'<%& A. J. GUNNISON. f* y T THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW TREATISE LAW OF BAILMENTS. BY ISAAC EDWARDS, COUNSELOR AT LAW. ALBANY: GOULD, BANKS & CO., 475 BROADWAY. NEW-YORK : BANKS, GOULD & CO., 144 NASSAU-STREET. 1855. according to act of Congreas, in the year one thousand eight hundred and flrty-flve, By GOULD, BANKS & CO., In the Clerk's Office of the District Court of the Northern District of New- York. wno>, FAMO*I * oo., run-new. PREFACE. THE object of this work is to present the LAW OF BAIL- MENTS concisely, as drawn from and illustrated by the decisions of courts governed by the common law ; and so arranged, it is hoped, as to prove a serviceable and accepta- ble book. Though the method chosen, of collating the adjudications under appropriate heads, has occasionally resulted in a restatement of the same principles under a modified form, it has this advantage, of presenting the subject in a natural order. The general arrangement is that usually adopted by approve.d writers on this branch of the law; while in respect to subordinate divisions, it has been deemed convenient to make them with reference to subjects, so as to present the law upon each in a con- densed and useful form. In this manner the rights, duties and remedies of each of the parties to the contract of bailment are considered under specific heads, with a view to their application to the matter in hand. The rule, fixing the bailee's responsibility for care and diligence in each species of bailment, is treated by itself, and also in connection with the particular duty brought in question. In this way the adjudged principles, applicable to a given subject, are brought together in a brief space, and arranged so as to be readily examined. 671418 4 PREFACE. The difficulty of expressing legal principles in purely abstract terms, often renders it convenient and necessary to present them briefly as they stand incorporated with facte in the reported cases, thus uniting authority with the illustration employed. Such explanations are both perti- nent and perspicuous ; and where the facts can be given in few words, there is no better way of developing the princi- ples and rules of law. It may be more agreeable to the student, who studies the law solely as a science, to meet with illustrations from the civil code and those systems of jurisprudence derived pricipally from it; but they whose occupation compels them to investigate the law as a busi- ness of life, with a view to its immediate and prompt appli- cation to practical affairs, have seldom the leisure to master and appreciate other codes as a means and mode of explain- ing the common law. If any apology is thought necessary in presenting to the profession a treatise on a subject already treated with so much learning and ability, by a distinguished writer, it is believed that the practical design of this work will be suffi- cient to commend it to a favorable reception. The com- mentaries of Mr.,Justice Story occupy a field by themselves, replete with illustrations drawn from foreign laws and adapted primarily to the demands of a lectureship, leaving ample room for an essay on the Law of Bailments as de- rived mainly from the decisions at common law. There is less scope permitted in such a work, because there is less opportunity for that theoretical discussion of elementary principles which is so attractive to the speculative student. The authority of adjudications, being of first importance, is not to be evaded or defeated by any line of subtle argu- ment. "When a point of law has been once adjudged, neither that question, nor any, which completely and in all PREFACE. 5 its circumstances corresponds with that, can be brought a second time into dispute ; but questions arise which resem- ble this, only indirectly and in part, in certain views and circumstances, and which may seem to bear an equal or greater affinity to other adjudged cases; questions which can be brought within any fixed rule, only by analogy, and which hold a relation by analogy to different rules. It is by the urging of these different analogies that the conten- tion of the bar is carried on ; and it is in the comparison, adjustment and reconciliation of them with one another; in the discerning of such distinctions, and in the framing of such a determination as may either save the various rules alleged in the cause, or if that be impossible, may give up the weaker analogy to the stronger ; that the sagacity and wisdom of the court are seen and exercised." 1 This com- petition of opposite analogies furnishes the true sphere of legal discussion ; and hence a treatise on any branch of the law, designed for practical utility, must of necessity be con- fined within the. same limits, leaving the region of specula- tion to those philosophical students who may have the leisure and taste for such studies. With a law library at hand, unsurpassed by any in the country, containing the reports of every state in the Union, it may be mentioned with propriety that the materials for a thorough investigation and comparison of authorities have certainly not been wanting in the execution of this work. The importance of the subject increases constantly with the increase and multiplication of the relations of business, especially in regard to the carriage of freight and passengers by the new modes of transportation by railroads and steam vessels, lately introduced and quite recently brought into 1 Dr. Paley's Moral and Political Philosophy, Book ?i., c. 8. 6 PREFACE. general use. From such and similar changes in the modes of business, there arise continually new applications of the principles of law, previously settled ; and these become the more important from the fact that each new decision varies but a shade from the previous cases, and is pronounced with that caution which has been termed the sinew of wisdom. "The true idea of the common law seems to be that of an organized system, having its principle of growth within itself, and of which the judges are themselves a part. No new law can ever proceed from them ; but the old law is, by their means, in a continual process of further develop- ment. Their business, in the most doubtful and unforeseen cases, is still to consider the law as already fixed, to discover and to assert it" 1 Though superficial and inconstant students may turn away from the law as a confused and incomprehensible system, the lawyer, who loves his profession, turns, with a feeling akin to exultation, to those superior men who appre- ciate and speak of it, as the gathered wisdom of a thousand years as the pride of the human intellect a science which, with all its defects, is the collected reason of ages, combining the principles of eternal justice, with the infinite variety of human concerns. ALBANY, June 4, 18-55. 1 Bra ton Elan. Comp., p. ft. TABLE OF CONTEXTS. CHAPTER I. OH BAILMEXTS. FAG*. The general subject, 33 Definitions, S3, 34 There are fire classes of bailment, 35 Deposits to be kept gratuitously, 35 Mandates or gratuitous commissions, So, 36 Commodatttm, gratuitous loans, 36 Pawns or pledges, pignori accephan, 37 A hiring, for use, of custody, of labor and services, of carriage, 37, 38 Various degrees of the bailee's liability 38, 39 Grounds of liability, 40, 41, 42, 4* The use of terms, 43 Ordinary diligence, ordinary neglect, slight neglect, gross neglect, 44 The rule varies with circumstances 44, 45 Genera] principles witnessed by adjudged eases, 45, 46 CHAPTER IL ON DEPOSITS. What is a deposit^ 47 A deposit, always gratuitous, 47 The rule is the same whether it be Toluntary or involuntary, 47 The subject of deposit must be some movable thing, 48 Choses in action, such as notes, deeds, Ac., may be deposited, 48 Implied contracts, how raised, 48 PARTIES TO TH COSTRACT, 49 All persons are capable of contracting, except, 49 Married women and persons of unsound or deficient mind, 49 Married women not capable, 49, 50 Infanta are capable, not bound, 50, 51 Persons of unsound mind and memory are of four classes, 51 8 TABLE OF CONTENTS. FAG*. Idiots, those who have become demented, lunatics and drunkards, 51, 62 The presumption is in favor of capacity, 52 The ground and rule, fixing incapacity, 52, 53, 54 The lunatic liable for tort* only in his estate, 54, 55 TDK FIM-KK, 65 Not compelled to take up lost property, 65 But must take care of it, if he does, 55 Nature and theory of the action of trover, 55 It implies the duty to take care of property found, 55 Acts of conversion, the finder's right of reward, 56, 57 Has a special property 56 Salvors, salvage, rule of estimating it* 5*7, 58 THE CONSIDERATION 58 Every contract must have a consideration, 58 The undertaking of the trust a good consideration, 58, 59 SHERIFTS AND RECEIPTORS, 59 The sheriff is not an insurer, but must keep the property he levies on safely, 69 The rule as to receivers, county treasurers, postmasters and revenue officers, 69 The receiptor's liability, 60 lie has a special property, and may defend the goods by action 60, 61 Seizure on execution gives the officer a special property, 62 If the receiptor permit the goods to be sold by general owner, he is liable, 62 The receiptor cannot deny the sheriff's title, 62, 63 The doctrine of estoppel applies to him, .'. 63 GENERAL AND SPECIAL PROPERTY, 64 Absolute property draws after it the possession, 64 Special property arises out of contract, as for use or keeping, Ac, 64 The finder has a special property, 65 Possession evidence of title ; as to choses in action, when 65, 66 Special property in animals, wild by nature, 66 SPECIAL DEPOSITS, CARE REQUIRED, 66 Deposits in banks, not bailments, but debts, 66 The rule different formerly ; a case of special deposit, 66, 67 The depositary answerable for gross neglect, 67 Gross neglect, what, and whether fraud or not, 67, 68-74 Duty of depositary, how measured, 67, 68 Grow neglect not necessarily a fraud, 68, 69 The presumption arising from gross neglect, 69, 71 Right to agree for a lessened liability 70 An early case, 71 f 72 The care must have respect to the thing deposited 72 The character of the depositary, when important, 73, 74 May be responsible even when his own goods are lost* 74 RIGHT or ACCESSION, 74 Under th civil law, civil fruits, 74 Materials made into another article, title to, 75 Rule under the common law 76, 77. The owner of land acquires buildings erected on it, v . . . . . 77, 78 TABLE OF CONTENTS. PAG*. Rule of Roman and French law, 78 A trespasser can acquire no title to materials of another, 78, 79 An early case to same effect, 79, 80 One who wrongfully creates a confusion of goods loses his portion of them, 81, 82 The title passes only from the necessity of the case, 82 A SECOND BAILMENT, effect of and rights under, 83 THE DELIVERY 83-89 The bailee bound to redeliver to bailor, 84 Garnishment and interpleader, 84, 85 Deposits by joint owners, deliverable on joint demand 85 Under the Code of Louisiana, redelivery, 86 An act of conversion by the bailee, 87 Right of countermand, when it exists, 87 Effect of a demand, 87, 88, 89 RIGHT TO USE, is acquired by consent of owner, 89-93 Consent, when implied, 89, 'JO Effect of use without consent, 90, 91 Expenses of deposit, use when a compensation 90 Depositary may not pledge goods, 91 Effect of a pledge of them, 92 Effect of a deposit made by one not the true owner, 92, 93 As to stolen goods, 93 As to goods acquired by a fraudulent purchase, 93 CHAPTER HI. GRATUITOUS COMMISSIONS OR MANDATES. NATURE OF THE CONTRACT, 94, 95 Mandator, Mandatary, Mandate 95 THE SUBJECT OF THE CONTKACT, must be personal property 95, 96 The contract under Code of Louisiana, 96, 97 FEASANCE AND NON-FEASANCE, CONSIDERATION 97 Distinction between contract of mandate and deposit, 97 The distinction between non-feasance and misfeasance '98 The mandatary answerable for misfeasance, 98 But not for a non-feasance, 99 A promise to become a mandatary not valid, 99, 100, 101 But he is answerable for a negligent performance, 101 CARE AND DILIGENCE REQUIRED, 102 The mandatary answerable for loss from gross neglect, 102 He must act prudently, 102, 103 His care must be such as circumstances require ... 104 Must have respect to the thing bailed, 105 It is his duty to deliver goods received for carriage 105 Effect of a non-delivery 105, 106 Ground of his obligation and its extent; . . 106, 107 Bound only to act faithfully and honestly, 107 10 TABLE OF CONTENTS. PAGE. And with reasonable prudence, 108 THE CONTRACT, 108 Does the mandatary enter into a legal contract, 108, 109, 110 The remedy against him, 108 The form of the action, 109 Aseumpsit and case, when brought, 109, 1 10 Complaint in an action of case, . 110 The form of the pleadings does not negative the existence of a contract, 110, 111 A breach of a trust will support an action, Ill A bank receiving a note for collection, bound to protest it for non-payment, 112, 113 The law implies a contract to do so 113 The rule is the same under civil law, 113 Duties of bank directors, 113 Bound for reasonable care, 114 A misuser is a conversion, 114 Duty of one who volunteers to net as a bailee, 114, 115 RXMKDW, , 115-117 A third person may enforce contract, when 115, 110 Form of the action, 116 The action of tort, when advisable, 116 Trover can be brought only for a conversion 117 Case for violation of a le*al duty, 117 Assumpsit, grounded on the contract, 117 FACTORS, 117-119 The factor has no right to pledge, 118 Effect of the statute, 118 Possession prima fae>'e evidence of title, 119 The factor not a mandatary, , 119 TH* CONTRACT, HOW DETERMINED 119 - 128 By the death of the mandatary, when, 1 20 By the death of the nsjandator, 121 By the death of one of two joint mandataries, 121 Effect of dissolving the contract, 121 Th death of one of the parties, effect of, 122 If the mandator dies, it is a revocation of a power, 122, 123 To contract in his name, 125 Contract* by letters, when complete, ; 123, 124 Previous contracts may be executed after the mandator's death, 125 The principal's death ends an agency, 126 Bo do insanity and marriage and sale 126, 127 Right of revocation, 127 Effect of bankruptcy of one of the parties, 127, 1 28 Insolvency, 128 BraoKN of PROOF, 128 Plaintiff must prove fact* sufficient to show a right of recovery, 128 Must prove his allegations, 129 When the action is trover, plaintiff shows a conversion, 129 How this may be done, 130 TABLE OF CONTENTS. 11 PAGB. When trover will not lie, 130 Assumpsit, when it lies, 131 CHANGE OF TITLE, FORMS, 131 A recovery and payment transfers the title, 131, 132 The act of conversion does not change the title, 132, 133 Forms of action under the Code, 133 The principles of law are not changed, 133, 134 When the mandatary may restore after suit, 134 The mandatary's interest in goods bailed 134 Exceptions to the general rule, 135 Negligence, not permitted at all, 135, 136 CHAPTER IV. GRATUITOUS LOANS. A loan denned, '. 137 ELEMENTS OF THE CONTRACT, 137 - 142 The loan must be used for the purpose named, 138 Must be used with extraordinary diligence 138, 139 Must be returned at the time specified, 139 The borrower required to know his own ability, 139, 140 The rule, how far qualified, 140 The civil law rule more variable 141 THE BORROWER'S INTEREST, 142 The borrower gains a temporary property, 142 Nature of this special property, 142, 143 The borrower obtains the possession and a right of action against strangers, 143 Right of revocation, its exercise, 143, 144 The borrower's interest ends with the use granted, 145 PARTIES. The parties contracting must have a legal capacity 145 - 147 THE LOAN, HOW USED, 147 - 151 Must be used according to the contract, i 147 The rule applies to notes and bills of exchange, 148 A different use, effect of, 149 The implied contract, what, 149. 150 A breach of the contract ends it, when, 150, 151 LENDER'S INTEREST ra THE LOAN, 151 158 The title remains in the owner, 151, 152 Has the borrower an interest in the loan as against the lender, 152, 153 Nature of the special property transferred, 154, 155 The loan is strictly precarious, when, 156, 1 57 Right of countermand, 157, 158 THE LOAN is A PERSONAL TRUST, 158, 159 Distinctions between cases 159 EFFECT OF FRAUD IN PROCURING THE LOAN, 160 Fraud vitiates all contracts, 160 Any concealment avoids the loan, 160. 161 12 TABLE OF CONTENTS. PAGE. The borrower considered a trespasser, when, 161 Distinction between larceny and fraud, 101, 162 WHO TO BJUB EXPENSES OF TUB LOAN, 163 The borrower bears ordinary expenses, 163 CAM EXACTED or THE BORROWER, 164 Bound for the greatest care and diligence, 164 The rale as derived from civil law, 165 Tut BORROWER, WHEN EXEMPT FROM LIABILITY, 166 Exempt from loss by robbery, when, 166 Care exacted depends upon contract, 166, 167 The borrower not answerable for losses by irresistible force, . . 167 Nor for losses by act of God, 167 Act of God, what, 168, 169 Something other than inevitable accident, 168, 169 Inevitable mischance, 169, 170 Losses by public enemies and other hostile violence, 171 The borrower liable for casualties, when 171, 172 Not liable for ordinary wear and decay 173 VALUED LOANS, the civil law rale, 173 Valued loans at common law, 173, 174 BURDEN or PROOF, rests on borrower generally, 175 On plaintiff to prove delivery of goods, and a failure to return, 175 Plaintiff proves facts constituting his cause of action 175, 176 Burden of proof, how changed, 176 RigmimoN, 177 The borrower bound to restore the thing borrowed, 177 The lender's right to terminate the contract, 178 The rale of the civil law, 179 The place where the return is to be made, 180, 181 The analogy between the debtor and borrower, 181, 183 The place of payment in specific articles, 182, 183 Joint borrowers bound jointly, 184 Countermand, 185 The loan for consumption, a sale, 186 Loans beneficial to both parties, 186 TRANSFER or TITLE BY RECOVERY, 187 The payment of the recovery against the bailee, for the value of the goods, conveys the title, 187 CHAPTER V. PLEDGES OR PAWNS. NATURE or THE CONTRACT, 188 It is mutually beneficial, 188 It accompanies the delivery of movable things, 189 Choses in action may be pledged, 189 Difference between a chattel mortgage and a pledge 189, 190, 191 TABLE OF CONTENTS. 13 PA8*. REQUISITES OF THE CONTRACT, 192 The pledger must own or have the right to pledge the goods, 192 The pledgor warrants his title or right to pledge 193 As against real owner he pledges his interest, . 193 Exception in respect to negotiable paper, 193, 194 A lien, what, 195 The pawnee may assign his interest, 196 A pledge of things not capable of delivery, 196 Possession essential to complete the pledge, 197 Incorporeal things, how pledged, 1 97 Notice of sale necessary, , 198 The contract of pledge accessary to the principal debt, 199 The implied stipulation for care ; right of use, 199 Effect of a payment of the original debt, 200 An incomplete contract of pledge, rights of parties, 200 WHAT PROPERTI IN PLEDGOR AND PLEDGEE, 201 General property in pledgor, special property in pledgee 201, 202 The Roman Jaw, 202 Rights of parties not changed by death of either, , . . 202, 203 Effect of a sale of pledge without notice 204 At common law pledge not seizable on execution, 204, 205 - 208 The effect of the statute on the subject, 205 - 208 The mortgagee's interest, after forfeiture, may be levied on and sold, 209 But a chose in action cannot be sold on execution, 209 A legal right to possession for a definite time may be sold, 209, 210 The lien on personal property accompanies the possession, 210 The pledgee's lien may Be transferred, 210 But cannot be severed from the debt secured, 211 Effect of a voluntary surrender, 211 A delivery to the owner for a special purpose, 211, 212 Notice to produce a written instrument, . . . 212 Remedy of pledgor after payment of debt, 212, 213 The relation of pledgor towards pledgee similar to that of the factor towards his principal, 213 Effect of the factor's pawning the goods, 214 The statute in relation to factors and agents, 215 - 218 A case of mortgage or pledge, 218, 219 A mortgage is good between the parties to it, though possession be not de- livered, 219, 220 A symbolical delivery is good, .... 220 The factor has a general right of sale, and may sell on credit, 220, 221 The pledgee may not use ; his interest does not ripen by time, 222 CARE REQUIRED OF THE PAWNEE, 223 The rule laid down by Bracton, 223, 224 The pawnee of a note may collect, bat not compromise 225 The pawnor may assign, but cannot recover on the note till the lien is paid, 225 Conversion of the pledge 226 A delivery for a special purpose, 226, 227 14 TABLE OF CONTENTS. Presumption of negligence, 227 Losses by theft ; the rule as to care and diligence, 228 The right to stipulate for a restricted liability 229 A sale of pledge without notice, . 230 A contract, bow affected by the usage of trade, . . j 230, 231 If bailee break his contract, he loses his lien, .' 231 A sale of stock pledged ; an accord, 232 Payments, how applied when there are several debts, 233 Proceeds of sale of pledge, how applied 234 The pledge does not suspend right of action, 234, 235 The pledgee on a sale receives the proceeds, 236 A surety, how protected, 237 EXPENSES, BY WHOM BORNE, 237, 239 ACCESSORIAL THINGS, 239 The hirer for a term acquires the increase of a flock, 240 But the pledgee does not, *. 241 PARTIES. Capacity to contract, 242 Righto of married women as to their separate estate, 243 CONTRACT, WHEN VOID, 244 The pledge auxiliary to the principal debt, 244 Effect of giving a pledge for an usurious debt, 244 Our statutes prohibiting usury, 245 QMM illustrating the law, 246, 247 A pledge upon condition, 247 SALE or PLEDGE, WHEN AND HOW HADE, 248 - 262 The pledge may be sold judicially and on notice, 248 Must be on personal notice, 248, 249 A chattel mortgage may be foreclosed in like manner, 249 The pawnor has a legal remedy for the pledge, when, 250 A judicial sale, when advisable 250 A demand necessary before sale, 250, 251 Difference between the mortgage and pledge of goods, 251, 252 Assignment of principal debt, effect of, .' 253 The mortgagee of goods acquires title, when 253 What a reasonable notice of sale, 253, 254 The power of sale, how executed, 255 The right to sell on execution the pawnee's interest, 255, 256 The pawnee's duty to sell for benefit of another, 256 The mortgagee's duty in like case, 256, 257 Pledges under Code of Louisiana, 257 Our statutes as to sales, pledges and assignments of personal property, 257, 269 Foreclosure and notice,. . . .' 259 A conversion of the pledge, does not release the original debt> 260 The pledge cannot be made irredeemable, 260 The pledgee cannot purchase on the sale so as to acquire title unless, Ac., 260, 261 Pledgee's right to collect, how qualified, 261 An appropriation of the pledge a payment so far, 261 KExrrnrnoN, 262 - 273 TABLE OF CONTENTS. 15 A discharge of the original debt discharges the pledge, 262 The interest right to, 262, 263 Payment on an usurious debt, effect of, 268 A pledge to pay it, 264 Failure to restore, a surety, 264, 265 Cumulative security, 265 The contract of pledge annulled, when, 266 The owner divested of his title, when, 266, 26*7 The pawnee must restore the profits of pledge, 268 Statute of limitations, .- 268, 270 The doctrine of merger, 271, 272 Transfer of title by sale, by recovery, 272 CHAPTER VI. CONTRACTS FOR HIRE. TTis species of bailment mutually beneficial, 274 It is a hire or purchase of the use, 274 Our law on the subject, whence derived, . . . : 275 Classes of contracts for hire, 275, 276 HIRE OF DEPOSIT, , 276 This kind of bailee answerable for ordinary neglect 276, 277 The rule, how applied ; in cases of agistment, 278 The rule of the civil law ; its flexibility, 279 In general the bailee has no lien, 279, 280 Duties of the factor and his privileges, 280, 281, 282, 283 WAREHOUSE-MEN, are bailees for hire, 284 Their liability and rights ; case of a carrier, 285, 286 When a delivery by a carrier to a warehouse-man good, 286, 288 To pay charges when ; effect of mistake in the delivery, 286, 287 Effect of a sale of goods in the warehouse, * 287 A conditional delivery. "Weight of proof in case of loss, 287, 288 The bailee may be held to bail, when, 289 The contract controlled by custom, when, 289 A sale when presumed, 289, 290 Debts payable in specific articles, 290, 291 "When the warehouse-man's duties begin, 291, 292 An agreement to forward goods, 293 Storage by a common carrier ; by a warehouse-man, 294, 295 Limiting liability by contract, 296 WHARFINGERS, who are ; duties, and delivery to, 297, 299 Are not common carriers, 298 Not answerable for loss by fire, 299 Must answer for their servants, 300 Delivery of a wharfinger, 300 Liable for ordinary care, 801 Contract to forward goods 302, 303 16 TABLE OF CONTENTS. PAfiB. Effect of custom in regulating the delivery, SOS Forwarding and commission merchants, duties of, 804 EVIDENCE or Lose, 304 The bailor in the first instance proves the contract au J delivery, S05 Loss of papers, how proved; contents of lost trunk, 305 The bailee cannot .dispute his principal's title, 306 THE LIEN or WHARFINGERS AND WAREHOUSE-MEN 307, 308, 809 HOE or THINGS, 809 The hirer acquires a possessory interest, 809, 810 Distinction between executory and executed contracts, 811 Obligations of letter to hire, 811, 812 The engagements of the hirer, 312, 313 The like when an infant hires a chattel, 313 Contract of hire for a term, 314 LIABILITY IN RESPECT TO SERVANTS, , 315-320 The employer is answerable for his servants, 315, 316 He is liable on the principle that quifacit per alium faeit per se, 316, 317 Exception to the rule, 818 He is not answerable for his non-feasance, nor for his willful acts, . . 318, 819 BURDEN or PROor, 820, 321 Bailor must prove the allegations in his complaint* 322, 323 Proof when the bailee has violated his contract, 822 Failure to return, effect of, 823 ACCESSION, by the wrongful act of bailee 824 The increase of a flock accrues to the bailee, 824 An exception as to slaves, tc. 324, 825 USE or THE THING HIRED, . . 826 - 331 Must be in the time and manner agreed on, 326 - 328 Hired slaves, how used, 828, 829 Cases illustrative of the rule 829, 330 Once liable, he cannot .evade his liability, 331 TERMINATION or THE CONTRACT, 881 - 338 It is terminated when executed, or rendered impossible, 331, 332, 835 Mode and place of return, 833, 834, 335 It is ended by a loss or destruction of thing bailed, 335, 336 The rule as to hired slaves that die during the term 336, 837, 838 HIRE or LABOR AND SERVICES, 338 This contract includes all bailments for hire,. 338 Nature of the contract, 339, 340 BAILOR'S RK;IIJ or PROPERTY 840 Goods ordered to be made, who the owner of, 840, 841 The rule illustrated by cases, 842, 843 The case of shipbuilding, the English rule, 344, 845, 846 Delivery, what amounts to, 847 The. statute of frauds does not apply, 847, 348 The title to the thing ordered does not pass, - 348 Cases in reference to the statute of frauds, 849, 350, 851 An article bailed for repair, title to it, 352, 363 TABLE OP CONTENTS. 17 BAILEE'S RIGHT OF PROPERTY, ................................... 353 _ 355 The bailee has an interest to the extent of his lien, ............ ....... 354 But he has no lien till his work is done ............................... 354 His interest where he does work on shares, ...................... 354, 355 His lien upon a part for the whole, ........ . .............. . .......... 355 Has an insurable interest, .......................................... 356 Loss, BY WHOM BORNE, ..................................... ..... 356 - 358 The owner of the property bears the loss, ........................ 356, 357 And in some cases the bailee loses his labor, ................... ....... 357 But not as a general rule .............. . . . .......................... 358 HIRE OF LABOR AND SERVICES GENERALLY, .............................. 358 The workman has no pay. where he does no valuable service, ....... 368, 359 Case of a surveyor, ................................................ 359 Must perform strictly, ............................................ 359 An infant may rescind his contract, effect of, ......................... 360 Performance a condition precedent to a recovery, ...................... 360 Completion after time agreed on, effect of, ............................ 361 Hire of services for a given time ; harsh language does not rescind the contract, ................................................ 361, 362 Action for repairs under a special contract, ..................... 362, 363 Deviation from terms of agreement, ........................ . ....... 363 The terms control notwithstanding a mistake of fact> .............. 363, 864 Special agreement for compensation by will, .......................... 364 When no promise to pay for services implied, ..................... 364, 365 Delivery of an article made to order, ............ . ................... 65 Effect of delay caused by employer, ............................. 366, 366 Waiving contract ; a quantum meruit, .......................... 365, 366 Using better^materials than stipulated for, ............................ 366 Waiving contract under seal, implied promise, ....................... .* 867 Services of a counselor at law, .................................. 367, 868 Services of an attorney, recovery for, when, ...................... 868, 369 Must show a retainer ; employment, ................................. 869 Voluntary services, gratuitous, ...................................... 370 CARE DEMANDED, ............................................... 371 - 375 The same degree of care required of every bailee for hire ............... 871 The bailee bound to exert himself, ............................ 371, 872 Bound to answer for his servants, ................................... 372 Right of compensation after loss, .................................... 373 Care, how measured, ..................................... .......... 373 Bailor must show negligence, ....................................... 274 Loss by internal decay, robbery, theft, fire, except, Ac., 456 Stated affirmatively ; the rule illustrated, 466, 457, 458 A loss not attributable to act of God, when, 468, 469 The act of God, causing loss, affects carrier, 459 He loses his freight, 460 Low in a deviation from the route, who to bear, 460, 461 Special contract* prevail over usages, when, , . 461 TABLE OF CONTENTS. 21 PAGE. Acts of God, perils of the sea, and inevitable accidents, are not the same, 461, 462 How far liable after an act of God, 462 The question of liability, how resolved, 462 Fires kindled by lightning, acts of God, others not 462 PUBLIC ENEMIES, loss by, 463, "Who are public enemies, 463, 464 Rioters and robbers are not ; pirates are, \ . 463 Property captured, title how charged, 463, 464 The carrier to excuse himself need not show change of title 464 The carrier must answer for the goods with the exceptions mentioned, .... 465 He is regarded as an insurer, 465 His employment is public, and his duty declared by law, 466 He is liable independent of his contract, 467 His implied agreement to provide safe carriages, 467, 468 SPECIAL CONTRACTS, 468 - 490 Right to make a special .contract, bills of lading, 468, 469 Being bound to accept, cannot impose terms, 469 PUBLIC NOTICES, 469 - 490 Notices, effect of in cases of concealment, 470 Fraud and deception 471, 472 When contents of packages to be disclosed, 472. Notices entering into agreement, 472, 473, 474 Nature and design of notices, 474 Construction of notices, 474, 475 The office of notice in cases of fraud 475 Course of English decisions on the subject, , 475 - 482 Departure from common law, 476, 477 The doctrine of notice regretted, 477, 478 The decisions become more strict on the subject, 478, 479 The carrier required to make his terms known, 479 His duties ; the variety of notices given, 480 Result in a statute, the carrier's act, 480, 481 The ground of the statute, 480, 482 Decisions under it, 482, 483 Bound to carry, may contract for limited liability, 483, 484 Notices annulled ; never favored, 484 The doctrine as to notices in this country, 484, 485 Not to be deemed part of the contract, 485, 487 Restricted in their effect, 488 No contract implied conformable to terms of notice, 488 - 490 BILL OF LADING, form of, 490 A contract and a receipt ; an exception part of it, 490 A change in form of the exception, 491 An exception of " dangers of the seas," not made formerly, 491 Exceptions in the bill, how construed, 492, 493 The bill of lading cannot be contradicted, 494 The exception does not change burden of proof, 494 22 TABLE OF CONTENTS. YASB. Exceptions of the dangers of riven and lakes, 492 - 495 The exceptions used in English form of bill, 495 The perils of the sea cover unavoidable misfortunes, collisions, 496 Loss by capture, by perils of the sea, 496, 497 Perils of the sea, under insurance policies, construction of, 497, 498 When carrier to show his vessel sea- worthy ; proximate cause, 498 Negligence by third persons, covered by insurance, when 498 Master's right to sell cargo, 499 The master bound by terms of the bill ; its assignment, 499 Right of consignor over bill 500 Right of consignee receiving it for advances, 500 Right to recover freight from consignee 500, 501 When also from consignor ; freight when earned, 501 Right to pro rota freight, 501, 502 Special contracts of charter-party, 502 CARRIAGE or GOODS, duties connected with, 503 Mode of receiving, carrying and delivering goods, 503, 504 Contracts to carry beyond bis route .' 504, 605 When his duty ends, 505, 506 When it begins ; intermediate carriers, 506 - 508 Local usage as to mode of delivery . 508, 509 Jettison and general average 509 Effect of settlement of general average, 510 Goods on deck; effect of clean bill, 510 Effect of usages on contracts, 610-512 Jettison must be justified by necessity 612 Receiving goods to be carried on deck, effect of, 513 Loss of goods, improperly so laded, by lightning, 513 DELIVERY BY THE CARRIER, 513 Cannot commit delivery to another, 514 Duty to deliver, qualified by circumstances, 515 Warehousing; usage of trade, 615, 516 Mode of delivery, by ships and railroads, 615 Railroads, when depositaries, 516-518 Delivery by railroad to next carrier, 518 When carrier not answerable for act of delivery, 618 Constructive delivery, or waiver of, 519 Delay of delivery, when excusable, 519, 520 Railroad act ; a case of necessary delay, 519, 520 Burden of showing delivery rests on carrier, 620, 621 Special contract to deliver safely 521 Landing on wharf with notice, a delivery when, 521, 622 Delivery must be reasonable as to time, place, manner, 621 Carrier must find consignee ; his duty if he cannot, 521, 522 Must store the goods, how and with whom, 522 Duty of master, if consignee refuse to receive, 622, 523 The bailee of lumber on a river, bis duty, 528 Reasonable dlay, what is, cases, 523 - 625 TABLE OF CONTENTS. 23 Freezing of rivers, stress of weather, embargoes, &c 523, 524 Arrest but do not annul the contract, 523, 524 Distinction between lawful and unlawful act of government, 524 An action for delay, 525 Negative decisions illustrate the rule, 525 Delay caused by low water an excuse, how long, 526 Offer to deliver, effect of; specie how delivered, 526 An usage as to mode of delivery must be proved, 526 Failure to come and receive within reasonable time, . . . 527 Delivery of goods arriving in the evening, when to be made, 627 Duty in saving goods after an inevitable accident, 527 Duty in storing or forwarding goods at the end of route, 527, 528 Delivery to succeeding carrier, 529 - 531 Delivery from vessels arriving from foreign ports, custom, 531 - 533 The custom, when appealed to, 534 The carrier not to dispute his employer's title, 535, 639 Right of stoppage in transitu, 535 - 539 THE CARBIER'S HIRE OR REWARD, 640 - 547 In reference to his responsibility, 540 His right to demand prepayment, 541 Special agreement for, 542, 543 Who bound to pay freight, 542 - 644 Effect of an assignment of bill o^^ding, 543, 544 Pro rata freight, when due, 545 - 547 CARRIER'S LIEN, 547 - 552 It is specific and favored by courts ; others not favored, 547, 548 Waived, when 548 - 550, 551 REMEDIES AGAINST THE CARRIER, 652 577 For not receiving goods offered for carriage, 552, 653 Remedy against carrier in admiralty 653 Usual remedy on contract and for tort, 554, 555 ACTION ON THE CASE, against carrier, 555 - 559 Convenience of this action, 557 ACTION ON THE CONTRACT, against carrier, 659 - 661 Pleadings in 560, 561 PARTIES TO THE ACTION, 661 - 565 The owner brings the action, 561 The consignee presumed the owner, 562, 563 The owner liable for freight and the person receiving the cargo, 562. 564 The implied contract is with the owner, 564 BURDEN OF PROOF, 565 - 570 The pleadings show where it lies, 565 Proof required in the action; negative proof, 566 Presumptions against the carrier ; against others, 567 In cases of special acceptance ; exceptions, 568, 569 Under statutes, 570 DAMAGES, how estimated 570 - 572 EXCEPTIONAL CASES, 572 - 577 24 TABLE OF CONTENTS. PA6K. English railway e*8<, 672, 673 Carriage of live stock, 67 2 - 57 6 Carriage of slaves ; towing boats, 678, 674 Railroad corporations, common carriers by statute, 676 CARRIERS OF PASSENGERS. The common carrier of passengers bound to receive and carry, 677 - 680 Right to make regulations and preserve order, 678, 679 PATMXNT or FARE, 680-683 Right to prepayment ; fare covers baggage, 680, 681 Railroads bound to check baggage ; tickets, nature of, 681, 682 Putting off passengers, for not paying fare ; lien, 682 Right to freight from owner, when he is not the bailor, 682, 683 GENERAL LIABILITY, rule of, 683 - 686 Passenger-carriers bound for the utmost care, 683, 686 COACHES MUST BE ROAD-WORTHY 686 - 691 Railroad companies bound by same rule 687 - 690 COMPETENT SKILL, agreement for, 691 - 694 And for its exercise, 691. 692 A partnership, what, 693, 694 LAW OF THE ROAD 694 - 699 By statute, & 696 By custom ; in cities and villages, 696 - 699 Dunn BT TH WAT, 600 - 602 To stop at usual .places, 600 Towards disorderly persons, 601 Giving notice of danger, 601, 602 PASSENGER CARRIERS BT WATER, 602-618 Bound by same general rule, 602 Overloading ; explosions of steam, effect of, 603 Violation of statutes, effect of, 604 Duty in passing other boats ; and to carry lights, 604, 606, 610 Duty to carry lights, by statute, 604, 605 Duty to carry lights, by custom, 605 - 607 To use utmost vigilance to avoid collision, 605, 606 Lights necessary when vessels are at anchor, 606, 607, 608 Trinity-House regulations, nature of, 607, 608, 610 Rules of navigation, 609 - 614 Usage of the sea, laws of custom, 610 In meeting and passing, 610 - 612 Liability in cases of collision, 614 In landing passengers, 615 la carrying emigrant passengers ; penalties, 615 - 618 A. Acker v. Campbell, 180 Ackley v. Pinch, 191, 201, 252, 264 Ackley v. Kellogg 449, 505 Adams v. Lindsell, 123 Against Jackson, 431 Agle v. Atkinson, 8T Ainsley v. Wilson 131 Albatross v. Wayne, 534 Albin v. Presby 400 Alcornv Harmonson, 370 Allen v. Allen 824 Alexander v. Sonthey, j 818 Allison v. Math ieu, 26T Allen v. Williams, 219 Allen v. Dykers, 197, 204, 230, 252 Aldrich v. Albee, 180 Allen v. Merchants' Bank, 112 Alexander v. Greene, 70, 229 Alger v. Weston, 392 Aonies v. Stevens, 168, 456 Jm\oa v. Temperly, . . . 543 Ansell v. Waterhouse, 467 Andrewsv. Smith, 271 Angus v. Dickerson, 822 Andrew v. Dleterick, 93 Andrews v. Durant, 845 Anonymous v. Jackson, 469 Anjon v. Deagle, 458 Appleby v. Dodd, 335 Armory v. Delamirie, .. 65,88, 88 Armory v. Flin, 56, 90 Arnold v. Hallenbake 441 Aspenall v. Pickford, 548 Ashley v. White, 48 Aston v. Heaven, 435, 583 Ash v. Putnam, 160, 269 Atkinson v. Manks, 84 Atkinson v. Bell 841 Atkin v.Berwick, 157 Atwoood v. Reliance Trans. Co., 484 Austin v. The Manchester & S. R. Co., .... 672 Aymar v. Astor, 487 B. Baldwin v. Cole, 66, 129 Barker v. Miller, 62 Bank of Utica v. McKinster,... 112 Bayon v. Prevot, 115 Batesv. Conkling, 180, 264 Barret v. Warren 130 Barkerv. Eussell, 183, 554 Barrow v. Paxton 191, 196, 201, 249, 252 Batterman v. Pierce 178, 232 Bakerv. Wheeler, 180, 187 Babcockv. Gill 187,841 Badlam v. Tucker 204, 261 Bailey v. Burton, 205, 209 Bank of Rochester v. Jones, .... 219, 280, 499 Bailey v. Ogden, 220 Bank of Chenango v. Hyde, 235 Ballv. Marvin 242 Barnes v. Foley 286, 509 Barry v. Longmore, 307 Barnes v. Graham, 81 Bayliesv. Fisher, 83 Baylis v. Usher, 33 Bartholomew v. Jackson, 370 Batson v. Donovan, 445, 471 Barnes v. Cole, 605 Bastard v. Bastard, 557 Barker v. Havens, 501 Barker v. Cheriot, 502 Barberv. Brace, ^513 Baldwin v. Cole, 664 Barberv. Rose, 86 Bakerv. Langhorn, 281 Bank of St. Albansr. Gilliland, 195, 234 Bayv. Bogert, 268 Bank of U. S. v. Macalister 73 Beardsley v. Richardson, 34, 95, 105, 129 Belts & Church v. Lee, 78 Berley v. Taylor, 115, 12-2 Bergen v. Bennet, 126 Beardsley v. Root, 131 Beers v. Culver, 148 Beach v. Fulton Bank, 269 Beach v. Vandewater, 176 Beach v.Owen, 182 Benners v. Ex'rs of Howard, 182 Bemus v. Beekman, 217 Bellv. Palmer, 280 Bellows v. Denison, 324 Bellv. Reed 331,467, 498 Bennet v. Hull, 843 Bementv. Smith, 365 Beedle v. Morris 394 Bennetv. Mellor, 397 Bean v. Sturtevant, 435 Beck v. Evans, 451 Beekman & Johnson v. Bhonse, 484 Beekman v. 8. & a R. Co., 577 Bennett v. Putton, 443, 577 Bixby v. Whitney, 1H) Bissell v. Drake, 212, 225 Biles v. Holmes, 825 Birch v. Liverpool, 351 Bishop v. Pentland, 498 Bickett v. Willan, 476 Bigelow v. Heaton,! 549 Blanchardr. Ely, 177 Blackwell v. Ellsworth, 205 Blandy v. Allen, 215 Blackstone Bankv. Hill, 233 Blood v. Humphrey, 243 26 TABLE OF CASES CITED. Blake r. Nicholson, 8T8, OR Blinv. Mayo, 801 Blade v. Noland, 806 Bleadon v. Hancock, 806 Blanchard v. Itflf^t. 425 Blake v. Baxendale, 685 Bonny T. Ameo, 198 BoBtatOMt 71 Bond v. Ward 89 Boncherv. Lawson, 489 Boyle v. M'Laughlin, 459 Bodenham T. Bennett, 476 Bondrrt v. Hentigs, 497 i:> >-t ii-k v. Champion, 594 Bourne r. Oatlifl, 62*2 Bowman v. Teall, 519 Bonn Y. Headley, 824 Boyoe T. Brown, 188 Bowman T. Teal, 168 JJowie T.Napier, 214 Boyd v. Hitchcock, 282 Bovan r. Waters, 807 Honor. Bandford, 816, 467, 656 Boyce v. Anderson, 428, 573 Boydcll T. Drummond, '. 851 Bracket v. M'Nair 670 Bracegirdle v. Heald, 851 Bray T. Mayne, 874 Brandt v. Bowlby, , 671 Bretherton T. Wood, 655 Bremnerv. William*, 687 Brigham v. Rogers, 4S4 BrUlin v. Boyd, 125 Bringloe v. Maurice, 183, 158 BrUtow T. Eastman, 146 Bristol r. Wilsmore, 160 Brig Sarah Ann, 200 Brinder. Dale, 229 Bromley T. Holland, 269 Brooks v. Hutibard, 290 Brook r. Plckwicke, 488, 466 Brown v. Denison, 294, 449 Br<>nv. Cook 60, 88, 89, 145 Brown T. Maxwell, 818 Brown r. Duncan, 890 Brown v. Quitter, 888 Brown T. Taber, 148 Brown r. Saxe, 187 Brown v. Bcment, 191, 249 Brown r. Hotcbkiss, 8S Brown T. Treat, 116 Browncll v. Hawkins, 261 Jlrownell v. Flagler 877, 699 Browning v. Hanford, 69, 61 Browcher v. Noidstrom, 819 Broughton r. Whallen, 150 Bryan v. NU 600 Brycc v. Brook, 280 BoOook v. Ba>cock, 60 Bunhforth v. Hadfleld, 59, 280 Burke v. Trent, 69 BursJey v. Hamilton, 68 Burnett T. Lynch, 110 Burton T. Hughe*, 142, 151, 158 Butlerv. Rose, 178 ItulTura T. Mcnr, 186,281 Bullcrv. Harrison, 194 Bullard v. Billings, 196 IlutUrneld v. Baker, 196 Butlerv. Van Wyck, 259 r.uffington v. Oerisb, 268 Bush v. Lyon 270, 279 r.utlerv. Miller 271 Buckley v. Packard, 882 Bush r. Miller, 285 I'.urk man v. LevL, 299 Burton T. Wilkinson, 806 Bosh T. Stcinman, 817 Burlingame v. Burlingame, 851 Burdlck T. Murray 855 Burgew v. Clements, 899 Baswy v. Donaldson, 487, 612 Buddie Y. Wilson, 467 Bullcr Y. Fifther, 486 IVi-kirk v. Purrington, 688 Butu-rfleld Y. Forrester, 697 Buckley Y. Fnraiss, 686 Burgess v. Qun, 647 0. Cary Y. Hotaillng 60, 64, 160 Campbell v. Stakes, 61, 146, 161, 16 Callcndarv. Oelrichs, 106 Carrington Y. Smith 196 Carr v. Lancashire & Y. E. Co., 578 Carriguea v. Coxe, 491 Campbell v. Morse, 466 Camp Y. Camp, 280 Curpuc v. London & B. 11. Co., 687 Carroll Y. The New- York & N. H. E. Co.,. 590 Carsley v. White, 605 Causey Y. Yates, 244 Camden. .Vc., Co., Y. Burke, 428, 608 Cayle's Case.. 892 Cairuthers v. Payne, 846 Cathan Y. Moore, 821 Case T. Bonghton, 26*2 Caton Y. I : u ii i in -y. 229, 574 Cnldwell v. Murphey, 586 Chamberlain Y. Chandler 617 Chapman v. dough, .- 284 Chapman v. Black, 246 Chipman Y Martin, 271 Chapman Y. Allen, 280 Chenowithv. Dickinson, 804 Chamberlain v. Gorham, 806 Chew v. Gary, 825 Christie v. Griggs, 428, 588 Champlinv Butler, 886 Chorley v. Bolcot, 867 Chace v. Wetmore, 855 Christian v. Grigg, 484 Chaplin Y. Hawee, 597 Chesterfield v. Janscn, 71 Charnley v Whinstanley, 127 Childs v. Hart, 188 Church Y. Sanders, 146 Chambers v. Winn, 182 Chandlerv. Windship, 188 Chandler v. Belden, 652 Chandlerv Talbot, 641 Checkering Y. Fowler, M5 Cheeney v. Halley, 494 Chase v. Westmore, 651 Citizen's Bank Y. The Nantucket 8. Co., .. 486 Clark Y. Bush, 268 Clark v.Shee, 267 Clark Y. Bull, 269 Cleverly v. Brackett, 270 Clark v. Bowling, 271 Clarke v. Spencer, 288 Cliffe v. Danvers, 896 Clark v. Spence, 801, 806 Clark v. Poozer, 821 Clark v. Eamshaw, 88 Clayton v. Andrews, 848 Clark Y, Mayor, Ac., of New- York, 868 Clayton v. Per Dun, 898 Clark v.Grey 488, 661 Clark v. Faxton, 484 Clutev. Wigeins, 897 Clark v. Smith, 886 Clarkson v. Edes, 650 Clarkson v. Coles, 541 Clay v. WUlan, 470 Claxton v. Swift, 187 Clark Y. Pinney. 182, 198, 290 Cterk v. The Brig Dodge Healy, Clark v. Hutchins, 448 Clark v. McDonald, 678 Cooper Y. Barton, 828 Coit v. Houston, 889 Corlies v. Widdifleld, 282 Coon v. 8. A U. E. E. Co., 818 Cooper v. Elision, 848 Collinsv. Forbes, 888 Cole v. Goodwin, : 481 Collman v. CoUina, 688 TABLE OF CASES CITED. 27 Cotterill & Wife v. Starkey, 698 Coppin v. Braithwaite, 601 Comstock v. Smith, 289 Cooper v. Kane, 59, 231 Commercial Bank v. Hughes, 66 Coggs v.Bernard 70, 94, 97, 120, 168 Commonwealth v. Morse, 92 Cook v. Bradley, 106 Coddington v. Bay, 119, 234 Conrad v. Atlantic Ins. Co., 119, 280, 544 Copeland v. Mer. Ins. Co., 127 Conway v. Bush, 134 Coltv. McMecken, 169,457 Cortelyou v. Lansing, 189, 196, 201, 248 Collins v. Martin, 193 Colt v. Lesnier, 194 Commercial Bank v. Kortright, 198 Covillv.Hill, 217 Corlies v. Gumming, 221, 282 Cook v. Gourdin, 441 Cobban v. Doune, 447 Cory v. Little, 55 Colepepper v. Good, 449 Cook v. Champlain Trans. Co., 557 Cook v. Howard, 464 Cope & al v. Cordova, 490, 532 Cock v. Taylor, 543 Coleman v. Lambert, 543 Corbett v. Packington, 560 Coxe v. Harden, 663 Commonwealth v. Power, 579 Coates v. Railton, 536 Covill v. Hitchcock, 588 Crawshay v. Eades 539 Creery v. Holley 510 Crane v. The Rebecca, 881 Crosby v. Fitch, 440 Craft v. Alison, 819 Cross v. Andrews, 394 Crawshay v. Homfray, 355 Crookshank v. Burrell 848 Crafts v. Waterhouse, 585 Crippen v. Culver, 147 Curtis v. Grant, 187 Cuming v. Brown, 499 Cumberland v. Codington, 116, 194 Curtis v. Groat, 182 Curtis v. Drinkwater, 586 Cutler v. Powell, 335 Curtis v. State of Ohio, 892 D. Davis v. Garrett, 829 Dacy v. The Chemical Bank, 146 Dale v. Hall, 442 Dansett v. Wade, 494 Dartnal v. Howard, 107 Daubignyv. Duvol,.... 118, 211 Davisv. Garrett, 829, 513 Davis v. James, 562 David v. Moore 422 Davenport v. Tarlton, 240 Davis v. Anable, 271 Dawes v. Peck, 562 Dawson v. Kittle, 59, 230, 289 Dawson v. Chamney, 404 Day v.Leal, 235, 271 Day v. Ridley, 566 Dean v. Keate, 320 De Bagnis v. Armisted, 390 De Fonclear v. Shottenkirk, 89, 107, 186 Defreeze v. Trumper, 192 De Forest v. Jewett, 181 Delafleld v. The State of Illinois, 221 De Mott v. Laraway, 292, 503, 519 Demandary v. Metcalf, 250 Demyer v. Souzer, 870 Depau v. The Ocean Ins. Co., 510 Denton v. Livingston, 209 Denew v. Daverill, 859 DeTollmere v. Fuller, 108, 114 Detouches v. Peck, 602 Dewell v. Maxon, 558 De Wolf v. Harris, 248 Dezell v. Odell, 63, 172 Dicas v. Stokely, 549 Dickerman v. Abrahams, 243 Dickerson v. Rogers, 392 Dickson v. Clifton, 467, 559 Dillenbeck v. Jerome, 60, 180 Dixon v. Baldwin, 536 Dodge v. Bartol, 510 Dorr v. N. J. Steam Nav. Co., 405, 468,489, 515 Doorman v. Jenkins, 85, 107, 128, 277 Dobbin v. Thornton, 499 Doe v. Lansing 392 Downs v. Ross, 347 Dominick v. Michael, 147 Donner v. Thompson, 563 Drake v. Mitchell, 187,236 Drake v. Reddington, 326 Drinkwater v. Goodwin, 221 Dubois v. Del. & Hudson Canal Co., 865 Dudley v. Smith, 592 Dudley v. Bolles 596 Duflfv. Budd, 564 Duffle v. Hayes, 502 Dugeon v. Teass, 322 Duncan v. Spear, 278 Dunlop v. Hunting, 117, 228, 285, 283 Durell v. Mosher, 172, 175, 184 Durnford v. Patterson, 118 Dutton v. Solomonson, 562 Dwight v. Brewster, 425, 558 Dwight v. Whitney, 125 Dy^gert v. Bradley, >. 699 E. Eagle v. White, 527 Earing v. Lansing, 595 Eaton v. Lynde, 354 East India Co., v. Pullen, 229, 432 Eaton v. Benton, 864 Edgar v. Boia, 290 Eddy v. Traver, 237 Edson v. Weston, 60, 61 Edwards v. Brewer, 538 Edwards v. Sherratt, 443 Elderv. Roase, 285, 265 Eldridge v. The Long Island R. R. Co., .. 593 Elliot v. Armstrong, 200, 262 Elliott v. Russell, 436 Ellis v. Hamlet, 862 Ellis v. Hamlin, 384 Ellis v. Hunt, 535 Elsee v. Gatward, 100, 111 Ely v. Ehle, 564 Enos v. Tuttle, 667 Evans v. Hutton, 524 Evans v. Polter, 280 Evans v. Potter, 125 Everett v. Coffin, 195 Everett v. Saltus, 562 Ewing v. French, 842 Ewing v. Thompson, 825 F. Fairchild v. Slocum, 802 Falkner v. Brown, 56, 60, 64, 148, 152 Falknerv. Wright, 462, 527 Fanchot v. Leash, 183 Farnsworth v. Ganard, 858 Farnsworth v. Groat, 615 Farnsworth v. Packwood, 229, 421 Farwell v. Boston & W. R. Co., 602 Fell v. Knight, 409 Ferris v. Paris, 281 Feynson v. Lee, 209 Fielding v. Kymer, 118 Finacue v. Small, 72, 227, 284 Fish v. Chapman, 493 Fisher v. Bradford, 225 Fisher v. Cobb, 88 Fisher v. Prince, 132, 198, 260 Fisk v. Newton, . 288 Fish v. Ross, : 484 Fisk v. Newberry, 583 28 TABLE OF CASES CITED. Fitzroy v. Gwillim. 844, 267 Fiusimmons v. M liner, 808 Fletcher Y. Heath, 815 Flewelllnv. Rave, 164 Fonda T. Gross, t Fool T. Brown, 88 Foot T. Emmeron, . 851 Foot T. Storrs, 88T, 288 Forster T. Fuller, 68 Foster v. Frampton, * >M ** Knightv. Plymouth, .................. 69 Hodgson v. Malcom,: Hodge'8 Heirs v. Durnford, Hyde v. Trent & M. Nav. Co., 83, 294, 430 477, 607, 514 Huntv.Ennis ............................ 126 Button v. Bragg, ........................ &5 Hunt v. Eousmaniere, .......... 121, 126, 269 Hunt v. Fuller, ......................... 2w Hunt v. Dorman, ........................ * Kurd v. West, ........................... 137 Huntv. Holton, .......................... 1= Hudson v. Guestier, ..................... Huseley v. Branch, .................. . ^ Huntington v. Martin, ............... 251, ^>S I. Ilsley v. Stubbs, ......................... 562 Ingalls v. Bills, ...................... - - 685 Ingc-rsoll v. Von Bokkelin, ......... 210, 270 Ingalls v. Lord, ..................... 129, 209 Isaac v. Clark, .................. ..... 87,262 label v. Norvell, ......................... 829 Ives v. Van Epps, ....................... 1 Izett v. Mountain, ........................ 4TO J. Jacoby v. Lanssatt, ...................... 29 Jackson v. Walker, ...................... 86 Jackson v. Baker, ....................... 2s2 Jackson v. Frier, ........................ 805 Jackson v. Davis, ........................ *5 Jackson v. Clark, .......... .............. 81 Jackson v. Eoggers, ..................... 44 Jackson v. Covert, ......... ........... ' i Jacksonv. Willard, ................. 191, 253 Jackson v. King, ........................ 242 King v. Eichards ..................... 4, Kingv. Baldwin, ........................ |3T 807 ttg V Kilkman v. Shawcross, Kingv. Humphrey, 8U< King v. Brown, j King v. Lenox, 43 Kingv. Shepherd, 4a4 Kinlock v. Craig, 65 Kimball v. Huntington, f Koon v. Greenman, 1 L. Laing v. Golden, 495 , Lane v. Sir Eobert Cotton 412 Lantry v. Parks, 884 Lane v. Penniman, M Latham v. Eutley, bi Lawrence v. Dale, 367 Lawson v. Weston, Jackson v. Van Dusen, Jackson T. Sackett, Jackson v. Myers Jackson v. Henry 242 268 266, 311 Jackson v. Blodget, 191, 253 Jackson v. Vanderheyden, 4J Jackson v. Timmerman, 1 Jackson v. Tollett, 59; Jameson v. Drinkald, 611 James v. Bixby, 870 Jarvis v. Bogere, 193,200,210 Jacobs v. Lawton, 80 Jacobson v. La Grange, Jennings v. Camp. , . , Langdon v. Buel 1W, 252 Lanssatt v. Lippincot, 195, 220 102 Lansing v. Turner, Lane v. Cotton,..;.. La Place v. Aupoix, . JRW Laugher v. Pointer, 315, y* Lacostv. Pipkin, 81 Leckbarrow v. Mason, *i"> f* Leverich v. Meigs, 281 Le Eoy v. Eastman, **j Leach v. West, 829 Lewis v. Western Bailroad Cor. 518 Leek v. Maester, ?U Leeson v. Holt, 476, 477 Leame v. Bray 9S Lenox v. The U. 8. Ins. Co., v. 51 Lee v. Atkinson, 81 Le Page v. McCrea, "32 Levi v. Waterhouse, - 47 Litchfleld v. White, 136, 223 Liddard v. Lopes, 502 Linkous v. Commonwealth, 410 Livingston v. Ackeston, 364 VHaMuwwv -"iri " .+ f\ KTT Jencks v. Coleman, 410, 57 Jewell v. Schroeppel, 36 Jennings v. Eandall, 146,81. Jewett v. Warren, 196, 2b5 Johnson v. Hudson, Jones v. Pearle, Jones v. Tyler, 890 Lipsecombe v. Holmes, Linningdale v. Livingston, Lite et ux v. Perry Little v. Semple, Linnendoll v. Doe and Terhune, . . Livingston v. Harris, 244, 245 Livingston v. Bishop, 132, Is Little v. Cowley, Littler v. Holland, 367 185 494 205 535 Jones v. Thurloe, 418 Jones v. Osborn, 391 Jones v. Voorhees 433, 484 Johnson v. The Schooner McDonough, <507 Johnson v. Friar, 492 Johnstone v. Osbome, **1 Johnston v. Benson, 496 Johnson v. Stone, 4AJ Jordan v. James, J>w> Johnson v. Hill, 396,582 K. Kannen v. McMullen, 35 Kennedy v. Strong 132, 213, 226 Kempv.Westbrook, 192, 213, 250 Keutgen v. Parks, 234, 246, 2b7 Kettle v. Bromsale, iA l< Kemp v. Coughtry, 437, 50 Kentv. Shuchard, Lodowsky v. McFarland,. 105 Lobdellv. Hopkins, 182, 334 Lockwood v. feull 175>22 M^I Lockwood v. Ewer,.. 193, 2b9 Lockwood v. Barnes, 35 Logan v. Matthews 320 Lowry v. The Steamboat Portland, 609 Logan v Ponchartrain E. Co , 576 Lovett v. Hobb, 432 Lowv.Eice M Lower v. Winters, < j Lushv.Druse, Lupton v. White, 81 Lundsford v. Baynham,.. 823 Ludwig v. Meyer, 570 Luke v.Lynde, 50 Ludden v. Leavett, " Lubbockv. Inglis, 80 Lyon v. Mells, 4CT Lyonv. Smith,..' Lyel v. Barker, 270 M. Mayor, &c.,v. Furze,.... Mason v. Denison, 50 M 30 TABLE OP CASES CITED. Markham v. Brown,. , Mason v. Thompson,. Marsh r. Uulowoo, .. Mayor, *c~v. Bailey, Mail..ry- White,.... Mahew v. Boyee, .... Mayhvw r. Nelson, .. May hew r. Eamea,... Mailory r. W Ulta.. . . . Manhattan Co v BcnUey, Mayor v. Humph ' Mar In; v. Todd,. . ... 410, 677 , 896 861 817 841 , 872 666 669 , 842 , 184 , 698 , 296 Mayor*of Columbus y. Howard, 827 Macombor v. Parker, 196, 211 May v. Babcock, 612 May y. Harvey, 85 MactkMr y. Frith, 128 Mason v. Briggs, 117, 182 Max v. Roberts, 666 Machu v. The London and S. Railway Co., 607 Marshall v. Bryant, 257 Martini v. Coles, 214 Marsh v. Blythe, 498 Mallough v. Barbour, 122 Marsh v. Home, 283, 472 Martin y. Mowlin, 191, 258 Marsh v. Lawrence, 204,209 Mayor T. Pine, 851 McCartee T. Chambers, 869 Mcvtanus v. Crickett, k 819 McKarland v. Crary, 869 McMillan v. Vunderlip, 860 McLaugblln v. Waile, 66. 65 Mi-Gill v. Rowland, 681 McKinney v. Meal, 592 MrKarland v. Wheeler, 195, 549, 856 McDonald v. Hewctt, 810 McCall v. Forsyth, 667 McC'lure v. Hammond, 487 MrFarland v. Wheeler, 195 a,V> Me bean v. Walker, 169, 193, 200, 225, 249 McCracken v. Luce, 209 McCombie v. Daviea, 198,211, 214 McArthur v. Wilder,.. 287 McHenry . Railroad Co., 467 672 McArthur v. Sean, 163, 456 Mv Allister v. Hammond, 698 McDonald v. Kilgerton, 897 M.Grrgor v. Kilgure, 670 McDonald v. Hodge, 290 McKeiizie v. Scott, 281 McMahon v. Sloan, 172 McCullock v. Eagle Ins. Co., 128 McAllister v. Reab, 178 MeCarty v. Vick, 247 MeCarty v. Vickery, 180 Meech v. Smith, 2S8 Mi-ny v. Greene, 184 Meany v. Head. 808,561 Merwin v. Butler, 484,626 Meneione v. Athawes, 867 Merhtt v. Johnson, 76, 840 Merian y. French, 548 Mersercau v. Morton, 208 Measlier v. Cooper 677 Merritt v. Foster, 127 Merchants' Bank v. N. J. Steam Nay. Co., 468 Melville v. Brown, MB M tilbury v. Watrous, 146 Metralf v. Sholey, i Mills v. Stewart, '.'.'.'. 87 Mi'l'llelon v. Kowle, ,..551 577 Miller v. The Su-am Nay. Co...... 580 Mitchell v. Williams, Millerv Race, " 186 Millon v. Salisbury, ..18.811. 8*J Middlctnn v. Fowles, Milrhell v. Ede, MM , , Mlrklelbwalte v. Theband,... Mires y. Solebay . - Millyan v. Wedge Miller v. Drake, 68 """"Ad*, V.. 88 Mitchell v. Ostram, 665 Mixer v. Howarth. 848 Moffatt v. East India Co., 647 Morse y. Crawford, 821 Mount y. Derrick, 818 Mowry y. Walsh, 1 Moseley and Fossett.. 278 Mohawk and II B. I:, v. Clute, 85 Mores v. Conham, 191,210, 888 Motram y. Heyer, 587 Morgan y. Congdon, 279, 855 Moore v. Fox, 869 Morgon v. Livingston, 74 More y. Slue, 464 Moreton v. Harden, 819 Morrill v. The Great Northern E. Co., .... 678 Moneypeny v. Hartlaud, 859 Moller y. Living, 499 Moore v. Fox, 861 Moore v. Hitchcock, 806, 868 Morse v. Woods, 265 Mowry v. Walsh, 98, 84T Mucklow v. Mangles, 845 Mumford v. Stocker, 271 Muschanip v. Lancaster Railway, 802, 606 Mulloy v. Backer, 647 Murray v. Burling, 66, 129 Murray v. Burlis, 268 Munn v. Baker, 669 Mullv.Kelley 65 Myttou v. Cock, 68, 278 N. Nash v. Mother, .' 196,211 Nash v. Ely, 220, 253 Naylor v. Mangles, 809 Nelson v. Macintosh, 104 New Jersey Steam Nay. Co. v. Merchant's Bank, Ac 488, 554 Newhall v. Vargas, 583 Nellls v. Clark, 264 Neptune the Second, 618 Newton v. Pope, 828 Njcholson v. Monnsey, 618 Nicholson v. Chapman, 90, 168 Nicholsv. Roland 107 Nicholson v. Willan 470 Nocholet's adm. v. Pillot, 122 Norton v. Squire, 256 Noble & Palmer v. Paddock, 604 Nourse v. Prime, 204, 222, 280 Norton v. The People, 148 Norton v. Woodruff, 810, 886 0. Oakley v. Greenshaw, 282 O'Connor v. Foster, 571 Olmstead v. Hotalling, 50 Ogle v. Atkinson, ... 295 Oppenheim v. Russell, 686 Orser v. Storms, 148, 156, 176, 184 Orange County Bank v. Brown, 408 Osterhout v. RoberU, 182, 187, 272 Osbord v. Groning, 545 Ostrandcr v. Brown, 286, 508 Otis v. Wood, 809 Overseers, therefore in fixing the standard of positive legal competency, has taken a low standard of capacity; but it is a clear and definite one, and therefore wise and safe. It holds, in the language of the latest English commentator, that weak minds differ from strong ones only in the extent and power of their faculties ; but unless they betray a total loss of understand- ing, or idiocy, or delusion, they cannot properly be consid- ered unsound." (Shelford on Lunacy, 39.) This able opinion was delivered in a case touching the validity of a will ; but the law makes no distinction between the legal capacity required to make a will, and that neces- sary to enable the party to enter into a binding contract. Where goods come into possession of one who has no capa- city to contract, under such circumstances, as in the case of a person capable of contracting, raise an implied under- taking to keep them safely, though no contract arises, the goods can be recovered by the owner. The right of posses- sion follows the title ; and if the custody of the property have been parted with through misapprehension, for a time and purpose specified, the property can be retaken. It can even be repossessed immediately, as we have seen in the in- stance of bailment for hire to a person incompetent to con- tract. A lunatic, though incapable of committing the moral wrong of trespass, is nevertheless answerable in his estate ON DEPOSITS. 55 for the injury he commits. Under the statute of this state, whih gives damages recoverable in the name of the execu- tor or administrator of the deceased, for the destruction of life through carelessness or by any wrongful act, a lunatic has been held responsible. The case is not reported, but it was so decided at a general term of the supreme court in Albany, and is supported by many other cases adjudicated upon the same principle. The law in such cases demands of the lunatic only the actual damages, to be satisfied out of his estate ; in other words, it leaves his misfortune to rest upon him to the extent of the injury he commits, within the limits of his pecuniary responsibility. 1 The Finder. Th'e finder of personal property is not compelled by law to take the same into his custody ; but if he voluntarily assume the charge of it, the law imposes upon him the du- ties of a depositary, 2 so far at least, that he is answerable for gross negligence. The action of trover so long in use, was designed expressly for the recovery of property by the owner from the custody of the person, into whose hands it may have lawfully come, as by finding, the important fact in the case being the act of conversion ; that is, the exercise of some act of ownership or control over the property in exclusion of the legal owner. In that form of suit, in general, only the two questions of title and conversion were litigated. A careful examination, however, of the decisions in the action of trover will show that the finder is, and upon principle ought to be, held responsible for the care of the goods so received. The law", in fact, gives him a special property in them, and he may maintain a suit against any one who shall convert them except the rightful owner; 3 having the right and the means of protecting the property, it is but reasonable that he should be required faithfully to exercise and use them. Where a 1 Mull T. Kelly. See Session Laws of 1847, ch. 450, p. 575 ; see also Session Laws of 1849, ch. 256, p. 388. * Storj on Bailm., 86, 87 ; Cory T. Little, 6 N. Hamp., 213. * Mclaughlin v. Waite, 9 Cowen, 670. 56 LAW OP BAILMENTS. right is conferred, it is a general principle of both law and equity, that the person or party in whom it is vested "shall be required to exercise it in good faith, so as to carry out the purpose for which it is given. 1 The action of trover, which always assumed that the pro- perty in question came lawfully into the defendant's pos- session, was frequently brought and sustained for the injury suffered by the misuse, or disposition of it contrary to orders. Every direct act of authority, amounting to an assertion of title, every breach of the express or implied trust on which it was received, and every abuse of the lawful possession, has been repeatedly held a conversion of the property. 2 These familiar principles are applicable both to chattels and to choses in action. 3 It seems, also, that the finder, who takes straying property and keeps it for the owner, and is thereby put to necessary expense in securing it, has a right to be refunded such expense. This certainly could not be the case unless the law at the same time cast upon him the duty of taking care of it. 4 The general doctrine of the common law is that the per- son who takes an cstray, cannot levy a tax upon it, by way of amends or indemnity. 5 In very early times, indeed, when the king was at best only a common robber, a different prin- ciple prevailed in relation to wrecks and property cast upon the land from disabled vessels; the king in such cases being the strongest, was adjudged the owner. 6 Acts of that nature are in this age branded as piracy. A mere servant has not such a special property as will enable him to maintain trover, yet a bailee, or trustee, or any other person who is responsible to his principal, may maintain the action, and the lawful possession of the goods is prima facie evidence of property. 7 The finder, as we have The Mayor, Ac. of New York v. Furze, 8 Hill, 612. Baldwin v. Cole, 6 Mod., 212 ; M'Combie v. Davits, 6 East, 640. Murray v. Burling, 10 John. R., 172; 2 Eep. N. P., 190. Amory v. Flyn, 10 John. R., 102. 1 Roll. Abr., 879, G, 6 ; Key's Rep., 144 ; Salt, 686. 1 Black. Comm., 291. Faulkner v. Brown, 18 Wend., 68. '. ON DEPOSITS. 57 seen, may maintain the suit In defending them, and hence it follows that he is responsible for the exercise of that degree of care over the goods for which the law clothes him with this right. The person who secures timber carried down a river by flood, performs what is legally termed a meritorious act, for which he is entitled to compensation from the owner, 1 and having once taken it into his keeping, he is responsible for reasonable care. It does not seem to be absolutely settled whether the right of compensation, in such a case, becomes a lien upon the property, or only remains a naked right of action as for a reasonable recompense. In the case of Amory v. Flyn, it is assumed that a lien attaches for the necessary ex- penses incurred in the taking and keeping of the property ; and the principle seems at once both equitable and con- venient. The right of compensation being established, there is no good reason why it should not be paid on ttie delivery of the property. 2 Those who rescue vessels or goods abandoned in distress at sea, are entitled to a reasonable reward for their services, known as salvage, in the maritime law. The claim arises for the saving of the vessel or goods from loss at sea, either by shipwreck, fire, or other distress; by public enemies or pirates. The amount of compensation is estimated and ascertained in every case by the compound consideration of the danger from which the vessel or goods have been rescued, and the extent and importance of the service rendered. The value of the property saved from loss, is an essential circum- stance in estimating the value of the service. Though the goods in such cases come into the posession of the salvors in a manner analogous to the finding of strayed or lost property on the land, so as to be appropriately mentioned in this con- nection, the possession is of a different character ; the right of compensation arises out of the labor rendered in their rescue from the perils of the sea, and attaches always as a lien upon the property. 3 No right to salvage arises unless 1 2 a BL, 254, 258. * 1 R. S., 3d e was connected with the others, but agreed that she should live with them to cook and take care of the sick, and he sent her to another place to nurse a sick person, where he was warned that the small-pox prevailed, and she having died there of the disease, the bailee was held liable for her value. The Contract. An ingenious writer in the American Jurist, maintains that there is, in fact, no contract formed between the man- dator and the mandatary ; and that though the mandatary is liable for misfeasance in the execution of his trust, he is so, not by virtue of his contract, but for his tort. 2 This theory is maintained in an elaborate article, the argument in which proceeds mainly upon the form of action, usually case, which is brought for the violation of the trust; the question of liability being always tried and decided on the plea of not guilty. 3 " The form of the action is not assumpsit, but case ; the plea is not non-assumpsit, but not guilty. In this view of the matter there is no inconsistency, no principle is vio- lated, every thing is congruous. The bailor's want of right to sue for non-feasance, is entirely consistent with his right to sue for misfeasance. Assumpsit cannot be for misfeasance as such. If you sue for misfeasance, your action is grounded on tort, not on contract. It arises ex delicto, not ex contractu. If there be a binding contract to do, and misfeasance in the execution of it, you may, generally speaking, bring assumpsit; but then the gist of your action is the non-performance of the contract ; and you must take care to declare on the non- performance, and use the misfeasance as evidence of it ; for if there be misfeasance, the contract is not performed as it was agreed to be, and of course assumpsit lies for the breach." 1 1 Rp. Con. Ct, 117. VoL 16, page 275. . Idem, 282. GRATUITOUS COMMISSIONS OR MANDATES. 109 This distinction is very nicely drawn, but the difference between calling the undertaking of the mandatary a con- tract or a trust is not very broad. In either case, the obligation arises out of the relation of the respective parties to each other, and the tort or wrong consists in the failure to perform the act undertaken, with the degree of care which that obligation imposes upon him. Commenta- tors and judges have uniformly spoken of this undertaking as a contract, treating and enforcing it as such, as often as it has been brought before a judicial tribunal, or discussed as an elementary question. It is none the less a contract because, in most cases, it is implied by law ; whether a re- covery may be had for its violation, depends upon the plaintiff's showing that the defendant has failed to discharge the obligations it cast upon him, that is, has failed to do the act with proper care. Though the form of the action be case, it is usual and necessary to incorporate into the com- plaint the substance of the contract, and the plea of not guilty puts in issue simply the allegations of damage or loss by the negligence alleged. 1 Other matters must be pleaded specially, as in actions of assumpsit. In the action of case, against a common carrier, the plea of not guilty operates only as a denial of the loss or damage through the default or negligence charged, but it does not put in issue the 'fact of the receipt of the goods by the defendant as a carrier for hire, nor the purpose for which they were received. Assumpsit and case are in many instances concurrent reme- dies, under a practice so long established that it has inter- woven itself with the first principles of the common law. Mr. Justice Littledale thus states the distinction between these two forms of action, from which we shall perceive how far the tort differs from a breach of contract : " Where there is an express promise, and a legal obligation results from it, there the plaintiff's cause of action is most accu- rately described in assumpsit, in which the promise is stated as the gist of the action. But where, from a given state of 1 Appendix to Warren's Law Studies, 2 ed., p. 37 ; see also form of declara- tion, Yates' Pleadings, 371. 110 LAW OP BAILMENTS. facts, the law raises a legal obligation to do a particular act, and there is a breach of that obligation and a consequential damage, there, although assumpsit may be maintainable upon a promise implied by law to do the act, still an action on the case, founded in tort, is the more proper form of action, in which the plaintiff, in his declaration, states the facts out of which the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from that breach. For that is the most accurate description of the real cause of action ; and that form of action, in which the real cause of action is most accurately described, is the best adapted to every case." 1 The consideration for the contract or undertaking of the bailee or the mandatary, in the action of case, is always stated to be the delivery of the goods at the instance of the defendant for the purpose contemplated by the parties ; following which, comes the allegation that it became the duty of the defendant to take due care of the property so intrusted to him, and redeliver or carry the same according to the understanding under which it was received ; then follows the allegation of a breach of duty, namely, an aver- ment that the defendant, not regarding his duty in that behalf, did not take proper care of the thing bailed, whereby ensued damage or loss to the plaintiff. On a plea of not guilty, to such a declaration, though it put in issue only the question of negligence, it is evident that the cause of action arises in part out of the contract set forth by way of in- ducement. If we call it an implied contract, as it is in most cases, and the breach of the duty imposed by law a tort, the tort itself grows out of a failure to perform the duty or engagement implied by law from the relation into which the parties have entered towards each other. So that the emphasis, which the writer in the American Jurist places on the fact, that the remedy here is by an action of tort, can hardly be held to negative the existence of a con- tract. 2 Indeed, though there be an express contract on 1 Burnett v. Lynch, 6 B. and C., 609. 1 16 American Jurist, 264 to 275. v GRATUITOUS COMMISSIONS OR MANDATES. Ill which an action of assumpsit would lie, still, if a common law duty results from the facts, the party may be sued in tort for any neglect or misfeasance in the execution of the contract; 1 the action, however, is then grounded on the misfeasance, and the contract is stated as matter of induce- ment. It is plain that the form of pleading, while it may sometimes illustrate the principles of law on which the rights of parties may depend, does not determine this question. The cases all hold that there is a contract, and that the owner's trust- ing the mandatary with the goods is a sufficient consideration to oblige him to a careful management. 2 An executory con- tract, to assume the duties of a mandatary % be performed at some future day, is not binding ; but the breach of a trust undertaken voluntarily is a good ground for an action. 3 The actual entry upon the thing and taking the trust upon him- self is held a consideration. Mr. Justice Story puts this case by way of illustrating the principle involved : " If A should intrust a letter to B, containing money, to pay his note . at a bank in Boston, due on a particular day, and B should gratuitously undertake to deliver the letter, and take up the note on that day, and he should neglect to carry the letter, or to take up the note, whereby the note should be protested, and A should suffer a special damage, B would, at the common law, be liable to an action for his negligence, and the delivery of the letter to B, under such circumsances, would be a part execution, and a sufficient consideration to support the action." 4 The same would be the ca^e, no doubt, where the mandatary gratuitously engages to carry other property from one place to another ; the engagement coupled with an actual receipt of the thing bailed creates the con- tract and binds him to its fulfillment. 5 The contract does 1 Burnett v. Lynch, 6 B. and C., 609 ; Boorman v. Brown, 3 Q. B., 511 ; Til- linghast's Forms, 418. 2 Ld. Raym., 909; 3 Salk., 11. 1 1 Roll Abr., 10; 2 Hen., 7, 11 ; Elsee v. Gatward, 5 T. R., 143. 4 Story on Bailm., 171; Shillabeer v. Glyn, 2 Mees, and Welsh., 145. 6 2 Ld. Raym., 909. 112 LAW OF BAILMENTS. not become perfect till some act is done by way of its exe- cution. In Smedes v. Utica Bank, Mr. Justice Wood worth states the doctrine thus : " When one party intrusts the perform- ance of a business to another, who, without consideration, undertakes, but wholly omits to do it, no action lies, not- withstanding the plaintiff may have sustained special dama- ges ; but if the party enters upon the execution of the business, and does it amiss through the want of due care, by which damage ensues to the other party, an action will lie for the misfeasance. In the case of Thorne v. Deas, this question was ably discussed, and all the authorities examined, and the result d^the investigation sanctions this distinction." 1 In the case of a note deposited with a bank for collection, endorsed in blank, the bank will be liable in an action of assumpsit foj any neglect to give due notice to the endorser of protest for non-payment, or for neglecting to present the same duly for payment. 2 But the actions in which the duty or contract of the mandatary has been enforced, are nearly, if not quite, all of them actions on the case. 3 The deposit, however, of a note in a bank for collection by one of its customers is not a contract of mandate, since the advantage to the institution of receiving the deposits of its customers constitutes a valid and substantial consideration for the undertaking to present the note for payment, and protest it in due form where it is not paid. 4 The deposits of a bank in successful operation for a number of years, are found to average a f*ed sum, on which it is prudent to discount beyond what its capital alone would justify. So that the custom of receiving notes for collection is not founded on mere courtesy, but with a view to the interests of the insti- ' tution ; it being the source from which a profit may and does 1 20 John. R., 372-9; Miller v. Drake, 1 Cainea, 45; Foster v. Fuller, 6 Mass. Rep., 58. 1 Story on Bailm., c., 171 ; Allen v. Merchants' Bank of N. Y., 22 Wend., 215. ' The Bank of Utica v. McKinster, 11 Wend, 478; Yates' Pleadings, 246; 8 East, 62, 70; 16 Amer. Jurist, 264. 4 20 John. R., 880. GRATUITOUS COMMISSIONS OK MANDATES. 113 arise. This general advantage is held a good consideration to maintain the action of assumpsit against the bank, on its failure to perform its implied undertaking, that if the note is not paid on demand, it will give notice thereof to the indorsers. 1 The same duty is imposed upon a bank, receiving a note for collection, under the civil law, though it is there regarded as a gratuitous undertaking. One, who undertakes the busi- ness of another, and, being capable of managing it, neglects to do so with due care, is responsible ; if he be not capable he is still answerable, for he ought not to have engaged to do that which he could not perform. 2 The duties of a man- datary are, however, limited under the Code of Louisiana to a reasonable care. The directors of a bank, from the nature of their undertaking, fall within this class of cases where ordinary care and diligence only are required. It is not contemplated, that they should devote their whole time and attention to the institution to which they are appointed, and guard it from injury by constant superintendence. Other officers, on whom compensation is bestowed for the employ- ment of their time in the affairs of the bank, have the imme- diate management. In relation to these officers, the duties of directors are those of control ; and the neglect which would render them responsible for not exercising that control properly, must depend on circumstances, and be tested in a great measure by the facts of the case. If nothing has come to their knowledge to awaken the suspicion of the fidelity of the president and cashier, ordinary attention to the affairs of the institution is sufficient. If they become acquainted with any fact calculated to put prudent men on their guard, a degree of care commensurate with the evil to be avoided is required, and a want of that care certainly makes them responsible. 3 1 Story on Bailm., c., 171. The case of Smedes v. The Bank of Utioa, seems to have been misapprehended by Mr. Justice Story; 3 Cowen R., 662; the Supreme Court assumes that there was an actual consideration, as stated in the text; and their judgment is sustained by the Appellate Court; 20 John. R., 372. * Durnford v. Patterson, 7 Martin R., 460. 3 Percy v. Mellandor, 20 Martin R., 68, 73-75. 8 114 LAW OP BAILMENTS. It seems that permitting the president and cashier to discount notes from the funds of the bank, without the assent and intervention of the board of directors as required by the rules of the bank, will be treated as such a disregard of duty as will render the directors liable to the stockholders for any loss thereby occasioned. 1 A director's relation to the business of the institution, and his responsibility con- nected therewith, give him the right to inspect its books and examine into its affairs ; 2 by accepting the trust imposed by his election, he is charged with the duty of taking all rea- sonable care in the management of the concerns of the bank. Every misuse or misappropriation of the goods intrusted to the mandatary, will render him liable, being a breach of the contract under which he receives them. 3 A misuser of the goods in contravention of the trust will amount to a con- version of them, and this of course renders the mandatary liable for their value, since by such act he appropriates them as his own. 4 After such an unauthorized assertion of title, or the right of control over the property, the mandatary will be charged with every risk attending it. 5 This follows logically from the fact that any conduct or act which amounts to a conversion, renders the mandatary responsible for the property, so that the owner may recover the same, or its value, in an action as he may elect. Mr. Justice Story mentions another class of mandates, not known to the common law, which under the civil code were called the quasi contract of Negotiorum Gestor, where a party spontaneously, and without the knowledge or consent of the owner, intermeddles with his property, as to do work on it, or carry it to another place. 8 The duties imposed upon the 1 20 Martin R, 68 ; Hodges' Heirs v. Durnford, 13 Martin R, 100. The People v. Throop, 12 Wend., 188. De Tollennere v. Fuller, 1 So. Car. Const R, 121 ; Ulmer v. Ulmer, 2 Nott and McCord, 489. Holbrook v. Wright, 24 Wend., 169 ; Brown v. Hotchkiss, 9 John. R., 361. Sargent v. Giles, 8 New Hamp. Rep., 325. Story on Bailm., 189; Bacon's Abridg. Account; Dane's Abridg., ch. 8, Kit GRATUITOUS COMMISSIONS OR MANDATES. 115 mandatary in such a case are similar to those assumed by the mandatary in ordinary cases of actual contract, except . that in some instances he is held to the exercise of greater skill and prudence in the management of the business so un- dertaken. Under such a rule, we should expect that " ac- tions on this species of contract would, indeed, be very un- common, for a reason not extremely flattering to human nature ; because it is very uncommon to undertake any office of trouble without compensation;" and especially where an in- creased diligence is demanded by reason of the undertaking's being voluntary. 1 The severity of this rule is sometimes modified so as to adjust itself to circumstances. 2 Remedies. f At common law the contract of mandate, which is gene- rally implied by law from the circumstances of the transac- tion, is sometimes permitted to be enforced by a third per- son ; as, if A sends money to B, to pay a debt which he owes to C, the latter, it is held, may recover the same in an action against B. The doctrine of the case of Berly v. Taylor, is to this effect. Mrs. Clifton of Baltimore, being indebted to the plaintiffs in New-York, and finding herself in failing cir- cumstances, sent a case or package of goods to the defendant, a part of which was put up in paper boxes and directed to the plaintiffs. She intended that the plaintiffs should receive those goods in part payment of her debt, of which she ad- vised them by letter at the same time that the goods were forwarded. The goods must have been received by the de- fendant and the letter by the plaintiffs about the same time. Sixteen days after that, the defendant sold all the goods which came from Mrs. Clifton, including those which were intended for the plaintiff as well as those intended for his own house, and converted the same into money. The plain- tiffs did not advise Mrs. Clifton that her proposition was accepted, nor did they act upon the matter in any form until a month after the sale, when they demanded the goods of 1 Jones on Bailm., 57-8 ; Story on Bailm., 189. 8 Code of Louisiana, art. 2274 ; Bayon v. Prevot, 4 Martin R., 58. 116 LAW OF BAILMENTS. the defendant; and it was adjudged that the plaintiffs might recover in an action of assumpsit, for the value of the goods. 1 Where, says Chancellor Kent, a trust is created for the benefit of a third person, though without his knowledge at the time, he may affirm the trust and enforce its execution. 2 And he cites cases, that where the trust regards personal property, it may he enforced at law. 3 By affirming the trust, the person for whose benefit it is created acquires the right to insist upon its execution; and being beneficial to him, his assent to the trust will be presumed until the contrary ap- pear. 4 The facts of the case, above quoted, were regarded as constituting a sale of the goods as between Mrs. Clifton and the plaintiffs in i^ie suit ; but they were in the hands of the defendant as a mandatary, under an implied contract to deliver them to the plaintiffs. In many instances the bailor has an election, to sue on the bailee's implied contract, or to waive the contract and re- sort to case or trover, according to the nature of his injury. These forms of action are now abolished in this state under the Code, but the nature of the actions remains the same as before, and the defendant may be arrested and held to bail for injuring or converting personal property in actions not founded on contract as heretofore. This, in some cases, is a material consideration in the choice of the action to be brought, or in the manner of setting it forth ; if it be an ac- tion sounding in tort, or for the recovery of personal pro- perty unjustly detained, or if it be brought against an agent or other person acting in a fiduciary capacity, the defendant may be arrested and held to bail. 5 It is otherwise where the action is founded on a simple breach of contract. 1 5 Hill, 677. See also the cases there cited. This is one of those cases where the owner has a right to waive the tort and bring an action of assumpsit for mo- ney had and received. Putnam v. Wise, 1 Hill R., 240. * Cumberland v. Codington, 8 John. Ch. Rep., 261. ' 1 Shepard v. M'Evers, 4 id., 138. 4 Berly v. Taylor, 6 Hill 677. * Code of Procedure, 179 ; Brown v. Treat, 1 Hill, 226. Although all the forms of action are abolished, still we must, in determining the law on a particular subject, in the first place inquire under what forms the GEATDITOUS COMMISSIONS OR MANDATES. 117 The bailor cannot sue in trover, or in an action in the nature of trover, unless there has been a wrongful conver- sion of the property ; and when he sues in that action, it is not to recover damages for the non-performance of any con- tract, but to obtain redress for the tort. The contract of bailment may be given in evidence for the purpose of proving the plaintiff's title, and showing that the property was in possession of the defendant; but the contract is not the foundation of the action. An action in the nature of as- sumpsit, it is true, may be brought directly on the contract implied from the bailment ; but the action of trover sound- ing in tort is brought for the wrongful appropriation of the property. 1 The action of trover lies against a bailee who, having property in his possession under a stipulation to deliver it at a particular place, on a demand made, refuses to deliver it at all. By denying the right of the bailor he makes him- self answerable for the property in the proper action. If the demand is made at the wrong place, and he answer that he is ready to deliver at the right place, there will be no breach of his duty; but an absolute refusal, though made at a place where he is not bound to produce the goods for delivery, will render any further demand unnecessary. 2 This holds true wherever property is in the hands of a mandatary or general bailee, on a trust connected with its custody or disposition ; it must be disposed of, surrendered, or delivered, in the manner, and at the time and place, contemplated in the contract. Factors. An agent or factor,- intrusted with the goods of his prin- cipal to sell, cannot, at common law, pledge the same so as right claimed was formerly asserted, and then ascertain from adjudged cases whether an action could be sustained upon the facts of the case under considera- tion, in any form heretofore used. Per Mr. Justice Denio, in Hull v. Carnly, 1 1 Kernan R, 510. 1 Sydain v. Smith, 7 Hill, 182. * Dunlop v. Hunting, 2 Denio, 643 ; Scott v. Crane, 1 Conn. 255 ; Higgins v. Emmons, 6 id., 76; Slingerland v. Morse, 8 John. R., 474; Mason v. Briggs, 16 Mass., 453 ; 2 Kent's Comm., 608. 118 LAW OF BAILMENTS. to authorize the pledgee to hold them for advances made thereon to the factor or agent, even if he supposed the latter to be the real owner of the goods. The contract is to sell and not to pledge the goods, 1 and it is not altered even where the principal has drawn upon the factor in anticipa- tion of the sale; the factor cannot even pledge so as to transfer his lien to the pawnee. This rule is founded upon the principle that he who deals with one acting ex mandate, can obtain from him no better or different title than that which his mandate authorizes him to give. 2 Our statute, relative to principals and factors or agents, which provides that one who is intrusted with the posses- sion of the goods of another for the purpose of sale, shall be deemed the true owner, so as to give validity to his dis- position of them for money advanced, does not protect one who makes advances on the ^oods to the factor, with knowledge that he was not the owner of the goods. 3 The act was designed for the protection of those who may deal with the person intrusted with the apparent and generally recognized evidence of the ownership of the property offered for sale. In respect to third persons dealing with the party in possession, without knowledge of his real char- acter, in the usual course of business, the factor is deemed the true owner ; but he cannot misapply the property in- trusted to his possession, and confer on a party, who is privy to such misapplication, a right by purchase or pledge, superior to the rights of the true owner. The statute, indeed, only carries into effect and extends the familiar prin- ciple, that possession is prima facie evidence of title, to commercial transactions, with a view to protect those who, on the faith of such possession, purchase the goods or ad- vance money on them. The true character of the possession being known to the purchaser, he is not misled, and cannot acquire title in derogation of the right of the true owner. 1 Patterson v. Taah, 2 Strange, 1178 ; Daubigny v. Duvol, 5 T. R., 604 ; Steven* T. Wilson, SCenio, 472. ' Fielding T. Kymer, 2 Brod. and Bing., 639 ; Graham v. Dyater, 6 Maule and 8eL,l. 1 Statute of 1830, p. 203; 2 R. &, p. 69, 60, 61, 3d ed. GRATUITOUS COMMISSIONS OR MANDATES. 119 It is a question of evidence with regard to the title ; the statute makes the possession of property by a factor or commercial agent for sale, evidence of his title, to all per- sons who purchase of him on the faith thereof ; but where he knows the contrary, he cannot be misled, nor can he acquire title as against the owner by such a purchase. In respect to a negotiable promissory note, though pos- session is prima facie evidence of ownership, the contrary may be shown ; and when it has been stolen, a recovery thereon will be defeated, unless the holder has received it for a valuable consideration, without notice or reasonable ground to suspect a defect in the title of the person from whom it is taken in the usual course of business. 1 A simple consignment of goods unexplained, by the well settled rule of commercial law, only shows that the consignee is thereby constituted the authorized agent of the owner, whoever he may be, to receive and sell the goods and account for the proceeds. 2 The bill of lading is the usual and legal evidence of the sale, trust or agency under which the pro- perty is consigned. But the factor is not a mandatary, since he usually receives the property to sell on commission, and always receives a compensation for his services bestowed upon the business of his agency. 3 His contract is the same as that of the mandatary, in most respects, but his obligation is more rigorously construed, from the fact that he receives a reward for his labor. The Contract, how determined. Mr. Justice Story enumerates the following ways in which the contract of mandate may be determined: "1st. By the 1 Stevens v. Wilson, 3 Denio, 472 ; Stalker v. McDonald, 6 Hill, 93 ; Codding- ton v. Bay, 20 John. R, 637 ; Swift v. Tyson, 16 Peters' Rep., 1 ; The bona fide holder of a negotiable instrument for a valuable consideration, without notice of the facts which implicate its validity, as between the antecedent parties, if he takes it under an endorsement made before it becomes due, holds the title unaffected by those facts. 8 Conard v. The Atlantic Insurance Co., 1 Peters, 444 ; 7 Cowen, 328 ; 2 Hill, 151. * 1 Cowen's Trea., 88 ; Beawes' Lex. Men, 44, 45. 4 Jones on Bailm., 98 ; 4 Comst R., 498. 120 LAW OF BAILMENTS. death of the mandatary when the mandate is wholly un- executed ; for if it be executed in part, his personal repre- sentatives may, in some cases, be obliged to complete it. So, if there be joint mandataries, and the bailment be of such a nature as to require the united advice or skill of all, the death of one dissolves it ; but not otherwise. 2d. By the death of the mandator, when the mandate is wholly unexe- cuted. If, however, it be partially executed, his representa- tives may be bound to complete it, in order to prevent an injury to the mandator. 3d. By incapacity of the parties; as by marriage, if the party be a female ; or by insanity or idiocy. 4th. By a renunciation of his agreement by the man- datary, before he has entered upon the execution of it ; or by the express or implied revocation by the mandator ; and such dissolution operates from the time notice is received. 5th. By the bankruptcy of the mandator. Where the mandatary is to execute a mere authority, his own bankruptcy will not necessarily dissolve it, although it may, if the act be done, involve the expenditure of money." 1 The death of the mandatary, leaving the mandate wholly unexecuted, can scarcely be said to terminate the contract, since a part execution is regarded as the consideration neces- sary to give it validity. 2 No contract is created that can be enforced against the mandatary, until he has taken the trust upon himself, or done some act in part execution of it. Whether, where he has partly executed the mandate, and dies, leaving it unfinished, his representatives can be compelled to assume this personal trust, does not seem to have been de- cided. No doubt they can be compelled to restore the sub- ject of the contract, but it is not easy to point out the form of action by which a specific performance of the contract ^an be enforced. It should seem that the death of the manda- tary would terminate a contract in the nature of a personal trust, so far at least as to leave his representatives at liberty 1 Story on Contracts, 706. 1 Shillabeer v. Glyn, 2 Mees. and Welsh., 145 ; Whately v. Low, Cro. Jac., 668 ; Coggs T. Bernard, 2 Ld. Raym., 909 ; Wilkinson v. Coverdale, 1 Eep. R., 75 ; 2 Kent's Comm., 4th ed., p. 643, 644. GRATUITOUS COMMISSIONS OR MANDATES. 121 to restore the thing bailed and thus determine the contract. So, where the mandator dies, leaving a contract of mandate wholly unexecuted, the authority, or trust reposed in the mandatary is ended ; like a power of attorney, it is revoked by his death. 1 In one sense the mandatary acts as the agent of his mandator; and the rule is, that an agency cannot out- live the principal, unless the agent's authority is coupled with an interest, which is never the case in a contract of mandate under the common law. 2 A joint authority to two agents ends with the death of one of them ; and if they be manda- taries intrusted with a business requiring the exercise of a joint discretion, they cannot go forward, because the terms of their contract require a joint action. 2 A renunciation of his undertaking by the mandatary be- fore he has entered upon its execution, is in effect a refusal to make a legal contract, and is not properly the determina- tion of a contract of mandate. This follows from the deci- sions, which make the entry upon its execution, the consid- eration to support the mandatory's agreement. 3 An implied revocation 'by the mandator may happen by his death, but its effect upon the contract will depend upon the circum- stances of the case, from which the law will imply an obliga- tion to surrender the trust in a way that shall be agreeable to equity. 4 When dissolved in this manner, it should seem, that the acts of the mandatary before notice of the death, acting in good faith, in the execution of the contract, will be held binding upon his principal's estate. 5 This is so evidently equitable that we scarcely demand an authority in support of the principle ; it results in fact from the contract implied by law. Where, however, A delivers money to B, 1 2 Kent's Comm., 3d ed., 642. 1 Id., 645, 643, 644. 'See also, 1 Cowen's Trea., 3d ed., 101 ; Story on Bailm., 202-212. 1 Coggs v. Bernard, 2 Ld. Raym., 909-920; Co. Litt, 112, b; id., 180, b; Ba- con's Abr., Authority C. 4 1 Bell's Comm., 413, 4th ed. ; 8 Wheaton. 174; Hunt v. Ronsmaniere's Adm., 2 Mason, 244. 6 2 Kent's Comm., 4th ed., p. 643-4-6 ; Code Louisiana, art. 3001 ; 1 Bells' Comm., 488, 6th ed. 122 LAW OF BAILMENTS. to pay a note about to fall due, and A dies, and the fact of his death is known to B before payment, the contract is at en end, and B must restore the money. 1 But if B receives money from A for the use of C, no doubt B would be protected in paying over the same to C, since he is liable to C, in an ac- tion for the money. 9 Money or personal property in the hands of an agent or mandatary, at the death of the principal, goes to his representatives ; and as the authority to complete the mandate is terminated by the death of the mandator, the law imposes upon the mandatary the duty to restore the thing bailed to the party who represents the estate. Qui Jaclt per alium facit per se ; in other words, the acts of a principal done by an agent, are his, just the same as if done by himself. And hence, as a dead man can do no act, all con- tracts made in his name after his death by an agent are void, even though made in ignorance of his death. 3 Accurately speaking, there can be in such case no legal contract, what- ever undertaking the agent may enter into. A mandate which includes within the trust an authority to contract, will end with the death of the mandator, though as between his estate and the mandatary acting in good faith, the latter may be protected. An executory contract, made by the mandatary, in pursuance of such authority, after the man- dator' s death, clearly cannot be enforced by the third person with whom it is made. In respect to the authority to con- tract, he acts under an agency, which is terminated by death ; while in reference to other matters connected with the trust, the contract of mandate will remain in full force. 4 Where a contract has been entered into before the principal's death, and his agent has been directed by him to perform some act by way of its execution, the agent, it seems, will be justified in completing the transaction after his principal's death, notwithstanding the administrator forbids it ; 6 as if there be 1 2 R. S., 3d ed., p. 147. A's representative takes the personal estate. 1 Berly v. Taylor, 5 HUJ, 677. 1 6 East R., 356; 2 Mason R., 244; 8 Whcaton, 174. 4 Park T. Hammond, 6 Taunt, 495 ; S. C., 4 Camp.; 341 ; Mallough v. Barbour, 4 Camp., 160; 3 do., 357. * Nicholet's admr. v. Pillot, 24 Wend. B., 240. GRATUITOUS COMMISSIONS OB MANDATES. 123 a virtual assignment of notes for a valuable consideration, and by authority of the principal before his death, the agree- ment may be subsequently completed by a delivery of the notes in pursuance of the agent's previous instructions. The interesting case of Mactier v. Frith involved a discus- sion as to the time when a contract negotiated between per- sons residing at a distance from each other, through the medium of letters, will be regarded as finished. 1 In this case it was held, that an offer to sell, made by letter, stand- ing open and unretracted, becomes a contract of sale as soon as it is accepted ; even though the person making the offer dies before he receives the knowledge of the fact. 2 The contract is complete at the moment when the minds of the parties meet. The person making an offer to sell by letter, is considered as making it during every instant of time his letter is traveling to its destination, and the contract is con- pleted by the acceptance of it. It is necessary that the minds of the contracting parties should meet on the subject of the contract, but not necessary that they should know the fact that they meet, in order to make it valid, 3 as was held in a sister state. 4 If the person making the offer die, lose his reason, or write a second letter revoking the offer contained in the first, before it is accepted, there can be no contract of jsale. The civil, the common law and the law of France agree in this respect. 5 The will of the party making the 1 6 Wend. R., 103; Vassar v. Camp., 1 Kernan R., 441. In this case the Court of Appeals affirm the doctrine laid down in Mactier v. Frith. 1 Adams v. Lindsell, 1 Barn, and Aid., 681. 1 Mactier v. Frith, 6 Wend. R., 103. 4 McCullock v. Eagle Ins. Co., 1 Pick., 278. Pothier Traite du Contract de vente, p. 1, 2, art 3, No. 82. The passage from Pothier is as follows: In order that this consent may take place where the contracting parties are in different places, it is necessary that the will of the party who has written to the other, proposing a sale, should con- tinue until his letter has reached the other party and he haa declared that he accepts the offer. This will is presumed to have continued, if nothing appears to the contrary. But if I have written to a merchant at Livourne a letter pro- posing to sell him a particular article for a specified price, and before my letter has been received by him, I write to him a second declining to make the contract, or if before that time (i. e. before my letter is received and the offer contained in it accepted) I am dead, or have lost the use of my reason, although the mer- 124 LAW OF BAILMENTS. offer may precede that of the party accepting, yet it mus continue down to the time of the acceptance. Once made chant at Livourne, ignorant of my change of will, death or loss of reason, should, on receiving my letter, accept the offer contained in it, there would be no contract of sale ; for my will not having continued down to the time when this merchant had received my letter and accepted the proposition contained therein, there was not that concurrence or meeting of our minds required to make a contract of sale. This is the opinion of Bartholus and of the other doctors of the civil law quoted by Bruneman, ad. I. 1, 2 ff, de contrat ernpt, who have correctly rejected the contrary opinion of the commentary ad dictam legem. This doctrine, says Mr. Justice Marcy, which presumes the continuance of a willingness to contract^ after it has been manifested by an offer, is not confined to the civil law and the codes of those nations which have constructed their systems with the materials drawn from that exhaustless store-house of jurisprudence; it is found in the common law ; indeed, it exists, of necessity, wherever the power to contract exists in parties separated from each other. (6 Wend., 115.) In Vassar v. Camp, recently decided in the Court of Appeals in this state, Mr. Justice Selden observes: This precise question has been so fully considered, in several modern cases, that it would be a work of entire supererogation to discuss it here. It arose in England in the case of Adams v. Lindsell (1 Barn, and Aid., 681). In that case an offer to sell wool was made through the mail. The offer was received by the plaintiffs on the 5th of September, who wrote and mailed their answer, accepting the offer, the same evening ; but this answer was not received until the 9th of September by the defendants, who in the meantime, supposing their offer had not been accepted, had sold the wool to other parties. The action was for the non-delivery of the wool ; and if the contractwas regarded as consummated on the 5th of September, when the answer accepting the offer was mailed, the defendants were liable ; but if not until its receipt on the 9th, then no liability attached. The court held unanimously that the contract be- came obligatory on the 5th, when the answer of the plaintiffs was deposited in the mail. In the case of Mactier v. Frith, the same question arose in this state, and was elaborately discussed by our late Court of Errors. The court in that case, by an almost unanimous vote, affirmed the doctrine of Adams v. Lindsell, in opposition to that of McColloch v. The Eagle Insurance Company (1 Pick., 278), in which the Supreme Court of Massachusetts had adopted a different rule. The decision in Mactier v. Frith has since been followed in our own state in the case of Brisban v. Boyd (4 Paige, 17) ; in the State of Connecticut, in the case of Averill v. Hedge (12 Conn., 424); in Pennsylvania, in the case of Hamilton v. Lycoming Ins. Co. (5 Barr., 339) ; and in Georgia, in Levy v. Coke (4 Georgia R., 1). The question has again arisen in England, and been passed upon by the house of lords there, in the case of Dunlop v. Higgings (12 Jurist, 295). In that case, the case of Adams v. Lindsell is referred to and confirmed in the most decided and unequivocal terms. The doctrine of this case, therefore, and that of Mactier v. Frith, must be considered as too firmly settled, both in this country and in England to be shaken or doubted. It is moreover maintained, in the cases referred to, by the most satsfactory and conclusive reasonfng. (1 Kernan R., 446, 447.) GBATUITOUS COMMISSIONS OR MANDATES. 125 the offer is presumed to continue until it is' revoked, or countervailed by a contrary presumption. 1 From what has been said, it is evident that a mandate, as a general principle, including a power to contract in the' the name of the mandator, unexecuted, must cease at his death ; and that if the contract be previously made, it may be afterwards carried into effect by the mandatary. In some instances, Mr. Justice Story thinks the rule of the common law may not differ from that of the civil code ; under which the mandatary in order to prevent loss or injury may proceed after the death of the mandator to execute the mandate ; as if fruit be ordered to be sold in a foreign port, and it would perish before proper orders from the administrators could be obtained, the mandatary would be justified in making a sale. 2 This inference seems to be drawn from the usages of trade with respect to factors, receiving property for sale ; where in the absence of express instructions, the law implies a power to sell. It gives the factor a discretion, and demands of him a diligent exercise of that discretion in a sale of the goods to the best advantage ; if the property be of a perish- able nature, so as to require an immediate sale, he may pro- ceed as the usage of business directs. 3 No doubt, in a case of mandate, where by the terms of the agreement, or from the circumstances attending the trans- action, the law implies a similar discretion in the mandatary, he may proceed to execute his contract, notwithstanding the death of the mandator. It is to be observed, however, that the law does not clothe the mandatary, as it does the factor, with any general right to dispose of the property intrusted to his custody ; and since he acts gratuitously, he cannot acquire any interest in the goods, through which a right to dispose of them may be continued. 1 16 East, 55; 3 Stark. Ev., 1252; Adams v. Lindsell, 1 Barn, and Aid., 681 ; Gleason v. Henshaw, 4 Wheaton, 228 ; Brisban v. Boyd, 4 Paige Rep., 17 ; Paine v. Cave, 3 Term Rep., 148 ; id., 653. * Story on Bailm., 204. 1 EYans v. Potter, 2 Gallison R., 13; Dwight v. Whitney, 15 Pick., 179; Goodenow v. Tyler, 7 Mass. R, 36; 9 Pick R., 272; 1 id., 343; 15 id., 225. 126 LAW OF BAILMENTS. " By the civil law," says Chancellor Kent, 1 " and the law of those countries which have adopted the civil law, the acts of an agent done bona fide after the death of the principal, and before notice of his death, are valid and binding. But this equitable principle does not prevail in the English law ; and the death of the principal is an instantaneous and abso- lute revocation of the authority of the agent, unless the power be coupled with an interest." 2 From which it would appear, that so far as the trust reposed in the mandatary constitutes him the agent of the mandator, it will be re- voked by his death ; while in respect to the care demanded of him as the custodian of property, his contract of mandate will continue operative and binding : as if one, returning from California, should receive a quantity of gold from a friend at San Francisco, on a gratuitous promise to deliver it to a person named, in New- York, and the owner of the gold should die before the departure of the depositary, though the law might here designate another person to receive the property, it would still hold the mandatary to take faithful care of it, so long as it should remain in his custody. 3 In some instances, probably, the death of the mandator would operate to convert the contract of mandate into a simple deposit, arresting the object of the mandate, and subjecting the mandatary simply to the duty of keeping the property with ordinary care. A contract of mandate is also terminated by a change in the relation of the parties ; as if one of them become insane, it puts an end to the contract. But it seems, that the fact of insanity must be first established by an inquisition, in order to revoke the authority, 4 or release the mandatary. So, where the principal is a feme sole when the contract is made, her subsequent marriage is a revocation of the man- 1 2 Kent's Comm., 647, 8d ed. a Hunt v. Rouaemaniere, 8 Wheaton, 174 ; Hunt v. Ennis, 2 Mason's R., 244 ; Bergin v. Bennet, 1 Caine*' Cas. in Error, 1 ; 6 East's R., 356 ; Harper v. Little, 2 Greenleaf s Rep., 14 ; 4 Camp. N. P. Rep., 272. 1 Tracy v. Wood, 3 Mason's R., 132. * Wallis v. Manhattan Bank, 2 H., 495 ; 2 Kent's Comra., 845, 8d ed. ; Waters T. Taylor, 2 Ves. and Bea., 301. GRATUITOUS COMMISSIONS OR MANDATES. 127 date ; since it concerns her personal property, which, on her entering into this new relation, passes under the control of her husband, 1 who, under the common law, becomes absolute owner of the goods and chattels of his wife, and consequently may dispose of them. This passing of the title -to another person, suspends the authority delegated to the mandatary under the trust on which he received the goods. 2 This was the rule of the civil law, and Mr. Justice Story thinks it ap- plies equally to 'the marriage of the mandatary, since her husband's rights may be affected by her conduct. 8 As the mandatary acts gratuitously, having no interest in the subject of the bailment as against his principal, it fol- lows that the mandator may at any time revoke the mandate. He has the right to recall the trust and resume possession of the property; 4 or he may transfer the property to another, and with it the right of revocation. For the purpose of its termination, the relation between the mandator and manda- tary resembles very closely that of principal and agent, with this exception, that the agent sometimes has an interest coupled with a power, which the mandatary never has. To make the revoca'tion of the trust effectual, notice must be given to the mandatary; 5 but this may be done by the ap- pointment of another to relieve him of the trust, 6 or by the return of the mandator when the trust had been created, to continue during his absence. In general, whatever act of the mandator is inconsistent with the continuance of the trust, or signifies to the mandatary his intention to recall it, will have that effect. Under the English law, the bankruptcy of either of the parties puts an end to the contract of mandate, and is re- garded as a revocation of the authority. 7 As this point does 1 White v. Gifford, 1 Rol. Abr., 381, tit Authoritie ; Charnley v. Whinstanley, 5 East's Rep., 266; 1 Salk. Rep., 117-809. a Udall v. Kenney, 3 Cowen's Rep., 599. 1 Story onBailm., 206; 2 Roper, Husband and Wife, 69, 73. * Story on Agency, 500 ; 7 Ves. Jr., 276 ; 1 Bell's Comm., 489, 5th ed. ' Salt v. Field, 5 Term Rep., 215 ; 5 Binn. R., 216; Wallace R., 126. Copeland v. Mercantile Ins. Co., 6 Pick., 198. Merritt v. Forrester, 4 Taunt R., 541 ; Parker v. Smith, 16 East R., 882. 128 LAW OF BAILMENTS. not appear to have been decided in our courts, we are left to infer that the contract of trust will continue until the goods which are the subject of it are seized in execution or by some legal process. This would seem to be the necessary inference from the fact that we have in this country no law of that nature ; for a bankrupt law proper is not made for the relief of the debtor, but rather for his punishment. It acts upon him in invitum, creates a forfeiture of his estate, and authorizes its seizure. 1 ' It is made for the special benefit of the. creditor, and can only be set in motion at his instance. The voluntary branch of our bankrupt law of 1841, allow- ing a man to declare himself a bankrupt and demand a dis- charge of his debts, was a departure frem the principles of the English law ; 2 under Which bankruptcy is a condition fixed by legislative provision, 3 designed to aid creditors as against the bankrupt. It is evident that the insolvency of one Or both of the parties, will not of itself operate to dissolve a contract of mandate, though a seizure of the goods under process against the mandator, will undoubtedly have that effect. As to the mandatary, it is not easy to perceive why a trust which confers no interest upon him that can be seized in execution, should be terminated by his want of pecuniary responsibility. If the mandator is willing to rely upon his fidelity, it does not appear that any other person can have a right to object, or terminate the trust. 4 Burden of Proof. In actions against the mandatary, as in others, the burden of proof rests on the plaintiff to establish his cause of action, by proving each material fact necessary to create the lia- bility. 6 If the plaintiff in an action of case alleges the de- livery of money, inclosed in a letter, to the defendant, and 1 Sackett v. Andross, 5 Hill, 327. 1 1 Dane Ab., 317 ; 34th and 85th EL, 8, ch. 4; 13 Eliz., ch. 7. * 2 Bell's Comtn., 214-161-2 ; Bailey's Die. ; 6 Geo. IV., ch. 16. 4 Story on Agency, 486. Williams v. East India Co., 3 East R., 192; Doorman v. Jenkins, 2 Adolpk and Ellis R,, SO. GRATUITOUS COMMISSIONS OR MANDATES. 129 that he undertook and promised to take care of and carry the same safely from one place to another, and then deliver the package to the plaintiff; and that, although a reasonable time had elapsed, the defendant had not done so ; the plain- tiff will be bound to show, among other things, that the money was lost by the defendant's negligence, or could not be obtained on request. By showing a demand and refusal to deliver the package after a reasonable time, he will be entitled to recover, unless the defendant account for the loss by showing the package lost without fault on his part, that is, without gross negligence. 1 The evidence that the defend- ant refused to give any information in respect to the package, would change the burden of proof from the plaintiff to the defendant ; or, submitted to the jury without explanation, it would be sufficient to render the mandatary liable. When the mandatary has converted the property to his own use, and an action in the nature of trover is brought against him for the conversion, the burden of proof lies on the plaintiff to show that the defendant has assumed to him- self the property and right of disposing of the plaintiff's goods. 2 The action assumes that the defendant came law- fully into possession of the goods, and it is sustained by showing a breach of the trust, or an abuse of such lawful possession. This familiar principle is applicable to choses in action as well as to chattels. If the mandatary, intrusted with the goods of another, puts them into the hands of a third person, contrary to orders, it is a conversion. 8 So, if he be intrusted with a promissory note to be used in a spe- cified manner, and he dispose of it differently, it is a misuse or disposition of the note contrary to orders, which will sustain the action. 4 Even where the plaintiff has repossessed himself of the thing bailed, the action may be sustained for the breach of trust, which is a conversion ; 5 and the amount 1 Beardslee v. Richardson, 11 Wend., 25. * Baldwin v. Cole, 6 Mod., 212; McCombie v. Da vies, 6 East, 540. 1 Syed v. Hay, 4 Term Rep., 260. 4 Murray v. Burling, 10 John. R., 172. 2 Esp. N. P., 190, 191 ; Ingalls v. Lord, 1 Cowon R., 240. 9 130 r:! .' A LAW OP BAILMENTS. of the recovery will depend upon the nature of the case. If it be a negotiable note, which has been transferred for value to a bona fide holder, and afterwards paid by the plain- tiff, the recovery will be for the face of the note. 1 In order to maintain an action in the nature of trover against a mandatary, who always comes legally into posses- sion of the property, it is necessary to show a demand and refusal, or an actual conversion. The rule was held differ- ently where the possession itself was tortious, which is an actual conversion. 2 The general principal is that a demand and refusal, as against one who has chattels in trust for another, are prima facie evidence of a conversion ; 3 but this evidence may be overcome by counter testimony, going to negative the presumption of a conversion arising from such refusal on demand. The effect of the demand will depend upon the present relation of the parties at the time it is made ; if the defendant refuses to deliver the goods accord- ing to contract, he having the possession, he becomes liable for them. 4 An action in the nature of trover against a bailee, does not lie for negligence, nor for goods lost, or taken from him; 5 it proceeds upon the assumption that he has usurped the right of property over them, by converting them to his own use. 6 Coming lawfully into the possession, it must be shown that that he has sold or otherwise converted the goods. 7 Where, however, the title is in the plaintiff, and it is shown that the property was wrongfully taken from his possession, the bur- den will be cast upon the defendant of showing that he came to the possession of the property, by purchase or bailment, and without any fault on his part. 8 This again, it seems, 2 Esp. N. P., 190, 191 ; Ingalls v. Lord, 1 Cowen R., 240. Bates v. Conkling, 10 Wend., 389 ; Brown v. Cook, 9 John. R., 861. Packard v. Getman, 4 Wend., 613. 1 Taunt, 891 ; 4 Esp., 157. Salk., 655 ; 5 Burr., 2825. Storm v. Livingston, 6 John. R., 44. Barret v. Warren, 8 Hill, 348 ; Acker v. Campbell, 23 Wend., 372 ; M'Carty v. Vickery, 12 John. R, 848. S 8 Hill, 351. GRATUITOUS COMMISSIONS OR MANDATES. 131 will transfer the burden of proof to the plaintiff, to show a demand of the property, and a refusal, or some other act of conversion. 1 The action, in the nature of assumpsit for money had and received, may be brought against a bailee or trustee who has converted the property into money ; but in order to main- tain this action against two trustees jointly for money had and received to the use of the cestui que trwt, the plaintiff must prove a joint promise, either express or implied. The fact that each of the defendants, who are trustees under an assignment for the benefit of creditors, has admitted the re- ceipt of funds equal to the demand of the plaintiff, one of the creditors, and expressed his willingness to distribute the same according to the terms of the trust, does not raise an implied promise, such as will support an action at law against the defendants jointly, as for money had and received. 2 Each trustee is answerable for his own acts only ; this is the general rule ; and the law will not imply a joint promise on the separate statements or admissions of each. Property delivered and received as money, will support- the action precisely the same as if money itself had been delivered and received. 3 And it is not necessary in all cases, to give positive evidence that the defendant has re- ceived money belonging to the plaintiff; but where, from the facts proved, it may fairly be presumed the defendant has received the plaintiff's money, the plaintiff may recover in this action for money had and received to his use. 4 In general, this action cannot be supported unless the defendant has in fact received money to the plaintiff's use. 5 Change of Title, Forms. A recovery, in the action of trover, which is so frequently adopted as the most convenient remedy against bailees in 1 10 Wend., 389. 1 De Forest v. Jewett, 2 Hall R., 130. 8 Ainsle'e v. Wilson, f Cowen R., 662. 4 Tuttle v. Mayo, 7 John. R., 132. e Beardsley v. Root, 11 John. R., 465. 132 LAW OP BAILMENTS. solvent circumstances, and a satisfaction of the judgment, change the property, so as to vest it in the defendant. 1 The plaintiff elects to recover damages for the conversion, and that operates to pass the title on payment of the recovery. The measure of damages in the action, as a general rule, is the value of the property at the time of the conversion, with interest from that date. 2 In some instances, if the chattel be not of a fixed and determinate value, its worth at the time of conversion is not the rule of damages, but they may be enhanced according to the increased value of the chattel subsequent to that time. 3 The reason for this is very plain ; if the mandatary sell the goods delivered to him in trust, the sale is a conversion ; but if 'the goods afterwards advance in value, and the mandator subsequently demand them, he may, it would seem, recover their enhanced value at the time the demand was made. The wrongful sale does not work a change of the title ; and it is a doctrine as old as the year books, that the owner of property is entitled to its enhanced value, until it has been so changed as to alter the title. The title is not changed by the act of conversion, nor by the exercise of acts of ownership over the property. The owner of timber may reclaim it when made into shingles, 4 or converted into coal, 5 notwithstanding it has lost its primi- tive form. So long as he can prove its identity, he may follow and retake it in whatever new shape it may have been wrongfully made to assume. By bringing his action of trover, the owner makes his election, to demand the value of the property at the time and place of conversion. 6 But proof that the defendant refused to deliver it on de- mand, shows a conversion at the time when the demand is Osterhout v. Roberts, 8 Co wen R., 43 ; Livingston v. Bishop, 1 John. II., 290 ; Kennedy v. Strong, 14 John. R., 128; Clark v. Pinney, 7 Cowen R., 681. Fisher v. Prince, 3 Burr., 1368 ; Whitlen v. Fuller, 2 BL Rep., 902 ; Rens- selaer Glass Factory v. Reid, 6 Cowen R., 687 ; West v. Beach, 3 Cowen, R., 82. Betta and Church v. Lee, 5 John. R., 349 ; 6 Hen. VIL, 15 ; 12 Hen. VIH , 10. Curtis v. Groat, 7 John. R., 168; Babcock v. Gill, 10 John. R, 237. Dillingback v. Jerome, 7 Cowen R., 294; Kennedy v. Strong, 14 John. R., 128; Baker T. Wheeler, 8 Wend. R., 605; Suydam v. Jenkins,- 8 Sand. Superior C. R., 628, and the cases there cited. GRATUITOUS COMMISSIONS OR MANDATES. 133 made ; the refusal being itself a conversion, it is doubtful whether the defendant would be permitted to show a prior act of conversion with a view to a reduction of damages. That would be permitting him to found a defence upon his own wrongful act. Notwithstanding a new code of procedure has obliterated the distinction between actions at law and suits in equity, and abolished the well known forms of actions hitherto used in this state, the remedies by suit remain still essentially unchanged j 1 because the principles of law remain as here- tofore. The plaintiff must allege facts that constitute a cause of action, and the allegations of his complaint must show a right of recovery under principles hitherto applied to the actions of replevin, case, trover and the others. 2 The statement contained in his complaint, must include every fact necessary to establish a right of action known to the law. And, since the principles of the common law, as well as the principles of pleading under it, must be studied and learned chiefly from the decisions which have been made under forms of action now disused, it is evident that the plaintiff's complaint must be drawn with at least a tacit reference to the requisites of pleading used in some one of those forms. 3 Though the statute has abolished the forms, it has not separated them from the adjudications which have blended them together for a long course of years. The terms, assumpsit, case, trover, &c., convey the idea of dis- tinct and well known causes of action, so that it is still more convenient to use them in speaking of legal principles than to adopt the circumlocution necessary to express the same ideas in popular language. This, it is hoped, will be a suf- ficient apology to the new code, for the free use made in this essay of terms which, though abolished in practice, have an established, standard signification. The single term, 1 Hall v. Southmayd, 16 Barb. S. C. Rep., 32; Homer v. Wood, id., 371; Barker v. Russell, 11 Barb. S. C. Rep., 803, and Rodgers v. Rodgers, 595. * Boyce v. Brown, 7 Barb. S. C. Rep., 80, and the cases there cited. 1 Childs v. Hart, 7 Barb. S. C. Rep., 370, and Rayner v. Clark, 681 ; Garvey v. Fowler, 4 Sand. R, 665. 134 LAW OP BAILMENTS. trover, which has been so commonly used as a remedy for the violation of the contract of mandate, describes a cause of action brought for the unlawful detention or conversion of goods ; in which the plaintiffs right to them, their value, and the defendant's conversion of them, were put in issue and necessary to be proved. 1 The plaintiff must have either a general or special property in the goods, and a right to the immediate possession ; and where the defendant is a mandatary, it must be shown that he has been guilty of some breach of trust, which the law regards as a conversion of the property to his own use. We describe the suit accu- rately under the new procedure, by calling it an action in the nature of trover. 2 In this action against the mandatary, it would seem that the court will stay the proceedings on that defendant's pay- ing the costs and restoring the subject of controversy ; not, however, where special damages are claimed for the conver- sion, nor unless its value remains unchanged. 3 The plaintiff recovers the current or market value of the property at the time of the conversion shown, with interest from that time until the trial ; and he will not be compelled, pending the litigation, to accept the property diminished in value. 4 The interest of the mandatary in the chattels intrusted to his custody, is substantially the same as that which the depositary has in the subject of the deposit, and is sufficient, as we have seen, to enable him to protect the property against all persons but the rightful owner. 5 As what has already been said with reference to the rights of the deposi- tary in this respect, will apply to the rights and duties of the mandatary, in the execution of his contract of mandate, it is unnecessary to renew the discussion here. 6 1 Tharpe v. Stallwood, 5 Mann, and Gr., 761 ; Armorie v. Delamirie, 1 Strange, 505 : Meny v. Greene, 7 Mees. and W., 628. * The Manhattan Co. v. Bentley, 13 Barb. S. C. Rep., 641; Con way v. Bush, 4 Barb. S. C. Rep., 564. 1 Fisher v. Prince, 3 Burr., 1368 ; Whitlen v. Fuller, Black. R, 902. 4 Suydam v. Jenkens, 3 Sand. R., 614 Ante, p. 64, 66, 66. 8 Story on Bailm., 93, 160, 151, 152; Button v. Buck, 2 taunt., 309; Dun- can v. Spear, 11 Wend., 54. GRATUITOUS COMMISSIONS OR MANDATES. 135 Sir William Jones mentions certain exceptions from the rule concerning the degree of neglect for which a mandatary is responsible, as where there is a special agreement, a vol- untary offer, or an interest accruing to both parties or to the bailee mainly. 1 But since the essence of the contract re- quires that it be undertaken gratuitously on the part of the mandatary, it results that if the mandatary acquire a benefit from the trust, it is no longer a contract of mandate; it becomes one of ordinary hire. 2 As for the other exceptions, there is no reason why the mandatary may not increase his liability by a direct stipulation for more than ordinary care f and it appears, that if he spontaneously and officiously offers to do the act, he may be responsible beyond the case of gross negligence, and be held to answer for slight neglect. 4 The reason given for this increased responsibility, where a man spontaneously proposes to undertake the trust, is, that he may thereby prevent the owner from intrusting them with a person of more approved vigilance. 5 But as the owner acts voluntarily, there does not seem to be any sound reason why a friend, whose kindness prompts him to offer his services, should be held to a stricter rule of liability than is demanded of a stranger. Indeed, the rule, though well established in the civil law, from which it is quoted, has not the sanction of decisions under the common law ; and it may be well doubted whether, in an appropriate case, it would be deemed worthy of adoption. 6 To speak with strict propriety, negligence is not permitted in any contract ; but a less rigorous construction prevails in some than in others. The trustee of personal property, who undertakes the trust gratuitously, is bound to discharge it with the same care and vigilance which he bestows upon his own goods ; less than this exhibits a want of active good faith. 7 Jones on Bailm., 63. Jones on Bailm., 53 ; Story on Bailm., 215. Kettle v. Brumsale, Willes R, 118, 121. 2 Kent's Comm., 572-3 ; Jones on Bailm., 48. D., 16, 3, 1, 35 ; Jones on Bailm., 48. Story on Bailm., 81, 82. Jones on Bailm., 30, 31. 136 LAW OP BAILMENTS. The law will not sanction a trust, as in the case of an assignment for the benefit of creditors, which in express terms exonerates the assignee from accountability for any loss that may be sustained by the trust fund, unless the same happen " by reason of his own gross negligence or wilful misfeasance." The legal principle, which demands of the trustee the same care and solicitude that a prudent person, or a man of reasonable or ordinary diligence, would use for himself, cannot be thus evaded. 1 1 Litchfield v. White, 3 Sand S. C. R., 545. An assignment, containing such a clause, is void. GRATUITOUS LOANS. 137 CHAPTEE IV. GRATUITOUS LOANS. A LOAN is a gratuitous grant for temporary use, on the ex- press or implied condition that the specific thing shall be returned. A loan of articles to be returned in kind, as money, wine, corn and other things that may be valued by number, weight or measure, is a contract of another species ; in which, as the specific things are not to be returned, the absolute property in them is transferred to the borrower, 1 who must bear the loss of them if destroyed in any manner. The loan for consumption, under the Roman as well as the common law, constitutes a sale ; .but a loan for use does not pass title to the thing bailed. 2 Mr. Chancellor Kent defines a loan for use to be a bailment, or loan of an article for a certain time, to be used by the borrower without paying for the use. This is but a slight variation from the definition given by Sir William Jones : " Lending for use, is a bailment of a thing for a certain time, to be used by the borrower without paying for it." 3 And this also corresponds very closely with that given by Mr. Justice Story, from the civil law, namely, "the grant of a thing to be used by the grantee gratuitously for a limited time, and then to be specifically returned." 4 Elements of the Contract. The circumstances and object of the loan usually enter into the contract, so as to fix its limitation as to time and 1 Jones on Bailm. 64; 102; Hurd v. West, 7 Cowen, 752. * 2 Kent's Comm., 573, 574, 3d ed. 3 Jones on Bailm., 118. 4 Story on Bailm., 219. 138 LAW OF BAILMENTS. use ; as if a carriage be borrowed for a day, or a horse to go a particular journey, it is implied that they shall only be used for the time and purpose contemplated. If they be used differently, it is a breach of the trust under which they are loaned, and the borrower will be liable for any injury to them, or loss, even by accident. 1 The use must be strictly confined to the time and object for which the loan is made. If a horse be lent to go to London, and he be driven towards Bath, in another direction, or if he be borrowed for a week and kept for a month, the borrower becomes responsible for any casualties that may happen in the journey towards Bath, or after the expiration of the week ; this illustration, adopted by Sir William Jones, is but the repetition of the one used in a leading case on the law of bailments. 2 Driving the horse beyond the place designated, will be held a conversion of the property, which will support the action of trover. 8 The benefit being all on one side, the borrower is bound to use extraordinary diligence in taking care of the thing borrowed, and he is responsible even for the slightest neglect ; he must exercise all the care and diligence that the most careful persons are accustomed to apply to their own affairs, and in his case the omission of the most exact and scrupulous caution is regarded by the law as a culpable neglect. If his fault or neglect contribute in any degree to the injury or loss, he is liable. If he return the loan by the hand of an- other, he is bound to employ an agent or servant upon whose skill, experience and prudence he can place an entire reli- ance; and the servant so employed, for whose acts and omissions the master is responsible, is bound to the same extraordinary care as the master himself. 4 The borrower cannot free himself from liability by show- ing that the proximate cause of the loss was the wrongful act of a third person, unless it clearly appears that the act Vwi: , vHsii'fcW ;t{ :'! ti > .-.[.in t>, 1 Coggs v. Bernard, 2 Ld. Rajin., 909, per Chief Justice Holt ; Wheelock v. Wheelright, 5 Mass. R., 104; Jones on Bailm., 68. 1 Jones on Bailm., 68 ; 2 Ld. Raym., 909. * 5 Mass. R., 104 ; Bringloe v. Morriece, 1 Mod., 210; 8 Salk., 271. ' Scranton v. Baxter, 4 Sand. R., 5. GRATUITOUS LOANS. 139 could not have been foreseen or prevented, and that no fault of his contributed to create or enhance the peril. 1 As, if the borrower of a horse, leave the usually traveled highway for a dangerous road, infested with robbers, or travel in the night at an unseasonably late hour, and the horse be taken from him or killed, he must indemnify the owner; because he cannot excuse himself by showing an irresistible force, when he puts himself in the way of it by his own rashness. 2 So, if he ride by a ruinous house, in manifest danger of fall- ing, and it actually fall and kill the horse, he will be respon- sible for his value ; though he would not be answerable if the house, being in good condition, fell by the violence of a sudden hurricane. If the thing loaned be not returned at the expiration of the time for which the loan was made, the law casts the burden of proof upon the borrower, to show that it has been destroyed by inevitable accident, or the wrongful act of some third person, which could not have been foreseen or pre- vented, by the exercise of extraordinary care and diligence. 3 The obligation to act with vigilance is enforced rigorously upon him, who alone receives benefit from the contract ; but no impossibility is demanded of him, and he is not liable for loss by theft or robbery. 4 Thus, if Caius borrows a silver ewer of Titius, and afterwards delivers it, that it may be safely restored, to a bearer of such approved fidelity and wariness, that no event could be less expected than its being stolen, and the bearer is met on the way by thieves, who contrive to steal it, Caius is not liable. Ordinarily, the borrower is required to know his own ability to take the requisite care of the property intrusted to him, and the rule of responsibility is strictly enforced. He is presumed to know the law, which is not partial and does not adapt itself to the peculiarities or failings of individual 1 Story on Bailm., 241. * Jones on Bailm., 68. 1 Jones on Bailm., 66 ; 4 Sand. R., 6. * Jones on Bailm., 44-66. The illustration is from the civil law, but the prin- ciple seems to have fully adopted with us. Story on Bailm., 239. 140 LAW OP BAILMENTS. men, 1 and he has no right to delude his neighbor by en- gaging in a contract of loan. It is asserted, by Sir Wil- liam Jones, that if the lender be not deceived, but perfectly know the quality as well as the age of the borrower, he must be supposed to have demanded no higher care than that of which such a person was capable ; as if Paul lend a fine horse to a raw youth, he cannot exact the same degree of management and circumspection which he would expect of an experienced horseman or an officer of dragoons. Mr. Justice Story comments upon this passage, and agrees that in this case, as in the case of a deposit, or a mandate, the bailor may, in many cases, fairly be presumed to trust to the known habits and character of the bailee, and to content himself with that degree of skill or diligence, or ability, which he is known to possess. 2 Notwithstanding this doctrine appears to have the appro- bation of writers of elimentary works, it does not seem to be supported by any adjudications at common law; and it may well be questioned whether it is to be considered as varying the rule of diligence demanded of the borrower. In practical application it would require a judicial investi- gation of his character, and permit him to prove his own customary heedlessness, or infirmity of character, as an ex- cuse for neglect, which ordinarily renders the borrower lia- ble. 3 It would be to establish, not a uniform principle of responsibility, but a flexible rule, graduated to the circum- stances and habits of the borrower in each particular case. 4 The mandatary, 5 we have seen, may be held liable for the loss of money intrusted to him, though he take the same care of it as he does of his own, where it is shown to have been lost through his gross negligence. To lessen the borrower's responsibility, below the rule fixed by law, it would be ne- cessary, it should seem, to show a state of facts from which it Jones on Baihn., 46-95 ; Story on Bailm., 237. 2 Kent's Comm., 574 ; Story on Bailm., 287. Jones on Bailm., 46 ; Tompkins v. Saltmarsb, 14 Serg. and R., 275. The William, 6 Rob., 816. Tracy v. Wood, 8 Mason R., 182; 2 Kent's Comm., 562. GRATUITOUS LOANS. 141 might reasonably be left to the jury to find a special con- tract to that effect. 1 If the lender know the borrower's character and how the thing loaned is to be used, it may sometimes be no more than a fair inference that the lender agreed to require no greater care than the borrower is capa- ble of bestowing. As, if a person lend a horse to a friend, whose style of driving he is well acquainted with, to be harnessed with another and driven to a place named within a given time, it may fairly be presumed that the lender agreed to assume the usual risks attending the use contem- plated. The civil law, which is quoted to show that the character of the borrower, being known to the lender as that of a careless or rash man, will lessen his liability, makes nicer distinctions than seem to be ?recognized under the common law. 2 Thus the Code of Louisiana lays it down as the general principle, that the depositary is bound to use the same diligence in preserving the deposit, as he uses in pre- serving his own property 3 ; and then provides that the prin- ciple shall be enforced rigorously where the deposit has been made at the depositary's request, where he is to have a reward, where it is solely for his. advantage, or where it has been agreed that he should be answerable for all ne- glects. The same principle is here applied to the deposi- tary in all cases, only in some it is enforced witb greater rigor; it being left to the discretion of the court to deter- mine when the circumstances of the case dispense with, or demand severity in its application. The style of the common law is very different ; under it the jury make the application of the principles, announced by the court, to the facts established on the trial ; and the principles of law are not said to be enforced leniently or rigorously according to circumstances. 4 The facts proven 1 The William, 6 Rob. R., 316. * 2 Kent's Comm., 674; Jones on Bailm., 46-65. * Code of Louisiana, art 2908 and 2909. The edition quoted in these notes is that of 1838, with annotations by Wheelock S. Upton, L. L. B., and Needier R. Jennings. 4 Jones on Bailm., 118, 119, 120. 142 LAW OP BAILMENTS. may bring the case under one, or another principle of law, but we do not speak of the court as growing lenient or rigorous in its enforcement, nor of the principle as capable of adjusting itself to a sliding scale of care or neglect. The Borrower's Interest. Under the contract of loan for use, the possession and transient property is transferred for a particular time or use, on condition to restore the goods so borrowed as soon as the time is expired or use performed. The borrower gains a temporary property in the thing loaned, on an implied con- dition to use it with moderation and not abuse it ; and the lender retains a reversionary interest in it. 1 This temporary property acquired by the borrower is not a legal interest as against the lender f it is' in substance the possession, to which the law attaches the right to protect the property by action against a wrong-doer. 3 He has an interest in the custody and safety of the property, because he is answerable for it to the lender ; 4 and this possessory interest will enable him to maintain an action against any one who wrongfully interferes with the thing loaned. The general property remains in the lender ; and it has been seriously questioned whether it is proper to speak of the naked baileee as having any property whatever in the goods bailed, 5 though it is well settled that he has a right of action against third per- sons, for the defence of the goods, whenever he is liable over to the bailor. 6 It is not disputed that a bailee, having a lien on the goods bailed, has a special property in them ; and so, the bailee for hire has a valuable interest in the subject of the bail- ment, for the time contemplated in his contract. 7 He has Cro. Jac., 236 ; 2 Black. Com., 453. Burton v. Hughes, 2 Bing. Rep., 173; Hard v. West, 7 Cowen R., 752. Story on Bailm., 93. Booth v. Wilson, 1 B. and A., 59. Norton v. People, 8 Cowen R., 137 ; Ludden v. Leavitt, 9 Maes. R., 104 ; Waterman v. Robinson, 5 Mass. R.. 803 ; Warren v. Leland, 9vMass. R., 265. Burton T. Hughes, 2 Bing. R, 173; Button v. Buck, 2 Taunt R., 302; Poole v. Symonds, 2 New Hamp. R., 289-70; .Story on Bailm., 93. T Cro. Jac., 236; 2 Saund. R., 476; 2 Black. Comm., 453. GRATUITOUS LOANS. 143 purchased the use of the goods, and acquired a right of control over them during the continuance of the contract. 1 He has an interest, for the time being, in their possession, which he can enforce against the owner himself ; 2 and his right of possession excludes that of the owner until the term for which he has hired the goods has expired. 3 Till then, the bailee, and not the owner, has a right of action for their recovery, which presupposes the right to reduce them into immediate possession. The possession of the borrower is not that of a mere ser- vant, and it does not exclude that of the owner, who may in most cases maintain an action for the conversion of the goods by a stranger ; and a judgment obtained in his favor will be a good bar to a suit brought in favor of the bailee. Either of them may bring the action, because the bailee's possession is that of the owner, and possession under the rightful owner, is sufficient against a person having no 'color of right. 4 When the bailee has no interest or claim to hold the goods, coupled with his possession, the rule of law applies that the general property draws after it the posses- sion; 5 so that the owner has the right of immediate pos- session. Without doubt the lender, who loans chattels for an in- definite time, retains the constructive possession of them, and is entitled to reduce the goods to actual possession at his pleasure ; 6 and it seems he has the power by strict right at all times to revoke the loan, 7 and repossess himself of the property which forms its subject. This right of revocation may in some cases work injustice towards the borrower, where he has borrowed an article for a particular purpose, which remains unaccomplished at the period chosen by the lender 2 Kent's Comm., 586. 2 Tauntr R., 268. Pntnam v. Wyley, 8 John. R., 433. Falkner v. Brown, 13 Wend., 63 ; 2 Saund., 47 ; Sutton v. Buck, 2 Taunt, 309. Thorp v. Burling, 11 John. R, 285; Hall v. Tuttle, 2 Wend., 475. Oreer v. Storms, 9 Cowen R., 687 ; Smith v. Miles, 1 T. R., 480. 5 Bac. Ab. Tresp. (C.), pi. 9, 16, 17 ; Putnam v. Wyley, 8 John. R., 433 ; 2 Camp. R, 464; Story on Bailm,, 277. 144 LAW OF BAILMENTS. to revoke the loan. Under the Roman law and other codes derived from it, the lender was not permitted to terminate the contract otherwise than as contemplated by the parties to it. 1 But at common law, it appears the borrower, like the bailee under the contracts of mandate and deposit, has no legal interest in the subject of the bailment as against the bailor. The lender, having the general property in the loan, has the right to reduce it to his actual possession whenever he pleases, and is therefore constructively all the while in possession ; so that under the old practice he could sustain the action of trespass de bonis asportatis. 3 Mr. Justice Story intimates the opinion, that notwith- standing the lender's right to terminate the contract of loan whenever he pleases, still if he do so unreasonably, while the object of the bailment is but partly accomplished, and actually occasions injury or loss to the borrower by so doing, the latter may have a suit for damages ; or may recoup his damages in an action brought against him for retaining the loan under such circumstances. 3 As no authority is cited for this opinion, its weight must depend entirely upon general principles. The owner of a pair of horses, lends them to his neighbor to carry a load of provisions to a particular market; can he, on the way, meet him and demand the immediate possession of the team, leaving the borrower to sustain the injury resulting from such an abrupt and unexpected termi- nation of the loan? 4 It may in this case well be questioned whether the contract of loan for this special purpose, united to the injury resulting to the borrower from its termination before the purpose has been answered, will not justify the borrower in resisting this demand for immediate possession, and be received as an adequate defence 1 Story on Bailm., 257. Root v. Chandler, 10 Wend R., 110; 7 Term R., 12; 8 Day, 498, 272. * Story on Bailm., 258. " The ground of this doctrine, as stated in the Ro- man law, is, that although it is purely a voluntary act to make the loan, and to prescribe the terms thereof; yet when once it is made, the lender would, by an unreasonable withdrawal of the loan, impose a burden rather than a benefit, and thus violate the implied obligation between the parties." v JO Wend R. 110; Bao. Abr., 374. GRATUITOUS LOANS. 145 In a loan for use, there is always an implied agreement to redeliver the thing loaned as soon as the time has expired for which the loan was made ; or if no time was specified, as soon as the purpose of the loan has been accomplished. 1 Every bailee is bound to redeliver the goods bailed according to the terms of his particular contract ; and that of the bor- rower requires that he return the goods to the lender at the time and place contemplated by the parties. The depositary may retain them until a demand is made for them ; 2 and a mandatary is not to be presumed in fault until after he has been called upon for the property intrusted to him ; 3 but the borrower must return the loan within the time limited, and an action lies against him if he fail to do so. 4 If he exceed the purposes of the loan, either as to time, or in the manner of using the chattel, he becomes liable. 5 Parties. The parties to the contract of loan, as in other cases, must have a legal capacity to make a contract. This is important to be borne in mind, since it may affect materially the remedy of the lender, for an injury to the chattel loaned, under a contract which cannot be enforced at law. 6 Thus, the con- tract of an infant is not void, but voidable at his election. If a horse is lent to him to go a journey, there is an implied promise that he will make use of great care and diligence to protect the animal from injury and return him at the time agreed upon. But if he pleads his infancy, no action can be maintained against him on this implied promise. If he should sell the horse, an action would lie, and his infancy would not protect him ; 7 for that is an election on his part to disaffirm the contract. And so if he be guilty of any wilful and positive act of injury to the animal, an action of Kent's Comm., 557 ; Story on Bailm., 257. Brown v. Cook, 9 John. R., 361. Beardsley v. Richardson, 11 Wend. R., 25. Scranton v. Baxter, 4 Sand. R., 5 ; 2 Kent's Comm,, 574. Roll. Rep., 128: Bac. Abr. 374; Cro. Eliz., 784. Campbell Y. Stokes, 2 Wend. R., 137. ' Vasse v. Smith, 6 Cranch's Rep., 226. 10 146 LAW OF BAILMENTS. trespass lies against him for the tort ; ' though he is not an- swerable on his agreement for injuries resulting through his unskillfullness, or want of knowledge and discretion. 2 The law releasing him from the binding force of his contract, is based on the presumption that he has not yet acquired those very qualities of knowledge and discretion ; and conse- quently he cannot be held responsible on his promise, ex- press or implied, to exercise care and diligence requiring them. He is liable for torts, not on matters arising ex con- tractu? Married women have not a legal capacity to contract ; but in respect to matters usually intrusted to her, the wife may act as the agent of her husband ; in his absence, the wife is con- sidered to have a general authority over his property, which must be possessed by some one, unless it be expressly shown that he has constituted some other person his agent for that purpose. 4 If the husband intrusts the wife with money to make deposits in some bank for safe keeping, and she does so, opening an account in her own name, and afterwards withdraws the money, it seems, the court will presume she acted with authority. 5 But the contract is that of the hus- band, since the wife cannot contract in her own name. A loan to her, unless it be made with the authority of her hus- band, will not raise the usually implied contract by the borrower, though if it have his assent it will be the same as a loan to him. In respect to the other disabilities of parties, it is not necessary here to enter further into the subject ; it is sufficient to say, they are similar in all contracts. 6 In general, married women, infants, lunatics, and other persons not sui juris, are not capable of contracting, nor can they 1 2 Wend. R., 187, 1 Jennings v. Randall, 8 Term R., 836 ; Green v. Greenbank, 4 Eng. Com. Law Rep., 877 ; 2 Marah Rep., 485. 1 Homer v. Thwing, 8 Pick., 492 ; 4 M'Cord's Rep., 387 ; Bristow v. Eastman, 1 Esp. Rep., 172 ; Wallace v. Mores, 5 Hill R., 391 ; Medbury v. Watrous, 7 Hill R, 110. 4 Church v. Sanders, 10 Wend. R, 79. * Daey v. The Chemical Bank, 2 HiL, 550. * Story on Bailm., 229. GRATUITOUS LOANS. 147 appoint an agent or attorney to act for them ; l but infants and married women, as we have seen, may act as agents for others. 2 The Loan, kow The loan must be used strictly for the purpose and in the manner contemplated by the parties to the contract. 3 If George lend a masked habit and jewels to Charles, to be worn by him at a masked ball to be given on a future night, the use must be confined to that particular occasion ; and if on the way to or from the place where the ball is held, the borrower be robbed of them at the usual time of going and returning, he will not be answerable for their value ; but if he go from the ball to a gaming house with the jewels, he will be responsible if he lose them there by any casualty whatever. The several cases put by Lord Holt, to illustrate this doctrine, are to the same effect. 4 If a man lends an- other a horse to go westward, or for a month, and the bailee goes northward, or keeps the horse above a month, if any accident happen on the northern journey, or after the expi- ration of the month, the bailee will be chargeable, because he has made use of the horse contrary to the trust he was lent to him under, and it may be if the horse had been used no otherwise than he was lent, that accident would not have befallen him. So where silver utensils are lent to a man for the purpose of entertaining a party of friends at a dinner in the metro- polis, and he carries them into the country, the borrower will be responsible if the plate be lost by any accident whatever. 5 One who borrows a horse for his own use, has no right to permit his servant to ride him, 6 for the loan is to be regarded 1 Snyder v. Sponable, 1 Hill's R., 567 ; Whitmarsh v. Hall, 3 Demo, 375 ; The People v. Moores, 4 Denio, 518; Dominick v.'Michael, 4 Sand. R., 376; Smith v. Oliphant, 2 Sand. R., 306-711 ; Crippen v. Culver, 13 Barb. S. C., 424. * Co. Lit, 52, a ; 1 Hill's South Car. R, 270 ; Riley T. Suydam, 4 Barb, a C. R., 222. 1 Jones on Bailm , 69. 4 Coggs v. Bernard, '2 Ld. Raymond, 909. * Jones on Bailm., 69. * Bringloe v. Morrice, 1 Mod. R., 210. ; 2 Kent's Comm, 574. 148 LAW OP BAILMENTS. as a strictly personal favor. If lent to go to a particular place, and the borrower go to other places in a different direction, it is a secret and fallacious use of the property, which amounts to a conversion of it. 1 In like manner, where a man makes and lends a note to another, for the express purpose of enabling him to raise money on it from a particu- lar person, he is not permitted to use it in any other way ; and if in violation of the trust, he transfer it to his creditor as a security for a precedent debt, it will not be an available security in his hands. 2 Neither will a note, indorsed for the accommodation of the maker, and delivered to him to be used in renewal of a former note about to fall due, but trans- ferred by him as collateral security for the payment of an- other debt, be enforced against the indorser by the creditor to whom it is transferred. 3 Notes and bills of exchange are frequently made and in- dorsed merely for the accommodation of a friend, as a sub- stitute for a loan of money ; and where they are made or indorsed for a special purpose, they must be used in accord- ance with the understanding of the parties. The accom- modation maker or indorser, in effect, loans his credit and liability to the person for whose benefit he makes or indorses the note or bill of exchange ; 4 but if the note or bill, being negotiable, is transferred to a bona fide holder for value, the maker or indorser will be liable, notwithstanding the viola- tion of the trust under which the note or bill was made or indorsed. As between the parties to the transaction, how- ever, the loan is governed by the same general principles as regulate the loan of chattels. If the contract of loan, either express or implied, is vio- lated by the borrower, in respect to the manner of using the thing lent, it is deemed in law a conversion of it. This rule of liability is enforced even against one who hires a chat- tel for use, and the reason for its application to the borrower 1 Roll. Rep., 128; Bac. Abr., 874. Beers v. Culver, 1 Hill, 689. Wardell T. Howell, 9 Wend., 170 ; Brown T. Taber, 6 Wend., 666. * 1 Cowen's Tre*., 200, 201, 3d ed. GRATUITOUS LOAUS. 149 is stronger still. 1 As he alone receives benefit from the bailment, it is but reasonable that he should be held to a strict performance of the undertaking on his part. 2 By ex- ceeding the authority delegated to him, he disaffirms the contract and exercises an act of ownership over the pro- perty, inconsistent with the rights of the lender. Where the contract of loan is raised by implication of law, the thing loaned must be used only in the manner for which it is fitted by its nature. 3 The contract implied in law being such as reason and justice dictate, the law pre- sumes that every man contracts to perform it with fidelity, using the borrowed chattel in the ordinary manner. 4 In a loan of a saddle horse for an afternoon, the fair presumption is that the borrower will use it under the saddle ; if the loan be to a soldier in service, not anticipating an actual engage- ment, the presumption is that the borrower will not expose the property of his friend to the perils of a battle field, without his consent. 5 From the circumstances attending the loan, the law implies an agreement, such as the parties are presumed to have entered into, based on the general intendment of courts of 'judicature that every man hath en- gaged to perform what his duty or justice requires. A trust is reposed in the borrower at his instance, and it is but natural reason to presume that he engages to perform it with fidelity and care. A loan for a certain time, as of a horse for a week or a month, is held to give to the borrower an interest in the horse during that time, which will authorize a general use, by himself or his servant ; but if no time is specified, the law implies that a personal trust is reposed in the borrower that he alone shall use the chattel. 6 A similar distinction is made between hiring and borrowing a horse to 1 2 Saunders, 47, n. g. ; 6 Mass. R., 104; 3 Pick., 492; 12 id., 136 ; Harrington T. Snyder, 3 Barb. S. C. R., 380. * Scranton v. Baxter, 4 Sand. R., 6. * Code of Louisiana, art 2869. 4 De F^nclear v. Shottenkirk, 3 John. R., 169. 6 Story on Bailm., 268 ; Jones on Bailm., 70. * Bringloe v. Morrice, 1 Mod. R,, 210. 150 LAW OF BAILMENTS. go to a place designated ; in the case of hire, there is no implied understanding that the chattel is to be used only by the person making the contract, but such an understand- ing will be inferred to accompany the gratuitous loan. 1 The agreement is implied from the circumstances, which show the intention of the parties to the loan, with respect to the use of the chattel. Where one applies to his friend for a loan of his carriage, the object being stated to be the entertainment of his friends or family for a day or an after- noon, the use is confined to the object and time specified. 2 If the object be named, the implication is that the borrower will no % t depart from it or go beyond its reasonable scope. It was formerly held, that if one borrow a horse to ride to a particular place, and he ride out of his way, and the owner of the horse meet him, he cannot take the horse from him, because the borrower has a special property in the horse till the journey is determined ; and being in the lawful possession, the owner cannot violently seize and take it away, since the continuance of all property is to be taken from the form of the original bargain, which in this case was limited till the journey was finished. 3 But if the bor- rower go to other places, the owner has an action on the case against him for exceeding the purposes of the loan ; for to that extent it is a secret and fallacious use of the property. The distinctions here taken are between trespass and trespass on the case, under the old forms of action; trespass being sustainable only where a trespass was com- mitted in the taking of the property, 4 while trespass on the case was maintainable for negligence or other breach of legal duty. 5 But whatever be the form of the remedy, the rights of the parties are limited by the express or implied contract i Mod R., 210. Story on Bailm., 265. 1 Cro. Jac., 236 : Bac. Abr., 874 4 Broughton v. Whallen, 8 Wend. R., 474. Though the taking of the chattel is lawful, it may become tortioua by any wilful act of injury *o it, ao as to sus- tain trespass. Serjeant v. Blunt, 16 John. R., 75. GRATUITOUS LOANS. 151 between them. If, says Mr. Justice Buller, in Seyds v. Hay, 1 a person take my horse to ride, and leave him at an inn, that is a conversion ; for it brings a charge on me. So, if one man, intrusted with the goods of another, puts them into the hands of a third person, contrary to orders, that is a conversion. The case is a very familiar one, that trover will lie when a horse has been let to ride a fixed distance and the bailee ,goes beyond the distance. The ground of liability in each of these cases, is the violation of the express or implied contract, entered into between the parties, in breach of the trust connected with the bailment. 2 The borrower, having misapplied the loan to a use not contem- plated, clearly cannot have a right to retain the property for any other purpose. In one of the early cases, a case of hire is spoken of as a loan, using this term in the same sense in which it is frequently used in speaking of a loan of money for use or interest. Mistaking the facts of this case, it has been sometimes asserted that though the borrower use the thing loaned to him in a way different from the understanding of the parties, still the owner cannot retake his property until the expiration of the term for which the loan was made. Lenders interest in the Loan. The title to the thing lent, as we have seen, remains in the owner ; the use only being transferred to the borrower. 3 The earlier writers speak of the borrower as having a special or qualified property in the subject of the loan; 4 but more recently it is asserted that he has no special property in the borrowed chattel 5 . But this variation of language does not show any variation of principle. The bailee has an interest in the goods bailed, which, in the old action of trover, was frequently spoken of as a special property, in contradistinc- 1 4 Term. R., 260. * 1 Bailey, 646 ; 10 John. R., 172. 1 2 Kent's Comm., 574. ' 4 Doct and Stud., D., 2 c, 38 ; Bac. Abr., 373 ; 2 Black. Comm., 453. * 2 Kent's Cornra., 574; Story on Bailm., 279, 93-96, 150; Taylor v. Linday, 9 East R., 49 ; Burton v. Hughes. 2 Bing. R., 173. 152 LAW OF BAILMENTS. tion from the naked possession held by a mere servant ;' the mere servant could not, while the bailee might maintain the action as against strangers and wrong-doers. 8 Mr. Justice Cowen, in speaking of the distinction between general and special property, says : " Special property is where a man holds goods by bailment, orhas any temporary interest therein, either in his own right and for his own use, or by authority of law for legal purposes." 3 So, in Bacon's Abridgment, where a man lends sheep or cattle, the borrower is said to have a qualified property in them, according to the purposes for which the loan was made. 4 The general property is in the lender during the continu- ance of the loan ; and the borrower, being responsible to his principal for the goods intrusted to him, has an interest in them, by whatever term described, sufficient to enable him to maintain an action for their protection 5 against stran- gers, who wrongfully interfere with the goods. Has he any legal interest in them, as against the owner ? Under the Code of Louisiana, the lender cannot take back the thing lent, till after the time agreed on ; or, if no agreement is en- tered into in that respect, not till after it has been employed in the use for which it was borrowed. 8 This provision is clearly founded in good sense and sound reason. The bor- rower has a right to rely upon the good faith of the lender ; and where he receives a chattel for a specified use, and act- ually commences to use it in the manner stipulated, it may occasion him a serious injury to have it suddenly withdrawn, when the object of the loan is but half accomplished. Such conduct in the lender is little less than a breach of trust, and a breach of a trust undertaken voluntarily is a good ground for an action. 7 The lender has promised the use of the chattel to the borrower ; but the law demands, a considera- Falknerr. Brown, 13 Wend. R., 63. 2 Saund., 47; 1 East. R., 244; 4 id., 247 ; Cro. Elit, 819. 1 Cowen's Trea., 320, 3d ed. ; 1 Caine's R., 14 Bac. Abr., 378. 13 Wend. R., 3. Code of Louisiana, art. 2877. 2 Lord Ray m., 911. GRATUITOUS LOANS. 153 tion to render the promise valid; and that consideration must be either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made. 1 In the case we have supposed, the borrower acts upon the promise of the lender, receives the chattel, com- mences to use it under the. contract of loan, and will be in- jured by its withdrawal before the purpose of the loan has been fully accomplished. It should seem, that here is a valid contract binding upon the lender as well as the bor- rower, and that the latter does in fact acquire a legal inte- rest in the subject of the loan, a qualified property in it, ac- cording to the purpose for which it was borrowed. 2 Mr. Justice Story considers it a matter of serious doubt whether the depositary, the mandatary or the borrower has any special property in the subject of the trusts respectively committed to them, 3 and he reviews at length the authorities on the question, inclining to the opinion that the general bailee has an interest, well expressed by the phrase, " pos- sessory interest" in the goods bailed, but not a special pro- perty. Mr. Justice Blackstone, speaking of the various classes of bailment, says: 4 "In all these instances there is a special qualified property transferred from the bailor to the bailee, together with the possession. It is not an absolute property, because of his contract for restitution ; the bailor having still left in him the right to a chose in action, grounded upon such contract. And, on account of this qualified pro- perty of the bailee, he may, as well as the bailor, maintain an action against such as injure or take away those chattels. The tailor, the carrier, the innkeeper, the agisting farmer, the pawnbroker, the distrainor, and the general bailee, may all of them, vindicate in their own right, this their possessory interest, against any stranger or third person. For, being responsible to the bailor, if the goods are lost or damaged by his wilful default or gross negligence, or if he do not deliver up the chattel on lawful demand, it is therefore rea- 1 1 Cowen's Trea., 58, 3d ed. * Doct. and Stud., D. 2 c 38 ; Bac. Abr., 878 ; Story on Bailm., 258. 1 Story on Bailm., 93. * 2 Black. Comm., 453 ; 13 Rep., 69. 154 LAW OP BAILMENTS. sonable that he should have a right of action against all other persons who may have purloined or injured them ; and that he may always be ready to answer the call of the bailor." Sir William Jones says, "every bailee has a temporary quali- fied property in the things, of which possession is delivered to him by the bailor, and has, therefore, a possessory action or an appeal in his own name against any stranger who may damage or purloin them." 1 Mr. Chancellor Kent, in speaking of the depositary, says : He has, perhaps, strictly speaking, no property, general or special, in the article deposited; that he has only a naked custody or possession, with a right of action, if his possession be unlawfully disturbed, or the property injured. 2 Treating of the loan for use, he says : " the borrower has no special property in the thing loaned, though his possession is suffi- cient for him to protect it by an action of trespass or trover, against a wrong-doer." 3 Afterwards, however, he states the doctrine in the prevailing language of the books : " As every bailee is in the lawful possession of the subject of the bail- ment, and may justly be considered, notwithstanding all the nice criticism to the contrary, as having a special or qualified property in it ; and as he is responsible to the bailor in a greater or less degree for the custody of it ; he, as well as the bailor, may have an action against a third person for an injury to the thing; and he that begins the action has the preference ; and a judgment obtained by one of them is a good bar to the action of the other." 4 Where no time is limited for the continuance of the loan, the lender has undoubtedly, title, and a right to repossess himself of the chattels bailed at any time ; the borrower having no right whatever- over the chattels as against the lender. 5 The lender has not in such a case the 'actual, but 1 Jones on Bailm., 80 ; Year B., 21 ; Hen. VII., 14 b, 16 a. 1 2 Kent's Comm., 668. 1 Burton T. Hughes, 2 Bing. Rep., 178 ; Hurd v. West, 7 Cowen R., 762; 2 Kent's Comm., 674. 4 Flewellin v. Rave, 1 Bulst Rep., 68 ; Rooth v. Wilson, 1 v Barnw. and Aid. 69 ; 2 Kent's Comm., 686. * Orser v. Storms, 9 Cowen's R., 687. GRATUITOUS LOANS. 155 the constructive possession, which follows the title, and which exists wherever he has the right to reduce the pro- perty to actual possession at any time. 1 This he cannot have where he has transferred to the bailee by a valid contract a right for a specified term to the use of the goods bailed ; because in that case he is not entitled to reduce the goods to his possession when he pleases. 2 In Root v. Chandler, it was held that the lender has a constructive possession of the thing loaned ; but it appeared in that case that the borrower had exceeded his authority in the use of the chattel bailed ; the plaintiff lent a pair of horses to Evan Rice and Stephen Goss, to enable them to retail a load of fish. The horses were lent at Buffalo, and the borrowers had permission to proceed east as far as Clarence, in the county of Erie ; but one of them went as far as Batavia, in the county of Gene- see, where the horses were seized by the defendant's direction on an execution against Rice. The action was trespass de bonis asportatis, and on the trial a verdict was rendered for plaintiff. One of the questions raised on a motion for a new trial, was, whether the plaintiff had a sufficient possession to maintain trespass ; and upon this question the court say : " the plaintiff had the general property in the horses; he lent them to Rice to go to Clarence, but no farther ; he had a right to reduce the property to his actual possession when- ever he pleased ; he was therefore constructively in posses- sion, and the action on that ground is well sustained." 3 The inference would seem to be, that if the borrower had not gone beyond the place named as the limit of the jour- ney, the lender would not have had the right to reduce the property to his actual possession whenever he pleased ; which was regarded as necessary to sustain that form of action. But the precise point we are here considering, does not seem to have been decided at common law. 4 The ques- 1 Putnam v. Wyley, 8 John. R., 433. * Hoyt v. Gelston, 13 John. R., 142 and 561 ; Aiken T. Buck, 1 Wend. R, 466. 1 Root v. Chandler, 10 Wend., 110. 4 Viner's Abr. Bailment D. ; Bac. Abr. Bailment D. ; Cro. Jac., 687 ; 2 Roll. R., 440; 1 Strange 165; Sheppard's Epitome, Countermand ; Taylor T. Len- dey,_9 East R., 49 ; 1 Dane's Abr., ch. 17, art 4, 10. 156 LAW OF BAILMENTS. tion arises, when one lends chattels to another for a specified time and use, and the borrower receives and applies them to that use, according to the contract, whether the lender retains the right to recall the loan at a time and under cir- cumstances which will prove directly injurious to the bor- rower ; in other words, does the borrower in such a case acquire any legal interest in the promise or grant of the use accompanying the chattels, for the time and purposes of the loan ? Mr. Justice Story, after stating the legal right of the borrower to the proper use of the loan under the civil law, 1 says : " These principles are not supposed to have any gen- eral foundation in the common law, in which the loan is understood, as to its continuance, to rest upon the good pleasure and good faith of the lender, and to be strictly pre- carious. As the bailment is merely gratuitous, the lender may terminate it whenever he pleases." 2 The authorities quoted by him apply to a general loan for an indefinite time, in respect to which it is distinctly adjudged that the lender has the right of recalling it at his pleasure. 3 If the loan be made without any specification as to the" time or purpose of its use, it is but a bare license or au- thority which may be at any time recalled ; 4 but if the loan be for a definite time and purpose, there is a contract be- tween the parties, embracing mutual promises, expressed or implied from the circumstances ; and the borrower, it should seem, acquires a legal interest in the promise of the lender wherever the execution of the contract has been actually entered upon, and its revocation would work to his preju- dice. All the authorities show that there is a contract en- tered into between the parties, and there does not appear to be any reason why it should not be capable of enforce- ment by either party. The right of countermand exists in respect to a license, permission, trust, agency or authority, in which the agent or bailee acquires no legal interest. If one gives money to another to pay over to a third person in discharge of a debt, 1 Story on Bailm. 267. * Orson v. Storms, 9 Cowen's R., 687. * Id. 257, 277. < Sheppard'fl Epitome, Countermand. GRATUITOUS LOANS. 157 the cestui que use may recover it in an action of debt or ac- count against the bailee ; but if the money were delivered to the bailee to hand to a third person, to whom nothing was due, the owner has a right to countermand the authority at any moment before it is executed. 1 In like manner, a de- livery of goods to A, to the use of B, upon a precedent consideration, may not be countermanded, because it vests the absolute property in B ; it being for his benefit, his ac- ceptance is presumed even before it be actually manifested. 2 A person delivering money to another for a charitable pur- pose, may countermand the authority so long as the money remains in the hands of the bailee, unappropriated according to the purposes of the trust. 3 Indeed, if the power or au- thority be in its nature legally revocable, it seems that it cannot be rendered irrevocable by any act or stipulation on the part of him who grants it. So long as it is a mere license or authority, granted as a matter of ease, pleasure or trust for the benefit of the bailor, it may be counter- manded. 4 If the owner of goods deliver them to a bailee, to be delivered over to a third person, the bailee has no property in them except for the purpose of the trust. 5 But if the bailment is not on a legal or valuable consideration, the delivery is countermandable ; and in that case, if the bailor bring an action in the nature of trover, he reduces the property again in himself, for the action amounts to a countermand of the gift ; but if the delivery be on a valu- able or legal consideration, the bailor cannot maintain his action because he has not the right of immediate possession; he has, for the time being, parted with an interest in it. 6 Many of the earlier adjudications on the subject of bail- ments, were made in the old action of detinue, in which it was held a good plea, that the bailment was upon a condi- Peter Harris v. Peter de Bervoir, Cro. Jac. 687. Atkin v. Berwick, 1 Strange, 165. Taylor v. Lendey, 9 East, 49. Sheppard's Epitome, Countermand. Roll. Abr., 606. Bulst, 68; 2 Leon, 80; Telv., 164. 158 LAW OF BAILMENTS. tion. 1 Rich v. Aldred was an action in detinue for the recovery of a picture of Oliver Cromwell, and Chief Justice Holt, at the trial, illustrated the doctrine thus : If A bail the goods of C to B, and C bring detinue against B for them, B may plead the bailment to him by A to be rede- livered to A, and so bring in A as garnishee to interplead with C ; and if A bail goods to C and afterwards give his whole right in them to B, B cannot maintain detinue for them against C, because the special property that C acquires by the bailment is not thereby transferred to B. 2 The result, derived from an examination of the decisions on the subject, is that the lender retains the title to the chattels bailed ; that the borrower acquires the possession and a special qualified property in them according to the purposes of the loan, and that for some purposes with respect to third persons, the possession of the bailee is regarded as that of the lender, who may at pleasure reduce the chattels into his actual possession. TJie Loan is a personal trust. The lender is always understood to loan the chattels for the personal benefit of the borrower in whom he resposes a special trust, unless from the circumstances a contrary in- ference may be drawn. 3 In the loan of a horse to ride to a particular place, it is implied that the use is for the personal benefit and convenience of the borrower ; it is a contract in which the borrower engages to bestow his personal care and diligence in the preservation of the thing loaned. 4 If he deliver it over to a servant or agent for return, he is respon- sible for the same degree of care on the part of the servant which is demanded of him personally. 5 The circumstances under which the loan is made indicate the intention of the parties and give shape to the promise implied by law. Vinr. Abr., D. 6 Mod 11., 216. Bringloe T. Morrice, 1 Mod. R., 210. Burton v. Hughes, 2 Bing. Rep., 178; Hurd v. West, 7 Cowen R., 752. Scranton v. Baxter, 4 Sand. R., 5. GRATUITOUS LOANS. 159 Bringloe v. Morrice was an action of trespass for immode- rately riding plaintiff's mare ; the defendant pleaded that the mare was lent to him, and that by virtue of the implied license, he and his servant had alternately rode her. To this plea there was a demurrer by the plaintiff; and the court held that the license for the use of the chattel was annexed to the person of the defendant, and could not be communicated to another ; for this riding was a matter of pleasure. Chief Justice North took a difference where a certain time is limited for the loan of the horse, and where it was not. In the first case the party to whom the horse is lent has an interest in the horse during that time, and in that case his servant may ride, but in the other case he may not. He also took a difference between hiring and borrow- ing a horse to go to York ; in the first, the party may permit , his servant to ride or use the animal, not in the second. 1 By the common understanding as well as by the implied contract, a loan bears the character of a personal favor, which in its nature is not transferable. This is the ordinary rule where there is no stipulation on the subject. 2 But it is clear from the case above quoted, that a loan of a chattel for a month, will be understood to confer on the borrower the general use of it by himself or by his servant or family. And so, if from the circumstances the fair inference is that both parties contemplated an use of the thing loaned, re- quiring the intervention of an agent or third person, the law will imply a contract to that effect : As, if a person should borrow the equipage of a military company for the purposes of a holiday parade, there would be an implied agreement for the use of the equipage in the manner con- templated by the parties to the loan. Or if a person wishing to send a message to another, residing at some distance, should apply to his friend for a loan of his horse for that purpose, the understanding, and the implied contract, would be for the use by the messenger he might wish to send. The contract, in short, is varied almost infinitely, so as to adjust itself to the circumstances of each particular case, 1 1 Mod. R., 210. * 2 Kent's Comm, 674 160 LAW OF BAILMENTS. the undertaking of the borrower as to the manner of the use, having all the while reference to the purposes of the loan ; for " the law regardeth the intent of the parties and will imply their words thereunto." Effect of fraud in procuring the Loan. Fraud vitiates all contracts. 1 When a sale is procured by fraud, no title passes. 2 A purchase of goods with intent not to pay for them, is such a fraud as will avoid the sale. 3 Though there be a delivery, the possession of the true owner is not divested by a tortious taking, nor where the goods are taken from him by means of fraud. 4 The law does not un- dertake to define in abstract terms what constitutes fraud ; being a question of motive, to be proved from the circum- , stances attending each particular contract, it is scarcely capable of being defined in general terms. 6 Any misrepre- sentation or suppression of the truth which ought to be told, tending to and actually misleading the purchaser, avoids the sale. And the effect is the same whether the sale is made by the party himself or by his agent. 6 The circumstances, the indicia and earmarks of fraud are frequently defined in the books and in tjie adjudications of cases, but it is now settled that the question of fraud is always one of fact, involving the intention of the party, to be found by a jury. 7 Any kind of fraud practiced on the part of the borrower, in order to procure the loan, either by a suppression of the truth or by express falsehood, will avoid the contract and render him liable for all casualties.* In this contract, per- haps more than in all others, the law demands openness and honesty, and will not tolerate any concealment of facts that might have a tendency to prevent the loan. Thus, if a soldier Story on Contracts, 495. Root y. French, 18 Wend., 670. Ash y. Putnam, 1 Hill R., 805 ; Bristol v. Wilsmore, 1 Bam. and Ores., 514. Gary v. Hotaling, 1 Hill R., 811, and the cases there cited. 2 Kent's Comm., 513. Hill v. Gray, 1 Starkie R., 852 ; Buck v. Cole, 4 Sand. R., 80. Jackson T. Timmerman, 7 Wend. R., 486 ; Young v. Covell, 8 John R., 25. Jones on Bailm., 70 ; Story on Bail 01., 248. GRATUITOUS LOANS. 161 were to borrow a horse of his friend for a battle expected to be fought next morning, and were to conceal from him that his own horse was as fit for the service, and if the horse so borrowed were slain in the engagement, the lender ought to be indemnified ; for, says Sir William Jones, probably the dissimulation of the borrower induced the lender to made the loan ; but, he adds, had the soldier openly and frankly acknowledged that he was unwilling to expose his own horse, since in case of loss he was unable to purchase another, and his friend had nevertheless generously lent him one, the lender would have run, as in other instances, the risk of the day. One who obtains the loan of a chattel, by a fraudulent mis- representation, stands in no better relation towards the lender than a trespasser. 1 There is in such case no legal delivery, and no consent to the taking, since consent, in law, is more than a mere formal act of the mind, and must be unclouded by fraud. On a sale procured through fraud and false pre- tences, the party obtaining the property cannot be convicted of larceny; 2 but the bailee may be so convicted who acquires the custody of the property fraudulently, with an intent to deprive the owner of it. In both cases there is the moral guilt of larceny, but it is not regarded as the same crime un- der the adjudications. 3 Larceny is defined, by East, to be the wrongful, or fraudulent taking or carrying away, by any person, of the mere personal goods of another, from any place, with a felonious intent to convert them to his (the taker's) own use, and make them his own property, without the consent of the owner. 4 The crime is not committed where the owner intends to transfer the property. 5 The de- cisions, making this distinction, have been made mostly in actions arising between the owner and the third person, who 1 Campbell v. Stakes, 2 Wend. R., 187; Gary v. HotaUing, 1 Hill K., 811; Hartop v. Hoar, 1 Was., 8 ; 2 Str. 1187, & G Ross v. The People, 6 Hill R., 294. * The People v. Anderson, 14 John. R., 296 ; The People v. McGarren, 17 Wend. R., 460. 4 2 East P. C., 563. Rex T. Hairey, 2 East P. C., 669, 671, 672. 673. 11 1G2" LAW OF BAILMENTS. has purchased the property bonafide, for a valuable, consider tion from him who acquired it by fraud. 1 The distinction is between the taking of chattels feloniously, and acquiring them by means of a purchase fraudulently obtained. In the latter case, one who buys of the purchaser, in possession, without notice of the fraud, acquires the title ; not so in the case of stolen goods. Possession of property obtained by fraud, amounts to a tortious taking, and is regarded in law as a trespass ; but in order to constitute the crime of larceny, such taking must be accompanied with the intent to steal. 2 As where one hires or borrows a horse on pretence of taking a journey; but in truth with intent to steal him, this is larceny. So where a carrier severs part of the goods from the rest, with intent to convert them to his own use, he is guilty of larceny ; for, say the books, he is as much guilty of trespass against the virtual possession of the owner, by such second taking, as if the act had been done by a mere stranger. 3 The general doctrine is that the bailee who comes fairly and lawfully into the possession of chattels, is not answera- ble criminally for his subsequent conversion of them. It is a question of fact, whether he takes the property animo furandi, which must be determined by a jury. Thus, the finder of personal property may or may not be guilty of larceny, by appropriating it to his own use. If he know the owner, and appropriates it, he is guilty; 4 but if he neither know, nor have the means of knowing who the owner is, he is not guility of the crime, though he appro- priates the property. 6 To make the act of appropriation a crime, it must be shown that the finder takes up the goods, with a felonious intention of converting them to his own use. This may be proved by his concealing them, or omitting to perform his duty in seeking for the owner. 6 Mowry v. Walsh, 8 Cowen R., 238; Root v. French, 18 Wend., 570. 2 Eait C. L., 693. 2 Ea8t a L., 654. The State v. Weston, 9 Conn. R, 527. The People v. Anderson, 14 John. R., 295 ; The People v. McGarren, 17 Wend. R., 460. ' 2 Ruuell on Crimes, 100, 103. GRATUITOUS LOANS. 163 Who to bear expenses of the Loan. Under the Code of Louisiana, if, in order to the use of the thing lent, the borrower be compelled to go to some expense, he has no right to be reimbursed by the lender. But if, during the loan, the borrower is obliged for the preservation of the thing, to go to some extraordinary expense necessary and so urgent that he cannot give notice of the same to the lender, the lender is held bound to reimburse him for the same. 1 Our law is probably not much different from the civil code in this respect. Ordinary expenses, as a matter of course, are to be borne by the borrower. 2 This is but a just infer- ence from the nature of the contract, so just and evident that the question does not seem to have arisen under the common law. It is assumed that the borrower of chattels, whether cattle or slaves, takes upon himself the burden of keeping and taking care of them ; for this is necessary to the use of the loan. But if extraordinary expenses are in- curred, such as were not foreseen by the parties to the loan, Mr. Justice Story expresses the opinion that the lender would be answerable for them ; as if, in the loan of a car- riage, the borrower should be compelled to go to the ex- pense of procuring a new wheel, in place of one that had failed. 3 For expenses of this kind, under the civil code, the borrower had a lien upon the chattels. But it may well be doubted whether at common law, in a case of casualty, a new contract would be implied, with authority to the bor- rower to incur unusual expenses to be charged on the lender ; and it is certain that he would not thereby acquire a lien upon the borrowed chattel, unless a new contract is pre- sumed. 4 Bailees for hire, who by their labor and skill have imparted additional value to the goods bailed, have a lien for their reasonable charges ; but other bailees have no such lien, and there does not appear to be any foundation for one 1 Code of Louisiana, art. 2875, 2879. * Story on Bailm., 256. Story on Bailm., 273, 274 4 Grinnell v. Cook. 3 Hill R, 485 ; Nicholson v. Chapman, 2 H. Black. R., 254 164 LAW Of BAILMENTS. in this case, even if it be allowed that the borrower has the authority to bestow work, labor or expense upon the thing lent. There being no special agreement with reference to such ex- traordinary expenses, the borrower's authority to incur them, if any exists, must be a pure implication of law, superadded to his implied undertaking to exercise the greatest care and diligence in the preservation of the property loaned. This would amount to a degree of forecast, in providing for its safety, very uncommon, if not extravagant ; instead of which, all implied stipulations are such as the parties are presumed to have actually contemplated. The civil law, which gives such authority and a lien for such expenses when incurred, is more specific and enters into nicer details, without, we apprehend, arriving at more substantial equity than is se- cured to the parties under the severer principles of the common law. Care exacted of the Borrower. We have already mentioned incidentally, in speaking of the elements of the contract of loan, that the borrower is bound to exercise the greatest care and diligence in preserv- ing the borrowed chattels. 1 He is bound to act with all the prudence which the most careful and vigilant men take in their own affairs ; and he is responsible for even slight neg- ligence, whereby the property is lost or injured. 2 The omission of the most exact and scrupulous caution, is a culpable neglect in the borrower. In case of loss, the law casts the burden of proof upon him, to show that it did not occur through any fault or neglect of his, either directly or remotely. Though the proximate cause of loss be the wrongful act of a third person, he is Mable, if it appear that his own imprudence contributed to create or enhance the peril. 3 He must show that he has done nothing to increase 1 2 Ld. Raym., 915. * Jones on Bailm., 65, 66 ; Scranton v. Baxter, 4 Sand. R., 5. , 1 Jones on Bailm., 66 ; Story on Bailm., 287, 238 ; Vaughan v. Menlove, 8 Bing. N. C, 468. GRATUITOUS LOANS. 165 the danger through, his want of caution, nor omitted any- thing whereby it could have been avoided by the exercise of vigilant prudence ; and he is responsible for even the slightest neglect. Lord Holt, in Coggs v. Bernard, states the doctrine on this point thus : The borrower is bound to the strictest care and diligence to keep the goods, so as to restore them back again to the lender, because the bailee has a benefit by the use of them, so as if the bailee be guilty of the least neg- lect, he will be answerable. 1 It is to be noticed that he states the liability of the bailee for hire^ in terms quite as strong, holding that he also is bound to the utmost diligence, such as the most diligent father of a family uses. Mr. Jus- tice Black stone also classes these two kinds of bailment together, and describes them in nearly the same words, but evidently without any intention of stating accurately the degree of care demanded in each. Sir William Jones notices this similarity of language, used in reference to contracts quite dissimilar, and contends that Chief Justice Holt was misled by Bracton, on whose authority he relied ; that the language of Bracton is copied exactly from Justinian ; that Justinian states in the proem to his Institutes, that his de- cisions in that work were extracted principally from the commentaries of Gaius ; and that the epithet ddligentissimus, which comes down through Bracton, is in fact used by tjiat ancient lawyer, and by him alone, on the subject of hiring. 2 Sir William mentions that Gaius is remarked for writing with energy, and for being fond of using superlatives where all other writers are satisfied with positives; certainly if this view, which is very plausible, be correct, it must be ad- mitted that the energetic Gaius has succeeded in prolonging the emphasis of that word through an unusual lapse of time. It is, however, plain tnat the use of the word diligens in the place of dilligentissimus, in the passage quoted, will alter its entire meaning, so as to make it conform to the doctrine as now settled, which demands of the bailee for hire, only 1 2 LA Raymd, 909, 916. * Jones on Bailm., 86, 87. 166 LAW OP BAILMENTS. the ordinary care which diligent men take of their own goods, 1 But the borrower, who alone receives benefit from the loan, is bound to the use of extraordinary care, such as the most diligent and prudent men use in securing their own goods. The Borrower, when exempt from liability. It results from the rule of liability we have stated, that in the case of chattels loaned, the owner must abide the loss, if they perish through any accident which a very careful and vigilant man could not have avoided. If they be taken from him by robbery, or stolen out of his possession, notwith- standing his extraordinary care, the borrower is not liable. 2 The law demands no impossibility, and if he uses more than ordinary diligence, he is not chargeable if they be wrested from him by a force which he cannot resist. His implied contract does not bind him to guarranty the lender against the machinations and crimes of third persons ; in the case of a borrowed horse, if he put him in his stable, and he is stolen from thence, the borrower is not answerable for him. But if he or his servant leave the stable door open, and the thieves take the opportunity of that, and steal the horse, he is chargeable ; because the neglect gave the thieves the occasion to steal the horse. 3 It seems, where the lender is perfectly acquainted with the 'character of the borrower, that the latter will be bound only to use reasonable diligence and such skill as he actually possesses. 4 This is assumed to be the rule of law, where the owner knowingly lends a chattel to a raw youth, who can- not be expected to act with skill and circumspection. But the point has not been decided, and it is probable that the usual rule would be held against him, leaving him, where he is an infant, to plead his infancy in answer to the implied contract for extraordinary care. 5 It might be very equitable Jones on Bilm., 87. Id, 66. Per Lord Holt in Coggs v. Bernard, Ld. Raym., 909. Wilson T. Brett, 11 Meeson and Welsby R., 118 ; Jones on Bailm., 65. Campbell T. Stakes, 2 Wend. R., 138. GRATUITOUS LOANS. 167 to presume that the lender, making the loan with a full know- ledge of the borrower's want of skill and prudence, was satisfied to demand no higher care than that of which such a person was capable ; but it would be very difficult to ad- minister a principle, requiring the investigation of private character as a means of ascertaining the nature of his con- tract. Besides, the lender, as well as every other man, has a right to the presumption, that he has contracted with a knowledge of, and with reference to, the established and known rule of law ; l which cannot be known unless it be fixed and invariable. The contrary opinion, expressed by Sir William Jones, and adopted in a qualified form by Mr. Justice Story, is indeed sustained by authorities cited from the civil code, but it does not appear to have acquired the sanction of an adjudication at common law. 2 And, being a question to be settled by inferences and analogies, it is open for discussion. Though the borrower is not liable for losses occasioned by irresistible force, it is only where he has not put himself in the way of it, by his own rashness, that such an excuse can be rendered. 3 If he ride a borrowed horse by a ruinous house, in manifest danger of falling, and it actually fall and kill the horse, he is, as we have seen, liable ; but he is not liable, if the house, being in good condition, fell by the vio- lence of a sudden hurricane. So, he is not responsible for a loss occasioned by the wrongful act of a third person ; but he must show that it was in no manner occasioned by his failure to exercise the care and diligence demanded by his contract. 4 He is liable, if he might have prevented or avoided the injury by a provident and thoughtful forecast. The borrower, in common with other bailees, is not re- sponsible for losses occasioned by the act of God, which, in the legal sense, is one of those extraordinary events against which human intelligence and foresight cannot guard ; such 1 Raymond v. Lent> 14 John. R., 401, 402. * Jones on Bailm,, 65 ; Story on Bailm., 237 ; 2 Kent's Comnx, 574. * Scranton v. Baiter, 4 Sand. R., 6 ; Jons on Bailm., 68. 4 4 Sand. R, 6, 7. 168 LAW OP BAILMENTS. as storms, lightning, and tempests. A sudden gust, or a sudden failure of the wind, has been adjudged to be the act of God, or vis divina. 1 Sir William Jones objects to the use of these terms, in this confined and technical sense, since in some instances it borders even upon profaneness ; and he suggests that it would be quite as convenient and perspicu- ous to adopt the words inevitable accident, to express the same idea. 8 But these words, used in their ordinary and popular signification, do not convey exactly the same mean- ing. The act of God, in a legal sense, means something in opposition to the act of man ; if it be the result of hu- man means, though inevitable, it is not the act of God. 3 The wild career of a mob may be unforeseen, irresistible, and so far as the bailee is concerned, its acts may prove the cause of loss by inevitable accident ; but this is not re- garded in law as an instance of loss tyy the act of God. 4 So, it has been adjudged that a fire, breaking out casually, not kindled by lightning, is not in the legal sense an act of God, though it burn with inextinguishable violence. 5 The act of God, says Lord Mansfield, in Trent Navigation v. Wood, is a natural necessity, and inevitably such, as winds and storms: 6 it denotes natural accidents, such as lightning, earthquake and tempest; and not accidents arising from the fault or fraud, or negligence of man. It must be something that arises independent of human agency, and which is inevitable and irresistible ; but it need not be, properly speaking, 'an accident ; since the freezing of our-canals and rivers has been held an intervention of the vis major? that will excuse the delay of a common carrier by water. The perils of the sea, and of lakes and rivers, include other dangers than those which Aimes v. Stevens, 1 Sir., 128 ; Colt r. M'Mecken, 6 John. K., 160. Jones on Bailm., 106; Story on Bailru., 489. Me Arthur v. Sears, 21 Wend. R., 196, 1 Term R., 34 Forward T. Pittard, 1 Term R., 27. 3 Eap. R., 127. Bowman T. Teal, 28 Wend, 306, 310. GRATUITOUS LOANS. 169 arise from the acts of God, and are very generally insured against in marine policies. 1 It is to be observed that the bailee cannot excuse himself by alleging an act of God, where it appears that the loss was occasioned in part by his own negligence, and might ha^ve been prevented by human foresight and proper care. 2 From what has]: been said it is apparent that there are many cases of loss by accident, besides those which occur from the act of God, for which the borrower is not respon- sible. He would not be liable for losses caused by a riot, without any neglect on his part ; nor for borrowed chattels destroyed by fire, there being no imputation against him of any want of care. Mr. Justice Cowen, in illustrating the difference between an inevitable accident and the act of God, mentions the custom that formerly prevailed on certain remote coasts, where the inhabitants, accustomed to plunder wrecked vessels, sometimes resorted to the expedient of luring be- nighted mariners by false lights to a rocky shore. Though the stranding of a vessel, in such a case, would not be pro- nounced an act of God, it is certain that no bailee, except the common carrier, would be held answerable for a loss of goods caused by such inhuman fraud. 3 Sir William Jones adopts an illustration from the civil law, to the effect that the borrower may be chargeable for inevitable mischanee, even where he has not so stipulated by express agreement. 4 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 he has borrowed of Titius, he shall make the lender a com- pensation for the loss ; especially if the ewer be the more valuable, and would consequently have been preferred had he been the owner of them both ; even if his urn be more 1 Gordon v. Buchanan, 5 Yerg., 71 ; Turney v. Wilson, 7 id., 340 ; Johnson T. Friar, 4 id., 48. 8 6 John. E., 168, per Chief Justic* Kent, in Colt v. McMecken, and 3 Esp. F. P., 127. * 21 Wend. R., 198. 4 Jones on Bailm., 69, 70 ; Story on Bailm., 245 ; 2 Kent's Comm., 575. 170 LAW OP BAILMENTS. precious, he must either leave it and bring away the bor- rowed vessel, or pay Titius the value of that which is lost ; unless the alarm was so sudden, and the fire so Violent, that no deliberation or selection could be justly expected, and Caius had time only to snatch up the first utensil that pre- sented itself. Chancellor Kent agrees that if the borrower in this case saves his own goods, and is not able -to save the articles borrowed without abandoning his own, he must pay for the loss, because he uses less care of the articles borrowed than of his own property, and gives the preference to his own. 1 But he raises the question, if the borrower's goods are more valuable than those borrowed, and both cannot be saved, whether he is bound in that case to prefer the less valuable borrowed chattels ? He answers the question by stating the conclusions of Pothier, that he is liable, without expressing any opinion of his own. Mr. Justice Story, whose com- mentaries on the law of bailments are so much enriched for the scholar by his learning, and the illustrations he constantly draws from the civil and foreign codes, discusses the point at considerable length, and maintains that the borrower upon principle ought not to be held liable in such a case. 2 It is certainly a very nice and curious question; but as it has never yet arisen at common law, we may safely say that it is more interesting and speculative than practical. The borrower's liability is to be ascertained in all cases by referring directly to his express or implied contract, to take the utmost care of the goods loaned. Any failure in diligence or want of the prudence and care demanded by his contract, will render him liable ; the principle is plain and general ; and its application to the facts, as developed in each particular case, being a matter to be left to the jury, it can hardly be important to determine, whether proof that the borrower has saved his own very valuable goods from loss in preference to those bailed to him of much less value, where he could not save them both, would be held evidence 1 Code Napoleon, art 1882. 1 Story on Bailm., 245 to 261 ; 2 Kent's Comm., 678. GKATUITOUS LOANS. 171 of due care under the contract. There can be, from the nature of the case supposed, no time for deliberation ; and it would seem that the bailee should be held excusable for acting on the impulse of the moment, to seize and save the most valuable article first ; and that such an act should not be regarded as evidence of a want of proper care of the less valuable borrowed article. The borrower is not liable for losses occasioned by irre- sistible force, of any kind, occurring without any fault of his. He is not responsible for property destroyed by public enemies in time of war, by hostile incursions, or by an act of piracy committed on the high seas. Robbery and depreda- tion upon the high seas constitute the crime of piracy, which is an offence against the universal law of society ; a pirate being, according to Sir Edward Coke, hostis humani generis, the enemy of the human race. 1 In all these instances, however, of loss by irresistible force, in order to excuse the borrower, it must be made to appear that he has not been wanting in the prudence and foresight required of him by his contract ; 2 it must be shown that he has not, through his own oversight and negligence, exposed the property to the peril of the loss, for which he seeks to excuse himself.' If his imprudence has induced the train of circumstances, pro- ducing the losg, as if he has ridden a borrowed horse in the night time over a road infested with robbers, or too near the advanced guard of a hostile army, and the horse be killed or taken from him, he is responsible, because he has himself contributed to the result. 3 It forms no excuse for him to say that the force was irresistible, where it is apparent that it might have been avoided by the exercise of proper vigi- lance. The borrower for an indefinite period, like the depositary, is liable for all casualties after a legal demand has been made upon him for a restitution of the chattels bailed. 4 Indeed, a 1 U. Stateg v. Palmer, 3 Wheat, 610; The Marianna Flora, 11 Wheat, 1. * Jones on Bailm., 68. I 4 Sand. K., 6. 4 Jones on Bailm., 70, 71. 172 LAW OP BAILMENTS. refusal, in such a case, to make restoration after a legal de- mand made, will constitute a conversion of the property, which will render him liable for its value. The borrower, not having made any special contract for the use of the loan for any definite length of time, clearly cannot stand in any better condition after a demand made, than the depositary of goods without reward ; and we have seen that he is liable in all events, and may be recovered against on the ground of. the conversion, evidenced by his refusal to restore the goods. 1 The breach of his promise to restore the goods is sufficient evidence of a conversion ; and a demand and refusal will ren- der him liable for them, where there exists a general obli- gation to redeliver on demand. But the owner, if he so elect, may pursue the property and demand its restitution notwithstanding the act of conversion; 2 and this course is always preferable where there is any doubt as to the pecu- niary responsibility of the- bailee. The act of conversion by the bailee, or appropriating the property to his own use, may be proved and taken advantage of by the owner, so as to entitle him to recover its value ; but the bailee will not be permitted to prove, or take any benefit from this, his wrongful act, in appropriating borrowed chattels. A stran- ger, however, who has purchased the property of the bailee bona fide, may prove acts of ownership, by the borrower, over the property, constituting a conversion, known to the lender. 3 Because if he be induced to purchase by such acts, amounting to, or accompanying an express declaration, that the borrower was the owner of the property, the lender shall not be permitted to assert the contrary ; he is estopped after that, from asserting even the truth to the injury of the party who has acted upon his admission. 4 This is the doc- trine of an estoppel in pais. 1 Jones on Bailnx, 61 ; Durell v. Mosher, 8 John. R., 445 ; Eyeret v. Coffin, 6 Wend. R., 603; Mitchell v. Williams, 4 Hill R., 13; ante p. 83, 87, 92. * Code of Procedure, 206 to 217. * Mi- Malion y. Sloan, 12 Peon. State R., 229. 4 Dezell T. Odell, 8 Hill R., 215 ; Petrie v. Feeler, 21 Wend: R., 172 ; FosUr T. Newland, 21 Wend,, 94; Wateon's exrs. T. M'Laren, 19 Wend., 657. GRATUITOUS LOANS. 173 In a loan for use, it follows,. from the nature of the con- tract,' that the borrower is not liable for the ordinary wear, decay or depreciation of the thing loaned, provided he has used it in a discreet and careful manner. If it be made worse by the effects of the use alone for which it was bor- rowed, and without any fault on the part of the borrower, he is evidently not answerable for the same, since the very object of the loan is its use. 1 But if it be loaned for one purpose and used for another, he is, as we have seen, liable for losses by any casualty whatever; 2 this is even the case in a bailment for hire ; and the rule is enforced still more strictly as against the borrower. The bailee of chattels loaned, is bound to use them strictly in the manner contemplated in the contract of loan, and where it is made for a time certain, to return them at the expiration of the period agreed upon. If in the meantime they perish, are injured, or destroyed by the force, crime OK fraud of any third person, without any fault or neglect on his part, the bailee is not liable. His care must be extended to the protection of the property against all dangers to which it may be exposed ; and he must guard it with the strictest vigilance against ordinary accidents, and the chances of loss by theft, robbery and trespass. 3 Valued Loans. The civilians discussed and were divided in opinion upon the question, whether in the case of a valued loan, or where the goods lent are estimated at a certain price, the borrower must be considered as bound in all events to restore either the things lent, or the value of them so fixed. 4 Under our law, the question would be solved by a fair interpretation of the terms of the contract; the mere fact of putting an estimate upon the value of the property, would not imply an undertaking to restore it at all events, or to pay the lender its 1 Code of Louisiana, Art 2873. ' Jones on Bailm., 69 ; Wheelock v. Wheelright, 6 Mass. R., 104, 1 4 Sand. R., 6 ; Jones on Bailm., 68, 69 ; Coggs v. Bernard, 2 Ld. Raym., 909. * Jonea on Bailm., 71. 174 LAW OP BAILMENTS. price. But if from the terms of the agreement, it can be fairly inferred that the parties to it, intended that the bor- rower should take upon himself every hazard, he will be held to answer for the property. To this effect are the illus- trations put by Sir William Jones : " If William says to Paul alternatively, * I promise on my return to Oxford, either to restore your horse or to pay you thirty guineas, he must in all events perform one part of this disjunctive obligation ;' but if Paul had only said, ' the horse which I lend you for this jour- ney is fairly worth thirty guineas,' no more could be implied from these words, than a design of preventing any future difficulty about the price, if the horse should be killed or in- jured through an omission of that extraordinary diligence which the nature of the contract required." Under the Code of Louisiana, if the thing bailed has been valued at the time of lending it, the loss which results even by chance, is chargeable to the borrower, .unless there has been a contrary agreement. 1 The rule with us is directly the reverse ; he is not chargeable unless he has made himself so by an unequivocal contract. 2 But if we consider that the parties contract with a know- ledge of the principle, that a valued loan is to be uniformly regarded as charging the borrower with a return of the loan, or a payment of its value at all events, the difference between one rule or the other will appear very slight. In one case, the law being known, enters into and forms part of the con- tract without any express reference being made to it ; in the other, there being no such presumption of liability to over- come, the parties stipulate with a knowledge that the agree- ment between them, will be precisely what they make it; 3 and in both, the contract is made with a tacit reference to the existing law. At common law, therefore, the placing of a value or price upon the articles loaned, does not enhance the obligation of the borrower, but serves merely to fix the amount of recovery 1 Code of Louisiana, art 2871. * Jonea on Bailm., 71. 1 Story on Bailm., 258. GRATUITOUS LOANS. 175 in case of a loss, for which the bailee is responsible. It is a mere agreement as to the value of the thing loaned, which leaves the question of liability to be established by inference, or by proof that the borrower has been guilty of some neglect, causing, inducing, or occasioning the loss. Burden of Proof. Under the contract of loan, we have assumed all along, that where the goods borrowed are lost, the burden of prov- ing that the loss did not occur through any neglect, rests upon the borrower. This was the rule of the civil code, and it is so with us. 1 It is enough, in the first instance, for the lender to show that the borrower has not returned the lent chattels, at the expiration of the time for which they were lent ; or if no time be specified, that he has neglected to re- turn them after a demand made. 2 If it be shown that he has failed to return them according to promise, he is prima facie liable; and the burden will then rest upon him, of showing a loss without any fault of his. 3 The initiatory and prima facie proof must in each case be shaped to meet the plead- ings. If the action be in the nature of trover, alleging a wrongful detention or conversion of the goods bailed, the plaintiff begins by proving that the defendant had the goods on a contract of loan, and that he has not returned them as he promised to do ; or, where there is no express promise, that he has neglected to return them after having received the use for which they were loaned, or that he has failed to return them on demand. The burden of proof is then trans- ferred to the defendant, who must show th,at the goods were lost or destroyed, or stolen, notwithstanding his extraordi- - nary care. 4 As the plaintiff must allege in his complaint facts consti- tuting a cause of action, so it is necessary that he should 1 Story on Bailm., 66 ; 4 Sand. E., 5, Scranton v. Baxter. 1 Lock-wood v. Bull, 1 Cowen B., 330; Mitchell v. William*, 4 Hill E., 13. * Duvel v. Mosher, 8 John. B., 445. 4 1 Term E., 33. 176 LAW OF BAILMENTS. support his allegations by proof; 1 but the amount and kind of proof demanded will depend very much upon the pre- sumptions of law arising out of the circumstances and rela- tions existing between the parties. It may be said, in ge- neral, that the burden of proof rests upon the plaintiff to prove the facts, which it is necessary for him to aver in order to maintain his action ; and that the defendant must establish affirmatively whatever new matter of defence he alleges in his answer. 2 Sometimes the onus probandi passes from side to side several times in the trial of a single cause. An action against the bailee of goods, received to keep without reward, may illustrate this frequent shifting of the burden of proof; the depositor alleges a conversion of the property, and proves that the bailee has refused to redeliver on demand ; and then the onus of accounting for the default lies with the bailee, the presumption being that he has converted the goods to his own use ; but if he then take up the case and show them lost, the law immediately raises the presumption in his favor that the loss did not occur through his negligence, and thus again shifts the burden of proof upon the bailor, to show that the loss occurred through the neglect of the bailee. The law does not intend negligence ; it is a fact to be proved by the party asserting it as the basis of his right of recovery. 3 A similar rule applies to the bailee under a contract of mandate. If the mandatary is shown to have received money to deliver to another, there is an implied contract that he will deliver it, or account for it within a reasonable time ; and if he neglect to do so, it is enough, it seems, for the mandator in the first instance to show the delivery and this neglect; the \rnus is then cast upon the bailee to show such a loss as will excuse him. 4 But even in this case, if the plaintiff in his complaint alleges a loss of the money through the bailee's neglect, he must conform his proof to his plead- ings and prove the neglect which he has averred. 5 Such 1 Code of Procedure, 142 ; Beach v. Vandewater, 1 Sand. R., 266. Holliiter v. Btoder, 1 Hill, 160. ' 2 Salk., 665. 4 Graves T. Ticknor, 6 N. Hamp., 637. * Beardaley T. Kichardion, 11 Wend., 25. GRATUITOUS LOANS. 177 proof need not, however, go to the extent of showing an actual loss through the bailee's negligence ; he may show a demand and refusal to deliver, and that will cast upon the defendant the burden of accounting for the money. Without doubt the lender may, in his pleadings, assume the onus of proving that the borrower suffered the thing lent to be lost or injured by his negligence. But this is not necessary; he may allege the lending of the goods for a specific use, to be returned at a given time, and the bailee's neglect to restore them. By proving this allegation on the trial, he will cast the burden of accounting for the property on the bailee. 1 Restitution. It results manifestly from the nature of the contract of loan that the borrower is bound to restore the lent chattel after he has received its proper use. 2 Under the civil law, the lender cannot take back the 1 thing lent till after the time agreed on ; or if no agreement has been entered into in that respect, not until after it has been employed to the use for which it was borrowed. 3 At common law, Mr. Justice Story assumes it to be settled, that the lender has a strict legal right to terminate the contract of loan whenever he pleases ; but he suggests that if he does so unreasonably, so as to occasion injury or loss to the borrower, that the latter may have in some cases a suit for his damages. 4 There is some- thing somewhat inconsistent in this legal proposition, since the enforcement of a strict right, however harshly it may affect others, cannot be complained of as an infringement upon another and conflicting right. The law cannot logi- cally recognize in one man the right to inflict an injury upon another, for which it affords a recovery in the shape of damages ; because damages are given only where there has been some breach of a legal duty. 5 And there is no such Duvell T. Mosher, 8 John. R., 445. Jones on Bailm., 65, 66, 67, 71; 2 Kent's Comm., 571. Code of Louisiana, art 2877 ; Story on Bailm., 257. Story on Bailm., 258. Blanchard v. Ely, 21 Wend, 342. 12 178 LAW OP BAILMENTS. breach where the lender confines himself to the enforce- ment of his legal rights. A recoupment of damages is sometimes allowed for the purpose of avoiding circuity of action j 1 but it is permitted only in a case where the de- fendant shows that the plaintiff has violated some stipula- tion contained in the contract on which the suit is founded ; and it implies that the defendant has a right of action against the plaintiff growing out of the same contract. 8 If, as Mr. Justice Story suggests, the borrower may, where the object of the loan has been but partly accom- plished, retain the subject of the bailment and recoupe his damages in defence of an action brought against him, it is evident that this can be done only on the ground that the lender has violated some stipulation, express or implied in the contract of loan. If there be a stipulation on the part of the lender, either express or raised by implication of law, that the borrower shall be permitted to retain the loan until the object of the bailment shall have been accomplished, it follows that the borrower acquires a legal right in the thing loaned. 3 The right of recoupment cannot exist, unless the lender has violated some stipulation contained in the con- tract, or growing out of the transaction. 4 And it is diffi- cult to perceive what stipulation he enters into, unless it be to permit the borrower to use the thing lent, for the time and purposes contemplated. The lender may, as we have seen, terminate a general loan for use, at his pleasure. 5 For in such a loan he grants simply the custody of the chattels lent, with the authority to use them, and by implication retains the right to revoke the authority and reclaim them at any time. The posses- sion in fact remains with the lender, so that under our old practice he might maintain the action of trespass against a 1 McAllister v. Reab, 4 Wend., 483. 1 Ives v. Van Epps, 22 Wend. R., 165; Reab v. McAllister, 8 Wend. R., 109; Hills v. Bannister, 8 Cow. R., 81; Batterman v. Pierce, 8 Hill R, 171; Van Epps v. Harrison, 5 Hill R., 68. Bac. Abr., C., p. 874. Butler v. Rose, 5 Hill R., 7. Orser v. Storms, 9 Cowen R., 687. GRATUITOUS LOANS. 179 third person who had seized the property ; which could be maintained only where the plaintiff had either the actual or constructive possession of the goods. And he was con- structively in possession whenever he had the immediate right to reduce them into his actual possession. 1 It is assumed in Bacon's Abridgement, already quoted, that the borrower, for a specific use or time, acquires a spe- cial property in the thing lent, which cannot be divested until he has had the use for which the loan was made, or until the time has expired. But there do not seem to be any recent decisions precisely in point. Under the Code of Louisiana, if, before the time for which the loan was made has expired, the lender be in an urgent and unforeseen need of the borrowed article, the judge may, according to cir- cumstances, direct its return. 2 At common law, the question involves the nature and extent of the contract. The au- thorities quoted by Mr. Justice Story in support of the proposition we have mentioned, that the lender may termi- nate the loan at pleasure, many of them refer to loans for an indefinite time ; and others to the right to countermand an authority given to an ^gent. If the borrower acquires, with the custody of the borrowed article, only the authority to use, there is no doubt that the authority may be revoked. 3 But if We assume that he acquires a legal right to the use of the thing loaned for the time contemplated, or for the purpose agreed upon, the grant is no longer that of a mere authority, revocable at pleasure ; it becomes an authority coupled with an interest in the bailee. Such an authority cannot be revoked without the consent of the person to whom it is given ; because it is given for a consideration valid in law. 4 A mere power or authority reposed in the bailee under the contract of loan, may be terminated at the will of the 1 9 Cowen R., 687. 1 Article 2878. 1 Viner's Abridg. Countermand A, and Bailment D; Sheppard's Epitom* Countermand ; Taylor v. Linday, 9 East R., 49 ; Cro. Jac., 687 ; 1 Stra. R., 165 ; 1 Dane Abr., ch. 17, art. 4, 10. * 2 Kent's Comm., 643, 644. 180 LAW OP BAILMENTS. lender ; or withdrawn, like the authority of an agent. 1 In the case of a loan for an indefinite time, a refusal by the borrower to return the goods loaned on demand, will render him liable for their value ; for this amounts to a conversion of them. If a legal demand has been made for their return, the bailee must answer for any casuality that happens after the demand ; unless in cases where it may be strongly pre- sumed that the same accident would have befallen the thing bailed, even if it had been restored at the proper time. 2 This liability, doubtless, may be enforced notwithstanding the lender may not choose to bring his action to recover its value, as for a conversion of the property. But it is the usual practice to bring the suit against the bailee for the goods bailed, and prove the act of conversion as the mode of fixing the amount of the recovery. 3 The place where the borrowed goods are to be restored in the absence of any express agreement in that respect, will depend upon the circumstances and nature of the contract. The borrower must return them to the lender, ordinarily at the place from which he received them ; but the lender may designate the place where they shall be received. The bor- rower, in fact, contracts to redeliver the goods bailed ; and if no place be agreed upon, the bailor may name the place. 4 The bailee, no place being appointed for the delivery, must, it seems, seek the lender and learn at what place he will receive them. 6 This has been expressly adjudged to be the rule of law in respect to contracts for the delivery of spe- cific articles ; but the rule is subject to some qualifications, depending upon the nature, value and bulk of the articles to be delivered. Jewelry, for instance, should be returned to the lender in person, or to his authorized agent ; while other portable articles, such as horses or cattle should be delivered 2 Kent's Comra., 643 - 647. Jones on Bailrn., 71. Baker v. Wheeler, 8 Wend., 505 ; Dillenback v. Jerome, *7 Cowen's R., 294. Co. Litt, 210 b.; Aldrich v. Albee, 1 Greenleaf, R., 120. Bixby T. Whitney, 5 Greenleaf R., 192. GRATUITOUS LOANS. 181 at the place where the collateral circumstances show that the lender intended to receive them. 1 The Code of Louisiana provides that if the contract does not specify the place where the article bailed must be res- tored, that it shall be restored at the place where the bail- ment was made. 2 Though the place be not named, if it may be inferred from the terms of the contract, or from the cir- cumstances attending it, the delivery must be made at that place. The borrower assumes the obligation to redeliver, which is as imperative upon him as if he had entered into an agreement to pay a fixed amount in specific articles. The party bound to render a service or make a payment by a given day, must seek the party to whom the debt or duty is due. 3 Is the place of performing the contract changed by substituting a commodity for money? The implied place of performance is sometimes changed by the nature of the articles to be delivered. If a merchant or manufacturer engages to pay on demand in the articles of his* trade, and no place is specified in the contract, the store of the mer- chant or the workshop, or place of deposit of the fabrics of the manufacturer, is the place where payment must be de- manded before an action accrues for the non-performance of the contract; 4 because, from the peculiar circumstances and course of business of the promissors, the inference is that the parties intended that the articles should be delivered at the promissor's usual place of making and delivering the articles sold by them. The engagement is that the articles shall be delivered on demand, and this seems to imply that the creditor must go to the debtor to make the demand, before the latter can be in default. But where a note of hand is given, payable at a time fixed, in cattle, grain or other portable articles, and no place of payment is designated in the note, the creditor's place of 1 2 Kent's Comm., 507 ; Chipman on Contracts, 25, 26, 27 ; Story on Bailm., 117. * Art. 2925. * Goodwin v. Holbrook, 4 Wend, K, 377. 4 Chip, on Cont, 28, 9. 182 LAW OP BAILMENTS. residence is the place of payment ; for in this case there is nothing to rebut the usual presumption that the debtor or party bound, must seek his creditor and discharge his obli- gation within the time limited. 1 In like manner, the bor- rower is under an obligation to return the borrowed articles to the lender, and if the time and not the place of the return be fixed, he must take them to the lender's residence or place of business ; for this obligation to redeliver, is in sub- stance a debt or duty due to the lender. There is some diversity in the decisions in regard to the place where a contract for the delivery of specific articles shall be performed ; but this diversity arises out of the dif- ference of circumstances attending the contract. 2 Thus, an agreement made at the residence of the debtor, payable in farm produce at the market price, may be performed at the place where it is made ; and there being no time fixed for the payment, it is held that no action will lie until after a demand isinade at the farm of the debtor. The want of time in such a contract renders it payable on demand ; and the fact, that it is payable in farm produce, draws after it the inference that the farm is the place of payment. 8 It is held in Kentucky, that on contracts for the delivery of property, where no place is expressed, the usual residence of the obligor is the place of performance ; and that where the property is to be delivered on request, a special request at the obligor's residence must be averred. 4 The action was on a contract for the payment of two hundred dollars, in a negro, upon request, and it was adjudged on demurrer that the plaintiff must aver in his declaration, a demand of the chattel at the residence of the vendor, or show circumstances justifying a departure. The law judges the place according 1 4 vTenl, R., 8?7. Lob Jell T. Hopkins, 6 Cotren R., 516; Chambers r. Winn, Prin. Dec. Ken- tucky, 192; Wilmouth v. Fatten, 2 Bibb's Kentucky Rep., 280; Mason v. Briggs, 18 Mass. R., 453. * Smith T. Leavensworth, 1 Root, 209; Bach T.Owen, 5 TermR., 409; Chand- ler v. Windship, 6 Mass. R., 310 ; Benners v. Executors of Howard, TayL N. C, 149. 4 Wilmouth v. Patton, 2 Bibb R., 280. GKATDITOUS LOANS. 183 to the nature and subject matter of the thing to be per- formed; presuming, in such a case, that the contract is to be executed at the place where it is made. In construing contracts of this nature, courts endeavor to carry into effect the intention of the parties, which may very often be inferred from the subject and purpose of the contract, as well as from its language. In an action for articles delivered to a bailee to be redelivered when called for, the bailee being absent from the commonwealth, a de- mand was made of his wife at the place of his residence ; and it was held good, on the ground that one who makes a contract to deliver specific articles on demand should be always ready at his dwelling-house or place of business. 1 This is clearly much more reasonable than to permit a de- mand to be made upon him personally for them, since he cannot be expected to carry the goods about with him. The reason here is the same as that which requires a due bill without time or place, given by a merchant for goods, or a mechanic for work, to be demanded of the merchant at his store, or of the mechanic at his shop. 2 There is a perfect analogy between the contract to pay a fixed sum in specific articles and the undertaking of the borrower to redeliver the goods bailed to him. In respect to the time, place and manner of delivery, the obligation is the same, unless, indeed, the borrower is bound more strongly to seek the lender and learn his pleasure as to the place where he will receive the borrowed articles. The farmer who has given his note, payable in farm produce, may de- liver the produce and pay the note at the place where it is made. But one who contracts to pay a given sum in salt, on or before a day named, must go to the residence of his creditor and make his payment there. 3 So, also, no doubt the borrower, who has promised to return the bailed goods within a fixed time, must bring them to the lender, either at his residence or place of business, depending upon the 1 Mason v. Briggs, 16 Mass. R., 453 ; Fanchot v. Leaab, 6 Cow. R., 506. 8 Lobdell v Hopkins, 6 Cowen R., 516; Woodcock v. Bennett^ 1 Cow. R., 711 8 Goodwin v. Holbrook, 4 Wend. R., 377. 184 LAW OF BAILMENTS. circumstances and the subject matter of the contract. If he fail to fulfill the promise, he is liable for the value of the property. 1 The duty he owes to the lender to return the property, involves an obligation as strong and imperative as that which the debtor owes to his creditor ; he must not wait for a demand unless the loan is made for an indefinite time ; and even then, he must make the return at the place designated by the lender. If he retains the goods for a longer time than has been agreed on, he is liable for any loss that may happen ; 2 because he is liable as for a conver- sion of the property. And, of course, whenever the bailee has been guilty of a neglect in the return which amounts to an act of conversion, he is liable for all subsequent losses, even by accident. It is scarcely necessary to say that the bailee is equally responsible for the return of things acces- sory to the principal thing bailed, such as chains and seals appended to a borrowed watch, the increase of animals loaned, or the interest accruing on a lent note. 3 Where several persons jointly borrow an article, they are bound for it in solido ; 4 they enter into a joint contract to take care of and return it, which may be enforced against them all jointly, because each is answerable for the acts of the others. But the action should be brought against them all, or against the survivors, if one or more of them be dead. An agreement entered into by several persons is presumed to be a joint contract, unless otherwise expressed. 5 The loan being precarious and liable to be terminated at the pleasure of the lender, may be revoked in several ways ; by a demand that it be returned ; by the death of the lender, or by a sale of the thing loaned. Being made for an indefi- nite time, it may be recalled whenever the lender pleases; 6 for in this case, only an authority to use accompanies the 1 Durrell T. Mosher, 8 John. R., 445. ' Code of Louisiana, art 2870 ; Jones on Bailnx, 68 ; Coggs T. Bernard, 2 Ld. II ay m., 909, 916. * Jones on Bailm. 66 ; Story on Bailm., 260. 4 Code of Louisiana, art 2876. * 1 Cowen Trea., 609, 611, 3d ed. * Orecr T. Storms, 9 Cowen R., 687 ; 8 John. R,, 432. GRATUITOUS LOANS. 185 article loaned ; and in all such cases, there is no doubt the lender retains the right to countermand the trust or autho- rity accompanying the custody. We have already considered this right of countermand ; it exists wherever no vested inter est has been acquired under the trust. As, where there was a bailment of money, to the use and behoof of a woman, to be delivered to her on the day of her marriage, it was held, that the gift being only executory, the bailor retained the right to countermand the authority at any time before de- livery. 1 But where the bailee, or the person for whose benefit the trust is created, acquires a legal interest in the subject of the bailment as against the bailor, the right of countermand is gone. It is then no longer a mere power, which is revocable at pleasure. 2 In some instances the bailee acquires a right to hold for a time the goods bailed to him. In Rich v. Aldred, Chief Justice Holt holds that if A bails the goods of C to B, and C bring detinue against B for them, B may plead the bail- ment to him by A to be redelivered to A, and so bring in A as garnishee to interplead with C ; and that if A bail goods to C and after give his whole right in them to B, B cannot maintain detinue for them against C, because the special property that C acquires by the bailment is not thereby transferred to B. 3 Mr. Justice Story thinks this case must have been loosely reported, since the bailee cannot stand in any better situation than the person from whom he received the property, and consequently cannot have any right to detain the same where the bailor has none. 4 But it is .very possible that if the case had been fully reported, it would have shown a bailment by authority of the owner, so as to confer a legal right on the bailee for a limited time. Ordi- narily, however, unless the owner has parted with his goods temporarily, on a valid agreement, he has a right to de- 1 Lyte et U* v Perry, Dyer, 49, pi. 1. 3 Sheppard's Epitome; Taylor v. Landey, 9 East, 49; Kich T. Aldred, 6 Mod. R, 216; Cro. Jac., 687; Viner Abr., D. 8 6 Mod. R., 216. * Story on Bailm., 281. 186 .LAW OF BAILMENTS. mand and recover them of the person who has them in his custody. 1 f The loan for consumption, or mutuum of the civil law, in which one person delivers to another a certain quantity of things which are consumed by the use, under an agreement by the borrower to return to him as much of the same kind and quality, is regarded at common law as a sale. It was at one time held in this state that the delivery of a quantity of wheat, to be exchanged for flour at the rate of a barrel of flour for every five bushels of wheat, the wheat being mixed with other wheat belonging to the party receiving it, constituted not a sale but a bailment. 2 But the authority of the case in which that decision was made has been overruled ; and it is now held that the title to the property passes. 3 . Where goods are lent for a use in which the lender has a common interest with the borrower, as in other bailments reciprocally advantageous, the bailee is responsible for only ordinary negligence, and is liable for their return in the same manner as a bailee for hire ; for this is not properly a loan. 4 -Agreeably to this principle, it must be decided that where goods are lent for the sole advantage of the lender, the obligations and duty of the borrower must be modified and reduced to the standard of those exacted of a depositary without reward. To use the illustration given by Sir William Jones, if a pas- sionate lover of music were to lend his own instrument to a player in a concert, merely to augment his pleasure from the performance, and the musician were to play with all due skill and exertion, but were to break or hurt the instrument, without any malice or very culpable negligence, he would not be bound to indemnify the amateur, as he was not in want of the instrument, and had no particular desire to use it. 5 Still, it is held that a person who rides a horse gratui- 1 Story on Bailm., 282; Wilson v. Anderton, 1 Born, and AdoJph., 460. * Seymour v. Brown, 19 John. R, 44. 1 Smith T. Clark, 21 Wend., 83 ; Hard T. West, 7 Cow. R, 762 ; Buffnm T. Meny, 3 Mason R., 478 ; Pierce v. Schenck, 8 Hill R, 28. 4 Jones on Bailm., 72 ; De Fonclear v. Shottenkirk, 3 John. R., 170. * Jones on Bailm., 73. GRATUITOUS LOANS. 187 tously at the owner's request, for the purpose of showing him for sale, is bound, in doing so, to use such skill as he actually possesses ; and that, being a person conversant with and skilled in horses, he is equally liable with a borrower for injury done to the horse while ridden by him. 1 Transfer of Title by recovery. Notwithstanding the borrower cannot acquire title to chat- tels loaned to him, by any act of which he may be guilty, he is, as we have seen, liable for their value whenever he has exercised acts of ownership over them, and the lender elects to bring his action as for a conversion of the property. The owner does not lose his title without his consent, by any alteration of form through which his property may pass ; he may seize it in its new shape so long as he can prove the identity of the original materials, as leather made into shoes, cloth into a coat, trees squared into timber, wood converted into coal, logs manufactured into boards, or black salts con- verted into pearlashes. 2 But if he elects to bring his action in the nature of trover against any person who acquires the custody of his goods by bailment or otherwise, and recovers its value in damages, his title will pass on payment of the judgment entered for the amount of the recovery. 3 A mere recovery does not change the property; there must be an actual satisfaction of the judgment, or payment of the re- covery. Taking the defendant on execution and committing him to prison does not work the change of title, for the judg- ment alone does not bar his right to follow the property until it is made productive in satisfaction to the owner. 4 1 Wilson v. Brett, 11 Meea. and Wels. R., 113. 4 Curtis v. Grant, 7 John. E., 168 ; 5 id., 348 ; Babcock v. Gill, 10 John R., 237 ; Brown v. Sax, 7 Cow. R., 95 ; Baker v. Wheeler, 8 Wend. R., 605. 8 Osterhout v. Roberts, 8 Cow. R., 43. 4 Drake v. Mitchell, 3 East R. ,258 ; Claxton v. Swift, 3 Mod., 86 ; 2 Show., 484 ; Livingston v. Bishop, 1 John. R., 290. 188 LAW OP BAILMENTS. CHAPTEE V. PLEDGES OR PAWNS. Nature of the Contract. WE come, next in order, to consider bailments, mutually beneficial to both the parties to the contract. A pledge is something put in pawn or deposited with another as security for the repayment of money 4 borrowed, or for the performance of some agreement or obligation ; it is legally defined to be a bailment of goods by a debtor to his creditor to be kept till the debt is discharged. 1 Lord Holt says : the fourth sort of bailments is when goods or chattels are delivered to another as a pawn, to be security for money borrowed of him by the bailor ; and this is called in Latin vadium, and in English a pawn or pledge. 2 Chancellor Kent calls it a bailment or delivery of goods by a debtor to his creditor, to be kept till the debt be discharged; 3 and Mr. Justice Story defines it even more comprehensively, as a bailment of personal pro- perty, as security for some debt or engagement. 4 It is the pignori acceptum of the civil law, being a contract by which a debtor gives something to his creditor as a security for his debt. 5 The term jngnus was used in the Latin, as the cor- responding term, pledge, is used in the English language, in a general as well as a legal sense, so as to include hostages, given as a security for the performance of the stipulations of a treaty, or anything given by way of assuring the discharge of some obligation. The Latin term conveys the idea of Jones on Bailm., 118. Coggs v. Bernard, 2 Ld. Raym., 909, 913. 2 Kent's Comin., 577. Story on Bailm., 286. Code of Louisiana, art 3100; 2 Kent's Comm., 578; Jones on Bailm., 80. PLEDGES OE PAWNS. 189 things given in security by a manual delivery ; Pignut ap- pellatum apugno, quia res quae pignori dantur, manu traduntur; 1 and the contract was in the civil law as it is in ours, con- fined to personal property, including under that term, cer- tainly at common law, negotiable paper and choses in action. 2 Notes, bonds, stocks, and in general all kinds of personal chattels, may be assigned or delivered in pledge ; for the mere delivery of a chattel or chose in action is sufficient. 3 Even a specialty may be assigned for a valuable considera- tion by a mere delivery, such as bonds, deeds or covenants. 4 The title to the thing delivered in pledge does not pass as it does in the case of a chattel mortgage. The delivery is made as a security for the payment of a debt, or for the performance of some other act ; and the party making the delivery retains a power of redemption. In a chattel mort- gage the title is conveyed, subject to the condition of a defeasance in case of payment ; whilst the title to goods deposited in pledge remains in the person making the de- posit, only a special property passing to the pledgee. There is also another distinction between a pledge and a mortgage of personal property ; a delivery is essential to a pledge, whilst a mortgage of goods is sometimes valid without de- livery. 5 The earlier writers speak of anything given as a security for debt as a pledge. "A loan, says Glanville, is sometimes made on the security of a pledge, and the pledge may con- sist of chattels, lands or rents. Sometimes possession is immediately given of the pledge, on receipt of the loan, and sometimes it is not. Sometimes the thing is pledged for a term, and sometimes without. When a chattel is pledged and possession is given, and for a certain term, the creditor is bound to keep the pledge safely, and not to use it to its detriment. If it be agreed that in case the debtor should 1 Dig., Lib. 50, tit. 16, L 238. * 2 Kent's Comm., 578; McLean v. Walker, 10 John R., 472. * Prescott v. Hull, 17 John. R., 285. 4 4T. R., 690; 4 Taunt, 326; 13 Mas* R^ 804; 15 id., 481; 2 Greenl., 322; 8 id., 346. * Cortel you v. Lansing, 2 Cainea' Cases in Error, 200. 190 LAW OP BAILMENTS. not redeem the pledge at the end of the term, the pledge shall remain with the creditor as his own property, the agreement must be observed. But if there be no such agreement, and there be a fixed time of redemption, and the debtor make delay in payment, the creditor may quicken the redemption by a writ (of which he gives the form), and which requires the debtor, without delay, to redeem the pledge. On return of the writ, if the defendant confessed the pledge, he was commanded to redeem in a reasonable time, and on default the creditor had license to treat the pledge as his own. But if the pledge was made without any particular term, the creditor might demand his debt at any time and the debt being discharged, the creditor was bound to restore the pledge without any deterioration." 1 This authority establishes two points; first, that where the pledge was not redeemed by the time stipulated, it did not become ipso facto the absolute property of the pawnee, but that the pawnee was obliged to take his legal proceeding in order to obtain authority to dispose of the pledge; and, second, that where the pledge was for an indefinite term, the creditor might at any time call upon the debtor to redeem by a similar process of demand. In a general sense, the mortgaging of lands or personal property, is the giving of them in pledge to secure the pay- ment of a debt. But, in strict language, a mortgage of goods is something more than a pledge ; 2 it is a pledge to become an absolute interest, if not redeemed at the specified time. After the condition forfeited, the mortgagee has an absolute interest in the thing mortgaged ; whereas a pawnee has but a special property in the goods to detain them for his secu- rity. 3 As the law is now well settled, a pledge is a deposit of goods to be redeemed on certain terms, the delivery always accompanying the pledge ; while the general title remains in the person making the pledge, a special property passes to the pawnee, who may use the pawn so as not to injure it; 1 Glanville, Lib. 10, o. 1, p. 59; 1 Reeves, 161, 162. * Brown v. Bement* 8 John. R., 96, 97, 98. * 2 Ves., Jun., 878 ; 1 Powell on Mort, 8 ; Cro. Jac., 244 ; Noy., 187 ; 1 Atk., 167 ; Salt, 622. . PLEDGES OB PAWNS. 191 but the pawnee does not acquire the absolute property on a failure of the pledger to redeem, unless there be between the parties a special contract to that effect. 1 Formerly, the mortgage and pledge or pawn of goods seem to have been generally confounded in the books, and it was not until a comparatively recent period that a just discrimiation was made between them. The opinion of Chan- cellor Kent, in Cortelyou v. Lansing, reported in the second volume of Caine's Cases in Error, though never in fact de- livered, contains an interesting and elaborate review of the decisions on this subject, establishing and vindicating the distinction between a mortgage and a pledge of personal chattels. The case was argued and the opinion written by the chancellor, who was at the time one of the justices of the supreme court ; a re-argument was then ordered, which for some reason was never brought on, and the cause re- mained undecided. But the opinion having fallen into the hands of the reporter, was erroneously published, and has been since judicially adopted as good law. 2 A mortgagee of personal property, upon failure of the mort- gagor to perform the condition of the mortgage, acquires an absolute title to the chattel. This is well established to be the legal effect and operation of a mortgage of personal pro- perty. 3 When given to secure the payment of money, the mortgage of either real or personal estate is but an accessory or incident to the debt, or to the security which is given as the evidence of the debt. The assignment of the debt or security, passes the interest in the mortgage ; for the mort- gage so given cannot exist as an independent debt. If by a special agreement it does not accompany the security assigned, it is ipso facto extinguished, and ceases to be a sub- sisting demand. 4 Where a mortgage was given to secure a 1 Mores v. Conhem, 7 Jac. I, in C. B., Owen, p. 123. ' 2 Caine's Cases in Error, 200 ; Barrow v. Paxton, 6 John. R., 259 ; McLean T. Walker, 10 John. R, 472. 1 Brown T. Bement, 8 John. R, 96 ; Ackley T. Finch, 7 Cowen R., 290 ; Lang- don T. Buel, 9 Wend, R., 80. The mortgagee acquires the legal title only by the forfeiture. 4 Jackson v. Willard, 4 John. R., 43 ; Jackson v. Blodget, 6 Cowen R, 202 ; Martin v. Mowlin, 2 Burr., 979 ; Green v. Hart, 1 John. R., 581. 192 LAW OF BAILMENTS. note payable to order, and the holder indorsed the note over, and at the same time delivered to the indorsee the mortgage, but made no assignment of it in writing, it was held that the transfer of the note being in writing, the mere delivery of the mortgage security was a sufficient assignment. The debt is the principal, and the security the incident ; and the as- signment of the principal draws after it the incident. 1 In like manner, no doubt, the pledgee may assign the debt for which he holds a security in pledge, and transfer by actual delivery his interest in the goods bailed ; so that the purchaser will acquire precisely the rights which he pos- sessed, subject to the same obligations. 2 Requisites of the Contract. It is of course necessary that the person making a pledge of goods as security for a debt should own them, or at least have the authority to deposit them in pledge. The contract of bailment passes a certain interest or special property in the goods to the pawnee ; and the pawnor impliedly stipu- lates that he possesses the right which he assumes to transfer. To the extent of the interest which he undertakes to convey, he in fact warrants his title as much as does the vendor on an absolute sale. 3 If he undertake to pledge property that belongs to another, without his consent, he cannot afterwards, so long as the owner refrains from claiming it, seek to have it restored until his debt is discharged. So, too, though he is not the owner at the time the pledge is made, if he subse- quently acquire the property, by what title soever, his own- ership will be deemed to relate back to the time of the con- tract, and the pledge will stand good. 4 The right of the true owner will not be affected by the pledge, made without his authority, except, perhaps, in the case of negotiable paper, the possession of which is evidence of title ; but the person making the pledge will not be permitted to assert his own 1 Pattison T. Hull, 9 Cowen R, 747, and 1 John. R, 681. 1 Kemp v. Westbrook, 1 Vesej, 178 ; Ratcliff v. Vance, 2 Const Rep. S. C., 289. 1 Rew v. Barber, 8 Cowen R, 272 ; Defreeze v. Trumper, ; John. R, 274. * Code of Louisiana, art 3109 to 8114. PLEDGES OR PAWNS. 193 want of title. 1 The civil and common law agree in holding that an implied warranty is annexed to every sale of per- sonal chattels in respect to the title of the vendor ; and the reason of the rule certainly applies to the case where there is a transfer of a special or qualified property. 2 As we have already seen, the contract of pledge is com- pleted by an actual delivery of the thing pledged. 3 It fol- lows that property in expectancy cannot be the subject of the contract, nor any other interest which is incapable of being delivered. 4 The debtor may give in pledge whatever things belong to him in present posession. But in regard to those things in which he has a property which may be di- vested, or which is subject to incumbrance, he cannot confer on the creditor, by the pledge, any further rights than he had himself. He pawns the interest which he possesses, subject to the superior right of the incumbrancer, or person who owns the reversionary interest in the subject of the bailment. 5 There is an exception in favor of bills of exchange and negotiable notes. Thus, if A deposit bills indors- ed in blank with B, his banker, to be received when due, and the latter raises money on them, by placing them with C, and afterwards becomes bankrupt, A cannot maintain tro- ver against C for the bills. 6 In respect to negotiable paper, Chief Justice Eyre, in Collins v. Martin, says : " For the pur- pose of rendering bills of exchange negotiable, the right of property in them passes with the bills. Every holder, with the bills takes the property, and his title is stamped on the bills themselves. The property and the possession are in- separable. This was necessary to render them negotiable ; and in this respect they differ essentially from goods, of which the property and possession may be in different per- sons. The property passing with the possession, it is admit- 1 Jarvis v. Rogers, 13 Mass. R., 105; 1 Dane Abr., ch. 17, art 4, 7, 8. * Black. Cornm., 451 ; 1 John. R., 275. 8 2 Caine's Cases in Error, 200. * Code of Louisiana, art 3103. 8 Hoar v. Parker, 2 Term R., 376; 4 Camp. R., 121 ; McCombie v. Davies, 7 East R., 5. 6 Collins v. Martin, 1 Bos. and Pull., 648. 13 194 LAW OF BAILMENTS. ted that a banker, who receives indorsed bills from his customer, to be got when due and carried to his account, may discount or sell them ; why may he not pledge them ? Either is a breach of confidence reposed in him, and he may sell, because the property has been intrusted to him ; and he may pledge for the same reason ; for he who has the property has a disposing power, and the law has not limited it to be used in any particular manner." In the case of Coddington v. Bay, 1 it was adjudged, on a lengthened review of the authorities, that a person receiving notes or negotiable paper, in the usual course of trade for a fair and valuable consideration, from an agent or factor, having no authority to transfer them, but without knowledge of that fact, or notice of the fraud, may hold them against the true owner ; but that he cannot so hold negotiable paper, simply received by him as security against responsi- bilities previously incurred. In order to give the bailee or person receiving them the right to hold them as against the true owner, it must be made to appear that he received them for a present consideration ; in other words, that he parted with value for them, gave some new credit, sold property, accepted bills or advanced money for them, in 'the usual course of trade. 2 In the case under consideration, the agent received notes to be remitted to his principal, and passed them over to the defendant as a security against responsi- bilities previously assumed by him as the agent's indorser, and the defendant had no knowledge that the notes belonged to the plaintiff; but it was held that the notes, not being received in the usual course of trade, nor for a present con- sideration, the defendant was not entitled to hold them against the true owner. 3 If, on the other hand, the pledgee receive negotiable notes bona fide in the way of business, 1 Coddington v. Bay, 20 John. R., 637. This case was argued by Messrs. Van Buren, Jones and Emmet in the Court of 'Errors in 1822, and the opinions were delivered by Chief Justice Spencer, Mr. Justice Woodworth, and Senator Vielie. Negotiable notes come under the general notion of currency and are transferable by delivery ; 20 Wend. R., 277. 1 Buller v. Harrison, Cowp., 665; Clark v. Shee, Cowp., 197, 200, 1 Colt v. Lesnier, 9 Co wen R., 820; Warner v. Beardsley, 8 Wend. R,, 194. PLEDGES OR PAWNS. 195 and give money or property in exchange for them, he may vindicate his title against the world. 1 A debt contracted at the time and on the faith of the notes received in pledge, will confer upon the pledgee the right to retain them as a collateral security. But'the general principle, undoubtedly, is that the person making the pledge can convey to the pledgee no greater interest in the thing pledged than he himself possesses. If he have only a lien upon the goods bailed, he may pledge that and nothing more without the consent of the owner.* For instance, a factor may deliver the possession of goods, on which he has a lien, to a third person, with notice of the lien, and with a declaration that the transfer is to such per- son as agent of the factor and for his benefit ; but he can- not pledge his principal's goods. 3 A lien is defined to be, the right of one man to retain property in his possession belonging to another, until certain demands of the party in possession are satisfied. 4 But the possession thus essential to the lien need not always be the direct and actual posses- sion of the party ; that of his agent, servant or the keeper of a warehouse acting under his authority is also his own, for this as for many other legal purposes. As between the parties to the contract out of which the lien arises, and third persons acquiring rights to the property, a surrender of the possession is a surrender of the lien. 5 But the lien of the master of a vessel on a cargo for freight and charges, may be assigned or delivered in pledge. 6 The rule is, that a lien is a personal right and cannot be assigned, 7 though the party having a lien upon goods 1 Miller v. Race, 1 Burr. R., 452; Grant v. Vaughan, 3 Burr. R,, 1526; Pea- cock v. Rhodes, Doug. R., 633; Lawaon v. Weston, 4 Esp. N. P., Rep., 56 ; Bank of St. Albans v. Gilliland, 23 Wend. R,, 311; Rogers v. Morton, 12 Wend. R., 484; 14 Wend. R,, 575. * Story on Bailm., 291, 295; 1 Bell Comm., 412, 4th ed. * Lanssat v. Lippincott, 6 Serg. and Rawle., 386 ; Urquart v. Mclver, 4 John. R., 103. * Hammond v. Barclay, 2 East, 235, 6 McFarland v. Wheeler, 26 Wend. R., 467. * Everett v. Coffin, 6 Wend. R., 601. 7 5 Term R., 606. 196 LAW OF BAILMENTS. may transfer the possession subject to the lien to a third person, who may lawfully hold the property until the lien is paid ; but if the transferee sell the goods, the owner is remitted to his original rights, freed fcom the lien and may bring trover for them. 1 So too, the pawnee may assign hia interest, without destroying the original lien, or giving the pawnor a right to reclaim on any other terms than he might before such assignment. 2 So also it has been held, that where the purchaser of personal property delivers it as security to the person who becomes his surety for the pur- chase money, and he permits the purchaser to use it, this does not destroy the right of the surety to resume the pos- session of the property for his indemnification. 3 A delivery is, as we have already mentioned, essential to complete the contract of pledge. 4 In this the pledge differs from a mortgage of goods, which in certain cases is valid without delivery. Where, however, an actual delivery is impracticable, as where logs in a boom are pledged, and shown to the pawnee at the time, the pledge is as effectual as in the case of an actual delivery of property capable of personal possession. 5 Though the mortgagor of goods may sometimes retain possession of them, it seems, he must first deliver them to the mortgagee in order to render the mort- gage valid against the creditors of the mortgagor. 6 A de- livery and a complete transfer of the title to goods, with a condition of defeasance on the payment of a sum named, be- comes an absolute title at law in the mortgagee as soon as the condition is forfeited ; 7 but the failure of the pledgee to redeem at the time stipulated, does not work a change of 1 Naah v. Mosher, 19 Wend. R., 481. * 15 Mass. R., 408; Bullard v. Billings, 2 Verm., 809; Macomber v. Parker, 14 Pick. R., 497 ; Hunt v. Holton, 18 Pick. R., 216. 1 Ferguson v. Union Furnace Company, 9 Wend. 345; Hall v. Tuttle, 8, Wend. R., 881. 4 Cortelyou v. Lansing, 2 Caines' Cas. in Er., 200 ; Gleason v. Drew, 9 Greenl. 82 ; Barrow v. Paxton, 5 John. R., 259 ; Brown v. Bement, 8 John. R., 97. * Jewett v. Warren, 12 Mass. R., 800. * 5 John. R, 259; Carrington v. Smith, 8 Pick, R., 419, and Bonsey v. Amee, id., 287; Butter-field T. Baker, 5 Kick. R., 625; Gale v. Ward, 14 Mass. R., 852. 7 8 John. R., 97. PLEDGES OR PAWNS. 197 the title. Comyns, who is of himself a great authority, says that if a man pledge goods for money lent, he may redeem though he does not come at the day ; and the prac- tice has since become familiar. 1 Possession must uniformly accompany the pledge; the right' of the pledgee cannot otherwise be consummated. On this ground it has been doubted whether incorporeal things, like debts, money in stocks, &c., which cannot be manually delivered, were the proper subjects of a pledge ; it is now held that they are so ; and there seems to be no reason why any legal or equitable interest whatever in per- sonal property may not be pledged ; provided the interest can be put, by actual delivery or by written transfer, into the hands or within the power of the pledgee, so as to be made available to him for the satisfaction of the debt. Goods at sea may be passed in pledge by a transfer of the muniments of title, as by a written assignment of the bill of lading, just as debts and choses in action may be conveyed in pledge by a written assignment ; for this is equivalent to actual pos- session, since it is a delivery of the means of obtaining possession. 2 Though the general rule is, that where goods and movable chattels are transferred as security for the payment of a debt, with a stipulation that they may be redeemed within a given time, the transaction will be regarded as a mortgage ; there may, it is held, be a pledge of stock, or choses in action, where the title passes. 3 On account of the incorporeal nature of the property, it is not capable of manual delivery. The delivery of the scrip or certificate of stock does not carry with it the stockholder's interest in the corporate funds, nor necessarily put that interest under the control of the pledgee. And hence the transfer of the title, being necessary to the change of possession, is entirely consistent with the pledge of the property ; especially where by the terms of the contract, the debtor has a legal right to the restoration 1 Dig., tit. Mortgage by Pledge of Goods, b. ; 2 Games' Gas. in Er., 200. 8 Story on Bailm., 290, 297; Wilson v. Little, 2 Comsk R., 443. 9 Allen v. Dykers, 3 Hill R., 593, and 7 Hill R., 497 ; 2 Comst. R., 443. 198 LAW OF BAILMENTS. of the pledge on payment of the debt, at any time before the creditor has exercised the power of sale given to him. There being a written contract, it will be construed fairly, so as to carry into effect the manifest intention of the parties to it. 1 And where there was a note given for the debt, reci- ting a deposit of stock as collateral security, executed con- currently with the transfer of the title to the stock, it was held that both should be construed together so as to limit and qualify the nature of the transfer. No time of payment being agreed upon in the note given for the money borrowed, it is payable on demand ; and though there be an authority to sell the stock without notice, this will not be construed to be a waiver of the demand for payment. There is in every contract of pledge a right of redemption on the part of the debtor, and where no time is fixed by the parties for the payment of the debt secured by a pledge, the pawnee cannot sell the pledge with- out a previous demand of payment, although the debt is technically due immediately. 2 Neither can the pledgee, where the contract of pledge does not expressly authorize the sale, sell the goods pledged without notice to the pledger, even after the debt becomes due. The sale can only be made on reasonable notice to the debtor to redeem ; 3 and if made without notice, the pledgee will be liable for the full value of the property pledged. 4 The debtor deposits his goods as a security for the payment of his debt and retains the title to them in himself, and the law will not permit him to be divested of his property, except upon reasonable notice, to the end that he may redeem or see to it that the pledge is sold for a fair price. 1 Reevw v. Cappen, 6 Bing. N. C., 142; Glark v. Pinney, 7 Cowen R, 681 ; West v. Wentworth, 8 Cowen R, 82 ; Commercial Bank v. Kortright, 22 Wend. R, 348 ; Fisher v.JPrince, 3 Burr., 1363 ; Greening v. Wilkinson, 1 Car. and Payne, 25; Harrison r. Harrison, id., 412. * Stearns v. Marsh, 4 Denio R, 227 ; Story on Bailro., 308. * Tucker v. Wilson, 1 P. Wms., 261 ; Lockwood v. Ewer, 2 Atk., 303 ; Parker v. Branker, 22 Pick., 40; Hart v.Ten Eyck, 2 John., ch. 100; Patchin v. Pierce, 12 Wend. R, 61 ; Garlick v. James, 12 John. R, 146. 4 McLean v. Walker, 10 John. R, 472, and 4 Denio R, 227. PLEDGES OR PAWNS. 199 If the principal obligation be conditional, that of the pledge is confirmed or extinguished with it. 1 If the obliga- tion be null, so also is the pledge; for the pledge is a security collateral to the original undertaking ; so that a discharge of the latter is a redemption of the pledge, by which the absolute property therein vests in the pawnor. 2 The pawnee impliedly stipulates that he will take ordi- nary care of the goods pledged. Since the bailment is bene- ficial to the pawnee 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 requisite for the person to whom a gage or pledge is bailed, to take ordinary care of it ; and he must consequently be responsible for ordinary neglect. 3 This was the rule laid down by Bracton, who has been pro- nounced one of the best of our juridical classics, and who was a great common lawyer, notwithstanding he copied this principle and many others from Justinian almost word for word. Lord Holt held the same doctrine, and it has been uniformly enforced at common law. 4 The obligation of the pawnee to preserve the property, is equal to that of the person who has it in his custody on a bailment for hire. 5 But the hirer for use, manifestly has a liberty in the using of the property which is not granted to the pawnee. If the goods pledged be such as will be the worse for using, the pawnee must not use them ; but he may use so as not to injure them, being responsible for the perils to which they are subjected in consequence of the use to which they are applied. 6 The purpose of the bailment is to secure the bailee the payment of his debt ; and hence he may not use the thing pledged without the consent of the owner, either ex- pressly given or at least strongly presumed ; 7 and this pre- sumption varies, as the thing is likely to be better, or worse, or not at all affected, by usage. 8 1 Code of Louisiana, art. 3104. * Jones on Bailm., 120. 9 Elliot v. Armstrong, 2 Blackf. R., 198. ' 2 Ld. Raym., 909. 1 Bract, 99, b. ; Jones on Bailm., 75, 76. 7 Jones on Bailm., 80. 4 Coggs v. Bernard, 2 Ld. Raym., 909. * Story on Bailm., 829 to 332. 200 LAW OF BAILMENTS. On payment of the debt for which the pledge is deposited in security, the pledgee is bound to redeliver the goods bailed ; he cannot retain them for any other debt than that for which they were specifically given. 1 By a payment, or a tender of the amount of the debt secured, the pawnor acquires an immediate and absolute right of property in the pawn. 2 When a chattel, such as a watch, is delivered in pledge for a loan of money to be advanced, and the party receiving it fails to advance the money and refuses to redeliver the watch, he is guilty of an act of conversion, for which an action in the nature of trover will lie. If the owner after- wards sells the watch, and the purchaser brings an action of trover for the chattel, he is bound to show an act of con- version after the sale to him. The contract of loan not having been executed, the owner had an immediate right of action for the refusal to redeliver ; but a sale of the pro- perty so situated does not transfer his right of action, so as to enable the purchaser to bring the action in the nature of trover in his own name, grounded on the previous conver- sion. 3 A right of action founded on a tort is not assignable. 4 The sale of the property conveys the title, but does not transfer previous rights of action arising out of transactions connected with the property, or with the custody of it. Even a right of action arising out of contract, connected with the safe keeping of the property, does not pass under a simple conveyance of the title to it. The contract may be assigned, so as to carry with it a right of action arising thereon ; but a right of action already existing, which has grown out of a tort and is in the form of an action of tort cannot be transferred. 5 1 Jarvia v. Rogers, 16 Mass. R., 389 ; Gilliat v. Lynch, 2 Leigh, 493. * McLean v. Walker, 10 John R., 471; Elliot v. Armstrong, 2 Blackt, 198. ' Hall v. Robinson, 2 Comst R., 293; see also, Gardner T. Adams, 12 Wend. R., 297 ; and The Brig Sarah Ann, 2 Sumn. R., 206, 211. 4 Code of Procedure, 111; 12 Wend. R., 297 ; Thunnan v. Wlls, 18 Barb. & C. R., 600. ' 18 Barb. R., 610, 14, 16. , PLEDGES OK PAWNS. 201 What Property in the Pledgor and Pledgee. The general property in chattels bailed under the contract of pledge, remains in the bailor, and only a special property in them passes to the bailee. 1 The bailor retains the title, and a right to redeem by discharging the original debt or obligation ; and the bailee acquires the possession, with a right to detain the goods until his debt is paid. But the non-payment of the debt, even after it is due, does not work a forfeiture of the pledge ; the title remains in the pledger until it is legally divested, either by a foreclosure in equity or by a sale on due notice. Before giving such notice, the pledgee has no right to sell ; and if he do so, the pledger may recover the value of the pledge from him) without tendering the debt ; because by the wrongful sale the pledgee has incapacitated himself to perform his part of the contract, that is, to return the pledge, and it would there- fore be nugatory to make the tender. 2 The mortgage of goods, .with a stipulation that the mort- gagor may redeem them by the payment of a sum named on a given day, is a very different contract. Here the title passes, and the mortgagor reserves only a naked right of redemption within the period agreed upon. As soon as that is passed, the right of the mortgagee becomes abso- lute. 3 Where there is a bill of sale of goods, executed and delivered as a security for money to become due, it is a mortgage and not a technical pledge ; and the right of re- demption does not continue beyond the default made in payment. 4 The law does not permit a forfeiture of the pledge, for the reason that the pawn is in no respect an estate resting upon condition. Some of the earlier cases, which are reviewed at length in the case of Cortelyou v. Lansing, seem to have countenanced the idea that by a failure to redeem, the pledge 1 Garlick v. James, 12 John. R., 147. * Stearns v. Marsh, 4 Denio R., 227 ; Cortelyou v. Lansing, 2 Gained Cases in Error, 200. Ackley v. Finch, 7 Cowen R., 290; Brown v. Bement, 8 John. R., 97. * Barrow v. Paxton, 5 John. R., 259; 8 John. R., 97. 202 LAW OF BAILMENTS. became forfeited ; ' but all the recent decisions hold the con- trary doctrine, 2 and that the right to redeem continues in the pledger until it is legally foreclosed. By the lex com- missoria at Rome, it .was lawful for the creditor and debtor to agree that if the debtor did not pay at the day, the pledge should become the absolute property of the creditor. But a law of Constantine, contained in the code, abolished this* as oppressive, and, with marks of indignation, declared that the memory of the former law ought to be abolished to all posterity. 3 The Roman law did not allow a pledge to be sold by the creditor, but upon notice to the debtor, and the allowance of a year's redemption. And as this was not sufficiently observed, Justinian regulated the method of fore- closure by a particular ordinance, by which two years' notice or two years after a judicial sentence was allowed to the debtor. Under other codes a longer or shorter time of re- demption is given, and different modes of foreclosure are prescribed ; but Chancellor Kent asserts the belief that there is no country .at present, "unless it be England, that allows a pledge to be sold but in pursuance of a judicial sentence. 4 With us, where the foreclosure does not take place in equity, a sale on notice to the debtor is allowed to take its place. 6 The rights of the parties in the goods pledged are not changed by the death of either of them, but descend to their representatives. This was held in one of the earliest cases reported, in an action of trover. 6 The special verdict stated that the plaintiff had pawned a hat-band, set with jewels, unto one Whitlock, a goldsmith, for twenty-five pounds, and no day was set to redeem. The pawnee on his death-bed delivered the pledge to the defendant, with a request to keep it till the money was paid, and then to deliver it to the plaintiff. The pawnee then died, and the 2 Caines' Cases in Error, 200. 2 Kent's Comm., 681, 582; Stearns v. Marsh, 4 Penio R., 227. 2 Caines' Cases in Error, 209. 2 Caines' Cases in Error, 213. 4 Denio R., 227. Sir John Ratcliffe v. Davis, 8 Jac. I in K. I). PLEDGES OR PAWNS. 203 plaintiff tendered the debt to his executor, who refused to receive the money, and then applied to the defendant and after a demand and refusal brought his suit. The court gave judgment for the plaintiff; and of course decided all the points arising out of the verdict, which were, that the tender to the executor was well made ; that by the tender and refusal the special property revested in the plaintiff; that the general property had been constantly in him ; that the death of the pawnee did not destroy the right of re- demption ; that the refusal by the defendant after tender to the executor, was a conversion, and that the defendant had only the bare custody of the pawn. In delivering the opin- ion in jthis case the court observe, extrajudicially, that if the time be limited to redeem, the death of either party, pre- vious to that time, could not prejudice the right ; but that if no time was limited, the pawnor had his whole life, and if he died before he redeemed, the right was gone, and his executors could not redeem. But it is now well settled that on the deposit of a pledge, where no day of redemption is limited, the right of redemp- tion descends to the personal representatives of the pawnor ; if the pawnee sell the pledge without notice before appli- cation to redeem, he is answerable for the value of the pledge at the time of the application, and it is not neces- sary in such case to make an actual tender of the balance due. 1 There is, indeed, absolutely no reason why the death of either party to the contract should affect the right of redemption, 2 or prevent it from descending entire and unim- paired to the representative of the pawnor. The pledgee can acquire no right of property in the goods bailed by pre- scription, and the mere lapse of time confers upon him no new right of any kind. The fact that the title to incorporeal property deposited in pledge, is transferred to the pawnee, does not convert the pledge into a mortgage, where it appears affirmatively that the transfer was made as a pledge. 3 This was distinctly 1 2 Games' Cases in Error, 200. * Wilson T. Little, 2 ComsL, 443. * Str., 919. 204 LAW OP BAILMENTS. adjudged in Wilson v. Little, which was an action for wrong- fully selling fifty shares of Erie railroad stock that had been deposited as a security for the payment of a loan of two thousand dollars. Though the title was actually trans- ferred, it was held a pledge of stock, the transfer and the note, reciting the deposit as collateral security, being con- strued together as constituting one agreement. 1 On an ordi- nary loan of a certain number of shares of stock, one share being just as good as another, it would only be necessary to return the same amount of stock in kind. The loan in such a case is in substance a sale, to be repaid in kind and quantity, and the title to the stock loaned is immediately transferred to the borrower ; whereas upon the loan of spe- cific articles to be returned in specie, the title remains in the lender,' and the borrower is only entitled to the temporary use thereof. 2 But such articles as are capable of being esti- mated generally by weight, number or measure, do not, when deposited as a pledge, become the property of the pledgee, as they do upon a loan of them ; for the pledge is not for use, but merely as a security. If the pledgee, there- fore, sells the pledge without authority, it is a violation of his trust, although he afterwards purchases other articles of the same kind and value, to be returned to the pledgor ; unless there is some agreement, either express or implied, between the parties, that he shall be permitted to do so. 3 At common law, goods pawned or pledged, are not liable to be taken in execution in an action against the pledgor. 4 The possession of the pledgee could not be disturbed, be- cause the officer could acquire no greater interest in, or con- trol over the property than that possessed by the defendant, against whom he held the process of the court. And as public sales of personal property, not within the view of 1 Allen v. Dykers, 8 Hill R., 693; 7 Hill R., 497. 1 8 Ersk. Inst, tit 1, 18. 1 Per Chancellor Walworth, in Dykers v. Allen ; and Nourse V. Prime, 4 John. Ch. Rep., 490. 4 . Wilkea v. Ferris, 5 John. R., 886 ; Marah v. Lawrence, 4 Cowen R., 461 ; Badlam v. Tucker, 1 Pick., 889 ; Pomeroy v. Smith, 17 Pick., 85 ; Scott v. Sho- ley, 8 East, 467 ; Metcalf v. Scholey, 5 Boa. and Pull, 461. PLEDGES OK PAWNS. 205 the bidders at the sale, were declared void by judicial deci- sions, on the plainest grounds of public policy, it became extremely difficult to sell even the pledger's interest in the property on execution. 1 Where the property was so situated that it could be brought within the view of the bidders, it seems, property in the nature of a pledge might be sold on execution, but not so as to defeat the interest of the pledgee. 8 The interest of the bailor could be sold, but the possession of the bailee having a lien or special property in the goods levied upon, could not be disturbed ; there could be, in fact, no taking or actual seizure under the execution. 3 Hence it frequently happened that the pledging, of many kinds of personal property, operated to place them beyond the reach of an execution ; and this induced the passage of the statute in this state, authorizing a sale of the pledger's right or in- terest in the goods or chattels pledged for the payment of money, or for the performance of any contract or agree- ment. 4 Under this statute the question- was seriously litigated whether the sheriff, holding an execution against a pledgor, may by virtue thereof take the property pledged out of the hands of the pledgee into his own possession, for the pur- pose of selling the interest of the pledgor therein. And it was held, first, that the right and interest of the pledgor cannot be sold on execution unless the goods be present and within the view of those attending the sale ; 5 that for the purpose of the sale the sheriff may under this statute seize and detain the goods in the same manner as if they were not under pledge, but that he must sell them subject to the lien of the pledgee ; and that after the sale, he must hold them in the custody of the law to await a redemption by the pur- chaser. If not redeemed presently, the sheriff must then 1 Linnendoll v. Doe and Terhune, 14 John. R., 222 ; Sheldon v. Soper, id., 352 ; Cresson v. Stout, 17 John. R., 116. * Moore v. Hitchcock, 4 Wend. R., 292; Wheeler T. McFarland, 10 Wend. R., 818. 3 Reynolds v. Shvder, 5jCowen R.,.323 ; 7 CowenR., 735 and 670. 4 Bailey v. Burton, 8 Wend. R., 339 ; 2 R. S. p. 464, 3d ed. j * Blackwell v. Ellsworth, 6 Hill R., 484; Franklin's case, 5 Rep., 47. 206 LAW OP BAILMENTS. deliver them again into the custody of the pledgee, to whom the purchaser must look for them. The effect of such a sale under the statute is to vest in the purchaser the precise right and interest of the pledger. Afterwards the purchaser may of course redeem upon the same terms. The twentieth section of the statute in question, author- izes the sale of the right and interest of the pledger in the goods pledged, on execution ; the twenty-first section de- clares that no sale of any goods and chattels shall be made by virtue of any execution unless a previous notice is given of the time and place where the sale is to be had ; and the twenty-third section provides that no personal property shall be exposed for sale unless the same be present and within the view of those attending such sale. The mode of sale is here so regulated by the statute as to require the officer to have the custody and control of the property sold. He must advertise the time and place of sale, and he must have the property there, within the view of all persons attending the sale ; and for this purpose he may levy upon and take the property pledged out of the hands of the pledgee into his own possession, 1 but he must sell subject to the rights and interest of the pledgee, under the terms and conditions of the pledge. It was argued in Stief v. Hart, that although the sheriff was authorized under the twentieth section to sell the right and interest of the pledger on execution against him, yet the statute had not conferred any authority on him to seize and take into his possession the goods in the hands of the pledgee, preparatory to such sale ; that he should sell without interfering with the possession of the pledgee ; and that the term personal property, used in the twenty-third sec- tion, did not include the right and interest mentioned in the twentieth section ; from which it was claimed, the conclusion arose that the sheriff might legally and properly sell such right and interest of the pledger, without having the pro- perty present and within the view of the persons attending the sale. But the court held otherwise, construing the term 1 Stief T. Hart 1 Comet R., 20. PLEDGES OR PAWNS. 207 personal property as synonymous with the words right and in- terest, as they are used in these sections, 1 and thus holding that the goods pledged must he present at the time and place of sale ; and that to accomplish a sale in the pre- scribed manner, the sheriff has a right, by necessary impli- cation, to take and hold the goods preparatory to a sale of the right and interest of the pledger therein. 2 Without such a right of seizure in the sheriff, it was maintained that it would depend entirely upon the mere volition of the pledgee to produce the property at the time and place of sale, or to remove it from public inspection, thereby permitting or de- feating the sale at his pleasure; an absurdity not to be ascribed to the legislature in framing the statute. It is to be noticed that the effect of a sale on an execu- tion against the pledgor, is not in any respect to vary the terms of the contract of pledge. If the pledge be made to secure the payment of a sum of money to fall due at some future time, or to secure the pledgee against a conditional liability that may or may not accrue against him, and which cannot be determined at the time of the sale, it is manifest that the goods pledged must abide the terms of the contract under which the pledgee holds them. The purchaser's right of redemption is the same exactly, and dependent upon the same terms and conditions as that of the pledger. 3 He is entitled to possession of the goods, on complying with the terms and conditions of the pledge ; and when these cannot be complied with until some future event has occurred, the pledge must of course be redelivered into the hands of the pledgee. 1 6 Hill R., 484. * 1 Comst. R, 20 ; Stief brought replevin against Hart, sheriff, for a quantity of goods which defendant had levied upon and taken on execution ; on the trial it appeared that the plaintiff held them in pledge, and that the sheriff took the goods from his custody on an execution against the pledgor; and the circuit judge charged the jury that the sheriff had a right so to take the property into his possession in order to sell the pledger's interest therein. Plaintiff excepted, and moved the supreme court for a new trial ; the motion was denied, and the court of appeals affirmed the judgment of the supreme court by a vote of four to four. 1 6 Hill R., 484 ; 2 R. S., 464, 20, 3d ed. 208 LAW OP BAILMENTS. The decision in Stief v. Hart, concedes to the officer rights over the pledged chattels which the defendant in the execu- tion could not exercise ; the officer charged with an execution against the pledger, levies upon and seizes the goods, at a time when the pledger has not the possession, nor any right of control over them; but this is justified on the ground of public policy. To prevent frauds, it is necessary that sales of personal property should be made publicly, and in such a manner that the articles, offered for sale, may be inspected. 1 There are also other cases, in which the law clothes the officer with rights superior to those of the defendant in the execution ; where one of two partners has the actual pos- session of the partnership property, under an execution against the other partner out of possession, the officer is armed with an authority which that partner has not, namely, the authority to seize the partnership goods in the hands of the other partner, and to use force, if necessary, to take them into his custody ; and that not merely for the tempo- rary purpose of affecting a sale and then restoring the pos- session, as in the case of goods pledged ; but the sheriff is authorized to deliver the possession to the purchaser, thus putting it beyond the reach of him from whom he took it. 2 So, the sheriff may enter the premises of a stranger against his will to take the goods of the debtor which happen to be there, although the debtor himself would be a trespasser in doing so. In these cases the sheriff is justified, because he could not otherwise satisfy the exigency of the writ, to do which he is clothed with the requisite authority and bound by his duty. When the law authorizes an act, it authorizes what is necessary to accomplish it, 3 presuming that its min- isterial officer will act discreetly and so as not unnecessarily to interfere with or disturb the rights of other parties. 1 14 John R, 222 and 852; 17 John R., 116. * Phillips v. Cook, 24 Wend. R., 389; Melville v. Brown, 15 Mass. R., 82; Waddell v. Cook, 2 Hill R., 47 ; Mewereau v. Norton, 15 John R., 179. A sale in such cases conveys only the interest of the defendant in the execution, so that the purchaser becomes a tenant in common with the other partner. 1 Williams v. Amory, 14 Mass. R., 27. PLEDGES OR PAWNS. 209 Personal property pledged by way of a mortgage, may, after forfeiture, be levied upon by virtue of an execution against the mortgagee, although it remains in the hands of the mortgagor. 1 A mere chose in action cannot be levied upon and sold on execution. 2 Bonds, notes, shares of stock and property of that nature, cannot be seized a'nd taken in execution by the sheriff; 3 neither can a mere equity in the proceeds of personal property be sold on execution. 4 But when the mortgagor of a chattel has a right to redeem and a right to the possession for a definite period before the property can become forfeited, he has such an interest as may be sold on execution. The purchaser in such cases takes the property subject to the incumbrance ; he purchases the right of the mortgagor, which is a right to the possession and absolute ownership, subject to the incumbrance ; but if the mortgage at the time of the sale on execution has been forfeited, the mortgagor has no longer the right of posses- sion ; all the right he then possesses is an equity, which cannot be thus sold. 5 So where it is a condition in a lease of personal property that the lessee shall keep it upon par- ticular premises and not remove it therefrom, a removal of such property by the lessee operates as a forfeiture of the term and divests his title, so that no interest in the property removed remains in him that can be sold on execution ; be- cause by the forfeiture the title is vested in the lessor with the right of immediate possession. 6 The established principle is that a person in possession of a chattel, having a right to such possession for a specific time, has an interest which may be sold ; and when that interest expires the owner is entitled to his goods and may bring an action for them. Ferguson v. Lee, 9 Wend. R., 258; see also 4 Denio R., 171. Ingalls v. Lord, 1 Cowen R., 240. Denton v. Livingston, 9 John R., 97. Hendricks v. Robinson, 2 John, eh. R., 296. Bailey v. Burton, 8 Wend. R., 339 ; Marsh v. Lawrence, 4 Cowen R., 461 ; Otis v. Wood, 3 Wend. R.. 500. * 3 Wend. R., 498 ; in McCracken v. Luce, not reported, it was held, that a mortgagor of a canal boat, in possession and having the right of possession for a certain time, had an interest which was the subject of sale on execution. 14 210 LAW OF BAILMENTS. The officer sells only the interest of the party in possession ; and even though he assumes to sell the absolute property in the goods, the purchaser will acquire no greater rights in them than that possessed by the defendant in the execution. 1 The general rule is that liens at law on personal property exist only in cases where the party entitled to them has the possession of the goods : and if he once part with the posses- sion after the lien attaches, the lien is gone. 2 Being in the nature of a security resting on property for the payment of a debt, the pledgee's lien cannot be separated either from the possession of the goods, or from the debt : it is collate- ral to the debt, and it must accompany the possession. His interest may be transferred ; it will pass at his death to his personal representative, or he may, it seems, assign over his interest in the pawn so that the assignee will take his rights and responsibilities under the contract of pledge. 3 In a bailment by way of a loan for use, the borrower cannot convey his interest in the trust; 4 because his contract is essentially personal, involving a trust which is not assignable. But the contract of pledge is by no means so strictly per- sonal ; and the trust reposed in the pledgee does not demand his personal oversight. 5 From the decisions, it appears, that the pawnee may deliver the goods to a stranger without consideration : or he may sell and assign all his interest ab- solutely : or he may assign it conditionally by way of pawn ; without, in either case, destroying his lien or giving to the owner a right to reclaim on any other or better terms than he could have done before such delivery or assignment. 6 But it is evident that the pawnee's interest is such that it cannot he reached and sold on an execution against him ; for his lien appertains to the debt, for which he holds the pledge as a security ; and even his debt is but a chose in 1 Van Antwerp v. Newman, 2 Cowen R,, 643. Lickbarrow v. Mason, 6 East, 27. 2 Kent's Comm., 679; Story on Bailm., 824; 2 Caines' Gas. in Er., 210. Hasbrook v. Vandevoort, 4 Sand. R., 74 ; 2 Kent's Comm., 674. Ingersoll Y. Von Bokkelin, 7 Cowen R., 670. Jar vis v. Rogers, 16 Mass. R., 408 ; Ratal iffe v. Davis, 1 Buls., 29; More v. Conham, Owen, 123 ; Whitaker v. Stunner, 20 Pick, 899, 406. PLEDGES OR PAWNS. 211 action which cannot be levied upon. 1 As his lien cannot be severed from the debt, so that the chose in action may be owned by one man and the lien held by another, it is plain that a transfer by the pledgee of all his interest in the pawn, in order to be available in the hands of the assignee, must carry with it the original debt ; for the lien is not a distinct and independent right of property capable of being transferred or assigned. 2 The party having a lien upon goods may, however, transfer the possession subject to the lien to a third person, who may lawfully hold the property until the lien be paid. The lien is a personal right and cannot be sepa- rately assigned ; 3 but the goods and the lien may be passed over as a mere security to another for a debt, and the lien be preserved. 4 If the pawnee voluntarily surrender the possession of the pawn, by delivering it back to the pawnor, his lien will be thereby terminated. 5 Not so if the pawn be delivered back to the owner for a temporary purpose only, on an agree- ment that it shall be restored ; for in this case the pledgee may recover it against the owner, if he refuse to restore it after the temporary purpose is fulfilled. 6 So, if it be de- livered back to tne owner, in a new character, as for example, as a special bailee or agent. IJere the pledgee will be still entitled to the pledge, not only as against the owner, but also as against third persons. 7 Where the pledgee of a bond delivers it to the pledger, for a particular purpose, as to be exchanged for stock, and to return the latter, and the pledger converts the bond to his own use, the pledgee has a right of action to recover 1 1 Cowen R., 240 ; 9 John R-, 97 ; 2 John. Ch. R., 296. * 5 T. R, 606 ; but see Saul v. Cruger, 9 How. Pr. R., 569, which holds the pledgee's interest may be sold on execution, so as to convey his right of posses- sion. 1 Danbigny v.- Dnval, 6 T. R., 604. 4 M'Combie v. Davies, 7 East, 7 ; 7 Cowen R., 680 ; Nash v. Mosher, 19 Wend. R., 431. 6 Homer v. Crane, 2 Pick., 607 ; Jarvis v. Rogers, 15 Mass., 889. Roberts v. Hyatt, 2 Taunt, 266 ; Story on Bailm., 299. 7 Macomber v. Parker, 14 Pick., 497. 212 LAW OF BAILMENTS. for the bond ; and the measure of damages in such a case is the value of the bond, with interest from the time of the conversion, unless such amount exceeds the sum due to the pledgee ; in which case, that sum is the proper measure of damages. 1 In this action it is no defence that the pledgee wrongfully sold other securities which he held for the same debt ; and a notice to produce the bond at the trial is not necessary to enable the plaintiff to give parol evidence of its contents ; for the action is notice. 2 In an action of trover for a promissory note, the note being shown to be in the possession of the defendant, or under his control, it is held that the bringing of the suit is a sufficient notice to produce the note alleged to have been converted. 3 The rule in respect to the notice required to produce the instrument in such cases, is well expressed by Mr. Justice Le Blanc: "When the contents of a written itstrument may be proved as evidence in a cause, and it is uncertain before- hand, whether or not such evidence will be brought forward at the trial, we see the good sense of the rule which re- quires previous notice to be given to the adverse party to produce it, if it be in his possession, before secondary evi- dence of its contents can be received, thai he may not be taken by surprise ; but when the nature of the action gives the defendant notice, that the plaintiff means to charge him with the possession of such an instrument, there can be no necessity for giving him any other notice." 4 After the debt for which the pledge is given has been paid, the right of property vests absolutely in the pledgor ; who may in some cases file his bill in equity to compel its redelivery. Where the pledge consists of stock, on which dividends have been received by the pledgee, of which an account is prayed for, or where there has been an assign- ment of the pledge by the bailee, relief may be had in equity ; and a decree will be made that the pledgee, or his 1 Hays v. Riddle, 1 SandL R, 248. * People v. Holbrook, IS John. R., 90; How v. Hall, 14 East, 274. Biasel v. Drake, 19 John. R, 66. 14 Eat 274. PLEDGES OR PAWNS, 213 assignee where there has been an assignment, account for the dividends received, and transfer and redeliver the stock to the pledger. 1 But the usual remedy is by an action at law, sometimes in the nature of trover for a refusal to rede- liver on demand ; sometimes in the nature of replevin for detaining the goods ; depending in each case upon the cir- cumstances attending the transaction. 2 If the goods pledged have been wrongfully sold by the pledgee, a recovery may be had against him in a suit in the nature of an action on the case ; 3 or in assumpsit to recover the value of the pro- perty. 4 If the debt for which the pledge is deposited in security has not been paid, and an action is brought for the appropriation or conversion of the pledge, the pledgee may have the amount of his debt recouped in the damages. 5 The debt being paid, the creditor is bound to restore the pledge in the condition he received it, or make satisfaction for any injury that it has received ; for it is a rule, that a creditor is to restore the pledge or make satisfaction for it ; if not, he is to lose his debt. 6 The relation in which the pledgee stands towards the pledger under his contract, is very similar to that which the factor holds towards his principal ; and it is well established that the factor has no right to pledge his principal's goods. 7 But although a factor cannot pledge the goods of his prin- cipal as his own, he may deliver them to a third person as security, with notice of his lien, and as his agent, to keep the possession for him, in order to preserve that lien. 8 This is a continuance in effect of the factor's possession, and not . 1 Hasbrook v. Vandervoort, 4 Sand. R, 74; Hart v. Ten Eyck, 2 John. Ch. E., 62, 100; Kemp v. Westbrook, 1 Vesey, Sen., 278. * Holbrook v. Wright, 24 Wend. R, 169 ; 2 Caines' Cases in Error, 200 ; 5 John. R., 258; 8 id., 97. Wilson v. Little, 2 Comst R., 443. Stearns v. Marsh, 4 Denio R., 227; Hill v. Perrott, 3 Taunt, 274; Butts v. Co lins, 13 Wend. R., 139 to 154. Bac. Abr., Bailment, B; 15 Mass. R., 389; 4 Denio R, 227. 1 Reeve's Hist Eng. Law, 161, 162. Kennedy v. Strong, 14 John. R, 128. 8 Urquhart v. M'lver, 4 John. R, 103; Laussat v. Lippencott, 6 Serg. and Rawk., 386. 214 LAW OF BAILMENTS. a pledging of the principal's interest in the goods. So long as the factor retains the control of the goods so that he can at any time take them into his custody, he may preserve his lien. 1 By pledging them as his own, he renders himself liable for their value ; because he thereby appropriates them to his own use and is answerable for a conversion of the property. Wherever the principal can trace his property, as distinct from that of the factor, he can recover it, into whosesoever hands it may come. 2 If it is pawned by the factor, the principal may, after a demand and refusal, maintain an ac- tion for its recovery against the pawnee ; 3 for the pawnee is bound to know, at his peril, the extent of the factor's power; 4 he cannot plead his ignorance, that he did not know the pawnee held the goods in the character of a factor ; neither can he retain the goods till the balance due from the prin- cipal to the factor has been paid ; the lien is lost by the tortious act of the factor in pledging them for his own debt. 5 Mr. Justice Story criticises the decisions on this subject as somewhat inconsistent, in permitting the 1 factor to assign his interest and lien, with the custody of the goods, and at the same time holding his contract by which he assumes to pledge the goods absolutely, to be wholly void; and he favors the opinion that such a delivery in pledge should be held good to the extent of the factor's interest and lien, as- serting that the American decisions have not yet been carried to the extent of holding such a pledge altogether tortious, so that the title is not good in the pledgee even to the extent of the factor's lien. 6 Certainly the innocent pledgee, who has received the goods in pledge without notice of the de- fect in the title, ought not to be deprived of even the partial or special property in the goods bailed, which the factor did Holbrook v. Wright, 24 Wend. R., 169. Thompson v. Perkins, 3 Mason R., 232. Van Amringe v. Peabody, 1 Mason R., 440; Bowie v. Napier, 1 M'Cord, 1. 2 Kent's Comm., 626 : Patterson v. Tash, 2 Str. R., 1178 ; 5 Term R., 604. Guerreiro T. Peile, 3 Barnw. and Aid., 616; M'Combie v. Davies, 7 East, R,. 5 ; Martini v. Coles, 1 Maule and Selw., 140. * Story on Bailm. 326, 826. PLEDGES OR PAWNS. 215 own, merely because he had not a perfect title. But the true ground of the decisions on this point, at common law, is probably the public policy, which demands a rigid en- forcement of the duties of the factor, so as to restrain him from an unauthorized disposition of the goods of his prin- cipal. The rigor of this rule sometimes worked a hardship upon those who dealt with the factor in the belief that he was the true owner, and the statute of 6 Geo. IV, ch. 94, was made to remedy the mischief. Since that tune our own legislature has passed an act for the amendment of the law relative to principals and factors. 1 This act was intended for the secu- rity of those who deal with the factor or agent in the belief that he is the true owner. 2 One who receives goods from the factor as such, knowing that he is not the owner, and ad- vances money on them, cannot under this statute retain them for his advances ; because he acquires no lien. This is dis- tinctly adjudged in the case of Stevens v. Wilson; 3 in which our statute though framed somewhat differently, is construed so as to accomplish nearly the same result as that reached by the English statute. Chancellor Walworth, who deliver- ed the prevailing opinion in the cause, assumes that prior to the statute it had been established by many decisions so as to be considered a settled principle of law, that a factor could not pledge so as to transfer his lien to the pawnee ; 4 and that this rule of the common law was founded .upon the principle that he who deals with one acting ex mandate, can obtain from him no better or different title than that which his mandate authorizes him to give. The English statute expressly authorizes the agent or fac- tor to pledge the goods of his principal to the extent of his lien, to persons who are aware of his fiduciary character and without any authority for that purpose from his principal ; 1 Statute 1830, p. 203. * Stevens v. Wilson, 6 Hill R, 512. 1 3 Denio R., 472; 4 Geo. IV, ch. 88; 6 Geo. IV, ch. 94; Fletcher v. Heath, 7 Barn, and Cres., 517; Blandy v. Allen, Darson and Lloyd's Merc. Cas., 22. 4 Graham v. Dyster, 6 Maule and Sel., 1. Lord Chief Justice Tenterden deli- vered the opinion in this case. 216 LAW OF BAILMENTS. but it has been held even under that act, that a mere liability of the factor, upon acceptances, for his principal, does not give the factor a lien which will authorize him to pledge the goods to a third person without the consent of his principal. 1 Our statute does not go so far, but it seems to permit the factor to pledge the goods to the extent of his lien ; at all events, the fifth section assumes that in some instances the pawnee may detain the goods until the lien of the factor shall be satisfied. From analogy, with other decisions made under the act, it would seem that the pawnee cannot acquire a lien even to the extent of that possessed by the factor, where he knows that the person making the pledge does not own the goods. 2 The seventh section of the statute im- pliedly prohibits the pledging of them for a loan of money ; but it may well be that the right of the factor to deliver them to a third person for his own security, with notice of his lien, is still preserved, on the ground that this is in effect but a continuance of the factor's possession. 8 One of the objects sought in the enactment of the statute in question doubtless was, to harmonize the decisions on the subject of factors and agents, with well understood and recognized principles, so that those who should deal with the person having the possession of personal property, with the usual indicia of title, might be protected from losses arising from contracts, made with the factor on the faith that he was the true owner of the property. The act does not seem to have been designed for the benefit of the factor, or for the enlargement of his powers ; but rather for the protection of third persons, dealing with him in ignorance of his true character. Where one, who is not the owner, ships goods in his own name and assigns the bill of lading to another, who advances money thereon, and an action is afterwards brought by the true owner, alleging title, the defendant, in possession of the goods on which he made the advances, i 1 7 Barn, and Ores., 617. ' 3 Denio R., 472. 1 2 Kent's Comm., 626 ; M'Combie v. Davies, 7 East R., 5 ; Urquhart T. M'lver, 4 John. R., 103. This point is not decided in Stevens v. Wilson, 6 Hill, 615. PLEDGES OE PAWNS. 217 must traverse the plaintiff's title. The issue is joined on the title ; and the facts accompanying the transaction may be given in evidence by the defendant to sustain him in his traverse. 1 It is a principle of the common law, which has but few exceptions, and these are treated as such, that a man cannot be divested of his property without his consent. And al- though possession is one of the most usual evidences of title to personal chattels, yet as a general rule, mere possession will not enable a man to transfer a better title than he has himself, or than he has been authorized by the owner to grant. 2 Exceptions in favor of trade are allowed in the case of money and negotiable instruments, which have a circulation as currency. But as to other personal chattels, the mere possession, by whatever means it may have been acquired, if there be no other evidences of property, or authority to sell from the true owner, will not enable the possessor to give a good title. Although on a sale the owner delivers the possession of the property, if there be a con- dition that the title shall not pass until the price is paid, the voluntary assignee of the purchaser will acquire no right as against the owner. 3 The third section of the act, relative to principals and factors or agents, provides that: "Every factor or other agent intrusted with any bill of lading, custom-house permit, or warehouse keeper's receipt for the delivery of any such merchandise, and every such factor or agent, not having the documentary evidence of title, who shall be intrusted with the possession of any merchandise for the purposes of sale, or as a security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person for the sale or disposition of the whole or 1 Prosser v. Woodward, 21 Wend. R., 205; Pringle v. Phillip, 1 Sand. R., 292; 1 Saund. R., 22; Bemus y. Beekman, 3 Wend. R., 667; Rogers v. Arnold, 12 id., 30. 2 Covill v. Hill, 4:Denio R., 323; 1 ComstR., 622; Pickering v.Busk, 16 Bait R., 38. 3 Haggerty v. Palmer, 6 John. Ch. R., 473. 218 LAW OP BAILMENTS. any part of such merchandise, for any money advanced, or negotiable instrument or other obligation in writing given by such other person upon the faith thereof." 1 Under this the words, upon the faith thereof, are construed to refer to the ownership of the goods; 2 so as to protect the purchaser or pledgee, who has advanced his money or given his negotiable note or acceptance or other written obliga- tion, upon the faith or belief of the fact that the person with whom he dealt was the real owner of the property. Any other construction would authorize the agent or factor to commit a fraud upon his principal, with the connivance of the purchaser or pledgee who had notice of the fiduciary character of the vendor or pledgor ; and it would be in con- flict with the seventh section, which makes such a fraud an indictable offence as against the agent and all other persons conniving with him in its commission. The first section of this statute enacts that every person, in whose name any merchandise shall be shipped, shall be deemed the true owner, so as to give to the consignee a lien for advances made by him or on his behalf thereon; the second section limits this lien to cases where the consignee had no notice that the consignor was not the true owner ; and the fourth section prevents any person from acquiring a lien on such goods, by receiving them in deposit from the agent or factor, as a security for any antecedent debt or de- mand, beyond the interest or lien of the agent at the tune of the deposit. But the statute does not authorize the agent or factor to pledge the goods of his principal to "the ex- tent of his lien, to persons who are aware of his fiduciary character. Where property is delivered to a forwarder or carrier, upon consignment to a factor for sale, but the receipt or bill of 1 2 R. a, 69, 60, 8d ed. 1 8 Denio R., 475. The first section of the English act protects the consignee without notice, and others dealing with him ; the second protect* persons deal- ing with the factor, in possession, with documentary evidence of title, for ad- vances upon the deposit or pledge of goods; the third prohibit* a lien for an antecedent debt, except to the extent of the factor's lien ; and the fifth section permits a pledge in any case to the extent of the agent's lien. PLEDGES OR PAWNS. 219 lading is not delivered or sent by the owner to the factor, and the property has not reached him, the factor acquires by the transaction no general or special property in the goods ; and this is so notwithstanding the consignor is in- debted to the factor upon previous consignments, to an amount greater than the value of the goods. The owner of a quantity of flour, delivered the same to a forwarder at Rochester, and took a receipt expressing that the flour was to be sent to the defendant at Albany ; the defendant being the factor to whom the owjaer usually consigned flour for sale, and to whom he was at the time indebted for advances on previous consignments : the owner on the same day drew upon the defendant against the flour and procured the plain- tiff's bank at Rochester to discount the draft, on delivering to the bank the forwarder's receipt and agreeing that the bank might hold it as security for the acceptance of the draft; the defendant refused to accept the draft, but subsequently received the flour and converted it to his own use, having notice of the transaction with the plaintiff's bank ; and it was held that the defendant was liable to the plaintiff in trover for the flour, 1 and that as between the owner and the bank the transaction may be regarded as a pledge or mort- gage of the flour. The delivery of the carrier's receipt to the bank, was a symbolical delivery of the flour. 2 Even a sale or pledge of the property, without a formal bill of lading by the shipper, it seems, will operate as a good assignment of the property, and the delivery of an informal unindorsed bill of lading, or other documentary evidence of the ship- per's property, will be a good symbolical delivery so as to vest the property in the vendee or pledgee. 3 To render a mortgage of personal chattels valid as against the creditors of the mortgagor and subsequent purchasers and mortgagees in good faith, it is necessary that it should 1 The Bank of Rochester r. Jones, 4 Denio R., 489 and 4 Comst R., 497. 2 Haille v. Smith, 1 Bos. and Pull., 663 ; Tooke v. Hollingworth, 5 Durnf. and East, 215; Allen v. Williams, 12 Pick R., 297. * Per Chief Justice Shaw in Allen v. Williams. 220 LAW OF BAILMENTS. be in writing and duly filed ; but there is no such necessity as between the immediate parties to the mortgage of goods. 1 In like manner there may be a pledge where the delivery is only symbolical. The delivery of tlie key of the ware- house in which goods sold are deposited, is a sufficient delivery of the goods to transfer the property. A written order from the vendor on the person who has the custody of the goods, directing their delivery to the vendee, is a sufficient delivery. So also a delivery of the receipt of the store-keeper for the goods, being the documentary evidence of the title, is tan- tamount to a delivery of the goods. 2 There is no reason for requiring a more perfect delivery in the case of a pledge of goods, than the law demands on an absolute sale. 3 The de- livery of a bill of lading, as security for the payment of a loan made thereon, is a good assignment of the cargo, and even though unindorsed, is a good delivery so as to transfer the property. 4 Under the civil law, as well as under most of the codes of continental Europe, possession is evidence of title to movable goods ; and the factor may pledge the goods of his principal so as to bind them for any advances made thereon, but not as a security for an antecedent debt or demand. 5 The factor is generally regarded in the decisions as invest- ed with the rights of a pledgee of the goods intrusted to 1 him, and charged with very nearly, if not the same respon- sibilities. In either case, if the bailee appropriate the goods as his own, he is liable for their value. 6 But the pledgee has a right of assignment, which it seems the factor does not possess, at least not to the same extent ; for it is conceded that the pawnee may assign his interest in the pawn, either 1 2 R S., 196, 8d ed; Wood v.Lowry, 17 Wend.R, 492; Sanger v. Eastwood, 19 Wend. R, 614; Nash v. Ely, id., 523; Smith v. Acker, 23 Wend. R, 668; Camp T. Camp, 2 Hill R, 628 ; 10 Paige R, 127, 206. * Wilkes T. Ferris, 6 John. R, 336 ; Searle v. Reeves, 2 Esp. Cases, 698 ; Lan- sing T. Turner, 2 John. R, 14 ; Bailey T. Ogden, 3 John. R, 399. ' 1 Bos. and PuL, 663. 4 12 Pick. R, 302; 16 Pick. R, 467 ; 4 Comt R, 497. * 1 BellComm., 483-488, 6th ed. - * 3 Barnw. and Aid., 616. PLEDGES OR PAWNS. 221 absolutely or conditionally by way of pawn to another, without affecting his lien. 1 On the other hand, the factor, in the absence of instructions to the contrary, is clothed with a power of sale, not given to the pawnee ; 2 and he may sell for cash or on credit, according to the established usage, with- out rendering himself liable. 3 The law implies that one who is employed to sell as a factor, is authorized to do so in the usual manner ; and consequently that he may sell on credit where that is customary, without incurring risk, provided he does not unreasonably extend the term of credit, and pro- vided he makes use of due diligence to ascertain the sol- vency of the purchaser. He acts as a commercial agent, whose character and rights are accurately defined. He is not obliged to disclose to his purchaser the name of his prin- cipal, or that he sells as a factor. He may or may not take an instrument in writing as evidence of the debt. He may maintain an action in his own name for the price of the goods, and give a valid discharge ; but his principal may in- terpose at au0- time before payment, arrest his agent's right, and recover against the vendee in his own name. 4 Where the factor is permitted by his instructions or by custom to sell on credit, he is not liable though he take a note for the purchase money payable to himself. For the note does not extinguish the demand for goods sold, but leaves the principal to his usual remedy. 5 The pawnee has a special property in the pawn, and in some instances a right to the reasonable use of the thing pawned. But the use, not being the object of the contract, must be such as will not diminish the value of the pledge t 1 7 Cowen R., 670; 20 Pick. K., 399, 406; 15 Mass. R., 408; 13 Pick. R., 216; 14 id., 497 ; Story on Bailnt, 327, 350 ; Hasbrook v. Vandervoort. 4 Sand. R., 74. 1 Van Allen v. Vanderpool, 6 John. R., 69 ; Goodenow v. Tyler, 8 Mass. R., 36. 1 Scott v. Surman, Willes R., 406 ; 6 Term R., 12 ; Russel v. Hankey, 1 Camp. N. P., 258. 4 Corlies v. Gumming, 6 Cowen R., 181 ; Drinkwater v. Goodwin, Cowp., 256; Johnstone v. Osborne, 11 Adolph. and Ell., 549 ; 4 Mass. R., 268. ' 6 Cowen R., 181 ; 7 Mass. R., 36. Authority to sell does not authorize a sale on credit, unless it be a known usage of trade that the article in question is ordi- narily so sold. Delafield v. The State of Illinois, 26 Wend. R., 192. 222 LAW OP BAILMENTS. and such as it may fairly be presumed the pawnor gave his consent to. If the pledge be such as will be never the worse for being used, as jewels, it may be used ; but only at the peril of the pawnee, who is answerable in case of loss. But where the pawn is of such a nature that the pawnee is at a charge for its keeping, as a horse or cow, he may use the horse in a reasonable manner, or milk the cow in recompense for the meat. 1 The interest of the pledgee, in the articles pledged, is not such as to improve or ripen by time ; for he is not allowed to claim property in them by prescription, and there is, pro- perly speaking, no forfeiture permitted under the contract. 2 If he blends or so confounds them with his own, that they can- not be distinguished, he must bear all the inconvenience of the confusion ; if he cannot distinguish and separate his own he shall lose it ; or if damages are given against him in conse- quence of the confusion, the utmost value will be taken. 3 The damages, however, will not be inflicted arbitrarily, nor will the inference be drawn against thenpledgee more strongly than a strict equity demands. Where certain stocks were given as collateral security for a loan of money,. paya- ble at a future day, and blended with the mass of -shares of the same stock held by the creditor, but who actually re- tained all the while a number equal to the shares pledged ; it was adjudged that the shares so standing in the name of the pawnee were to be considered as the shares pledged, and that the pledgee was at liberty to sell according to the con- tract, the shares so deposited in pledge. 4 But, it seems, if he wrongfully sell the stock before his debt becomes due, that he will be held liable for the highest price at which the stocks have been sold during the period of credit cov- ered by the pledge. 1 Coggs v. Bernard, 2 LA Raym., 909. * 2 Games' Cases in Error, 200; 2 Kent's Comm., 583, 3d ed. 1 Hart v. Ten Eyck, 2 John. Ch. R, 62. 4 Nourse v. Prime, 4 John. Ch. R., 490; 7 id., 69. PLEDGES OR PAWNS. 223 Care required of the Pawnee. The bailment by pledge, being beneficial to both parties to the contract, the bailee is bound for ordinary care and must answer for ordinary neglect. 1 Ordinary neglect is de- fined to be, the omission of ordinary care ; that is to say, the omission of that care which every man of common pru- dence and capable of governing a family, takes of his own concerns. 2 This was the rule laid down by Bracton, who wrote his treatise de Legibus et Consuetudinibus Anglice as early as the reign of Henry III, as is generally supposed in the latter part of that long reign, which commenced in 1217 and continued fifty-six years. 8 Lord Holt quotes him as an old author to the effect, that if a creditor takes a pawn, he is bound to restore it upon the payment of the debt ; but yet it is sufficient, if the pawnee use true diligence, and so doing, he will be indemnified notwithstanding the loss, and he may resort to the pawnor for his debt. 4 He is bound to take that care of the pledge which a prudent man takes of his own property. He is not bound for the exactest dili- gence, such as is demanded of the borrower; and he is liable for a greater degree of care than the law exacts of the depositary without reward. 5 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 1 Jones on Bailm., 76, 76, 119; 2 Kent's Comm., 579, 580. 1 Story on Bailm., 17, 332. 1 Bracton, 99, b; Jones on Bailm., 76. 4 Henry de Bracton is supposed to have been a judge or justiciary; his quo- tations come down to the forty-sixth year of the reign of Henry HI. Almost nothing seems to be known of his personal history, notwithstanding he held for a long period so high a place as one of the authorities of the English Law, and was looked up to even as late as the time of Lord Coke as the first source of legal knowledge. He is admitted to have been a master of the common law, and he quotes the Roman code with great freedom ; from which he is supposed to have derived his clear, nervous and expressive style. Many of our current maxims came to us through him from the civil law. 2 Reeves' English Law, 88, 90; 2 Ld. Raym., 909; see also Lives of the Chief Justices by Lord Campbell, 1 voL, p. 78. Jones on Bailm., 119; 2 Kent's Comm., 580. 224 LAW OF BAILMENTS. than his own. This the language and doctrine of Lord Coke; 1 it is explicitly denied by Sir William Jones, who maintains that a bailee cannot be considered as using ordi- nay diligence if he suffers the goods bailed to be taken by stealth out of his custody ; 2 and he argues the question at considerable length, maintaining that the reason given by Coke for his doctrine, namely, "because the pawnee has a property in the goods pledged," is applicable to every other sort of bailment, and proves nothing in regard to any par- ticular species ; since every bailee has a temporary qualified property in the things of which possession is delivered to him by the bailor, and has therefore a possessory action or an appeal in his own name, against any stranger who may damage or purloin them. 3 Mr. Justice Story comments upon the argument of Sir William Jones, and contends quite as pointedly that not every bailee has a temporary qualified property in the thing bailed ; that neither depositaries, nor mandataries, nor bor- rowers have any special property in the thing bailed ; al- though as they have a lawful possession and are answerable over, they may maintain an action for any tort done to the thing bailed during the time of their possession ; but he con- cedes that the reason given by Lord Coke is not the true reason. 4 Chief Justice Holt assumes the law to be as stated by Coke, and that even a borrower, is not liable for property stolen, where he has not been guilty of any neglect ; 5 and the borrower, as we have seen, is bound to exercise the ut- most care. Chancellor Kent considers the rule to be, that the pawnee is neither absolutely liable, nor absolutely ex- cusable, if the pledge be stolen ; that it depends upon cir- cumstances, whether he is or is not liable. 6 This agrees with the result arrived at by Mr. Justice Story, that theft per se, establishes neither responsibility nor irresponsibility in the bailee. If the theft is occasioned by his negligence, 1 1 Inst 89 a ; 4 Rep., 83, b. Story on Bailm., 333-338, 93-95. 1 Jones on Bailm., 44, 76, 77. * 2 IxL Raym., 909. * Jonea on Bailm., 80. * 2 Kent's Comm., 680, 66 L PLEDGES OR PAWNS. 225 the bailee is responsible ; if without any negligence, he is discharged. 1 Where the promissory note of a third person is deposited by a debtor with his creditor, as collateral security for a debt, such note is a pledge ; the pawnee has merely a special pro- perty in it ; and his authority extends no further than to receive the amount of the note from the maker, and not to compromise with him for a less sum than appears on the face of the note, or to dispose of it in any other manner, until after the pawnor's default in redeeming. 2 The pawnee in such a case is not obliged to take measures to collect the note. Even though there be a conditional sale of the note, if a right of redemption within a specified time is re- served, it will be held a pledge in the hands of the creditor with whom it is deposited ; to be kept and returned according >to the terms of the contract. 3 The pawnor retains the right to negotiate or collect the note, provided he discharge the lien of the pledgee before judgment; 4 he may transfer the note to a third person, who may maintain an action on it as indorsee in his own name ; but he must redeem before he can have a recovery, because a judgment on it works a merger of the note ; the note is merged in and extinguished by the judgment. 5 On this ground a judgment against one of several partners on a pro- missory note executed by the firm, is held a bar to a subse- quent action against the other partners. It extinguishes the original debt, or merges it in a higher security. 6 Hence, to permit the pawnor or his indorsee to prosecute the note de- posited in pledge to judgment, without discharging the lien, would be to permit him to wrest from the pawnee his secu- rity or interest in the pledge. 1 Story on Bailm., 338. A theft may happen without even a slight neglect on the part of the possessor of the chattel ; and I think It would be going quite far enough, to hold that such a loss is prima facie evidence of neglect, and that it lays with the pawnee to destroy the presumption. Kent. 8 Garlick v. James, 12 John. R., 146. 8 McLean v. Walker, 10 John. R., 472. * Fisher v. Bradford, 7 Greenl., 28. 6 Thompson v. Hewitt, 6 Hill R., 254 ; Pierce v. Kearney, 6 Hill R., 82. 6 Robertson v. Smith, 18 John. R., 459. 15 226 LAW OF BAILMENTS. Payment of the debt, for the security of which the pledge is made, restores to the pawnor the right to the immediate possession of the goods bailed ; and if the pledgee fail to deliver them on demand, the onw of accounting for them is thereby cast upon him. 1 Prima facie he is liable for the goods, because he is bound to redeliver them on the pay- ment of the debt, and the law will not presume that they have been lost without his negligence. The failure to de- liver on demand is evidence of a conversion, which must be overcome by evidence that will negative the presumption. 2 If he show them lost, the law will not intend negligence ; and the onus is then shifted upon the pawnor. A total de- fault in delivering the goods bailed, on demand, being shown, the bailee must account for them ; otherwise he is deemed to have converted them to his own use. 3 The bailee, having the custody of the goods and receiving them in good order,* has the means and is bound to show how they have been either lost or injured. 4 The appropriation by the pawnee of the goods intrusted to him to his own use, is a breach of trust. 5 And so also, if he redeliver the pledge, such as notes deposited with him as collateral security, to the owner for the special purpose of having them collected, and he accordingly collects and ap- propriates the fund to his own use; it is held that he is liable, notwithstanding he holds the general property in them, for the breach of a special trust ; and that the demand against him arising thereon is a debt incurred in a fiduciary capacity. 6 Like an attorney, to whom notes or evidences of debt are intrusted for the purpose of collection, he stands in a fiduciary relation to the person who employs and intrusts him with the business. There is in this case a double trust ; 1 8 Barn, and Ores. R., 822, Marsh v. Home. Lockwood v. Bull, 1 Cowen. R., 830 ; Bisse! v. Drake, 19 John R., 66 ; Ken- nedy v. Strong, 14 John R., 128; 8 John R., 445. 1 2 Salk, 656; 1 Term. R., 83, per Ld. Mansfield; Platt v. Hibbard, 7 Cowen, 497. 4 Price v. Powell, 3 Comst R., 822. Story on Bailm., 324. White v. Platt, 5 Denio. R., 269. PLEDGES OR PAWNS. 227 the pawnor delivers the notes to the pawnee in trust as col- lateral security for the payment of his debt, and the pawnee acquires a special property in them, not in any manner sub- ject to the control of the bailor ; the pawnee then delivers the notes to the pawnor in trust to collect and return the proceeds to satisfy his lien. The owner becomes a special bailee for a purpose consistent with the pawnee's interest, and as he wrongfully appropriates the subject of the pledge there is no well founded principle which can protect the wrong-doer from an action for the goods. 1 For this is not a voluntary surrender or the goods, and does not terminate the bailment, so as to deprive the bailee of his special pro- perty. 2 If the bailee intentionally restore the possession, his interest is gone, and the bailment is at an end ; but the legal possession is not changed by a manual delivery to the owner, under a special contract that the property shall be restored after the specified purpose is fulfilled. 3 In Foot v. Storrs, Mr. Justice Willard lays it down as a rule, that in all cases, where a defendant is bound only to ordinary care, and is liable only for ordinary neglect, the plaintiff cannot recover upon the mere proof of loss of the articles intrusted to the bailee. He must give some evi- dence of a want of care in the bailee, or his servants. 4 It is well settled that a warehouseman, or depositary of goods for hire, is responsible only for ordinary care, and that he is not liable for loss arising from accident when he is not in default. 5 In Finucane v. Small it was held that where goods are bailed to be kept for hire, and the compensation is paid for house-room and not as a reward for care and diligence, the bailee is only bound to take the same care of the goods as of his own ; that if they be stolen or embezzled by his servant, without gross negligence on his part, he is not lia- 1 Hays v. Riddle, 1 Sand. R., 248; Roberts v. Hyatt, 2 Taunt, 266. 8 Homer v. Crane, 2 Pick., 60V. * Story on Bailm., 297. 4 2 Barb. R., 326. 2 Kent's Comm., 586 ; 4 T6nn. R., 481 ; Peake's K P., 114; 4 Esp. N. P. R., 262. 228 LAW OF BAILMENTS. ble ; and that the burden of showing negligence seems to be upon the plaintiff, unless there is a total default in deliver- ing or accounting for the goods. 1 This agrees with the rule of liability as stated by Chancellor Kent: "The bailee, when called upon for the article deposited, must deliver it, or account for his default by showing a loss of it by some violence, theft or accident ; when the loss is shown, the proof of negligence or want of due care is thrown upon the bailor, and the bailee is not bound to prove affirmatively that he used reasonable care. 2 The care must rise in proportion to the demand for it; and things that may easily be deteriora- ted require an increase of care and diligence in the use of them." 3 A warehouseman, not chargeable with negligence, is not responsible for goods intrusted to him, stolen or embezzled by his store-keeper or servant ; and the burden of showing negligence in the case lies upon the owner. The refusal by the bailee to deliver on demand, after the bailment has ter- minated, or by an attorney, to pay over the moneys collected by him, renders him prima facie liable for the goods bailed, or for the moneys in his hands. 4 The bailee stands in the relation of a trustee of the pro- perty committed to him, and is bound to keep the property with the care and diligence of a provident owner. A trustee of personal property, under a voluntary assignment to him, must exercise the same care and solicitude, that a prudent person, or a man of reasonable and ordinary diligence would use for himself. The rule is not as it is sometimes stated to be, that the trustee must take precisely the same care in behalf of his cestui qu trust as he would do for him- self. The rule does not bend itself to the individual char- acter; 6 and it is held that a voluntary assignment which 1 7 Cowen R, 500, note a, and cases there cited ; Schmidt v. Blood, 9 Wend. R, 268. Harris v. Packwood, 8 Taunt R., 264 ; Marsh v. Home, 5 Barn, and Cres., 322. 1 Kent's Comm., 687. Rathbun v. Ingalls, 7 Wend. R., 820; Taylor v. Bates, 6 Cowen R, 876; Dunlap r. Hunting, 2 Denio, 648. ** * WillU on Trustees, 125, 169, 172; Litchfield v. White, 3 Sand. R., 545. PLEDGES OR PAWNS. 229 contains a provision exempting the assignee from liability for any losses to the trust fund, unless the same happen by reason of his own gross negligence or misfeasance, is void. The reason of this decision is that the law will not permit a debtor, in failing circumstances, to place his property temporarily beyond the reach of his creditors, in the hands of an assignee, under a less stringent rule of liability than that which the law establishes. There is no public policy to prevent bailees, other than innkeepers and common carriers, from stipulating for a re- stricted liability; and hence, a special contract by the bailee for exemption from liability arising from want of ordinary care and skill is valid. 1 The Decision of the supreme court, in which this rule of responsibility was applied, was after- wards reversed ; but the ground of reversal appears to have been the erroneous application of the principle. 2 It was at first held that the owners of a steamboat, engaged in towing vessels on the Hudson river, were not common carriers ; that aside from any express contract they were to be holden to the same rule of responsibility as ordinary bailees for hire ; but that where there is evidence of a special contract en- tered into between the parties offered, it must be submitted to the jury ; who, if they find it proved, must find the damages under its stipulations, as in the case of the breach of any ordinary contract. 3 The court for the correction of errors voted to reverse this decision, but could not agree upon the ground of the reversal; Senator Bockee agreed with Chief Justice Bronson, that the owners of the steam- boat so engaged, are not common carriers; but disagreed with him on another point, holding that they could not be permitted to stipulate against their liability for the gross negligence of the officers and agents on board of the steam- boat ; Senators Lawrence, Scott and Rhoades regarded them as common carriers ; Senator Porter did not consider them 1 Alexander v. Greene, 3 Hill R., 9. * 7 Hill R., 533; Caton v. Rumney, 13 Wend. R., 387 ; East India Company v. Pullen, 1 Strange, 690 ; Brinde v. Dale, 8 Carr. and Payne, 270 ; Farnsworth v. Packwood, 1 Holt, 207. 8 Hill R., 9. 230 LAW OF BAILMENTS. common carriers, but maintained that the contract had not been properly construed ; from all which it is evident that this judgment of reversal is not to be regarded as settling any principle of law differently from the manner in which it was held by the court whose judgment was thereby re- versed. Where stocks, deposited in pledge, are sold by the pledgee before the debt to which it is a collateral security, becomes due, it is a violation of his trust, which cannot be remedied by a subsequent purchase of other stock of the same kind and value to be returned in place of that sold. 1 In such a case tlje pledgee will not be permitted to prove that it is the general usage for the pawnee to hypothecate and dispose of such stock at pleasure ; and on payment or tender of the principal debt, to return an equal number of shares of the same stock. Evidence of this usage is inadmissible, because it tends to contradict a written contract. 2 In like manner a written instrument acknowledging the receipt of a quantity of wheat in store, being a contract of bailment, is not open to contradiction in the sense of the rule applicable to receipts proper. 3 So far as such an instru- ment is a receipt, in the ordinary acceptation of that term, it may be explained or even contradicted by other evidence ; but where it imports a contract, it cannot in that respect be varied by parol evidence, though where its words are am- biguous it may be explained in the same degree as any other written contract. To the like effect, it is held that a memo- randum acknowledging the receipt of a quantity of grain on freight, is open to explanation only as a, receipt. 4 Though it may be shown that, by a general usage among dealers in 1 Allen v. Dykers, 8 Hill R., 593 ; 7 Hill R., 497. In Nouree v. Prime, 4 John. Ch. R., 490, and 7 id., 69, the defendants had at aty times the requisite quantity of stock on hand, and it was held that in such a case the law will presume that the stock on hand were the shares deposited. 1 LeCroy v. Eastman, 10 Modern R., 499. * Cowen and Hill's Notes to PhiL Ev., p. 216, 217, 1439 ; Goodyear v. Ogden, 4 Hill II., 104. 4 Dawson v. Kittle, 4 Hill R, 107; Withnall v. Gartham, V 6 Term R., 398; Bushforth v. Hadfield, 6 East, 619. PLEDGES OR PAWNS. grain, the writing means a sale, it can only be done by full and explicit evidence, such as leaves no doubt that the par- ties contracted in reference to the usage. The existence, extent and meaning of the usage must be clearly established ; the ordinary meaning of the terms employed in the written memorandum must prevail, unless modified by clear proof that these have a particular meaning attached to them by the usage of trade a usage known to the party at the time of contracting, or which he is presumed to have known and assented to. 1 If the bailee fail to fulfill the contract under which the bailment is made, he cannot insist upon his lien, nor claim his compensation pro rata to the extent of his performance. Where logs are delivered at a saw-mill on a bailment, to be by a fixed time manufactured into boards on shares, each party to have one-half, and a part only are manufactured, when the bailee converts the whole to his own use, it is held that the bailor may recover for the whole, both logs and boards, and that the miller is not entitled to any deduction on account of what has actually been sawed. 2 The effect of the contract is materially different where the bailee's agree- ment is to return boards equal in value, to one-half of the boards to be manufactured out of the logs ; for this amounts to a contract of sale, under which the price is to be paid in specific articles. 3 If the bailee for hire, such as a ware- houseman, is found liable for the negligent injury of goods stored with him, he cannot relieve himself from responsi- bility or prove in mitigation of damages, that after the hap- pening of the injury, the goods were destroyed without his fault and that they must have been so destroyed even if no damage had previously occurred. 4 A sale of stock deposited in pledge as a security for a loan of money, with power to sell in case of non-payment, may be made at the board of brokers in the city of New- 1 Cooper v. Kane, 19 Wend., 386. J Pierce v. Schenck, 3 Hill R,, 28. 8 Smith v. Clark, 21 Wend., 83. This case overrules Seymour v. Brown, 19 John. R, 44 ; Buffum v. Meny, 3 Mason, 478. 4 Powers v. Mitchell, 3 Hill R., 545. 232 LAW OF BAILMENTS. York on two days' notice given to the pawnor, if no objec- tion is made to such sale. 1 There does not seem to be any established custom to be observed in such cases ; there being no agreement between the parties on the subject, the mode of sale is left to the sound discretion of the pawnee. His neglect to sell the pledge within a reasonable time, cannot be pleaded in bar of an action brought for the recovery of the original debt. 8 But the pawnor may without doubt re- coupe his damages in such an action, arising from an impro- per sale without notice, or any other breach of duty by the bailee injurious or destructive to the pledge. 3 An accord, not executed, is no bar to a preexisting demand, but if executed by delivering a collateral thing which is agreed to be accepted as satisfaction, it is a bar. 4 But a pledge cannot be converted into a satisfaction of the original debt, by the pawnee's neglect to sell the pledge ; even if he be guilty of such neglect as will give to the pawnor a right of action against him for damages, there is no such thing as setting up one right of action as a bar to another right of ac- tion. A recoupment of damages, however, accomplishes very nearly this result in many cases, where there are mutual rights of action existing between the parties arising out of the same transaction. 5 It seems doubtful whether the neglect of the pawnee, for a number of years, to sell stocks deposited with him as collateral security, will be regarded as rendering him liable for their loss or depreciation. 8 As the pawnor has at any time the right to pay the debt secured by the pledge, and thus repossess himself of the stock, it would seem that he ought not to be permitted to complain that the pledge is retained for the exact purpose for which it was made. 1 Willoughby v. Comstock, 8 Hill R., 389. Taggard v. Curtenius, 15 Wend. R., 155. * Stearns v. Marsh, 4 Demo R., 227. 4 Boyd v. Hitchcock, 20 John. R., 76 ; Le Page v. M'Crea, 1 Wend. R., 172 ; Booth v. Smith, 8 Wend. R., 66 ; Hughes v. Wheeler, 8 Cowen R., 77 ; Anderson T. Highland Turnpike Co., 16 John. R,, 85. * Batterman v. Pierce, 3 Hill R., 171. 15 Wend. R., 155 ; Perry v. Craig, 3 Mis., 616. PLEDGES OR PAWNS. 233 The pawnee, receiving a pawn or mortgage as a security for several debts, must apply the proceeds derived from a sale of the goods pledged in equal proportion to the dis- charge of every one of the debts, with this qualification, that the interest thereon is to be first paid, and the balance appropriated. If the debts secured by pledge be con- tracted at different times, and the pledge is deposited as a security for the first, with a subsequent agreement that it shall be retained as a further security for the others, the proceeds derived from the sale must be applied to the pay- ment of the debts in the order in which they were con- tracted ; for it is presumed that the pawnor pledged for the security of the debts last contracted only what remained of the pledge after payment of the first. 1 If a debtor owe his creditor several debts upon distinct causes, and pays him a sum of money, he (the payor) has a right to say to which debt or debts the money shall be appropriated, provided he directs this at the time of the payment ; but if he does not so direct, the creditor may apply it as he pleases ; where the debts are of different cha- racters, and neither party applies the payment at the time, the law will apply it, upon the presumed intention of the debtor, to that debt, a relief from which will be most bene- ficial to him. There being several debts and one of them secured by a mortgage, the law will appropriate a general payment to the discharge of the mortgage debt, because that is supposed to bear most heavily on the debtor. The civil law applied a general payment under such circum- stances on the same principle, 2 first to the most burthen- some debt ; to one that carried interest, rather than to that which carried none ; to one secured by penalty or pledge, rather than that which rested on simple stipulation ; and if the debts were equal, then to that which had been first contracted. 3 1 Pattison v. Hull, 9 Cowen R., 747, 776, note b. 2 9 Cowen R., 768 ; 12 Mod. R., 6$9 ; 1 Ld. Raym., 286 ; 1 Comb., 463 ; Peake, N. P. Cases, 64 ; 1 Har. and John., 764 ; 2 id., 402 ; 8 Mod. R., 286. Herkimer M. and H. Co. v. Small, 2 Hill R., 127 ; Pierre v. Roberts, 2 Caa. in Ch., 88, 84; Blackstone Bank v. Hill, 10 Pick., 129, 131. 234 LAW OP BAILMENTS. The bailee is held to a strict compliance with the terms of his contract, and is bound to apply the proceeds of the sale of a pledge in an equitable manner. If, having two demands against a debtor, he receives a third person's note as security for one, and a pledge of property as security for both, and afterwards sells the property for enough to pay both debts, he cannot pay over a part of the avails of the sale to his debtor, and then maintain an action on the surety's note. 1 The surety's note, being given as collateral security for the pawnor's debt, can be collected only on his failure to pay; and the law will not permit the pawnee, who has received from a sale of his debtor's property a fund sufficient to satisfy his demand, thus to pay over a part of it, that he may again collect it of a mere surety. The receipt of a pledge in security for a debt does not suspend the creditor's right of action ; even where he has received a good note of a third person, of a greater amount than his own claim, as collateral security, he may still maintain an action on his own debt, without previously restoring the note received as collateral. 2 The summary procedure by attachment, for the collection of debts allowed under the laws of Vermont, is not deemed a sufficient rea- son for a departure in this respect from .the rule of the com- mon law. The contract of pledge, being a new and dis- tinct engagement, does not modify the creditor's rights; and hence if he receive from his debtor an accommodation note, made by a third person for another purpose, as col- lateral security for a preexisting debt, he cannot enforce its collection; because, not receiving it for value within the mercantile usage, he acquires no better title to it than the person has from whom he receives it. 3 Where, in a mortgage of property, consisting of pews in a church, subject to the liens of the society thereon, a party < 1 Strong v. Wooster, 6 Verm. R., 536. 1 Chapman v. dough, 6 Venn. R., 123. 1 Bank of St Albans v. Gilliland, 23 Wend. R, 311; Rogers v. Morton, 12 Wend, 484; U Wend., 575; Smith v. Van Loan, 16 Wend. R., 659; 9 Wend. R., 170 ; Codington v. Bay, 20 John. R, 6S7 ; Stalker v. McDonald, 6 Hill R, V3 ; Keutgen v. Parks, 2 Sand. R, 60. PLEDGES OE PAWNS. 235 acknowledges his indebtedness to another in a sum certain, and for the purpose of securing the payment thereof, trans- fers the property specified in the instrument, the creditor, in default of payment, may bring his action thereon and is not bound in the first instance to resort for satisfaction to the property. 1 The acknowledgement of the indebtedness im- plies a promise to pay, and the creditor is not bound to ex- haust the property mortgaged by way of pledge. 2 Though he is not compelled to do so, the creditor is at liberty to pro- ceed to collect the amount of his debt out of a collateral security deposited with him. 3 He may proceed to a judg- ment on the bond of a third person, given as collateral se- curity for money due upon a note, without discharging either the maker or indorser of the note. There being no legal agreement for delay, the indorser is not released by an omission, after protest, even for a considerable time to col- lect the note ; 4 nor is he discharged by the taking of a higher security, such as a bond, as collateral to the note. 5 A note made generally for the purpose of raising money on it, but payable to a particular bank where the parties suppose it is to be discounted, may be deposited in pledge, by the person for whose benefit it is made, for a loan of an equal sum of money ; and even a recovery of a judgment against the borrower for the amount of money lent, is no bar to an action on the note ; for the note is to be treated as a collateral security for the payment of the sum advanced. 6 So where one of three joint covenantors, gives a bill of ex- change for part of the debt secured by the covenant, and a judgment is recovered on the bill, such judgment is no bar to an action of covenant against the three. The note or bill of exchange, not being accepted in satisfaction for the debt, operates only as a collateral security ; and though judg- 1 Elder v. Rouse, 15 Wend. R., 218. Such property is not a legal interest in the freehold ; 16 Barb. S. C. R., 237. 1 Kimball v. Huntington, 10 Wend. R., 675. 1 Sterling v. the M. and S. Trading Co., 11 Serg. and Rawles, 179. 4 Powell v. Waters, 17 John. R., 177 ; Bank of Utica v. Ives, 17 Wend. R., 501 * Day v. Leal, 14 John. R., 404; Sizer v. Heacock, 23 Wend. R., 81. 6 Bank of Chenango v. Hyde, 4 Cowen R., 567. 236 LAW OF BAILMENTS. ment has been recovered on it, yet not having produced satisfaction in fact, the creditor may still resort to his original remedy on the covenant. 1 The transfer of a note, or account, draws after it a pledge or collateral security given for its payment ; for such a security is specific and can be applied to no other object ; and unless voluntarily relinquished, it is deemed to follow the original debt. 2 The rule is that the pawnee, who sells the pawn, or collects on the collateral security intrusted to him, is entitled to re- ceive or recover the full amount or value of the chattels or choses in action deposited in pledge, and apply the proceeds first to the payment of his debt ; that satisfied, and the bal- ance belongs to the pawnor. 3 If he elects to realize on the security deposited with him, after his debt becomes due, by proceeding to sell on notice, or to collect where a chose in action is pledged, the fund comes into his hands, and must after the payment of his debt, be held in trust for his debtor. There are, however, cases where he cannot collect beyond the amount of his debt; indeed if the goods bailed are capable of being divided so as to be sold in parcels, his right to sell cannot extend beyond realizing the amount of his debt. But in some cases the things pledged do not belong to the pledgor, and in these the contract of bailment must be executed with a due regard to the rights of the surety and third parties. Thus, one to whom a promissory note is transferred before it becomes due as collateral security for indorsements to be made by him, which are afterwards made, and who takes the note without notice of any defence ex- isting against it in the hands of the person from whom he receives it, on the ground of its being accommodation paper created for another purpose, is entitled to be treated as a bona fide holder in the commercial sense. But he cannot recover upon the note beyond the indorsements against which it was designed to secure him. 4 1 Drake v. Mitchell. 3 East, 251. 1 2 John. Ch. R., 418; 7 Howard Pr. R., 401. * Story on Bailm., 312, 813. 4 Williams v. Smith, 2 Hill R, 301. PLEDGES OR PAWNS. 237 If the owner of the thing pledged be not the debtor, but consent to the making of the bailment to secure the pay- ment of another person's debt, he is to be treated, it should seem, as standing in the situation of a surety. 1 And a surety is entitled to be subrogated to all the rights and remedies of the creditor whose debt he is compelled to pay, and to any fund, lien or equity which the creditor had against any other person or property on account of such debt. And his equi- table right of substitution is not lost, except as against bona fide purchasers and mortgagees, by the extinguishment of the lien of the creditor, at law, by the payment of the debt by the surety, 'or out of his property. 2 On paying the debt, the surety is entitled to stand in the place of the creditor, clothed with, or in legel phrase, subrogated to all his rights against the principal. 3 Expenses, by whom borne. On his part, the debtor is bound under the rule of the civil law, to pay to the creditor all the useful and 'necessary expenses which the latter has incurred for the preservation of the pledge. 4 And it is said that where the pawnee is at any expense to maintain the thing given in pledge, as, if it be a horse or cow, he may ride the horse moderately, and milk the cow regularly, by way of compensation for the charge ; and this doctrine ought, it seems, to be equally ap- plicable to the general bailee, who should neither be injured nor benefitted 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 depositary to milk the cows delivered to them, but re- quires them to account with the respective owners for the value of the milk as well as the increase of the cattle, de- ducting the reasonable charges for their nourishment. 5 1 Strong v. "Wooster, 6 Verm. R., 536; King v. Baldwin, 2 John Ch., R., 654. ' Eddy v. Traver, 6 Paige, Ch. R., 621. 2 John Ch. R., 554. 4 Code of Louisiana, art 3134. * Jones on Bailm., 82; Coggs v. Bernard, 2 Ld. Raym., 909. 238 LAW OF BAILMENTS. There is every reason why the pawnee should be entitled to recover the necessary expenses imposed upon him in the discharge of his duty in the keeping of the pledge ; or in rendering it a valuable and available security. Where an indorsed note, not yet due, is deposited as a collateral se- curity, the pawnee is bound to have it duly protested, and to do those acts which will preserve the liability of the indorser ; and surely there can be no reason why he should not be permitted to demand the expenses incurred by him in so doing. 1 So also it is held that the pledgee must ac- count for the rents and profits of the thing pledged ; which assumes that the bailee is bound to exercise due diligence to collect and preserve them ; a duty for the performance of which he ought to be entitled . to receive a reasonable com- pensation. 2 Though the civil law allows the compensation for all charges and expenses, necessarily incurred in the preservation of the pawn, at common law the point does not appear to have been decided. 3 Chancellor Kent asserts that the common law requires the pawnee to account for all the income, profits and advantages derived by him from the pledge, in all cases where such an account is within the scope of the engagement, after deduct- ing his necessary charges and expenses. 4 It is reasonable that these charges and expenses should be deducted from the profits of the pledge ; and even extraordinary expenses, necessarily incurred by the pawnee for the preservation of the pledge, and without his default, ought to be borne by the pawnor. 5 It is held that where a negotiable security is taken as col- lateral to an existing debt, the holder may endeavor to make it available by a suit ; and, failing of success, may resort to his original security, without restoring that taken as col- 1 Russell v. Hester, 10 Ala. R, 535. 1 Honton v. Holliday, 2 Murph., 111. Story on Bailm. 306, 807, 857, 858. 4 2 Kent's Comm., 678, 9. Chancellor Kent quotes Mr. Justice Story as his au- thority, and he seems to concede that the point has not been passed upon at common law. Mores v. Conham, Owen's R., 123. PLEDGES OR PAWNS. 239 lateral. In such a case, may he recover the costs of his suit on the collateral security? 1 Where a note is received, the proceeds to be collected and applied by the creditor to the discharge of his debt, he is bound to use due diligence to collect the note and give notice of non-payment. 2 The pledge is made for the mutual benefit of the parties to the contract ; and the collection, or the effort to collect the collateral security is as much for the benefit of the debtor as it can be for the creditor. Besides this, the creditor is legally entitled to recover and realize the face of his demand, after deducting incidental expenses ; and though it may be presumed that he willingly undertakes the personal trouble and care of the collection, it can hardly be inferred that he also assumes to pay the actual costs and disbursements of the prosecution ; for that would be to cast upon him an- other man's burden. The bailee is bound only for the use of ordinary care of the goods bailed to him by way of pledge ; and if for their preservation from fire or flood or other injury, he go to some extraordinary expense, such as removing them from the scene of danger, he ought clearly to be indemnified for at least his actual expenses. 3 Accessorial things. As the pawnee acquires only a special property or interest in the pledge as a security, he is bound to account to the pawnor for the profits, income or increase of the pledge. 4 Where a slave is pledged to secure the payment of a sum borrowed, the pawnee is responsible for the profits derived from the slave beyond the interest of the debt ; the principal being paid. 5 But he is responsible for the usual hire only, and not for what was actually realized from the labor of the Comstock v. Smith, 10 Shep., 202. Foot v. Brown, 2 M'Lean, 369. Story on Bailm., 357. 2 Kent's Comm., 678-9. Honton v. Holliday, 1 Car. Law Rep., 87. 240 LAW OF BAILMENTS. slave. 1 So also in the case of a mortgage, the mortgagee is bound to account for the profits of the slaves mortgaged, after deducting the expenses of keeping and improving them. 2 One, who by hiring for a term becomes temporary pro- prietor of flocks or cattle, acquires the right to their natural increase; 3 for that is in part the object for which he hires them. But the pledgee receives the chattels only as a secu- rity, and does not acquire any right to the increase of the things bailed. Where stocks are pledged as collateral secu- rity for an existing debt, the pawnee must account for the dividends received thereon ; but he is entitled to retain them under the same terms, under which he holds the principal thing pledged. 4 The interest, or income derived from the pledge, ought properly to be applied to the payment of the interest accruing on the original debt, and after that to the payment of tl\e principal. The interest accruing on the debt secured, is but an incident to it, and a legal increase of the demand, which is equally covered by the pledge. 5 And so too, the interest accruing on the pledge is but an incident to it, and a legal increase of the security. If the pledge consist of a bond bearing interest, deposited as collateral security for the payment of another debt, the pawnee must account for the interest paid thereon, and he is at liberty to apply the amount so received to the payment of his own debt. 6 In this respect, the civil does not appear to differ from the common law. The fruits of the pledge are deemed to make a part of it, and therefore they remain, like the pledge, in the hands of the creditor ; but he cannot appropriate them to his own use, and he is bound on the contrary, to give an account of them to the debtor, or to deduct them from Davenport v. Tarlton, 1 Marsh., 244 ; Ratcliff T. Vance, 2 Rep. Con. Ct, 239. Ross v. Norvell, 1 Wash., 14. Putnam v. Wyley, 8 John. R., 532; Wood v. Ash, Owen R., 138. Ilasbrook T. Vandervoort, 4 Sand. R., 74. 2 Kent's Comm., 583, 584. 4 Sand. R., 74. . PLEDGES OR PAWNS. 241 what may be due to him. 1 If it is a debt on credit which has been given in pledge, and if this debt brings interest, the pawnee shall deduct this interest from those which may be due to him ; but if his own debt, for the security of which the claim has been given, brings no interest by itself, the deduction shall be made on the principal of the debt. 2 So, also, if the debt which has been given in pledge, be- comes due before it is redeemed by the person pawning it, the creditor and pawnee by virtue of the transfer which has been made to him, is justified in receiving the amount, and in taking measures to recover it. When received, he must apply it to the payment of the debt due to himself, and re- store the surplus, should there be any, to the person from whom he held it in pledge. As the title to the pledge does not pass, it is but a necessary conclusion, both of reason and law, that its fruits should accrue to the owner ; for it is tUfe law of property that it shall labor for and contribute to its proprietor. 3 Lands labor for him in the return of an annual rent ; stocks, in the dividends which they yield ; and notes and bonds, in the interest which they bear, as the regular fruitage of the year. 4 In contracts for the payment of a sum of money certain on a prescribed day, the law holds that the debtor, in case of default in payment must pay interest from the day pay- ment should have been made ; interest is the legal compensa- tion or damage allowed for the use of the money or the deten- tion of the debt. The creditor can acquire nothing beyond his debt by the taking of goods or choses in action as a pledge ; and neither does the pawnor surrender his right to the income and profits of personal property, which he merely deposits as a collateral security for another engagement. If the pledge consist of a debt that draws interest, the interest and the debt being inseparable, must both go to the credit of the 1 Code of Louisiana, art 3135. * Same code, art. 3136, 3187. Story on Bailm., 292, 848. 4 Taylor's Landlord and Tenant, 231 ; Van Rensselaer v. Jewett> 5 Denio, 135 ; 2 Comst R., 135. 16 242 LAW OF BAILMENTS. pawnor. 1 This is so plainly the result of established princi- ples that it is scarcely capable of being fortified even by judi- cial decisions. Parties. All persons, having a legal capacity to contract, may enter into the contract of pledge. The same qualifications are required in this, as in other agreements, to render parties competent to contract ; and there are the same exceptions. 2 Idiots, lunatics, habitual drunkards, infants and married wo- men, as a general rule, are incompetent to make or receive a valid pledge. But the contract of an infant is not void ; and no man is to be presumed incapable of contracting. 3 The fact of incapacity must be established by evidence ; the finding of one a lunatic, on a commission of lunacy, prima ftteie renders his subsequent contracts void. Until the inca- pacity is established, the presumption is that every one is capable of making a valid agreement. And after the inca- pacity is once established by the finding of a jury, the pre- sumption is that it continues, until it is rebutted by positive testimony. 4 It was at one time held that a man shall not be allowed to stultify himself, 5 by pleading either idiocy or lunacy. But the rule has been modified, so as to conform to the universal sense of natural justice ; 8 and it is now settled that all per- sons afflicted in this manner are incapable of making a valid contract. But the incapacity is to be established by the person who seeks to make it the ground of his action or de- fence. Being an exception to the general rule, the proof lies with him who alleges it. Till the contrary appears, sanity is to be presumed ; but after a general derangement is shown, it is then incumbent on the one who insists that the act is Reid v. Rensselaer Glass Factory, 3 Cowen R., 893, and 7 id., 587. Story on Bailm., 302. Story on Con., 84 to 47, 48 to 82 and to 110. Jackson v. King, 4 Cowen R, 207 ; Jackson v. Van Dusen, 5 John. R., 144. 4 Co., 128 ; Co. LitL, 147. Thompson v. Leach, 8 Mod. R., 301 ; Ball v. Marvin, 8 Bligh, N. S. 1 ; Rice T. Peet 15 John. R., 508. PLEDGES OR PAWNS. 243 valid, to show sanity at the very time when it was per- formed. 1 Infancy, as we have seen, is a personal privilege, which no one but the infant can take advantage of. 2 His contracts, though voidable at his election, are binding on all persons who contract with him. In avoiding hj^ contracts he must, however, deal equitably ; and if he avoid an executed con- tract, he must restore the consideration received. 3 If he disaffirm a sale of personal chattels, the vendee may sue for and recover the consideration; for the law does not allow him to use his privilege as an instrument of fraud or injus- tice. Under the recent statutes, giving to a married woman the right to take and hold real and personal property, to her sole and separate use, as if she were a single female, and to receive the rents, issues and profits thereof, free from the disposal and control of her husband, a limited power to con- tract, must, it seems, be implied. 4 Taken together, they evidently contemplate that she shall manage and control her own property ; which can hardly be done without the legal capacity to bind herself by contract. 5 If she is authorized to collect the rents and profits of an estate, it would seem to follow that she must also be invested with the right to enter into such collateral contracts as may be incident to the business. But it is not necessary to enter into this subject more at length. Every species of contract requires that the parties contracting, shall be legally competent to enter into the engagement ; and the contract of pledge stands on the same footing in this respect with others. 1 4CowenR, 207. 1 Willard v. Stone, 7 Cowen R., 22. 8 Roof T. Stafford, 7 Cowen R., 179. 4 Session Laws of 1848, p. 307 ; do. of 1849, p. 528; Blood v. Humphrey, 17 Barb. R., 660. 8 Holmes v. Holmes, 4 Barb. R., 295. The opinions are not uniform on thii subject Switzer v. Valentine, 10 Howard's Pr. R., 109; 3 American Law Re- gister, 385; 7 Paige Ch. R., 14; 20 Wend. R., 570; Dickerman v. Abrahams M. S. opinion by Mr. J. Harris ; the married woman has a power of appoint- ment in relation to her separate estate. 244 LAW OP BAILMENTS. Contract, when void. Under the Code of Louisiana, every lawful obligation may be enforced by the auxiliary obligation of a pledge. If the principal obligation be conditional, that of the pledge is confirmed or extinguished with it. If the principal obliga- tion is null, so alsols the pledge. 1 Under the common law, it has been held that where a person borrows money at usurious interest, which the con- tract does not exhibit on its face, and gives a pledge for its repayment, he cannot treat such contract as void, and sue for the recovery of the pledge, without a tender of the money actually due, with legal interest thereon. 9 This de- cision appears to have been made upon the equitable prin- ciple that a party cannot entitle himself to relief from an usurious contract by a civil remedy, as by maintaining an action for the pledge, unless he tender all the money really advanced. 3 After payment of a debt tainted with usury, the money actually due cannot be recovered back, though its collection may be resisted ; 4 and the giving of a pledge is placing the power of collecting or realizing the debt directly in the hands of the creditor, so that it may be regarded in some sense as a quasi payment. Hence a court of equity, when called upon to give relief against an usurious contract, will, in some cases, require of the party seeking relief that he return the sum actually lent. One who asks for equity must do equity; and the borrower cannot be equitably entitled to keep the money which he has actually received from the lender, and for which the lender has received no consideration. 5 On this ground the court of chancery uni- formly refused its aid on a bill of discovery, except upon the condition that the party seeking it should refund the sum actually received by him, with legal interest. 1 Code, art 8103, 8104, 8106. 1 Causey v. Yatea, 8 Humph., 605. This case was decided under the statute of Tennessee, which does not declare the usurious contract void. See 20 Eng. Com. L. R., 60. 1 Fitzroy v. Gwillim, 1 TermR., 158. 4 2 R. S., 56, 3d ed. ' Livingston v. Harris, 11 Wend. R, 829. PLEDGES OR PAWNS. 245 Our statutes against usury remain now substantially as they stood before the revision of 1830 : the changes pro- posed by the revisors, which would have created a consistent and harmonious system, were nearly all of them rejected by the legislature. The eighth section of the present act was among the amendments then proposed and adopted; and this section, it is held, does not abrogate the previously es- tablished principal, that on the filing of a bill of discovery, alleging usury, the complainant must pay or offer to pay the principal, or the sum actually lent. 1 The latter clause in this same section, forbidding a court of equity to require or compel payment on deposit of the principal sum as a con- dition of granting relief, applies only to cases where the complainant, although he can prove the usury without re- sort to the oath of the lender, has no opportunity of setting up the defence in consequence of the nature of the securi- ties given by him ; as for instance, a bond and warrant to confess a judgment, or a mortgage with a power to foreclose under the statute. As a general rule, where the com- plainant has no legal evidence of the usury, and seeks to compel the defendant to admit or disclose the fact, courts of equity will not compel an answer upon oath, and thus force the defendant to give testimony against himself, where his answer may subject him to a criminal prosecution, to a for- feiture or to a penalty. The plaintiff, in such a case, is bound to waive the forfeiture and pay the amount actually loaned, not only because that is just and equitable, but in order to guard against the possibility of the defendants' s an- swer being made the means of subjecting him to a loss in the nature of a forfeiture. It is doubtful whether the pledgee, who has received goods in pledge as a collateral security for the payment of an usurious debt, can defend himself against an action at law brought for their recovery. By our statute all deposits of goods, or other things whatsoever, whereby there shall be reserved, taken or secured a greater than the established 1 Livingston v. Harris, 3 Paige Ch. R., 528; 10 Wend, 588. 246 LAW OF BAILMENTS. rate of interest, are rendered void. 1 Where an auctioneer re- ceived goods in deposit on an usurious loan from one who had acquired them fraudulently, it was held that he was not entitled to be considered as a bona fide purchaser in an ac- tion brought against him for the goods by the party from whom they were obtained. The taint of usury destroys the good faith of the transaction and renders him liable. 2 So where an agent, intrusted with a negotiable note for the pur- pose of procuring it to be discounted, pledged it with a stranger for money loaned to him for his own use, at usuri- ous interest, it is adjudged that the lender cannot avail himself of the great doctrine of the law merchant, that the holder of a negotiable note, who has received -it in good faith for value, before its maturity, may retain it against the whole world. The transaction, being illegal, for usury, the lender cannot retain the note against the true owner, be- cause he has not received the same in good faith in the usual course of trade. 3 He cannot be a bona fide purchaser on usury ; nor can that be said to be done in good faith, or in the usual course of trade, which is done contrary to the posi- tive prohibition of a statute, and which the statute declares to be void. As to personal property, if its owner has not conferred upon the vendor the apparent right of property or right of disposal, the purchaser will not be protected against the claims of the true owner, though he has purchased the pro- perty for a fair and valuable consideration, in the usual course of trade, without notice of any conflicting claim or suspicious circumstances calculated to awaken inquiry, or put him on his guard. But if the owner has conferred the apparent right of property upon the vendor, even by a sale that may be avoided for fraud, and a delivery of the possession ; or if he has furnished the vendor with the external indicia of title, such as a bill of lading sent to a consignee ; or if he has 1 2 R. S., 5, p. 56, 3d ed. * Ramsdell 7. Morgan, 16 Wend. R., 674; Chapman v. Black, 2 Barn, and Aid., 688. ' Kcutgen v. Parka, 2 Sand R, 60. PLEDGES OR PAWNS. 247 delivered the possession of the property to a person whose common business it is to sell such goods; the person so intrusted with the apparent right to sell, may confer a valid title to one, who buys in the usual course of trade, for a fair and valuable consideration. 1 It is a fundamental principle of our law of personal property, that no man can be divested of his property without his own consent ; and, consequently, even the honest purchaser under a defective title cannot hold against the true proprietor. There must be either title or an authority to sell, in the vendor, in order to make a valid sale. 2 By parting with his property to a vendee, who obtains it fraudulently, on a sale that may be avoided for fraud as between the parties to the contract, the owner arms the vendee with such a right to sell as will prevent him from following and retaking the property from the hands of subsequent bona fide purchasers for value. 3 At law the principle is a sound one that whatever satis- fies or renders invalid the original debt, will equally dis- charge such a collateral undertaking as a pledge, given for its payment; 4 unless, indeed, it should be held that the court will not aid the pawnor to recover back a security which he has voluntarily parted with for value received. A borrower, who has paid usurious interest, may even at com- mon law recover back the excess of interest ; but to entitle him to maintain his action, he must show that he has paid, or offered to pay, all the principal really lent, with the law- ful interest. Perhaps, on a like equitable principle, it should be held that the borrower ought not to be permitted to re- cover back his pledge without restoring the principal with legal interest ; for though the pledge is not a payment, it is a means of paying the principal debt. 5 A pledge made upon condition, must be restored as soon as the condition is fulfilled ; but a pledge for the payment 1 Saltus v. Everett, 20 Wend. R., 267. * Mowry v. Walsh, 8 Cowen R., 243. 1 Root v. French, 13 Wend. R., 572; McCarty v. Vick, 12 John. R., 848; Lickbarrow v. Mason, 2 Term R., 63 ; 5 Term R., 367. 4 Story v. Wooster, 6 Verm. R., 536 ; Russell v. La Roque, 18 Ala. R., 139, 790. * Wheaton v, Hibbard, 20 John. R., 290. 248 LAW OP BAILMENTS. of a debt, is not released or affected by a part payment. If the original debt or engagement be conditional, the pledge, which is but collateral to it, assumes the same conditional character. 1 Sale of Pledge, when and how made. On a failure by the pawnor to pay the debt or discharge the obligation for which the pledge is given, the pawnee may file a bill in equity for a foreclosure and proceed to a judicial sale ; or he may sell without judicial process, upon giving reasonable noticfe to the pledger to redeem, and of the intended sale. 2 The right to redeem continues until the sale ; and the sale cannot be made until after the debt se- cured by the pledge has become due. 3 The non-payment of the debt does not work a forfeiture, either by the civil or at the common law. It simply clothes the pledgee with au- thority to sell the pledge and reimburse himself for his debt, interest and expenses ; the residue of the proceeds belong to the pledger. The old rule, existing in the time of Glan- ville, required a judicial sentence to warrant a sale, unless there was a special agreement to the contrary. But it is now settled that the pawnee may sell on a reasonable notice to the pawnor. But this notice must be a personal notice ; and if the pawnor cannot be found so as to be served with such notice, judicial proceedings must be had, in order to authorize a sale. 4 Before giving such reasonable and personal notice, the pledgee has no right to sell the pledge; and if he do, the pledgor may recover the value of it from him, without tendering the debt ; because by the wrongful sale the pledgee incapacitates himself to perform his part of the contract, that is to return the pledge, and the law does not demand a 1 Holbrook v. Baker, 8 Greenl R., 9; D'Wolf v. Harris, 4 Mason R., 615; United States v. Hooe, 8 Cranch R., 78; Stevens v. Bell, 6 Mass. K, 839; 7 Cranch R, 84. ' Cortelyou v. Lansing, 2 Games' Cases in Error, 200. Stearna v. Marsh, 4 Denio R., 227. * 2 Stor. Com. on Eq., 1008 ; Garlick v. James, 12 John* R., 146. PLEDGES OR PAWNS. 249 tender that would be nugatory. 1 The pawnor must be first called upon to redeem, to the end that he may prevent a sale, or at least have an opportunity to take care that the property is not sacrificed. The duty of the pawnee to call upon the pawnor to redeem and give him notice of the time and place of sale, is the same whether the pledge is made before or after the debt becomes due. 2 In the old books they took the nature of a pledge to be such, that it ought to be delivered at the same time that the money was lent or the debt contracted ; and if the goods were not delivered at the same time, in security for the debt, the delivery was not regarded as a pledge. 3 But no such distinction is now recognized ; and the rule is the same in respect to the rights of the pledgee, as well as his duties connected with the sale, in either case.* The right to redeem under a mortgage of personal pro- perty, may, in like manner, be foreclosed by the mortgagee, without judicial proceedings, by a sale of the property, upon reasonable notice to the mortgagor. 5 The tender of the money due on the mortgage, after forfeiture, does not operate to reinvest the title in the mortgagor, but tender and accept- ance has that effect ; 6 for that is a waiver of the forfeiture. Under the mortgage the title passes, subject only to the con- dition of defeasance ; so that, as soon as the forfeiture has taken effect, the title at law is perfect in the mortgagee ; but there still remains a right of redemption, which can be en- forced in equity, and may be foreclosed by a sale on reason- able notice. 7 Under the English law the pawnee, after his debt becomes due, has an election, whether to file his bill in equity, and obtain a judicial foreclosure and sale of the pledge, or pro- ceed at once to sell, on giving reasonable notice to the debtor McLean v. Walker, 10 John. R, 472; and 2 Caines' Cases in Error, 200. 4 Denio R, 227. Bac. Abr., Bailment, B. 4 Denio, 1427. Patchin v. Pierce, 12 Wend. R., 61, Brown v. Bement, 8 John. R., 96 ; Barrow v. Paxton, 5 John. R, 258. 12 Wend. R, 61 ; 2 John. Ch. R, 100 ; Powell on Mortgages, 1041. 250 LAW OF BAILMENTS. to redeem. 1 The pawnor has no occasion, as a general rule, to come into a court of equity for the redemption of goods deposited in pledge. On the payment of his debt, he has a legal remedy for the recovery of the pledge ; but the pawnee, though he is not bound to bring his action in equity to fore- close the right of redemption, may do so if he so elect ; and Mr. Justice Story considers a judicial sale most advisable in all cases where the pledges are of large value, on the ground that courts watch any other sale with uncommon jealousy and vigilance ; and any irregularity may bring its validity into question. 2 The practice is very general to adopt the prompt and easy remedy of selling on reasonable notice. 3 Under the Code of Louisiana, the pawnee cannot, in case of failure of payment, dispose of the pledge, but must apply to the judge to order that the thing shall remain to him in payment for as much as it shall be valued at by two appraisers, or that it shall be sold at public auction, at the choice of the debtor; and every agreement authorizing the creditor to appropriate the pledge to himself, or to dispose thereof with- out such formalities, is void. 4 This agrees with the Code Napoleon; but in the other states, where the common law prevails, the pawnee is allowed to sell at his discretion, be- ing held responsible, at his peril, to deal fairly and justly with the pledge. Though the contract of pledge give to the pawnee the right to sell without notice, he cannot sell until he has first demanded payment of the debtor. And the rule is the same, although the debt is payable presently and without demand, and notwithstanding, by the terms of the pledge, the creditor may sell at public or private sale, without giving notice to the debtor. 5 The conveyance of the title to a chose in action, when that is done as a means of delivering the possession and 1 Demandray v. Metcalt Free, in Chan., 419 ^Gilbert's Eq. B., 204; Kemp v. Westbrook, 1 Ves., 278 ; Tucker T. Wilson, 1 P. Wins. R., 261; 2 Kent's Comm., 682. Story on Bailm,, 810, ' 2 Kent's Comm., 683. * Code, art. 3183. - "t fr ' ' William v. Little, 2 Comet R., 443. PLEDGES OR PAWNS. 251 perfecting the pledge, does not confer upon the pawnee any greater or more perfect right of sale. Stocks deposited as collateral security, though conveyed absolutely, are deemed and treated as a pledge, which may be redeemed at any time before sale, and cannot be sold without a previous demand of the debt, for whose payment it is given as a collateral secu- rity. 1 The law requires a demand of payment, to the end that the pawnor may have an opportunity to redeem ; he may waive the notice of sale, but that does not dispense with the legal necessity of making a demand of payment. The difference between a mortgage and a pledge of goods or choses in action, is marked and easily understood, but in practice it is often somewhat difficult to decide whether the contract entered into is to be treated as a mortgage or a pledge. The general distinction between them is, that in a mortgage the title is conveyed with a condition of defea- sance, that is to say, a condition rendering the conveyance void, on the payment of a certain sum or sums of money, on or before the day agreed upon ; while in a pledge, the goods bailed are deposited as a collateral security, and only a spe- cial property is transferred to the pawnee, the general title to the property in the meanwhile remaining with the pawnor. 2 In respect to goods and chattels personal, this distinction is very plain ; but there is a large class of cases where the contract still remains a pledge, notwithstanding the title is conveyed. 3 Choses in action cannot be otherwise delivered as a collateral security, and hence as to these and such in- corporeal property as cannot be passed from one to another by delivery, the fact that the title passes does not, as has sometimes been held, 4 create a mortgage. Whether the con- tract shall be held a mortgage or a pledge, is not determined by that fact alone ; the title must be conveyed, in order to create a mortgage, but it is not a mortgage simply because 1 4 Denio, 227 ; 2 Comst. R., 448 ; 1 Sand. R., 351. * 1 Cowen's Tr., 840, 3d ed.; 5 John. R., 258, 261 ; 5 Cowen R., 323 ; 2 Aik. R. 115. a Wilson v. Little ; 2 Comst. R., 443. 4 Huntington v. Mather, 2 Barb. R., 538. 252 LAW OF BAILMENTS. the title is conveyed. To create the contract of pledge there must be a delivery of possession, or a conveyance of title, that draws to itself the possession; while a mortgage of chattels or choses in action, is sometimes valid without such delivery. 1 Though the transfer of stocks be absolute, still if its object .and character are qualified and explained by a co- temporaneous paper, which forms a part of the contract and declares it to be a deposit of the stock as collateral se- curity for the payment of a loan, and there is nothing in the contract to work a forfeiture of the right to redeem or otherwise to defeat it, except by a lawful sale under the power expressly conferred in the agreement, the transaction will be regarded as a pledge. The intention of the parties and the real effect of their agreement are to be considered and respected in its enforcement. 2 The use of the terms, " I hereby pledge and give a lien on," in a contract giving security upon a chattel for the payment of a debt on a future day, permitting the possession to remain with the debtor and providing that on the non-payment of the debt the creditor may take possession, does not prevent the in- strument from being treated as a chattel mortgage ; and a bill of sale, absolute on its face, if executed as a security for the payment of a debt to become due, is held a mort- gage that may be defeated by a payment of the debt when it becomes due. 3 The purport and substance of the con- tract determines whether it shall be considered a mortgage or a pledge. The delivery of a thing, in part execution of a contract, with a stipulation that it may be redeemed on certain terms within a given time, as by the payment of a a stipulated sum of money, creates a pledge. 4 Both the pledge and the mortgage of goods and choses in action are incident and accessory to the original debt or 1 Allen v. Dykere, 8 Hill, 593, and 7 id., 498. 1 Langdon v. Buel, 9 Wend. R.,80; 5 John. R., 258; 9 Wend. R, 845; Brown v. Bementy 8 John. R, 96 ; Ackley v. Finch, 7 Cowen R., 290. * 8 John, R, 96 ; Barrow v. Paxton, 5 John. R., 258. 4 M'Lean v. Walker, 10 John. R, 472. PLEDGES OR PAWNS. 253 obligation, for which they are respectively given as a collateral security. 1 The assignment of the principal debt draws after it the incident; as, if a note secured by a mortgage be assigned, it carries with it the mortgage of its own force and without any words to that effect; 2 for it could not continue to exist as an independent security in the hands of one per- son, while the note belonged to another. 3 Even where it does not in fact accompany the assignment, the assignee, it seems, is entitled to the aid of the mortgage ; so long as that is not extinguished, it may be appealed to in aid of the creditor who holds the original debt. 4 Separated from the principal debt, it has no determinate value, and is not pro- perly assignable. 5 The mortgagee of personal property has no occasion, in order to perfect his legal title, to foreclose the equity of redemption ; his title matures and becomes absolute on the failure of the mortgagor to discharge the conditions of the mortgage. 6 But there is a right of redemption in equity left, which it is necessary to foreclose ; for this right of re- demption is one that cannot be waived beforehand by any agreement between the parties. 7 It may, however, be fore- closed, without judicial proceedings, by a sale of the pro- perty, as in the case of a pledge, upon reasonable notice to the mortgagor. 8 As to what shall be considered a reasonable notice of the sale of goods mortgaged or pledged as a collateral security, there does not seem to be any settled rule. The cases agree that there may be had a sale of the goods on a reasonable previous notice of the time and place of sale ; and that the object of this notice is to give the pawnor an opportunity to 1 Jackson v. Blodget, 5 Cowen R., 202. * Green v. Hart, 1 John. R., 680. 1 Martin v. Mowlin, 2 Burr., 978. 4 Jackson T. "Willard, 4 John. R., 43. 5 Jackson v. Blodget, 5 Cowen R., 202; Powell on Mortg., 1115. 6 Ackley v. Finch, 1 Cowen R., 290; 9 Wend. R., 80. 7 2 Kent's Comm., 683, 3d ed. Patchin v. Pierce, 12 Wend. R., 61 ; 2 John. Ch. R, 100 ; 1 Vet, Sen., 278 ; Powell on Mortg., 1041. 254 LAW OP BAILMENTS. redeem, or to attend the sale for the purpose of seeing that the property is not sacrificed. Judging from the object, it is evident that what would be a reasonable notice in one case, would be entirely inadequate in another. Stocks might be sold at the board of brokers with entire safety on a short notice ; and a sale of that kind has been held good, when made without objection, on a notice of only two days. 1 When the pledge consists of goods and chattels personal, perhaps the safest rule would be to give the same notice which is required to be given of a sale of personal property, seized on execution. 2 The presumption is, that what the law holds a reasonable notice in respect to similar goods, would be held sufficient for the protection of the mortgagee or pawnee of goods. As courts of equity watch such pro- ceedings with vigilance, it is necessary that the manner of sale should be perfectly open and public, and free from all unfairness. 3 There must be six days' notice given of the sale of goods and chattels seized on execution, describing briefly the property, and specifying the time and place of sale. At the time and place specified, the goods to be sold must be present, subject to the inspection and examination of the bidders. 4 Unless the property is so present, the sale will be void. 5 The officer must also point out the property speci- fically, and sell it in parcels. 6 His proper course is to sell only so much of the property, which can be conveniently and reasonably sold separately, as will satisfy the execution. 7 A party who sells under a power, is not bound to sell, at once, all the property bound by the power, and in many cases it would be an act of great oppression to do so. This is clearly the rule where the power is to sell real estate ; 8 Willoughby v. Comstock, 8 Hill R., 889. 2 R. S., 464, 3d ed. 2 Kent's Comtn., 588, 3d ed. 2 R. S., 465. 1 John. Caa., 284; 17 John. R., 116; 14 id., 222. Sheldon T. Soper, 14 John. R., 853. Ilewson T. Deygert, 8 John. R., 833. 1 Caines' Caeea in Error, 18; Co. Litt, 113, a; Houtailing v. Marvin, 7 Barb. R., 412. **~. PLEDGES OR PAWNS. 255 and there does not seem to be any reason why it should not apply where the power is to sell personal property. The mortgagee or pawnee of goods exercises a trust in the act of selling them, and is responsible as a trustee for the way in which he conducts the proceedings. If there be an estab- lished custom in regard to the mode of making such sales, it should be followed ; in the absence of any stipulations in the contract of pledge, it seems, the pawnor may give directions on the subject ; but if he give none and there be no agreement in reference to it, the mode of sale will be left to the sound discretion of the pawnee. 1 1 3 Hill R., 389. If the pledger's right of property in the thing pledged has been sold on execution, it is evident that the notice to redeem and of sale by the pledgee should be given to the purchaser at the sheriff's sale ; since by such sale he becomes the owner of the title to the property. (1 Comst R., 20.) In Saul v. Kruger, the superior court of New-York decide that the interest of the pledgee, that is to say, his right of possession in the things pledged, may in like manner be sold on execution. In fact nothing but the possession of the pledgee can be sold, if, indeed, that can be reached in this manner. The title is not sold, for that is still in the pledgor ; and the right to use the thing pledged is not sold, because that has not been conveyed to the pledgee, under the contract of pledge ; neither has the right of the pledgee to sell and appropriate the pledge to the payment of the debt for which it has been given as a security been transferred, for that is merely a lien which can be enforced only by the party who holds the original debt ; and the debt is a chose in action which cannot be sold on execu- tion. Doubtless any legal interest accompanied by the right of possession for a definite period may be levied on and sold on execution ; but the pledgee has no legal interest, separable from his debt and the rights which he acquires under his contract with the pledgor, and neither of these specifically can be sold on execution. Assuming that his entire interest and right of possession can be levied upon and sold on execution, and it follows that after the sale neither the pledgee nor the purchaser at the sheriff's sale can enforce the lien. The pledgee cannot because his interest has been sold ; and the purchaser cannot because he was not a party to the contract of pledge, does not hold the original debt, and neither the contract nor the lien has been transferred to him. (9 How. Pr. R., 569.) A sale on execution of the pledger's interest in chattels pledged, transfers the title to the property, subject only to the pledgee's lien ; but it is plain that the sheriff who levies upon the pledgee's interest in the things pledged, cannot sell his lien, because the lien cannot exist separated from the debt for the payment of which it is a security. His lien is analogous to that of a mortgage lien, which cannot be separated from the bond or debt, to secure the payment of which it is given. (Jackson v. Blodget, 5 Cowen R., 202.) An assignment of a debt secured by a mortgage on either real or personal property, draws after it the mortgage as an incident, as a collateral security inseparable from the debt scoured by it 256 LAW OP BAILMENTS, If the pledge be created for the benefit of the pawnee and another person, he is not at liberty to postpone the sale at his pleasure. Thus, where a carriage was put into the hands of the defendant as payment, or security for the payment of debts due to him and the plaintiff, and the defendant kept possession of the carriage for more than a year, had it re- paired, and used it as his own, and never sold it, it was held that the defendant, having had a reasonable time to sell it, which he ought to have done at auction, if it could not be sold at private sale, might be considered as himself the purchaser, and that he was chargeable with the amount of the plaintiff's debt, the carriage being of sufficient value to pay both debts. 1 The question here did not arise between the general owner and the pawnee ; and hence, it is not to be inferred from this decision that the pawnee may sell pro- perty committed to him in this manner at private sale. His duty is to sell so as to protect the rights of all the par- ties in interest, and he is not allowed to make an unreasona- able delay in the execution of his trust, which implies that the security shall be made effectual for the purpose for which it is given. 2 One having a mortgage made to secure a debt due to himself, and another debt due to a third person, engaged that when he could by any sale or appraisement of the (Langdon v. Buel 9 Wend. R. 80.) The mortgagor's right to redeem goods in the hands of the mortgagee, cannot be seized and sold under process, for the reason that it is a mere equity, not capable of seizure. (1 Pick., 399.) For the same reason the pledgee's lien cannot be sold on execution, even if his possessory interest may be levied upon and sold. Hence a sale on an execution against a pledgee cannot be said to transfer auy valuable interest in the subject of the pledge, at least no interest valuable to the purchaser. The mortgagee's interest in the mortgaged goods in his possession after forfeiture, may be seized and sold, because he has the title. (8 Wend. R., 258.) But what interest has the pledgee which is capable of being seized, and what in reality is sold on an execution against him! The court in Saul v. Kruger say, that "the purchaser, under a judgment against the pledgee, obtains the possession, and the right and interest of the pledgee." But it is evident that the purchaser, in such a case, does not acquire the pledgee's entire interest, that he does not reach so as to appropriate his lien. 1 Norton v. Squire, 16 John R., 226. ' Pothonier v. Dawson; 1 Holt's N. P. R., 888. PLEDGES OR PAWNS. 257 mortgaged premises, realize a sum equal to both the debts, he would dispose of the same and apply the proceeds to the payment of the debt due to said third person. Having ad- vertised and sold the premises at public auction for the most they would fetch, but not for enough to pay both debts, it was adjudged that he might first lawfully satisfy his own claim and pay the residue only to the other creditor. There being no stipulated appropriation, in case the proceeds fell short of paying both debts, it was considered that the party holding the pledge was entitled to satisfy his own demand first ; and that he was answerable to the third person for only the surplus. 1 Under the Code of Louisiana, there are two kinds of pledges specified ; the pawn, and the antichresis ; a thing is said to be pawned when a movable thing is given as security; and the antichresis is when the security given consists of immovables or slaves. 2 This last species of the contract must always be in writing; 3 probably for a reason similar to that which under our law renders a written transfer of choses in action necessary as a means of delivering posses- sion, or the control of the property into the hands of the pledgee. 4 Under our statute, assignments, as well as sales of goods and chattels by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery and followed by a continual change of the possession of the things transferred, are presumed fraudu- lent and void as against creditors of the assignor and subse- quent purchasers in good faith. 5 And all mortgages, or con- veyances intended to operate as such, are in like manner and to the like extent void unless duly filed. Where one agreed to become the surety of another, in the purchase of a sloop, to be the property of the surety, and 1 Marshall v. Bryant^ 12 Maes. R., 821. * Code, art. 3101, 8102. 1 Art 3143. 4 2 Coumt R., 443. 2 R. S. 195, 196, 3d ed. 17 258 LAW OF BAILMENTS. under his control until the purchaser should pay the pur- chase money, when, and not before, it should become the property of the purchaser ; and the purchaser took a bill of sale of the vessel in his own name and took possession thereof, and assigned the bill of sale to his surety, retaining the possession of the vessel, the money for which the surety had become bound, remaining unpaid, and the original agreement as to the eventual ownership continuing ; it was held that the continuance of the possession of the vessel by the original purchase/, after the assignment, was, under the circumstances, sufficiently explained, and that the case was taken out of the rule of law, that possession by the vendor is prima facie evi- dence of fraud. 1 The possession in such a case may be ex- plained, and shown to be without any fraudulent intent. 2 Unless explained, the presumption is that it is fraudulent ; s the explanation must show some good and valid reason, such as the law will approve, for leaving the possession with the person selling or assigning the property. 4 Mere favor to a debtor is not such a reason. 5 The rule is the same where a bill of sale is given, retaining a right of redemption ; the court decides on what may be received in evidence by way of explanation, and the jury pass upon the explanation proved. 6 One who purchases, with notice of an existing mort- gage, is not a bona fide purchaser. 7 A mortgage of goods, which are at the time in the actual possession of a third per- son, is valid, though there be not an immediate delivery of the things assigned. 8 The want of a change of the posses- sion, under a chattel mortgage, affords the highest presump- tion of fraudulent intent ; but it may be rebutted, and the question of intent is one for the jury. 9 A circumstance that Hall v. Tuttle, 8 Wend. R., 376. Gardner v. Adams, 12 Wend. R., 297. Murray v. Burtia, 15 Wend. R,, 212; Fonda v. Gross, id., 6'28. Randall v. Cook, 17 Wend. R., 63. Wood T. Lowry, 17 Wend. R., 492. Stevens v. Fisher, 19 Wend. R., 181. Sanger v. Eastwood, id., 614. Nash v. Ely, id,, 628. Smith v. Acker, 23 Wend. R., 663, PLEDGES OR PAWNS. 259 prevents a delivery is an excuse only so long as it continues; the mortgage is not a pledge within the meaning of our statute authorizing a sale of the pledger's interest. 1 If the mortgage of chattels be given for a true debt, the question of fraud as to creditors, arising from the continued possession in the mortgagor, must be submitted to the jury, to say whether such possession is satisfactorily explained or not. 2 And the rule is the same in respect to a sale, there being a delivery, or evidence of the delivery of part of the articles sold. 3 The bona fides of the transaction is the true question to be determined by the jury ; they are in such cases to find whether the sale or mortgage was made in good faith, and without any intent to defraud creditors or subsequent purchasers. 4 The case of Hanford v. Artcher was ably and elaborately argued before the late court for the correction of errors, and the principles involved, concerning which there had been an animated conflict of opinion, were considered with great deliberation ; and the result arrived at has been since regarded as a settlement of the law on this delicate and important subject. 5 Before a sale can be had under a mortgage or pledge of chattels, a notice must be served upon the person whose rights are to be foreclosed ; and it is no excuse for not giving him notice, to say that he has absconded, or cannot be found. If the notice of sale cannot be given to him personally, the sale of the property should be authorized by judicial proceedings. 6 If he be dead, his rights descend to his personal representa- tives, who must be called upon to redeem, and are entitled to the same notice of sale as is required to be given to the pawnor. 7 If the pledger's interest has been sold on execu- tion, the purchaser must be notified of the sale. A sale of 1 White T. Cole, 24 Wend. R.. 117 26 Wend. R., 611. Butler v. Van Wyck, 1 Hill R., 438. Prentiss v. Slack, id., 467. Hanford v. Artcher, 4 Hill R., 271. Vance v. Phillips, 6 Hill R., 433, 438. 12 Wend. R., 63. Cortelyou v. Lansing, 2 CaineV Caa. in Er., 200; 1 Conwt R., 20; 9 aw. Pr. R., 569. 260 LAW OF BAILMENTS. the pledge without such notice is a conversion of the pro- perty, which will render the pawnee answerable for its true value, without any reference to the price at which it was sold. 1 And in some cases, as where the pledge consists of stock, the pawnor will be entitled to recover its increased value after the time of the actual conversion, and sometimes even down to the day of the trial. 2 But the reasonable rule of damages would seem to be, to give the owner of the pro- perty its market value at the time he selects to call for it. The pledgee who has wrongfully appropriated the pledge, certainly cannot complain of such a measure of damages. 8 Though a conversion of the pledge, by the pawnee, renders him liable for its value, it does not discharge the original debt. In an action for the pawn, brought against him by his debtor, he may, it seems, recoupe the amount of his debt ; 4 or if the pawn have for any reason been recovered from him, his right of action for his debt will remain to him unimpaired. 5 If there has been an agreement between the parties to the contract, regulating the mode of sale, it must be complied with ; 6 but it is doubtful whether a stipulation, waiving the notice to redeem, would be regarded as valid in law. 7 An agreement to make the pledge irredeemable, would probably be condemned on grounds of public policy, as con- trary to equity and good conscience, and as opening the door to oppression and fraud. On a sale of the pledge, the pawnee, who stands in a fiduciary relation to the pawnor, cannot become a purchaser so as to acquire any personal advantage from his conduct in that relation, to the prejudice of the interests of his princi- 4 Denio R, 227. Fishery. Prince, 3 Burr., 1363; Shepard v. Johnson, 2 East, 211; Hunt T. Fu ler, 2 Black. K., 902. 2 Cainee' Cases in Error, 217. 4 Denio R., 227 ; Jarvis v. Rogers, 16 Mans. R., 889. Ratcliffe T. Davis, Yelv., 179 ; Bacon's Abr. Bailment, B. Stevens v. Ball, 6 Mass., It., 339. T 2 Kent's Comm., 683 ; Story on Bailm., 318, 346. PLEDGES OR PAWNS. 261 pal. But the sale to him is not void, hut voidable at the election of the party whose title is sought to be divested. 1 Under the Code of Louisiana, the property of the debtor is regarded as the common pledge, for the payment of his creditors, ratably, unless there exists some lawful cause of preference. At common law, a creditor of the pawnor, having no interest in the pledge, cannot require it to be sold. 2 But if he have an interest in the thing pledged, he may insist upon the sale. 3 And so doubtless he may, in equity, where the property in pledge is more than sufficient to satisfy the debt for which it is deposited, and the pawnor has no other estate from which a collection may be made. Otherwise the contract of pledge might be converted into a means of delaying and defrauding creditors. The right of the pawnee to collect choses in action, de- livered to him as collateral security, does not imply the right to compromise such demands for a sum less than that due ; especially not where they are unquestionably good. 4 He is authorized to collect, but he must use diligence in doing so, and discharge his duty with fidelity and a watchful regard for the interests of the pawnor. If the contract of pledge contain a condition, that if the pawnor does not return to pay the demand for which the chattels are pledged by a given day, that then the pawnee shall dispose of them for the payment of the demand ; this has been held a power to make the amount of the debt by a fair sale of the property, either publicly or privately. 5 When the mortgagee of real or personal estate takes the thing pledged and sells it, or finally converts it to his own use, he is paid so much only towards his debt as the thing sold for, or was worth at the time of the conversion. 6 If he take the chattel covered by the mortgage, and it be of suffi- Whitlock v. Heard, 13 Ala. R., 776. Badlam v Tucker, 1 Pick R., 389. 16 John R., 225. Garlick v. James, 12 John R., 146; Bowman v. Wood, 15 Mass. R., 634. Brownell v. Hawkins, 4 Barb. R., 491. Herkimer M. & H. Co. v. Small, 21 Wend. R., 278 ; 5 Co wen R., 880 ; 9 id., 846. 262 LAW OF BAILMENTS. cient value to satisfy the debt, the title having become vested in him, the debt is paid. 1 Restitution. As the contract of pledge, like that of a surety, is but ac- cessary to the principal debt or obligation to which it is col- lateral; whatever discharges the original debt, discharges the accessary obligation. 2 The pledge, however, covers the interest as well as the principal of the debt for which it is given in security, and its return cannot be demanded, until payment in full has been made. 3 All contracts to pay money give a right to interest from the time when the prin- cipal ought to be paid. 4 The interest, in short, is the inci- dent or civil fruit of the moneys due. 5 The revenue derived .from labor is called wages ; that derived from stock, by the person who manages or employs it, is called profit; that derived from money or debts due, is called interest. 6 These are all of essentially the same nature, being the regular harvest or return of either labor or capital, which is the produce of labor. It is frequently asserted that under the ancient common law, the taking of interest for the use of money was deemed wholly illegal and criminal. 7 But the first statutes, on the subject, are all negative in their terms, as if design- ed to prohibit a practice that had been previously per- mitted. The first act passed provides that " none shall take for the loan of any money or commodity above the rate of ten pounds for one hundred pounds, for one whole year." 8 The subsequent statutes enacted in England, and in this state, are framed on the same principle, being prohibi- Case T. Boughton, 11 Wend. R., 106 ; 9 id., 83, 292 ; 4 id., 384. Isaack v. Clarke, 2 Bulst. R., 306 ; Elliot v. Armstrong, 2 Blackf., 198. 2 Kent's Comm., 683. 2 Bro. Ch. C., 8 ; Williams T. Sherman, 7 Wend, R., 109. Code of Louisiana, art 537, 640 ; Reuse. Glass Factory T. Reid, 6 Coven R. 687. Smith's Wealth of Nations. Hume's History, 33d chapter ; 6 Cowen R., 608. 87 Henry VIII, chap. 9. PLEDGES OR PAWNS. 263 tory of interest above a certain rate, and recognizing of course the natural right to demand a compensation for the use of money, as independent of, and anterior to any law regulating the contract. Indeed, Lord Hale, who was one of the most -competent and learned chief justices England can boast of, is reported to have said that only Jewish usury was prohibited at common law ; which was some forty per cent and more. 1 This remark is clearly in harmony with the statutes ; for it cannot be inferred from a negative law, prohibiting the taking of interest beyond a certain rate, that all interest was illegal prior to its passage. The law itself does not affirmatively give any interest whatever ; it only prohibits an excessive and usurious interest. This point is only important here, because it serves to de- velop the reason which underlies the decisions, allowing inte- rest on all debts from the time they become due and payable. The law implies a contract to pay interest on money due, be- cause the creditor has a natural and equitable right to a con- sideration for the use of his property, while it is withheld from him ; so that the interest becomes the legal increase of the debt. In short, the interest is so much an incident of the debt that in some instances it is permitted to be re- covered even beyond the penalty of the bond on which it accrues. 2 Besides, the interest, being a certain profit al- lowed by law, it is a part of the debt or obligation, which is covered by the pledge. 3 The rate of interest is determined by the law of the state where the contract is made, or where it is to be executed if the execution is to take place in another state. 4 It must be a contract valid in the state where it is made ; if it be void there on account of usury, it will not be enforced anywhere else. 5 Where personal property is delivered in payment of an usurious debt, it cannot be recovered back in an action in the nature of trover ; but where goods are delivered in 1 Hard. Rep., 420. * 17 John. R., 511 ; 1 Paige, 220. * Clark v. Bu^h, 3 Co wen R., 151. * 2 N. H. R,, 42. 1 Orii, 9 Cowen II. , 62. * Smith v. James, 7 Cowen R.. 328; Rooth v. Wilson, 1 Barn, and Aid., 69. 1 Lyle v. Barker, 5 Bin., 467, 460. 4 lagersoll v. Van Bokkelin, 7 Cowen R., 670, and the cases there cited Pomeroy v. Smith, 17 Pick. R., 86; 13 Co. Rep., 69. * 2 Caines' Cas. in Error, 200; Kemp v. Westbrook, 1 Vea. R., 278 ; Higgins v. Scott, 2 Barn, and Adolph., 413; Yelv. R., 178, 179; Gage v. Bulkley, Ridg. Cas. Temp. Hard., 278. 6 Cleverly v. Brackett, 8 Mass. R., 150. 7 Whitaker v. Sumner, 2 Pick. R., 399; 14 Pick. R., 332) 5 Pick. R., 178. PLEDGES OR PAWNS. 271 It is said that the right of the pawnee to the pledge, as a security, may be extinguished by his taking a higher security for the debt, such as a bond, or by his recovery of a judgment thereon'. 1 But the doctrine of merger under our law, allows the courts in many cases to look behind the judgment to see upon what it is founded, for the purpose of protecting the equitable rights connected with the- original relation of the parties. 2 And it is held expressly that a collateral security of a higher nature, as a bond and warrant of attorney, on which judgment is entered, does not extinguish the original contract, as long as it ramains unsatisfied. If executed be- tween other parties, covering also other debts, it will be deemed only a collateral security. 3 A debt is not honestly extinguished until it is paid, and our courts do not incline to multiply artificial mergers. 4 A judgment recovered on another judgment, is not a satisfaction of the latter till the money is paid. 5 Neither is a recovery, on a covenant for the payment of rent, an extinguishment of the rent, without actual satisfaction. 6 Whether a judgment confessed for a debt, which the debtor had previously secured by notes and a chattel mort- gage, operates to merge and extinguish the prior securities, will depend upon the intent of the parties to the judgment ; and the declaration of the parties that the judgment was taken as collateral to the prior securities, is evidence of that fact for the consideration of the jury. 7 The doctine of merger, as laid down in Butler v. Miller, does not work the extinguishment of collateral securities until the original debt is satisfied. The rule, that a security of a higher nature ex- tinguishes inferior securities, only applies to the state or 1 Story on Bailm., 360, 361. f Clark v. Rowling, 3 ComsL R., 216. * * Day v. Leal, 14 John. R., 404; 13 id., 240; 11 id., 513; 4 Cowen R., 567; Davis v. Anable, 2 Hill R., 339 ; Sterling r. Rogers, 25 Wend. R. 658. 4 Gregory v. Thomas, 20 Wend. R., 17. * Preston v. Preston, Cro. Eliz., 817 ; Mumford v. Stocker, 1 Cowen R., 1 ; An drews v. Smith, 9 Wend., 53. 8 Chipman v. Martin, 13 John. R,, 241. 7 Butler v. Miller, 1 Demo R., 407, and 5 id., 159. 272 LAW OF BAILMENTS. condition of the debt itself, and means no more than this ; that when an account is settled by a note, a note changed to a bond, or a judgment taken upon either, the debt as to its original or inferior condition, is extinguished or swallowed up in the higher security ; and that all the memorandums or securities by which such inferior condition was evidenced lose their validity. It has never been applied to the extin- guishment of distinct collateral securities, whether superior or inferior in degree. These are to be cancelled by satisfac- tion of the debt, or voluntary surrender alone. 1 A pledge being a security of this nature, is not affected by the reco- very of a judgment, or the taking of a bond, or other security for the original debt ; it is given to secure the payment of the demand, and the law will hold it to the accomplishment of that purpose. A sale of the goods pledged, on reasonable notice, trans- fers the title to the purchaser ; and a recovery against the pawnee for a conversion or appropriation of the property to his own use, as by a sale without a previous notice to re- deem, works a legal transfer of the goods to the bailee, on payment of the amount recovered. 2 A recovery does not change the title until an actual satisfaction is made. The pawnor is not driven to an action for every misconduct of the pawnee, amounting to a conversion of the things pledged ; for in an action against him to recover the original debt, he may recoupe the value of the goods bailed. 3 Sir William Jones concludes the consideration of the sub- ject of pledges by a statement of this singular case, from a curious manuscript preserved at Cambridge, containing a col- lection of queries in Turkish, with the decisions or concise answers of the Mufti at Constantinople : " Zaid had left with Amru divers goods in pledge for a certain sum of money, and some ruffians having entered the house of Amru took away his own goods together with those pawned by Zaid." The question propounded was, " whether since the debt 1 Butler v. Miller, 1 Comet R., 500. 1 Otterhont v. Roberts, 8 Cowen R., 43 ; 7 id., 848 ; 1 John. R. t 290. Htcarn* v March, 4 Denio R., 227. PLEDGES OR PAWNS. 273 became extinct by the loss of the pledge, and since the goods pledged exceeded in value the amount of the debt, Zaid could legally demand the balance of Amru;" to which it was answered by the law officer of the Ottoman court, with the brevity usual on such occasions, it cannot be. From this the learned jurist infers that either the Turks must have been wholly unacquainted with the imperial laws of the Roman Empire in the East, or that the loss in this case must be understood to have occurred though Amru's fault. From the knowledge we have of the habits and customs of .the race of Amru, it would be no more than reasonable to infer that he must have connived at the robbery, and that he ought to have been held answerable for the loss. It is certain, however, that the Turks did not, to any very great extent, adopt either the arts, the learning, or the laws of the East- ern Empire, 1 1 Jones on Bailm., 84, 85. Pledges for debt are of the highest antiquity; they were used in very early times by the roving Arabs, one of whom finely remarks, " that the life of man is no more than a pledge in the hands of destiny;" and the salutary laws of Moses, which forbade certain implements of husbandry and a widow's raiment to be given in pawn, bear a close resemblance to the Roman law, which prohibited wearing apparel, utensils for tillage, and things esteemed sacred in the Roman law, from ever being put in pawn. The common law is not so humane; or perhaps the necessity of such enactments, is not now so great as it must have been in the earlier ages. Story on Bailm., 293 ; Jones on Bailm., 84. 18 274 LAW OP BAILMENTS. CHAPTER VI. CONTRACTS FOR HIRE. BAILMENTS for hire embrace a great variety of contracts connected with and growing out of the delivery of personal property, on an agreement mutually beneficial to the parties contracting. Letting for hire, or as the phrase is commonly used, letting to hire, is a bailment, wherq compensation is given for the use of a thing, or for labor and services about it. 1 The contract embraces the hire of deposit, 2 the hire of things, 3 the hire of labor and services, 4 and the hire of car- riage or transportation. 5 Warehouse-men receive goods on deposit for a compensation paid for the custody or storage of the goods. 6 One who hires a thing for use, acquires a right to the possession and use of the thing hired for the term agreed upon ; while the letter to hire, gains an absolute property in the price of the hire. Where cloth is delivered to a tailor to be made up into a suit of clothes, or a gem to a jeweler to be set or engraved, or timber to a carpenter to be framed into a house ; the tailor, jeweler and carpenter are bailees for labor and services, to be bestowed on the things intrusted to them, for a compensation. The hire of carriage is the contract under which the common carrier, by land or water, engages for the carriage and safe delivery of goods and merchandise This is a species of bailment of great importance and daily use in the commercial world. 2 Kent's Comm., 586 ; Jones on Bailm., 85, 86. Jones on Bailm., 97. 2 Kent's Comin., 586. 1 Cowen's Trea., 66, 3d ed. Jones on Bailm., 90. Story on Bailm., g 457. CONTRACTS FOR HIRE. 275 Our law of bailment has, to a considerable degree, grown out of the civil code ; and many of the principles now established in the common law have their root and founda- tion in the laws of imperial Rome ; but with us, as with them, the vital element of every law is that natural equity which inspires and gives to it an authority over the human mind. We do not accept it. as a compliment to an early age or to the masterly genius of a great people ; it is its own authority, witnessed by the harmonious consent of people, widely separated from each other in lineage and language, but loyal to the same eternal law of justice. 1 It may not be of any practical importance, but it is grati- fying to be able to trace a principle of law to its source ; to find, for example, that the rule which requires of one who hires a chattel for use, the same degree of diligence that all prudent men, that is the generality of mankind, use in keeping their own goods, is older than any existing legisla- tive power. 2 We feel entire confidence in a law that has the sanction of the concurrent wisdom of nations in all ages ; and which, like a proverb freighted with a rich and just thought, passes from mind to mind with an inherent vitality that makes it a part of the currency of the world, and stamps it with the image and superscription of a uni- versal law. 3 It is this kind of universality which is implied in the pregnant maxim, that the voice of the people is the voice of God. Sir William Jones considers bailments for hire under three classes : 1. Locatio or locatio-conductio rei, is a contract by which the hirer gains a transient qualified property in the 1 The contract of letting and hiring is usually divided into two kinds; 1. Lo- afio or locatio-cond-tc'io ret, the bailment or letting of a thing to be used by the bailee for a compensation, to be paid by him. 2. Locatio operis, or the hire of the labor and services of the bailee for a compensation to be paid by the bailor. And this last kind is again subdivided into two classes : 1. Locatio operis faciendi, or the hire of labor and work to be done, or care and attention to be bestowed on the goods bailed by the bailee for a compensation ; or 2 Locatio operis mercium vehendarum, or the hire of the carriage of goods from one place to another for a compensation. Story on Baihn., 370. 1 Jones on Bailin., 87, 88. 1 Id.. 89. 276 LAW OF BAILMENTS. thing hired, and the owner acquires an absolute property in the stipend or price of the hiring ; so that in truth it bears a strong resemblance to the contract of sale ; in effect it^is a sale of the use for a given time. 2. Locatio opens faciendi, or letting out of work and labor to be done, or care and at- tention to be bestowed by the bailee on goods bailed for a recompense. 3. Locatio operis mercium vehendarum, is a con- tract for the carriage of goods for a reward, which admits of many varieties of form, but of none in the substantial obliga- tions of the bailee. 1 This classification is convenient enough where the intention is to develope the principles of the common law by a constant reference of them to the forms of contract used under the civil code, with a view of demon- strating the constant harmony which is found or supposed to exist between the two systems. But it is not so appro- priate in a work designed for practical utility, and whose main object is to ascertain and state in plain terms the estab- lished principles of the common law. For us, we appre- hend, it will be found a more convenient order of arrange- ment, to consider the subjects embraced in this general class of bailments for hire, under English terms, which express in clear as well as popular language, the nature of each con- tract. Hire of deposit, hire of things, hire of labor and ser- vices, and hire of carriage, are probably as brief and definite and expressive, as any equal number of Latin words ; and they certainly have this advantage, of being universally un- derstood. HIRE OF DEPOSIT. Where one person deposits his goods with another, and pays a consideration for the custody of them, the contract being mutually beneficial to the parties, the bailee must an- swer for ordinary neglect. 2 He is required to exercise a degree of diligence greater than that which is demanded of the depositary without reward ; and he is excused for a de- 1 Jones on Bailm., 86, 90, 103 ; 2 Kent's Comm., 586. 1 Jones on Bailm., 1 1 9. CONTRACTS FOR HIRE. 277 gree less than that which is exacted of the borrower. 1 The fact that he receives a reward binds him to a diligence, in- creased beyond that of the mere depositary ; while the ser- vice he renders to the owner of the goods, in keeping and guarding them, brings him under a less stringent obligation than that which rests upon one who borrows the use of a chattel, without rendering any sort of recompense for it. When it is said that the depositary for hire is responsible for the exercise of ordinary diligence, the meaning is, that he is. bound to take that care of the goods intrusted to him, which every person of common prudence, and capable of governing a family takes of his own concerns. 2 Ordinary care is the settled and established standard of diligence. Though the word ordinary is equivocal, and sometimes in- volves a notion of degradation, its legal import is invariably the same, denoting the measure of diligence which prudent men of business commonly take of their own affairs. It is a positive and affirmative rule, which remains unchangeable, while it adapts itself to the nature of the business in hand, and to the fixed habits and usages of the community in which it is executed. There are infinite shades of care, from the slightest mo- mentary thought or transient glance of attention, to the most vigilant anxiety and solicitude ; but extremes, in this case, as in most others, are inapplicable to practice ; the first ex- treme would seldom enable the bailee to perform the con- dition, and the second ought not in justice to be demanded ; since it would be harsh and absurd to exact the same anxious care which the greatest miser takes of his treasure, from every man who borrows a book or a seal. The degrees of care, therefore, which the law requires, lie between these extremes, and are graduated so as to meet the circumstances and the nature of each particular contract. 3 1 Jones on Bailm., 36, 65, 91. * Doorman v. Jenkins, 2 Adolph. and Ellis, 256 ; Jones on Bailm., 6 ; Story on Bailm., 11. 1 Jones on Bailm., 6, 117, 118, 11. 278 LAW OF BAILMENTS. The rule, as we have said, is an established and invariable rule ; but the subject matter upon which it operates, changes continually with the circumstances attending the execution of each contract. What would be ordinary diligence in taking care of a quantity of pig-iron, would not suffice in the custody and preservation of a picture ; for the plain reason that what would be ordinary diligence in one case would be much less than ordinary diligence in the other. 1 In this sense, what shall be deemed ordinary care, is a ques- tion of fact, to be resolved by an inquiry into the nature of the business, and the extent of that care which is ordinarily exercised by prudent men in the preservation of the like kind of property. 2 Where one delivers horses or cattle to another for pastur- age for a compensation to be paid, the bailee is not respon- sible if they be stolen from the field ; but if the person to whom horses or cattle are bailed for agistment, leave open the gates of his field, in consequence of which neglect they stray and are stolen, the owner has an action against him. 3 If a man takes in a horse, or other cattle, to graze and de- pasture in his grounds, which the law calls agistment, he takes them upon an implied contract to return them on de- mand to the owner. 4 A special qualified property is trans- ferred to the bailee, together with the possession ; and he may, as well as the bailor, maintain an action against such as injure and take away these chattels. Being responsible for their redelivery on demand, he may vindicate his pos- sessory interest against any stranger or third person. 5 The owner may also bring his action for the recovery of the property, but not both of them. 6 In order to recover, the plaintiff must show a present right of possession in the 1 Mytton and Cock, 2 Stra., 1099 ; Story on Bailm., 11. * Vaughau v. Menlove, 3 Bing., New Cas., 468, 476. 1 Mosley and Fossett. Mo., 643; 1 Ro. Abr., 4; Bac. Abr. Bailment, D. 4 Cro. Car., 271 ; 2 Black. Com., 462. 2 Black. Com., 453; 13 Rep., 69; Rooth v. Wilson, 1 Barn, and Aid., 69; Rushforth v. Hadfield, 6 East R., 619; 7 East R., 224; Blake v. Nicholson, 3 M. and S., 167 ; 6 id., 180; Duncan v. Spear, 11 Wend. R./54. ' Spencer v. Blackraan, 9 Wend. R., 167 CONTRACTS FOR HIRE. 279 chattels. The owner cannot recover, if it appear that the bailee has an interest in them for an unexpired term, or a a present right to the possession or use of them. 1 Under the Code of Louisiana the general rule is, that the depositary is bound to use the same diligence in preserving the deposit as he uses in preserving his own property ; and this rule is more rigorously enforced where he receives a com- pensation for the custody. 2 The peculiarity of this law is, that it measures the care demanded of the bailee by the habits of each individual who may happen to hold that rela- tion. . It has not the severe quality of an abstract princi- ple, that prescribes the same unalterable rule of action for every man ; and hence for purposes of equity, in all excep- tional cases, it has a more ready adaptation to circumstances, which renders it in some sense superior to the common law. Indeed, the object of the equity branch of English and Ameri- can jurisprudence is to allay, modify, qualify and soften the rigor of the common law. 3 To detect latent frauds and concealments, which the process of the courts of law is not adapted to reach : to enforce the execution of such matters of trust and confidence as are binding in conscience, though not cognizable in a court of law : to deliver from such dan- gers as are owing to misfortune or oversight, and to give a more specific relief, and more adapted to the circumstances of the case, than can always be attained by the rules of the positive common law, this is the province of our courts of equity ; which are cognizant, moreover, in matters of pro- perty only. 4 In general, the bailee who is intrusted with the custody of goods for hire, not being bound by law to receive them, has no lien except by a special agreement. 5 His contract for the keeping, or custody of the goods, stands on the same footing with other contracts, and may be enforced in the same manner. The bailee for hire has his lien for his rea- Bush v. Lyon, 9 Cowen R., 52 ; 11 John R., 285; 13 Wend. R., 63. Code, art 2908, 2909. Warren's Law Studies, 279, 296, 2d ed., per Lord Eldon. 1 Bla. Comm., 92. Grinaell v. Cook, 3 Hill R., 486 ; Morgan v. Congdon, 4 Comst R,, 562, 280 LAW OF BAILMENTS. sonable charges wherever by his labor and skill he has im- parted an additional value to the goods. This rule does not extend to the farmer who receives the horses or cattle of another to pasture, unless there be an agreement to that effect. 1 The factor to "whom goods are consigned for sale, has by custom a lien upon them for advances made or liabili- ties incurred thereon, and also for his reasonable charges or commissions. 2 His duty is to manage the affairs of his prin- cipal in the same manner, and with that care and diligence which a prudent and discreet merchant would exercise in relation to his own affairs. But he must obey his instruc- tions; because it is the principal who bears the loss. The Actor must, for that reason, be liable for negligence or for departure from instructions in the same manner as in ordi- nary consignments. 3 After the sale of the goods by the factor, his lien remains on the proceeds ; but it attaches only on goods which have come regularly into his possession. He has no lien on goods of which he acquires possession by an illegal act, or in bad faith. 4 A factor who receives goods without instructions, must act on his best judgment and sell to the best advantage. A simple consignment of goods unexplained, by the well set- tled rule of commercial law, only shows that the consignee is thereby constituted the authorized agent of the owner, whoever he may be, to receive and sell the goods and account for the proceeds. 5 The effect of a commission del credere is, in several particu- lars, to place the factor in a new relation as to his principal. It is true, he is the debtor, but the principal still retains the 1 Chapman v. Allen, Cro. Car., 271; Yoik v. Grenaugh, 2 Ld. Raym, 868 ; Judson T. Etheridge, 1 Groin p. and Meea., 748. 1 Bell v. Palmer, 6 Cowen R., 128; Biyce v. Brook, 26 Wend. R., 867; 21 id., 14. * Rundell v. Moore, 8 John Cos., 37; Evans T. Polter, 2 Gall., 13; Grey T. Oakly, 13 John R., 833; 8 Seldeu R., 186. 4 The Bank of Rochester v. Jones, 4 Com. R., 497 ; Mitchell v. Ede, 11 AdoL and Ellis, 888. * Conard v. The Atlantic Ins. Co., 1 Peter's R., 444 ; 7 Cowen R., 328 ; 2 Hill, 151; 3 Selden R., 288; his lien dos not commence until he accepts the goods on th terms of the consignment CONTRACTS FOR HIRE. 281 right, at any time before payment, to resort to the purchaser as collateral security. It is a rule for the protection of the principal. A general factor may wait to receive instructions as to the mode of remitting the net proceeds, and is not liable to an action until a default, on his part, in remitting or paying the proceeds according to the orders of his prin- cipal. 1 The only difference )>eteen a factor, acting under a del credere commission, or without one, is -as to the sales made. In the former case he is absolutely liable, and may correctly be said to become the debtor of his principal ; but it is not strictly correct to say that he is placed in the same situation, as if he had become the purchaser himself ; for, as we have seen, the principal, notwithstanding this liability, may exercise a control not allowable between creditor and debtor. When the principal appears, the right of the factor to receive payment ceases. The effect of the commission is not to extinguish the relation between principal and factor, but applies solely to a guaranty that the purchaser shall pay. The liability is not contingent, so as to require legal mea- sures to be exhausted against the purchaser, before the factor is bound, but an engagement to pay on the day the pur- chase money becomes due. Although the factor is abso- lutely liable, he is not bound to pay until the money be- comes due from the purchaser. Subject to the limitations above mentioned, the factor, under a commission, becomes a debtor to his principal. 2 The doctrine of general lien in favor of a factor, it seems, is not confined to a general agency, but applies as well to a limited number of distinct transactions as to a continuous dealing. 3 Whenever the relation of principal and factor exists, the right of lien attaches to secure all advances made or liabilities incurred in the the course of his business by the factor. So also it seems that the doctrine of lien may be enforced by a purchasing, as well as by a selling factor. 4 1 Ferris v. Parris, 10 John R , 285. 3 Baker v. Langhorne, 6 Taunt., 519; Leverich v. Meigs, 1 Cowen R., 645- M'Kenzie v. Scott, 6 Brown Par. Caa, 280 ; 7 Taunt, 164. * Bryce v. Brooks, 26 Wend R., 367 ; 21 id., 14. 4 26 Wend. R., 372; 12 Wend. R., 362; Steveng v. Robbins, 12 Mass. R., 182. 282 LAW OF BAILMENTS. A factor may deliver the goods of his principal to a third person as security, with notice of his lien, and as his agent, to keep possession for him in order to preserve the lien. 1 But he cannot pledge the goods of his principal for ad- vances thereon. 2 If he do so, it is a conversion, and he becomes liable for their value.* A factor, advancing money on goods in his hands, is not confined in his remedy for the advances to the goods or fund deposited ; he gives a joint credit to the fund and to the person of his principal. But the nature of the contract requires that resort must first be had to the fund, if it can be made available. 4 He is entitled to charge interest on his account, where his customer knows that that is his ordinary usage. 5 The payment of a balance of account by a factor or commission merchant to his principal, after the sales are made, and for the purpose of closing the accounts between the parties, is an assumption by the factor of the outstanding debts ; and consequently the principal is no longer accounta- ble or bound to refund, though the factor finally fail to re- cover the price of the goods so sold on commission, to the proceeds of which he looked for reimbursement. 6 Taking a security, such as a bond or note, payable to himself on a sale of his principal's goods, does not in this state per se render the factor responsible to his principal for the value of the goods sold ; the note does not extinguish the demand, but leaves the principal to his usual remedy. 7 It seems to have been held otherwise in the circuit court of the United States in the Pennsylvania district, where a bond was taken for the amount payable to the factor. 8 As he may sell on credit, unless prohibited by his instructions, he is not respon- 1 Urquhart v. M'lver, 4 John. R., 108. Buckley v. Packard, 20 John. R., 421. 1 Kennedy T. Strong, 14 John. R., 128, 4 Corlie* v. Widdifield, 6 Cowen R., 181. Meech v. Smith, 7 Wend. R., 315. * Oakley v. Greenshaw, 4 Cowen R., 250. * Corlies v. Gumming, 6 Cowen R., 181. Jackson v. Baker, 6 Cowen R., 183, note a; Price T. Ralston, 2 Dall., 60; but see Goodeoow v. Tyler, 7 Mass. R., 36. CONTRACTS FOR HIRE. 383 sible if he appear to have acted with reasonable care and prudence, and has not been guilty of either a breach of orders, negligence or fraud. 1 And where he sells on credit, he is not liable to pay until the purchase money becomes due. But if, at the expiration of the credit given, he take a note or other security payable to himself, he makes the debt his own. 2 But the principal is not compelled to accept the factor as his debtor for the amount, nor to relinquish any part of his security for the debt ; he may follow either the identical artitle, or its proceeds in the possession of the fac- tor, his legal representatives or assigns, so long as he can trace his property or the proceeds, and the same has not been paid away without notice of the principal's claim. 3 A payment to the factor is good, but the principal has a right to control the collection, and may sue for the price of the goods sold in his own name, whether the sale was made by a factor or by an auctioneer. 4 The factor, being a commercial agent whose rights and resposibilities are regulated with a view to public policy, does not stand in the same relation to his principal as the ordinary depositary for hire. It is true, he receives a com- pensation for the custody of his principal's goods ; but that is not the chief nor even an important part of his duties ; he acts as an agent to purchase and sell goods, and is re- sponsible not only as a bailee for their safe keeping, but as an active agent for the fidelity with which he discharges his active trust. 5 Where his instructions are clear, he must observe them ; 6 where these fail, he is at liberty to exercise his discretion according to the general usages of trade. If he acts with diligence and good faith, he will be protected ; but his diligence must be skillful, and his good faith must 6 John. R , 69 ; and 6 John. R., 68. Hosmer v. Beebe, 14 Martin's Louis R., 368; 2 Kent's Comm., 623. Veil v. Mitchell, 4 Wash. Cir. R, 105; Taylor v. Plumber, 3 Maule. end Scho., 562. Girard v. Taggart, 5 Serg. and Rawle., 19. Story on Bflilm., 455, 456. Shetter v. Hurlock, 1 Bing. R.. 34. 284 LAW OP BAILMENTS. be as affirmative and active as the nature of his contract demands. 1 Warehouse-men. A warehouse-man, or depositary of goods for hire, is bound only for ordinary care, and is not liable for a loss arising from accident where he is not in default ; and he is not in default when he exercises such due and common diligence in the care of goods intrusted to trim as he would bestow in the care of his own. 2 If the compensation he receives be for house-room, and not a reward for care and diligence, the bailee is only bound to take the same care of the goods as of his own ; and if they be stolen or embezzled by his ser- vant, without gross negligence on his part, he is not liable; 3 and the onus of showing negligence seems to be upon the plaintiff, unless there is a total default in delivering or ac- counting for the goods. 4 The warehouse-man, who is also a wharfinger or forward- ing merchant, assumes the double responsibility of storing and forwarding the goods intrusted to him ; and is respon- sible for ordinary care, skill and diligence in the discharge of the duties incident to the business. A roll of carpeting was delivered by the plaintiff's agent to the clerk of the defendant, the latter being a storage and forwarding mer- chant, having his place of business on the line of the Erie canal, to be forwarded as directed, in the usual course of business; the carpeting being deposited, as other goods were, in the defendant's store, as he was in the habit of receiving them ; the charges to follow the carpeting, and to be paid at the end of the route, in the customary manner : the defend- ant took no receipt and kept no memorandum of the trans- action, and having totally failed to account for the property from the tune it was received by him, it was held that he 1 Ulmer T. Ulmer, 2 Nott and McCord, 489 ; 2 Kent's Comm., 623, 624, 625 ; Micklethwait* T. Thebaud, 4 Sand. R., 97. 1 4 Term R., 581 ; Peke's N. P., 114 ; 4 Esp. N. P. R., 262. 1 Finacue v. Small, 1 Eep. N. P. R., 815; Schmidt v. Blood, 9 Wend. R, 268. 4 7 Co wen R, 500, and note a. CONTRACTS FOR HIRE. 285 was liable in his character of warehouse-man and forwarder for the value of the property, without further proof of negli- gence in the first instance ; and that the defendant was bound to give some account of the property in order to cast upon the plaintiff the onus of proving negligence. 1 Where the defendant shows the goods to have been lost, it is held the law will not intend negligence, and that then the onus of proof is shifted upon the plaintiff. 2 The refusal to deliver the goods on demand is prima facie evidence of a conversion. 3 The bailee is not at liberty to be silent when a reasonable demand is made, though not at the place stipu- lated for delivery. 4 Such silence is a refusal, or a total fail- ure to account for the property delivered, which renders him liable. 5 It appears that by the custom of warehouse-men, known and established, they have a right to receive goods from the carrier, if in apparent good order, and advance to the latter his reasonable charges for the carriage of them, and to hold them subject to the. lien of the carrier for the amount thus advanced ; and if delivered to the owner without immediate payment, at the owner's request, a suit may be maintained to recover the amount advanced to the carrier in pursuance of such custom; if the goods have been injured by the car- rier, which injury is not apparent or known to the ware- house-man at the time of his receiving the goods, the owner must look to the carrier for his damage, and cannot recoupe such damage in an action by the warehouse-man. 6 The par- ties are supposed to contract with a reference to the uniform custom, so that the established custom enters into and makes a part of the contract. Where goods are delivered to a carrier, marked for a particular destination, without any 1 Bush v. Miller, 13 Barb. K., 482. 1 9 Wend. R., 268 ; 2 Salk., 655. 1 Dunlap v. Hunting, 2 Deuio R., 643. Being bound to deliver on demand, an unqualified refusal to deliver, is sufficient evidence to justify the jurj in find- ing a conversion. 4 Higgins v. Emmons, 5 Conn. R., 76 ; S iogerland v. Morse, 8 John. K., 474. 6 13 Barb. R., 491. 6 Sage v. Gittner, 11 Barb. R., 120. 286 LAW OF BAILMENTS. directions as to their transportation and delivery, save such as may be inferred from the marks themselves, the carrier is only bound to transport and deliver them according to the usage of the business in which he is engaged, whether the consignor knows of the usage or not. 1 If, for example, goods are marked for Buffalo, and delivered to a transportation company in New- York, whose line ceases at Albany, they must be forwarded by the canal or railroad, according to the uniform custom ; the carrier has a right to presume that the consignor of the 'goods intends the carrier shall transport and dispose of them in the usual and customary way. And when he does this, by passing them over to a common car- rier at Albany, to be carried to, and delivered at their place of destination, his liability ceases. 2 Where such is the general custom of business, a delivery by the common carrier to a warehouse-man at the place of destination, is a delivery to the consignee, so as to release the carrier from his liability as such. 3 If there be no custom shown, it is the carrier's duty to make a personal delivery to the consignee ; but the usage and course of business may be proved, so as to regulate the mode of delivery. 4 The usage and custom, regulating the business of warehouse-men, have the same force in enlarging and limiting the obligations into which they enter. The warehouse-man, who receives goods from the carrier in apparent good order, and pays the car- rier's charges thereon, does not acquire simply the interest of the carrier, subject to any claim there may be against him for damages. He does not stand in the relation of an as- signee of the carrier's charges; nor does he assume the burden of showing that the goods were not injured while in the custody of the carrier. 5 Where a warehouse-man delivers property deposited with him for storage, to some person other than the true owner, 1 Van Santvoord v. St. John, 6 Hill R., 157. 1 Gareide v. Proprietors of Trent and Mersey Navigation, 4 Term R., 681. * 4 Term R., 581 ; Price v. Powell, 3 Comst R., 822. 4 Gibson v. Culver, 17 Wend. R., 305; 5 Term R., 889; Ostrander v. Brown, 15 John. R., 39; Barnes v. Foley, 5 Burr., 2711 ; 7 East R., 224. 11 Barb. R., 120. CONTRACTS FOR HIRE. 287 through either mistake or negligence, he is answerable for a conversion of the property. 1 And the conversion will be deemed to have occurred at the time of the demand and re- fusal to deliver the property ; and the owner may recover the value of the goods at that time with interest, or the highest price between that time and the day of the trial. The evidence of a refusal to deliver on demand, casts the onus upon the bailee to show that the property has been lost without fault or neglect on his part. 2 Where goods deposited with a warehouse-man are sold, it is clear that the purchaser could not formerly recover in his own name in an action of assumpsit brought upon the con- tract of bailment made with the former owner ; but the contract being assigned, it must be otherwise under the Code of Procedure. 3 So, also, it was held under the former prac- tice, that where goods were lost through the mere omission of the carrier, an action of trover would not lie even after de- mand and refusal, but that the owner should bring either assumpsit or a special action on the case. 4 The reason govern- ing this decision was based on the form of the action; it being necessary in the action of trover to prove a conversion ; and as a mere non-feasance does not work a conversion of the property, that form of action could not be sustained. 5 A receipt of a quantity of provisions to be paid for when sold, at a stipulated price, is evidence of a sale ; and after a considerable lapse of time it will be treated as such, on the presumption that the bailee has disposed of the property in the meantime and received the avails thereof. 6 In a case already quoted, it was held at the Clinton cir- cuit that when property, intrusted to a warehouse-man in the ordinary course of business, is lost, injured or destroyed, the weight of proof is with the bailee to show a want of 1 Willard y. Bridge, 4 Barb. R., 361. 8 Lockwood v. Bull, 1 Cowen R., 322; 7 id., 500; 11 Weud. R., 26; West v. Wentworth, 3 Cowen R., 82; 7 id., 295; 9 Wend. R., 271. 8 4 Barb. R., 361 ; Code of Procedure, 111. 4 Hawkins v. Hoffman, 6 Hill R., 686. * Ross v. Johnson, 5 Burr., 2825; 1 Taunt, 391 ; 6 East R., 538; 6 HillR., 588. 8 McArthur v. Wilder, 3 Barb. R., 66'; Tuttle v. Mayo, 7 John. R., 132. 288 LAW OP BAILMENTS. fault or negligence on his part ; or, in other words, to show that the injury did not happen in consequence of his neglect to use all that care and diligence, on his part, that a prudent or careful man would exercise in relation to tiis own pro- perty. The action was brought for the recovery of the value of property destroyed by fire in the defendants' warehouse ; but as the jury found a verdict in the case for the defend- ants, the charge -of the circuit judge was not afterwards brought in question. 1 As the rule is now well settled, the total failure of the bailee to deliver on demand is prima facie sufficient to charge him with a liability for the goods bailed ; but this presumption is reversed by such evidence as shows them to have been lost ; after which, the owner must show affirmatively that the loss occurred through the neglect of the bailee. 2 Where the common carrier, who, as a general rule, is bound to deliver the goods intrusted to him, to the con- signee personally at the place of delivery, cannot find him after a reasonable search, he may discharge himself from further responsibility as carrier, by placing the goods in store with some responsible warehouse-man at that place on ac- count of the owner. 3 The warehouse-man, in such a case, becomes the bailee of the owner. If the consignee be dead or absent, or refuses to receive the goods, it is the duty of the carrier to place them in store with a responsible deposi- tary, to the account of the owner, and subject to his order. Goods delivered to a warehouse-man and receipted by him as such, may be transferred with the receipt, so as to vest the title and a right of action in the purchaser for their conversion ; but under our old practice he could not, as we have seen, sue in assumpsit on the contract of bailment. He was compelled to bring an action sounding in tort, such as trover; in which he might give the contract of bailment in evidence for the purpose of proving his title, and showing 1 Platt T. Hibbard, 7 Cowen R, 497 ; Clarke v. Spencer, 10 Watts \L, 335. * Schmidt v. Blood, 9 Wend. R, 268; Foot* T. Storrs, 2 Barb. R., 326; Dun- lap y. Hunting, 2 Denio R., 643. * Fuk T. Newton, 1 Denio R., 45. CONTRACTS FOR HIRE. 289 that the property was in possession of the defendant ; but the contract was not regarded as the foundation of the action. 1 There having been a wrongful conversion of the goods for which that form of action would lie, the defendant might; and may still be held to bail, in whatever way the property came to his possession. A receipt of a quantity of wheat in store, as we have seen, creates a bailment. Though it be in the form of a receipt, it is a contract, or in the nature of a contract, and therefore not open to contradiction in the sense of the rule applicable to receipts proper. The import of its terms is no doubt controllable by the usage among wheat dealers, where the usage is so universal and well known that the jury are bound to consider it parcel of the contract. 2 In all such cases the custom is proved as a means of ascertaining the meaning of the language used ; and hence the terms em- ployed must prevail in the ordinary sense attached to them, unless it it shown that these have, by a well known usage of trade, a different signification. The custom is appealed to as explanatory of the transaction, and as showing the inten- tion of the parties. 3 Where the warehouse-man has once incurred a liability for the negligent injury of goods stored with him for hire, he cannot relieve himself from responsibility by showing that after the happening of the injury, the goods were destroyed without his fault, and that they must have been so destroyed even if no damage had previously occurred. 4 Where goods are delivered on an agreement that they shall be returned or paid for at an agreed price, payable in certain indorsed notes, and the person to whom they are de- livered refuses either to return the goods or deliver the notes, the owner is at liberty to sue for the goods in an action in the nature of trover ; and he may recover as the measure of his damages the actual value of the goods with interest from 1 Suydam v. Smith, 7 Hill R., 182; Brown v. Treat, 1 Hill, 225. 1 Goodyear v. Ogden, 4 Hill R., 104. 1 Dawson v. Kittle, 4 Hill R., 107. 4 Powers v. Mitchell, 3 Hill, R., 645. 19 290 LAW OF BAILMENTS. the time of the refusal. In this action the agreed price of the goods, though high evidence of their value, is not con- clusive ; the contract is disaffirmed by both parties, and the defendant is justly treated as having wrongfully converted the goods to his own use, and as therefore responsible for their actual value with interest. 1 On a note, payable in specific articles, at a stipulated price, the measure of damages in an action for its non-pay- ment is the sum specified in the note, and not the actual value of the articles on the day stipulated for payment. 2 But the decisions on this point have not been at all uniform in the different states ; some of them holding that the actual value of the articles, and not their stipulated price, is the true measure of damages. 3 Such is the rule in Tennessee and Pennsylvania. 4 Where the decisions correspond with the law, as settled in our courts, they are placed upon the ground that the parties to the contract, by specifying the price of the articles, have themselves agreed upon the mea- sure of damages. On the other hand, the decisions which allow the current market value of the goods on the day stipulated for their delivery, as the measure of damages, pro- ceed upon the theory that the payee has agreed for the goods, and is entitled to demand them at all events ; and that there- fore he ought in equity to recover their value, especially where their value has been in the meantime enhanced. Of course, the rule ought to be uniform ; if the payee is per- mitted to recover the appreciated price when the goods have advanced in value, he should be restricted to their actual value when they have depreciated. But this would be in effect to lessen the amount of his legal demand ; and thus in so far to invalidate the binding force of contracts by judicial decisions, having the validity of a law of the land ; a power 1 Stevens v. Low, 2 Hill R., 132. * Pinney v. Gleason, B Wend. R., 398. 1 Smith v. Smith, 2 John R., 243; Brooks v. Hubbard, 8 Conn. R., 68 ; Clark T. Pinnej, 7 Cowen R., 681. * McDonald v. Hodge, 5 Haywood's Tenn. R., 85 ; Edgar v. Bois, 11 Serg. and Rawlea, 445 ; Addis. Rep., S4C. CONTRACTS FOR HIRE. 291 which even the state legislature does not possess, for it can- not enact any law impairing the obligation of contracts. 1 So that upon the whole view of the subject, the decisions of our courts on this point are equally just, while they are based upon a principal that can be enforced both for and against the payee, without leading to an absurd conclusion. A bailee, who gives a receipt acknowledging that he holds the goods intrusted to him of a third person, is by that act guilty of a conversion, and he cannot afterwards claim to hold the goods on the ground of a lien for storage and charges. 2 He may, on a demand for the goods, ask for a reasonable delay for the purpose of making an inquiry, with a view to deliver them to the true owner. 3 But the delay must be asked for in good faith, and while the bailee has the power to comply with the demand for the delivery of the goods. He cannot claim a delay for any purpose, after having appropriated the goods to his own use. 4 It is sometimes difficult, and as important as it is difficult, to determine when the duties of the warehouse-man begin, and from what time he is chargeable with the care and cus- tody of the goods. Where he receives them from the carrier, his responsibility commences at the point where that of the carrier ends. If, by the custom of the place to which goods are directed, the carrier delivers them to the consignee, by depositing them in a warehouse, the delivery is not complete so as to discharge the carrier, until they are actually stored within the building. If a common carrier on the canals, in unloading his boat at the termination of the voyage, uses the tackle or machinery of a warehouse in hoisting the goods from his boat, he makes the machinery for that purpose his own ; and if it breaks so as to injure or destroy the goods, he is responsible for the loss. His undertaking to transport them includes the duty of delivering them in safety. His respon- 1 Constitution of the United States, art. 1, sec. 10, subdivision 1. * Holbrook v. Wright, 24 Wend. R,, 169. 1 Jacoby v. Laussatt, 6 Serg. and Rawles, 300, 305 ; Watt v. Potter, 2 Mason 77, 81 ; Mires v. Solebay, 2 Mod. R., 242; Solomons v. Dawes, 1 Esp. R., 83. 4 24 Wend. R., 177. 292 LAW OF BAILMENTS. sibility having begun, continue* until the act of delivery is completed. 1 But where goods are carried by a cartman to a warehouse for storage, the warehouse-man is liable for the goods lost or injured, from the time his crane is applied to raise them into the warehouse ; it is no defence for him that they were in- jured by falling into the street from the breaking of the tackle, although the cartman who brought the goods refused to fur- nish slings for further security. 2 The warehouse-man is bound to see that the tackle and slings used by him are of sufficient strength and fit for the purpose ; he should not apply them unless they can be made secure. The goods remain in the custody and possession of the person by whom they are sent, until they are taken in hand and removed from the cart ; if the cordage with which the packages are bound is too frail to hold them together, it is the duty, it seems, of the warehouse-man to provide sufficient slings with which to hoist them with safety ; and where that cannot be done, he should refuse to receive the goods. The lowering from, and raising or hoisting of goods into the warehouse, is deemed to be done under the direction of the warehouse-man. Accordingly, where a warehouse-man at Liverpool employed a master porter to remove a barrel from his warehouse, and the master porter employed his own men and tackle, and through the negligence of the men the tackle failed, and the barrel fell upon and injured a passer by, it was held that the warehouse-man was liable in case for the injury. 3 Where the bailee unites the business of a common carrier with that of a warehouse-man, and the goods intrusted to him are deposited in his warehouse, to be forwarded at the pleasure of the owner, the warehouse-man is not considered a gratuitous bailee, though he receives nothing for the storage. 4 And hence, where the defendant, being a carrier 1 DeMott T. Laraway, 14 Wend. R, 225 ; 4 Term R, 681; 6 id., 389; 2 Kent's Comm., 604 1 Thomas v. Day, 4 Eep. R, 262. ' Randleaon T. Murray, 8 Adolph. and Ellis, 109. White T. Humphrey, 11 Adolph. and Ellis, 48. CONTRACTS FOR HIRE. 293 and wharfinger, received into his warehouse a certain quan- tity of goods of the plaintiff, consisting of hops, on an agree- ment that they should be conveyed by defendant's barges to London when the plaintiff should direct, at the usual freight, and that in the meantime they should be kept by defendant without charge for warehousing, it was held, in an action for not keeping the goods safely, that the defendant was not a gratuitous bailee, and that the hops, having been damaged by mice while in his custody, and through his negligence, he was responsible for the injury, even though it did not occur through his gross neglect. In this case, one business was regarded as contributing to the other, so as to charge the depositary with the character and duties of a bailee for hire. This responsibility, however, is only for ordinary care. A, B, C and D, doing business in partnership as common carriers, agreed with S & Co., of Frome, to carry goods from London to Frome, where they were to be deposited in a warehouse belonging to the carriers, without any charge for warehouse room, till it should be convenient for S & Co. to take the goods home. The goods were carried under this agreement, and safely deposited in the warehouse at Frome ; and while there were casually destroyed by fire ; and it was adjudged that the depositaries were not liable for the loss. 1 A person who receives goods into his store on an agree- ment to forward them, taking upon himself all the expenses of transportation, for which he receives a compensation from the owner of the goods, but has no concern in the ves- sels by which they are forwarded, or interest in the freight, is not a common carrier. His character is that of a deposi- tary for hire in storing, and that of an agent in forwarding the goods. 2 Forwarding merchants generally unite these two kinds of business; and when property is deposited with them, with instructions to forward the same, they are dis- charged from their liability on showing that they used ordi- 1 In the matter of Webb and others, 8 Tnunt R., 443. * BoUrts v. Turner, 12 John. B., 282. 294 LAW OF BAILMENTS. nary diligence in sending on the property by responsible persons. 1 So, where common carriers undertook to carry goods from Stourpoint to Manchester, and to forward them from thence to Stockport, and carried them according to agreement safely to Manchester, and there deposited them in a warehouse of their own, where they were destroyed by fire before an op- portunity occurred to forward them, Lord Kenyon held that the liability of the carriers, as such, ceased when the goods were put into the warehouse ; and that in the capa- city of warehouse-men, they were not responsible for an injury arising from, no want of negligence on their part. 9 The liability of the carrier ceases at the end of his route. 3 A quantity of salt was delivered to a warehouse-man at Buffalo, being unloaded on the wharf in front of his ware- house where he had it piled up in tiers; the wharf and store were built considerably higher than the water had ever been previously known to rise ; the salt remained there some days, when the warehouse-man was requested to put it in store, which it was agreed should be done unless it was soon sold ; directly after, a gale upon the lake caused the water to rise so as to overflow the wharf, and wet and de- stroy the salt contained in the lower tier of barrels ; and in an action for the property destroyed, it was shown that the injury could not have been much less if the salt had been placed within the warehouse ; and accordingly the charge of the circuit judge was held to be good law, that the ware- house-man was liable only in consequence of neglect to use such care in the preservation of the salt as prudent men ordinarily take of their own property; 4 that to justify a verdict against him, the jury must be satisfied that the injury complained of was occasioned by the neglect of the depositary, either in not raising his wharf to a sufficient 1 Brown v. Denison, 2 Wend. R., 598; Jones on Bailin., 120. 1 Garaide v. The Proprietors of the Trent and Mersey Navigation, 4 Term R., 681 ; Thomas v. Boston and Providence Railroad Co., 10 Metcalf R., 472. 1 Hide v. The Trent and Mersey Navigation Company, 6 Term R., 389 ; Ackley T. Ktllogg, 8 Cown R., 223. ' -^-i * Knapp v. Curtis, 9 Wend. R., 80. CONTRACTS FOR HIRE. height, in not rolling the salt into the storehouse, or in not securing it after the comnjencement of the storm ; and that if they should be of the opinion that he ought to have rolled the salt into the storehouse before the storm, the plaintiff would be entitled to recover the difference between the injury which the salt received on the wharf and that which it would probably have received had it been rolled into the storehouse* Where a quantity of ginseng, deposited in the defendant's warehouse, was destroyed by rats, notwithstanding the de- fendant took the precaution to shut the lid of the box every night, after it had been opened during the day by the owner for the purpose of showing it to purchasers, and adopted reasonable precautions to destroy vermin, he was holden not liable for the damage, since the responsibility of a ware- house-man is not similar to that of a carrier, and he had exerted all due and common diligence for the preservation of the deposit. 1 The common carrier, who undertakes to qirry goods for hire, is bound to deliver them at all events, unless injured or destroyed by the act of God or the king's enemies ; if on the way he deposits them in a warehouse or booth, where they are destroyed by fire without his fault, he is liable un- less the fire is caused by the lightning ; he cannot excuse himself by showing that the fire raged with inextinguishable fury and consumed the goods and the building where they were stored, without any actuai negligence on his j?art. 2 The warehouse-man, receiving goods from a consignee, who has had actual possession of them, to be kept for his use, may nevertheless refuse to redeliver them, if they are the property of another. 3 But he must take care that he does not make any mistake, such as to deliver the goods to a wrong person ; for in this case, whatever his intention may be, he is answerable. 4 Indeed, it has been held in the Eng- lish courts that a wharfinger shall not be permitted to dis- pute the title of the person from whom he receives goods or 1 Cliff v. Danvers, Eeake, N. P. C., 114. * Ogle v. Atkinson, 6 Taunt R., 769. * Forward v, Pittard, 1 Term R., 27. * Lubbock v. Inglie, 1 Stark. R., 88. 296 LAW OP BAILMENTS. merchandise ; l if the property is taken from him by a pro- cess of law or by virtue of a paramount title, doubtless he will be able to defend himself as against his bailor. 8 Though the carrier is liable until he has delivered the goods at the end of his route, it does not seem to be very definitely settled as to what shall be considered a delivery ; the mode of delivery being in a great measure regulated by custorn and the usage of trade. If he make a separate charge for the cartage from the building on the wharf in which he places them at the end of the route, to the ware- house of the consignee, he is held liable* for a loss by fire till delivery made at the latter place. 3 But it has been held that the proprietors of a railroad, who transport goods over their road, and deposit them in their warehouse at the ter- minus of their road, without charge, until the owner or consignee has a reasonable time to take them away, are not liable as common carriers for the loss of the goods from the warehouse, but are liable as depositaries only, for want of ordi- nary care. In the case in which this decision was made, the consignee had sent his own team for the goods, and had taken part of them away ; and the action was brought to re- cover the value of the balance, consisting of a roll of leather that could not be found. 4 The case *was understood to in- volve to some extent the disputed right of the common car- rier to limit his liability by a special agreement. 5 Other bailees, such as warehouse-men and wharfingers, may, without doubt, limit their liability by a special contract or notice to that effect, as that they will not be responsible for losses caused by fire. 6 The liability and duties of inn- keepers and common carriers are established on grounds of public policy, while those of other bailees are left open to modification by voluntary contracts. 7 Gosling v. Birnie, 7 Bing. II., 839; Stonard v. Dunkin, 2 Cainpb., 344. Edson v. Weaton, 7 Cowen R., 278. Hyde v. The Trent and Mersey Navigation Company, 5 Term R., 389. Thomas v. The Boston and Providence Railroad Cor., 10 Metcalf R., 472. Wells v. The Steam Navigation Company, 2 Comst R., 204, and the cases th re cited. Per Lord Ellenborough in Maviug v. Todd, 4 Campb., 225 ; 2 Coinst R., 209. Gould T. Hill, 2 Hill R.. 623 ; see also 1 Kernan R., 486. CONTRACTS FOE HIEE. 297 Wharfingers. The similarity of their duties, often performed by the same persons, has occasioned the terms warehouse-men and wharfingers to be used sometimes, in the books interchange- ably, as if they conveyed substantially the same meaning. But this is inaccurate ; the warehouse-man is a person who receives goods and merchandise into his warehouse to be stored for hire ; and the wharfinger is one who owns or keeps a wharf, for the purpose of receiving and shipping merchan- dise to or from it, for hire. 1 In some instances, the wharf- inger being the owner of a warehouse on the wharf, as- sumes also the duties and the character of a warehouse-man. 2 His responsibility begins as soon as he acquires the custody of the goods, and ends when he has fulfilled his express or implied contract with respect to them. What will amount to a delivery of the goods to him, so as to charge him with the custody of them, depends very much upon the custom and usages of the business. A mere delivery at the wharf is not enough, unless accompanied with express notice, under such circumstances as will imply a consent on his part to receive them. 3 If it be according to the usual custom and understanding of the parties that the goods may be delivered by depositing them on the wharf, such a delivery, with notice, will be suffi- cient to charge the bailee with the custody of them. Where they are received into a warehouse situate on the wharf, to be forwarded, the bailee, it seems, does not hold them as a wharfinger ; he is a warehouse-man just the same as if his storehouse stood in any other part of the city. 4 However, it is certain that some of the English cases speak of and treat such an one as a wharfinger. 5 But this is not material, since the duties incident to his situation and character are the same in either case. If he receive the goods on the wharf 1 Bouvier's Law Dictionary. 3 White v. Humphrey, 1 1 Adolph. and Ellis, 43. * 4 Campb., 72 ; Packard v. Getman, 6 Cowen R, 757 ; 8 Campb. R, 414. 4 Platt v. Hibbard, 7 Cowen R, 497. White v. Humphrey, 11 Adolph. and Ellis, 43. 298 LAW OF BAILMENTS. as a wharfinger, to forward them when an opportunity arrives, and in the meantime stores them in his warehouse as a warehouse-man, the measure of his responsibility re- mains all the while the same ; he IS N bound to exercise the ordinary diligence and care of a prudent man in their pre- servation. 1 It has been sometimes said that the duties of the whar- finger are similar to those of the common carrier. 2 But the authorities do not sustain the proposition. 3 Lord Ellen- borough, it is true, in one instance at Nisi Prius, where the goods had been accidently destroyed by fire while in the pos- session of the defendants as wharfingers and lightermen, does speak of their liability as similar to that of a carrier ; but the case did not turn upon that point ; it was a part of the duty of the defendants, as lightermen, to convey the goods from the wharf in their own lighters to the vessel in the river on which they were to be shipped ; but it appeared in evidence, and was allowed to control the case, that the de- fendants had limited their responsibility, so as not to cover a loss by fire, by giving notice to the vendor of the goods to that effect. 4 The other cases cited in support of the doc- trine, are simply dicta of the judges, made incidentally in the course of a trial, on principles not involved in the deci- sion of the court. 5 This distinction between the argument of the judge and the judgment of the court is always material. On the pre- cise issue presented, the judicial decision is the authoritative witness of what the law is ; but the argument with which it is sustained is only matter of illustration, that derives its weight from the individual character of the judge and the inherent force of his reasoning. 6 1 11 Adolph. and Ellis, 43; Matter of Webb and others, 8 Taunt R., 443 ; 2 Moore R., 600 ; 7 Cowen R., 497 ; Quiggin v. Duff, 1 Mees. and Welsh., 174. Maving v. Todd, 1 Stark R., 59 ; 5 Burr, 2827 ; Isaack v. Clerk, Moore, 841. Roberto v. Turner, 12 John R., 232. 1 Stark R., 59 ; 4 Campb. R., 225. - Ross v. Johnson, 5 Burr, 2827 ; Isaack v. Clerk, Moor, 841. 7 Cowen R., 602, note b. CONTEACTS FOB HIRE. 299 The wharfinger is not responsible for goods casually burnt upon his premises. But where he gets them insured against fire, being paid for storage, and authorized to sell them, and they are burnt up and the insurance money is paid to him, the owner may recover against the wharfinger for the value of the goods to the extent of the insurance, 1 deducting of course his lien and expenses. His liability commences with the delivery of the goods into his custody ; but what will be considered a delivery depends in a great measure upon the custom and usages of the business. Where goods are ordered from a distance, or purchased to be forwarded, the delivery to the wharfinger or common carrier, must be such as to render the bailee responsible to the consignee of the goods. 2 A delivery at the wharf is not sufficient to charge the purchaser, unless the seller procures them to be booked, or takes a receipt for them, or delivers them in such a man- ner as to furnish a remedy over against the wharfinger. Doubtless a delivery to the known agent of the carrier or wharfinger, will be deemed sufficient ; but a delivery to a person on the wharf, not known to be such agent, is not good. 3 A tradesman at one port receiving an order to for- ward goods to a person at another port, by a common sea carrier, does not sufficiently perform the order by depositing the goods at the receiving house of such carrier, with direc- tions to forward them to their place of destination, if the goods being much above the value of five pounds, to which the carrier's liability was notoriously limited, be not speci- fically entered and paid for accordingly ; for such tradesman has an implied authority, and it is his duty to pay any extra charge necessary to insure the responsibility of the carrier to the party from whom he received the order, though only general in the terms of it ; and in case of non-delivery by the carrier, whose responsibility was lost for want of such special entry and payment, the tradesman cannot recover the value of the goods against the person from whom the 1 Sidaways v. Todd, 2 Stark. B., 861. * Buckman v. Levi, 3 Campb. B., 414. 1 3 Campb. B., 414, 300 LAW OF BAILMENTS. order was received. 1 The carrier has a right to make such a rule to regulate the mode in which he will receive goods for transportation ; and he will not be held liable where it has been evaded. Where the owners of a wharf provide the men to do the work of unloading vessels, and permit no others to be em- ployed thereon, they are responsible for the negligence of their servants, in unloading the goods, although they derive no profit from their labor. 2 By keeping the wharf and fur- nishing the men, they make the business their own, and must answer for losses occuring through the negligent man- ner in which it is done. In Cobban v. Downe, it was held, where goods are to be carried coastwise, and the usage of the wharf is to deliver them on the wharf to the mate of the ship by which they are to be carried, that by a delivery to the mate, the wharf- inger's responsibility is at at an end, and he is not liable, though the goods are lost from the wharf before they are shipped. 3 The facts of the case were these : plaintiff sent four trusses to the wharf, one of which was lost ; they were directed to be sent by the ship George to Iverness in Scot- land ; the goods were brought to the wharf, and laid at the door of the counting-house; while they lay there the mate of the ship was called, and the truss in question delivered to him. Lord Ellenborough : " This is an action, charging the defendant, in his character as a wharfinger. What the duty of a wharfinger is, is to be measured by the usage and practice of others in similar situations, or his known and professed liability. Every man contracts with the public according to the known and ascertained extent of the trade or business in which he is engaged. The defendant has proved that by established usage, the goods are delivered by the wharfinger to the mate and crew of the vessel which is to carry them ; from which time, it has been considered, his responsibility is at an end. Undoubtedly, where the re- 1 Clark v. HutchiDS, 14 East. R., 475. * Gibson v. Inglis, 4 Campb. R., 72 ; Coggs T. Barnard, 2 Ld. Raym., 0. ' 5 Ep. R., 4L CONTRACTS FOB HIEE. 301 sponsibility of the ship begins, that of the wharfinger ends ; and a delivery to the ship creates a liability there ; but the delivery must be made to an officer or person accredited on board of the ship ; it cannot be made to the crew at random; but the mate of the ship is a recognized officer, and therefore the delivery to him is sufficient to discharge the wharfinger." The law exacts of wharfingers the exercise of ordinary diligence in the preservation of the goods and merchandise intrusted to them. 1 Where they are merely depositaries for hire, it is enough if they take common and reasonable care of the commodity intrusted to them. 2 The liability of a wharf- nger is not distinguishable from that of a warehouse-man ; both are bound to take common and reasonable care of the goods delivered to them. What will be regarded as ordinary care and diligence, is generally a question of fact for the jury, to be determined from the circumstances of T the case. The wharfinger, of course, will not be required to take the same care of lumber received and piled upon his wharf, as he takes of merchandise and such goods as may be easily purloined and stolen. The nature of the article, the time of the deposit, and the dangers to which it is exposed, are all proper cir- cumstances to be considered in determining the diligence demanded of the bailee ; for in this manner alone can it be ascertained that he has exercised, or failed to exercise, the ordinary care and diligence of a prudent man. 3 A loss, oc- curring through his failure to exercise that degree of care, renders him liable. 4 As his liability, and that of a warehouse-man, are regu- lated by the same rule, the decisions in respect to the lia- bilities of warehouse-men are in point to illustrate his duties in taking care of the articles bailed. 5 They are to use ordi- 1 Story on Bailm., 451; Hatchett v. Gibson, 13 Ala. R., 687 ; Duckner v. Barnett, o Miss. R., 97 ; Clark v. Spence, 10 Watts R., 335 ; Blin v. Mayo, 10 Verm. R., 56 ; Hemphill v. Chenie, 6 Watts and Serg., 62, 75. 1 Foote v. Storrs, 2 Barb. R., 326. 1 7 Cowen R., 497 ; 2 Barb. R., 326 ; Jones on Bailm., 5, 6, 21, 22. 4 White v. Humphrey, 11 Adolph. and Ellis R., 43; Quiggen v. Duf 1 Mee?. and Welsb., 174. * 8 Taunt R., 443 ; 8 Adolph. and Ellis R., 109 ; 4 Esp. R., 262. 302 LAW OP BAILMENTS. nary diligence in keeping and guarding the property, while in their possession, and in delivering or forwarding it ; hav- ing used such diligence they are no longer liable, 1 though the goods be destroyed by fire, stolen by thieves, or embez- zled by the person having them in charge. 2 A contract to forward goods from New-York to Fairport in Ohio, makes the forwarder a common carrier for the whole route, and renders him liable as such, notwithstanding his transportation line extends only part of the distance, and the loss occurs on a part of the route in which he is not interested. 3 He is liable in this case for all the dangers inci- dent to the transhipment of the goods, or their temporary storage by the way, not as a wharfinger or warehouse-man, but as a common carrier. 4 In the absence of any special agreement, the carrier discharges himself from further re- sponsibility by forwarding the goods at the end of his line by the ordinary conveyance, or pursuant to his instructions. 5 Not so, where he contracts to carry the goods to their place of destination. 6 If he contract to carry from New-York to Ogdensburgh, and his line terminates at Oswego, he does not cease to be a carrier, so as to become only a forwarder of the goods from the latter place. His contract binds him, and it is a matter of no moment, whether he uses his own, or employs the vessels of other persons to carry them part of the way, or even the entire route. 7 He is answerable as a common carrier to the extent of his undertaking ; if he agrees to- carry from Saratoga Springs to Albany, he is not permitted to say that his road or route terminates at Sche- nectady; he js a carrier for the distance he engages for. 8 1 Brown v. Denison, 2 Wend. R., 693 ; 12 John. R., 282 ; 8 Cowen R., 228. 1 Schmidt v. Blood, 9 Weud. R., 268 ; 4 Esp. R., 262 ; 4 Term R., 681 ; Peake's N. P., 114; 1 Esp. R., 316; 19 John. R., 44; 7 Cowen R., 497; 17 Mas*. R., 600. * Wilcox T. Parmelee, 8 Sand. R., 610. 4 Muschamp v. Lancaster Railway Co., 8 Mees. and Wels. R., 421. * Ackley v. Kellogg, 8 Cowen R., 228 ; SL John v. Van Santvoord, 6 Hill R., 167. * Fairchild v. Slocum, 19 Wend, R., 329 ; and Weed v. S. and S. Railroad Co., id., 636. 1 1 Wend. R., 332. * 19 id., 634 ; Welland Canal Co. v. Hathaway, 8 Wend. R., 483. CONTEACTS FOR HIRE. 303 The doctrine of an estoppel in pais applies to one who en- ters into such a contract ; he is concluded from denying his own acts or admissions, which are expressly designed to influence the conduct of another, and do so influence it, when such denial will operate to the injury of the latter. 1 For the convenience of business common carriers, by ar- rangements among themselves, frequently advertise and undertake to carry goods from the Atlantic cities to the various Western ports and places of destination. When this is done, the carrier is liable for the delivery of the goods according to his agreement. 2 But if there be no special agreement, the carrier is liable for their transportation only over his route. 3 But at the end of his route he must for- ward them by a reliable and responsible carrier, pursuant to his instructions, or if there be none given, in the usual and customary conveyance. 4 He is to be considered a forwarder from the place where his line terminates ; but if the goods are to be delivered to a consignee at that place to forward, he is not discharged from his liability as a carrier until he has actually delivered them ; and it is not enough for him to deliver them on the wharf and give notice to the consignee ; it is his duty to attend to the actual delivery of the goods. 5 The transhipment or delivery of the goods at the end of the route must, to a degree, be regulated by the usage or custom of the business ; 6 but it has been questioned whether the custom of business should be allowed to have the same effect, in fixing the liability of parties, in the transhipment of goods on our internal lines of river, lake and canal navi- gation, as it receives when applied to the business of our seapdrts. 7 In Pennsylvania, a custom will not be tolerated that tends to endanger the safety of goods and merchandise, Per Mr. Justice Nelson, 19 Wend. R., 483. Wilcox T. Parmelee, 3 Sand. R., 610. St. John v. Van Santvoord, 6 Hill R., 157 ; 19 Wend. R., 329. 8 Cowen R., 223 ; 6 Hill R., 157 ; 19 Wend. R., 329, 635. Hemphill v. Chenie, 6 Watts and Serg. R., 62. 6 Hill R., 160. 6 Watts and Serg. R., 62. 304 LAW OP BAILMENTS. sent by a common carrier to a distant place and requiring transhipment. There is, it seems, an implied engagement by a consignee, where he assumes to transact a general forwarding business, that he will be vigilant and careful in receiving and forward- ing goods intrusted to his care ; and upon his refusing to receive goods consigned to him, he would be liable to an action by the owner for any loss which might be sustained thereby. 1 The safety of the property, and the convenience of business, require that the owner should be furnished witk a sure remedy in cses of loss ; and there is no objection if it be sometimes cumulative. The consignee becomes responsible for the custody of the goods from the time they have been legally delivered to him. Where a consignee received a quantity of salt in barrels, storing it in his warehouse in Louisville, to be sold on com- mission, and an entry was made into the building by pul- ling off a plank, opening the door, and at three or four different times, a large number of barrels were stolen, it was held that the consignee was liable, not having used ordinary diligence to preserve the salt. 2 Evidence of Loss. In an action against a warehouse-man or forwarding merchant, to recover the value of a lost trunk, the plaintiff is a competent witness to prove the contents of it ; but this rule is limited and controlled by circumstances respecting the nature of the contents ; it will only extend to such articles as are ordinarily necessary for the convenience and use of a traveler. In such action the law will not intend negligence on the part of the bailee who will be presumed to have acted according to his trust, until the contrary is shown. 3 But to throw the burden of proof on the bailor, it is necessary that the bailee should show clearly how the 1 6 Watts and Serg. R., 62, ' Chenowith y. Dickinson, 8 B. Mon. R., 156; Blin v. Mayo, 10 Verm. R., 66. * Clark T. Spence, 10 WatU R., 335 ; BuL N. P., 181 ; Herman v. Drink- water, 1 Greeuleaf, 27 ; 6 Rawle, 179. CONTRACTS FOR HIRE. 305 goods were lost. 1 All the bailor has to do, in the first in- stance, is to prove the contract and the delivery of the goods ; and this throws the burthen of the proof, that they were lost, and thg manner of the loss, on the bailee, of which courts usually require very plain proof. The bailee is responsible, if he by mistake deliver the things bailed to the wrong person ; and a forged order for them will not protect him. 2 For the purpose of laying the foundation for the admis- sion of secondary evidence, the loss of a paper or the death of a witness, may be proved by an interested person or even a party to the record; the reason heretofore given for this ex- ception to the general rule is that this evidence is addressed to the court. 3 It is not given on a point on which the jury are to pass, and, hence, it cannot be supposed to influence their verdict. 4 The witness testifies to the court upon a preliminary point, with a view to the introduction of further testimony, sufficient to establish the main issue. 5 There is another large and definite class of cases in which necessity has always been held to authorize the calling of interested witnesses ; such witnesses are admitted, be- cause, from the nature of the case, it is exceedingly im- probable that any person not interested should possess any knowledge of the facts. 6 And for a similar reason, a party to the suit may be a witness himself to prove the contents of a lost trunk, consisting of such articles as are ordinarily necessary for the convenience and use of a traveler ; this is permitted from the .necessity of the case, since no other person is likely to know what were its contents. 7 The general rule is, that neither the wharfinger nor ware- house-man can deny the title of the person from or for whom 1 1 Esp. R., 315; 5 Barn, and Ores., 322; 3 East R., 192; 3 Taunt R., 264; 2 Strange, 1099. 5 Lubbock v. Insdis, 1 Stark. R., 83 ; 10 Watte, 335 ; 5 Rawle, 179. 1 Jackson v. Davis, 5 Cowen R., 126 ; Blade v. Noland, 12 Wend. R., 173. 4 Jackson v. Frier, 16 John R M 194. 6 Chamberlain v. Gorham, 20 John R., 144. e 15 Wend. R^ 316; 2 Stark Ev., 753, 767, 8, n. 2 ; 2 Denio, R., 119. 1 Clark v. Spence, 10 Watte R., 335 and the casea there cited. 20 306 LAW OP BAILMENTS. he receives and holds goods or merchandise. 1 The wharfinger is the agent of the person of whom he receives the goods, and cannot dispute the title of his principal in an action brought by the principal against him ;* nor can he dispute the right of one who has taken an assignment of his receipt, with an order from his principal for the goods, especially not after he has seen the order and promised to deliver them. 3 He is not permitted to dispute the title of the person from whom he recives the property ; for that is the title under which he holds, and, like the tenant, he is not allowed to invalidate the title under which he derives his own rights. Having acknowledged certain timber on his wharf to be the property of the plaintiff, it has been held that the wharfinger cannot deny his title in an action of trover for the property ; 4 for by such admission he concedes that he holds, subject to the plaintiff's order. But though the wharfinger cannot, as an agent, dispute the title of his principal, this cannot protect the goods thus received from an execution against the person depositing them, nor render either 'the warehouse-man or wharfinger liable, where the goods are taken from his custody by legal process. If they are taken from him by authority of law, as the property of a third person, the bailee may show this in defence of an action brought against him by the bailor of the goods. 5 Doubtless, as a faithful agent, he is bound to notify his principal of the proceeding ; but he is not com- pelled to defend his title, nor to answer for his property at all events ; for that would be to cast upon him the burden of guaranteeing the title of the person from whom he derives only a possessory interest. If the goods are in fact the property of another, he may refuse to deliver them ; but he thereby takes upon himself the onus of establishing a superior title. 6 1 Burton v. Wilkinson, 18 Verm. R., 186. 1 Goslin v. Birnie, 7 Bing. R., 339; Hall v. Griffin, 10 Bing. R., 246 ; Harmon T. Anderson, 2 Campb., 243 ; Stonard v. Dunkin, 2 id., 344. * Hall v. Griffin, 10 Bing. R., 246. 4 7 Bing. R., 338. * 18 Verm. R., 186. * Ogl T. Atkinson. 6 Taunt. R, 759. CONTEACTS FOB HIKE. 307 The Lien of wharfingers and warehouse-men. The general principle of the common law is, that where the bailee expends labor and skill in the improvement of the subject delivered to him, he has a lien for his charges. 1 The tailor and the shoemaker have such a lien on the shoes and clothes made out of leather or cloth left with them to be made up ; a trainer, too, it is held has a lien on a race-horse for his charge in keeping and training him ; but a livery stable keeper has no such lien. 2 This lien, however, is such that it is lost by a voluntary surrender of the property, or by a sale on an execution in favor of the party holding the lien. 3 It is specifically for the work done and the expenses incurred, for or upon the thing bailed. Other bailees, such as a common carrier, a wharfinger and warehouse-man, also have a lien upon the goods intrusted to them by a special custom, to the extent of their charges. 4 The warehouse-man's lien is specific, not general ; but he may deliver a part, and retain the residue for the price chargeable on all the goods received by him under the same bailment, provided the ownership of the whole is in the same person. 5 But a wharfinger, it seems, has a general lien on the goods of his customer in his possession, for his balance in respect of freight and wharfage; 6 it is doubtful whether a lien for warehouse-room stands on the same footing. Where chattels are deposited with a party who claims a lien on them after notice from the bailor of the sale of them to a third party, the bailee, a wharfinger, cannot, as against the vendee, claim a further lien in respect of a debt incurred to him by the bailor after such notice, though the chattels re- main in his books in the name of the bailor. 7 Bevan v. Waters, Mood, and Salk,, 235. 2 Ld. Raym., 866. Jacobs v. Lawton, 5 Bing. R., 130. Story on Bailm., 588 ; Steinman T. Wilkins, 7 Watta and Serg. R., 466 ; Johnson v. The Schooner M'Donough, Gilpin R., 101. 7 Watte and Serg. R., 466 ; Schmidt v. Blood, 9 Wend. R., 268. The Kingv. Humphrey, 1 McSeL and Yonng, 173. Barry v. Longmore, 4 Perr. and Day., 344. 308 LAW OP BAILMENTS. The wharfinger has a lien on a vessel for wharfage ; and if the vessel is removed from the wharf secretly or wrongfully, and afterwards brought back without force or fraud, the wharfinger's lien is revived. 1 If the wharfage be not paid by the agent or factor shipping goods, according to custom, it may be recovered by the wharfinger from the owner of the goods. 2 The lien is given him as a means of collecting his charges, but the debt may continue, though the lien is dis- charged. The law does not favor a general lien, which is founded on custom, for a balance of accounts ; and hence it is not allowed, unless it be established by clear evidence of a set- tled and uniform usage. 3 The usage must be such as will warrant the inference that the party against whom it is claimed had knowledge of it. It arises generally either from express contract, or is implied, from the manner of dealing between the parties, or from the usages of trade, which are presumed to enter into and become a part of the contract. 4 It is the very essence of the lien, that the person claiming it has the possession of the chattel upon which the lien is claimed to operate. 5 A lien by express contract, is enforced like any other valid stipulation ; 6 and while it exists the party holding it must retain the possession of the goods on which the lien attaches. 7 By surrendering the property, he divests himself of his lien ; 8 for his lien is not an estate or interest in the property ; it is neither a jus ad rem, nor ajus in re, but a simple right to retain the property till the lien thereon be discharged. 9 The factor has a specific lien on the goods in- trusted to him, for his charges incurred on their account ; a general lien on the goods in his possession for a balance of 1 Gilpin R., 101. Fitzsimmons v. Milner, 2 Rich R., 870. 2 Kent's Comm., 686, 637 ; Rushforth v. Hadfield, 6 East R, 519 ; 7 East R., 224; Bleadon T. Hancock, 4 Carr. and Payne R., 162. Jarvisv. Rogers, 15 Mass. R., 889, 394. . Jordan v. James, 5 Ham. R., 88. Kirkman v. Shawcross. 6 Term R., 14. 2 Kent's Comm., 638; Houghton v. Matthews, 3 Bos. and Pull. R., 485. Jones v. Pearle, Str. R., 556; 1 East R., 4. Meany v. Head, 1 Mason R., 819. CONTRACTS FOR HIRE. 309 account against his principal ; and also a lien upon the pro- ceeds of his principal's property sold by him as a factor. 1 The warehouse-man is not, like a carrier, bound by any custom of the realm, nor to be considered as an insurer ; his lien is founded on usage, repeatedly proved and recog- nized until it has come to be considered an established right. 2 It is a specific lien ; but where a quantity of any particular kind of merchandise is stored in a warehouse, and portions of it are from time to time delivered out without the storage thereon being paid, the warehouse-man has a lien upon the portion left for the storage of the whole. It is one transac- tion, and the lien covers the whole of the goods deposited, and may rest upon each part for the entire claim. 3 This rule is considered as promoting the convenience of trade and business, without detriment to the parties in interest, and without subjecting them to the inconvenience and trouble of dividing up a single transaction into as many parts as there may have been different deliveries of portions of the same property. 4 HIRE OF THINGS. One who hires goods or chattels for use acquires a posses- sory interest in them during the term of his contract; 5 he in fact contracts for, or purchases the use of the chattels for the period or purposes of the contract. 6 The price paid is the consideration for the use ; so that the hirer becomes the temporary proprietor of the things bailed. 6ne who hires a flock of sheep for a year, acquires the right to the increase of the flock ; 7 and an interest in them, which, for the time being, entitles him to hold them against the owner himself. It is a bailment of mutual interest, and reciprocal obligation. 1 6 Term R., 262; 3 Bos. and Pull. R., 489; Cowp. R., 251 ; 3 Harr. and John. R., 339. * Naylor v. Mangles, 1 Esp. R., 109 ; Spears v. Hartley, 3 id., 81. 3 9 Wend. R., 268. 4 4 Burr., 2221 ; 3 Boe. and Pull, 494 ; 6 Term R., 262 ; Jeremy on Carr., 78, 90 6 Putnam v. Wyley, 8 John. R., 432, 435. * Jones on Bailm., 86. T Wood v. Aah, Owen, 138 ; 8 'John., 436. 310 LAW OP BAILMENTS. Where one delivers personal property to another, to be returned after a certain time, at the expiration of the term the same identical property reverts to, and the title is in the bailor ; and he may take it from one having a wrongful pos- session, without being liable to an action of trespass. It is otherwise where the contract of the bailee is in the alterna- tive; either to return the property bailed or deliver pro- perty of the same kind and quality ; or where the contract is to do the latter only. In either of these cases, the obli- gation on the part of the bailee rests in contract ; and till he actually make the delivery, though the term has expired, the bailor has no vested interest in the property. 1 Where by the agreement the identical thing is to be returned, the contract amounts to a kind of lease of personal property, at a rent, for a term, after which the property in the thing reverts, as it were, to the lessor. 2 In such a case, the bailor may take or recover back the article bailed as soon as the time of the bailment has expired ; but till then his right of property, or control over the property, is suspended. But where the bailee is to return another article of the same kind, or has an option to return the same or another, the property passes ; it is the case of a sale or exchange ; the person making the transfer acquires a property in the price, and parts with his title or interest in the specific thing ; on its return or redelivery it is regarded as a payment, not a re- version. And when a payment is to be made in specific articles, the title does not pass until the articles have been separated from others, set apart and actually delivered to the payee, or tendered to him. 3 If anything remains to be done, the delivery is not perfect, and the title does not pass. 4 1 Hurd T. West 7 Cowen R., 752. , ' 7 Cowen R., 756, note a. In Seymour r. Brown, it was held that the title to wheat was not changed, where it was delivered on an agreement, that the person receiving it should for every five bushels of wheat deliver in exchange one barrel of flour ; but that case is overruled ; see Norton T. Woodruffj 2 Comst R., 153. 1 Barns v. Graham, 4 Cowen R., 462 ; Slingerland v. Morse, 8 John. R., 477 ; Co. Litt, 210, b. 4 McDonald T. Hawett, 15 John. R., 849. CONTRACTS FOE HIRE. 311 The distinction between executory and executed contracts is well defined ; the former conveys a chose in action, the latter a chose in possession. In order to determine whether a particular agreement belongs to one or the other of these two classes, the usual and decisive test is to consider at whose risk the subject of the contract is left, under its pro- visions. 1 In the case of a sale, or exchange of property, which amounts to a sale, the risk is with the person to whom it is delivered ; but where there is only a bailment for a time, after which the identical chattels are to be returned, the risk remains with the bailor. 2 If, on the contrary, simi- lar things, of the same value and quality, are to be returned in place of those received, the risk is with the person to whom the goods are delivered, and the property in them passes to him, who must bear the loss, if they be destroyed by wreck, pillage, fire or other inevitable misfortune. 3 Any damage befalling a chattel while in the hands of a bailee, without his misconduct, and while the chattel is em- ployed in the use for which it was bailed, must be sustained by the bailor. As, if a horse be hired to go a journey, and, during the prosecution of the journey without any ill treat- ent by the hirer, become lame, the hirer is not answerable for damages. 4 The main obligations of the letter to hire, locator m, de- duced from the nature of the contract, are, to deliver the thing to the hirer ; to refrain from every obstruction to the use of it by the hirer, during the period of the bailment ; to do no act which shall deprive the hirer of the thing ; to warrant the title and right of possession to the hirer, in order to enable him to use the thing or perform the service ; to keep the thing in suitable order and repair, for the purposes of the bailment ; and, finally, to warrant the thing free from any fault inconsistent with the proper use or enjoyment of it. 5 The obligation to keep the thing in suitable repair for 1 Jackson v. Myers, 3 John. R., 388 ; Jackson v. Clark, id., 424 ; id., 44. a 8 John. R., 431, 432; 7 Cowen R., 752; 9 id., 687. * Jones on Bailm., 64, 65. 4 Millon v. Salisbury, 13 John R., 211. * Harrington v. Snyder, 8 Barb. R., 380; Story on Bailm., 888. 312 LAW OF BAILMENTS. the purposes of the bailment, is considered as arising, by op- peration of law, from the fact that the enjoyment or use contemplated by the contract cannot otherwise be obtained. Thus, if a hired horse is taken sick on a journey agreed on, without the fault of the hirer, the expenses which are bona fide incurred for his medicine, nourishment and care, during his sickness, are to be borne by the letter to hire ; whether the horse recovers or dies of the malady. 1 The engagements of the party taking a thing to hire, con- ductor rei, are to put the thing to no other use than that for which it is hired ; to use it well ; to take care of it ; to re- store it at the time appointed ; to pay the price or hire ; and in general to observe whatever is prescribed by the contract, or by law, or by custom. The bailment being one of mu- tual benefit, the hirer is only responsible for that degree of diligence which all prudent men use, in their own affairs. The man who hires a horse is bound to ride it moderately, and to treat it as carefully as any man of common discretion would his own, and to supply it with suitable food. And if he does so, and the horse in such reasonable use is lamed or in- jured, he is not responsible for any damages ; but on the con- trary, if the horse break down, or become disabled on the road, and the bailee be compelled to leave him at a public house to be kept and doctored for several days at his expense, and to procure other means of returning home, it is held that in an action against the bailee to recover the price of the hire, he may recoupe these expenses against the demand of the bailor. 2 Ordinary expenses are to be borne by the hirer for use ; unless the manner and circumstances of the contract be such as to imply a different agreement. If a person lets his car- riage and horses, to be driven by his own servants, they are in his care, still, and he must be at the expense of keeping the horses shod. 3 But the time for which the chattels are hired, and the use to which they are to be applied, will generally indicate the understanding of the parties, so as to 1 13 John R., 211 ; 3 Barb. R., 281 ; Story on Balm., 384 to 386. 1 3 Barb. R., 381 ; Story on Bailm., 389; 2 Kent's Comm., 586, 687. 1 Code of Louisiana, art, 2662, 2663. CONTRACTS FOR HIRE. 313 imply an agreement in respect to the expenses and ordinary repairs. On this point the provisions of the civil code are quite specific and minute. 1 While at common law the lia- bilities of the bailee, in this particular, do not appear to be very accurately defined. 2 If the chattels be hired for a length of time, the inference would seem to be that the hirer undertakes to keep the things in ordinary repair as he would his own property. One who hires chattels for use, must confine himself to the use for which he stipulates. As, if he hire a horse to go a certain distance, or to a particular place, but goes farther, he is liable in trover for an unlawful conversion; but if the owner of the horse receives payment for the whole distance traveled, he thereby ratifies the act of the hirer in going farther than the original contract allowed, so that an action in the nature of trover will not lie ; and if the hirer has injured the horse on the journey by ill usage, the owner's remedy is by an action for the misfeasance. 3 The rule is the same though the hirer be an infant ; for it is held that an infant who hires a horse to go to a place agreed on, but goes to another place in a different direction, is liable in trover for an unlawful conversion of the pro- perty. 4 So when an infant took a mare on hire, and drove her with such violence and otherwise cruelly treated her, so that she died, it was held that though neither case nor as- sumpsit would lie, an action of trespass might be maintained against him. An action grounded on the contract, cannot be maintained against him, on account of his infancy ; but where he does a positive and willful act, amounting to an election on his part, to disaffirm the contract of hiring, the owner is entitled to the immediate possession, and may maintain an action of trespass against him for the tort. 5 1 Code of Louisiana, art., 2646, 2662, 2664, 2665. a 2 Kent's Comm., 586. ' Rotch v. Hawes, 12 Pick R., 186. 4 Homer v. Thwing, 3 Pick R, 492. 6 Campbell v. Stakes, 2 Wend. R., 137 ; Jennings T. Randall, 8 Term. R., 335 ; Green v. Greenbank, 4 Eng. Com. Law R., 375; 2 Marsh R., 485; Vasse v. Smith, 6 Cranch R., 226. 314 LAW OP BAILMENTS. The action on the case cannot be maintained against him, because it assumes that he has a right to the possession of the property under the contract of hiring ; and he is not answerable as for a breach of his contract. Notwithstanding the hirer, for use, is confined to the use for which he stipulates, as where he hires a horse for a cer- tain time to go to a particular place, the owner cannot jus- tify taking the horse violently, within the time, though the hirer go to a different place. 1 In this case, however, the horse was hired for two days at four shillings to go from Gravesend to Nettlested, and the hirer, after riding a mile or so on the right road, turned deceitfully towards London, and the owner, meeting him on the way, took the horse from him by force ; and it was held that the hirer had ac- quired an interest in the horse for the two days, and that the remedy of the letter to hire, for the violation of the contract, was by an action on the case. So, where goods, leased as furniture with a house, have been wrongfully taken in execution by the sheriff, the landlord cannot maintain an action of trover against the sheriff, pending the lease ; be- cause, to maintain such an action, he must have the right of possession as well as the right of property at the time. 2 Neither can he in such a case maintain the action of tres- pass, for the reason that he retains only a reversionary in- terest in the goods, and has no present right in them. 3 The rule is different in respect to property loaned to another for - an indefinite term ; here the owner may maintain an action for the trespass in taking it. 4 So, also, the owner may main- tain an action, either in the nature of trover or trespass, against a third person who has taken his property from the possession of his agent, with whom he has temporarily de- posited it for custody. 5 The owner of a chattel, let for a term on hire, may re- cover in an action against a stranger, pending the contract Lee v. Atkinson and Brook, Yelv., 172. Gordon v. Harper, 7 Term R., 9. Putnam v. Wyley, 8 John. R., 432, 435 ; Ward T. Macauley, 4 Term R., 48. Orser v. Storms, 9 Cowen R., 687. Thorp T. Burling, 11 John. R., 285. CONTRACTS FOR HIRE. 315 of bailment, on establishing an injury to his reversionary interest. 1 The action for the trespass, of unlawfully taking personal property, can only be sustained by the party who has a present right of possession, for the act of seizing the pro- perty. An officer who, having levied upon and taken goods in execution, receives from the defendant the amount due on the execution, does not become a trespasser ab initio, by refusing to restore them, after his authority to detain them is determined. 2 Liability in respect to servants. According to the rules of the common law, every man is responsible for injuries occasioned by his own personal neg- ligence, and for acts done by those whom the law denomi- nates his servants, while engaged in the business or work for which he employs them. 3 Where the owner of a car- riage hires of a stable keeper a pair of horses to draw it for a day, and the owner of the horses provides a driver, through whose negligent driving an injury is done to a horse belong- ing to a third person, it is held that the owner of the car- riage is not liable to be sued for such injury, because the driver is not his servant. 4 But the owner of the horses, who employs and sends his servant to drive them, is liable for all injuries occurring through his neglect. 5 Being liable for accidents arising from the misconduct or negligence of the driver, the horses are still in the possession of the owner of them, and under his care and control ; and he may therefore maintain trespass m et armis, for an injury done to his horses while so employed, and even against the person who has hired them. 6 The driver is his servant just the same, though not under his immediate superintendence. 7 Lacoste T. Pipkin, 13 Smedes and Marshall R., 5S9. Gardner v. Campbell, 15 John. R., 402. Sammell v. Wright, 6 Esp., 263 ; Dean v. Brauthwaite, id., 35. Langher v. Pointer, 5 Barn, and Crea., 547. 5 Esp., 263. 5 Esp., 35. 5 Barn, and Cres. R.. 547. 316 LAW OF BAILMENTS. So, where the owners of a carriage were in the habit of hiring horses from the same person to draw it for a day, or a drive, and the owner of the horses provided a driver, through whose negligence an injury was done to a third party, it was adjudged that the owners of the carriage were not liable to be sued for such injury, and that it made no difference that they had always been driven by the same driver, or that they had paid him the same sum each time ; or that they had furnished him with a livery which he had left at their house on returning from each drive. 1 It is not necessary that the servant should be employed by the mas- ter in person, or that he should be under his immediate and personal superintendence, in order to render him liable for injuries caused by his servant's neglect. The owners of a ship are responsible for goods spoiled through the default of the master of the ship, employed by them; 2 and a ware- house-man is answerable for the acts of a master porter, en- gaged in lowering goods out of his warehouse ; 3 for in each of these cases the employee is deemed the servant of his employer. Gibson v. Inglis ; the London Dock Company are liable for the negligence of their servants in unloading goods, although the company derive no profit from their labor ; but that company provides the men to do the work, and no others are permitted to be employed ; and for this reason, on the principle of Coggs v. Bernard, Lord Ellenborough held that the company was liable, although they derived no ad- vantage from the labor of their servants. 4 The principal is held liable for the acts of his servant, on the ground that his servant is supposed to act under the direction of his employer. In Quarman v. Burnett, the court hold that, upon the principle, that qui facit per alium facit per se, the master is responsible for the acts of his servant ; 1 Qaarman v. Burnett, 6 Mees. and Welsh. R, 499. 1 Boson v. Sandford, 2 Salk. R, 440. * Randleaon v. Murray, 8 Adolph. and Ellis R., 109 ; Thomas v. Day, 4 Esp. II., 262. 4 4 Campb. R, 72. CONTRACTS FOR HIRE. 317 and that person is undoubtedly liable, who stood in the relation of master to the wrong-doer ; he who had selected him as his servant, from the knowledge of, or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey ; and whether such servant has been appointed by the master directly, or intermediately through the intervention of an agent authorized by him to appoint servants for him, can make no difference. But the liability by virtue of the relation of master and servant must cease where the relation itself ceases to exist ; and no other person than the master of the servant can be liable, on the" simple ground that the servant is the servant of another, and his act the act of another; consequently, one entering into a contract with another, which does not raise the relation of master and servant at all, is not thereby rendered liable. 1 The immediate employer of the agent or servant, through whose negligence an injury occurs, is the person responsible for the negligence of such agent or servant. To him the principle respondeat superior applies, for there cannot be two masters severally responsible in such case. 2 A builder, em- ployed to execute certain alterations in a house, including the propositions for and the fixing of gas fittings, and who makes a contract with a gas fitter, to execute that part of the work, does not stand in the relation of master to the gas fitter, so as to be responsible to a third person for an injury caused by an explosion of the gas, through the negli- gence of the person engaged in doing the work ; the gas fitter is not a servant, acting under the immediate direction of his employer, but merely a sub-contractor. 3 1 6 Mees. and Welsh. R, 499. This case contains a review of the cases bearing on this point Langher v. Pointer, 5 Barn, and Ores. R., 547 ; Bush v. Steinman, 1 Bos. and Pul. R.. 404 ; Sly v. Edgeley, 6 Esp. R., 6 ; Randleson v. Murray, 8 Adolph. and Ellis R, 109 ; Rapsin v. Cubit, 9 Mees. and Welsb. R., 710 ; Milligan v. Wedge, 12 Adolph. and Ellis R., 737 ; 10 Mees. and Welsb. R,, 109; 4 Welsb. Hurls, and Gordon R., 255. 2 Blake v. Ferris, 1 Selden R., 48, and the cases there cited. 1 Rapson Y. Cubitt, 9 Mees. and Welsb. R., 710; Milligan v. Wedge, 12 Adolph. and Ellis R, 737; The Mayor, Ac., of New-York v. Bailey, 2 Denio R, 433; 1 Selden R, 369, 492. 318 LAW OF BAILMENTS. Neither does the rule apply, so as to render the principal liable to one of his agents or servants for injuries sustained through the negligence of a fellow servant, engaged in the same general employment. 1 The liability of the principal, of which we are speaking, for losses caused by the negli- gence or misconduct of his servants, is grounded upon the right which he possesses of directing and 'controlling their conduct ; and he is compensated in part for this responsi- bility which the law imposes upon him for their acts, by the right which it assures to him, against all persons who may attempt to deprive him of the service of those whom he has employed', 2 The man who is" hired by the year at a fixed salary, though of full age, holds the legal relation of a servant to his employer. 3 And the relation is the same, though the hired man, having a family, is permitted under the agreement to occupy a house belonging to his employer. 4 Acts of non-feasance by the servant do not bind the prin- cipal. The refusal of a servant to deliver goods intrusted to him by his employer, on a demand made by a stranger, is not sufficient evidence of a conversion in an action against the servant. 5 Nor is a demand of the servant sufficient to charge the master, unless the former acts under the direction of the latter in refusing to deliver the goods. 6 And it does not seem to alter the case that the master afterwards approves of the conduct of his servant on the ground that he had no authority to deliver the property. 7 Neither is the principal liable in trespass for the willful act of his servant, as by driving his master's carriage against another, done without the direction or assent of the master, 1 Coon v. Syracuse and Utica R R Co., 1 Selden R., 492 ; Brown v. Maxwell, Hill R., 592 ; see Keegan v. The Western R. R, Cor., 4 Selden R., 175. 1 Woodward v. Waahburn, 3 Denio R., 369. 1 3 Denio R., 371. 4 Hay wood T. Miller, 3 Hill R, 90. * Mires v. Solebay, 2 Mod. R., 242 ; Alexander v. Southey, 5 Barn, and Aid. R, 247. * Storm T. Livingston, 6 John R., 44; Pothonier v. Dawson, Holt's N. P. R., 383. 7 Mount v. Derrick, 5 Hill R, 455. CONTRACTS FOR HIRE. 319 and in his absense. 1 But he is liable to answer for any dam- age to another from the negligence or unskillfulness of his servant acting in his employ. The same rule has been applied in the case of a collision of vessels on navigable waters, where it is held that the owner of a steamboat is not responsible in an action on the case, for the willful mis- conduct of the master in running her against and injuring another boat. This is the plain principle of the common law, and it is altered by our statute only so far as to subject the owner to certain penalties, without at all disturbing the relation between master and servant. 2 There is indeed no distinction in principle whether the act is done on land or water. To charge the master, it must always be shown or presumed from the circumstances, that the relation of master and servant subsisted between them in the particular affair. 3 If the servant makes a careless mistake, either of omission or commission, the law holds it to be the master's business negligently done ; but it does not presume that the servant's willful act of mischief is the act of his principal ; nor does it presume that the rela- tion of master and servant extends to that particular act ; on the contrary, the presumption of law is that the master did not intend nor assent to an act in itself criminal. He is answerable for his servant's negligence and want of skill, but he is not answerable for his willful injuries. 4 Under the Code of Louisiana, there are three kinds of free servants recognized : 1. Those who only hire out their ser- vices by the day, week, month or year, in consideration of certain wages. 2. Those who engage to serve for a fixed time for a certain consideration, and who are therefore con- sidered not as having hired out, but as having sold their ser- vices. 3. Apprentices, that is, those who engage to serve J M'Manus v. Oickett, 1 East R., 106. * Richmond Turnpike Co. v. Vanderbelt, 1 Hill R, 480; 2 R. S., 456, 16, 2 cd ; 1 R. S., 681, 2d edL, tit. 10 ; Wright v. Wilcox, 19 Wend. R., 343. * Moreton v. Hardern, 6 Dowl. andRyl. R., 275 ; Craft v. Alison, 4 Barn, and Aid., 590 ; Browcher v. Noidstrom, 1 Taunt R. 568. * Wright v. Wilcox, 19 Wend. R., 343. 320 LAW OP BAILMENTS. any one in order to learn some art, trade or profession. 1 The first of these classes include servants or domestics, who re- ceive wages and stay in the house of the person paying and employing them, for his service or that of his family ; such as valets, footmen, cooks; butlers and other house servants.* Such servants may leave their employer without assigning any reason, and they may be dismissed in the same arbitrary manner. 8 Other employees are placed upon a different foot- ing, and their relation to their principal is purely one of contract. As with us, masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed ; but this responsibility only attaches when the master might have prevented the act, causing the damage, and has not done it. Hurden of Proof. The hirer of chattels for use must, as we have seen, use ordinary diligence in taking care of them. If a hired horse be taken ill, and the hirer calls in a farrier, he is not answer- able for any mistakes which the latter may commit in the treatment of the horse ; but if instead of that he prescribes himself, and from want of skill gives him a medicine which causes his death, though he act bona fide, the hirer is liable for gross negligence. 4 Where the action is against the hirer for an injury alleged to have been sustained through his ne- gligence, the onus probandi is upon the bailor to show that the injury occured through the defendant's neglect. 5 Where, however, the bailee for hire returns the hired pro- perty in a damaged condition, and fails or refuses at the time, or subsequently, to give any account of how the injury occurred, the law will presume negligence on his part, and the burden will be upon him to show a want of negligence. 6 Code, art. 157. Code, art 3172. Code, art. 2718. Not so as to laborers. Arts. 2719, 2720, 2721. Dean v. Eeate, 3 Campb., 4. 3 Barb. R., 380 ; Runyan v.^aldwell, 7 Humph. R, 1 34. Logan v. Matthews, Barr. R., 417. CONTEACTS FOR HIRE. 321 The degree of care demanded by the law varies according to the nature of the property hired, and the circumstances in which iftis placed ;' but it is measured always by that dili- gence, which, under the circumstances, a man of ordinary prudence and discretion would exercise in reference to the particular thing, were it his own. Although the owner of a chattel, who has hired it to ano- ther, cannot maintain either trespass or trover against a third person, in respect to any injury or conversion of it, during the term for which it is hired, 2 yet, if the bailee do any act inconsistent with the bailment, and calculated to defeat the rights of property in the owner, he may treat the bailment as ended. 3 If the bailee destroy the property, injure it will- fully, or sell it, or do any other act that determines his in- terest in the chattels bailed, the owner may treat the contract of hire as at an end, and recover the value of the chattels, or demand a return of them. 4 But so long as the contract of hire subsists in full force, and the term of the bailment remains yet unexpired, the bailor cannot maintain an action against a third person for a conversion of the property while in the hands of the bailee. 5 The bailee has a remedy in such cases against all persons who disturb him in the pos- session or enjoyment of his hired property. 6 If he receive it for a specific term, for hire, neither the owner nor his cre- ditor can take it from his custody during the time of the bailment. 7 But if the thing bailed be used in a different manner, or for a different purpose than that agreed upon by the parties, the hirer is answerable for all damages, and even for a loss which due care could not have prevented. 8 In such a case the bailor may consider the contract terminated, 1 Swigert v. Graham, 1 B. Mon. R., 661. 8 Clarke v. Poozer, 2 M'Mullan R., 434. 8 Morse v. Crawford, 17 Verm. R., 499. 4 Sargent v. Gile, 8 N. Hamp. R., 329 ; Cothan v. Moore, 1 Ala. R, 423 ; Camp- bell v. Stakes, 2 Wend. R., 137 ; Swift v. Moseley, 10 Verm. R., 208. 6 Railroad Co. v. Kidd, 7 Dana R., 245 ; 8 John. R., 432. Hare v. Fuller, 7 Ala. R., 717. 7 Hartford v. Jackson, UN. Hamp. R., 145. 8 Wheelock v. Wheelwright, 5 Mass. R., 104 ; 8 Pick. R., 492 ; 12 Pick. R., 136. 21 322 LAW OF BAILMENTS. and bring an action for the value of the property. 1 Proof of such a departure from the terms of the agreement between the parties, is evidence of a conversion. 9 Where the plaintiff sets forth a special contract of hiring, as that a slave hired should not be employed in and about the water, he must not only show an employment of the slave in and about the water, but that in such employment the injury or destruction of the slave took place. He must support his allegations by proof of the facts alleged. 2 Where a chattel, such as a slave in one of our southern states, is hired for a specific service, the bailee, as we have said, is responsible for all damages arising from his employ- ment in a different service, and for any loss occurring while the slave is so employed, though by inevitable accident. Evidence that the loss or injury occurred in a service differ- ent from that for which he was hired, is sufficient to sustain the action, without showing any want of diligence on the part of the bailee. 3 The person hiring a chattel, assumes the risk of any los without fault on the part of the owner, to the extent of the price paid for the hire. If the chattel, being a slave, die of an injury previously received, during the term for which he has been hired, the bailee is not re- lieved from his contract, but must pay the amount of the hire, notwithstanding the death of the slave. 4 But there are, as we shall see, different decisions on this point. A general bailment of a slave for hire, without any ex- press stipulation or restriction as to the nature or place of employment, does not authorize the hirer to send or carry the slave upon a dangerous sea voyage ; and if he does so, and the slave be accidentally drowned in the cpurse of the voyage, he is liable for his value, though no immediate negligence is shown. In such a case, in order to determine the nature and purpose of the bailment, the owner may show that slaves. 1 Rotch v. Hawes, 12 Pick. R., 186. ' Huseley v. Branch, 1 Humph. R., 199. * Angus v. Dickereon, 1 Meigs R., 459 ; 3 Smedes and Marsh R., 129. 4 Wharton v. Thompson, 9 Yerg. R., 45 ; 8 Porter R., 83. But see Dugeon T. Teas*, 9 Miss. R., 867. CONTRACTS FOR HIRE. 323 employed in voyages like the one mentioned, command much higher wages than those employed for agricultural purposes, in the place where the bailment is made, and that when en- gaged for such voyages, there is generally a stipulation to that effect. 1 The burden of proof rests upon the party alleging a fact, by way of maintaining or defending an action, to establish it by evidence ; this is the general rule, and there is no ex- ception in favor of the bailor. If he allege an injury or loss of his property to have occurred through th6 negligence of the bailee for hire, he is bound to establish the fact by evidence ; 2 and his proof must be as broad as the allegation. It is not enough for him to prove a loss ; he must also show that it was caused by the negligence of the bailee. 3 The proof need not always be explicit as to the precise cause of loss or injury. 4 In general, though the law does not intend negligence, the bailee is presumed to have acted according to his trust until the contrary is shown. But where the property is not returned, at the end of the time for which it is hired, all the bailor has to do is to prove the delivery of the property under the contract, and this throws the burden of proof on the bailee to show a loss, as well as the manner in which it occurred. 5 But where the property is returned in an injured state, proof of that fact alone is not sufficient to put the bailee on his defence. 6 No doubt, he is bound to render some account of the manner in which the injury has been received, and if he conceals all knowledge on the subject, and refuses to make any state- ment whatever in relation to it, the fair presumption is that he is covering up his own wrong ; and hence it was held in Logan v. Matthews that under such circumstances the law 1 Spencer y. Pilcher, 8 Leigh. R., 565, * Newton v. Pope, l OP INNKEEPERS. 391 they are certainly given and received habitually as the equi- valents of each other. 1 Thompson v. Lacy was an action of trover brought against the defendant, who kept a house of public entertainment called the Globe Tavern and Coffee House in Fore-street, Moorgate, for goods detained for a tavern bill, and the defence was sustained ; the court hold- ing that a house of public entertainment in London, where beds, provisions and entertainment are furnished for all per- sons paying for the same, but which was merely called a tavern and coffee-house and was not frequented by stage coaches and wagons from the country, and had no stables belonging to it, is to be considered an inn; and that the owner is subject to the liabilities of innkeepers, and has a lien on the goods of his guest for the payment of his bill, even where the guest did not appear to have been a traveler, but one who had previously resided in furnished lodgings in London. 2 So, too, the keeper of an hotel, though he do not furnish stables and out-buildings for the accommodation of horses and carriages, is subject to the same liabilities as an innkeeper, but he should be declared against as an inn- keeper. 3 It seems, however, that a housekeeper at a water- ing place, who lets lodgings and furnishes meat and drink, and provides stable room for the company that resorts there for health and pleasure, is not to be regarded as an inn- keeper. 4 But it must be different where he receives ttyem. into his own house, and entertains them as guests are enter- tained in an ordinary hotel. It being the established custom of an insurance company to place public inns in the class of extra hazardous build- ings, the question arose in Doe v. Laming whether a policy containing the usual terms and insuring Grigsby's coffee- house as a building only ordinarily hazardous was void or valid, and Lord Ellenborough held that the coffee-house was 1 8 Hill R., 150. The words, hotel and inn, have nearly the same history, th meaning of which having gradually changed with the progress of society. 9 Thompson v. Lacy, 3 barn and Aid. K., 283. 1 Joues v. Oc.born, 2 Chitty R., 484. 4 Parkbouae v. Foster, 6 Mod. R. 428. 392 LAW OP BAILMENTS. not an inn within the meaning of the policy ; inasmuch as there are stables and out-houses attached to an inn, to which carriages and coaches and people are coming at all hours, so as to occasion an increased danger from fire, and rank the trade of an innkeeper in the class considered doubly hazard- ous ; whereas the trade of a coffee-house keeper is of a very different description. 1 So also, the keeper of a boarding or lodging house is not an innkeeper, and is not bound as such to receive all persons at all hours of the day and night ; but he is at liberty to receive whom he pleases, and on such terms as he may prescribe. 2 A person who makes it a business to keep a house of en- tertainment for travelers, and receives and entertains them, providing sheds and stables for their teams, is an innkeeper within the statute of the State of Ohio, though he keeps no liquor in his house for any purpose, and puta up no sign as such ; and hence it is held that he incurs a penalty under the statute of that state for keeping a travern without a license. 3 This decision appears to be at variance with the law, as held in this state. 4 Though the innkeeper is re- quired by law to be regularly licensed, his liability is the same if he actually keep an inn, though he omits to obtain the license rendered necessary by statute. 5 It is to be observed that a license to keep a tavern is a personal trust, which cannot be assigned to another; and hence one who purchases a tavern and receives from the grantor permission to sell under his license, cannot continue the business of selling and defend himself from an action to recover the penalty for selling spirituous liquors without a license, by proving such permission. 6 Under our statutes, if after the election of any person as a justice of the peace, he becomes an innholder or tavern-keeper in fact, he is thereby disqualified from commencing any new business as a justice. Doe v. Laming, 4 Campb. R, 77. Gal/e'a Case, 8 Co. R., 32. Curtis v. State of Ohio, 6 Ham-. R., 324 Overseers Ac., of Crown Point v. Warner, 3 Hill R., 150. Irickerson v. Rogers, 4 Humph. R., 17 ( J (Tenn). Alger T. Weaton, 14 John R., 231. OF INNKEEPERS. 393 This provision is understood to apply to cases where the tavern-keeper is licensed to retail spirituous liquors, and becomes so licensed after his election ; for the court in constru- ing the statute in Parmelee v. Thompson remark, that it is left "open to the people of the town, if such be their will, to have rum and justice dispensed at the same place, and by the same hand." 1 Becoming a tavern-keeper in fact, after his election, en- tertaing travelers and selling them spirituous liquors, he was disqualified from trying a cause, though he was not a licensed travern-keeper, and notwithstanding the suit had been instituted before he commenced the business ; a con- sent of the parties in such a case cannot confer jurisdiction upon the justice. 2 There is also another provision of our statutes, which deserves to be noticed, prohibiting the inn- holder or tavern-keeper from trusting any persons, other than those who may be lodgers in his house, or travelers not residing in the same city or town, for any sort of strong or spirituous liquors, or travern expenses, above the sum of one dollar and twenty-five cents ; 3 and enacting that he shall not be capable of recovering the same in any suit, nor of receiv- ing any valid security therefor. Guests. As a general rule, all persons entertained at a common inn, tavern or hotel, are to be deemed guests ; but if the inn- keeper invites a person to his house as a friend, he does not become answerable for his goods as an innkeeper, because he does not receive him in that capacity. 4 In one of the earlier cases, it is adjudged that if a guest leave his goods with an, innkeeper, saying that he will return in three days, and before his return the goods are stolen, he cannot maintain an action for them on the custom of the realm ; for at the time the goods were stolen he was not a guest; and, therefore, as 1 Parmelee v. Thompson, 7 Hill R., 77 ; 2 R. S., 325, 3d ed. . .. 1 Clayton v. Per Dun, 13 John R., 218 ; Low v. Rice, 8 John R , 409; Striker T. Mott, 6 Wend. R.. 465. * 1 R. S., 854, 3d ed. * Bac. Abr., tit. Ir.na and Innkeepers, C. 394 LAW OF BAILMENTS. the innkeeper could not gain a profit, he shall not be liable to suffer loss without a special undertaking. 1 But in a still earlier case it is held that where one comes to an inn and leaves his goods and horses, and goes into the town saying that he will return at night, and afterwards returns, his goods having in the meantime been stolen, he has his remedy against the innkeeper ; for the reason that he derives a profit from the keeping of the horses. 2 So, where one comes with goods to an inn, and stays there for a week, month or longer, and is there robbed of them, he has an action against the innkeeper; though perhaps, being at the end of his journey, he cannot be said to be a traveler or wayfaring man, as ori- ginally described in the writ issued in such cases. 3 But if an attorney hires a chamber in an inn for the term of a court, he is quasi a lessee, and not a guest, and if robbed, the innkeeper is not answerable. So, if a man upon a special agreement boards or sojourns in an inn, and is robbed, the innkeeper is not liable, since he does not receive him as a guest ; neither shall he be charged as an innkeeper with goods, delivered to him by his guest on another ac- count. 4 It appears from the original writ used against an inn- keeper, which was the foundation of the common law on this subject, that the common inn was instituted for passengers and wayfaring men, being termed diversorium, because he who lodges there is quasi divertcns se a via / and hence a neighbor who lodges with the innkeeper as a friend, is not deemed a guest. The writ was founded on the custom of the realm, according to the tenor of which the keeper of an inn for the entertainment of travelers, was bound to take care of the goods and chattels of his guest, within his inn, without loss or damage, so that no injury should arise by any means through his default, or that of his servants. 6 The action Gelley v. Clerk, Cro. Jac., 1 88. Wai -roke v. Griffith, Moor. 877. Bnc. Al-r. tit. Inns and Innkeepers, C., 6 and 6. K" 1 Al.r.. 8 Caly' Case, 8 Hep., 32. lieedle v. Morris, Cto. Jac., 224; Cross v. Andrews. Cro. Eliz., 622. OF INNKEEPERS. 395 against the innkeeper, however, was not confined to the guest himself; for it is held that a master may maintain an action against an innkeeper, on the general custom, for money lost while his servant was the innkeeper's guest. 1 And so, in a recent case, it is adjudged that the owner may sue for the goods intrusted by his servant to an innkeeper, the servant being the guest ; 2 and the rule is the same where the servant is robbed of his master's money, though the master be a moneyed corporation, that could not in fact be the guest of an inkeeper. 3 The same doctrine is held in Peet v. M'Graw, which was an action of replevin for detaining a pair of sorrel horses, received by defendant to be delivered to the plaintiff; the plea of the defendant alleged that he was the keeper of a public inn, and as such innkeeper received the horses and expended money in their necessary feed and keeping, which plaintiff had omitted to tender to him ; to this plea the plaintiff demurred, assigning as a cause of demurrer that it was not alleged that the person from whom the horses were received was a traveler ; and the court held that the plea was sufficiently certain to raise the lien for keeping the horses ; and that the averment that they were received by the de- fendant as an inkeeper was equivalent to an allegation that they were delivered to him by a traveler or guest. 4 This de- cision shows that the innkeeper has his lien for the keeping of a horse intrusted to him by one whom he receives and entertains as a guest ; for the lien can arise only where the relation of innkeeper and guest exists, either actually or constructively. 5 Where horses were left with an innkeeper by one of his neighbors for the mere purpose of being fed and kept, the latter reserving the right of taking and using them at pleasure, it was adjudged yp an action by the inn- keeper for seizing and selling them on an execution against Cro. Jac., 224. Mason v. Thompson, 9 Pick. R., 280. Towson v. The Havre de Grace Bank, 6 Har. and John. R., 47. Peet v. M'Graw, 25 Wend. R., 653. 3 Hill R., 489. 396 LAW OF BAILMENTS. the owner, that the former had no lien and could not recover. 1 This decision is placed upon the ground that the horses were not delivered to the innkeeper by a traveler or guest. If a traveler leave his horse at an inn, and then go out to dine or lodge with a friend, he does not thereby cease to be a guest, and the rights and liabilities of the parties remain the same as though the traveler had not left the inn. And if the owner leave the inn and go to another town, intending to be absent two or three days, the same rule holds good, so far as relates to property, for the care and keeping of which the host is to receive a compensation ; but it is otherwise, as we have shown, in relation to inanimate property from which the host derives no advantage, and if that be stolen during such absence of the guest, the innkeeper will not be answerble. 2 Without doubt, if the guest retain his room so as to be chargeable for it, he may be considered a guest not- withstanding his absence, even where he leaves at the inn only inanimate property. It has been held in Massachusetts that a traveler, who lodges with a friend and sends his horse and carriage to an. inn, is to be deemed a guest of the innkeeper though he never enter the house. 3 It may be questionable whether in in such a case the innkeeper is bound to receive the horse and carriage, and it is doubtful whether the mere fact of hia receiving goods which he is not compelled to receive can be said to give him a lien upon them for their keeping and cus- tody ; and the lien, as we have said, arises only where there exists the relation of innkeeper and guest. 4 The title of the guest to the property is not material ; the innkeeper is bound to receive the guest, and cannot stop to inquire whether he is the right owner of the property he brings; 6 and hence he l^as his lien upon it, though it be in fact the property of another person wrongfully taken and left at the inn. Grinnell v. Cook, 3 Hill R., 485. Cro. Jao., 188; Yorke r. Oenaugh, 2 Ld. Raym., 866; 1 Salk., 388. Ma.on T. Thompson, 9 Pick. R., 280. 8 Hill R, 488, 489, 490. Johnson T. llill, 3 Stark, K, 17* OP INNKEEPERS. 397 Purchasing liquor at an inn is sufficient to constitute the purchaser a guest, so as to charge the inkeeper with parcels laid down by the guest at his side while he drinks, or with an overcoat delivered to the barkeeper or hung up in the same room.' In Bennett v. Mellor the plaintiff's servant had taken some goods to market at Manchester, and not being able to dispose of them, went with them to the defendant's inn and asked the defendant's wife if he could leave the goods there till the following week, and she said he could not, for they were full of parcels. The plaintiff's servant then sat down in the inn, had some liquor, and put the goods on the floor immediately behind him, and when he got up, after sitting there a little while, the goods were missing. There was a verdict for the plaintiff for the value of the goods ; and on a motion for a new trial, the king's bench sustained the verdict, deciding that the plaintiff's servant was to be deemed a guest of the defendant. 2 The case is cited with approbation in the supreme court of this state. 3 If a person, after becoming a guest at an inn, as in the case just cited, go away for a brief period, leaving his property, intending to return, he is to be considered as still continuing a guest ; and if his property is lost during his absence the innkeeper is liable, even where the goods are not placed in his special keeping. But the absence of the guest must be such as to show that he still remains the guest of the inn- keeper, which is generally a fact to be averred, and passed upon by a jury. 4 Of course the innkeeper who receives property from any person, though not his guest, for custody, is answerable for it as an ordinary bailee ; but he is under the liabilities of an inkeeper only in respect to persons whom he receives and entertains as travelers. 1 Bennett v Mellor, 5 Term R., 273 ; McDonald v. EdgertoD, 5 Barb. R, 560. * 5 Term R., 273. Clute v. Wiggins, 14 John. R, 175. * 4 5 Barb. R., 560; 14 John. R., 175; 2 Kent's Comm., 592, 593, 594. 398 LAW OF BAILMENTS. What a ddivei*y to an Innlcefper. It is not necessary that the goods of a guest should be placed in the special keeping of the innkeeper, in order to make him liable ; if the goods are placed infra hospitiHm, that is sufficient to charge him with their safe-keeping. 1 In Clute v. Wiggins, it is adjudged that innkeepers are chargeable for the goods of their guests, lost or stolen from an out- house, and that to render them liable, it is not necessary that the goods should be delivered into their special custody. In this case a sleigh loaded with wheat was put into the innkeeper's wagon-house, where it had been usual for him to receive loads of that description, and the grain was stolen during the night, the wagon-house having been broken open ; and the court held the innkeeper liable. 2 An innkeeper on a fair day, upon being asked by a traveler then driving a gig of which he was the owner, " whether he had room for the horse ?" put the horse into the stable of the inn, received the traveler with some goods into the inn, and placed the gig in the open street outside of the inn yard in which he was accustomed to place the carriages of his guests on fair days ; and the gig, with some goods in it, having been stolen from thence, it was adjudged that the innkeeper was answerable. 3 So, where a traveler went to an inn, and desired to have his luggage taken into the com- mercial room, to which he resorted and from whence it was stolen, it was held that the innkeeper was responsible, al- though he proved that according to the usual practice of his house the luggage would have been deposited in the guest's bed room, and not in the commercial room, if no order had been given in respect to it. 4 The innkeeper is liable for goods and even for money de- posited in his house by a guest, though not given in charge to him personally. In Kent v. Shuchard, it appeared that 1 5 Barb. R., 560; 5 Term R., 273. * 14 John, H., 175; Cage's Case, 8 Co. R., 32. 1 Jones T. Tyler, 1 Adolpli. and Ellis R., 522. 4 Richmond v. Smith, 8 Barn, and Ores. R., 9. OF INNKEEPERS. 399 the plaintiff and his wife, with a young lady, arrived at the defendant's inn in the evening, and took a sitting room and two bedrooms, so situated that the door of the sitting room being open, a person there could see the entrances into both bedrooms: on the following day Mrs. Kent went into the bedroom and laid a reticule which contained the money on her bed, and afterwards returned into the sitting room, leaving the door open between that and the bedroom ; within five minutes after, the reticule was looked for and could not be found, and the innkeeper was held liable for the money. 1 He must take care to admit no improper persons into his house, because he must answer for the property of his guest committed to his care, unless the loss of it is caused by the act of God, by the common enemy, or by the neglect or de- fault of the guest himself. 2 Though the innkeeper gives the key of his room to the guest, this will not of itself dispense with his own care or discharge him from his general responsibility as an innkeeper. But if the guest accepts the key and takes upon himself the care and custody of his goods, it is a question of fact for the jury to determine whether he does so with a view to relieve the innkeeper of his responsibility. Thus, an innkeeper is not answerable for the goods of his guest, which are lost through the negligence of the guest out of a room granted to him in the inn for the purpose of exhibiting his goods to his customers for sale, the key of the room being delivered to him so that he may lock the door, which he neglects to do. 3 Notwithstanding the general rule is, that the innkeeper is liable for whatever is deposited in his house, he is not so liable where the trust is reposed in another person, such as a servant residing in the inn ; 4 for in this case there is no de- livery to the innkeeper. So, where a traveler arriving at an inn, placed his loaded wagon under an open shed, near 1 2 Barn, and Adolph. R., 803. 1 Mason v. Thompson, 9 Pick. R., 280. 1 Burgess v. Clement*, 4 Maule and Sel. R., 306. 4 Su eider v. Geiss, 1 Yeutes R., 34. 400 LAW OF BAILMENTS. the highway, and made no request to the innkeeper to take the custody of it, and goods were stolen from it in the night, it was held that the innkeeper was not liable for the loss, notwithstanding it was usual to put loaded wagons in that place. 1 So also, if a guest at an inn deposit his goods in a room which he uses as a shop or warehouse, and of which he has the exclusive possession, the landlord is not answera- ble for the goods as an innkeeper. 2 There is here some- thing more than the mere delivery of the key to the guest, which does not discharge the landlord of his responsibility ; there is, in substance, an agreement for the use of the room as a shop in which to exhibit his goods, and under this spe- cial agreement the landlord is released from his common law liability. 3 In order to charge the innkeeper, the goods must be dis- posed of according to his directions and placed in the room designated by him. If a man comes to a common inn, and requires his horse to be put to pasture, which is done ac- cordingly, and the horse is stolen, the innkeeper is not liable. 4 But where the guest gives no directions in respect to his goods or chattels and deposits them at the inn in the usual manner, the innkeeper is answerable for them ; 5 and his responsibility extends equally to money, deeds, obligations and choses in action. 6 In the case of Quinton v. Courtney, a traveler who had saddle bags, in which were two hundred dollars, upon alighting at the inn, delivered the bags to a servant of the tavern-keeper, but did not inform either the servant or tavern-keeper that there was money in the bags : the bags were placed in the barroom, and were afterwards found on the lot, cut open and the money gone ; and it was adjudged that the innkeeper was liable. 7 If the goods or things in action are placed within the inn, the landlord is Albin v. Presby, 8 N. Hnmp. R., 408. Farnsworth v. Packwood, 1 Stark. R., 198. 4 Maule and SeL R., 306. Calye's Case, 8 Co. R., 32. 14 John R, 175; 6 TVrm R., 273. Story on Bailra, $ 481 ; 8 Co. R., 32; 2 Barn, and Adolph. R., 803. Hayw. North Car. Rep., 41. OF INNKEEPERS. 401 bound to take care and answer for them, unless the guest neglects the request of the innkeeper to have the goods locked up in a particular chamber, or otherwise occasions them to be lost or stolen. 1 But it is the duty of the inn- keeper to see that the goods are secured in a proper manner, and he is bound to provide honest servants and inmates, according to the confidence reposed in him by the public. 2 Under a recent statute applicable only to hotels, the pro- prietors of such houses who provide a safe in the office, or other convenient place for the safe keeping of money, jewels or ornaments belonging to their guests, and post a notice to that effect in a conspicuous manner in the rooms occupied by such guests, are absolved from their liability to answer for such articles in case of loss by theft or otherwise. The effect of this statute is to make the posting of such notices actual notice to the guest that he is required to deliver his money, jewels and ornaments to the proprietor of the hotel to be deposited in the safe, if he intends to hold the landlord liable for their safety. Independent of this act, the innkeeper has the right to say to his guest that he shall deposit his valuables in the room or place pointed out for their reception ; but he was required to do this in an explicit manner, so as to give the guest the opportunity of choosing whether to deliver his property to the innkeeper or to retain the custody of it himself, and assume the risk and danger of losing it. In substance, this law, which would have been more equal if it applied indiscriminately to all innkeepers, makes the guest responsible for not seeing the notice posted in his room ; in other words, it demands of the guest of a hotel-keeper a greater degree of vigilance than is required of one who sojourns with an ordinary inn- keeper. 8 The hotel is only an elegant kind of common inn, and it is necessary, as we have seen, to declare against the keeper 1 Sanders v. Spencer, Dyer, 266. t * Jones on Bailm., 95, 96. * See chap. 421, of the New- York Session Laws of 1855, p. 774, printed in the Appendix. 26 402 LAW OF BAILMENTS. of it as an innkeeper. It is in no legal sense either more or less than an inn, whatever be the name by which it is called. And hence the difficulty of construing a statute like this, in which a name of pretense is used to designate a favored class. 1 Responsibility of Innkeepers. We have already mentioned incidentally that the inn- keeper is presumptively chargeable for the loss of the goods of his guest committed to his care, unless the loss is caused by the act of God, by the common enemy, or by the neglect or default of the guest. 2 It is not necessary, where the goods are proved to be lost, to prove negligence in the inn- keeper, to make him liable for the loss. 3 In Hill v. Owen, the plaintiff having introduced testimony tending to prove that the horse in question was delivered to the defendant, as an innkeeper, apparently in a healthy condition, in the evening, and that he was found dead in the defendant's stable on the next morning, the court instructed the jury that the delivery of the horse to the defendant and the death of the animal before redelivery to the guest were prima facie evidence of negligence in the innkeeper, and that it was incumbent on the latter to save himself from responsi- bility for the loss sustained by the plaintiff, to show that the horse had been properly attended to. 4 The rule establishing the innkeeper's liability is very strict, and where a loss is shown the presumption of law is, that it has been caused by the landlord's neglect. 3 The 1 Every hotel is an inn ; but not every inn is a hotel ; but who is to draw the line between the old f;ishi..nel tavern or inn and these new favorites of the law, and dt-ci'le just when the inn emerges into the more showey hotel? Whether its name maki-s the transformation, or the size and sumptuousness of the edifice and furniture? Stututes are to be construed so as to give to the language used its plain and ordinary meaning. But the terms used in this act are not suffi- ciently definite, hnteln being only a single class of houses appropriated to the tame business, differing from others in no marked and essential features. 1 Mason v. Thompson, 9 Pick. R., 280. 1 5 Barb. R. 564. 4 5 Blackt R., 828. Cl je's cate, 8 Co. R., &2 ; Bennett v. Meller, 5 Term, R., 273 ; 14 John. R., 177. OF INNKEEPERS. 403 reason of this rule is stated very strongly by the English writer so often quoted on the law of bailments. " Rigor- ous as this rule may seem, and hard as it may actually be in one or two particular instances, it is founded on the great principle of public utility to which all private considera- tions ought to yield. For travelers, who must be numer- ous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innholders, whose education and morals are none of the best, and who might have frequent opportunities of associating with ruffians and pilferers, while the injured guest would seldon or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them." 1 The common law, it is to be considered, grew up in a period when roberries were frequent and highwaymen often mingled with travelers and stopped at the same taverns, sometimes making the common inn a place of rendezvous. But though the character of innkeepers, like that of the great body of the people, has been greatly improved since the rule was established fixing the liability of landlords, it is still found- ed in a sound public policy. Being generally a stranger, the traveler has not the means of proving how his property has been injured or lost, and hence the propriety and jus- tice of- the legal presumption, which in the first instance holds the innkeeper responsible for whatever property is intrusted to him in that capacity. 2 The principle is analogous to that which regulates the liability of the common carrier and holds him answerable for all the goods he receives, and it is supported by the same reason of public utility. 3 By the custom of the realm, that is the general custom, innkeepers are obliged to keep the goods and chattels of their guests which are within their inns, without substraction or loss day and night, so that no damage shall come to them from the negligence of the inn- 1 Jones on Bailm., 95, 96. * 5 Term. R., 276; 5 Blac-kf. R., 323. ' Orange Couuty Bank v. Brown, 9 Wend, R., 114. 404 LAW OF BAILMENTS. keeper or his servants. 1 But the innkeper is not liable where the loss of the goods does not occur through his fault ; if shown to be deposited in his inn, and there lost or injured, the priraa facie presumption is that the loss or damage was occasioned by the neglience of the innkeeper or his servants. But this presumption may be rebutted, and if the jury find in favor of the innkeeper, as to negli- gence, he is entitled to succeed on a plea of not guilty. 2 The innkeeper, however, is liable in many cases where he is guilty of no actual neglect ; and some of the cases go so far as to assume that he is liable at all events for goods intrust- ed to him as an innkeeper, unless the loss of them is shown to have been caused by the act of God, by the public enemy or by the neglect or default of the guest.* In this state it has been adjudged that he is liable for a load of wheat de- posited in his wagon house and stolen from thence during the night. 4 He must answer for the goods received by him if they are lost, though it does not appear how the loss oc- curred. 5 But the action against him in such a case must be in the nature of case founded upon the custom, alleging the delivery of the goods to him as an innkeeper and their loss through his neglect. 6 In Piper v. Many it is held that an innkeeper is responsi- ble for the safe keeping of a load of goods belonging to a traveler who stops at his inn for the night, if the carriage containing the goods be deposited in a place designated by the servant of the innkeeper, although such place be an open unenclosed space near the public highway. 7 Where the goods have been received into the care and keeping oJf the innkeeper, within the meaning of the terms of his com- mon law liability, that is infra hospitium, he is bound to keep them in safety ; and if they are stolen, he cannot free him- 6 Adolph. and Ellis, N. R., 164; Story on Bailm., 470. Dawson v. Chamoey, 5 Adolph. and Ellis, N. R., 164. * Mason T. Thompson, 9 Pick. R., 280. Clute T. Wiggins, 14 John. R^ 175. Hallenbake v. Fish, 8 Wend, R., 647 ; 9 Pick. R., 280. 8 Wend R., 547 ; 4 id. 618 ; 25 id. 653. 21 Wend. R., 282. OP INNKEEPERS. 405 self from liability by showing that he has not been guilty of negligence. 1 It matters not where the goods are deposited, provided they are placed in the custody of the innkeeper ; if he wishes to exonerate himself, unless the goods are de- posited in a particular place, or kept in a speciel manner, he must say so. 2 The liability of the innkeeper is strict, and doubtless often severe, but not more so than that of the common car- rier, since both are considered insurers of the goods while in their keeping. 3 If the guest deliver his horse to the hostler, and request that he be put to pasture, which is ac- cordingly done, and the horse is stolen, the innholder is not responsible ; for he is not to be regarded as an insurer of goods which are not infra hospitium, that is, neither in the inn nor within the curtilage. 4 A drover stops at a common inn with a drove of sheep, which, with his knowledge are turned out to pasture; in the pasture, or in the gulf adjoining it, there is growing a poi- sonous weed, called laurel ; on the next day several of the sheep die, and others sicken, so that the drover is obliged to lie by for several days with his flock and servants ; and from the evidence produced on the trial, it is manifest that the sheep have eaten laurel, and that the flock is greatly in- jured; upon these facts the law does not hold the innkeeper liable as such, though he may be, like any other bailee, liable for negligence. 5 It was till very recently considered still a debatable ques- tion, whether common carriers and innkeepers can contract for a more restricted liability thun the law imposes upon them in the absence of a special agreement; but the current of authorities tends to the conclusion that they may. 6 They certainly may make rules regulating the manner in which 21 Wend. R-, 283. 4 Maule. and Sel. R., 306 ; 8 Barn, and Ores. E., 9. 21 Wend. R., 285. Calye's Case, 8 Co. R., 82. Huwley v. Smith. 25, Wend. R., 642. Alexander v. Greene, 3 Hill R., 9 ; Wells v. The Steam Nav. Co., 2 Comst R., 209 ; Gould v. Hill, 2 Hill R., 623 ; Dorr v. N. J. Steam Nav. Co., 4 Sand. R, 136. 406 LAW OP BAILMENTS. they will accept goods ; such as requiring that the contents of packages delivered to the carrier shall be made known, and that goods delivered to the inkeeper shall be deposited in a particular room. 1 This is no more than saying that the guest may take upon himself the care and custody of his goods, so as to relieve the innkeeper from his responsibility; and that the person who delivers property to a carrier is bound to deal fairly, and state frankly the contents of packages to be carried. If he delivers to the carrier a pack- age of money, and takes a receipt for it as containing two hundred pounds, when it in fact contains four hundred, and the package is lost, he shall recover only that for which he pays. 2 It is in this state settled that a common carrier may, by an express special contract, limit or restrict his common law liability as an insurer for the safe transportation and delivery of goods intrusted to him, while public policy forbids that he should be permitted to exonerate himself, even by an express contract, from a loss occasioned by his default or neglect of duty. The effect of this doctrine is to permit the parties to the contract for the carriage of goods, to separate the business of insuring the goods, from the undertaking to carry them ; and clearly permits a very essential modification^ of the carrier's responsibility. 3 There are dicta to the effect that the innkeeper is liable for any loss not occasioned by the act of God or the king's enemies ; and Chancellor Kent says he is held responsible to- as strict and severe an extent as common carriers, 4 but he afterwards remarks that he is not answerable for a loss occasioned by superior force, such as robbery. 5 In England, where chattels have been deposited in a public inn, and 1 4 Burr., 2301 ; 9 Wend. R., 85 ; Richmond T. Smith, 8 Barn, and Ores. R., 9 ; Burgess v. Clement*, 4 Maule and Sel. R., 306. 1 4 Burr., 2301 ; 9 Wend. R., 85. 4 Sand. R.. 136; but see Gould T. Hill, 2 Hill R., 623. This case is over- ruled by the court of appeals ; see 1 Kernan R., 485. 4 2 Kent'* Comm., 692 ; Richmond v. Smith, 8 Barn, and Ores. R.. 9. 1 Calye's CMC, 8 Co. R., 32; 2 Kent's Comui., 593 ; Kent v. Shukard, 2 Barn, and Adolj.h. R., 803. OP INNKEEPERS. 407 there lost or injured, though the presumption is that the loss or damage was occasioned by the negligence of the innkeeper or his servants, this presumption may be rebutted by proof of due care, and the finding of the jury on that question will be conclusive. 1 With us, the extent of the innkeeper's liability does not seem to be precisely defined ; he is answera- ble in the first instance, though no neglect whatever is proved ; 2 he is responsible for goods stolen from his custody, or lost while in his custody ; 3 and he must respond for the damages where a guest in his house is robbed of money or goods. 4 The responsibility of the innkeeper begins from the mo- ment he receives the guest with his goods, and it ends when the relation between him and the guest is dissolved. The privileges and responsibilities of the innholder are reciprocal and dependent upon each other, "as a duty upon a right. 5 For his liability he has a lien on the goods intrusted to him. Where he has no lien, he is not liable as an innkeeper; and he has a lien only where property has been delivered to him by a traveler or guest. 6 If property come into his hands in any other manner, as a stray, for example, he has no lien upon it for keeping. 7 If left behind by one who has been his guest, the lien attaches, though the guest did not own the property. 8 When the guest pays his bill and leaves the house with the intention of not returning, thus terminating his relation as a guest, the innkeeper's liability ceases ; and after this he is responsible only as an ordinary bailee for baggage left behind. 9 It follows from what has been said, that if an inkeeper's servants rob his guests, the master is bound to make resti- Dawson v. Chamney, 6 Adolph. and Ellis, N. R., 164. 5 Bh.ckf. R., 323. 14 John, R., 175; 9 Pick. R., 280. 6 Har. and John. R., 47. 3 Hill R., 490, 491. 25 Wend. R., 663. Fox v. McGregor, 11 Barb. R., 41. Johnson v. Hill, 3 Stark. R., 172, Wintermute v. Clark, 5 Sand. R., 242. 408 LAW OF BAILMENTS. tution ; indeed, it has long been established law, that the inkeeper is bound to make restitution if the guest is robbed in his house by any person whatever, unless it should appear that he was robbed by his own servant, or by a companion whom he brought with him. 1 This rule is somewhat more rigid than that enforced under the Roman law and in those countries whose jurisprudence is founded on the civil code ; but is much more convenient and easier of execution, since it imposes the burden of proof upon the party whose duty it is to guard and keep the property. If the loss be caused by irresistible force or by inevitable accident, or by a public enemy or by the neglect or default of the guest himself, the innkeeper is not answerable ; for the reason that the law re- quires of him no impossibility. 8 Innkeeper's duty to receive Guests. The keeper of a common inn is not at liberty to refuse to receive a guest, for whom he has room, either in the day time or at night ; neither can he discharge himself from his legal responsibility by a refusal to take care of his goods on the ground that there are suspected persons in the house for whose conduct he is not willing to be answerable. 3 If, having room for him, he refuses to receive a guest, without a reasonable ground for his refusal, or on a false pretence that his house is full, he will be liable to an action, both civilly and criminally. 4 An indictment lies against an inn- keeper, who, having room in his house at the time, refuses to receive a traveler j and it is not necessary for the traveler to tender the price of his entertainment if his rejection is not placed on that ground. And it is no defence for the innkeeper that the guest was traveling on a Sunday, or at an hour of the night after the landlord had gone to bed ; nor is it any defence that the guest refused to tell his name 1 1 Black. Com., 430 ; 8 Co. R., 33 ; Jones on Bailm., 94. 1 Jones on Bailm., 96, 104. ' Jones on Bailm., 94. 4 Dyar, 168, b 1 ; Rex v. Irene, 7 Carr. and Payne R., 213. OF INNKEEPERS. 409 and abode, since the innkeeper has no right to insist upon knowing these particulars ; but if the guest come in drunk, or behaves in an indecent or improper manner, the inn- keeper is not bound to receive him. 1 The innkeeper does not undertake absolutely to receive as guests all persons who come to his house, but only those who are capable of paying a compensation suitable to the accommodations provided. 2 He has a right to demand pre- payment; 3 but if he hangs out a sign and opens his house for travelers, it is an implied engagement to entertain, on the same terms, all persons who travel that way ; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler. 4 The putting up of a sign is only a matter of evidence, and by no means necessary to prove that a house or hotel is really a common inn. 5 In a private action against an innkeeper for refusing a traveler lodgings for the night, it seems a tender should be alleged to have been made of compensation for the enter- tainment. 6 If he puts himself upon his legal rights, he should take from the landlord every excuse for not receiv- ing him ; and it seems also that a prosecution against him by indictment at common law must be supported by a simi- lar allegation. 7 But an indictment for not receiving a guest has been sustained where no tender of compensation was actually made. 8 In one of the early authorities, the rule is laid down in these words : " If one who keeps a common inn refuse either to receive a traveler as a guest into his house or to find him victuals or lodging, upon his tendering him a reasonable price for the same, he is not only liable to render damages to the party grieved in an action on the case, 7 Carr. and Payne R., 213. Thompson v. Lacy, 3 Barn, and Aid. R. , 285. 9 Rep., 87. 3 Black. Com., 166. E *# 5 Sand. R., 242; 3 Hill R., 150. Fell v. Knight, 8 Mees. and Welsh. R., 269. 8 Mees. and Welsh. R., 269. 7 Carr. and Payne, R., 213. 410 LAW OF BAILMENTS. but may also be indicted and fined at the suit of the king , and it is no way material whether he have a sign before his door or not, if he make it his business to entertain pas- sengers." 1 So, the keeper of a common inn may be indict- ed at common law and fined as being guilty of a public nuisance, if he usually harbor thieves or persons of a scan- dalous reputation, or suffer frequent disorders in his house, or take exorbitant prices. 2 Although a traveler is entitled to reasonable accommoda- tions in an inn, he is not entitled to select a particular apartment, or to insist on occupying a bedroom for the pur- pose of sitting up all night, so long as the innkeeper is wil- ling and offers to furnish him with a proper room for that purpose. 3 Where an innkeeper, in a town through which lines of stages pass, and at whose inn the stages stop, permits the drivers of some of the lines to resort to his house without objection, he connot exclude the driver of a rival line from, entering his inn and going into the common public rooms where travelers are usuallay placed, for the purpose of soli- citing passengers for his coach, provided there is reasonable expectation that passengers are there and he comes at a suit- able time, conducts with propriety, and is doing no injury to the innkeeper. 4 A house of public resort, whether licensed or not, is a tavern, and of course open to the public. 5 But an innkeeper is not bound for that, or any other reason, to entertain an agent of a rival inn, who seeks to decoy away his customers. 6 Nor is he compelled to receive a driver of a rival line of stages into his house, if he behave so as to ereate a disturbance, or otherwise interrupt the quiet of his house ; indeed, it is his duty to keep an orderly house. 7 2 Hawkin's Pleas of the Crown, 26T. 2 Ihiwkin's Pleas of the Crown, 267. Fell y. Knight, 8 Mee. and Welsb. R, 269. Markham v. Brown, 8 N. Hamp, R, 523. Linkous v. Commonwealth, 9 Leigh. R, 608. Shall I not take mine ease in mine innf Jeiitks v. Coleman, 2 Sumner, 221. 8 N. llamp. R, 623; 2 Hawk., P. of the a, 26X OP INNKEEPERS. 411 Innkeepers lien. The law gives to the innkeeper a lien on the goods of his guest intrusted to him, for his reasonable charges. He is bound to receive and entertain travelers, and is answerable for the goods of the guest although they may be stolen or otherwise lost without any fault on his part ; like a common carrier, he is an insurer of the property, and presumptively nothing but the act of God or public enemies will excuse a loss. On account of this extraordinary liability the law gives the innkeeper a lien on the goods of the guest for the sat- isfaction of his reasonable charges. It was once held that he might detain the person of the guest, but that doctrine is 'now exploded, and the lien is confined to the goods. 1 He has his lien where he is liable as an innkeeper, and he is so liable only for goods intrusted to him by his guest. 2 Accordingly he has no lien for the keeping of horses, re- ceived by him from one of his neighbors, who reserves the right of taking and using them at pleasure. 3 It is essential to the. lien that the goods should be received from one who is either actuaMy or constructively the guest of the innkeper. There must be such a relation ; but it is not necessary to its existence that the owner of the goods should be actually infra, hospitium at the time the loss happened or the lien accrued. For example, if a traveler leave his horse at the inn, and then go out to dine or lodge with a friend, he does not thereby cease to be a guest, and the rights and liabilities of the parties remain the same as though the traveler had not left the inn. 4 Mr. Justice Bronson, in delivering the opinion of the court in Grinnell v. Cook, observes: "If one send his horse or his trunk in advance to; the inn, saying he will soon be there himself, it may be that he should be deemed a guest from the time the property is taken in charge by the host. But when, as in Mason v. Thompson, the owner has never been 1 Grinnell v. Cook, 3 Hill R., 488 ; per Mr. J. Bronson. * Peet v. McGraw, 25 Wend. R., 653; 1* John. R., 175. 3 Hill R., 485. 4 Id, 489 ; 9 Pick. R., 280; 2 Ld. Raytn., 866. 412 LAW OP BAILMENTS. at the inn, and never intends to go there as a guest, it seems to me little short of downright absurdity to say, that in legal contemplation he is a guest." But it is agreed that if the traveler stop at the inn, and leave his horse and carriage there, and then go directly to lodge at the house of a friend, he is to be deemed a guest of the inkeeper ; l and the differ- ence between this case and that of Mason v. Thompson is merely a matter of form f there is none in substance. It can make no material difference whether the traveler personally leaves his horse at the inn, or sends it there by a servant. If goods be left with an innkeeper by one who is no guest or traveler, and they are lost, he shall not answer for them because he has no benefit from the keeping, and it is not his employment to keep such ; here of course he has no lien ; but if a horse be left at his stable, and he is lost, he shall answer for it because he receives profit thereby, arising from the meat consumed by the horse ; and for this reason he has a lien for his keeping. 3 As the property must be received by the innkeeper from a traveler or guest, in order to create either the lien or liability; 4 it is essen- tial in order to charge the innkeeper that the complaint should show that the loss occurred while the owner or per- son in charge of the property remained his guest. The lien, however, may remain after the guest has departed, pro- vided he leaves his goods behind without paying his bill. 5 Though the innkeeper has a right to detain the horse of his guest for the expenses of his keeping, if by suffering the horse to depart, or by any other means, he gives credit to the owner, he cannot afterwards detain him upon his coming again into his possession. In an action of trover brought by the guest against his landlord for detaining and converting plaintiff's horse to his own use, the plea alleged that plain- tiff owed defendant so much money for horse meat at several 1 Yorke T. Grenaugh, 2 Ld. Raym., 688 ; 1 Salt, 888. * 9 Pick. R., 280. * Lane v. Sir Robert Cotton, 12 Mod. R., 480. 4 6 Har. nd John. R., 47. * 3 Hill R., 485. OP INNKEEPERS. 413 times, and claimed a lien therefor on the horse ; on a de- murrer to this plea, it was held that though the innkeeper may detain the horse for his meat for one night, he cannot afterwards revive a lien which has been once surrendered, nor can he sell the horse and pay himself. 1 The innkeeper has, as we have said, a lien on the horse of his guest, although the animal was brought to the inn by one who took him wrongfully, provided the innkeeper have no notice of the wrong and act honestly. 2 His lien on the goods of his guest covers the general expenses of his living, including board, lodging and wine supplied to the guest on his order, whatever be the amount, if the guest is possessed of his reason and be not an infant. 8 If, in such a case, the sheriff levy upon the guest's goods, he takes them subject to the innkeeper's lien for his whole bill, and not merely for his lodging, board and a reasonable quantity of wine. The lien attaches only upon the goods that have been delivered into the custody of the innkeeper and for which he is responsible in case of a loss ; for the innkeeper cannot detain the person of his guest, nor take from him a parcel without his consent, nor can he take off from him his coat in order to secure payment of his bill. 4 It seems that where a guest brings several horses to an inn, and afterwards takes them all away but one, the lien for the keeping of those taken away does not attach upon the one left behind ; but the innkeeper has a right to detain him for his own keeping. 5 By parting with the possession, the innkeeper puts an end to his lien, for if the owner gets the property into his hands without fraud, the lien is at an end, and it will not be revived by the return of the goods. 6 1 Jones v. Thurloe, 8 Mod. R., 172. * Johnson v. Hill, 3 Stark. R., 172. * Proctor v. Nicholson, 7 Carr. and Payne R., 67. The landlord has a lien for money loaned to his guest on an agreement that his goods shall be a security for the loan. 4 Sunbolf T. Alford, 3 Mees. and Welsb. R., 248. 7 Bulst, 207. 217. * Bevan v. Waters, 3 Carr. and Payne R., 520; Jones v Thurloe, 8 Mod. R, 172; Jones v. Pearle, 1 Str., 556; Sweet v. Pym, 1 East R-, 4; 5 Mees. and Welsb., 342. 414 LAW OP BAILMENTS. The inkeeper's lien upon the goods of his guest does not clothe him with the right to sell them for the satisfaction of his charges ; his remedy to enforce the lien is by an action in the nature of a bill in equity. 1 Within the city of Lon- don he has such a right to sell by special custon, but he has no such right by the general custom which is the common law of the realm. Chancellor Kent suggests that it would be very convenient to allow the innkeeper to sell the chat- tel on which he has a lien, without suit, in like manner as a pawnee may do, on a reasonable notice to redeem ; since the expense of a suit would, in most cases, more than ejt- haust the value of the pledge. Statute Regulations. There is in Holinshead's Chronicles a description of the inns of England, copied in the appendix, from which it will be easy to perceive the reason of the law establishing the duties and responsibilities of the innkeeper. The habits and morals of a people are always important to be con- sidered in the study of a law of this kind confessedly based upon public policy, and designed for the benefit and con- venience of the community. The effect of the rule, holding the good-man of the house responsible for all losses occurring in his inn, is such that even in a house frequented by rob- bers, and served by thieves, the chronicler tells us you shall not hear that a man has been robbed in an inn. Though entirely unintentional, this is very high testimony to the wisdom of the law, showing at once its general utility and the circumstances in which it originated. 2 It is agreed that at common law the keeping of an inn is no franchise, but a lawful trade, open to every citizen, and for which he needs no license ; that where it is kept in a disorderly manner, the keeper may be indicted and fined, as being guilty of a public nuisance ; and that he may be dealt 1 For T. McGregor, 11 Barb. R., 41 ; 1 Str, 556; Pothonier v. Dawson, 1 Holt, N. P., 383; 2 Kent's Comm., 642; 8 Mod. R., 172. * See note in the appeudiz. OF INNKEEPERS. 415 with in like manner if he usually harbors thieves or per- sons of scandalous reputation. 1 The license system is a creation of the statute, which in the beginning extended to common inns only where these, by being made the scene of disorderly tippling, were con- sidered as having degenerated into ale-houses. 2 Hence it is said that every inn is not an ale-house, nor every ale-house an inn ; but if an inn uses common selling of ale, it is then an ale-house; and if an ale-house lodges and entertains travelers, it is also an inn. 3 The license was required, as a means of revenue, in order to place ale-houses under good police regulations, and to prevent them from multiplying to an unreasonable number. When the inn became an ale- house, it came under the law requiring a license. Our statute, regulating this matter of excise, is in many particu- lars the same as those of England. 4 In the reign of George II., a statute was passed enacting that no license should be granted to any person not licensed the year previous, unless such person should produce to the justice a certificate under the hands of the parson, vicar or curate and the major part of the church- wardens and overseers, or else three or four reputable and substantial householders and in- habitants of the parish or place where such ale-house was to be situated, setting forth that such person was of good fame and of sober life and conversation. 5 Our statute de- mands no certificate, but it requires that the applicant for a license shall be of good moral character. Under our Revised Statutes, every keeper of a public inn or tavern, except in the city of New-York, is required to keep at least two spare beds for guests, well provided, and good and sufficient stabling, grain, hay or pasturage for horses and other cattle, for the accommodation of travelers. 6 Every innholder or tavern-keeper, who is licensed as such, Bac. Abr., Inns and Innkeepers, A. Salk.. 45 ; Hutton, 99 ; 5 and 6 E., 6 c., 25; 4 Mod. R., 144, and Bac. Abr. 3 Hill R, 157. 1 R. 8., 853, 3 ed. 26 Gfo. II, c. 31, f. 2. 1 R. S., 853, 3d ed, 10. I 416 LAW OF BAILMENTS. i8 also required to put and keep up a proper sign on or ad- jacent to the front of his house, with his name thereon, indicating that he keeps a tavern ;' and under the same statutes he might be licensed as a tavern keeper without a permission to sell strong or spirituous liquors, or wines or alcoholic drinks ; but before any applicant could be licensed, he was required to execute a bond to the people of this state, with a surety to be approved by the commissioners of excise, with a condition that such applicant, "during the time he should keep an inn or tavern, would not suffer it "to be disorderly, nor suffer any cock-fighting, gaming or playing with cards or dice, nor keep any billiard table or other gaming table within the tavern so kept by him, or in any out-house or yard belonging thereto. 2 No person not licensed to keep a tavern, could put up a sign indicating that he kept a tavern. 3 But a license was not necessary in this state to authorize the business of keeping a tavern, neither were the responsibilities of an innkeeper affected in the slightest degree by his obtaining or omitting to obtain a license. 4 There is a species of inconsistency between the recognized and well established principle of common law, that the busi- ness of innkeeping is not a franchise, and that provision of the statute enacting that no person who has not at the time a license to keep a tavern, shall put up a sign indicating that he keeps one. If the intention of the act of 1843 be to prevent the keeping of any inn, which is not licensed, it is a little remarkable that it should have only prohibited the erection of a sign ; that is to say, imposed a penalty upon the citizen for employing the usual and ordinary evidence, or advertisement, of the business which he carries on under the authority of the law. 5 1 It. S., 853, 3d ed. Id., 853, 4; Session Laws of 1843. 3 Hill R., 150; Dickerson v. Rodgers, 4 Humph. R., 179; 6 Ham. R., 324 Session Laws of 1843, and the Overseers, s R., 84 ; hut see David v. Moore, 2 Watta and Serg., 230 ; Clark v. Spence, 10 Watta R., 385. OP INNKEEPERS. 423 the same limitation, as that of a passenger admitted to prove his own loss in an action against a carrier ; and after a care- ful examination of the authorities, we think the law ought to be considered as settled, that in such cases the passenger is, to some extent, a competent witness in his own behalf. He is so to prove the contents of a trunk lost or broken open, but only in respect to those articles which may be properly considered as part of his personal baggage ; that is, as in- tended for his personal use or accommodation. It is pre- sumed that the contents of the trunk, in respect to such articles, are known to the owner alone, and, consequently, that were his testimony excluded, he would be without a remedy. He is admitted therefore as a witness to prevent a failure of justice ; in other words, from a moral necessity (12 Vine)- Abr., p. 32 ; Bull. N. P., 181 ; Story on Bailm., 454, note ; 1 Greenleaf on Ev., $ 348, p. 417, and note 2 ; Sneider v. Geiss, 1 Yeates, 34 ; Herman v. Drinkwater, 1 Green. R., 27 ; Clark v. Spence, 10 Watts, 335 ; Johnson v. Stone, 11 Humphrey, 419). It is plain that the same necessity exists when the traveler is a temporary guest at an inn, and equally so, that it extends no further in the one case than in the other." 1 The party to the action is held a competent witness only ex necessitate rei ; and in those cases alone where it may be strongly presumed that no other witness can be called to testify on the subject. He is not competent as a general witness for himself, but only to prove facts, which in the nature of things cannot be shown by any other evidence, such as the contents of a lost trunk, portmanteau or box. 2 1 1 Abbotts' Practice Reports, 325. 1 Greenleaf on Ev., 348 ; Wiutermute v. Clarke, 5 Sand. R., 242. 424 LAW OF BAILMENTS. CHAPTER VIII. COMMON CARRIERS. THE internal and external carrying trade of a highly com- mercial people forms no inconsiderable element in the national prosperity. To the carrier, as the agent of com- merce, is committed the wealth of merchandise shipped on the seas from port to port, and carried along all our rivers, railroads, canals and lakes. In the interest of a business whose influence is so extensive in civil life, the law accords to this subject an important place in our system of juris- prudence, giving to it a consideration proportioned to the numerous and various relations which it involves. The law establishing the rights and responsibilities of common carriers ha grown up out of what is usually de- nominated the custom of the realm, and has been constantly adjusted and modified in furtherance of a wise commercial policy. 1 In order to give due security to property, the law imposes upon the carrier the responsibility of an insurer. To prevent litigation and the necessity of going into cir- cumstances impossible to be unraveled, the law, in case of loss, presumes against the carrier, unless he can show it happened by public enemies, or by such an act as could not be attributed to the intervention of man, as storms, light- ning and tempests. On account of the opportunity he has for collusion with thieves and robbers to the infinite injury of commerce, he is held answerable for all losses that occur by theft or robbery. 2 Because of the rigor of the rule enforced against him, he is entitled to demand a compensa- tion for his services in proportion to his risk. Over against 1 Forward T. Pittard, 1 Term R., 27. ' Riley y. Home, 6 Bing. R., 217 ; Jones on Bailm., 103. COMMON CAEEIERS. 425 his extraordinary responsibilities, he has some special and peculiar privileges ; for we find that in the wisdom of the law, duties are everywhere compensated with rights. 1 Who are Common Carriers. A person is not a common carrier who on a single occa- sion sends his servant to transport goods belonging to a par- ticular individual, from one place to another, as from Albany to Schenectady. 2 To constitute him a common carrier, he must be one who as a regular business, undertakes for hire or reward to transport the goods of such as choose to em- ploy him, from place to place. 3 He is not a common car- rier, unless his employment be to carry goods generally for any one, so as to imply a public engagement to serve all persons alike on being tendered a suitable reward. 4 In other words, if he undertake for hire or reward to transport the goods of all persons, indifferently, that is, of all such per- sons as choose to employ him, from place to place, he is a common carrier; 5 and his employment is of such a public character as obliges him to accept business whenever it is offered to him on reasonable terms. 6 It is not necessary, in order to make him a common car- rier, that he should pursue the business constantly or con- tinuously ; a wagoner who carries goods for hire, thereby contracts the responsibility of a common carrier, whether transportation be his principal and direct business or only an occasional and incidental employment. 7 The practice of car- rying for hire, parcels not belonging to passengers, in a stage coach, constitutes the proprietors of the coach common car- riers ; and the responsibility is the same, whether the driver is told that a package of bank-notes delivered to him con- 1 Orange Co. Bank v. Brown, 9 Wend. R., 85. * Satterlee v. Groat, 1 Wend. R., 272. Blanchard v. Isaacs, 3 Barb. R., 388. Trent and Mersey Navigation v. Wood, 3 Esp. R., 127 ; Story on Bailm., 495. Gisbonrn T. Hurst, 1 Salk. R., 249; Dwight v. Brewster, 1 Pick. R., 50. 3 Hill R., 20. Gordon T. Hutchinson, 1 Watts, and Serg. R., 285. 426 LAW OP BAILMENTS. tains money, or papers as valuable as money. 1 But it has been held that the driver of a stage coach, in the general employ of the proprietors of the coach, who is in the habit of carrying packages of money for a small compensation, which was uniformly twenty-five cents each, whatever might be the amount of the package, is a bailee for hire answera- ble only for ordinary negligence, and not subject to the re- sponsibilities of a common carrier; there being in the case no evidence to show him a common carrier, other than the fact that he took such packages of money as were offered. 2 No person is a common carrier, in the sense of the law, who is not a carrier for hire. It is not necessary that the compensation should be a fixed sum ; it is sufficient if it be in the nature of a quantum meruit enuring to the benefit of the owners ; nor is it necessary that the goods or property should be entered upon a freight list, or that the contract be verified by a written memorandum, however convenient both of these might be in ascertaining the true understand- ing of the parties, as to the character of the bailment. 3 Whether a steamboat company are common carriers of money for hire, so as to charge them with a package of of bank-bills and accounts intrusted to the master of the steamboat for carriage, is a question of fact ; if they have been in the habit of carrying money for hire, or have held themselves out to the public as common carriers of money and bank-bills, they are answerable in that capacity. 4 But such a company is not liable for the loss of packages of bank-bills, intrusted to the captain of their boat, unless it be shown that they have made the carriage of such packages a part of their ordinary business. 5 If it appear that the captain had been forbidden by his employers to carry money, that he had never knowingly carried any, that the usage was for persons sending money to compensate the captain, 1 Pick. R,, 50. Sheldon v. Rubinson, 7 N. Hamp. R., 167. The Citizens' Bunk v. The Nan tucket Steamboat Company, 2 Story R., 16 2 Story R., 16. bewail v. Allen, 6 Wend. R., 335. COMMON CARRIERS. 427 and that the owners charged freight only on specie, the company is not a common carrier of money. A package of bills delivered under such circumstances, to be carried, as from New-York to Albany, will be deemed a personal trust, committed to the captain ; especially where the compensa- tion therefor is his personal perquisite, and the package is delivered to the captain as a trustworthy person with whom, on inquiry, it is considered prudent to send money. 1 If a carrier is in the habit of transporting goods for hire, an agreement to pay the usual price, or what the transporta- tion and risk are reasonably worth, if no specific charge for such articles has been adopted, will be implied from the delivery to the carrier for transportation. 2 If the carrier personally, or by his authorized agent, receive the goods under such circumstances, he does so as a common carrier and becomes legally answerable for their safety as well as their carriage. A delivery to his agent or servant of such goods as it is the custom of the carrier to receive for carriage, is a delivery to himself ; not so as to the delivery of goods out of his line of business, unless they be so nearly within it that the person delivering them has reason to suppose they are fairly within the ordinary scope of the agent's authority to receive and transport. 3 The carrier, receiving a passenger with a trunk as his baggage, is responsible if the baggage is lost, though no distinct price be paid for its transportation ; the compensation for its conveyance is, in contemplation of law, included in the passenger's fare ; but the carrier is not liable for a large sum of money deposited in the trunk which is delivered as baggage, though spoken of in the act of delivery as a trunk of importance. 4 A carrier of passengers is not subject to the same strict rule of responsibility for injuries to the person, as to the goods of a passenger. Thus, a company, using steamboats 1 2 Wend. R., 327 ; 6 Wend. R., 356, 358; 7 N. Hamp. R., 157. 6 Wend. R, 350; 2 Story R., 16. 1 Esp. Dig., 622 ; Halsey v. Brown, 3 Day*8 R., 346 ; Renner v. The Bank of Columbia, 9 Wheaton R., 590; 6 Wend. R., 361, 350. 4 9 Wend. R., 85. 428 LAW OP BAILMENTS. and railroads for the transportation of passengers and their baggage, are liable as common carriers for damages happen- ing to the baggage of passengers from a defect in the vehicles or machinery used, although the company is not chargeable with actual negligence, or want of skill, or want of care, in securing the safety of the baggage ; and nothing will excuse the company but inevitable accident arising from superhu- man causes, or the acts of the enemies of the country j 1 while, for injuries happening to the persons of the passen- gers, the company is not liable to respond in damages, provided they have done all that human foresight and care can do to insure the safety of the passengers. 9 The law, regulating the responsibility of common carriers, does not apply to the case of carrying intelligent beings ; in other words, the carrier of passengers is not strictly a common carrier. 3 As defined by Chancellor Kent, common carriers consist of two distinct classes of men, namely, inland carriers by land or water, and carriers by sea ; in the aggregate body are included the owners of stage-wagons and coaches, who carry goods as well as passengers for hire, wagoners, team- sters, cartmen, the masters and owners of ships, vessels and all water-craft, including steam vessels and steam tow-boats, belonging to internal as well as coasting and foreign naviga- tion, lightermen and ferrymen. 4 It is adjudged that the owners of a steamboat who un- dertake for hire to tow a canal boat and her cargo, her mas- ter and hands remaining on board and in possession, are not common carriers, but only responsible as ordinary bailees for hire ; and this, though they carry on the towing of boats as a business, holding themselves out as ready to engage for all who may desire their services. 5 A town or city carman, 1 The Camden and Amboy Railroad and Transportation Company v. Burke, 13 Wend. R, 611. * 18 Wend. R., 627, 629 ; Christie v. Griggs, 2 Camp., 80. ' Boyce v. Anderson, 2 Peter's U. S. R., 150. 4 2 Kent's Coram., 598, 599. Alexander T. Greene, 3 Hill R., 9; andS. C.,7 Hill R., 533; 2Comst R., 204. COMMON CARRIERS. 429 whose carts ply for hire near the wharfs and who lets them by the hour, day or job, is not a common carrier; such a person, though not liable as a common carrier, for losses by theft or robbery, is responsible for the negligence of his own servants; 1 if he accept goods to carry, saying "I will war- rant they shall go safely," he assumes the responsibility of a common carrier notwithstanding the owner of the goods sends his own servant to look after them. 2 Whether or not he accepts them as a common carrier, is a question of fact. In Robertson & Co. v. Kennedy, the defendant had been in the habit of hauling for hire, with an ox team driven by his slave, in the town of Brandenburgh, for every one who applied to him ; and had undertaken to haul for plaintiffs a hogshead of sugar, and after the slave had placed it on a slide for the purpose of hauling it to plaintiffs' store in Brandenburgh, the slide and hogshead slipped into the river, and the sugar was spoiled ; and the court held the defendant answerable as a common carrier, using in the decision of the cause these words : "Every one who pursues the business of transporting goods for hire, or for the public generally, is a common carrier. According to the most approved definition, a common carrier is one who undertakes for hire or reward to transport the goods of such as choose to employ him, from place to place. Draymen, cartmen and porters, who undertake to carry goods for hire, as a common employment, from one part of a town to another, come within the defini- tion." The distance from the river to the plaintiffs' store is not stated in the case. 3 Draymen, cartmen and porters clearly enough come within the terms of this definition, which has the sanction of the very best authority. 4 But it may well be doubted whether they come within the reason and spirit of the law establish- ing the responsibility of common carriers, and it is certain 1 Robinson v. Dunmore, 2 Bos. and Pul. R., 417. 2 Bos. and PuL R., 417. 1 2 Dana R., 430 ; 2 Kent's Comm., 598, 599 ; Story on Bailm., 496. * Per Ch. Justice Parker, in Dwight v. Brewster, 1 Pick. R., 50 ; Story on Bailm., 495 ; 7 N. Hamp. R, 157 ; 8 Barb. R., 388 ; 2 Story R , 16 ; 2 Kent's Comm., 599 ; 1 Salk. R., 249. 430 LAW OF BAILMENTS. that they are not so regarded in England, and not commonly so described. 1 Since the law applicable to the common car- rier is one of great rigor, its application should not be ex- tended to cases where the reason of the law does not apply. 2 His extraordinary liability is enforced on grounds of public policy. In order to prevent clandestine combinations with thieves, collusive litigation, and the necessity of going into circumstances impossible to be unraveled, the law always presumes against the carrier, unless he shows the injury to have been done by the king's enemies, or by such acts as could not happen by the intervention of man, such as storms, lightning and tempest. 3 Dangers, arising from collusion like these, can hardly be apprehended in the carriage of goods by carmen from street to street, or from place to place within a city. It is true the carman sometimes acts in the discharge of a common carrier's duty, as his agent or servant, in the de- livery of goods at their place of destination. In this case the liability of the carrier continues until the delivery is completed ; for the law contemplates no other bailment than that between the owner and the original carrier. 4 The wagoner. Gibson v. Hunt, was an action of trover for goods, taken as a distress for rent, which had been put with the wagon into a barn. The person to whom they had been intrusted had for some short time past carried cheese to London, and usually loaded back with goods, for a reasona- able price, for all persons indifferently; and it was resolved by the court, after consultation, that any man undertaking for hire to carry the goods of all persons indifferently, as in this case, is as to his privilege, a common carrier ; for the 1 Robinson v. Dunmore, 2 Bos. and Pul. R., 417 ; Jeremy's Law of Carriers, 4-21 ; Brind T. Dale, 8 Car. and Payne R., 207 ; Angel on the Law of Car- riers, 74. ' 2 Peters' U. S. R., 150. 1 Rich T. Kneel.ind, Hob., 18. 4 Hyde v. Trent and Mersey Navigation Company, 6 Term R., 389 : Jeremy's Law of Curriers, 68; Garside v. Trent and Mersey Navigation Company, 4 Term R., 68L COMMON CARRIERS. 431 law has given the privilege in respect of the trader, and not in respect of the carrier. 1 Formerly, in this country as well as in England, most of the carrying business by land was done by wagoners, who followed it as a regular employment, holding themselves out to the community as ready to receive and carry any goods that might be offered to them on their route ; and accord- ingly they were held common carriers. 2 The word common is added to distinguish them from. one who undertakes for hire, on a particular occasion to carry goods for another, and who is not answerable in all events, but only for neglect. In Pennsylvania, where at one time the carriage of goods into the interior of the state was chiefly done by farmers returning from market', it has been held that a wagoner, who carries goods for hire, incurs the responsibility of a common carrier, whether transportation be his principal and direct business, or only an occasional and incidental employment. 3 This decision lies close by, if it does not trench upon the line which separates the common carrier from the ordinary bailee for hire. If he does not make it his common and ordinary business to carry goods, that is to say, if he does not exercise it as a public employment, so that he. may be compelled to accept the carriage of goods, he is not a com- mon carrier. 4 This is, perhaps, the true and real test, though in this country the cases on the subject are by no means harmonious. 5 If the carrier does not make it his common and ordinary employment to carry goods, but engages on one occasion only, or if having been engaged as a common carrier he discontinue the business, and afterwards enter into a special contract to carry several loads of goods from one place to 1 1 Salt, 249 , Cro. Eliz., 596. * Satterlee v. Groat, 1 Wend. R., 272; Forward v. Pittard, 1 Term R., 27. * Gordon v. Hutchinson, 1 Walts and tierg. R,, 285 ; Powers v. Davenport, 7 Blackf. (Ind ) K., 497. 4 Cole v. Goodwin, 19 Wend. R., 261; 2 Kent's Comm., 599; Harris v. Pack- wood, 3 Taunt. R, 271 ; Rilej v. Home, 5 Biag. R., 217 : 2 Show R., 127, 327. * Against Jackson, 1 Hajw. R., 141 ; 1 Watta and Serg. R., 285. 432 LAW OF BAILMENTS. another for a single individual, he is not a common carrier, even if his driver, disobeying his instructions, receive a load from another person. 1 The nature of his employment is to be ascertained as a fact, from evidence that he has held him- self out to the public as a common carrier; and then the delivery of goods to the servants or agents of the carrier for transportation will be sufficient to charge him as such. 2 It is clear that where a party refuses to place any confi- dence or trust in the carrier, as by sending his servant with the goods, or retaining them in his own hands, there being no bailment of them to the carrier, they never can be con- sidered to have been in his possession, so as to charge him as a general servant or a special bailee ; as to such goods he is not a common carrier. 3 Proprietors of Stage-coaches. The proprietor of a stage, who regularly carries for hire passengers and their baggage, is responsible as a common carrier for the baggage, if lost, although no distinct price be paid for its transportation ; the compensation for its conveyance being by intendment of law included in the fare of the passenger. 4 The term baggage is understood to include such articles of necessity, or per- sonal convenience, as are usually carried by passengers for their personal use, and not merchandise or other valuables, carried in the trunks of passengers designed for other pur- poses, such as sale and the like. At an early day coachmasters were not considered to fall within the description of common carriers, nor to be liable as such, except in cases where they received a distinct price for the carriage of goods ; but if the coachman or driver took money indiscriminately for carrying goods, he was deemed a carrier, whether the goods belonged to a passen- ger or stranger. 5 Where the custom prevailed of charging for overweight, he was always held liable as a carrier for 1 Hnyw. R., 14; 1 Wend. R., 272. 9 Wend. R., 85 ; Tower v. Utica and Schenectady Railroad Co., 7 Hill R., 47. East India Co. v. Pullen, 1 Stra., 690; 7 Hill R., 47. 9 Wend. R., 85 ; 25 id. 459 ; 6 Hill R., 586 ; 8 Barb., R., 388. Middleton v. Fowlea, 1 SalL, 282; Lovett v. Hobb, 2 Show. R., 127. COMMON CARRIERS. 433 the goods so carried. 1 But he did not usually receive heavy luggage for transportation ; and that which he did accept was received more for the accommodation of passengers than as a direct object of profit to the owners. 2 But the rule is now well settled, in England as well as in this country, that the passenger's luggage is to be consider- ed as within the custody of the proprietor of a stage as a common carrier ; the price of the passenger's fare being un- derstood to cover the carriage of his baggage also. 3 A con- tract to carry the ordinary luggage of the passenger is im- plied from the usual course of business, without anything being said on the subject; but this implied contract does not include either money or merchandise deposited in a trunk and carried as baggage. 4 In England, however, the pro- prietor of a coach has been held answerable for the contents of a lost trunk containing wearing apparel and jewels, though its contents were not disclosed, and notwithstanding there was a general notice in the stage office, which the passenger had an opportunity of seeing, limiting the proprietor's re- sponsibility to five pounds, unless a disclosure was made of the value of the contents of the trunk. 5 But with us the carrier is not responsible for a large sum of money placed in a trunk and delivered as baggage. 6 So, it is held in Ohio that the proprietors of stage-coaches are common carriers who cannot limit their responsibility by even actual notice to a traveler that his baggage is at his own risk ; and that a watch is a part of his baggage, that may be properly enough placed in his trunk. 7 In this state, too, such a notice is en- tirely nugatory ; for the proprietors of stage-coaches, being common ' carriers of merchandise, cannot relieve them- selves from responsibility for goods intrusted to them for Jeremy's Law of Carriers, 11, 12. Clark v. Grey, 6 East R., 564. Brook v. Pickwicke, 4 Bing. R., 218; Peixotti v. M'Laughlin, 1 Strob. R., 468. Hawkins T. Hoffman, 6 Hill R., 586 ; Pardee v. Drew, 25 Wend. R., 459. 4 Bing. R., 218 ; Powell v. Myers, 26 Wend. R., 591. Orange Co. Bank v. Brown, 9 Wend. R., 85. Jones v. Yoorhees, 10 Ohio R., 145; Hollisterv. Nowlen, 19 Wend. R., 234 28 434 LAW OF BAILMENTS. carriage, even by a notice brought home to the knowledge of the owners. 1 Where one who was a common carrier, received a package of money to carry from Sherman in Connecticut, to a bank in Poughkeepsie in this state, and it appeared that when the stage driver arrived at Poughkeepsie the bank was shut, that he went twice to the house of the cashier, and not finding him, carried the money back and offered it to the owner, who declined to receive it, when the carrier refused to be responsible for any loss or accident ; it was held that these facts, in the absence of any special contract, none being proved, did not constitute a legal excuse to the carrier for the non-performance of his undertaking. 2 In respect to passengers, the proprietors of stage-coaches are not deemed common carriers, and are not answerable for injuries resulting from no want of care and foresight on their part. In other words, the carrier of passengers binds him- self to carry safely those whom he takes into his coach, as far as human care and foresight will go ; that is, for the utmost care and diligence of very cautious persons. 3 For the goods and baggage which he receives for transportation, he is placed upon the ordinary footing of the common carrier ; but he does not absolutely warrant the safety of passengers. 4 Hackney coachmen are not chargeable as carriers for a passenger's goods, unless under a special agreement, and then it is doubtful whether they ought not to be charged in respect of such agreement rather than on the custom. And the reason of this seems to be, that their employment is intended more for the convenience of persons than for the carriage of goods ; and so is neither within the definition of a common carrier, nor the policy of the regulations in- stituted concerning them. 5 The same rule holds true in Clark v. Faxton, 21 Wend. R^ 153 ; 19 Wend. R., 284; id., 251. Merwin v. Butler, 17 Conn. R., 138. Camden, fce., Company v. Burke, 12 Wend. R., 611 ; Christian v. Grigg, 2 Cam ph., 79 ; 2 Esp. R., 538 ; Sharp v. Grey, 9 Bing. R., 457. 2 Kent's Comra., 600, 601. Upshare v. Aidee, Comy., 25. COMMON CAREIERS. 435 regard to all persona whose business is restricted to the car- riage of passengers. 1 The person holding himself out to the community as a common carrier must assume also the responsibility of one. Where the owners of a stage-coach employ a driver under a contract, that he shall receive a certain sum of money per month, and the compensation that should be paid for the carriage of small parcels, the owners are answerable for the negligence in not delivering a parcel of that description, intrusted to him to carry, unless the arrangement is known to the proprietor of the goods, so that he contracts with the driver as principal. 2 Masters of Vessels. The master of a vessel also comes within the description of a common carrier. Although he receives his salary from the owners, it does not affect or annul his common law liability, if he does not keep the goods delivered into his custody safely. This rule was first adjudged in the reign of Charles the Second, on the following grounds: First, because he takes a reward, and the usage is, that half wages are always paid him before he goes out of the country. Second, that he may make a reserve and caution for himself. Third, that no difference can be assigned between him and a hoyman, common carrier, or innholder. Fourth, that he is rather an officer than a servant, having power to impawn the ship, and to sell bona peritura. In effect, too, his reward is paid by the merchants upon the same condition as freight is to the owners ; namely, that such freight is earned, with- out which his wages would not be due. 3 This decision was made in Mors v. Slue, which was an action brought against the master of a ship for goods deli- vered into his custody, and stolen from the ship without his fault, by persons pretending themselves to be officers with a warrant to search, and the defendant, who had been used to 1 Aston v. Heaven, 2 Esp. R., 533; 2 Campb. R., 79 ; 9 Bing. R., 460. * Bean v. Sturtevant, 8 N. Hamp. R,, 146 ; 7 id., 157. ' Jeremy's Law of Carriers, 8. 436 LAW OP BAILMENTS. receive the freight and make contracts for transporting goods, was held responsible as master. 1 The master is liable to the merchant from whom he re- ceives goods for transportation, precisely to the same extent and in the same form of action as the owner ; but he is liable in a different character and on a different ground. 2 The owner is liable by reason of his public employment and the profit derived from it for freight. The master is liable on his own contract for the transportation of the goods and by virtue of his taking charge of them for that purpose. The liability of the owners is implied by law, from the nature of their employment, on the ground of public policy; while that of the master, who is not an owner and receives no part of the freight, seems to arise rather from his express undertaking; still, on the same ground of policy and in favor of commerce, he is held personally responsible on his contract, even where the owners are known, which is thus far a departure from the general law of principal and agent. 3 Masters of vessels who undertake to carry goods 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 the marine law as by the common law of England, for all losses not arising from inevitable accidents, or such as could not be foreseen or prevented. 4 In an action of assumpsit on a bill of lading signed by the master, of goods shipped, as from Liverpool to New York, he is answerable for any deficiency in the cargo, whether embezzled or otherwise lost. 5 And the rule of damages is their value at the place of destination. In his relation to the shipper or consignee of goods, the master is both a principal and an authorized agent of the owners of 1 Ventr. R., 190, 238 ; 2 Ld. Raym., 919 ; 2 Kent's Comm., 699. Palten v. Magrath, 1 Rice R., 162. 1 Rice R., 162, S. C. Elliott T. Rusll, 10 John. R., 1 ; Schieffelin v. Harvey, 6 John. R., 171. Wttlkinaon v. Lawton, 8 John. R., 213. COMMON CAEEIEES. 437 the vessel intrusted to him ; : but he is not liable on a bill of lading signed by him, jointly with the owners. 2 Owners of Vessels. The owners of vessels employed in the carrying business on our lakes and rivers, or on the high seas, are common carriers of such goods as they hold them- selves out to the community as ready to receive and trans- port from place to place. 2 It was at one time held in this state that the owners of a vessel transporting goods on the high seas are not common carriers, within the meaning of the rule, subjecting them to all losses or injuries, which arise from any other cause than the act of God, or the ene- mies of the country ; and that in an action against them for loss or damage from any other cause, it should be submitted to the jury, upon the evidence, whether they used ordinary care and diligence. 3 But this doctrine is in direct conflict with previous decisions of the same court, and it has been since overruled. 4 In recent cases the carrier upon the high seas is uniformly regarded as a common carrier, in the same manner, and to the like extent, as the carrier upon land, ex- cept in so far as his responsibility is limited by statute. 3 The English decisions are to the same effect, holding the owners of vessels, loading and carrying goods to and from foreign ports, answerable as common carriers. 6 In short, it is deemed a settled point, that masters and owners of vessels are liable in port, at sea and abroad, to the whole extent of inland carriers, unless exempted by the exceptions in the con- tract of charter party, .or bill of lading, or by statute. Under the marine law the rule of liability is essentially the same. 7 1 Kemp v. Coughtry, 11 John R., 107 ; Bossey v. Donaldson, 4 Dallas R., 296; 1 Wash. (Cir. Co.) R., 142. Sewall v. Allen, 6 Wend. R,, 335 ; 2 Wend. R., 327. 1 Ayman v. Aster, 6 Cowen R., 267. 4 10 John. R,, 1; 11 John. R., 107 ; 6 John. R., 170 ; 8 John. R., 113; Gould T. Hill, 2 Hill R., 623 ; Dorr v. N. J. Steam Navigation Co., 4 Sand. R., 136 ; Wilcox v. Parmelee, 3 Sand. R., 610. Price v. Powell, 3 Comst R., 322 ; see Act of Congress of 1851. Fragano v. Long, 4 Barn, and Cres. R., 219 ; 10 John. R., 7 ; 2 Kent'i Comm., 609. T 10 John. R., 8 ; M*Clure v. Hammond, 1 Bay's R., 99 ; Bell T. Reed, 4 Binn. R., 127. 438 LAW OF BAILMENTS. Whether or not the owner of a vessel is to be deemed a common carrier, in any particular case, depends upon the nature of his employment. Where a ship is not put up to freight, but employed by the owner on his own account, and the master receives goods of another person on board as part of his privilege, taking to himself the frieght and com- missions, the owner is not answerable for the conduct of the master in relation to such goods. 1 The reason of this rule is, that the owner of a ship is bound by the lawful contracts of the master only when made by him relative to the usual employment of the vessel. The usual employment is evi- dence of the authority given by the owner to the master, to make contracts for him. Outside of his usual line of busi- ness, he has no such authority. So, where the owner of a vessel accompanies her, and does not advertise her for frieght as is usual in the port from which she loads, but intends to frieght her with a cargo for himself, not intending to take freight for others, if the mas- ter, without the knowledge of the owner, receive on board goods as his adventure, the owner is not answerable for them. 2 But if the owner go as supercargo, and know of a shipment by the master, without dissenting, thus adopting his acts, he is liable, because he appoints the master, and a degree of credit is given him by his appearance in a situa- tion of so much trust ; and the ship owner may be consi- dered as giving a permission to the master to take freight on his own account, without denying his own responsibility for the safe delivery of the goods. In deciding the cause of Walter v. Brewer, the court observe : " We cannot think, when a merchant sends his ship abroad with a supercargo, which is often the case, and with no expectation or design of taking freight, that a foreign shipper of goods may make a private bargain with the mas- ter, and at the same time avail himself of the general liability 1 King T. Lenox, 19 John. R. 235. 1 Walter v. Brewer, 11 Mass. R., 99. If the owner of a vessel does not em- ploy her as a common carrier, he will not be deemed such any more than a carrier by land. COMMON CARRIERS. 439 of the owner to secure him from the misconduct of the master. Such a principle would be mischievous to ship- owners and be productive of frauds, by holding out tempta- tions to treat with the master for less than the ordinary freight to the prejudice of the ship-owner, who would receive no consideration for the risk he incurs. It seems to be reasonable as well as lawful, that the shipper of goods who deals altogether with the master, expecting to avail himself of his privilege to carry a few tons as his private adventure, and knowing that the owner intended to load the vessel for himself, should not have recourse to the owner in casqj of embezzlement ; for in such a case the shipper puts trust in the master alone, and the owner may be utterly ignorant that the property is on board, for which he is to be made liable." 1 In order to render the owner of a vessel liable for the contracts of the master, it must be proved that the vessel was in the employment @f the owner, that the master was appointed by him, and that he acted in making such con- tracts within the scope of his authority. 2 Outside of the usual business in which the vessel is employed, the master has no authority to bind his principal ; 3 and accordingly a private contract with the master to carry property, the car- riage of which is known not to be within the vessel's ordinary business, will not render the owners responsible. If the owner parts with a vessel for the season, on an agree- ment to receive a certain part of the net proceeds of her earnings, the .charterer for the season is to be considered as the owner, and responsible as such. 4 So, if the vessel is not employed as a general ship to carry goods for hire, but sent on a voyage for a special purpose, the master, by taking goods of his own motion, such as coin, cannot make the owners liable. 5 1 11 Maes. R., 99. " *.'' * Reynolds v. Tappan, 15 Mass. R., 370. 1 Allen v. Sewall, 2 Wend. R., 327 ; 6 Wend. R., 335. 4 15 Mass. R., 87a * Boncher v. Lawson, Cas. T. Hard, 194. 440 LAW OP BAILMENTS. Though the master of a vessel while abroad, is the agent of the owners, and has power to make contracts in relation to freight, which are binding upon the owners, when an owner is on board, and exclusively attending to the ship- ment of the cargo, he is not bound by the master's contract. But, to relieve himself from liability, he must show the fact that he was exclusively attending to the shipment of the cargo ; and he must show the same thing, though he was on board as supercargo. Otherwise, though he be one of the owners and present as supercargo, if the master of a general ship receipt a quantity of goods, such as Spanish dollars, for transportation, as from New Orleans to New-York, even without the knowledge of the owner and without putting them on the freight list, the owners will be liable for their value, if stolen on the voyage. 1 The vessel being what ia- called a general ship, that is, one in which the master or owners engage separately with a number of persons uncon- nected with each other, to convey their respective goods to the place of the ship's destination, the master has authority to receive goods on freight, unless prohibited by the presence of the owner, exclusively attending to the shipment of the cargo. 2 There is no distinction between the owners of ships carry- ing goods on the high seas from port to port along the coast, or from country to country, and the owners of steamboats that ply upon the inland waters as carriers for all persons- indifferently. In other words, the rule of responsibility is the same in respect to a carrier by water as to a carrier by land ; nor is there any distinction, whether the navigation be upon the ordinary rivers, or the great rivers and lakes or inland seas of this country, except so far as the exceptions in favor of the carrier are extended to the perils or dangers of the rivers or lakes by the special terms of the contract, con- tained in the charter party or bill of lading. 3 1 Ward v. Green, 6 Cowen R., 178. ' 6 Cowen R., 176, 177. * Sears v. M'Arthur, 21 Wend. R., 190 ; Elliott v, Rossell, 10 John. R., 1 ; Bell T. Reed, 4 Binn. R, 127; 6 Wend. R., 335; 3 Esp. R^ 127; Hastings v. Pepper, 11 Pick. R., 81; Crosbjy. Fitch, 12 Conn. R., 410. COMMON CABBIERS. 441 In like manner, the owners of boats transporting goods and merchandise on the canals, for the public generally, are common carriers, 1 by whom a very large amount of the car- rying business of the country is transacted. The owner of boats employing them for that purpose is a carrier ; but he may and does often by association with others, become a carrier on waters where he has no boats. The legal charac- ter of a common carrier depends upon the nature of the business, and not at all upon the means by which it is car- ried on. 2 Hence, hoymen, barge owners, wharfingers and ferrymen, employed habitually in carrying goods for all per- sons indiscriminately for hire, are deemed common carriers, subject to all the liabilities incident to the business. 3 But the wharfinger is a common carrier only where it is his duty to carry goods in lighters to and from vessels in the river. He is not ordinarily a carrier. 4 The ferryman, too, is held to be liable as a common carrier, but the mode in which he transacts his business must be ascertained in order to fix his character. 5 So as to the common bargeman, he is a common carrier if he be accustomed to carry goods for hire for the public generally, from place to place, as from London to Milton and other places in Kent.? It is proper to observe that it is not necessary to declare against the common carrier on the custom, that the form of the action is not material so long as he is shown to be a common carrier, and charged as such. In an action upon the case against a shipmaster or keelman, who carries goods for hire from port to port, alleging a special agreement to earry hardware, and that by defendant's negligence the wares were rusted and impaired in value, the defendant offered to give in evidence that he had taken all possible care of the 1 Arnold v. Hallenbake, 5 Wend. R., 33; Fairchild y. Slocum, 19 Wend. R. 829. * 19 Wend. R., 329. * Jones on Bailm., 106, 107 ; Jeremy's Law of Carriers, 7, 8, 9. * Maving v. Todd, 1 Stark. R., 59; Platt y. ffibbard, 7 Cowen R., 497. * Cook y. Gburdin, 2 Nott and McCord R., 19 ; Rutherford v. M'Gowen, 1 id, 7. * Rich y. Kneeland, Cro. Jac., 330. 442 LAW OF BAILMENTS. goods, that the rats made a leak in the keel or hoy, which in spite of all efforts at pumping caused the damage ; the evidence being received and a verdict had for the defendant, Chief Justice Lee observed : " I am of opinion that the evi- dence given for the defendant was not admissible ; the de- claration is that the defendant undertook for hire to carry and deliver the goods safe, and the breach assigned is that they were damaged by negligence ; this is no more than what the law says, everything is a negligence in a carrier or hoyman, that the law does not excuse, and he is answerable for goods the instant he receives them into his custody, and in all events, except they happen to be damaged by the act of God or the king's enemies, and a promise to carry safely is a promise to keep safely." 1 So, if he injure goods in low- ering them into the hold of the vessel. 2 Where the master of a store-ship in the king's service takes in the bullion of a private merchant on freight, as from Gibralter to Woolwich, giving a receipt for the delivery of the same (the act of God and the king's enemies only ex- cepted), he assumes the responsibility of a common carrier, and is liable for the loss of the bullion, though stolen out of his cabin after the ship's arrival. 3 So, an action lies against the commander of a ship of war who takes the bullion of a private merchant on board to carry, as from the river La Plata to London, for not safely keeping and delivering it ; and he must answer for it, if it be plundered by the crew. 4 Whether he be a carrier or a private person, if he undertake for hire to canry and deliver goods safely, he is responsible for the goods. 5 And even if he be not a common carrier and make no special agreement for their safe carriage, he must excuse the non-delivery of them at their place of destination. 6 If 1 Dale v. Hall, 1 Wils. R, 281. N. Goff v. Clinkard, 1 Wik R., 281. Hatc-hwell v. Cook, 6 Taunt R., 677. 4 Hodgson T. Fullerton, 4 Taunt 11., 787. Robinson y. Dunmore, 2 Bos. and Pul. R., 417 ; Powers T, Davenport, 7 Black! R., 497. Sheldon v. Robinson, 7 N. Hamp. R., 157. COMMON CARRIERS. 443 he deviate from the usual and ordinary route unnecessarily, he is liable for any injury thereby occasioned. 1 The occasional carrier, however, whose servant accepts goods for carriage contrary to his instructions, is not liable to the full extent of a common carrier ; he stands in a situa- tion analogous to that of a person who occasionally enter- tains travelers for pay, like most of the farmers in a new country, and who is not held responsible as an innkeeper. 2 In remains only to mention that railroad companies car- rying passengers for hire are common carriers of their pas- gers' baggage ; and where they hold themselves out to the community as ready to carry goods and produce on freight, they come under the usual description and responsibilities of common carriers for hire. 3 Duty of ike Carrier to receive. The carrier stands in the situation of a public servant, and as such is liable to an action for refusing to take charge of goods for carriage, if the hire be tendered him and he has the convenience to carry the same. 4 But the goods must be brought at a reasonable time, in a suitable condition, and be of the kind the carrier is accustomed to receive for trans- portation ; he is not bound to depart from his ordinary and usual mode of business in receiving goods, and is entitled to demand a reasonable compensation as a condition of receiv- ing them, 5 A case which was tried in England in the beginning of this century may illustrate, to some degree, the carrier's duty in this respect. The plaintiffs had certain agents at Wolver- hampton with whom the corn in question was deposited in order to be sent to Birmingham. There was a great dispo- 1 7 Black R., 497. * Perkins v. Picket, 9 Yerg. R., 480 ; Lyon v. Smith, 1 Morris, Iowa R., 184. 1 Weed v. The Saratoga and Schenectady Railroad Company, 19 Wend. R., $34; 13 Wend. R., 611; Thomas v. Boston and Providence Railroad Co., 10 Metcalf R., 472 ; 4 Mees. and Welsb. R., 749. 4 Jeremy's Law of Carriers, 59. * Edwards T. Sherratt, 1 East, 604; Jencks v. Coleman, 2 Sumner R., 221; Eiley v. Home, 6 Bing. R., 217 ; Bennett v. Dutton, 10 N. Hamp. R., 481. 444 LAW OF BAILMENTS. sition to riot manifested in the neighborhood on account of the prevailing scarcity ; and the mob had pulled down a corn mill not far distant, and it was understood that they had threatened to come to the Warehouse where this corn was deposited. The agents, alarmed, wrote a letter to the de- fendant, desiring him to send an extra boat for it as quickly and privately as he could. No answer was received to this ; but with the impression that the corn was unsafe where it then was, and that it would fall into the hands of the mob, the plaintiffs' agents finding one of the defendant's boats going by, without any intention of staying at Wolverhampton or seeking to take in goods there, stop the boat, and prevail on the boatmen to take in this corn ; and it is afterwards sent away by night in an unusual manner, a person being sent privately to give directions for opening the lock at what- ever time the boatman chose to pass. Four or five miles from Wolverhampton part of the corn was seized by the rioters, and in an action against the carrier for the value of the corn so seized, it was left to the jury to say, whether the bags of corn were put on board in the usual course of of dealing with a common carrier; the jury having found a verdict for the defendant, the court refused to grant a new trial, on the ground that the carrier's servants had been pre- vailed upon to receive the goods, then the object of popular fury and in great danger of being destroyed, out of the car- rier's usual course of business. No doubt the circumstances would have justified the carrier in refusing to receive the goods for carriage. 1 If it be alleged and proved that a common carrier had room and convenience to carry goods, and that he refused to carry them, though offered his hire, an action lies against him, as it does against an innkeeper for refusing to receive a guest for whom he has room. 2 If he have a valid and suffi- cient reason for his refusal, he is not liable. Thus, a coach- master may refuse to receive goods because his coach is fulL 3 1 1 East R., 604. 1 Jackson T. Rogers, 2 Show. R., 827; Doctor and Stod, 270. Lorett T. Hobbs, 2 Show. R, 127. COMMON CARRIERS. 445 And a carrier may refuse to accept goods of great value, for the reason that he does not hold himself out as ready to carry that kind of goods, or for the reason that he has no convenient means of conveying such articles safely. 1 The rule, indeed, is well settled, that so long as a common car- rier has convenient room, he is bound to receive and carry all goods which are offered for transportation, of the sort he is accustomed to carry, if they are brought at a reasonable time, and in a suitable condition. So, too, the proprietors of a stage-coach, who hold them- selves out as common carriers of passengers, are bound to receive all who require a passage, so long as they have room, and there is no legal excuse for a refusal. And it is 1 not a lawful excuse, that they run their coach in connection with another coach which extends the line to a certain place, and have agreed with the proprietor of such other coach not to receive passengers who come from that place on certain days, unless they come in his coach. This was so adjudged in the case of Bennett v. Dutton : 2 the defendant was one of the proprie- tors, and the driver of a stage-coach, running daily between Amherst and Nashua, which connected at the latter place with another coach, running betwen Nashua and Lowell, and thus formed a continuous mail and passenger line from Lowell to Amherst, and onward to Francestown. A third person run a coach to and from Nashua to Lowell ; and the defendant agreed with the proprietor of the coach connect- ing with his line, that he would not receive passengers who came from Lowell to Nashua in the coach of such third per- son, on the same day that they applied for a passage to places above Nashua. The plaintiff was notified at Lowell of this arrangement, but notwithstanding came from Lowell to Nashua in that coach, and then demanded a passage in the defendant's coach, to Amherst, tendering the regular fare ; and the court, by Parker, C. J., ruled that the defendant was bound to receive him, there being sufficient room, and no evidence that the plaintiff was an unfit person to be ad- 1 Batson v. Donovan, 4 Barn, and Aid. R., 82; Buller N. P., 70. * 10 N. Hamp. R., 481. 446 LAW OP BAILMENTS. mitted, or that he had any design of injuring the defendant's business. In like manner the proprietors of the steamboats employed in carrying freight and passengers between Providence and New-York, are common carriers, and as such, bound to receive all persons on board, to whose character and con- duct there is no reasonable objection, if they have suitable accommodations. But they may rightfully exclude all per- sons of bad character or habits ; all whose objects are in any way to interfere with their interests, or to disturb their line of patronage, and all who refuse to obey the reasonable regulations, which are made for the government of the steamboat ; "and they may rightfully inquire into the habits and motives of passengers who offer themselves. 1 Delivery to the Carrier. In order to charge the carrier with goods, there must be a delivery of them into his custody ; to the carrier person- ally, to his agent or servant, or some one acting in his behalf and authorized to receive them. 2 Where goods are left for a carrier at an inn-yard, or warehouse, at which other carriers put up, it is not considered a delivery, so as to charge the carrier without a special notice of their being so delivered, or some previous instructions to that effect. 3 As it is the possession of the goods which raises his duty to answer for their custody and carriage, it is necessary in all cases to show that the goods came into his possession for transportation. In an action by the East India Company v. Pullen, a com- mon lighterman on the Thames, it was held that the usage of the company to place an officer called a guardian, in the lighter, altered it from the common case, this not being any trust in the defendant, and that the goods were not to be considered as ever having been in his possession, but in the possession of the company's servant, who had in effect hired 1 Jeneks v. Coleman, 2 Sumner R., 221. 1 Selway v. Holloway, 1 Ld. Raym., 46. 1 1 Ld Raym., 46. COMMON CARRIEES. 447 the lighter to use himself. 1 But if the carrier actually assume the custody of the goods, he is answerable, notwith- standing the owner sends his servant along with them. 2 If the goods are placed in the carrier's conveyance under a contract that the owner shall go along with them and take care of them, the carrier is not answerable for their safety. 3 If goods are once delivered to the carrier for carriage, his liability begins from the time he receives them ; a quantity of hops was delivered on Thursday to a common carrier, whose public road wagon was not to leave till Saturday morning following ; in the night of the day following the delivery, the goods were burned ; and in the action against the carrier, he was held answerable, though the jury found expressly that they were destroyed without any actual neg- lect in the defendant. 4 So, in an action against a carrier for not taking care of and safely carrying goods according to his promise, where it appears that he has limited his responsibility by means of a notice of which the plaintiff was cognizant, the plaintiff having declared against the defendant as a carrier in the usual form, cannot insist that the goods were lost from the defendant's warehouse before the actual carriage of the goods commenced ; for as a carrier his responsibility begins from the delivery to him. 6 The manner of making delivery to the carrier must of course depend very much upon the nature of the articles. Where goods and merchandise are to be carried coastwise, and the usage of the wharf is to deliver them on the wharf to the mate of the ship by which they are to be carried, and they are actually so delivered to the mate, it is sufficient to charge the carrier, though the goods are lost from the wharf before they are shipped. 6 The act of loading a vessel is a part of the carrier's duty, and where the usage is for him to receive and receipt the goods on the quay or wharf, he is re- 1 Stra., 690. Robinson v. Dunmore, 2 Bos. and Pull. R., 417. Brinde T. Dale, 8 Carr. and Payne R., 207 ; 2 Mees. and Welsb. R., 775. Forward v. Pittard, 1 Term R., 27. Roskell v. Waterhouse, 2 Stark. R., 407. Cobban r. Donne, 5 Esp. R., 41. 448 LAW OF BAILMENTS. sponsible for them from the time he receipts them. 1 A de- livery of goods at a wharf is not sufficient to charge the purchaser, unless the seller procures them to be booked where it is usual, or takes a receipt for them, or delivers them in such a manner as to furnish a remedy over against the wharfinger ; but a delivery to the known agent or servant of the carrier or wharfinger will be sufficient. 2 In the case of a sale of goods on an order from a distant customer, the delivery ought to be such as to charge the carrier for the goods. A tradesman at one port receiving an order to forward goods to a person at another port, by a common sea carrier, does not, as we have seen, sufficiently comply with the order by depositing the goods at the re- ceiving house of such carrier, with directions to be forwarded to their place of destination, if the goods, being much above the value of five pounds, to which the carrier's liability was notoriously limited, be not specifically entered and paid for accordingly ; for such tradesman has an implied authority, and it is his duty to pay any extra charge necessary to in- sure the responsibility of the carrier to the party from whom he receives the order, though only general in the terms of it ; and in the case of non-delivery by the carrier, whose re- sponsibility was lost for want of such special entry and pay- ment, the vendor cannot recover the value of the goods against the person from whom he received the order. 3 The liability of the carrier does not begin till the goods are delivered to him ; but if he agree to carry the goods, such as bales of cotton, and by his order they are carted to the levee, he maybe liable on his executory agreement for whatever damages ensue in consequence of such act ; but though he give the order, if it is not obeyed he is not an- swerable for a loss of the goods caused by an inundation. 4 If the carrier be also a warehouse-man who receives goods into his warehouse for storage until he is ordered to send the 1 Fragano v. Long, 4 Barn. A Cres. R., 219. 1 Buekman v. Levi, 3 Catnpb. R,, 414. 1 Clark T. Hutchins, 14 East, 476. 4 Williams v. Peytavin, 4 Martin (Louis) R,, 804. COMMON CARRIERS. 449 same forward, he is not answerable as a carrier until his duty as a earner begins l If he receives the goods merely as a forwarding merchant, having no interest in the line by which they are to be carried, he is responsible only for a faithful discharge of his duty to store and forward the goods by a responsible carrier. 2 So also, a carrier at the end of his route becomes a fowarder of such goods as have a more distant destination ; as where a carrier on the Hudson river receives goods at New- York to be transported to Troy, from whence they are to go north by the canal to Granville; at Troy his duty as a carrier ceases, and he is there responsible only as a forwarder, bound to obey the instructions he has received from the owner in re- gard to the line or manner in whicli the goods are to be sent forward. 3 If a carrier directs goods to be. sent to a particular booking office, he is answerable for the negligence of the booking office keeper. And in an action against the carrier, the per- son at the booking office who delivered the goods to the carrier is a competent witness to prove the state in which they were delivered. 4 PlainthT sent a parcel directed to a person in London, to the postmaster at Bradford, to be for- warded to Melksham ; the postmaster received two-pence to book the parcel, and sent it by a mail cart to the King's Arms Inn at Melksham, and he was accustomed so to take in par- cels for the mail cart ; the innkeeper at Melksham booked the parcel for London, charging two-pence as booking for his own trouble, and also charging on the parcel the demand which he had paid for carriage from Bradford. He then forwarded the parcel by a mail-coach, of which the defend- ants were proprietors, to London ; several coaches used to stop at the King's Arms ; the mail pulled up there, but did not change horses ; the innkeeper had no express authority from the defendants to take in parcels, and used his discretion 1 White v. Humphrey, 11 Adoh>h. and Ellis R., 43. ' Brown v. Denison, 2 Wend., R., 593 ; Roberts v. Turner, 12 John R., 232. 8 Ackley v. Kellogg, 8 Cowen R , 223. * Colepepper v. Good, 5 Carr. and Payne R., 380. 29 450 LAW OP BAILMENTS. in sending them by mail or any other coach ; no regular booking office was kept at the King's Arms, and the parcel being lost, it was held that the King's Arms was a receiving house of the defendants, who were liable on a contract to carry from Melksham to London, and bound to deliver the goods according to their address. 1 If the carrier actually receive an article for carriage, though not bound to receive it at the time or at the place or in the condition in which it is offered, he is respon- sible for it; 2 as where a greyhound was delivered to a car- rier, who gave a receipt for it, and the greyhound being afterwards lost, it was held that the carrier could not set up as a defence that the dog was not properly secured when de- livered to him. So, where a package was delivered to the agent of a stage-coach company, at the post-office where the stage was standing, and not at the office of the company, to be carried from Boston to Hartford, and was by the agent when he received it entered on the way bill, he having pre- viously directed the person who had care of the package to bring it to the post-office, and the package being lost be- fore reaching Hartford, it was adjudged that the owners of the coach were liable for the value of the package, the de- livery at the post-office being with the assent of their agent, and that in the delivery of such a package for carriage, the person delivering it is under no obligation to state its value unless inquiry is made on the subject. 3 Neither is the time material, where the carrier receives the goods. The defendants, an English railway company, who are carriers on their line, published a printed notice, which was fixed upon the door of the station for the recep- tion of goods in Liverpool, that all goods received after four o'clock, P. M., would be forwarded on the next working day. Long after the publication of this notice, certain goods were brought to the station about half-past five, P. M., to be 1 Sims v. Chaplin, 5 A'lolph. and Ellis R., 624. * Phillips v. Earle, 8 Pick. R., 182; Stuart v. Crowley, 2 Start R., 28T. Pickford v. The Grand Junction Railway Company, 12 Meea. and Welsh. R, 766 8 Pick. R., 182. COMMON CARRIERS. 451 forwarded to Birmingham by the railway. The person who brought them, a servant of the owner, saw the company's weigher and asked if there was time, i. e., for the goods to proceed that evening ; he said there was, and the goods were placed by the company's porters on the trucks on which goods are carried by the railway. The same person had on former occasions taken goods of the same kind to the station at a later hour, which were never refused for being too late, and had been forwarded the same evening ; and it was held that on these facts there was evidence to go to the jury of a special acceptance and contract by the railway company to forward the goods on the same evening. 1 The manner in which a carrier receives goods for trans- portation, may enter into the contract so as to qualify his responsibility. Thus, the owner or master of a vessel is not liable for damage done to deck freight, arising from the the dangers and waves of the sea and the necessary exposure of the property on deck, where it has been stowed there by the consent of the shipper, or received to be carried in a particular manner and injured in consequence of that mode of carriage. 2 Except as to damages which result from its exposed situation, the carrier is bound by the usual obliga- tion to carry safely ; but in relation to underwriters without a special agreement, and other owners of the cargo under deck, and in cases of jettison, it is well settled that goods stowed on deck form no part of the cargo. 3 The fact that an article goes in the carrier's conveyance, is not enough to render him responsible for it as a common carrier; as where a passenger in a railroad car placed his overcoat on a seat in which he sat, and forgot to take it with him when he left, and it was stolen. 4 By assuming to keep it in his own personal charge, he shows that he does not intend to hold the carrier answerable for it ; 5 if he wishes 1 12 Mees. and Welsh. R., 766. The article in question consisted of fresh pork, which was injured by twenty-four hours' delay. a Shackelford v. Wilcox, 9 Louis E., 33; 16 East> 245; 2 Stark. R., 324. 3 9 Louis R., 33; Beck v. Evans, 16 East, 245. 4 Tower v. The Utiea and Sehenectady R. R. Co., 7 Hill R., 47. * Jeremy's Law of Carriers, 55, 56. 452 LAW OF BAILMENTS. to hold him liable, he must commit it into his custody ; if he lose a package which he carries in his hand, or money from his purse, it is his own fault ; and where his negligence conduces to the loss, the carrier is not responsible. 1 So, where the plaintiff received a parcel from his friend to book for London at the office of defendants, who were common carriers, and, instead of obeying his instructions, put the parcel into his bag, intending to take it to London himself, and the defendants having lost the bag, it was adjudged that the plaintiff could not recover damages from them in respect of the parcel. 2 The violation of trust, by depriving the carrier of his reward for the carriage of the parcel, was regarded as evidence that the plaintiff intended to make himself responsible for the safe delivery of the package ; and as proof that it was not intrusted to the carriers. A similar case has been decided in the same way in this state. 3 A passenger came on board of the steamboat Con- stellation at New-York, delivering to the master of the boat a trunk as his baggage, in which was deposited over eleven thousand dollars in bank-notes ; the passenger spoke to the master of it as a trunk of importance, without mentioning what was in it, or paying any thing for its carriage separate from his fare to Newburgh. The bills were received by the passenger from the president of the Bank of America, in seven sealed packages, with the advice that he had better deliver them to the captain of the boat immediately on going aboard, which he considered as a direction to him, and placed the trunk in the office of the boat behind the door, as directed by a young man in it, who appeared to be doing business there ; then went on shore a few minutes to buy some oranges, when on his return the trunk had disap- peared ; and the plaintiff, the Orange County Bank, which 1 Whalley v. Wray, 3 Esp. R, 74 ; Gibbon v. Paynton, 4 Burr, 2299 ; Carth., 485. * Miles v. Cattle, 6 Bing. R., 743. 1 9 Wend. R, 85 ; 4 Burr, 2298 ; 5 Com. L. R, 476 ; 8 Pick. R, 182; 4 Burr, 2301 ; Swall v. Allen, 6 Wend. R, 335. COMMON CARRIERS. 453 was the owner of the money, brought its action against the proprietors of the boat, seeking to charge them as common carriers ; and it was held that this was not such a delivery of the packages of bills as to render the carrier responsible for them, 1 on the ground that when a carrier is to be made liable for bank-bills, not made up in a package pointing to its contents, common justice requires that he should be informed of the nature of his charge, so that he may take the necessary precautions for its safety and for his own pro- tection. 2 In like manner, it has been held that the owners of a steamboat are not liable for a part of a passenger's baggage, when separated from the rest; nor for the contents of a sealed letter or packet when stolen, which has been de- livered to a passenger on board, at any place the boat may stop ; and that a sealed letter with bank-notes inclosed, delivered by a passenger to the clerk of a steamboat for safe keeping, is simply a contract of deposit between them, in which the depositary is only responsible for ordinary care. 3 The reason of this decision is, that the carrier is not to be held responsible for goods or money which is not in fact intrusted to his custody for carriage. Jt is often a nice question, but generally one of fact, whether or not there has been a delivery to the carrier. If it be a sufficient delivery, according to the usages of busi- ness, to leave goods on the dock by or near his boat ; still this must be accompanied with express notice to the carrier. .Otherwise he will not be answerable for them, unless it be shown that he subsequently received them into his charge. 4 The delivery to an agent, authorized by the carrier to receive goods for transportation, is of course a delivery to him. 5 In a case of sale, where goods are ordered or purchased, with directions to be shipped to a distant place, it is incum- 1 9 Wend. R., 85; 5 Com. L. R., 476 ; 4 Burr, 3301 ; Sewall v. Allen, 6 Wend. R., 835. * 9 Wend. R., 87. The charge of the circuit judge was sustained. 1 .Wilcox