, v. Slaton, 3 Muuf. Rep. 239. and see Bell v. Reed, 4 Bin.
Rep. 127. 6 Johns. Rep. l60.
THE LAW OF BAILMENTS. 104c.
more than for hostile violence or unavoidable misfor-
tune ; but the great maxims of policy and good govern-
But where the master of a skipper,- who had undertaken to
'"carry a parcel of cotton, his own vessel being full, with the con-
currence of plaintiff's overseer has it put on board of another
vessel, but gave a receipt himself; that vessel became stranded,
and the cotton damaged, but the vessel being proven good and
sufficiently manned, the carrier who undertook was held not li-
able for the loss. Barnwell v. Hussy, 1 Cons. Rep. S. C. 114.
Where goods are damaged on board of a vessel in the voyage,
and alleged to be through the default of the master, it is not
absolutely necessary that the damaged goods should be sold in
order to give a right of action ; and far less, that both the dam-
aged and the sound should be sold. The plaintiff, if he have a
right to recover at all, may prove his damages in any other com-
petent manner. Shackleford v. Patrick, 1 Cons. Rep. S. C. 311.
Whether there be negligence or not is a question of fact for the
jury to decide. Elliot and Stewart v. Russell and Lewis, fO
Johns Rep. I. Colt and Coltv McMecken, 6 Johns. Rep. 160.
Where the owners of a vessel undertook to carry goods for
hire, from one port to another, and during the passage the river
became obstructed with ice, it was held that they were liable as
common carriers for the damage sustained. Richards v. Gil-
bert, 5 Day Rep. 415.
If the vessel of a common carrier strike on a rock not gene-
rally known, and the master did not actually know it, and if he
conducted himself properly, and no fault was imputable to him,
he would not be liable : Secus, if the loss be imputable to neg-
ligence, as if the master be ignorant of the navigation of the
river, and have no pilot on board. Williams v. Grant, 1 Conn.
Rep. 487
A carrier's vessel must be sea-worthy, or he must answer,
although the loss does not proceed from sea-worthiness. Bell
v. Keed, 4 Bin. Rep. 127-]
If goods are delivered to a carrier for the purpose of
carriage, and he is robbed of them, he will be answerable for
IS
104c. THE LAW OF BAILMENTS.
ment make it necessary to' except from this rule the case
of robbery, lest confederacies should be formed betweeu
their value, because, having his hire, there is an implied under-
taking for their safe dehvery. Woodleife v. Curteis, 1 Roll.
Abr. 2. (C) pi. 4, 1 Inst. 89 a. ; but see ^nte, 103f. for the
true ground of this responsibility.
[Where a master of a vessel employed in the transportation
of goods between New-York and Albany, carried some flour
to New- York," for the ordinary freight, ;uid having sold it in
New-York for cash, was robbed of the money ; it was held that
the owners of the vessel were liable for the amount, though no
compensation beyond the freight was allowed for the sale of
the goods and bringing back the money ; such being the duty
of the master in the usual course of the employment, where
no special instructions were given. Kemp v. Coughtry, 11
Johns. Rep. 107.]
In the same manner, he is responsible for an injury re-
sulting from irresistible force ; for though the force be ne-
ver so great, as if an irresistible number of persons should
rob him, he is nevertheless chargeable. Per Holt, C. J. in
Coggs V. Bernard, I Lord Raym. 919. So, the carrier is
responsible for inevitable accident, as in the above case of
Forward v. Pittard, 1 T. R. 25. where the goods were des-
troyed by an accidental fire, communicating to the booth in
which the goods were deposited for a temporary purpose, in
the course of the journey ; and where it was expressly found
that they were consumed without any negligence in the carrier,
and that the fire was not occasioned by lightning. See Hyde
V. the Navigation Company from the Trent to the Mersey, 5 T.
R. 389. So, where the Proprietors of the Trent Navigation
Company undertook to carry goods froin Hull to Gains-
borough, and the vessel on board of which the goods were, sunk
in the river Humber, by driving against an anchor in the river,
and the goods were in consequence considerably damaged, the
carrier was holden responsible for the loss, notwithstanding it
was objected, that the accident was occasioned by the negli-
gence of persons on board a barge in the river, in not liaving
THE LAW OF BAILMENTS. 104c.
carriers and desperate villains with little or no chance
of detection.
their buoy out, to mark the place where the anchor lay. The
court observed, that there was a degree of negligence in the
carrier, for his not seeing the buoy ought to have put him upon
iaquiring more minutely about the anchor ; and even if there
had not been any actual negligence on the part of the carrier,
yet that negligence, in point of law, was sufficient without any j" 104d. 1
other cause. Proprietors of the Trent Navigation v. Wood,
3 Esp N. P. C. 127.
From this responsibility the adoption of additional means to
insure safety will not exonerate the carrier, where the goods
are in his custody in that character. If, therefore, goods of
great value are delivered to a common hoyman, and the owner
afterwards delivers them to another person in the boat to keep
safely, but does not discharge the hoyman, and they are after-
wards lost through negligence, an action lies against the hoy-
man. Roll. Abr. 2. (C) pi. 3. So, if a man travel ia a stage
coach and take his portmanteau with him ; though he has his
eye on the portmanteau, yet the carrier is not absolved from his
responsibility, but will be liable if the portmanteau be lost. Per
Chambre, J. in Robinson v. Dunmore, 2 Bos. and Pul. 419.
The injury, however, must happen whilst the goods are in
the carrier's custody as a common carrier, for where a carrier
by water had reached the place of his destination, and the
goods were deposited in a warehouse belonging to him, but
without any distinct charge being made on that account, for the
convenience of the owner, and until they could be forwarded
by another conveyance ; the carriet;*'s_duty, as such, was holden
to have terminated, and that he was not liable for the loss of
the goods, which arose from their being destroyed by an acciden-
tal fire while they were in the carrier's warehouse. Garside v.
The Proprietors of the Trent and Mersey Navigation, 4 T.
R. 581. See ante, 96a. n, (7). So, in an action by the East
India Company against a lighterman on an undertaking to carry
goods for hire, for not safely conveying them from a ship in the
104d. THE LAW OF BAILMENTS.
Although the act of Gody which the ancients too
called @'-^ €/av and vin divinam, be an expression, which
river Thames to the Company's warehouses, by which they
were lost. It appeared that upon the unshipping of the goods,
the Company had, as was their custom, put an officer called a
guardian on board the lighter, who, as soon as the lading was
complete, put the Company's locks on the hatches, and accom-
panied the goods to see them safely delivered. Raymond,
C. J. was of opinion, that this differed from the commoa
case, this not being any trust in the defendant, and the goods
r 104e. 1 were not to be considered as ever having been in his possession,
but in the possession of the Company's servant who had hired
the lighter to use himself; bethought, therefore, that the action
was not maintainable, and the plaintiffs were non-suited. East
India Company v. Pullen, Str. 690. In commenting upon this
case, in Robinson v. Dunmore, 2 Bos. and Pul. 419. Chambre,
J. observed, that this decision proceeded on the usage of the
East India Company, who never intrust the lightermen with
their goods, but give the whole charge of the property to the
officer called the guardian.
But since it is the duty of a carrier to deliver goods to the
houses of persons to whom they are directed, where it is the
usage of his trade to do so, they will be considered in his cus-
tody as a common carrier, and he will, therefore, be liable as
such, until they are so delivered. The defendants, who were
common carriers from Gainsborough to Manchester, received
a quantity of goods to be conveyed from the former place
alon"- their Navigation and the Duke of Bridgewater's canal to
Manchester, where they were lodged in the Duke of Bridge-
water's warehouse, and there consumed by an accidental fire
the same night. Distinct charges were made for the carriage of
the goods along different parts of the navigation ; for ware-
house room for the Duke of Bridgewater, which they received
as his agent, and without any share of the profit ; and also for
cartage from the Duke of Bridgewater's warehouse to the
plaintiff's warehouse at Manchester. The defendants had for-
THE LAW OF BAILMENTS. 104e:
long habit has rendered familiar to us, yet perhaps, on
that very account, it might be more proper, as well as
merly delivered the goods in their own cart, but had latterly
given up that business, and the profits to be derived from it to
their book-keeper, which was known to the plaintifts. The
goods hiving been lost, the defendants were holden liable,
since they had received the goods in the capacity of carriers,
and as their engagement was to carry and deliver them, the
goods remained in their custody, as carriers, the whole time,
which wa^ not affected by the arrangement made by them with
their bookkeeper. The charge for wharfage and cartage in
the defendant's bill, which they compelled the plaintiffs to pay
before they would engage to deliver the goods, were considered p ,^.» ^
as decisive to show that in this case the liability of the defen- ' "*
dant continued until the goods were delivered. Hyde v. The
Navigation Company from the Trent to the Mersey, 5 T. R. 389.
[Where goods were put on board the vessel of the defendant
to be carried to Albany, and on arriving there, were by the
defendant's direction put on the wharf, it was held that this
was not a delivery to the consignee, although the goods were
taken away (without the direction of the consignee) by a carter
usually employed to transport his goods, and the greater part
actually received by the consignee ; and the defendant was
held hable in trover for the goods not actually dolivered. Os-
trander v. Brown, 15 Johns. Rep. 39.]
The unlimited responsibility imposed upon a carrier, except General nott-
in the two instances before mentioned, might in many cases ces,
prove oppressive, unless he were allowed to protect himself by
particular stipulations. An indulgence was, therefore, former-
ly allowed of qualifying this general liability by reasonable
limitations, not inconsistent with his common law obligation,
and a carrier might, where he had just grounds for doing so
decline altogether to take charge of goods ; or if he consented
to accept them, he might protect himself by the special terms
upon which he agreed to receive them. Morse v. Slue, 1 Vent.
238. Bodenham v. Bennett. 4 Price, 34. Terms of this de-
104f. THE LAW OF BAILMENTS.
more decent, to substitute in its place inevitable accident ;
religion and reason, which can never be at variance
scription are of ancient date. See 3 Taun. 271. ; and the receipt
of goods upon such roiifiiiions was considered as a special ac-
ceptance, find was usually made in eaih pnrticular case. But in
recent limits a ra 'de has arisen of '^fleeting ihe same object by
means of a general notice, intimating to the public the terms up-
on which the carrier consents to take charge of goods ; and if
the notice is brought home to the knowledge of the employer, it
will be considered as equivalent to a special acceptunce. The
importanre of these notices, and the numerous .questions ta
which they give rise, will perhaps excuse an examination into
their nature and the protection they afford.
The qualification engrafted by a speciil acceptance, upon the
carrier's obligation to carry goods, must in all cases be of a
reasonable nature, and not calculated to destroy the duty impo-
sed by the common law ; and the same principle applies to the
ciise of a notice. By a general notice, a carrier generally re-
fuses to be liable for articles above a small sum, unless entered,
and an additional premium paid in proportion to the value of
the article ; and in this respect there is nothing unreasonable,
for the carrier is not only to be paid for his labour, but also for
the risk he incurs. His charge, however, must in all cases be
reasonable, for he is bound to carry goods which are brought to
him, and cannot defeat this obligation by making an excessive
r -inj -I demand. Harris v. Pnckwood, 3 Taun. 272. Batson v. Do-
1 lU4g. J
novan, 4 Barn, and Aid. 39. Hyde v. the Proprietors of the
Trent and Mersey Navigation, 1 Esp. N. P. C. 56. But he
may not only limit his responsibility in this respect, but may iu
some cases exclude it altogether, as by refus-ing all responsibility
from accident arising by fire. Maving. v. Todd, 1 Stark. N. P.
C. 72. and i;i general he will not be liable for losses arising
from accident, or for theft, or robbery, when no collusion can
be established on the part of the carrier; or for any want of
care, unless amounting to gross negligence, or a tortious mis-
feasance of the property.
THE LAW OF BAILMENTS. 104g.
without certain injury to one of them, assure us, that
*' not a "rust of wind blows, nor a flash of Hglitning
By these means, the wholesome provisions of the common law
have not only been defeated, but the effect of these notices has
been to render a carrier responsible for a less degree of care
than that which is exacted from a pawnee, or any other bailee
who has a reward. A. warehouseman, depositary of goods for
hire, or other bailee of a similar description, are responsible for
the want of ordinary care ; but a common carrier, ahhough he
receives a reward, is not liable for ordinary negligence ; for al-
though it is said a general notice does not exempt him from the
exercise of due and ordinary care, yet the question left to the
jury in such cases is, whether he has been guilty of gross negli-
gence. See Batson v. Donovan, 4 Barn, and Aid. 21. and the
cases infra.
For these reasons, the legality of these notices and the policy Theirlegality.
of adopting them, have been frequently questioned, and their
introduction has been lamented by many eminent and learned
persons. See Down v. Fromont, 4 Camp. 41. Smith v. Home,
8 Taun. 14G. ; but they are now established to be legal, and are
daily recaived and acted upon in courts of justice. In the case
of Nicholson v. Willan, 5 East, 507. an objection to their vali-
dity came formally before the court, upon the gronnd of their
inconsistency with the policy of the common law, and that it
was the duty of carriers, if the reward was not adequate to the
i-isk, to make a special acceptance of the goods in each case, at
a rate proportioned to their value. But it was observed by Lord
Ellenborougli, C. J., delivering the judgment of the court,
" that considering the length of time during which, and the ex- [ 104h» J
" tent and universality in which the practice of making such
" special acceptances of goods for carriage, by land and water,.
" has now prevailed in this kingdom, under the observation, and
" with the allowance of courts of justice, and with the sanction
" also and countenance of the legislature itself, which is known
" to have rejected a bill brought in for the purpose of narrow-
" ing the carrier's responsibily in certain cases, on the ground
104b. THE LAW OF BAILMENTS.
'* gleams, without tlie knowledge and guidance of a su-
** perintending mind ;" but this doctrine loses its dignity
" of such a measure being unnecessary, in as much as the car-
" riers were deemed fully competent to limit their own respon-
" sibility in all cases by special contract : considering also, that
" there is no case in the books, in which the right of a carrier,
" thus to limit b}^ special contract his own responsibility, has
" ever been by express decision denied ; we cannot do other-
" wise than sustain such right in the present instance, however
" liable to abuse, and productive of inconvenience it mny be ;
" leaving to the legislature (if it shall think fit) to apply such
" remedy hereafter, as the evil may require.'' Since this daci-
sion, the legality of these notices has been acquiesced in and
acted upon, but notwithstanding they are esiablished, the courts
discountenancing the doctrine, and restraining it as far as is
consistent with the rules of law, require strict proof of ihe com-
munication of the notice from every carrier, and construe with
strictness the terms in which it is framed.
Communica- The notice must proceed from the carrier ; for he is bound to
discharge himself from the losses to which he is subject by the
general law of the realm, by a notice given by hims^f ; and a
general usage of trade is not evidence for that purpose. Claik
V. Gray, 4 Esp. 178. But a carrier who continues the business
of another carrier, is protected by a notice given and signed by
the former carrier, limiting hi: responsibility, and which the new
carrier, within the customer's knowledge, keeps hung up in his
office. Evans v. Soule, 2 M. and S. 1. But as a personal com-
munication is not necessary in order to constitute a special ac-
ceptance, since the knowledge of each other's minds, which is
the object of a special acceptance, if effected by other means, is
sufficient. See Gibbon v. Paynton, 4 Burr. 2302. So, it is not
requisite that there should be any direct and immediate com-
munication of a general notice ; it will be sufficient if the means
[ 104i. "J adopted are such from whence a jury may reasonably infer that
a knowledge of its contents was conveyed to the person dealing
with the carrier.
THE LAW OF BAILMENTS. 104i.
and sublimity by a technical application of it, which may
in some instances border even upon profaneness ; and
A direct communicatioa is indeed rarely made : the means
usually adopted for this purpose are by the publication of an
advertisement in a newspaper, posting a notice in some conspi-
cuous part of the office, or place where the carrier transacts his
business, or by the circulation of hand-bills. Where these
means are not adopted, or prove ineffectual, other circumstan-
ces may exist from whence a knowledge of the notice may be
inferred. But whatever the means may be upon which the car-
rier relies, he must at his peril take care that every one who
deals with him is fully apprised of the limits to which he intends
to confine his responsibility. Butler v. Heane, 2 Camp. 415.
Davis v. Willan, 2 Stark. 279-
Where the publication is by an advertisement in a newspaper, By advertise;
and there is no direct proof of k'^owledge, some evidence must ™^"*'
be given to raise a reasonable presumption that a party has
knowledge of it before such advertisement can be received in
evidence. In one case where the notice was inserted in the
Gazette, that paper was admitted as evidence, although consider-
ed of little avail, without proof that the party was in the habit
of reading it. Leeson v. Holt, 1 Stark, N. P. C. 186. But in a
subsequent case, Munn v. Baker, 2 Stark. N. P. C. 256. this
evidence was rejected without such proof; since a party might
be expected to look into the Gazette for notices of the dissolu-
tion of partnerships, but not for notices by carriers of the limi-
tation of their responsibility. There appears, therefore, to be
no distinction in this respect, between a Gazette and any other
newspaper See Phillips on Evidence, 323, 3d Ed.
In cases of this description, a habit of reading the paper in
which the advertisement is published, ahhough there is no proof
that the party has actually read or seen the particular paper in
which it is inserted, will be sufficient evidence from whence to
infer a knowledge of the notice. Gibbon v. Paynton, 4 Bern.
2298.
19
104i. THE LAW OF BAILMENTS.
law, which is merely a practical science, cannot use
terms too popular and perspicuous.
Notice affixed Where the notice is posted in the office or place where the
in offices. ... . .
carrier transacts his business, it should be fixed in some conspi-
cuous part in large and legible characters, that persons deliver-
ing goods may have ample means of seeing the terms on which
r 1041. 1 ^'^^ carrier conducts his business, and that they cannot fail to do
so without gross negligence. Butler v. Heane, 2 Camp. 415.
Clayton v. Hunt, 3 Camp. 28, But if a bill, which is posted
upon the door of the carrier's office where he receives and de-
livers goods, blazons in large ch iracters the advantages of his
conveyance, but states in small characters at the bottom of it
the restriction upon his responsibility, it will not be sufficient.
Butler V. Heane, 2 Camp. 415. So, this mode of communica-
tion will be insufficient, where the goods are not delivered at
the office, but collected by the carrier's cart sent round to re-
ceive goods for the waggon, or received at a distance from the
office; in these cases, some other mode of communication must
be adopted. Clayton v. Hunt, 3 Camp. 27. lu the same man-
ner, the notice will be unavailing if it should appear that the
person delivering the goods does not in fact read the notice,
Kerr v. Willan, 2 Stark. N. P. C. 53. whether it happens not-
withstanding he is capable of doing so, or from ignorance or in-
ability to read, Davis v. Willan, 2 Stark. N. P. C. 279.
Hand-bills. In the case of publishing the notice by the circulation of
hand-bills, the limitation should be framed in clear and distinct
terms, and not at variance with any other mode of publication
that may be adopted ; for a hand-bill, limiting the carrier's re-
sponsibility in a less degree than a notice affixed in the office
will control the latter, since a person who receives the hand-Dill
has a right to presume that what is circulated by the carrier's
authority, contains the whole of the limitations he intends to
put upon his common law responsibility as a common carrier,
and gives a full statement of the special contract into which he
enters with bis customers, Cobden v. Bolton, 2 Camp. 108.
THE LAW OF BAILMEiMS. 104j.
In a recent case of an action against a carrier, it was
bolden to be no excuse, " that the ship was tight when
If none of these means are adopted, or if they prove ineflfec- Particular ch-,'
tual, other circumstances may be sufficient from whence a jury
may infer the required knowledge. Thus, notice to the vendor
of goods that the carrier by whom he sends tliem hmits his re-
sponsibility, is ecjuivalent to notice to the vendee who directs
them to be sent, for he is bound by the acts of the vendor and
his agents in this respect. Maving v. Todd, 1 Stark. 72. See [ '^^^ J
Clarke v. Mutchins, 14 East, 475. So, an acquiescence in the •
loss of parcels sent by a carrier who had published a general
notice, mid a direction to the person sending the parcels to in-
sure them for the future, would be evidence to show a know-
ledge of ihe notice. Roskell v. Waterhouse, 2 Stark. N. P. C.
462.
In cases in which a carrier is protected by a general notice, Waiver,
he must be cautious not to do any act by which the notice may
be waived ; for if so, he will lose the benefit to which he would
otherwise be entitled. Evans v. Soule, 2 M. and S. 1. Thus,
a carrier who had given notice that he would not be accounta-
ble for goods of a particular description, above the value of 51.
unless specified, and paid for as such when delivered, is never-
theless liable for damage done to an article coming within that
description, although the terms of the notice were not complied
with, the book-keeper having been informed of its value, and
desired to charge for it what he pleased, which should be paid
provided it was taken care of. Lord EUenborough, C. J.
decided, that under these circumstances, the payment o
the money was dispensed with, and the notice unavailing.
Wilson V. Freeman, 3 Camp. 527. But a carrier entitled
to the benefit of his notice does not wave it altogether, by pay-
ing for goods lost or damaged, without inquiring whether it was
occasioned by the negligence of his servants ; this is but care-
lessly settling his accounts ; he may wave a right, pro Itac vice,
without abandoning it altogether. Evans v. Soule, 2 M. and
S. 1.
105 THE LAW OF BAILMENTS.
*' the goods were placed on board, but that a rat, by
"gnawing out the oakum, had made a small hole,
The mere knowledge, however, that the article is above the
stipulated value, will not have this effect. A notice, that a car-
rier would not be answerable for an)' goods of what nature or
kind soever, above a certain value, unless the terms of the no-
tice were complied with, was considered not to apply to a case
where the carrier was perfectly aware that the goods, in this in-
stance a cask of brandy, were above the stipulated sura, or
v/here the goods, being of large bulk and known quality, must
be obviously above that sum. Beck v. Evans, 16 East, 244. 3
Camp 267. S. C. And in another case, where the known value
of the goods was relied upon in answer to a notice set up by the
carrier, Lord EUenborough, C. J. observed, that the appear-
ance of the goods must necessarily indicate that they are above
the stipulated value, in order to deprive the carrier of the bene-
fit of his notice. Down v. Fromont, 4 Camp. 40. But in a
subsequent case, where a parcel, containing a quantity of gui-
neas, was delivered to the book-keeper of a mail-coach office,
to be forwarded to London, who was aware of its contents, and
for greater seciu-ity deposited it in the banker's bag, notwith-
standing which it was lost ; it was decided by Gibbs, C. J. that
the mere knowledge that the value of the parcel exceeded the
sum for which the carrier would be answerable, unless they were
duly entered and paid for accordingly, did not deprive the car-
rier of the benefit of his notice Levy v. VVaterhouse, Selw.
N. P. 388. 4th ed. 1 Price, 280. S. C.
Where a notice requiring an additional premium, according
to the value of the article, is not complied with, it would appear
that the owner, by declining to pay the enhanced premium,
takes upon himself the risk against which that payment would
secure him, and cannot look to the carrier, to sustain it ; and
accordingly the doctrine contained in the latter case is that which
now prevails. The only effect of knowledge in such a case
would be to render the carrier responsible for a degree of care
proportionate to the nature and value of the article.
THE LAW OF BAILMENTS, K)'5
through which the water had gushed ;"(&) but the true
(i) 1 Wils. part 1. 281. Dale and Hall.
If the notice has been fully communicated, and not waved by Notice, its
' . form and con^
any act on the part of the carrier, he will be entitled to set it up struction
as a limitation upon his responsibility. The extent of the pro-
tection afforded by it will depend upon the language in which it
is framed ; yet as no general fcrm is adopted, a separate one
being usually given by each carrier, no general rule can be laid
down upon the subject. But the language of the notice, and the
te^n^ of limitation imposed by it, should be clear and unambigu-
ous, and free from all artifice or attempt to deceive ; for, if the
words are doubtful, they will be construed against the carrier,
and any artifice will render it unavailing. See Butler v. Heane,
2 Camp. 415.
There should also be no doubt or contradiction arising as to
the extent of the limitatiom intended to be imposed ; for where ^ ^^^
different notices are published, which are inconsistant in their L ' * J
terms, the carrier will be bound by that which is least beneficial to
himself, as where a notice is circulated by hand-bills, and also
affixed in the office ; but the limitationimposed by the latter is
more extensive than the former, he will be bound by the notice
contained in the hand-bill. Cobden v. Bolton, 2 Camp. 108.
So, where a notice was given to the person delivering the goods,
which contained a restriction upon the defendant's liability in a
less degree than a notice put up in his office, he was holden to
be bound by the former. Mum v. Baker, 2 Stark. N. P. C. 256.
A few instances will explain the manner in which they have
been received and interpreted by the court.
In a case in which the terms of the notice were, " that cash,
" plate, jewels, writings, or any such kind of valuable articles,
" would not be accounted for, if lost, of more than 5/. value,
" unless entered as such, and a penny insurance paid for each
" pound value," the court were of opinion, that the sense of the
printed conditions seemed to be, that the defendants were not
liable to any extent, unless the parcel had been entered and
105a. THC LAW OF BAILMENTS.
. reason of this decision is not mentioned by the reporter ;
paid for as valuable, and the plaintiff accordingly did not recover
any thing. Clay v. VViUan, 1 Hen. Black. 298. See a similar
notice in the cases of Nicholson v. Wiilan, 5 East, 507. Harris
v. Packwood, 3 Taun. 264. where the plaintiffs, not having
complied with its terms, were not allowed to recover to any ex-
tent. So, wheret he notice was in these words : " Take notice,
" that the proprietors, &c. at this office, will not be accountable
" &c, for any goods or package whatever, if lost or damaged,
" above the value of five pounds, unless insured and paid, &c."
the court said, " They could not help giving effect to those
" terms in the notice, by which, inasmuch as the goods in ques-
" tion were above the value of 5/. and not insured, or paid for
" at the time of delivery, the defendants could not be held ac-
•" countable at all." Izett v. Mountain, 4 East, R. 371- But,
since a person cannot stipulate against the consequences of his
own fraud. Doctor and Stud. 278. Dial. 2 c. 38. Noy's Max.
92. ante, 47, a general notice, in whatever language it may be
framed, will not protect the carrier from any want of care which
f 105b. 1 anionnts to gross negligence, or from any tortious misfeasance,
with reference to the goods, or other circumstances which may
be considered as evidence of fraud. " These special conditions
" were introduced for the purpose of protecting carriers from
" extraordinary events, but were not made to exempt them from
« due and ordinary care." Per Wood, B, in Bodeuham v. Ben-
nett, 4 Price, 34.
In the same manner, since a carrier is responsible for the acts
of his servant, in those things which respect his duty under him,
if the misconduct from which the loss arises proceeds from the
servant, the carrier will be equally liable, noihwithstanding a
general notice, for it will not protect him from a responsibility
for losses arising from his misconduct. Ellis v. Turner, 8 T.
R. 831. Garnett v. Wiilan, 5 B. and A. 57. The terms, " lost
or damaged," which are usually found in the notice, are not to
be construed in tiieir largest sense, but to be understood with
THE LAW OF BAILMENTS. 105U..
.it was, in fact, at least ordinarij negligence, to let a rat do
this qualification ; " the carrier himself doing nothing by his
*' own voluntary act, or the act of his servants, to devest himself
" of the charge of carrying the goods to the ultimate place of
" destination," Per Bailey, J. in Garnett v. Willan, 5 Barn,
and Aid. 57.
The following cases will show the degree of care required
from a carrier, notwithstanding a general notice, and the par-
ticular circumstances which have been decided to constitute
such gross negligence as to deprive the carrier of the benefit of
his notice.
A notice by several lighterman in these words, " We, &c. will
" not be answerable for any loss or damage which shall happen
" to any cargo which shall be put on board any of our vessels,
" unless such loss or damage shall happen, or be occasioned by
" want of ordinary care and diligence in the master or crew of
" the vessel ; in which case we will pay 10/. per cent, upon
" such loss or damage, so as the whole amount of such payment
" shall not exceed the value of the vessel and the freight ;" was
construed not to extend to protect the carrier from a loss hap-
pening by his personal default, the not providing a sufficient
vessel, but to limit his responsibility in those cases only where
the law would otherwise have made him answer for the neglect
of others, and for accidents which it might not be within the
scope of ordinary care and caution to provide against. Lyon [ 105c. ^
v. Mills, 5 East, 439. So, where a notice was given, similar to
the one in the last case, by the defendant, who was the owner
of a vessel trading from Hull to Gainsborough, and had taken
on board some goods belonging to the plaintiffs, which were to
be delivered at Stockwith ; the vessel went safe as far as Stock-
with, and there delivered part of the cargo, but the master of
the vessel finding it inconvenient to deliver the rest there, pro-
ceeded on her voyage, and sunk before her arrival at Gainsbo-
rough. In an action for the value of the goods, the defendant
was holden responsible for the loss thus occasioned by the mis-
rcmduct of bis servants. Ellis v. Turner, 8 T. R. 531.
105c-. THE LAW OF BAILMENTS.
i> sucli miscliief in the vessel ; and the Roman law has, on
this principle decided, that " si fullo vestimenta poUenda
In the same manner, wherea cask of brandy properly pack-
ed, was delivpred to the def^n'lant, to be carried from Shr'-ws
bury to London, whic h in rhe course of the journey b^iiaii to
leak considerably, within the waggoner's knowledge : he, how-
ever, proceeded on to Birmingham, where he stiid th'et- hours,
but took no steps to stop the leakage; but proceeding on to
Wolverhampton, the next stage, where he also made some
stay, he there also neglected to do so, although it was increas-
ing ; however, at the next stage, having some parcels to deliver,
he then took out the cask, and the remainder of the brandy was
saved. The defendant was held liable for the loss, notwith-
standing he had circulated a general notice, known to the plain-
tiff, but not complied with, that he would not be liable for cash,
bank-notes, jewels, and other valuable articles, or any other
goods, of what nature or kind soever, above the value of 5/.
if lost or damaged, unless there was a special agreement, md
■an additional premium paid, upon the ground, that he did not
stipulate for exemption from the- consequences of his own
misfeasance; and if good-* are confided to him, and it is proved
that he has misconducted himself, in not pei firming a duty
which by his servant he was bound to perform, that is su^h a
» misfeasance, from which, if the goods thereby become dama-
ged, his notice will not protect him. Beck v. Evans, l6 East,
247. In Garnett v. Willan, 5 B. and A. 61 Mr. Justice Hol-
royd, commenting upon this case, observed, that the defendant
r lOod. 1 '^"^^ held liable on the ground that the lo.«s accrued from ihe
gross negligence of defendant's servant. So, where a banker's
parcel was delivered to the driver of the defendant's coach,
which ran from Hereford to Brecon, and thence to Carmaiihen,
directed to the plaintifl''s correspondent at Brecon, the book-
keeper who received the parcel was aware that it contained
bank-notes, and the plaintiff also knew that the defendant was
not liable for losses beyond 5/. unless an extra charge was
paid, which was not done in the present instance. The parcel
THE LAW OF BAILMENTS. 105d.
"" acceperit eaque mures roserint, ex locato tenetur, quia
debxiit ab " hac re cavere.^^c)
(c) D. 19 2. 13. 6.
having been lost, in an action to recover the value, it appeared
that the parcel was regularly entered in the vray-biil, and put in
the back sent of the coach ; but, upon the arrival of the coach
at Brecon, the book-keeper at that pl.ice took out the other par-
cels, but neiiher looked for, nor made any inquiry about the
parcel in question, trusting, as he said, to the coachman, who
on that day was intoxicated, though not so much as to inca-
pacitate him entirely from attending to his duty. The plain-
tiff obtained a verdict, which the court refused to set aside,
upon the ground that there was gross negligence in the carrier,
from which his notice would not protect him. Bodenham v.
Bennett, 4 Price, 31. Vide Levi v. Waterhouse, 1 Price, 280.
Birkett v. Williams, 2 Barn, and Aid 356. So, in a case in
which a parcel was lost in the course of delivery, where it ap-
jieared to be usual for carriers to send two persons with the
cart employed for that purpose, and that the defendant in
general sent two, but in this instance sent only one, during
whose absence, in delivering other parcels, the one in question
was stolen ; the jury having found, that this was gross negli-
gence in the defendant, the court coincided in that f pinion,
and the defendant was dep) ived of the benefit of the notice,
to which he would otherwise have been entitled. Smith v.
Home, 8 Taun. 144.
In an action, however, against the proprietors of a stage*
coach for the loss of a parcel containing 100/. it appeared, that
the coachman had given notice that he would not be answera-
ble for money or jewels, or other valuable articles, unless he
had notice of the valuable articles delivered to him, mid that
the plaintiff had knowledge of the notice, but had not gven the
required infocmation. The money was sent, hidden in hay, in r lAr ?
an old bag, and was delivered to the defendant's book-keeper as
an ordinary parcel, v/ithout any mention being made of the
20
105e. THE LAW OF BAILMENTS.
Whatever doubt there may be among civilians and
oommon-lawyers in regard to a casket, the contents of
nature of it< contents. The defendant was holden not to be
liable for the value of the parcel, by reason of the fraud prac-
tised upon him in the concealment of it^ conte'ts, with full
knowledge that the defendant had refused to be responsible for
such parcels without such information. Gibbon v. Paynton, 4
Burr. 2298. See Batsoo v- Donovan, infra. So, where the
plaintiffs, who were bankers at Berwick and Newcastle, dehver-
ed a box containing bills, cheques, and notes, of the value of
4O72Z. to the defendants, who were the owners of a coa< h tra-
vellii)g through Berwick to Newcastle, and had given notice that
they would not be answerable for parcels of value, unless they
were entered and paid for as such ; the box was delivered to
the defendants directed to the plaintiffs at Newcastle, with only
this observatiou, " It is the box for Newcastle." and although
the plaintiffs knew of the notice, no additional premium was
paid, nor was any thing s;>id as to its contents, nor did it appear
that the def^^ndants knew that it contained articles of value.
The coach arrived at Berwick at twelve at night, and during its
stay there, which was about hilf an hour, it stood in the middle
of the str^^et, about thirty yards from the pavement. About a
quarter of an hour after the arrival of the coach, the box was
placed in the boot of the coach, and a porter placed to w Uch
it, but, notwithstanding, the parcel was stolen from the boot,
whilst he was so stationed. Under these circumstances, the
jury having found that the plaintiffs had not dealt fairly with the
defendants, in not disclosing to them that the box contained arti-
cles of value, and that the defendants were not guilty of gross
negligence, the court afterwards concurred in that opinion, and
refused to grant a new trial. Batson v. Donovan, 4 Barn, and
Aid. 21. ante, p. 104.
A general notice will also afford no protection to a carrier,
where the loss arises from a misfeasance, as in the misdelivery
of goods, whether committed by him or his servants.
A counterfeited order for a quantity of cochineal having been
THE LAW OF BAILMENTS. 105e,
•w}nch are concealed from the DEPOSITARY, (J) it seems
to be generally understood, that a" common carrier ia
(rf) Before, p. 37, 38, 39.
sent to the plaintiffs by a letter signed in the name of "J.
Worthy,'' and dated Exeter, they having had previous dealings [ 105f. ~\
with a person at that place of the name of Jonathan Worthy,
accordingly executed the order, and delivered a box containing
the article in question to the book-keeper at the defendant's
office. The coach reached Exeter on Saturday, and on that
evening a person inquired if such a box had arrived, and was
told that parcels were not sent out on Sunday, but that it might
be had by being sent for. On Sunday night a labouring maa
called at the coach-office, and asked for Mr. Worthy's box,
and upon being asked by whom he was sent, he replied, he did
not know the person, but it was a man in the street. The
book-keeper observing he had two packages for Mr. Wor-
thy, the one a box, and the other a small parcel, the man
replied, that he h id money to pay only for the box, but that he
would ask the person who sent him, for money for the other.
He went out for that purpose, and on his return declined taking
any thing but the box, which was accordingly delivered to him.
The defendants proved that a public notice not to be liable for
packages of this description, without an additional premium,
was affixed in their office ; but the porter who carried the parcel
to the office, swore, that he did not see the notice, and it was
not proved that the plaintiff himself had any knowledge of the
contents of such notice. The defendants, however, having
obtained a verdict, a new trial was granted, upon the ground of
a misdirection upon the question of gross negligence. Birkett
V. Willan, 2 Barn, and Aid. 336. And Bailey, J, in comment-
ing upon this case in Garnett v. Willan, 5 B. and A. 58. observ-
ed, that the carrier, by the wrongful act of his servant, had
devested himself of the charge of carrying the parcel to its ul-
timate place of destination ; for it was his duty to carry it
to tlie house of the person for whom it was intended at Exeter.
105f. THE LAW OF BAILMENTS.
answerable for the loss of a box or parcel, be he ever
so ignorant of its contents, or be those contents ever so
if he f)und the person for whom it was directed, or to keep it
in order to make due inquiry to find him out. And that the
court vffiTQ of opinion, that this being a case of gross negli-
gence, was a loss not protected by the terras '• lost or dama-
ged," inserted in the notice. So, where the plaintiffs sent a
paicfl containing a quantity of silks, and other articles, by
[ lO-jg'. ] che d( fendant's waggon, directed to '' Mr. James Parker, of
High-street, Oxford ;" and, on the morning after the arrival of
the waggon, the defendant's porter, upon application to that
person, found that the parcel was not for him. Shortly after-
warils, a person of the name of Parker, of whom there were
several resident in Oxford, though none in the High-street, of the
above Christian name, and to whom goods had before been
delivered when directed to Mr. Parker, Oxford, to be left till
called for. came to the defendant's office, and seeing the parcel
directed as before mentioned, he claimed it as his own, and, on
paying for the carriage, the parcel was delivered to him. The
defendant had given a general notice, not to be liable for par-
cels similar t' the one in question, unless specified when deli-
vered at t'je office, with which the plaintifls had not complied.
In an action to recover the value of the goods, the court held,
that as the parcel was directed to a particular house, to which
the rJefendant was bound, by the ordinary course of his trade,
to deliver it, the delivery to a person whose residence was un-
known, after it had been refused by the person to whom it was
directed, amounted to gross negligence in the defendant, for
which he was responsible, notwithstanding his general notice.
Duff V. Biidd, 3 Bro. and Bing. 177.
A carrier, like every other person who enters into a contract,
is bound to perform his engagements in the mode and to the
extent for which he has contracted ; and consequently, where a
carrier has undertaken the convey-ince of goods, he cannot re-
lieve himself from his responsibility by transferring them to
another carrier, or by sending them by a different conveyance
THE LAW OF BAILMENTS. 105$.
valuable, unless he make a special acceptance :(e) but
(f) 1 Stra. 145, T4tchburn and White.
from that in which he undertook to carry them. If his engage-
meats are violaied m ei hei of these respects, and the goods are
in consequeQCJ" lost, he will be responsible notwithstanding he
may be in other respf-cts eutitled to the benefit of a general no-
tice.
The plaintiffs, rf^s'iflpnt at WTrcGster, having written to their
coriespondfiit at l.Mndon, to sen > them h quantity of goods " by
" the retu>-n rf mail." >» parool CMjitaining them was accordingly
delivered at thr coach-office, wheme the Worcester mail-coach
proceeded, and bo-krd " as for the Worcester mail-coach to r 105I1, j
" Worresti^r," of wh oh coach the defendants were the proprie-
tors. The pauc« was accordingly put into that coach, and en-
tered in !he usual wa) -bill as a parcel to be carried from London
tt» Worcester, aiid actually carried from the inn whence the
coach started, to an inn in Oxford-street, at which the defend-
ants had no office or servant, but where passengers and parcels
were booked for their coach. At this place the parcel was taken
out of the mail-conch, and there left to be forwarded on the fol-
lowing day by another Worcester coach, in which one of the
defeudanri! had no interest, and from which the parcel was lost,
but by what means did not appear. The defendants had given
a general notice, which was known to the plaintiffs, not to be
liable for the loss or damage of goods of the value of those iu
question, without an additional premium beyond the common
carriage price, but which was not done. Under these circum-
stances, the defendants were holden responsible for the loss, on
the ground that the delivery and acceptance of the parcel on
the part of the defendants, entitled the plaintiffs according to
their contract, not merely to the care and diligence of one, but
of both of the defendants ; and that as they had, by the act of
their servant, wrongfully devested themselves of the charge of
carrying the parcel to its ultimate place of destination, the}'
were not protected by their notice. Garnett v. Willan, C> B.
105h. THE LAW OP BAILMENTS.
gross fraud and imposition by the bailor will deprive hira
and A. 53. So, where a banker's parcel of considerable value
was delivered to the defendants, addressed to the plaintifl^'s
clerk, with the direction, " R. Angier, Christ-church, Hants,
*' per mail," and entered by the defendants' book-keeper, to go
by the mail of which they were the proprietors ; but, instead of
sending it by this conveyance, the defendants sent it by the
Southampton light coach, the proprietors of which were difl'er-
ent from those to whom the mail belonged, and by which the
risk of the conveyance was increased. The parcel having been
lost, the defendants, upon the principle of the foi mer case of
Garnett v. Willan, were holden responsible for the value, not-
withstanding a general notice, to which they would otherwise
have been entitled, not merely as a case of negligence in the
performance of their contract, but of a refusal altogether to per-
form it, in receiving the parcel to be conveyed by one coach,
and sending it by another, of which all the same persons were
^ 105i. ] not proprietors. Sleat v. Fagg, 5 B. and A. 342. But where
the defendants were the owners of two coaches, a mail and a
heavy coach, travelling to the same place, and a parcel was de-
livered and accepted for the purpose of being sent by the mail,
but by an entry in the defendants' book, it appeared to have
been booked for the heavy coach, but no evidence was given
that it was put into or carried by either coach, or in what man-
ner the parcel was lost, whether in the warehouse, or in the
course of its conveyance, the defendants were holden not to be
deprived of the benefit of their general notice. On the part of
the plaintiffs it was contended, that the defendants were liable
for the value of the parcel, notwithstanding a notice had not
been complied with, on the ground that the loss had not been in-
curred in the course of their employment as carriers, but occa-
sioned by an act of tortious conversion in direct contravention
of the terms on which the goods were delivered to and accepted
by them. But it was observed by Lord Ellenborough, C. J.,
delivering the judgment of the court, " that to found this argu-
'■' ment, there was no other evidence but the mere fact of book-
THE LAW OF BAILMENTS. 105i.
of his action, and if there be proof that the parties were
" ing the goods for a different coach, and a subsequent non-de-
" livery, which can amount to no more than a negligent dis-
" charge of duty in their character of carriers, and not to an en-
*' tire renunciation of that character, and of the duties attached
" to it, so as to make them guihy of a distinct tortious misfea-
*' sance in respect to the goods in question." Nicholson v. Wil-
lan, 5 East, 506. See Garnett v. Willan, 5 Barn, and Aid. 59.
'\ he duty of a carrier with respect to the delivery of goods at Obligation te
the houses of the persons to whom they are directed, is not es-
tablished with the same precision as the duties which have been
before enumerated. Where it is the general course of his trade
to deliver goods iu this manner, he will be bound to do so, for
by the receipt of them, he will be understood to have contract-
ed for their conveyance on the same terms, and in the same
manner in which he usually transacts his business with respect
to other persons. Golden v. Manning, 3 Wils. 429., 2 Blk. 9l6.
S. ('. Hyde v. The Trent and Mersey Navigation Company', 5
T. R. 396. But where no such usage exists, it has not been
judicially determined that by the common law the carrier is
bound to perform this duty, although there are various dicta [ 105k. T
which incline to support that proposition. In the case of Hyde
V. The Trent and Mersey Navigation Company, 5 T R, 396.,
where the general question was agitated, Ashhurst, Buller, and
Grose, J. were of opinion that the carrier was so bound ; but
Lord Kenyon, C. J, observed, that the leaning of his mind then
was that the carrier was not liable to that extent. In a more
recent case, it was also observed, that a carrier does not only en-
gage safely to carry goods, but ; Iso to deliver them. Per Wood,
B. in Bodenham v. Bennett, 4 Pr. 34., cited by Dallas, C, J. in
Duff V. Budd, 3 Bro. and Bing. 182. But if a parcel is direct-
ed to a person generally, as to A. B. at Exeter, without specify
ing his place of abode, the carrier is not bound to carry that
parcel to any place, but will fully discharge his duty by deliver-
ing it at his office, to any person coming from A. B., or whom
he may reasonably presume to come from him. Per Abbott.
10»k. THE LAW OF BAILMENTS.
apprised of each other's intentions, although there was
C. J. Birkett v Willan, 2 Barn, and Aid. 3.'J8. But Bailey, J.
in commenting on this case, in Garnett v. Willan, 5 Barn, and
Aid. 58. observed, that it was the carrier's duty to carry the
parcel tt the house uf the person for wh< m it was intended at
Exeter, if he found the person to whom ii wa.> directed, or to
keep it in order to make due inquiry to fiij-l hm out.
In the case of foreign commerce, where the carriage of goods
is regulated by a bill of lading, or other instruinent^ this duty is
generally governed by the particular terms of the engagement.
Catley v. Wintringham, Penke N. P. C. 140. Strong v. Natally,
1 Bos. and Pul. N. R. l6. Gosling v. Higgins, 1 Camp. 451.
Abbott on Shipping.
Corner's The primary and important right which the carrier possesses,
^'^ ' *■ is to secure the payment of his charges for the carriage of the
goods, and for this purpose the law has invested him wich ample
renoedies. He may, in the first instance, refuse to take charge
of goods unless previously paid the price of their c-'rriage, or
having conveyed them to their place of destination, he may de-
cline delivering them without such previous payment Per Ab-
bott, C. J., 5 Barn, and Aid. 353., and in the event of waiving
these rights, he may maintain an action against the consignor by
the common law. I>Ioore v. Wilson, I T. R. 660. or against the
con-ignee by agreement, either expressed or implied,
ravment on A carrier is not compellable to receive goods without a previ-
r*^lo4i -1 ous tender of the charge of their carriage, vide ante, p. I03e. n.
but this is seldom the object of discussion, since, in the event
of the performance of the contract, the carrier is entitled to de-
tain them until his charges are paid. This, which is a far more
important privilege, is enjoyed by a carrier in common with
every other bailee, and exists in all cases unless extingui>hed by
a special agreement with which it is inconsistent. Per Gibbs,
C.J. in Hutton v. Bragg, 2 Marsh 345. A review of some of
the leading principle.? by which this right is governed will show
its particular natui-^, and the protection it confers, so far as re-
lates to the present subject.
1
THE LAW OF BAILMENTS. 1051.
A right of lien consists in a power of detaining articles, until Right of Lien,
the charges for hibour or expense incurred upon them has been
satisfied, and is of two descriptions, a particular lien which is
given and favorably interpreted by vhe common law, and a gen-
eral one which exists only by u.sage or agreement between the
parties, and is construed with more or less strictness according
to its object. Per Heath, J. 3 Bos. and Pul. 494. Lord Xoa-
yon, C. J. 1 Esp. N. P. C. 109. Lord Mansfield, C. J 4 Burr.
2221. Kirkman v. Shawcross, 6 T. R. 14.Rushforth v. Hadfield,
6 East, 519. 7 East, 224, 2 Rose, 355. 1 Dane Abr. 262.
This right, which probably owes its origin to the obligation
imposed by law upon persons professing to perform particular
services which public convenience requires, should not be deni-
ed, and extended, upon principles of natural justice, to every
case where expenses have been incurred upon a particular ar-
ticle, is like a distress at common law, simply a mean of securing
and compelling a payment of the charges incurred, and does
not extend to authorize a sale of the article for that purpose.
2 Roll. Abr. 85. (A.) pi. 5. 1 Vent. 71. Yelv. 67. Jones v. Thur-
loe, 8 Mod. 172. Jones v. Pearle, 1 Str. 556. ante, p. 95 a. n.
Chase v. Westmore, 5 Maule aud Selw. 185. Such a power,
however requisite in certain cases to render the right efi'ectual,
is not recognized by the law of England, although to be found
in the civil law, as existing in the individual entitled to the right,
or in any tribunal under whose sanction and controul it might
be exercised See 1 Bulst. 207. Bacon's Abr. tit. Inns.
It is a term implied by law in the contract, but may be waived
by a special agreement with which it would be inconsistent :
"Where there is an express antecedent contract between the f 10.5lll. 1
parties, a lien which grows out of an implied contract does not
arise.'' Per Lord EUenhorough, C. J. in Stevenson v. Blake-
lock, 1 Maule and Sel. 543. See also Cowell v. Simpson, 16
Yes. 275. Chase V. Westmore, 5 Maule and S. 186. In the
older books, indeed, it is laid down, that if there is a special
agreement there can be no lien, and various authorities ma}"^ be
cited in support of that proposition. In Bacon's Abr. tit. Tro-
ver, E. 44. " If a person, who would otherwise have a right to
(fletaio the personal chattel of anotlier, for the trouble or exnense
•21
lOom. THE LAW OF BAILMENTS.
he has been at concerning it, contract to be paid a sura certain
for the trouble or expense, he does thereby waive the right of
detaining the chattel." See, also, 2 Roll. Abr. 92. M. pi. 2. G
Cro. Car. 271. Yelv. 66. Breniin v. Cnrrinl, Bull. N. P. 45 a.
Bridgman's Ed. Collins v. Ongly, per Holt, C. J. cited by Py-
der, C. J. in Brenan V. Currint, MSS. Selw. Nisi Prius, 1280,
4 Ed. But this doctrine has in some late cases been restricted
to agreements prescribing a particular time and mode of pay-
ment which would be incompatible with the implied right. Per
Gibbs, C. J. inHutlon v. Bragg, 2 iMarsh. 345. Chaste v. West-
more, 5 Maule and Selw. 180. And, therefore, an agreement for
the payment of a fixed sum will not have that effect, as Avhere a
quantity of corn was delivered to a miller to grind, for which it
was agreed that 15s. per load should be paid, but no time fixed
for the payment ; in this case, the nniller was decided to be en-
titled to his right of lien. Chase v. Westmore. supra. But
where by the usage of trade the warfage dues upon goods were
to be paid by the importer at the Christmas following the impor-
tation, whether or nor they were in the mean time removed, and
the goods were sold in the preceding October, ami part deliver-
ed before Christmas ; the wharfinger, in consequence of the
bankruptcy of the importer in the March following, detained
the residue for his lien in respect of the charges for wharfage,
the court, however, held that he was not entitled to do so, since
not having any such right at the time of the sale, he could ac-
quire none against the buyer by the subsequent default of the
seller. Crawshay v. Homfray, 4 Barn, and Aid. 50. So a ship-
[ lOoii. 1 \vriglit in the river Thames has no lien on a ship taken into his
dock to be repaired without an express agreement for that pur-
pose, since, by the usage of trade, credit for repairs is given to
the owner of the ship ; but it would be otherwise where payment
was to be made in ready money, or there was an agreement that
security should be given when the work was completed. Railt
V. Mitchell, 4 Camp. 146. See Horncastle v. Farren, 3 Barn,
and Aid. 497.
A right of lien, however, is only coexistent with the jjossessioa
of the article, and being once parted with, cannot be revived by
any subsequently ac(|uired possession. Kinlock v. Craig, 3 T.
THE LAW OF BAILMENTS, lOon.
R. 119- Sweet v Pym, 1 East, 4. If thcrelure, a person has a
lien upon goods in his possession, and dchver them to a carrier
consigned on account, and at tlie risk of his principal, he cannot,
upon the event of his hankruptr\', stop them in transitu, and pro-
cure them to he re-delivered to him hy virtue of a hill of lading
signed by the carrier in the course of the voyage. Sweet v. ym ,
sii[)ra. See Man v. ShiA'ner, 2 East, 523. Hunter v. Prinsep,
JO East, 378. And being also of a personal nature, it cannot
be transferred to another by any tortious ])ledge of the proper-
ty iu respect of which it is claimed. M'Combie v. Davis, 7
East, 6. Daubigny v. Duval, 5 T. R 606. But it may be other-
wise, where one who has a lien delivers the goods to a third per-
son as a security with notice of his lien, and appoints him to
continue in possession as his servant for the preservation of his
lien. M'Conibie v. Davis, 7 East 6.
A shipmaster does not forfeit his lien for freight by deposit-
ing the goods in the King's warehouse, according to the requi-
sition of an Act of Parliament. Per Lord Ellenborough, in
Ward V. Felton, 1 East R. .^07.
Having premised these general principles, it may be observ- Particular litjn
ed that a particular lien extends only to the individual article in
respect of which the charges have been incurred, for which the
right is claimed. Per Heath, J. 3 Bos. and Pul. 494. See 4 Barn.
and Aid. 343. ; [and Hartshorne & Yanmator ads. Johnson. 2
Halst. Rep. 108.] But where a cpiantity of goods are delivered
in separate quantities at different times, yet if they form one en-
tire agreement, the right of lien attaches upon eacii part for the
expenses incurred with re5pect to the whole. Chase v. West-
more, 5 M. and S. IS I. Blake v. Nicholson, 3 M. and S, 167.
See Sodergren v. Flight, cited 6 East, 622. A carrier, hy the [ 105o. ]
common law, is entitled to this right, and may justify the deten-
tion of goods, until he is paid the carriage price of the particular
articles on which his hire is due. Skinner v. Upshaw, I Lord
Rnym. 752. [l Cons. Rep. S. C. 186. Hay ward v. Middlelon,
2 Halst. Rep. 108 Hartshorne and Yanmator ads. Johnson.]
So, the master of a vessel has a lien upon the luggage of a pas-
senger for the passage-money agreed to be paid ; or when there
is no agreement for a fixed price, until he is paid a reasonable
105o. THE LAW OF BAILMENTS.
sum. Wolf V. Summers, 2 Camp. 631. In the same manner, a
carrier hy water is entitled to a lien for his freight. Sodergren
V. Flight, cited 6 East li. 622.
[Freight is a li6n upon the cargo. Cowing v Snow, 11 Mass.
Rep. 415. Gracie v. Palmer, 8 Wheat. Rep. 605. 4 Mass. Rep.
91. 6ii)id. 422.]
And where the owner of a vessel covenanted by charter party
to let the vessel on freight, and to deliver the cargo in good con-
dition, and the freighters covenanted to pay the freight on de-
livery of the cargo, part in money, and the remainder by bills
at four monihs ; it v/as decided, that the owner might detain
the caigo until payment of the freight, the delivery of the cargo
and the payment of the freight being concurrent. acts. Yates v.
Rollin, 8 Taun. 293. See Hutton v. Bragg, 2 Marsh. 345.
Christie v. Lewis, 2 Bro. and Bing. 410. Saville v. Campion, 2
Barn, and Aid. 503.
A captain of a vessel who is personally responsible for articles
furnished to the ship, is thereby entitled to a lien on the goods
as well as freigh; ; and if a consignee, after notice from the
captain, pay the freight to the owners, he will still remain liable
to the captain. Waring v. Bell, 4 Esp. i\. P C. 22. But xhe
cantain has no lien on the ship for money expended, or debts
incurred for repairs done abroad in the course of the voyage.
Hussey v. Christie, 9 East, 426. See Abbott on Shipping, 137.
4th ed.
General lien. A riffht of general lien is not limited to the particular article
upon which expenses have been inrurred, but extends to all
goods in the ])ossossion of the party claimmg it for the balance
of the general account between the parties. Per Heath, J., 3
Bos. and Pul- 4<;4. The common law does not recognize this
right, but it may exist by special agreement ; and in the case of
a common carrier, upon whom the law imposes certain duties,
stricter proof is required than in the case of persons who are
not subject to such obligations. " Growing liens are always to
" be looked at with jealousy, and require stronger proof; they
" are encroachments on the common law." Per Lord Ellen-
borough, C. J., in Rushforth v. Hadfield, 7 East, 229-
THE LAW OF BAILMENTS. 106
A carrier may establish a claim to this right by a special con-
tract with his customer in the particular case, or it may be infer-
red from the usual course of their dealings. Rushforth v. Had-
field, 6 East, 522., 7 East, 224. So, a general notice may be
sufficient for this purpose. But notice given by a carrier " that
" all goods from whomsoever received, or to whomsoever be-
" longing, should be subject to a lien, not only for the freight of
" the particular goods, but also for any general balance that may
" be due from the person to whom they are consigned or ad-
" dressed," was decided not to extend, as against the principal,
to goods transmitted to a mere factor for the debt due by him to
the carrier. However, such an agreement, it appears, between
the carrier and the owner of the goods, may be binding. Wright
V. Snell, 5 B. and A 350. The right may also exist by usage
of trade ; but to establish the claim upon this ground it is neces-
sary that the usage should be general and uniform, and of such
notoriety, that persons dealing with the carrier may fairly be
presumed to have dealt with him with reference to such usage.
Evidence of a few recent instances of the exercise of this right
by carriers will not be sufficient. Rushforth v. Hadfield, 7 East,
224. But in an action of trover against a carrier for goods
which he claimed to detain by reason of a general lien, this
right was established, by evidence of the defendant having be-
fore claimed, and been allowed to retain for his general balance,
both against bankrupt estates and solvent customers, and also
by the evidence of a principal carrier on the western road to the
same effect, respecting himself Aspinall, assignee of Howarth,
V. Pickford, 3 Bos. and Pul. 44. n. (a.)
In cases of this description, the agreement, or usage relied
upon, must in general be proved ; but the proof of usage of trade
has in some cases been dispensed with. In the case of Naylor
V. Mangles, 1 Esp. N. P. C. 109., where the sole question was,
whether a wharfinger had a lien for the balance of his general
account upon the goods in his possession. Lord Kenyon, C. J.,
observed, that a lien from usage was matter of evidence, and
that the usage in the present case had been proved so often, that
it should be considered as a settled point, that the wharfinger
had the lien contended for. And in the case of Spears v. Hart-
106a. TIIK LAW OF BAILMENTS.
lev, 3 Esp. N P. C. 81. Lord Eldon, C. J., on the authority
of the preceding case, held that a wharfinger has such hen ; and
further, that, although ihc statute of limitations had run against
a demand, if the creditor obtains possession of goods on which
he has a lien for a general balance, he may hold tliera for that
demand i)v virtue of the lien, for the debt is not discharged by
the statute, but only the remedy. See Crawshay v. Hoinfray, 4
Barn, and Aid 00. An usage for carriers to retain goods as-a
lien for a general b'llance of account between them and the con-
signees, cannot aflect the right of the consignor to stop the goods
in transitu. Oppenheim v. i\ussel, 3 Bos and Pul. 42. So, a
carrier who, by the usage of a particular trade, is to be paid for
the carriage of goods by the consignor, has no right to retain
them ngiinst 'he consignee for a general balance due to him for
the carriage of other goods of the same sort sent by the con-
signor. Butler V. Woolcott. 2 Bos. and Pul. N. R. 64.
Consignor'! The consignor is responsible by law to the carrier for his
charges in the carriage of the goods, and the carrier may con-
sequently maintain an action against him for their amount. In
an action by the consignors for not safely carrying and deliver-
ing goods sent by the plaintifls, the declaration alleged that the
defendant undertook to carry the goods '' for a certain hire and
'■ reward to be paid by the plaintifls,'' and upon proof at the
trial that the consignee had agreed to pay it, the plaintifls were
nonsuited ; but upon application to set aside this nonsuit, Bul-
ler, J., before whom the cause was tried, observed, that on con-
sidering the question, lie found he had been mistaken in point
of law ; for that, whatever might be the contract between the
vendor and the vendee, the agreement for the carriage was be-
tween the carrier and the vendor, the latter of whom was by
law liable ; and the other two judges being of the same opinion,
tlie rule was made absolute without further argument. Moore v.
^Vilson, 1 T, U. Gj9. But see Daws v. Peck, 8 T. R. 334. In
an action for freight, damage done to the goods by bad stowage
cannot be given in evidence, either as a complete defence, or
in mitigation of damages. Sheels v. Davis, 4 Camp, il9.
Ue ivery be- r^^^^ seller is bound to follow the directions prescribed bv the
twecn I. on- '
sitcnor ami purchaser, in the execution of an order for sending goods.
i-'onsignce.
THE LAW OF BAILMENTS. 106a.
Cooke V Ludlow, 2 N. P. 1 !9 Hawkins v, Kutt, Peake, 186.,
since he sustains the risk of their conveyance; but, in the ab- T 106b. l
sence of any specific directions upon that subject, the seller will
be considered as duly performinp; his part of the contract, if he
send them by the usual and accustomed mode of conveyance.
Clark V. Hutcliins, 14 East, 475. 1 Stark. N. P C. 17. 'i he
sellei* in forwarding goods will not be responsible for a loss
where he has not been guilty of negligence; as where the plaintiff
received an order to send certain goods to the defendant living
at Bristol, by any conveyance which would reach that phce, in-
forming him when they were sent, that he might know when to
expect them : the goods were accordingly delivered to a wharf-
inger to go by a particular vessel, directed to the defendant, and
a letter written informing him of the fact ; this vessel, htuvever,
being full, they did not go by that conveyance, but were sent by
another vessel on the following dny. The defendant made re-
pealed inquiries after the goods without success, but never wrote
to the plaintiff to apprize him of the circumstance. The goods
having-been lost, it was decided, in an action j'gi'.inst the defend-
ant for the value of the goods, that the wharfinger was not, in
any degree, the agent of the plaintiff, but of the defendant, by
whose order and direction the goods were sent, and that no neg-
ligence was imputable to the plaintiff, for not inquiring after tlie
vessel, but that the defendant should have given due notice that
they had not been received. Cooke v. Ludlow, 2 Bos. and Pul.
N. R. 119.
The effect of a delivery of goods to a carrier, on bchrdf of the EiTect of such
buyer, is to vest the property in him absolutely from the time dt-Hveiy.
of the delivery, and to render him responsible for any injury
they may afterwards sustain Dutton v. Solomonson, 3 Bos. and
Pul. 582. Dawes v. Peck, 8 T. R. 330. And if the consignee
at the moment of delivery is under age, although he attain his
full age before he receives the goods, he may rely upon his in-
fancy as a defence to an action for the value of the goods. Cirif-
fm v. Lanfield, 3 Camp. 255. This general principle is not
affected by the consignor paying for the booking of tlie goods.
Dawes v. Peck, 8 T. R. 330., or by his beuig responsible to the
carrier for the price of tlie carriage, for that docs not make hint
106b. THE LAW OF BAILMENTS.
an insurer of the goods while under the carrier's care. King v.
Meredith, 2 Camp. N. P. C. 639. The rule also prevails not
[ 106c. ] only when goods are sent from one part of England to another,
but also to the case of goods sent from England to a foreign
country ; for, whether the goods are delivered on board a vessel
abroad, to the order of a person resident in this country. God-
frey V. Furze, 3 Pere Wms. 186, ; or sent from hence Vo the
order of persons resident abroad. Brown v. Hodgson, 2 Camp.
36., the property equally vests in the consignee. There is also
no distinction between the cases where the carrier is named by
the consignee, and where he is not named ; in both cases the
property vests in him upon the delivery. In Vale v. Bayle,
Cowp. 296, the seller had been in the habit of sending goods to
the buyer by water, but in the pursuance of a letter, desiring
them to be sent by a particular carrier by land, he sent them
according to his directions, and the delivery was holden to vest
the property in the buyer. See Dawes v. Peck, 8 T. R. 330.
So, in the case of Dutton v. Solomonson, 3 Bos, & Pul. 582.,
upon an objection that the property did not vest in the vendee
by a delivery to a carrier not named by him, Lord Alvanley,
C. J. observed, " that it appeared to him to be a proposition as
" well settled as any in the law, that if a tradesman order goods
'• to be sent by a carrier, though he does not name any parti-
" cular carrier, the moment the goods are delivered to the car-
" rier, it operates as a delivery to the purchaser ; the whole
" property immediately vests in him ; he alone can bring an
" action for any injury done to the goods ; and if any accident
" happen to the goods, it is at his risk." So, in the case of God-
frey v. Furze, 3 P. Will. 185., it was said by counsel in argu-
ment, and assented to by Lord Chancellor King, that if a trades-
man in London send goods by order to a tradesman in the
country, by a carrier not appointed by the country trader, if the
carrier embezzles the goods, the trader in the country must stand
to the loss. In the same manner, if goods are delivered to a
carrier, or hoyman, to be delivered to A., and the goods are
lost, A. can only bring the action, which shows the property to
be in him. Per Lord Hardwick, in Snee v. Prescott, 1 Atk. 248.
So, where goods were sent from JManchester to London by a
THE LAW Of BAILMENTS. 106c.
carrier not appointed by tlie purcli iser, but by (lie usual con-
veyancoj the delivery to the carrier was decided to vest the
properly in the buyer, and from that instant the goods were at [ 106d. ]
his risk. Button v. Solomonson, 3 Bos. and Pul. 582. In these
c.tses, however, the seller may retain a controul over the goods ...
by qualifying the deliver}', as where goods delivered on board a
vesst-'l are expressed in the receipt given to the lighterman, to
be for and on account of the shipper; this will give the holder
of the receipt a controul over tlie goods until exchanged for the
bill of lading Craven v. Ryder, 6 Taun 435. And the master
of the vessel, upon tender of such a receipt by a lighterman, is
bound to sign it, and his refusal to do so will not impair the
right of the seller. Ruck v. Hatfiv'ld, 5 Barn, and Aid. 632.
See Goodh irt v. Lowe, 2 Jac. and Walk. 349.
A delivery of goods to a wharfinger to be forwarded to the
buyer, according to a previous course of dealing between the
parties, does not constitute an acceptance within the statute of
frauds. 29 Cha. 2. c. 3. s. 17. In the case of a delivery to aa
agent, who is merely authorized to receive the goods, and not
to judge of their quantity and quality, so as to render the con-
tract conclusive, the delivery will not satisfy the terms of the
statute ; for there can be no actual acceptance of the goods, so
long as the buyer continues to have a right to object to them
upon either of those points. Hanson v. Armitage, 5 Barn, and
Aid. 557. Vide Astey v. Emery, 4 M. and S. 262.
The vesting of the property in a buyer, upon a delivery of stoppage in
goods to a carrier on his account, prevails absolutely in all cases ; O'^ns't"-
but there is one instanre in which a vendor is allowed to re-
sume the possession : wIkmi goods have been sold, and not paid
for, by reason of credit being given or otherwise, and the ven-
dee to whom they have been consigned, becomes insolvent, the
seller may seize the property at any time before they come inio
the possession of the buyer. This right, usually termed a stop-
page in transitu, and originally adopted in the courts of Chan-
cery. Wiseman v. Vandeput, 2 Vern. 203. Snee v. Prescot,!
Atk. 245. D'Aguila v. Lambert, Ambler, 399., but now estab-
lished and favourably received in courts of law, 5 East, 180, is
founded upon principles of equity and natural justice, in order
106d. THE LAW OF BAILMENTS,
to indemnify llie seller from the loss which he would otherwise
sustain wliere the chance of payment is hopeless. See Lllis v.
Hunt, 3 T. R. 469. Lickbarrow v. Mason, i2 T. R. 75. S. C. 5 T.
[ 106e. ] R 683. 1 H B. 357. But a court of equity will not exercise
this right on behalf of a p'lrchaser ; for where goods had be care,
and belonging to the plaintiff, took therefrom a part of the
contents, and converted the same to his own use, but not that
the said contents were feloniously carried away, such offence is
considered as amounting to a trespass only. Cook v. Darby,
4 Munf Rep. 444.]
r 107f 1 Where the action is framed in case for a breach of duty, and
Trover. not in terms of contract, a count in trover may be joined. In
the case of Dickon v. Clifton, 2 Wils. 319. where the action was
framed in this way, for negligence and misfeasance, with which
a count in trover was joined, an objection was made upon mo-
tion in arrest of judgment, that these counts could not be join-
ed, but was overruled by the court. Lord Chief Justice Wil-
mot observed, ''• I own, that in many books it is reported, that
" trover, and a count against a common carrier, cannot be
" joined, but common experience and practice is now to the
" contrary ;" and Lord Ellenborough, C. J. in Govett v. Rad-
nidge, 3 East, 69. recognizing this observation, added, " that
" when the counts were framed in this manner, it was then the
" daily, and well warranted practice, to join thera."
To sustain this count a conversion, which is an essential ingre-
dient to the maintenance of this form of action, must be pro-
ved ; it may, therefore, be useful to observe the nature of this
act, and its qualities. A conversion is a misfeasance, consisting
in the commission of a tortious act, and may be defined to be
the wrongful assumption of the right of ownership over pro-
perty, to the prejudice of the true owner. Ross v. Johnson.
THE LAW OF BAILMENTS. 107f.
at a proper time, were driven against a pier by a sudden
5 Burr. 2826. M'Combie v. Davies, 6 East, 540. Bromley
V. Coxwell, 2 Bds. and Pul. 439 Where the act relied upon
decidedly indicates thi.« assumption of ownership, it will of it-
self amount to a conversion. Thus, where one person assumes
to himself the property and right of disposing of another man's
goods. Per Holt, C. J. in Baldwin v. Cole, 6 Mod. 212. re*
cognized by Lord Ellenboroutih, C. J. in M'Combie v. Da-
vies, 6 East, 540. As by the actual destruction of property. /
Per Abbott, C. J. in Keyworlh v. Hill, 3 Barn, and Aid. 6S7.
Or obtaining possession of it by compulsion, under a void legal
process. Summersett v. Jarvis, 3 Bro. and B. 2. So, taking
property by assignment from one who has no authority to trans-
fer it, as when a factor without authority pledges goods with
which he is entrusted to sell. M'Combie v, Davies, 6 East,
540. or goods are sold by a person having no authority to dis-
pose of them, and this will be a conversion, both in the seller and
the buyer, unless he has purcliased the goods in market overt
bona fide, and without the knowledge of imperfection in the
seller's title Freeman v. East India Company, 1 Dowling and [ 107g. ]
Ryl. 234. To apply these general principles to our present
subject, it has been holden, in the case of a carrier, that if he
draw out part of the vessel and fill it up with water, it is a con"
version of all the liquor. Richardson v. Atkinson, 1 Str. 576.
So, trover will lie against a carrier who delivers goods by mis-
take to a wrong person ; for by such delivery he becomes an ac-
tor, and is guilty of a conversion, so as to support this action.
Youl V. Harbottle, Peake's N. P. C. 49. cited by Bailey, J. in
Deveraux v. Barclay, 2 Barn, and Aid. 704. See Ross v.
Johnson, 5 Burr. 2827- Townsend v. Inglis, Holt, N. P. C. 278.
But where the act is not of itself of so decisive a character,
other circumstances become requisite to show a conversion, and,
for this purpose, a demand and refusal are usually relied upon
to make the act complete. The mere non-delivery of goods
will not constitute a conversion on the part of the carrier, but,
if he has them in his possession, and, upon demand, refuse to
107^. THE LAW OF BAILMENTS.
breeze, and overset by the violence of the shock ;(/i) nor,
{hj 1 Slra 123. Amies and Stevens.
deliver thfni, this wil! be evidwnce of a conversion. Salk 655.
"ioul V. ILirbottle, iVake, N. P. C. 50. 1 Cver beyond the value of the goods in question ; for
" which reason the declaration does not differ from th" cnmmon
" c.ise of goods sold and delivered." Hutton v. Bolton, 1
Hen Bl. 299 n, b.
But in assumpsit to recc ver the loss sustained upon goods put
on board of the defendant's barge, and which han habitasset , si autem domus non minabatur ruinam, sed irapctu
" tempestatis validae corruit, uon est tibi imputandum."
(3) 1 Ld. Raym. 646. S. C. See also Whitfield v. Lord Le
Despeticer, Cowper, 7^4 where the decision in Lane v. Cotton
is confirmed ; and where it is settled, thai no action of the kint?
THE LAW OF BAILMENTS. 110
for the acts of his clerks and agents ; as the statute,
professedly enacted for safety as well as despatch, could
not have been intended to deprive the subject of any
benefit Avhich he before enjoyed ; for these reasons, and
for many others, I believe that Cicero would have said
what he wrote on a similar occasion to Trebaiius, "Ego
tamen sccvoL.^ assentior."(r) It would, i>erhaps, have [ m ]
been different tmc/er the statute, if the ppst had been rob-
bed either by day or by night, when there is a necessity .
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 emphatical lan-
guage of St. German, *' that all the former diversities
" be granted by secondary conclusions derived upon the
" law of reason, without any statute made in that behalf;
" and, peradventure, laws and the conclusions therein be
*• the more plain and the more open ; for if any statute ivere
** made therein, I think verily, more doubts and questions
" would arise upon the statute, than doth now, when they
" be only argued and judged after the common law."(6)
(r) Epist ad Fam VII. 22.
(«) Doct. and Slud. dial. 2- chap. 38. last sentence. ,
can be supported except in the circumstance of personal mis-
conduct in any party employed in the post office. Jn the case
of Whitfield V. Lord Le Despencer, which was an action brought
against the Postmaster General, for a bank note stolen by one
of the sorters out of a letter delivered into the Post Office, Lord
Mansfield, relying upon the public nature of the post-master's
employment — that the inferior officers, though a[)pointed by him,
gave security to the crown, — that they were subject to heavy
penalties, and what in others would be a breach of trust, was in
them declared to be a capital felony ; decided, in concurrence
with the other judges, that the action could not be maintained.
See JNicholson v. Mounsey, 15 East, 384.
Ill THE LAW OF BAILMENTS.
Before I finish the historical part of my Essay, iii
which I undertook to demonstrate " that a perfect har-
" mony subsisted on this interesting branch of jurispru-
" dence in the codes of nations most emhitnt for legal
" wisdom,^' (t) I cannot forbear adding a few remarks on
Laws of the the institutions of those nations who arc generally called
JSorthern Na- , , , , . ■ . ^ i i„
tions. harharousy and who seem m many mstances to nave ae-
[ 112 ] served that epithet : although traces of sound reasoning
and solid judgment appear in most of their ordinances.
By the ancient laws of the WisiGOTiis, which are in-
deed rather obscure, the " keeper of a hrtrse or an ox
" for hire, as well as a hirer for use, was obliged, if the
" animal 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 altera-
tion in the capitularies of Charlemagne and Levns the
Pious, (u) where the Mosaic law before cited concerning
a horroivcr may also be found. (w) In all these codes a
dejvjshtari/ of gold, silver, or valuable trinkets, is made
chargeable, if they are destroyed by fre, and his own
goods perish not with them ; a circumstance which some
other legislators have considered as conclusive evidence
Laxvs of the of gross neglect or fraud : thus by the old British Tract,
Britons. called the Book of Cynawg, a j)erson who had been
robbed of a deposit, was allowed to clear himself by mak-
ing oath, with compurgators, that he had no concern in
the robbery, unless he had saved his own goods ; and it
was the same, 1 believe, among the Britons in the case
of a loss hj fire, which happened without the fault of the
bailee ; although Howel the Good seems to have been
(n p. 11.
(if) Limlenbiog, LL. Wisigoth. lib. 5. tit. 5. s. 1, 2, 3. and LL. Baiuvar.
it. 14. s.1,2, 3. 4. Capitullib. 5 S.204.
{w) Capitul. lib. 6. s- 22. Exod xxii. 14, 15.
I
THE LAW OF BAILMENTS. n;J
rigorous in this case for the sake of pubhc security.(r)
There was one regulation in the Northern code, which I
have not seen in that of any other nation : if precious
things were deposited and stolen, time was 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
3ustineret."(7/)
Now, I can scarce persuade myself, that the phrase
used in these laws, si id pcrierit, extends to a perishing
by inevitable accident ; nor can I think tl;at the old Go-
thic law, cited by Stiernhooli, fully proves his assertion,
that " a depositary was responsible for irresistible force ;''^
but I observe, that the military lawgivers of the North,
who entertained very high notions of good faith and ho-
nour, were more strict than the Romans in the duties by
which depositaries and other trustees were bound : an
exact conformity could hardly be expected between the
ordinances of polished states, and those of a people who
could suffer disputes concerning bailments to be decided
Yiy combat ; for it was the Emperor Frederick II., who [ 114 J
abolished the trial by battle in cases of contested depo-
sits, and substituted a more rational mode of proof.(2:)
I purposely reserved to the last the mention of the Laws of the
Hindu, or Indian, code, which the learning and indus-
try of my much-esteemed friend, Mr. Halhed, has made
accessible to Europeans, (4) and the Persian translation
of which I have had the pleasure of seeing ; these laws, ,
which must in all times be a singular object of curiosity,
(x) LL. Hywel Dda, lib. 3. cap. 4. s. 22. and lib. 3. cap. 3. s. 40. See also
Stiernli. De Jur. Sueon. p. 256, 257.
(y) LL. Wisigoth. lib 5. tit. 5. s.3.
(z) LL. Longobard. lib. 2 tit. 55. s. 35. Constit. Neapol. lib. 2. tit. .34.
(4) By an English translation, published in J 78 1, the
preface to the work contains many valuable remarks on the
114 THE LAW OF BAILMENTS.
are noiv of infinite importance ; since the happiness of
millions, whom a series of amazing events has subjected
to a British power, depends on a strict observance of
them.
It is ple^asing to remark the similarity, or rather iden-
tity, of those conclusions, which pure unbiassed reason in
all ages and nations seldom fails to draw, in such juridi-
cal inquiries as are not fettered and manacled by positive
institution ; and although the rules of the Pundits con-
cerning succession to property, the punishment of offences,
and the ceremonies of religion, are widely different from
ours, yet in the great system of contracts and the com-
mon intercourse between man and man, the PoOTEE of
the Indians,{o) and the Digest of the Romans, are by no
means dissimilar. (a)
Thus it is ordained by the sages of Hindustan, 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 at-
{a) " Haec omnia," says Grotius, " Romanis quidem congruunt legibus,
" sed non ex illisprimitus, sedex aequitate natuiali, veniunt : quare eadem
" apud alias quoque gentes reperire est." De Jure Belli ac Pacis, liu. 2.
cap 12. s. 13.
history and antiquities of India : with respect to the code, Sir
William Jones truly observes, that " the rules of the Pundits
concerning succession to " propcrti/, the punishment of offences,
" and the ceremonies oi religion, are widely ditHerent from ours ;"
it may, however, he remarked, that the chapter " of the divi-
^' sion of inheritable property," and that of justice," are by no
means unworthy the attention of the British lawyer, who is dis-
posed to extend the researches connected with his professional
science. Halhed's Code of Gentoo Laws.
(5) Dr. Robertson (see his Disquisition on India, Appendix,,
p. 247 — 254.) bestows his approbation on the Indian Code, and
compares it with that of Justinian.
THE LAW OF BAILMENTS. 115
" tentioUy but shall not be bound to restore the value of
" them, if they be spoiled by iinforsctn accident, or l>uin-
*' ed, or stolen ; unless he conceal any part of them that
" has been saved, or unless his own effects be secured, or
" unless the accident happen after his rufusal to redeli-
" ver the goods on a demand made by the depositor, or
" while the depositary, against the nature of the trust,
" presumes to maJce use of them ;" in other words, " the
" bailee is made answerable for fraud, or for such negli-
" gence[6) as approaches to it."(Z')
So a borrower is declared to be chargeable even for
casualty or violence, if he fail to return the thing after
the completion of the business for which he borrowed it;
but not, if it be accidentally lost or forcibly seized, before
the expiration of the time, or the conclusion of the affair,^
for which it was lent :{c) in another place it is provided,
that, if a pledge be damaged or lost by unforeseen acci- [ 116 '}
dent, the creditor shall nevertheless recover his debt with
interest, but the debtor shall not be entitled to the value
of his pawn ;{d) and that, if the pledgee use the thing
(b) Gentoo Laws, chap. 4- See before, p. 47.
(c) Same chapter. See before, p. 68.
id) Chap. 1. s. 1, Before, p. 84, 85.
(6) The words of this part of the BraminiCal institutions are
solemn and remarkable : they prove that the oriental notions on
the subject of hospitality to persons, are extended with scrupu-
lous 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 attention, then whatever crime it is
" for a woman to abuse her husband, or for a man to murder
" his friend, the same degree of guilt shall be imputed to him,
" and the value of the trust must be made good." Gentoo
Laws, c. 4. p. 120.
116 THE LAW OF BAIL^IENTS.
pledged, lie shall pay the value of it to the pledgor in
case of its loss or damage, whilst he uses it.(e)
In the same manner, if a person hire a thing for use,
or if any metalhe delivered to a toorhman, for the purpose
of making vessels or ornaments, the bailees are holden
to be discharged, if the thing bailed be destroyed or
spoiled by naturul misfortune or the injustice of the ru-
lingjjoiver, unless it be kept after the time limited for the
return of the goods, or the performance of the work.(/)
All these provisions are consonant to the principles
established in this Essay ; and I cannot help thinking,
that a clear and concise treatise, written in the Persian
or Arabian language, on the law of Contracts, and evin-
cing the general conformity between the Asiatic and Eu-
ropean systems, would contribute, as much as any regu-
lation whatever, to bring our English law into good odour
among those whose fate it is to be under our dominion,
and whose happiness ought to be a serious and continual
object of our care.
Thus I have proved, agreeably to my undertaking,
^ J that the plain elements of natural law, on the subject of
BaiLjIEXTS, which have been traced by a short analysis,
are recognised and confirmed by the wisdom of nations;(^)
and I hasten to the third, or synthetical, part of my work,
in which, from the nature of it, most of the definitions
and rules already given must be repeated with little vari-
ation in form, and none in substance : it was at first my
design to subjoin, with a few alterations, the Synopsis of
Delrio ; but finding that, as Bynkershoek expresses
himself, with an honest pride, I had leisure sometimes to ^
write, but never to copy, and thinking it unjust to embel-
lish any production of mine with the inventions of ano-
(e) Chap. 1. s. 2. Before, p. 81.
(f ) Chap. 4. and chap. 10. Before, p. 08, 91
(g) Before, p. 4. and 11.
THE LAW OF BAILMENTS. 117
ther, I changed my ])lan ; and shall barely recapitulate 'ii. The Syn-
the doctrine expounded in the preceding pages, observ-
ing"* the method which logicians call Synthesis, and in
which all sciences ought to be explained.
1. To begin then with definitions : 1. Bailment is a Definitions.
delivery of goods in trust, on a contract expressed or im-
plied, that the trust shall be duly executed, and the goods
re-delivered, as soon as the time or use for which they were
hailed shall have elapsed or he performed,
2. Deposit is a hailment of goods to he kept for the
hailor without a recompense.
3. Mandate is a hnilmcnt of goods, ivithoiit reward,
to be carried from place to place, or to have some act per-
formed about them.
. . • r 118 1
4. Lending for use is a hailment of a thing for a certain ^ J
time, to he used by tiie borrower without paying for it.
5. Pledging is a hailment of goods by a debtor to his
creditor to he kept till the debt be discharged.
6. Letting to hire is, 1. a hailment of a thing to he
used by the hirer for a compensation in money ; or, 2. a
letting out of ivorlc and labour to be done, or care and
attention to be bestowed, by the bailee on the goods hailed,
and that for a pecuniary recompence : or, 3. of care and
pains in carrying the things delivered from one place to
another for a stipulated or implied reward.
7. Innominate bailments are those where the compensa-
tion for the use of a thing, or for labour and attention is
not pecuniary; but either, 1. the reciprocal use, ov the
gift of some other thing ; or, 2. work and pains, reci-
jjrocally undertaken ; or, 3. the use or gift of another
tliin"- in consideration of care and labour, and conversely.
8. Ordinary neglect is the omission of that care which
every man af common prudence, a7id capable of governing
a family, takes of his own concerns.
' • 28
118 THE LAW OF BAILMENTS.
0. Gross neglect is the ivo7it of that care which every
man of common sense, hoiv inattentive soever, takes of his
own property.
10. Slisrht nep-Ject is the omission of that dilis-ence
r 119 "1 . "^ .
«- J which very circumspect and thoughtful persons use in se-
curing their own goods and chattels.
11. A naked contract is a contract made without
consideration or recompence.
II. The rules, which may be considered as axioms,
flowing from natural reason, good morals, and sound
policy, are these :
1. A bailee, who derives no benefit from his under-
taking, is responsible only for gross neglect.
2. A bailee, who alojie receives kenefi from the bail-
ment, is responsible for slight neglect.
3. When the bailment is beneficial to hath parties, the
bailee must answer for ordinary neglect.
4. A sptcial agreement of any bailee to answer for
more or lens, is in general valid.
5. All bailees are answerable for actual fraud, even
though the contrary be stipulated.
6. No bailee shall be charged for a loss by inevitable
accident or irresistible force, except by special agreement.
7. Robbery by force is considered as irresistible ; but
- u loss by private stealth is presumptive evidence of ordi-
nary neglect.
8. Gross neglect is a violation of good faith.
9. No action lies to compel performance of a naked
contract.
10. A reparation may be obtained by suit for every
damage occasioned by an injury.
11. The negligence of a servant, acting by his master's
express or implied order, is the negligence of the master.
THE LAW OF BAILMENTS. 120
III. From these ruks the following propositions are Propositions.
evidently deducible.
1. _A Depositary is responsible only for gross neglect ;
or, in other words, for a violation of good faith.
2. A Depositary, whose character is known to his
depositor, shall not answer for mere neglect, if he take
no better care of his oicn goods, and they also be spoiled
or destroyed.
3. A Mandatary io'carr?/ is responsible. only for ^ross
neglect, or a breach of good faith.
4. A Mandatary to peforrm a work is bound to use a
degree of diligence adequate to the performance of it.
5. A man cannot be compelled by action to perform
his promise of engaging in a deposit or a mandate.
6 . A reparation may be obtained by suit for damage
occasioned by the non-performance of a promise to be-
come a depositary or a mandatary.
7. A borroiver for use is responsible for slight negli-
gence.
8. A pawnee is answerable for ordinary neglect.
9. The Hirer of a thing is answerable for ordinary
neglect.
10. A workman for hire must answer for ordinary r 221 ")
neglect of the goods bailed, and apply a degree of skill
equal to his undertaking.
11. A Letter to hire of his care and attention is re-
sponsible for ordinary negligence.
12; A Carrier for hire, by land or by water, is an-
swerable for ordinary neglect.
IV. To these rules and propositions there are some
exceptions :
1. A man who spontaneously and officiously engages to P ••
kenp, or to carry, the goods of another, though without
reivard, must answer for slight neglect.
[21 THE L\W OF BAILMENTS.
2. If a man, through strong persuasion, and with re-
lucfnncc, undertake the execution of a mandaic, no more
can be required of him than a fair exertion of his aiHity.
3. All bailees become responsible for losses by ca-
sualtij or violence, after their refusal to return the things
bailed on a lawful demand.
4. A BORROWER and a hirer are answerable in all
EVENTvS, if they I'^ep the things borrowed or hired after
the stipuleited time, or use them, differently from their
agreement.
5. A Depositary and a pawnee are answerable in
ALL EVENTS, if they use the things deposited or pawned.
6. An INNKEEPER is chargeable for the goods of his
guest uithin his inn, if the guest be robbed by the ser-
vants or inmates of the keeper.
7 A COMJVION CARRIER, by land or by water, must in-
[ 122 ] demnify, the owner of the goods carried, if he be ROB-
BED of them.
General coro!- V. It is 7)0 exception, h\it n coroUary, fvom the rules,
mZk."* '^~ that " every bailee is responsible for a loss by accident
" or force, however inevitable or irresistible, if it be
" occasioned by that degree of negligence, for which the
"nature of his contract makes him generally answera-
" ble ; and I may here conclude my discussion of this
important title in jurisprudence with a general and obvi-
ous remarli ; tlmt " all the preceding rules and proposi-
" tions may be diversified to infinity by the circmnstan-
" bcs of every particular case ;" on which circumstances
it is on the Continent the province of a. judge appointed
}jy the sovereign, and in England, to our constant ho-
nour and happiness, of a /wr?/ freely chosen by the parties,
finally to decide : thus, when a painted cartoon, pasted
on canvas, had been deposited, and the bailee kept it so
near a damp wall, that it peeled, and was much injured.
THE LAW OF BAILMENTS. 122
ihe question, " whether the depositary had been guilty
*' of gross neglect," was properly left to the jury, and, on
a verdict for the plaintiff with pretty large damages,
the court refused to grant a new trial ;(//) but it was the
judge who determined, that the defendant was by law
responsible for ^?-05s negligence only; and if it had been
proved, that the bailee had kept his own pictures of the [ 1 23 ]
samt sort in the same place and •manner, and that they
too had been spoiled, a new trial would, !• conceive, have
been granted ; and so, if no more than slight neglect
had been committed, and the jury had, nevertheless,
taken upon themselves to decide against law, that a
bailee icithout reward was responsible for it.
Should the method used in this little tract be approved. Conclusion.
I may possibly not want inclination, if I do not want
leisure, to discuss in the same form every branch of En-
glish law, civil and criminal, 'private and public ; after
which it will be easy to separate and mould into distinct
works the three principal divisions ; or the analytical,
the historical, and the synthetical, parts.'
The great system of jurisprudence, like that of the
universe, consists of many subordinate systems, all of
which ai'e connected by nice links and beautiful depen-
dencies ; and each of them, as I have fully persuaded
myself, is reducible to a few plain elements, either the
wise maxims of national policy and general convenience,
or the positive rules of our forefathers, which are seldom
deficient in wisdom or utility : if law be a science, and
really deserve so sublime a name, it must be founded on
})rinciple, and claims an exalted rank in the empire of
reason ; but if it be merely an unconnected series of de-
crees and ordinances, its use may remain, though its
70 2 Stra. 1099. Mvtton and Cook.
123 THE LAW OF BAILMENTS.
dignity be lessened, and he will become the greatest
lawyer who has the strongest habitual or artificial memo-
[ 124 ] ry. In practice, law certainly employs two of the mental
faculties ; reason^ in the primary investigation and deci-
sion of points entirely new ; and memory, in transmitting
to us the reason of sage and learned men, to which our
own ought invariably to yield, if not from a becoming
modesty, at least from«^ just attention to that object, for
which all lawfe- are framed, and all societies instituted —
THE GOOD OF MANKIND.
APPENDIX.
Trinity Term, 2 Annce Regina
CoGGs V. Bernard. 3.Ld.Ray.90&
S. C. Com. 133. Salk. 26. H. Salk. 11 Holt. 13. Entry. Salk 735-
3 Ld. Raym. 1G3.
In an action upon the case the plaintiff declared, quod ^ a ^^"^"'**
cum Bernard the defendant, the tenth of November, 13 carry goods
TT7-7J no • T 1 /■ A (a)safely and
n tU, 6. at, iiied to be law by th^
whole Court, ex relatione m'ri Bunbury. Psote to 3d Ed.
VI APPENDIX.
takes specially, to keep goods as lie will keep his own.
Let us consider tlie reason of the case. For nothing ie
2 Ld. Rrnjm. ^^w that is not reason. Upon consideration of the aii-
^^^'- thoritics there cited, I find no such difference. In 9 Ed.
4. 40. b. tliere is such an opinion by Danhy. The case
in 3 H. 7. 4. was of a special 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 founda-
tion of Southcote' s case. But there are cases there cited,
which are stronger against it, as 10 H. 7. 26 .29. Ass. 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. Fitzh. Detinue^ 59.
the case of goods bailed 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 at all events. But then it is an-
!-\vered to that, that the bailee might take them specially.
There are many lawyers don't know that difference, 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 against all events. But if
(a) Vide ante («) a man docs 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.
Holt, 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 mana-
ged them so negligently, that for \^ant of care in him
APPENDIX, vii
some of the goods were spoiled. Upon not guilty plead-
ed, there has been a verdict for the plaintiff, and that
upon full evidence, the cause being tried before me at
Guildhall. There has been a motion in arrest of judg-
ment, that the declaration is insufficient, because the de-
fendant is neither laid to be a common porter, nor that
he is to have any reward for his labour. So that the
defendant is not chargeable by his trade, and a private
person cannot be charged in an action without a reward.
I have had a great consideration of this case, and be-
t;ause some of the books make the action lie upon the
reward, and some upon the promise, at first I made a
great question, whether this declai'ation was good. But
upon consideration, as this declaration is, I think the
action will well lie. In order to show the grounds, upon
which a man shall be charged with goods put into his
custody, I must show the several sorts of bailments.
And {a) there are six sorts of bailments. The first sort («) Vide ante
35
of bailment is, a bare naked bailment of goods, delivered
by one man to another to keep for the use of the bailor ; 913."^'"
and this I call a depositum, and it is that sort of bailment
which is mentioned in Southcote's case. The second Commoda-
sort is, when goods or chattels that are useful, are lent to *"'""
a friend gratis, to be used by him ; and this is called
commodatum, because the thing is to be restored in specie.
The third sort is, when goods are left by the bailee to be
used by him for hire ; that is called locatio et conductio,
and the lender is called locato, and the borrower con-
ductor. The fourth sort is, when goods or chattels are Pawns.
delivered to another as a pawn, to be a security to him
for money borrowed of him by the bailor ; and this is
called in Latin, vadium, and in English, a pawn or a
pledge. The fifth sort is when goods or chattels are de- Tiiing^s to be
livercd to be carried, or something is to be done about rrewar'd.'' ""'
Vm APPENDIX.
them for a reward to be paid by the person who delivers
To be carried fhem to the bailee, who is to do the thinff about them.
without re- . , , , ^
ward. The sixth sort is when there is a delivery of goods or
chattels to somebody, who is to carry them, or to do
something 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 obli-
gation, which is upon persons in cases of trust.
A man who re- As to the (g) first sort, wlicrc a man takes goods in
fj'e'p ^^atis for ^^^ custody to keep for the use of the bailor, I shall con-
the use of the gider, for what things such a bailee is answerable. He
bailor is not , _
answerable is not answcrable, if they are stolen without any fanlt in
lor any aam- him, neither will a common neglect make him chargea-
"^s^iain^uni'e^^ '''^' ^"^ ^^^ must be guilty of some gross neglect. There
lie was guilty jg J coufcss a great authority against me, where it is
of some gross _ _
neglect with held, that a general delivery will charge the bailee to
[hefa.*^ ° answer for the goods if they are stolen, unless the goods
VideStr. lO'D ^^.^ specially accepted, to keep them only as vou will
Ivor even then i j i ' i j j
if he was guilty keep your own. But {h) my lord CoTie has improved
neglect with the casc in his report of it ; for he will have it, that there
rc>pect to his j^ ^^^ difference between a special acceptance to keep
safely, and an acceptance generally to keep. But there
D. ace. 2 Ld. • ^^^ reason nor justice in such a case of a general bail-
Riiym. 65o. ** ^
Semb. ace. mcnt, and where the bailee is not to have any reward,
Vide ante 44. 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 ordin'ary care, he
has performed the trust reposed in him. But according
to this doctrine the bailee must answer for the wrongs of
other people, which he is not, nor cannot be, sufficiently
armed against. If the law be so, there must be some
(n)Vide ante 36 (b) Vide 2 Ld. Rajrm. 655. ante 41
APPENDIX. IX
ju^t and hf^nest reason for it, or else some universal set-
tled rule of law, upon which it is grounded ; and there-
fore it is incumbent upon them that advance this doc-
trine, to show an undisturbed rule and practice of the
law according to this position. But to show that the
tenor of the law was always otherwise, I shall give a his-
tory of the authorities in the books in this matter, and
by them show, that there never was any such resolution 2 Ld.Ilay.9H.
given before Southcote'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 stolen. As for 8 Ediv. 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
for the goods. That case they say differs, because the
bailor did not trust the bailee with them. But 1 cannot
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
ehest ; and he has as great power to defend them in one
case as in the other. The case of 9 Edw. 4. 40. h. was
but a debate at bar. For Danhy was but a counsel
then, though he had been chief justice in the beginning
of Ed. 4. yet he was removed, and restored again ujon
the restitution of Hen. 6. as appears by DiigdaWs Chro-
nica Series. So that what he said cannot be taken to be
any authority, for he spoke only for his client ; and
Genney for his client said the 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 my lord Coke^ which besides he has improved.
But the practice has been always at GuildhaU, to dis-
* . APPENDIX.
allow that to be a sufficient evidence to charge the
bailee. And it was practised so before my time, all
Chief Justice Pew6erz!on's time, and ever since, against
the opinion of that case. When I read Southcote's case
heretofore, I was not so discerning as my brother Powys
tells us he was, to disallow that case at first, and came not
to be of this opinion, till I had well considered and
digested that matter. Though I must confess reason is
strong against the case to charge a man for doing such a
friendly act for his friend ; but so far is the law from
being so unreasonable, that such a bailee is the least
chargeable for neglect 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 keeping 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 Bracton, lib. 3. c. 2. 99. h. J. S.
apud quern res deponitur, re obJigatur, et de ea re, quam
accepit, restituenda tenetur, et etiam ad id, si quid in re de-
posita dolo commiserit ; cuepcB autem nomine non tenetury
scilicet dccidicc vel negligentia, quia qui ncgligtnti arnica
rem custodiendam tradit, sibi ipsi et propria fatnitati hoc
debet imputare. As, suppose the bailee is an idle, care-
less, drunken fellow, and comes home drunk, and leaves
all his doors open, and by reason thereof the goods hap-
pen to be stolen with his own ; yet he shall not be
ijLd.Ray 915. charged, because it is the bailor's own folly to trust such
an idle fellow. So that this sort of bailee is the least
responsible for neglects, and under the least obligation
of any one, being bound to no other care of the bailed
D-oods, than he takes of his own. This Bracton I have
cited is, I confess, an old author, but in this his doctrine
is ao-reeable to reason, and to what the law is in other
APPENDIX. XI
countries. The civil law is so, as you have it in Justi-
nian's Inst. lib. 3. tit. 15. There the law goes farther,
for there it is said, Ex co solo tenetur, si quid dolo com-
miserit : culpae autem nominie, id est, desidise ec negli-
gentia, non tenetur. Itatjue securus est qui parum di-
ligenter custoditam rem furto amiserit, quia qui negli-
genti amico rem custodiendam tradit, non ei, sed sua? fa-
cilitati id imputare debet. So that a bailee is not charge-
able without an apparent gross neglect. And if there
is such a gross neglect, it is looked upon as an evidence ^ s''**^'^ "5^"
° .=■ ' * led an evi-
of fraud. Nay, suppose the bailee undertakes safely and deuce of fraud
securely to keep the goods, in express words, yet even
that won't charge him with all sorts of neglects. For if
«uch a promise were put into writing, it would not charge
so far, even then. Hob. 34. a covenant, that the cove-
nantee shall have, occupy, and enjoy certain lands, does
not bind against the acts of wrong-doers. 3 Cro. 214.
ace. 2 Cro. 425. ace. upon a promise for quiet enjoyment.
And if a promise will not charge a man against wrong- Tnonghaman
• o n o who takes
doers when put in writing, it is hard it shoidd do it more goods to keep
so when spoken. Doct. and Stud. 130. is in point, that use of thebaic
though a bailee-do promise to rc-delivcr goods safely, yet ''^'^jerrfkes^to
if he have nothing for the keeping of them, he will not red. liver them
^ ^ ° ' safely, he i»
be answerable for the acts of a wrong-doer. So that not responsi-
there is neither sufficient reason nor authority to support ijjg q^ dam-
the opinion in Southcote's case; if the bailee be guilty '^'^t *"^'^''*^'°"''
i ' ^ '' ed by a wrong-
of gross negligence, he will be chargeable, but not for cioer. Sedvi>
any ordinary neglect. Asto the second sort 'or baihnent, , he borrower
viz. commodatum or lending gratis, the borrower is bound sp,fn°'ii,iV*for
to the strictest care and diligence to keep the goods, so '^"y. damage
/^ ' ^ or loss U It
as to restore then back again to th» lender, because the was occasion*
bailee has a benefit by the use of them, so as if the g-^ct. Vide
bailee be guilty of the least neglect, he will be answera- |'"'^f ^e' 'use^d
ble : as if a man should lend ariother a horse, to go ihe^'oodsin a
_ 1 •/• 1 •! 1 "laniier not
westward, or for a month ; if the bailee go northward, warraiusd. by
30
Xii APPENDIX.
(he ferins of or Ivccp the lioi'se nbove M inoiitli, if any accident happen
the lojni vide ^ ^.j |,y,.^Q m j[,.. aorthcm ioiirney, or after the expira-
anie OU. OU. j .' ' i
tioii of tlie DioiJlli, the bailee will be chargeable ; be-
cause he has made use of the hoise conlrar) to the trust
he was lent to bin) uiiiier, ajid it may be if tlic iiorse had
been used iio uiherwise lliau he was lent, that accident,
would noi have befallen him. 'J'his is nientioned in
Bractou, ubi sui)ra : iii> worls are, Is autem cui res ah-
fpia iitcnda daiur, vc o!»lii;atiH", (|iia' commodata est, sed
magna diireremci est niter miituuin et commodatum ;
quia is «|iii rem inutiiaia accepit, ad i|)sam restituendam
2Ld.Ray9i6. teuetur, vel ejus protimn, si foite incendio, ruina, nau-
fragio, aut iatronum \ «d liustiun) iucursu, cbnsuinpta fii-
Note ill the crit, vel deperdita, subtracta vel ablata. Et qui rein
Kracioa be- ntciidam accesjii, non sufticit ad rei custodiam, quod ta-
lore iiic, t is . ..
commod;iiain Icu) di I tj,eiit laui adhiljeat, t|ualem suis rebus propriis ad-
l)iit that must , ■, i ^ • i i r ^- * "i- * r i
be rt m stiike hibere solet, si aim* cam «iiligentius potuit custouire ; ad
a vou will vim autem maioreu), vel casus fortmtos non tejietur quis,
tinu by Jusli- •* '■
nian, ubi su- nisi eulpa sua iiitervcneiit. Ll si rem sirbi commoda-
pra, from
whence Biac- taui domi, scciuu (h;tiilcrit cum peregre protectus
t n lias taken ,. -, ^ ii • i .• i i i
.,n jjjg jjig,;,,^, luerii, et illam mcursu liostmm vel pra!Uonum, vel
tions, and that ^jjjmi-j.jj^jy aiuiserit, non est 'dubium quin ad rei res-
almost word '^ '■'
for word. titutioncin teneatm-. 1 cite this author, though 1
confess he is an oUl one, because his opinion is reasona-
ble, and very niuch to my present purpose, and there is
The borrower "o authority in the law to the contrary. Cut if the
uf goods shall jjailce put this horse in his stable, and he were stolen
not be respon- ' '
sibie for a loss fi-oni theiico, the bailee shall not be answerable for him.
by robbery,
unless the But if he or his servant leave the house or stable doors
occasioned or opcH, and the thieves take the opportunity of that, and
laciiitaied by gjgal the horse, he will be charsreable ; because the neff-
some neglect • a ' o
on his part, Icct gavc the tiiicvcs tlic occasioii to steal the horse.
Vide ante t)6. „ i , i i i
Uracton says, the bailee must use the utmost care, but
yet he shall not be chargeable, where there is such a
force as lie cannot resist.
APPENDIX. ' xm
As to the tbiicl sort of hailmcnt, srilicot locatio or Tiie hirer of
gfoods IS res-
leiuliu<> (or hire in tlii.s f a.sc the bailee is aJso hoimd to ponsibie
whorcvcr the
take the utmost care, and lo return llu; Jioods, when the borrower
time of the hiriiii; i> expired. And here apaiii I mast ^^j^" ante 8*^
recur to mv old author, Col. ()"2. (». (Jni pro u>;u vesr-timeu- and not else-
where,
toruin, auri \(d ariieiiti, vel alterius ornamenti, vel ju-
iiienti, mereedem dederit vel j>roiiii-;erii, talis ah eo de-
sidcratur custodia, (iuah'm(fl') diHo'eutissinius paterfami-
lias snis rehiis ad hihet, (Uiam si prai'stiterit, et rem ali- ^"^ '*^"'^ ^"*^
' _ feo.
quo casn amiserit, ad rem restitnendarn iioii tenehitur.
IMec salRcit alifjuem talem diligentiam adhibere, qualem
snis rel)MS propriis adbiberet, nisi talem adhibiierit, de
qua superius dietimi est. From whence it appears, that
if goods are let out for a reward, the hirer is bound to
tho utmost diligence, such as the most diligent father of
a family uses ; and if he uses that, he shall be dischar-
ged. i3ut every man, how diligent soever he be, being
liable to the accident of robbers, though a diligent man
is not so lial>le as a careless man, the(^^) bailee shall not
be answerable in this case, if the goods are stolen. o Ld. Kayin.
As to the fpurth sort of bailment, viz. vadium or a ^^^'^^
pawn, in this ( shall consider two things ; first, what
property the [tawnee has in the |)awn or pledge, and se-
condly, for what neglects he shall make satisfaction.
As to the first, he has a special property, for(o') the pawn lf\,^' ^^^
is a securinii- to the pawnee, that he shall be repaid his Holt. 528.
I " ,1 . • ^ r- ^ Salk.522.
ael)t, and to compel tlie pawnor to pay lum. Jsut it the 2 Ld. Raym.
pawn be such as it will be the worse for using, the(/>) Vj^'g p 3
pawnee cannot use it, as clothes, oii of Ills beini>' o servant is ncjt tijo lliina' : lor
sioupd or fa- i-.i-^ c i- ^ i^ t
ciiita ed by "^ '"^ ^^ '' oistancc troiii 111'! master, aiui acts at discre--
o'^d"*u'^i*^V^i tion, receiving rents and selling- corn', 6cc. And vol if
Vide Vent he receivcs his master's monev, and keeps it locUed nn
121 2 Lev. 5 . ,
ante 97 a. wiih a reasonable care, he shall not be answerable fo<- it
6 Ser &i R w. tboiigh it be stolen. Bnt yet this servant is not a do-
ayo. o86. inestic servant, nor nnder his masters injniediate care.
Bnt the true reason ofihe case is, it wonld be unreasona-
ble to charge him with a trnst, farther tJian the nature
of the thiijo- puts it in his power to perforin it. Bnt it is
allowed in the other cases, by reason of the necessity of
the thing. Tlie same law of a factor.
As to the sixth sort of bailment, it is to betaken, that
the bailee is to have no reward for his pains, bnt yet that
by his ill management the goods are spoiled. Secondly,
it is to be understood, that there was a neglect in the
A man to management. But thirdly, if it had appeared that the
vhom goods jYiischief happened bv any person that met the cart in
are delivered ' ' • • '
for a purpose the Way, the bailee had not been chargeable. As if a
in respect of " i • i ~ i i i •
which lie is to clrunken man had come by jn the streets, and had pier-
„^,!!i ":" !.Z ced the cask of brandv ; in this case the defendant had
answerable j^qj hccH answerablc for it, because he was to have no-
for any loss or
damajre occa- thing for his pains. Then the bailee having undertaken to
third person, manage the goods, and having manned them ill, and so
by his neglect a damage has happened to the bailor,
which is the case in question, what will you call this ?
In Bracton, lib. 3. 100. it is called mandatum. It is an
obligation which arises ex mandato. • It is what we call
Case lies for . -^ .
negligently in English an acting by commission. And if a man acts
*rati"coMimis. ^^Y coiumission for another gratis, and in the executing
*'°,^ r.^ '''*^ his commission behaves himself negligently, be is an-
1 H. BI. l.>8. .... .
anteoz. n. 2. swcrablc. Fr*n?i/j/s, in his Commentaries upou Justinian,
" 919 '^'"^' ^^'^* ^' ^'^* '^^* ^^"^* tletines mandatum to be contractus quo
APPENDIX. Xvii
aliqnid gratnito gerendum coininitl itur et nccipitur. This
uiideitaking ohliges the undertaker to a diligent niuii-
agement. Bracton, ubi suhra, says, contrahitur etiain
ohiigatio non sohiin scri|)to ct \ erbis, sed et consensu, sicut
in {oiilrattibus bonrP tide ; ut in einptionibus, venditi-
oiiibus, locatiouibiis, coiiiliutionibiis, societatibus, et nmii-
daris. I don't tind this \voi
ante, 50. 52. that the action would lie. But that judgment was after-
wards reversed, and according to that reversal, there was
judgment afterward^ entered for the defendant in the like
case. Yelv. 128. But those cases were griimbled ot,
and the reversal of that judgment in Ytlv. 4. was said by
the judges to be a bad resolution, and the contrary to
that reversal was afterwards most solemnly adjifriged in
2 Cro. 667. Tr. 21 Jac. 1. in the Kmg's Bench, and that
judgment affirmed ui)on a writ of error. And yet there
is no benefit to the defendant, nor no consideration in
that case, but the having the money in his po^^session,
and being trusted with it, and yet that was held to be a
APPENDIX. \\x
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. Sleiv was drawn by the greatest
drawer in England at 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,
Avhere the suit is by original. I have said thus much in
this case, because it is of great consequence that the law
should be settled in this point ; but I don't know whe-
ther I may have settled it, or may not rather have un-
settled 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.
IXI>EX
TO
THE PRINCIPAL MATTERS.
Ahatemmt, carrier may plead in, when, 107 b.
Jlct of God and of the King's enemies, wliat considered such, 104 b.
Actio I ag^aiost innkeepers, by whom maintainable, 95 a.
Agamsl carriers, 107 h.
Artificers, i^ee Workmen.
Responsibility of, in civil law, 23, note 7.
Assumpiit, when maintainable against earner, l07 b.
B.
Bailee, responsibility of, how measured, 9,21, note 2.
Gratuitous, wiien responsible, 53, note 2.
M;iy sue in bis own name, when, 79. note 3.
Entitled to right of lien, in what cases, 90, note 2.
Bailiff', responsibility of, 97 a. note 9.
Bat/men<, definition of. 1.
Lord Holt's division of, defective, 35.
Divisible mto five branches, ib.
Bailor may sue for injury to bailment, when. 91 a, note 2,
Joint demand of, when necessary, 51, 52, note 9.
Bnra-{tinan.\'\dib\Vny of, as common carrier, 103 c.
Bill of Lading, eniiursement of, tflpLiCt of, 106 w.
Borrower, responsibility of, in civil law, 23, note 1.
b} law of England, 65.
Mav use article borrowed, when, 68.
Buyer, right? of, after sale, what in civil law, 23, note 6.
Carriers, responsibility of, by civil law, 23, note 7.
— bv (ode Napoleon, ib.
by law of Kngland, 103 e, 104.
. how created, ib.
Who are considered sui;h, 103, note 3.
Obligations of, what, 103 e.
Bou'id to receive goods, when, ib.
What will be sufficient excuse, ib.
INDEX. f
Carriers responsible for safe carriage, against what events, 04 d.
JIow exonerated from responsibility. 104 d.
Obligation (o deliver goods, what, 105 i.
Rights of, what, 105 h.
Right of lien, inwhat cases allowed, 105 i.
■ general, how created. lOG.
Remedies against, what, 107 b.
Carriers by Water, responsibility of, 107 h, note 2.
How limited by statute, i6.
Case, action upon the, nature of, against carrier, 107 c.
Against carrier, wlien maintamable, ib.
IVlay be joined with trover, 107 f.
Civil Laiv, method of quoting. 22, note 3-
Coffee House considered as an inn, when, 94 a.
Comtnodatum. See Loan for use.
In civil law, what, 23, note 1.
Consideralion in Contract, when must be alleged, 54, note 4.
Consignor, when liable for carriage, 106 a.
Consignee, effect of delivery between consignor and, lOG a.
When bound hy consignor's delivery, ib.
Contract, what necessary in making, 70, note 4.
Between carrier and employer, nature of, 103 g.
Innominate, what, 92.
Conversion, definition of, 107 f.
What acts will constitute, ib.
Demand and refusal, when necessary, 107 g.
By carrier, when committed, ib.
When inferred from demand aud refusal, ib.
D.
Declaration., what required in, againsl innkeeper, 95 a.
against carrier, 107 i.
Delivery to carrier, nature of, 103 f
when complete, ib.
must be free from fraud, 103 h.
To consignee, when necessaiy, 105 i
How regulated in foreign commerce, 105 k.
Carrier entitled to payment on, ib.
Effect of, between consignor and consignee, 106 J).
When sufficient, under Statute of Frands, 106 d.
Deposit, what, in civil law, 22.
Different kinds of, in Code Napoleon. 48, note 8.
Grecian and Arabian laws, respecting, al.
To keep, and to keep safely, distinction between, 42 n.
Mosaic law, respecting, 40.
Depositary, responsibility of, by the civil law, 22, note 4.
by the f 'ode Napoleon, ib.
by law of England, 45.
Rules and exceptions to, ib.
For reward, what evidence requisite in an action against, 9:
INDEX.
Diligence. See JVeglecl.
Degrees of, lu civil law, 21, note 2.
OQ what principles established, ib.
E
Emplio Vendito. See Sa/e.
Evidence, in action against innkeeper, what requisite, 95 b
againt hirer of liorse, 87. note 6.
against depositary of gou(is for liire, 97, note 7.
Of general lien, when necessary, 106.
In action against carrier, what required, 107 m.
On part of plaintiff, 107 ra,
defendant, ib.
F.
Factor, responsibility of, 97 a.
Farrier, bound to perform offices of trade, when, 61, note 8.
Fesance, distinction between non-fesance and mis-fesance, 54, note 4.
Ferryman liable as common carrier, 103 c.
jPrawrf cannot be stipulated against, 11.
C'onsists in what, 71.
Gross negligence equivalent to, 21.
Freight, right to, not affected by bad stowage, 106 a.
Lien for, when waived, 105 n.
G.
Gazette, notice in, same effect as in other papers, 104 i.
Guest. See Innkeeper.
Who considered such, 94 b. note.
Temporary absence when consistent with character of, i&.
Traveller, when considered such, 94 a.
H.
Hackney Coachmen. See Stage Coaches.
Liable as common tiarriers, when, 103 a.
Hirer, property in goods, when acquired by, 80, note.
Of goods, responsibility of, by law of England, 86. 88 n.
Of works, 90.
And borrower, distinction between, 88.
Hiring. See Locatio-Conductio.
Of work, division of, 90.
Hoymen liable as common carriers, 103 c,
I.
Inn, definition of, 94 a.
What considered such, ib.
Coffee-house, when deemed such, ib.
Innkeepers, responsibility of, by civil law, 23, note 7.
'■ ■ by Roman law, 96.
INDEX.
Innkeepers, responsibility of, bj law of England 94 c. 95 a.
Duties of, what, ib.
Bound to entertain persons, when, 94 c.
What will be sufTicieiit excuse, 94 c.
Liability for goods, what required, ib.
"VV hen exonerated hy acts of guests, 95 n.
IVot liable for washing guest's linen, 95 a.
Right of lien, entitled to. ib.
Cannot sell goods detained, ib.
-except by custom of London and Exeter, ib.
Remedies against, what, 9. ib..
Action against, by whom maintained, 95 b.
M ister may sue, in what cas: s, 95 a.
When guilty of conversion, 95 b.
Whai evidence required in an action against, ib.
Insurer, how fur carriers considered as such, 104 b.
Law. See Civil Law.
Liabitil)/, of innkeepers, on what established, 94.
In case of carrier, 104 a.
Lien, definition of right of, 105 1.
Divisible into particular and general, ib.
Merely a security to enforce payment, ib.
Does not include power of sale, ib.
Extinguished by special agreement, when, 105 to.
Continues only during possession, ib.
Particular, what, l05 n.
General, what, and how created, 105 o.
J^oan for use, distinguishable from loan for consumption, 63.
Responsibility, in civil law, of bailee, in case of, 23, note 1.
by law of England. 65
Distinction between theft and robbery, 66.
In case of valued loan, 71.
Bnles and exceptions, ib.
M 'saic and Attic laws, relating to, 73.
Localio-conduclio. See Hiring, Hirer.
In civil law, what, 23, note 7.
Locatio- peris faciendi. See Hirer, Innkeeper, Jfarehousemnn.
divisible into two branches, GO.
Locatlo-mercium vehendarum. See Carrier.
Locatio rei. See Hirer.
Locatum. See Hiring.
For a reward, what, 36.
M.
Mandate, in the civil law, what, 22, note 5.
In the law of England, .02
Mindatf, distinction hetwe*>n deposit and, 53.
Must be gratuitous, ib.
INDEX.
Mandatary, responsibility of, in the civil law, 22, note 5.
by law of England, 53
may be varied how, 54. note 7.
Exceptions to responsibility, what, 63.
Master, responsible for servant's conduct, when, 89, note 9.
Maxims, ex dolo malo non oritur actio, 104.
Modus et couventio, vincunt legem, 48, note 7.
Money, payment of, into Court, effect of, 107 k.
When allowed in action against carrier, ib.
N.
JVegled, responsibility for. how measured, 9. 21.
different systems of, examined, 25.
degrees of, what, 7.
how defined, 21.
Divisible into gross, ordinary, and slight, C.
Gross, stipulations against, void, 54.
JVegligence. See J^cg'ect.
Degrees of. what, 4.
In action against carrier, what evidence of, 107 m.
J^on-Fesance. See Fesnnce.
J^otice, general, by carriers.
ISature and introduction of, 104 f.
Legality of, when established, 104 g.
Must proceed from carrier, 104 h.
Communication of, what suflScient, 104 i.
By advertisememts, 104 i.
Bv hand bills. 104 j.
By posting in office, 104 i.
Inferred from particular cases, when, 104 j
Waived, by what acts, 104 k.
Not. by knowledge of value. 104 k.
Form and construction of, what, 105.
No protection for gross negligence, 105 a.
Nor for mis-feasance, 105 e, 105 g.
o.
Obligntion, of innkeepers, whence it arises, 94.
of carriers, 104 a.
Owners of ships, responsibility of as carriers, 103 b.
Part, how liable, 107 s.
P.
Packer, delivery to, when such, to vendee, 106 s,
Pandects, account of the discovery of, 18, note 8.
Partners in civil law. resp )nsibility of, what, 23, note 9.
Partnership, in civil law, what, 23. note 9.
Puwnbroker may detain a tide, when, 75, note 8.
Pawnee may detain gouts, when, 75, note 8.
INDEX.
Pawnee, responsibility of, in civil law, 23, note 8- 5.
by law of England, 75; note 1.
For theft androbberj, what, 81.
In action against, what evidence required, 76, note !•
Payment. See Jloney.
AVhen required in sales, by civil law, 23, note 6.
by Code Napoleon, ib.
by law of England, 85, note 5.
Pignori accepbim. See Pledge.
Pledge, in civil law. creates a contract, what, 23.
Antiquity of ih.
Law of England, relating to, 74.
Lord Coke's doctrine, controverted, 75.
Law of Turkey, relating to, 83.
Porter, liability of, 103 c.
Action against, when maintainable, 107 i.
Post-chaise, owner of, responsibility of, 88, note 8.
Possession of goods, when sufficient to charge innkeeper, 94 c.
■ carrier, 103 f.
master of vessel, ib.
warehouseman, 97.
Post Master General, responsibility of, 109.
Not liable as carrier, 103 d.
For neglect of inferior officers, 109. note 3.
Pyivate Persons, how liable for carriage of goods, 103 d.
Property, when transferred by sale in civil law, 23, note 6.
by law of England, 86 note.
to consignee by delivery to carrier, 106 b.
Q.
Quarantine, stoppage in transitu not destroyed by performance of, 106 n.
R.
Refusal to receive guest, when justifiable, 94 c.
To carry goods, 103 e-
Jiepresentalion, as to value of goods, effect of, 103 g.
Reward, measure of liability, what, 9.
Sale, eflFect of, by civil law, 23, note 6.
by Code Napoleon, ib.
Property transferred by, when, 85, note 5.
By law of England, how governed. 85.
Seller, responsibility required after sale, what, 23, note 6.
Right of, after sale, ib.
Bound to disclose defects, when, 69, note 4.
Servants. See Master.
Of coach owners, when considered carriers, 103 c.
Innkeepers, responsibility for acts of, 95.
INDEX,
Servants, carriers, 103 c.
Ship. See F'essel.
Commanders of King's, responsibility of, for carriage, 103 d.
Stage-Coaches, owners of, when considered carriers, 103.
Entry at Somerset-house office, when evidence against, 10? m.
Stris^f-wagscons, owners of, deemed carriers, 103, note 3.
Stoppage in Transitu, origin and nature of the right of, 1U6 d>
Court of Chancery, no jurisdiction in. 106 d.
Limited to the case of insolvency, 106 e.
B\ whom exercised, ib.
By vendor, 106 f.
fiot by mere surety, 106 g.
Transitus in, not destroyed by part payment, ib.
Continuing, in what cases, 106 h.
"When determined, 106 o.
by part delivery, ib.
actual transfer not necessarj. 106 p.
by deliver} to warehouseman, 106.
delivery to packer, when sufficient, 106 s>
In what cases taken away, 106 v.
Indorsement of bill of lading not necessary, 107.
Special undertaking to carry goods, when necessary, 103 g.
Stowage, bad, no answer to action for freight, 106 a.
T. '
Tenant, implied contract with landlord, what, 90, note 1 ,
Bound to repair fences, when, 90.
Cultivation of land, what required, ib.
Transit. See Stoppage in Transitu.
when ended, and when not, 106 h, 106 o.
Transfer of property by sale, how made in civil law, 23, note 6.
by law of England, 83, note 5.
Trover, when maintainable against carrier, l07 f.
May be joined with case, ib.
V.
Value, knowledge of, no waiver of notice, 104, k.
responsibility, liow affected by, 30.
Concealment of, effect of, 103 g,
Vessel. See Skip.
Owners and masters of, common carriers, 103 b.
w.
Warehousemen, responsibility of, what 96 a.
different from carriers, 96, note 7
Liable for gross negligeace, 96, note 7.
accidental fire, not, ih.
In action against, what evidence required, 97.
Wharfage dues, iien for, how waived, 105 m.
INDEX.
Wharfinger, when considered common carrier, 103 c.
When exonerated from liability, 103 f.
Delivery to, etfect of, in stoppage in transitu, 106 s.
Entitled to right of lien, 105 o.
Workmen. See Artificers.
JVlust exercise ordinary care, 91.
Writing, when required by law of England, 48, note 8.
by laws of foreign countries, ib.
Witnesses, who adnaissiljle as, in action against carriers, 107 n.
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