(|ornfU SJaui S>rl|nDl ffiibrarg Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018857544 COMMENTARIES LAW OF BAILMENTS, WITH ILLUSTKATIONS FHOM THE CIVIL AND THE FOREIGN LAW. By JOSEPH STORY, LL.D. NINTH EDITION. REVISED, CORRECTED, AND ENLARGED, By JAMES SCHOIILER. BOSTON: LITTLE, BROWN, AND COMPANY. 1878. .,^ V ^ Entered according to Act of Congress, in tlie year 1856, by WILLIAM W. STOKY, In tlie Clerk's Office of the District Court of tlie District of Massachusetts. Entered according W Act of Congress, in the year 1862, by WILLIAM W. STOKY, In the Clerli's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1870, by WILLIAM W. STORY, In the Office of the Librarian of Congress at Washington. Entered according to Act of Congress, in the year 1878, by WILLIAM W. STOBY, In the Office of the Librarian of Congress at Washington. CAMBRIDGE: PRE33 OF JOHN WILSOH AND SOH. TO THE HONORABLE NATHAN DAi^^B, LL.D., DISTINGUISHED ALIKE FOR PURITY, SrMPLICITY,\ AND DJ^NITY IN HIS PRIVATE LIFE, FOR TALENTS, LEARNING, AND FIDELITY IN HIS PROFESSION, AND rOR PUBLIC LABORS IN THE STATE AND KATIONAL COUKOILS, WHICH HAVE CONFERRED ON HIM AN IMPERISHABLE FAME AS A STATESMAN AND PATRIOT, Ei)is OTotfe, THE FIRST FRUITS OF THE PROFESSORSHIP FOUNDED BY HIS BOUNTY, IS RESPECTFULLY DEDICATED, BY HIS OBLIGED FRIEND AND SERVANT, THE AUTHOR. PREFACE TO NINTH EDITION. The plan marked out for the present edition of Judge Story's Treatise on Bailments was, to free the illustrious author's text from all interpolated matter, and distinguish his own notes plainly from those of editors. In pursuance of this plan, the fourth edition of the work, published in 1846, soon after Judge Story's death, and the last which received his personal supervision, has been taken as the basis of the present edition. The text is here restored accordingly. The work of later editors, whether incorporated hitherto in text or foot- notes, has been carefully revised, verified, and, where needful, pruned down, and remitted altogether to the notes ; this portion being enclosed in brackets, thus, [ ], to distinguish it. The present editor has further added £,ttch notes and citations as seemed desirable in order to bring the work doAvn to date ; distinguishing his own added matter by braces, thus, { }. The cases added in this edition are about six hundred in number, and relate chiefly to the important subjects of Pledge, Innkeepers, and Carriers. Under this last head more especially, the original text was found to be so much entangled with not only new sections, but ver- VI PREFACE TO NINTH EDITION. bal alterations in the author's statements, from a laud- able endeavor to conform the main treatise to the changed state of the law, that it became a task of no little difficulty to carry out the proposed plan of revision. This, however, has been done ; and, it is hoped, with sufficient fairness and delicacy to the present editor's immediate predecessor, Judge Edmund H. Bennett, whose valuable additions to the original text are not unfrequently cited in our courts with approbation. JAMES SCHOULEE. Mat 15, 1878. PREFACE. The following work has been prepared in the discharge of a part of the duties belonging to the chair of the Dane Professorship of Law, in Harvard University. The Essay of Sir William Jones on the same subject is in the hands of every scholar and jurist, and deserves great praise for its elegant diction, its various research, and its abundant learning. Still it is but a mere out- line ; and it must be admitted to be very imperfect in its details, and occasionally quite erroneous in its princi- ples. The author was (as every one perceives) deeply versed in the juridical antiquities of ancient and modern nations, and he indulged himself in a not unbecoming admiration and reverence of the Civil Law. He has everywhere manifested an extreme solicitude to make the principles of this branch of jurisprudence, as admin- istered at Rome, appear in harmony with the Common Law, as administered in Westminster Hall. And this circumstance appears sometimes to have misled his judgment, and sometimes to have disturbed the clear- ness of his reasoning. For the other defects of his work, a still more satisfactory apology may be found in the actual state of the English Law of Bailments, at the time when he wrote his Essay. Few and scanty were the materials which could be gathered from any other sources than the jurisprudence of Continental Europe. Lord Holt's celebrated judgment, in the case of Coggs VIU PEBPACE. V. Bernard/ constituted at that period almost the only attempt to arrange the principles of the Law of Bail- ments in a scientific order. It was a prodigious effort, in which, however, he was greatly assisted by Bracton, and still more by the Civil Law, from which Bracton had drawn his own materials. In the Commentaries of Sir William Blackstone, the title of Bailments occupies little more than two pages ; and even these contain some incorrect statements. Yet the Law of Bailments is of vital importance in a large class of commercial transactions. Sir William Jones, if not the first, was at any rate among the first, to call the attention of English lawyers to the extraordinary merit of the treatises of Pothier upon the principal branches of Commercial Law. Nor is his eulogy upon this great man, warm and vigorous as it is, too strongly colored. Few works have ever appeared in the jurisprudence of any country, in which the qualities of " luminous method, apposite examples, and a clear, manly style," are more perfectly exhibited, than they are in the writings of Pothier. But while a just commendation is given to this emi- nent jurist, it should not be forgotten that an equally high tribute is due to his predecessor and real master, Monsieur Domat, whose work, entitled " The Civil Law in its Natural Order," considering the age and the circumstances in which it was written, is a truly won- derful performance. His method is excellent, and his matter clear, exact, and comprehensive. Pothier and other Continental jurists have drawn largely upon him to assist their own labors. My design in the present Commentaries has been, to present a systematical view of the whole of the Common Law in relation to Bailments, and to illustrate it by, 1 2 Ld. Raym. 909. PREFACE. ix and throughout compare it with, the Civil Law, and the modern jurisprudence of some of the principal nations of Continental Europe. I have treated every branch of the subject (at the hazard of some repetitions) as a distinct and independent subject ; believing that, for elementary instruction, such a course would be found more convenient as well as more satisfactory than the common method of reference to other heads. In this, as well as in many other respects, I have availed myself of the example of Pothier and Domat. I have not scrupled to follow in a great measure the method and arrangement of these authors ; and I have endeavored to incorporate into my text almost every position to be found in their treatises which could be of the slightest use, either in a practical or a theoretical view, to a student of the Common Law ; so that the reader, if he is disinclined to go over the pages of those authors, will, I trust, find at hand whatever is generally valuable in their collective labors. I have, in like manner, availed myself of the writings of other distinguished civilians and commentators on the Civil Law, as far as their labors appeared to me to afford any new lights in the exposition of my subject. Perhaps some apology may be thought necessary for my having, in a treatise on the English Law of Bail- ments, borrowed so largely from foreign sources. My reasons are as follows : In the first place, the learned founder of the Dane Professorship, with that spirit of professional liberality which has always characterized him, suggested to me at an early period, the propriety of my presenting, in all my labors upon Commercial Law, some view of the corresponding portions of com- mercial jurisprudence of Continental Europe. To ad- vice so given it was impossible not to listen with the utmost respect ; and the wisdom of it has appeared more PREFACE. and more strongly to my mind, as it has been con- templated in all its bearings. In the next place, I have long entertained the belief that an enlarged acquaint- ance with the Continental Jurisprudence, and espe- cially with that of France, would furnish the most solid means of improvement of Commercial Law, as it now is, or hereafter may be, administered in America. Mr. Chancellor Kent has already led the way in this noble career ; ^ and has, by an incorporation of some of the best principles of the foreign law into ours, infused into it a more benign equity, as well as a more persuasive cogency and spirit. The English common lawyers (it must be acknowledged with deep regret) have hitherto generally exhibited an extraordinary indifference to the study of foreign jurisprudence. Doctor Strahan, in the Preface to his translation of Domat, has spoken on this subject in language of such freedom and force, as entitle it to respect. I know not whether one ought to be most struck with the calmness of its rebuke, or with the mortifying severity of its truth. " I was surprised," says he, " to find, in a country (England) where all arts and sciences do flourish and meet with the greatest encouragement, that one of the noblest of the human sciences, and which contributes the most to cultivate the mind, and improve the reason of man, as that of the Civil Law does, should be so much disregarded, and meet with so little encouragement. And I observed that the little regard, which has of late years been shown in this kingdom to the study thereof, has been in a great measure owing to the want of a due knowledge of it, and to the being altogether unacquainted with the beauties and excellences thereof; which are only known to a few gentlemen who have devoted themselves to that profession; others, who are perfect strangers to 1 1 Kent, Comm. § 23, p. 481 et seq. PKBPACB. XI that law, being under a false persuasion that it contains nothing but what is foreign to our laws and customs. Whereas, when they come to know that the body of the Civil Law, besides the laws peculiar to the Common- wealth of Rome, which are there collected, contains likewise, the general principles of natural reason and equity, which are the fundamental rules of justice in all engagements and transactions between man and man, and which are to be found nowhere else in such a large extent as in the body of the Civil Law, they will soon be sensible of the infinite value of so great a treasure." Such is the language used by an English civilian more than a century ago. It is lamentable to say, that it may be applied, with but little mitigation, to the general state of the profession of the Common Law in our day.^ There is a remarkable difference, in the manner of treating juridical subjects, between the foreign and the English jurists. The former almost universally discuss every subject with an elaborate theoretical fulness and accuracy, and ascend to the elementary principles of each particular branch of the science. The latter, with few exceptions, write Practical Treatises, which contain little more than a collection of the principles laid down in the adjudged cases, with scarcely an attempt to illus- trate them by any general reasoning, or even to follow them out into collateral consequences. In short, these treatises are but little more than full Indexes to the Eeports, arranged under appropriate heads ; and the materials are often tied together by very slender threads of connection. They are better adapted for those to whom the science is familiar, than to instruct others in 1 I take great pleasure in referring the reader to an excellent article on the Civil Law, published in " The American Jurist " for July, 1829, p. 39 et seq. It is written with all the sound judgment and practical sense of its learned author. sii PEEFACB. its elements. It appears to me, that the union of the two plans would be a great improvement in our law treatises ; and would afford no inconsiderable assistance to students in mastering the higher branches of their profession. In the present work I do not pretend, in any suitable manner, to have accomplished such a plan as is here proposed. More learning and more leisure than are within my reach are requisite for such a task. I have, however, endeavored to bring together the products of my own imperfect studies. As the work is principally designed for students, I have not hesitated to repeat the same train of remark, whenever, from a new connection, it might be useful to explain a difficulty, or to illustrate a new position or authority. I have also availed my- self, occasionally, of the freedom belonging to a com- mentator, to express a doubt or to deny a doctrine. But I have rarely done so, except when the point has been purely speculative, or the common-law authorities justified me in the suggestion. Whatever is in this respect propounded, is to be considered submitted to the judgment of the reader, as matter worthy of further examination. If I have done any thing to lighten the labors of any ingenuous youth, who are struggling for distinction, or to attract abler minds to a more profound investigation of this branch of Contracts, I shall reap all the rewards which, beyond the mere fulfilment of duty, I have ever proposed to myself. I throw myself on the candor of a profession, from which 1 have uni- formly received indulgence ; and offer these Commen- taries to the public in that spirit of subdued confidence, which invites examination, and, at the same time, is not unconscious of the real difficulties with which a work of this nature is attended. CONTENTS. CHAPTER I. Page On Bailments in General 1-44 SECTION. 1. Importance of the Law of Bailments. 2. Definition of Bailments. 3. Division of Bailments into three sorts {with reference to the benefit derived. } 4. Deposit, definition of. 5. Mandate, definition of. 6. Gratuitous Loan for use, definition of. 7. Pledge or Pawn, definition of. 8. Hiring, definition of, and various sorts of. 9. Obligations of Bailee in different sorts of Bailments. Difference of Legal and Moral Obligation. *■ 10. The same subject. 11. Diligence, three different degrees of. Ordinary Diligence, what is. 12. Standard of Diligence variable. 13. And different in different Countries and Ages. 14. Diligence affected by Customs, and Usage of Trade and Business. 15. And by Nature, Bulk, and Value of Articles. 16. High or Great Diligence, what is. Low or Slight Diligence, what is. 17. Degrees of Negligence, — Slight, Ordinary, and Gross. 18. The like degrees in the Civil Law. 19-22. Gross Negligence, whether equivalent to Fraud. 23. Degree of Diligence required in different sorts of Bailments at the Com- mon Law. 24. And in the Civil Law. 25. Bailees not generally liable for inevitable accident, — w'hat is such. Irre- sistible force, what is. 26. Robbery, how far deemed Irresistible Force. 27. Theft, how far deemed Irresistible Force. 28. Burglary, how far Irresistible Force. ' 29. Other cases of Casualties at the Common Law. 30. And in the Civil Law. 31. Exception in cases of Special Contract. xiv CONTENTS. SECTION. 32. Bailee cannot contract against his own Fraud. 33. Kesponsibility of Bailee may be enlarged by Special Contract. 34. So by the Civil Law. 35. Effect of Special Contract to keep safely : whether Bailee is hable for Robbery or Theft. 36. Or, in such case, liable for Accidents. 37. How far such a Bailee is Uable by the Civil Law. 38. Private Theft, whether Presumptive of Fraud at the Common Law. 39. The same subject. 39 a. [Liability of second Bailee to the original Bailor when the second Bail- ment is made without right.] 40. Confusion of Property by Bailee. CHAPTER II. Ox Deposits 45-138 SECTION. 41, 42. Definition of Deposits. 43. From what the word is derived. 44. Division of Deposits into Voluntary and Necessary. 44 a. Involuntary Deposits, what. 45. Another Division into Simple Deposits and Sequestrations. 46. How far these Divisions are recognized at the Common Law. 47. Difference between Deposit and Mutuum. 48. Principles of the Contract arising from Natural Law. 49. Divisions of the subject. 50. By and between what persons the contract of Deposit may be. 51. What may be the Subject-matter of a Deposit. 52. What title Depositor must possess. Secondary Bailments. 53. Effect of Return of Deposit to owner. 54. How and when an Accessorial thing passes with a Deposit. 5-5-60. [What is of the Essence of the Contract of Deposit. Delivery of the thing.] 61. Obligations of Depositaries. To keep with care; and to restore on re- quest. 62. What is Keeping with reasonable Care. What degree of Diligence re- quired of Depositary. 63-71. [Whether sufficient for the Depositary to keep, as he keeps his own goods.] 72. An undertaking to keep, not equivalent to undertaking to keep safely. 73. Effect of undertaking to keep Deposit, as bailee keeps his own goods. He is not liable for theft. 74. Effect of undertaking to keep goods in a particular place. 75-78. [Effect of Concealment of Contents of Deposit. Roman and Scotch Law.] CONTENTS. XV SECTION. 79. Presumption of due DUigence, if bailee keeps the Deposit as he keeps his own goods. 80. Exceptions as to the general rule of Diligence. 1. Special Contract. 2. Officious Offer of Services. 81. 82. j These Exceptions considered.} 83. Rule as to Diligence in cases of Necessary Deposits. 83 a. Involuntary Deposit. [Right to enter and reclaim property.] 84. Irregular Deposits, what. 85. Quasi Deposits by finding goods. Responsibility of Finder. 85 a-87. Whether Finder is responsible for Gross Negligence. 88. Bank Deposits General and Special. Embezzlement by Officers of the Bank. 89-91 . Use of Deposit, — how far Depositary may use It. 92. Remedy in case of Breaking open a Sealed Deposit. 93-93 i. Whetlier Depositary has a Special Property in the Deposit, or may maintain an Action for Injury to it. 94. The right of {either Bailor or Bailee ( to maintain an action against a Stranger, for Injury to it. 95. The Civil Law on this subject. 96. Restitution of Deposit. Obligation of Depositary. 97. In what state to be restored. Responsibility for Injuries. 98. Formerly a doubt at the Common Law, whether Depositary was com- pellable at law to restore. 99. Restitution of the Increase and Profits of Deposits. 100. Sale of Deposit by Depositary, effect of. 101. Sale by Heir or Administrator without knowledge of the Deposit. 102. [To whom Restitution is to be made. Bailment of Stolen Goods.] 103. In case of Intermediate Transfer of Title by Depositor. Effect of Re- mittance to pay a Debt. 104. Whether Bailee may restore to his Bailor, notwithstanding an adverse claim. Countermand by Bailor. 105. Rights of Owner in case of a second Bailment by his Bailee. 106. To whom Restitution should be, where Deposit has been made by a Servant. 107. When Demand necessary to be made by Depositor. [Effect of Limita- tions.} 108. How Restitution to be made according to the Civil and Foreign Law. 109. Deposit by Guardians, Administrators, and Trustees, — to whom Resti- tution is to be made. 110. What is to be done in cases of Adverse Claims by Different Persons. 111. 112. Interpleader, what. When, and between whom it lies. 113. The Civil Law, and Foreign Law on the same subject. 114. Restitution in cases of Joint Deposits. Remedy of Depositary in such a case, if one Joint Depositor seizes the Deposits. 115. The Civil Law in Cases of Joint Deposits. 116. Responsibility of Joint Depositaries. 117. 118. Restitution of Deposit, in what place. 119. Restitution, whether demandable before expiration of time of Deposit. 120. Restitution, what will excuse the Depositary, or entitle him to Time to make return. Recovery by Title Paramount. 121. Expenses of Depositary to be reimbursed, whether he has a lien for. 121 a. Involuntary Deposits. Expenses. [Salvage.] XVI CONTENTS. SECTION. 122. Effect of unjustifiable Refusal to restore the Deposit. Future Responsi- bility of Depositary. 123. When Interest or Damages payable on account of Detention. 124. Deposits of Goods attached on Process. 125. Rights of the Attaching Officer in cases of Deposits on Attachments. 126. When the attaching officer may demand the Deposit attached. Effect of Judgment and Subsequent Attachment. 127. The Attaching oflicer may retake the goods attached from the possession of the Debtor. 128. Responsibility of the Attaching Officer to the Debtor. 129. Rights of the Creditor in such cases of Attachment and Deposit. 130. The Duties of the Attaching Officer, — what degree of Negligence will make hable. 131. Who is to indemnify the Attaching Officer for his expenses in keeping the Goods attached. 132. The Rights and Duties of the Attaching Officer's Bailee. 133. Wliether the Bailee has a Special Property in the Goods attached. 134. Notice of the French Law in cases of Attachments and Sequestrations. 135. Effect of Attachment as to the Rights of the Owner of the Goods. 136. Conclusion of the head of Deposits. CHAPTER III. On Mandates 139-201 SECTION. 137. Mandate. Definition of. 138. Mandator, Definition of. Mandatary, Definition of. 139. Contract of Mandate jhow far} recognized in Common Law. 140. Distinction between a Deposit and a Mandate. 141. Contract of Mandate at Common Law confined to Personal Property; — not so in Civil Law. 142. What Agencies are deemed Mandates in the Civil Law. 143. Nature and Character of the Contract of Mandate. 144. What is of the Essence of a Mandate. 145. The matter of tlie Contract. Acts in futuro. 146. Certainty in regard to the object of the Mandate. 147. The Act must be for the Benefit of the Mandator by another as his Agent. 148. It must be capable of being done. 149. It must not concern the Interest of the Mandatary alone. Joint Interest. 150. I Whether! the Mandatary has a Special Property in the thing. 151. How far the Act must be for the Benefit of the Mandator, or a Third Person. 152. Right of Mandatary to maintain an Action for an Injury to the thing. 153. The Contract must be gratuitous. Difference between Counsel and Attorney, 154. Expenses of Mandatary to be reimbursed. CONTENTS. Xvii SECTION. 155. The Contract must be voluntary, without mistake or fraud. Distinction between Advice and Representation. 156, 157. Rules of the Common Law on this subject. 158. The Contract must not be illegal or against sound morals. 159. Cases of Breach of Trust by Trustees and Guardians. How Mandate affected by. 160. No particular Form or Ceremony to create a Mandate. 161. The Contract of Mandate may be absolute or conditional, temporary or permanent. 162. Parties between whom the Contract may be made. 163. Obligations of the Mandatary j classified. [ 164. Whether the Mandatary is legally bound to perform the act by the Civil Law. 165. 166. Whether he is so bound by the Common Law. 167-171 d. [Common-Law distinction between cases of Nonfeasance and Mis- feasance.] 172. Cases of negligent execution of Mandate governed by the same rule as Misfeasance. 173. 173 o. What degree of Diligence the Mandatary is responsible for by the Civil Law. 174. What degree by the Common Law. 175-181. Whether there is any Distinction, as to Degree of Diligence, be- tween cases of Mandates to do work and to carry goods. 182. Opinion of Dr. Paley. 182 a. Mandatary generally liable only for gross negligence. J Skill not requi- site. Effect of special contract.} 183. Presumption of Diligence, if Mandatary keeps the goods as he keeps his own. 184. Illustrations of the Doctrine. 185. The same subject. [Case of Mandate to carry Doubloons.] 186. Degree of Diligence to be proportional to Value of the Goods, and Dan- ger of Loss or Injury. 186 a, b. Case of a Bank. What is Negligence in Dirfectors. 187. The Scottish and Spanish Law on this subject. 188. Misuser by Mandatary. Violation of Trust, effect of. 189. Quasi Contract of Negotiorum Gestoi; what. 189 a, b. Responsibility of Negotiorum Gestor. [Law of Louisiana.] 190. Illustrative Case at the Common Law. 191. Account to be rendered by Mandatary, how and when. 192. What Deductions to be allowed to Mandatary. 193. The Expenses and Disbursements of Mandatary to be allowed. 194. The Increase and Profits of Mandate to be accounted for. 195. Joint Mandataries [severally] liable in solido. 196. Obligations of Mandator. 197. In relation to Expenses of Mandatary. 198. In relation to Incidental Contracts of Mandatary. 199. Contracts of Mandatary, how far binding on Mandator. 200. How far Mandator is bound to indemnify Mandatary for Expenses. 201. Opinion of Dr. Paley on this subject. 202. How the Contract of Mandate is dissolved. 1. By Act of the Party. 2. By Death of Mandatary. Case of Death of one Joint Mandatary. 203. Death of Mandator, when it dissolves the Contract. b XVni CONTENTS. SECTI02f. 204. Effect of Death in case of part execution. 205. Difference of Civil and Common Law on this subject. 206. "When Contract dissolved by Change of state of the parties, as Marriage, Insanity, &e. 207. Eevocation of Mandate by operation of Law. 208. Revocation by the act of the Mandator [in Civil Law.] 209. Eevocation by the act of the Mandator [at Common Law.] 210. Countermand of Delivery to a Tliird Person. 211. Bankruptcy of the Mandator a revocation by operation of Law. 212. Burden of Proof, on whom it lies in case of Loss or Injury of Mandate. 213. The same subject. [Form of Action and Circumstances.] 214. Anomalous case of unintentional injury by Ner/ntiurum Gestor. 215. Exceptions from the general rule as to Diligence. 216. [Loss of Chattel taken on trial with a view to subsequent Purchase.] De- gree of Diligence required. 217. [Mandate of a Slave, and Loss by Flight.] 218. Conclusion of the head of Mandates. CHAPTER IV. On Gratuitous Loans 202-252 SEfTIOX. 219, 220. Gratuitous Loans, definition of. 221. No English word exactly expresses the meaning of Commodatum. 222. The use of the word " Loan " in this Treatise. 223. What is of the essence of a Gratuitous Loan. It must be Personal Prop- erty. 224. It must be absolutely gratuitous. 225. It must be for the use of the Borrower. 226. .Joint use of Lender and Borrower, effect of. 227. Contract may be limited, or conditional, and during pleasure. 228. The thing loaned to be returned. Case of ilnlimm. 229. [Capacity to Contract. Loan must not be immoral.] 230. Whether the Lender need be the absolute Proprietor. 231. The Rights of the Borrower. Use by him. 232. Limitation of Eight to use. 233. Illustration of the Doctrine. 2.'54, 23.5. When the Loan is Personal. [Comment on Bringloe v. Morrice.] 236. The Obligations of the Borrower. 237, 238. Degree of Diligence required of the Borrower. 238 ". [Case of Accessories to the principal thing.] 239. Degree of Diligence, how varied. Theft, when Borrower responsible for. 240. Borrower not liable for Accidents. 241. Except when he is in Default. 242. 242 a. Loss by Robbery, when Borrower is responsible for. 243. Effect of Fraud and fraudulent Concealment. CONTENTS. xix SECTION. 244. Losses by Accident, in case of Ordinary or Extraordinary Use. 245, 246. In case of Fire, wliether Borrower may save his own Goods in preference. 247. The doctrine of Sir William Jones and Pothier doubted and discussed. 248, 249. The same subject. [Statement of the point in question.] 249 a. The same subject. [Different reasoning in case of Deposit.] 249 b. The same subject. [Test, whether there has been Negligence, against Superior Duty.] 250. The same subject. [Borrower need not make every possible Sacrifice to save Borrowed Goods.] 251. The same subject. [Principles of Morality.] 252. Exceptions to the general rule of Diligence. [Special Contract.] 253. 253 a. Effect of Valuation of the Loan. [The question one of Construc- tion.] 253 b. Diligence in case of a Precarium. 253 c. Diligence, what is required by the Scottish Law. 254. 255. The Use to be made by the Borrower. 256. Expenses of Borrower, by whom to be borne. 257. The Restitution of the Loan, how and when. Rules of the Civil Law. 258. Rules of the Common Law. Of Revocation of Loan. 259. Effect of Delay in Restitution. 260. Accessorial things to be delivered back. 261. Place of Restitution. 262. To whom [and by whom] Restitution is to be made. 263. Special Excuses for non-return. 264. Borrower cannot detain for prior Debt. 265. To whom Restitution is to be made. 266. In case of Title by a Stranger. 267. In case of Joint Loan. 268. Condition in which the thing is to be returned. 269. How far receiving the thing back affects damages. Right of action for Injuries. 270. Obligations of the Lender. 271. As to the Use of the Thing. How far Bailment revocable. 272. Disturbance in use by a Stranger. 273. Reimbursement of Expenses by Lender at the Civil Law. 274. At Common Law. 275. Concealment of Defects by the Lender. 276. Restitution of thing, after paid for by Borrower. 277. Revocation of Loan by act of the Party, [and by Death or Marriage.] 278. Burden of Proof on whom, in case of Loss or Injury. 279. Borrower has no Special Property in the Loan. 280. But he has a Right of Action in certain cases. 281. 282. Comment on certain Positions in Rich v. Aldred (6 Mod. 216). 283. Comment on [Seymour v. Brown,] {as to mixture of chattels.] 284. Fungibles in Scottish Law, what are. 285. Conclusion of the head of Gratuitous Loans. XX CONTENTS. CHAPTER V. On Pawns oe Pledges 253-322 SECTION. 286. Definition of a Pawn or Pledge. 287. Distinction between a Pawn and a Mortgage. 288. Hypothecation witliout Possession, in what cases. 288. n. {" Collateral security " as applied to Pawns and Mortgages.} 289. The Essence of the Contract of Pawn or Pledge. 290. It must be of Personal Property ; {incorporeal kinds, whether included.} 290 a. [Whether by Civil Law only {corporeal kinds) might be pledged.] 291. [Whether] the Pawnor need be owner of the Pledge. 292. Increase of Pledge, whether subject to the Contract. 293. What may not be pawned by the Civil and Common Law. 294. Whether any Future Interest the proper subject of a Pawn. 295. {Right to pledge a limited or special interest] 296. Pawn of Negotiable Instruments {by one who possesses without owning, j 297. Delivery of the Pawn, Necessity of, at Common Law. 298. How far necessary by Civil and Foreign Law. 299. Effect of Redelivery. 800. For what Debts and Engagements a Pawn may be Security. 301. E.xtent of the Security. 302. Pawn, Contract of, between what persons. 303. Eights of Pawnee ; — Special Property. 804. Whether Pawn may be retained for other Debts. 305. Rule of the Civil Law on this subject. 306. Expenses of Pawn. 306 a. The same subject. [Rules of Foreign Law.] 307. Special Property in Pawn, how far by Civil and Foreign Law. 808-310. Sale of Pawn. [Judicial Sale.] 311. Distinction between Pawns and Liens in regard to sale. 312, 313. Rights of Creditors on Proceeds of Sale. [Roman and Common Law.] 314. Sale of Pawns, when composed of Different Articles. 315. Right of Pawnee to sue personally for the Debt. 316. Whether Pawnee can be compelled to such Suit by the Civil Law. 317. Effect of Stipulation prohibiting Sale {or prescribing its terms.} 318. {Pawnee cannot appropriate pawn.] 319. Sale must he iono yiVe,- {Pawnee cannot purchase.} 320. Whether a Pawnee is compelled to sell; {his right to retain.} 321. Negotiable Securities in Pawn, how disposed of ; — Compromise with Debtor. 322. Transfer of Pawn by Pawnee. 323. Transfer of Negotiable Securities. 324. Transfer by Pawnee in Pledge. 325. Common-Law Doctrine of Pledge by Factors in England. 326. In America. 327. Pledge by the Pawnee, when good by the Common Law 328. When by the Civil Law. 329. 330. Use of the Pawn by Pawnee. 331. Use by the Civil Law. CONTENTS. ' xxi SECTION. 332. Duties of the Pawnee. Diligence, wliat degree required. 333-389. Wiiether tiieft is presuraptire evidence of Fraud. Duty of Pawnee to return Pawn. Onus Probandi in case of Loss. 340. Wlien Pawn may be delivered to original Owner, if he is not the Pawnor. 341. Effect of Refusal to return the Pawn. 342. Liability of Pawnee for Acts of Omission as well as of Commission. 343. Pawnee, how and when to render an Account. 344. Antichresis, what in Civil Law. Welsh Mortgage. 345. Rights of Pawnor. Right of Redemption. 346. Time of Payment. Lapse of Time. 347. Prescription, and Statute of Limitations. 348. Time to redeem, when not fixed by the Parties. 349. Effect of Sale before Offer of Redemption. 350. Sale and Transfer by Pawnor. 351. Damage to Pawn ; {Owner's recompense.! 352. Pawnee has a Special Property. Action for Damage by a Stranger. 353. Pawns not seizable on Execution. 354. Duties of Pawnor. Warranty of Title. 355. Concealment of Defects of Pawn. 356. Fraud by Pawnor. 357. 358. Reimbursement of Expenses of Pawn. 359-364. Extinguishment of the Contract of Pawn. 365. Common Law on this subject [similar to the Civil Law.] 366. Local Law of Massachusetts respecting Attachments by Pawnor, 367. Conclusion of the subject of Pawns. CHAPTER VI. CONTEACTS OF HiEE 323-335 SECTION. 368. Contract of Hire, Locafio-Condiictio, definition of 369. Parties, Denomination of, in Common, Civil, and Foreign Law. 370. Division of Contract of Hire into three kinds. 370 a. [Pothier's Division into Regular and Irregular Contracts of Hire.] 371. Nature of the Contract. 372. Essence of the Contract. 373. The same subject. What may be let [to hire.] 373 a. The same subject. Use by the Hirer. 374. The same subject. Price. 375. The same subject. [Price need not be specified.] 376. The same subject. [Price payable in money. Innominate Contracts.] 377. The same subject. Pecuniary Recompense. 378. [Requisites of a valid Contract of Hire.] 379. Illegal Contracts, what. 380. Between what Parties the Contract may be. xxii CONTENTS. 381. Consent. Mistake. Imposition. 382. Obligations and [Riglits] arising from the Contract. {Tlie subject clas- sified. 1 Art. I. HiEE of Things 335-380 SECTION. 383. Obligations and [Rights] | of the Letter] in cases of Hire of Things. 384. 384 a. Delivery of the Thing. 385. Obstruction to Use. 386. {Depriving the Hirer of the Thing.} 387. Warranty of Title. 888. Repair of thing Hired. 389. Extraordinary Expenses. 390, 390 a. Warranty against Defects. 891,391a. [Other Obligations] | on the part of the Letter; disclosing Faults, &c.} 391 b. The price of thing hired, how ascertained. 891 c. Who is to pay extraordinary expenses incurred. 392. The Common Law on this subject. 393. Hirer to maintain Animals Hired. •394. Rights and Duties of Hirer. 395. Right to Use. 396. Tortious Use. 397. Duties [in general.] 398. What Degree of Diligence required of Hirer. 399. [Hirer responsible for ordinary Negligence.} 400. Hirer responsible for Negligence of his servants. 401. The rule of the Civil Law more lax. 402. Hirer not responsible for wilful Acts of his Servants. 403. Nor for Acts of Servants not in his Employ. 403 a. Who are to be deemed the Employers, in cases of coaches hired. 404. In what cases the Servants also are responsible. "405. Duty of Hirer in respect to Animals hired. 406. Whether Theft is presumptive of Negligence. 407. Theft by Servants [of Hirer.] 408. Hirer not responsible for Losses not occasioned by Negligence. 409. Distinction between Cause and Occasion of Loss. 410. 410 a. Burden of Proof in cases of Hire of Things. 411. By the Civil and Foreign Law. 412. Losses by Robbery. 4] 3. Duty of Hirer in the Use of the thing hired. 413 a-413 d. Effect of Misconduct or Negligence of Hirer. 414, 415. Restitution of thing hired. 415 a. Cases of Irregular Hire. Duties of Hirer. 41B. [Recompense] to the Letter. 417, 417 a. When Part only of Hire due. [Rule of Foreign Law.] 418, 419. How Contract of Hire of Things is dissolved. 420. The Common Law on the same subject. CONTENTS. Xxiii Aet. II. IIlEE OF LaBOE and SERVICES 381-405 SECTION. 421. Locatio Operis, Division of. 422. Hire of Labor and Services, Division of. 422 a. [Special] Property jof the Bailee.} 423. Distinction, wlien Workman furnishes Materials. 424. In Locatio Operis, the Letter is to pay the Recompense. [Essence of tlie Contract.] 424 a. [Impossible Undertakings.] 425. Obligations and Duties of the Employer. 426-426 c. On whom Accidental Loss Falls. [Foreign Law.] 427. [As to Compensation in such Case. J 427 a. When the Loss falls on the Workman. 428. Obligations and Duties of the Workman. 428 a. The same subject. [Inherent Defect in the thing bailed.] 429. Degree of Care, for which the Workman is liable. 430. Presumption in cases of Theft. 431. In what Cases the Workman is responsible for Skill as well as Care. 432. 433. Degree of Skill. [Ordinary Skill.] 434. Doctrine of Sir William Jones criticised. 435. Cases where Workman does not profess Skill. 436. Workman liable for Nonfeasance as well as for Misfeasance. 437. Loss by Casualty or Superior Force. 438. Loss, when to be borne by Workman. 439. Distinction between Mutuum and Hire of Things. 440. Further Duties of Workman. [Lien.] 441-441 d. Effect of Part Fulfilment only of Contract. Aet. III. HiEE op Custody 405-422 SECTION. 442. Hire of Custody, Nature of. 443. Agistoks of Cattle, Rights and Responsibility of. 444. Wakehouse-Men, Rights and Responsibility of. 445. When the ResponsibiUty of Warehouse-men begins and ends. 446-449. Cases where a person is a Warehouse-man and Carrier. [Forward- ing merchants.] 450. Effect of Misdelivery. 450 a. [Responsibility for injury by negligence, when the goods are afterwards lost.] 451. Whakfingers, Rights and Responsibility of. 4-52. The same subject. [Whether distinguished from Warehouse-men.] 453. When Responsibility of, begins and ends. 454. Onus Probandi, on whom, in cases of Hire of Custody. 455. Factoks and other Bailiefs, Rights and Responsibility of. 456. The same subject. [Obligation to Insure.] Aet. IV. HiEE of Caeeiage op Goods 422-425 SECTION. 457. Contract of Carriage of Goods, general Nature of. 458. The Civil Law as to Carriers and others. 459. The Common Law differs from the Civil Law. xxiv CONTENTS. Aet. V. Excepted Cases 425 Art. VI. Postmasters 41.6— 1l9 3ECTI02f. 461. Origin of Post-Office Establishment. 462. Postmaster-General, how far responsible. 462. n. [Mail Contractors, how far responsible.] 463. Deputy Postmasters, how far responsible. Art. VII. Innkeepers 429-456 SECTION. 464. Reasons for the peculiar Liability of Innkeepers in the Civil Law. 465. Extent of their Eesponsibility by the Civil Law. 466. Innkeepers (at the Civil Law, how far j responsible for their Servants. 466 a. The same subject, [Theft by Guests.] 467. The modern Jurisprudence of Continental Europe the same. 468. Resuhs of the Civil-Law Doctrine on this subject. 468 a. The Eesponsibility of Innkeepers at Civil Law for Theft. 468 b. The modern Doctrine in France. 469. The Common Law derived from the Civil Law. 470. What the Common Law is as to Innkeepers. 471. Eesponsibility of Innkeepers generally. 472. Innkeepers [whether) responsible to the same extent as Common Car- riers. 473. Robbery by the Servants of the Guest. 474. General Divisions of the Rights and Duties of Innkeepers. 475. Who are deemed Innkeepers. 475, n. [Rights and Duties of Boarding-House Keepers ] 476, 476 a. Eights and Duties of Innkeepers ; their Liens. 477, Who are deemed Guests. 478-480. LiabiUty of Innkeepers. 481. [What Chattels are embraced. No Eesponsibility for a Servant's Torts. [ 482. What will excuse an Innkeeper. 483. The same subject. Exclusive Possession by Guest. 484. Effect of Choice of Place of Deposit by Guest. 485. .Statute Eegulations in America respecting Inns. 486. Case of a Gratuitous Guest. 487. When Innkeeper is liable only as a Common Bailee. Art. VIII. CosQiON Carriers 457-576 SECTION. 488. Liability of Common Carriers by the Civil Law. 489. Liability by the Common Law. 400, 491. Eeasons for Extraordinary Liability. [Comment on Eiley v. Home.] 492. General Liability of Carriers. CONTBKTS. XXV SECTION. 492 a. j As to loss from ordinary wear and deterioration,} 493. Rule, {how far relaxed by Statute.} 494. Divisions of the subject. ^ 495. Who are Common Carriers, v^--'-'''^^ 496. Common Carriers (1) by Land, (2) by Water. 497. {Whether Carriers by water and Carriers by land differ as to Liability. } 498,499. {Stage Proprietors and Railways, whether Common Carriers of goods.} 499, 500. {Their Liability for Baggage.} 501. Ship-Owners, when deemed Common Carriers. 502. Forwarding Merchants not Common Carriers. 503. Nor Wharfingers. 504. Case of Dale v. Hall considered. 505. Specific Price of Hire not material. 506. Joint Carriers, Liability of ; {connecting lines of Railways.} 507. Carriers liable for the Acts of their Servants. 507 a. Carriers liable for Torts of Strangers. '/ 508. 509. Duties and Obligations of Common Carriers. 510. Risks of Carriers at Common Law. 511. What are Losses by Act of God. 512. 512 a. What are Perils of the Sea. 513. Destruction by Rats. 514. Collision of Ships at Sea. 515. Proximate, not Remote, Cause of Loss looked to. 516. Losses by Perils of the Sea, when Carriers liable for. 517. Illustrative Case. 518. Comments on the same Case. 519. Case of Injury by Steam. Gross negligence. 619 a. Loss by Fraud at Sea. 520. Case of Loss by striking on the Bottom, whether a Peril of the Sea. 521. Loss by Press of Sail, when a Peril of the Sea. 522. Loss by Impressment of Seamen. 523. Loss by sudden Failure of Wind. 524. Seaworthiness of Vessel, what sufficient. 525. Jettison, a Peril of the Sea. 526. What are Losses by King's Enemies. 527. Jettison by Compulsion of an Enemy. 528. In what cases Carriers are liable, though free from Negligence. 529. Onus Probandi, on whom. 530. In respect to Property carried. {Money and Bank Bills.} 530 a. Stowing Goods on Deck. 531. {Illustrative Case. Jettison of Goods. } 532. Commencement of the Risk of Common Carriers. 533. Liability attaches from time of Acceptance of Goods. 534. Usage of Carriers {by Water, as to receiving Goods.} 535. 536. Case where the Carrier is also a Warehouse-Man or Innkeeper. 537. Case where the Carrier is also a forwarding Merchant. 538-542. Termination of the Risk of Common Carriers. 543. Whether the Carrier is bound to make a Personal Delivery of Goods to the Owner. 544. {English rule of personal delivery as to Carriers by Water.} 545. American Decisions in respect to {Carriers by Water.} XXvi CONTENTS. SECTION. 645 a. At what time goods to be delivered. 545 b. To wliom delivery to be made. 546. Case where a person is at once a Carrier of Goods and an Agent or Fac- tor for the sale of them. 547, 548. Case of Kemp v. Coughtry (11 Johns. 107) {considered.! 549. Effect of Special Contracts and Notices of Carriers. 549. ,!. {Modern Doctrine in England and America.} 550. Operation of a Bill of Lading. In England. In America. 551. Special Contracts are either Express, or more often Implied. 552. Bill of Lading does not cover Seizure for Violation of Revenue Laws, unless for Legal Cause of Forfeiture. 553. 554. Validity of Notices by Common Carriers. 554. n. English " Carriers' Act." 555. {Further points for consideration under the head of Notices. J 556. (1) Nature and Effect of Notices. 557. Notice, where brought home to the Parties, the Effect of. 558. (2) Upon whom Notices are obligatory. 559. Cases in which several Persons are Carriers, as Partners. 560. Notice a mere Nullity, where not brought home to the Owner of Goods carried. 561. (.3) Rights and Duties of each Party, growing out of Notices. 562. Carrier must employ Suitable Means of Conveyance. 563. Owner of Goods bound to put them in a fit Condition for transportation. 564. [Conclusion of this Part of the Subject.] 565. (4) Effect of Concealment or Fraud. 565 a. [Effect of Concealment. Comments on Kenrig v. Eggleston.] 566. Concealment of Value of Goods, whether of itself Fraudulent. 567. Where there is no notice. Owner of Goods not bound to disclose their value, unless asked. 568. Whether the same rule applies to cases of Notice. Mr. Justice Best's opinion. 569. Case where the Carrier knows the Goods are of Extraordinary Value, though not paid for as such. 570. (5) Degree of Carrier's Liability notwithstanding Notices. 571. Whether Carrier is liable for Ordinary, as well as gross, Negligence. 571 a. When Carrier not exempted by Notices. 572. (6) What amounts to a Waiver of Notice. 57.3. Onus Probandi as to Negligence, on whom, in cases of Notice. 573. 71. [English Railway and Canal Traffic Act.] 574^570. What will excuse a Non-delivery of Goods by a Common Carrier. 576. {Transportation of Animals.} 577. Question in respect to the Carriage of Slaves. 577 a. Doctrine of the Roman Law as to Slave Passengers. 578. Non-delivery excused by act of Shipper discharging the Carrier. 579. Non-delivery excused by Illegal Act of Shipper. , 580, 581. Effect of Stoppage in transitu. • 582. Case where the Goods are demanded by a Person having a Superior Title. 582 a. Acceptance of Goods by Owner no bar to Action for Negligence. 583. Doctrine of Average and Contribution. 584. Land Carriers, when entitled to Compensation of (extraordinary! Ex- penses. conte;^ts. xxvii SECTION. 585. General Rights of Carriers.,/ 586. Price of Carriage may be demanded before Goods are received. 587. Freight, what, and how earned. 588. When Carrier is entitled to Lien on the Goods. 589. When Shipper is bound to Carrier for Freiglit ; — when Consignee. 589. n. [Who may bring action against Carriers.] Art. IX. Carriers of Passekgbes 577-616 SECTION. 590. Passenger Carriers | in general. | [Nature of their Liability,] 591. {Passenger Carriers by Land.} Their duties in the Commencement of the Journey. 591a. [Obligation to Receive.] [Subject to their reasonable Regulations.} 692. Bound to provide Suitable Vehicles. 593. Bound to provide Careful Drivers. 594. Bound not to overload the Coach. 595. Bound to take care of Luggage. 595. n. [Bound to run their Trains as Advertised.] 596. Bound for the Acts of their Servants and Agents. 597. Duties of Passenger Carriers on the Road. 598. The same subject. [Precautions for the Safety of Passengers.] 599. Rule of the Road in England. In America. When it may be disre- garded. 599 a. Rights of Foot-Passengers as to the Road. 600. Duties of Passenger Carriers at the Termination of the Journey. 601. Liabilities of J^assenger Carriers. 601 a. Presumption of Negligence. 601 a, n. [Liability beyond their own line.] 602. [Reasonable Skill and Diligence only required.] 602, n. [Liability in case of Death.] 603. Right of Passenger Carriers [to their Compensation.} 603. n. [Right to make] {reasonable By-Laws and Regulations.} 604. Passenger Carrier's Lien. {Termination of Liability as to Baggage.} 605. Passenger Carriers by Water, — their Rights, Duties, and Liabilities. 606. New York Regulations for Canal-Boats. 607. Carrier- Vessels on the Ocean. Cases of Collision. 608-608 c. Four Varieties of Cases of Collision, according to Lord Stowell. 608 d. Limitatiim of Responsibility as to amount of Damage. 609. Case, where the Fault is inscrutable. 610. Loss by pure Accident, or by the Act of God, by whom to be borne. 611. Essential Question in Cases of Collision. Rules of Law as to Precau- tion. 611 a. Rules of Navigation [in General.] 611 6. Rules of Navigation by Steamers. 612. American Statute Regulations as to Passenger Ships. Art. X. Spemal or Quasi Bailees for Hire . . 616-624 SECTION. ^ 613. Cases of Possession of Property by Captors, by Revenue OfBcers, by Prize Agents, by Officers of Courts, [by Finders], and by Salvors. XXviu CONTENTS. SECTION. 614. When Captors are bound for Losses. 615. To what degree of Diligence Captors are bound. 616. The same subject. Lord Stowell's Opinion. 617. Case, where Goods have been unliveried by Decree of Prize Court. 618. Rules applicable to Goods seized by Revenue Officers. 619. As to Prize Agents, what Principles prevail. 620. Officers of Court, Degree of Diligence to which they are bound. 621. Rule as to Receivers appointed by the Court. 621 a. Finders of Goods, Responsibility of. 622. Salvors, who are regarded as such. 623. Salvors, how far responsible. 624. Loss of Salvage Property pending a Suit for Compensation, by whom to be borne. 625. Conclusion. INDEX TO CASES CITED. The References are to the Sections. A. Section Abbott V. Bradstreet 499 Abraham v. Nunn 25, 444 Acker v. Campbell 39 a Ackley v. Finch 287 V. Kellogg 448, 537, 688 Adams v. Broughton 276 V. Carlisle 410 V. Clark 588 i;. Claxton 304 V. Clem 477 V. Midland Railway Co. 545 a V. O'Connor 303 Adams Express Co. v. Haynes 499, 551 V. Reagan 549 V. Wilson 506, 539 Addison v. Round 93 e, 93 /, 133 Ainsworth v. Bowen 310, 319 Alabama, &c. R. R. Co. v. Kidd 450, 545 b Albin V. Presby 480 Alden v. N.Y. Central R. R. Co. 592 V. Pearson 529 Alderman v. Eastern R. 545 b Aldrich v. Albee 261 V. Boston & Worcester Railroad Co. 450 a Alexander v. Green 32, 495, 496, 554 0. Malcomson 549, 558 Alexandria R. R. Co. v. Burke 310 Alfred v. Home 569 Alkali Co. v. Johnson 501 Allan V. Gripper 541 Allday v. Great Western Railway Co. 549 Allen V. Ham 443 V. Mackay 608 d V. Megguire 304 V. Sackrider 495 V. Sewall 476, 496, 497, 499, 500, 501, 505, 507, 530, 548, 595 Section Alliance Bank, Ex parte 359 Alston, Ex parte 325 V. Herring 492 a Alton V. Midland Railway Co. 590 Alvord V. Davenport 476 America, The 608 a American Ex. Co. v. Greenhalgh 544 V. Pinckney 496, 567 V. Sands 529 V. Schier 551 American Merchants' Ex. Co. v. Milk 545 b, 574 American Merchants' Ex. Co. v. Wolf 638, 543 American Transportation Co. v. Moore 528 Ames V. Belden 33, 35, 399, 408 u. Palmer 588 u. Union R. 590 Amies v. Stevens 492, 5"24 Andrews v. Scotton 314 Androscoggin R. R. Co. v. Auburn Bank 331 Angle V. Mississippi Railway 538 Anne, The 615 Ansell V. Waterhouse 591 Anthony v. Haney 83 a Appleby v. Dods 417 a V. Myers 426 a, 427 Appleton V. Donaldson 290 Arbuckle v. Thompson 689 Archer v. Walker 253, 253 a Arctic Fire Ins. Co. v. Austin 496 Arendale v. Morgan 299, 315 Armistead v. White 481, 483, 484 Armory v. Delamirie 52, 93 d, 93 h, 93 i, 133, 152, 280 Arnold v. Jefferson 51, 93, 584, 585 Ashmore v. Penn. Steam Towing Co. 496 Ashton's Appeal 322, 324 xsx INDEX TO CASES CITED. Section Asliton V. Atlantic Bank 323 Aston V. Heaven 498, 590, 592, 694, 598, 599, 601, 602 Atkinson v. Maling 297 V. Ritcliie 36 Atlas, The 608 d Atwood V. Reliance Transporta- tion Co. 554 Aurentz v. Porter 88, 620 Austin V. Great Western Railway 690 V. Mancliester R. Co. 17, 83, 549, 551, 570 V. Miller 414, 417 Ayers v. Banking Co. 294 V. South Australian Banking Co. 303 Ayles V. South Eastern R. Co. 601 a Aymer v. Astor 497, 513 B. Babcock v. Herbert 496 Badkin v. Powell 39 a Badlam v. Tucker 36, 125, 129, 280, 287, 288, 297, 300, 320, 35:3 Bagshawe v. Goward 329 Bags of Linseed 588 Bailey v. Colby 322, 413, 415 Baird v. Daly 428, 429, 431 Baker v. Arnot 323 V. Hoag 121 V. Woodruff 283 Baldwin v. American Express Co. 496 V. Bradley 301 Balfe V. West 166, 172 Ball V. Liney 4.50 Ballentine v. North Missouri Rail- road 511 Bailer 441 b Baltimore Steamboat Co. v. Brown 506, 538 Bait. & Ohio R. R. Co. v. Blocher 603 r. Schumacher 15 Baltimore Mar. Ins. Co. u. Dalrymple 308, 319 Bancroft u. Boston & Worcester R. R. Co. 601, 602 V. Peters 686 Banfield v. Whipple 405 Bank v. Dubuque, &c. R. R. Co. 319 V. Lanier o02 Bank of Columbia n. Patterson 441 c Bank of Kentucky v. Adams E.f- press Co. 496, 506, 511, 528, 549 Bank of Rutland v. Woodruff 815 Bank of United States v. Dunn 186 a Bank of Utica v. H'Kinster 2, 171 c Bansemer v. Toledo, &c. R. R. Co. 446 Barber v. Brace 525, 530 o Barclay u. CucullayGana 507a, 526, 528 V. Heygena 626 Section Barcroft's case 575 Barker, The 611 6 V. Haven 589 V. Hodgson 36 V. Miller 125, 133, 280 r. Midland R. Co. 603 u. N. Y. Central R. 597 V. Roberts 422 a, 439 Barney v. Oyster Bay Steamboat Co. 591 a Barnwell v. Hussey 561, 578 Barrett v. Cole 299 V. Warren 39 a Barron v. Eldridge 454, 536, 537 Barrow, Ex parte 581 V. Paxton 288 Barry v. Longmore 440, 463 V. Midland Railway 603 Barwick v. Reade 293 Bass V. Upton 453 a Bastard r. Bastard 605 Basten v Butter 441 Batcliffu. Davis 341, 346, 348, 350, 362 Bates V. Stanton 102, 340, 450, 682 Batson v. Donovan 9, 11, 15, 21. 78, 399, 406, 608, 549, 565, 568, 670, 671, 586 Batten v. Butter 441 b Batut V. Hartley 444 Baxendale ;;. Eastern Counties Rail- way Co. 508 V. Great Eastern R. Co. 554 V. Great Western Rail- way Co. 549 V. Hart 554 V. London & South West- ern R. Co. 508, 573 Bayley v. Merrill 475 Baylies v. Fettyplace 36 Baylis v. Usher 582 a Bayliss v. Fisher 269, 682 a Bayon v. Prevot 189 a, 189 6, 217 Beach v. Berdell 682 0. State Bank 300, 312 Beal i: South Devon Railway Co. 17 Bean v. Sturtevant 600 Beardslee v. Richardson 174, 213, 278, 339, 410, 454 Beaucharap v. Powley 171 6, 175, 435, 436, 467 a. Silverlock 621 Beck V. Evans 563, 669, 670, 571, 672 Becker v. Smith 2 Beckman v. Sliouse 410, 454, 457, 496, 499, 629, 549, 554, 670, 497 Beckwith v. Frisbie 496 u. Shordike 83 a V. Sibley 315, 366 Beebe v. Ayres 603 Beeher u. Great Eastern Railway Co. 499 Beekman v. Bond 288 Beeniau v. Lawton 297 INDEX TO CASES -CITED. XXXI Section Behrens v. Great Northern E. Co. 564 Belden v. Perkins 287, 317, 324 Belfast & Ballymena Eailway Co. "■ Keys 499, 565 Belger v. Dinsmore 496, 551 Bell 1). Drew 499 V. Reed 212, 413 a, 413 d, 497, 509, 515, 529 Bendetson v. French 481 Benett v. Peninsular, &c. Steam- boat Co. 495, 591 Benjamin v. Stremple 303, 352 Benje v. Creagh 414 Bennett w. Klyaw 496 V. Manchester E. 573 c. Mellor 212, 470, 471, 472, 479, 480, 482 V. O'Brien 237, 278 Benson v. New Jersey Railway 595 Berkshire Woollen Co. v. Proctor 477, 479, 481 Berlin v. Eddy 322 Bernstein v. Sweeny 481 Berry v. Gibbons 291 Betsy, The 614 Betteley v. Reed 682 Betts u. Farmer Loan Co. 590 Bevan v. Waters 443, 463 a BeTer v. Tomlinson 550 Beverly v. Brooke 217, 408 Beyris v. Spor 97 Bickford v. Metropolitan Steam- ship Co. 643 Biddle v. Bond 120, 266, 450, 582 Bigbee v. Coombs 414, 417 Bigelow V. Willson 135, 353 Bignold V. Waterhouse 569, 568 Bingham v. Rogers 499, 554 Bird V. Astcock 525, 531, 575 K.Cromwell 512 a V. Great Northern R. 601 a Bird of Paradise, The 688 Birkett v. WiUan 543, 664, 570 Bishop V. Pentland 516 V. Williamson 463 Bissell V. N. Y. Central R. 549, 590 Black V. Baxendale 645 a u. Bogert 299 Blackman v. Pierce 463 a Blackstock v. N. Y. & Erie R. 546 a Blackstone Bank v. HiU 312 Blackwood v. Brown 349 Blair v. Erie R. 590 Blake v. Buchanan 306 a, 343 V. Kimball 128, 620 V. Nicholson 440 V. Shaw 129 Blakemore v. Bristol & Exeter Railway Co. 275 Blanchard v. Isaacs 495, 498, 632, 533 1-. Page 589 Bland v. Womack 171 b, 183 Section Blendenhall, The 622 Blight V. Page 36 Bliss V. Scliaub 894 Bliven v. Hudson River Railroad 582 Blossom V. Dodd 551 u. GriflSn 636 Blower v. Great Western R. Co. 515, 576 Blumentlial v. Brainerd 446, 496 Boardman v. Gore 102 Board of Trade v. Buckingham 453 a Bodenliam v. Bennett 543, 549, 554 Bodenhammer v. Newsom 299, 670, 571, Bodwell II. Bragg 481 Boelim V. Combe 533 Boggs V. Martin 588 Boies V. Hartford, &c. R. R. Co. 410, 464 Bolan V. Williamson 463 Bold Buccleugh, The 508 c BoUauds V. Manchester Railway Co. 595 Bomar v. Maxwell 498, 499 Bond V. Padelford 127, 133 V. Ward 40 Boner v. Merchants' Steamboat Co. 545 a Bonner v. Welborn 475 Bonsey v. Amee 287, 294, 297, 299 Booth V. Terrell 254, 257, 265, 279 Boson V Sandford 400, 402 Boston & Albany R. v. Shanly 492 a Boston & Lowell Railroad v. Proc- tor 603 Bostwick V. Champion 606 Bott V. McCoy 326 Boucher v. Lawson 501, 504 Boulston V. Sandiford 508 Bourne v. Gatliff 609, 639 Bowen v. New York Central R. Co. 601, 601 a Bowerhank v. Morris 208 Bowling V. Stratton 217 Bowman v. Hilton 588 V. Teall 269, 611, 623, 541, 542, 545 a, 578, 582 a V. Wood 290, 321, 323 Boyce v. Anderson 677, 578, 497 V. California Stage Co. 601 a V, Chapman 507 Boys V. Pink 664 Brace v. Duchess of Marlborough 307 Bradburn v. Great Western R. 601 Bradhurst v. Columbian Ins. Co. 585 Bradish v. Henderson 74 Bradley v. Waterhouse 554 Bradshaw v. Lancashire R. 602 Brahm v. Adkins 88 Brandan v. Barnett 87 Brandon v. Scott 114 Branley v. South Eastern Railway Co. 508 INDEX TO CASES CITED. Section Brass v. Maitland 492 a V. Worth 310 Bray v. Mayne 405 Brehm c Great Western Railway Co. 601 a Breraner v. Williams 592 Bretherton c. Wood 591 Brewster v. Hartley 297 Brick V. Freehold, &c. Co. 314, 300 Briddon v. Great Northern Rail- way Co. S45 a Bridge v. Wyman 125 Bridgeport, The 611 ft Bridges v. North London R. 600 Brierly v. Kendall 315 Briggs V. Boston & Lowell Rail- way Co. 588 V. Light Boats 588 V. Taylor 17 V. Vanderbilt 601 a Brightman v. Reeves 310, 322, 327 Brind v. Dale 407, 410, 457, 492 a, 49B, 509, 533 Bringloe v. Morrice 235 Brintnall v. Saratoga & Whitehall Railroad 506, 538 Bristol & Exeter Railway Co. v. Collins 538 British Columbia Co. u. Nettleship 532 Brittan v. Barnaby 651 Britton v. Aymar 25, 103, 104, 450 Broadwater "v. Blot 407, 443 Broadwood v. Grauara 476 Brecknock & Abergaveny Canal Co. V. Pritchard 36 Bromley v. Holland 209 Brooke v. Pickwick 499, 549, 554, 557, 560, 567, 568, 569, 571, 572 Brookman v. Hamill 463 Broome v. Wooton 276 Brown v. Bement 287, 288 V. Clayton 492 a, 497 V. Cook 107 V. Denison 444, 462 V. Eastern R. Co. 561 !;. Hitchcock 439,444,450 a r. Jolmson 217, 410 t. Runals 345 r. Thayer 102, 110 V. Warren 297 !;. Waterman 410 Brownell v. Hawkins 287, 303 V. Manchester 93 b, 94, 125 133 Browning v. Hanford 130, 620 Bruce v. Garden 290 Brumby v. Smith 426 h Brush V. S. A. & D. R. Co. 551 Bryan v. Baldwin 310, 319 Bryant v. Rich 606 V. Warden 413 Brucker v. Tromont 402, 463 Section Buchanan v. International Bank 314 V. Smith 396 Buck V. IngersoU 315, 366 Buckland v. Adams Express Co. 496, 551 0. Johnson 276 Buckley v. Gross 40 V. Great Western R. Co. 538 Buckman v. Levi 453, 532 Buffum V. Merry 283, 439 Buis V. Cook 399, 405 Bulkeley v. Welch 308 Bulkley u. Andrews 2 V. Naumkeag, &G. Co. 611 Buller V. Fislier 512, 514 Bullock V. Dommitt 36 V. Williams 288 Burdict v. Murray 422 a Burgess v. Clements 471, 472, 476, 482, 483 Burke v. Manchester, &o. R. Co. 601 a V. Trevitt 130, 618, 620 Burn V. Miller 441 a, 441 c Burns r. Cork R. Co. 592 Burnside v. Union Steamboat Co. 490 Burrellv. North 632 Burroughs v. Norwich & Worcester Railroad 538 Burrows v. Bangs 321 t.. Stoddard 133 i: Trieber 483 Burt V. Perkins 132 Burton v. Hughes 93 d, 93 f, 133, 150, 152, 280, 443 t: Wilkinson 460 Bush V. Lyon 352 V. Miller 278, 444, 464 V. Steinman 400, 403 a Busk V. Royal Exchange Assurance Co. 615 Butler, The 623 0. Hearne 666, 568 t. Hudson River Railroad 499 V. Kenner 108, 460 Butt V. Great Western Railway Co. 39, 335, 407, 410, 554 Butterworth v. Brownlow 539, 641 V. Kennedy 315 Buxton !•'. North Eastern R. Co. 601 a Cady V. McDowell 475 Cahill V. London, &c. R. 499, 565 Calm H. Jlichigan Central R. 643, 588 Cailiff I. Danvers 408, 444 Cairns v. Robins 536, 539, Caldwell u. Murphy 693, 598 o. New Jersey Steamboat Co. 611,601a Callendar v. Oelricks 171c, 436 INDEX TO CASES CITED. XXXIU Section Calye's case 470, 471, 472, 473, 475, 477, 478, 479, 481, 482, 483 Calais Steamboat Co. v. Van Pelt 323 Callard v. White 487 Camden & Amboy R. R. Co. v. Ba- dauf 549, 551, 567 Camden & Amboy R. R. Co. v. Bel- knap 498, 654, 604 Camden & Amboy R. R. Co. v. Burke 496, 498, 499, 500, 570, 571 a, 590, 592, 593, 601, 604 Cameron v. Reynolds 404 V. Rich 529 Camp V. Hartford Steamboat Co. 549, 550 Campbell v. Parker 290 ('. Perkins 501 V. Phelps 276, 463 Cardin v. Jones 321 Cargo, ex Capella 623 ex Schiller 622 Carey v. Berkshire Railroad Co. 602 Carle v. Bearce 103 Carnes v. Nichols 453 Carpenter v. Branch 220, 226, 237, 877 V. Taylor 475 Carpue v. London & Brighton Rail- way Co. 601 a Carr v. Lancashire & Yorkshire Railway Co. 549 Carrington v. Smith 287 Carrley v. White 410 Carroll (Ship) 6116 Carter v. Hobbs 477 V. Peck 601 a Cartwright v. Wilmerding 296, 297, 326 Gary v. Cleveland & Toledo Rail- road 506 V. Hotailing 39 a Case V. Boughton 315 V. Fogg 476 Cashill V. Wright 17, 470, 483 Cass V. Boston & Lowell Railroad Co. 11, 444, 454 Caterham v. London & Brighton R. Co. 603 Catharine of Dover ( Ship) 608, 608 b, 608 d, 609 Catharine and Anna (Ships) 616 Catley v. Wintringham 539, 543 Caton V. Rummey 496 Causey v. Yeates 291 Cavenagh v. Such 507 Chamberlain v. Masterson 477, 483 Chamberlin v. Cobb 220, 877 Chambersburg Ins. Co. v. Smith 287 Champion v. Bostwlck 638 Champlin v. Butler 441 6 Chapel V. Hickes 441 b Chapman v. Thumblethorpe 83 a Section Charles v. Coker 315 Chase v. Gater 103 V. Washburn 228, 283, 439, 537 V. Westmore 440, 588 Cheesman v. Exall 266 V. Excell 102, 340 Cheetham v. Hampson 392 Cheney v. Boston & Maine R. Co. 603 Chenowith v. Dickinson 444 Chicago Artesian Wells Co. v. Corey 319 Chicago & Aurora Railroad ». Thompson 565 Chicago & Burlington R. v. Parks 603 Chicago R. R. Co. v. Boyce 499, 538 V. Flagg 603 V. Morris 602 V. Thompson 496 Chicago, &c. Railroad v. Ackley 586 Chicago, &c. R. Co. v. Northern Line Packet Co. 506 Chicago, &c. E. Co. v. Scott 538, 543 Chickering w. Fowler 545, 545 a Child V. Hugg 810 Chiles V. Garrison 88 China (Ship) 6116 Chippendale v. Lancashire & York- shire Railway Co. 509, 549, 562 Chouteau v. Steamboat St. An- thony 507, 530 Chouteaux v. Leech 612 a Christie «. Griggs 498, 499, 529, 592, 593, 601,601a, 602 V. Trott 524 Christy v. Kemble 589 V. Smith 463 Chy Lung v. Freeman 612 Cincinnati Mail Line Co. v. Boal 507, 530 Cincinnati R. R. v. Duvall 4 V. Spratt 4 Cincinnati, &c. Air Line Road v. Marcus 499 Citizens' Bank v. Nantucket Steam- boat Co. 495, 507, 530 City Fire Ins. Co. v. Olmsted 297 City of Brooklyn ( Ship) 611 6 City of Washington (Ship) 611 6 Claflin V. Boston & Lowell E. Co. 414, 545 6 Clapp V. Nelson 415 0. Stanton 496 Clarita (Ship) 6116,623 Clark V. Barnwell 492, 492 a, 529, 549 V. Bouvain 310 V. Burns 499 V. Gaylord 2, 110, 132 V. Lowell & Lawrence Rail- road 588 irxiriv INDE X TO C Section Clark V. Maloney V. McDonald V. Needles u. Richards V. Spence 213, 93 rf 577 536 497 410, 454 St. Louis R. R. Co. 551 V. St. Louis, &c. Railroad 549 Clarke v. Cray ' 496 . Ragland 229, 237, 277 Hagedorn v. Whitmore 521 Hahn v. Corbett 517, 526 Hale V. N. J. Steam Nar. Co. 611 Hales V. London & North Western R. Co. 609 Hall V. Boston & Worcester Rail- road Co. 414, 446 V. Cheney 529 V. Connecticut R. Steamship Co. 496, 498, 529, 693, 598, 601 V. Corcoran 379 V. Piekard 394 V. Pike 477 V. Power 603 V. Renfro 496, 576 Hallenbake v. Fish 480 Halliday v. Holgate 290, 308, 349 Halty V. Maskell 443 Halyard v. Dechelman .394, 415, 429 Hambleton v. Central Ohio R. B. Co. 291 Hamilton v. Elstner 444, 450 i,. Nickerson 106, 643 Section Hamilton v. State Bank 310 Hamlin v. Great Northern 597 Hammack v. White 410 Hampton v. Brig Thaddeus 530 a Hancock v. Franklin Ins. Co. 287, 344, 345, 346 Hand v. Baynes 497, 609, 519 a, 545 a, 582 o Handaysyde v. Wilson 611, 611 a Handford v. Palmer 393, 398, 399, 405 Hanna v. Holton 290, 321 Hannibal Raihroad v. Swift 495, 499, 500 Hardman v. Wilcock 102 Hare v. Fuller 394 Harker v. Dement 303 Harmer v. Bell 608'c Harmony v, Bingham 545 a Harper v. Godsell 114 !.. Little 203 Harriet (Ship) 611 Harriraan (Ship) 645 a Harrington v. Dennie 36 V. King 133 V. Lyles 496, 497 V. McShane 496 V. Snyder 388, 399, 410, 413, 414 Harris v. Costar 593, 601 V. Great Western R. Co. 551 I). Northern Indiana R. 676 u. Packwood 212, 278, 339, 410, 454, 549, 556, 667, 569 V. Rand 611 V. Stevens 603 Harrison v. London, &c. R. 556, 573 Hart V. Allen 413 d, 615 V. Rensselaer, &c. Railroad 506 V. Ten Eyok 40, 287, 310, 348 Harter v. Blanohard 197, 198 Hartford v. Jackson 395 Hartop V. Hoare 62, 92, 93 a, 93 f, 102, 133, 322, 323 Harvey v. Epes 217, 413 Hasbrouck (Ship) 6115 Haslam v. Adams Express Co. 496, 543 Hastings v. Pepper 413 d, 492 a, 497, 600, 615, 629 Hatchett v. Gibson 450 a Hatchwell v. Cooke 467, 495 Hathorn v. Ely 538 Haweroft a. Great Northern Rail- way Co. 591, 595 Hawkins v. Duchess & Orange Steamboat Co. 611 6 V. Great Western R. 549 V. Hoffman 498, 499, 545 a Hawks V. HinchlifF 322 Hawley v. Smith 478 Hawthorn v. Hammond 470 xl INDEX TO CASES CITED. Section Hay craft v. Creasy 156 Haynie w. Waring 507 Hays V. Kennedy 489, 512, 601 a u. Paul 496 V. Riddle 299 Hazard v. Manning 440 V. New England Marine In- surance Co. 612 a, 513 Heard v. Mountain 594 Hearn v. London, &e. R. Co. 554 Heath i'. Silverthorn, &c. Co. 331 Hedges v. Hudson River R. 543 Hegeman v. Western R. R. Co. 592, 601a Heirn v. McCaughan 597 Helsby v. Hears 506, 559, 572 Hemphill v. Chenie 447, 545 a Henderson v. London, &c. R. Co. 554 V. New York, The 612 V. Stevenson, 551, 573, 605 Hendricks v. Mount 110 Henry v. Ewbank (Ship) 624 !/. Philadelphia Warehouse Co. 297, 326 V. Tupper 346 Herbert v. Hallett 585 Herkimer Manuf. &c. Co. u. Small 312 Herman v. Drinkwater 91, 499 Hersfield v. Adams 496 Hestonville R. R. Co. u. Shields 317 Heydon & Smith's case 93, 93/, 352 Hibbard v. New York & Erie R. 603 Hibler v. McCartney 549 Hickey v. Boston & Lowell R. 601 Hickman v. Thomas 443, 476, 477 Hickox V. Naugatuck Railroad 499, 536 Higgins t>. Andrews 83 a V. Bretherton 585 V. Emmons 117 u. Hannibal R. 601 V. Scott 362 Hill Manuf. Co. u. Boston & Low- ell R. Co. 506, 538 Hill V. Owen 472 Hilliard v. Goold 603 Hillyard v. Crabtree 441, 441 b Hilton V. Waring 321 Hine (Ship) v. Trevor 607 Kingston v. Wendt 584, 588 Hinton v. Dibbin 17, 549, 554, 570 V. HoUiday 343 Hoare v. Parker 295 Hobbs V. London R. Co. 597, 600 Hobson V. Woolfolk 2, 25, 134 Hodge's Heirs v. Durnford 173, 187, 189 a, 189 b Hodgson V. FuUarton 457, 495 V. Malcolm 522 Hoffman v. Noble 326 Holbrook v. Baker 300 V. Utica & Schenectady Railroad Co. 601 a Section Holbrook v. Wright 110, 122 Holder v. Soulby 472, 475 Holderness v. CoUinson 453 Holl V. Griffin 450 HoUaday v. Kennard 526 Holliday v. Camsell 93, 93 a, 114 Hollingsworth v. Dow 440 HoUingworth v. Broderick 413 d, 512 a, 515 HoUinshead v. Mactier 441 c HoUister v. Nowlen 33, 457, 498, 499, 508, 528, 533, 554, 557, 567, 570, 590, 593 Holmes v. Doane 605 Holton V. Smith 326 Homer o. Thwing 380,396, 412, 413, 413 d Homes v. Crane 287, 288, 297, 299, 327, 364 Hoop (Ship) 620 Hooper v. Ramsbottom 295 V. Wells 549 Hope V. Lawrence 308 Hopkins v. Westcott 499, 649 Hopper V. Miller 394 Home V. Meakin 379, 390, 391 a V. Midland 545 a Horsefall v. Mather 392 Horsley v. Chaloner 621 Hosea v. McCrory 500, 507 Hosmer v. Clarke 107 Hou'ghton V. Butler 83 a Houser v. Houser 321 V. TuUy 483 Houston R. Co. v. Ham 512 a Howard v. Babcock 237 V. Farr 394 c. Roebens 88 V. Wissman 492 a Howe Machine Co. u. Pease 472 Howell V. Jackson 476 Howth V. Franklin 472 Hoyt V. Gelston 279 Hubgh V. New Orleans, &c. R. Co. 602 Hudson V. Baxendale 492 a, 538 ... Midland Railway Co. 499 V. Wilkinson 290 Hughes V. Boyer 403 a V. Great Western R. Co. 545 a, 549 Hulett V. Swift 472 Hunsaker v. Sturgis 344 Hunt V. Haskell 688 V. Holton 324, 350 V. Rousmaniere 203, 205, 209 V. Wyman 2 Hunter v. Potts 513 Huntress (Ship) 529, 532, 545 Kurd V. West 102, 279, 280, 283, 394 Hurry v. Royal Exch. Assur. Co. 678 Hursli V. Byers 477 Hurst u. Great Western Railway Co. 595 INDEX TO CASES CITED. xli Section Huston V. Peters 543 Hutchings v. Western R. Co. 499 Hutchins v. Brackett 462 Hutchison v. Commonwealth 444 Hutton V. Arnett 299 V. Bragg 588 V. Osborne 495, 504 Hyatt V. Taylor 481 Hyde v. Noble 93 d, 133 V. Trent & Mersey Nav. Co. 444, 447, 452, 484, 487, 496, 507, 507 a, 509, 511, 520, 536, 539, 543, 549 Hyland v. Paul 181, 408 I. Idaho (Ship) 40, 266, 283 Illinois Central R. Co. v. Adams 549, 576 Illinois Central R. Co. v. Cobb 545 a, 549 Illinois Central R. Co. v. Cope- land 499, 538 Illinois Central R. Co. v. Phillips 601 a Illinois Central R. Co. v. Smyser 532 Illinois Central R. Co. v. Taylor 499 Illinois Central R. Co. v. Whitte- more 603 Indianapolis R. v. Herndon 495, 588 V. Horst 690 V. Strain 662 Ingalls V. Bills 592, 698 Ingallsbee v. Wood 477 Ingate v. Christie 496 IngersoU v. Van Bokkelin 324, 352 Inglebright v. Hammond 283 Invincible (Ship) 492 a lona (Ship) 6116 Iron Duke (Ship) 611 Isaac «. Clarke 87, 93 a, 105, 110, 232, 286, 339, 413, 594, 598 Israel v. Douglass 103 Izett V. Mountain 556 J. Jackman v. Partridge 107 Jackson v. Cummins 443, 453 a V. Rogers 508, 686 V. Robinson 406 V. Sacramento Valley R. R. Co. 446, 538 V. ToUett 698 Jacobs V. Latour 366 Jalie V. Cardinal 477, 479 James v. Christy 602 V. Greenwood 25 Jameson v. Drinkald 611 Jarvis V. Rogers 290,291, 296, 299, 304, 305, 315, 322, 324, 326, 327, 340, 349 Section Java (Ship) 611 6 Jeffersonville R. Co. v. White 450 Jencks v. Coleman 496, 590, 591, 591 a Jenkins v. Motlow 171 b Jenkinson v. Cope's Ex'rs. 108 Jenner v. Joliffe 130 Jenneson v. Camden & Amboy R. Co. 538 Jenney v. Rodman 126 Jennings v. Camp 441 a, 441 b V. Great Northern R. 591 a, 603 V. Rundall 380 Jerome v. McCarter 290, 310 Jessel V. Bath 549 Jesup V. City Bank 314 Jewell V. Schroeppel 441 a, 441 b Jewett V. Torrey 125, 126, 129 V. Warren 287, 297 Johann Friedrich (Ship) 607 Jolm V. Bacon 601 a Johnson v. Concord Railroad 603 u. Midland Railway Co. 470, 508 V. New York Central R. Co. 502 V. Reynolds 475, 477 V. Richardson 472 V. Stear 299, 308, 315, 325, 327 V. Stone 499 V. Willey 413 Johnston v. Benson 550 V. Crane 631 V. The Schooner Mac- donough 463 Jones, In re 475 V. Baldwin 299 V. Boyce 592, 598 V. Hatchett 450 a V. Hawkins 321 V. Morrill 475 V. Osborn 475 V. Page 390, 391 a V. Smith 221, 287, 345 V. Thurloe 476 V. Thurmond 346 V. Tyler 479, 480 V. Voorhees 499, 661 Jordan v. Fall River R. Co. 499, 595 Jourdan v. Reed 181 Judson V. Western Railroad 637, 549, 651 Julien V. Steamer Wade Hampton 605 Juno (Ship), and Albert (Ship) 611 K. Kansas Pacific R. v. Reynolds 649, 576 Kay V. Wheeler 513 Keane v. Boycott 302 xlii INDEX TO CASES CITED. Section Kearney v. Boston R. 602 Keenan v. Southworth 462, 463 Keene v. Collier 88 Keiser v. Topping 297 Kelby v. Bowker 549 Kellogg u. Sweeney 1S2, 17U, 471, 479, 481 Kemp V. Coughtry 495, 497, 609, 515, • 530, 546, 547 V, Farlow 1''4 V. Westbrook 290, 310, 320, 316 350, 362 Kendall v. London R. 676 Kendrick v. Delafield 546 Kennard v. Burton 598, 599 Kennedy v. Ashcraft 232, 254 Kenrig v. Eggleston 531, 565 a, 567, 575 Kent V. Midland R. 538 V. Shuekard 470, 479, 481 Keokuk (Ship) 634 Ker V. Mountain 600, 603 Kerr u. Willan 568 Kettle V. Bromsall 33, 35, 70, 73, 183 Kex V. Kilderby 586 Kidney v. Persons 308 Kieran !'. Sandars 460, 682 Kiff V. Old Colony R. 582 Kimball (Ship) 588 V. Hildreth 287 V. Rutland R. 496, 500, 549 V. Rutland & Burlington R. Co. 649, 551 Kinder v. Shaw 326 King V. Bedford 205 V. Green 291 V. Hertford 72 V. Lenox 501, 607 V. Richards 582 V. Shepherd 512,629 V. Woodbridge 645 a Kingsford v Marshall 520 Kinloch v. Craig 588 Kinney v. Central R. Co. 590 Kirkland v. Dinsmore 549, 661 Kirtland v. Montgomery 171 b Kisten v. Hildebrand 472, 475 Klauber v. Am. Express Co. 511 Knap V. Sprague 126, 129 Knapp V. Curtis 444 Knight V. Plimouth 621 u. Portland, &c. R. Co. 601, 601a Knowles v. Atlantic, &c. R. R. Co. 62, 63, 74,460 a V. Dabney 645 a Knowlton v. Providence Steamship Co. 608 d Knox V. Tarner 359 Kohler v. Hayes 2 Kohn V. Packard 545 Koon V. Greenman 441 b Section Kopitoff V. Wilson 509, 613, 662 Kremer v. Southern Express Co. 538, 543 Krohn t. Sweeney 475,481 Kuckein v. Wilson 325 Kuehn v. Wilson 431 L. Labar v. Taber 546 Lack V. Seward 608 a Laclouch a. Towle 582 Lacoste v. Pipkin 394 V. Sellick 506 Ladd V. North 125, 129, 135 Laduc V. Griffith 536 Lafarge v. Morgan 62 Lafaye v. Harris 508 Lafourche Navigation Co. v. Collins 140, 163, 189 6 Laidlaw v. Organ 566 Lain v. Gaither 266 Laing v. Colder 664, 598, 601 a Laird v. Eichold 472 Lake v. Columbus Ins. Co. 520 Lakeman v. Grinnall 633 Lamb v. Palk 402 i;. Parkman 492 a, 496, 501 V. Western Railroad 410, 444 Lambertson v. Windom 321 Lamine v. Dorrell 276 Lampley v. Scott 174 Lancaster Co. Bank v. Smith 32, 62, 63, 81,88 Lane v. Bailey 327 V. Cameron 25, 396, 413 V. Cotton 183, 404, 461, 462, 470, 472, 498, 508, 511, 526, 629 V. Old Colony R. 588 Langdon v. Buel 287, 288, 315 Langley v. Brown 554 V. Boston & Maine E. Co. 496 Langton v. Waite 290, 344 V. White 322 Langworthy v. New York & Har- lem Railroad 496 Latham v. Chartered Bank of India 290 Laugher v. Pointer 400, 402, 403 a Laurie v. Douglass 512 Laveroni v. Drury 613 Law V. Hatcher 589 Lawrence v. Aberdein 576 V. Howard 477 V. Maxwell 331 V. McCalmont 321 V. Minturn 531 Leach u. Kimball 287 Learned v. Bryant 52, 105, 132 Leavy v. Kinsella 2, 443 INDEX TO CASES CITED. xlii Section Le Barron v. East Boston Ferry Co. 592, 601 a Lebeau v. General Steam Nav. Co. 549, 567 Le Blanche v. London R. 597 Le Conteur v. London, &c. R. 490, 554 Leek V. Maestaer 407, 429 Lee V. Atkinson 304, 396 V. Bradlee 297 Leech v. Baldwin 492 a Lees V. Dwight 104, 119 Leeson v. Holt 554, 558 Leggott V. Great Northern R. 602 Leitch V. Wells 302 Lemont V. Lord 512 a Lenox u. United Insurance Co. 530 a Leonard v. Hendrickson 496 Lepard v. Vernon 209 Lethbridge v. Phillips 60 Leuckliart v. Cooper 453 Levi's case 359 Levi V. Lynn, &c. Horse Railroad Co. 500 V. Waterhouse 569 Levy V. Bergeron 25 Lewis, Ex parte 453 V. London R. 600 c. Ludwick 489, 526 V. Mott 308, 322 V. Smith 496 V. Western Railroad Co. 541 Lichtenhein u. Boston & Prov. Railroad 410, 414 Lickbarrow v. Mason 287 Lidderdale v. Montrose 293 Ligo (Ship) 608 6 Linningdale v. Livingston 441 b, 441 c Lipford V. Charlotte, &c. R. Co. 515 Little V. Boston & Maine R. 508, 567 Littler v. Holland 441 6 Lively (Ship) 615 Liver Alkali Co. v. Johnson 496 Livingston v. Story 343 Lloyd V. Barden 160 V. General Iron Screw Co. 550 Lobdell V. Merchants' Bank 321 Lobenstein v. Pritchett 174 Lockwood'y. Bull 413 „■. Ewer 290, 310, 346 Loeschman v. Machin 102, 396, 413 Logan V. Pontchartrain Railroad Co. 499,545 6 V. Mathews 278, -379, 410 London & North Western Railroad Co. V. Bartlett 541 Lonergan v. Stewart 228, 283 Long V. Home 591, 594 V. Mobile R. 588 Longman v. Galini 408 Longmore v. Great Western E. 603 Longridge v. DorviUe 2, 171 a Look V. Comstock 288, 299 Section Loomis V. Stave 290, 317 Lord V. Midland Railway Co. 17, 509, 573 Lotan V. Cross 279 Louis V. Stevenson 288 Louisa (Ship) 624 Louisiana State Bank v. Gaiennie 290, 321 Louisville & Portland R. Co. ii. Smith 601 a Lovejoy v. Jones 413 Loveland v. Burke 541, 543 Lovelock V. King 441 c Lovett V. Brown 440 V. Hobbs 496, 500, 505, 508 Low V. Martin 453 a Lowe V. Booth 571 V. Moss 511, 545 a Lowell Wire Fence Co. v. Sargent 496 Lowry v. Steamboat Portland 611, 611 a, 6116 Loyless v. Hodges 154 Lubbock V. Ingliss 450 Lucas V. Trumbull 396, 413 V. N. Y. Central Railway 602 Lucena v. Craufurd 456 Lucketts V. Townsend 317 Ludden v. Leavitt 93 6, 125, 133, 394 Lnpton V. White 40 Luxford V. Large 608 a Lyle V. Barker 303, 352 Lyman v. Lyman 125, 126, 129 Lyon V. Mells 492, 496, 509, 549, 554, 562, 570, 571 a V. Smith 475 Lyons v. Hill 543 M. MacCarthy v. Young 275 Machu V. London, &c. R. Co. 554 Mackenzie v. Cox 454 Macklin v. Frazier 444 V. Waterhouse 508 Macomber v. Parker 288, 290, 294, 299, 324, 364 Macrow v. Great Western R. Co. 499 Mad River Railroad Co. v. Fulton 499 Magee v. Scott 107 Magellan Pirates 23 Maggie Hammond (Ship) 512, 512a Maguire v. Middlesex Railroad 593 Mairs v. Taylor 291, 353 Malcolm v. Schooner Henrietta 298 Mallory v. Willis 283 Malone v. Boston & Worcester Railroad 551, 590 Maltby v. Chapman 481 Man V. Shiflner 324, 325 Manhattan Oil Co. v. Camden & AmboyR. Co. 601a xliv INDEX TO CASES CITED. Section Mann v. Birchard 549, 570, 573 Manning v. HoUenbeck 476 V. Wells 472, 477 Maria (Ship) 615,616.617 Maria & Vrow v. Johanna 490, 615 Mariner v. Smith 2, 17, 41, 62, 140, 174, Markham v. Brown 476 V. Jaudon 290, 310, 321 Marks v. Cass County Mill, &c. Co." 444 Marner v. Bankes 413 Maroney v. Old Colony R. 591 a Marsh v. Home 212, 278, 339, 410, 454, 556, 569, 572, 573 V. Lawrence 353 Marshall v. American Express Co. 541, 543, 545 a V. Bryant 313 V. Nashville Marine & Eire Ins. Co. 27 V. York & Newcastle E. Co. 499 Martin v. Creditors 297 V. Cuthbertson 25, 232, 264 V. Great Indian Peninsular Railway Co. 549 V. Reid 287, 308 V. Salem Ins. Co. 513 Martini v. Coles 323, 325, 352 Maryland Fire Ins. Co. v. Dal- ^ rymple 317 Mason v. Briggs 117 V. The Blaireau 623 V. Thompson 470,471,472,476, 477, 479, 482 Massiter v. Cooper 591 Mateer v. Brown 472, 477 Mathews v. Dublin & Drogheda Railway Co. 509 Mauge V. Heringhi 310 Maury v. Coyle 62, 81, 88, 97, 332, 338 Maving v. Todd 535, 549, 557, 558 May V. Harvey 114 V. Sharp" 315, 321, 352 Mayall v. Boston & Maine R. Co. 507 Maybin v. South Carolina R. R. Co. 502, 532, 537 Mayell v. Potter 545 a Mayhew v. Boyce 598, 599 V. Eames 658 Mayo 1'. Avery 360 17. Boston & Maine R. 601 V. Moore 321 Maynard v. Buck 399, 443 Maxwell v. Houston 2, 450 K. M'llvoy 463 McArthur v. Sears 489, 510, 514, 528 McCall V. Brock 611 McCalla y. Clark 306 a, 343, 345, 349 McCarthy v. Dublin R. R. Co. 603 K. Goold 293 V. Wolfe 443, 454 Section McCarty v. N. Y. & Erie Railroad •^ 538, 545 V. Vickery 39 a McCauley'f. Davidson 2, 174 McCawley v. Furness R. Co. 549, 590 McClenaghan v. Brock 577, 601 McClures v. Hammond 497 M'Combie ». Davies 295, 324, 325, 327, 352 McConihe v. New York, &c. R. R. Co. 427 MeCormick v. Hudson Railroad 499 McCourt V. London & North West- ern Railway Co. 638 McCoy t). Hock 443 McCranie v. Wood 526 McCuUom V. Porter 444 McDaniel v. Chicago R. 649 McDaniels v. Flower Brook Man. Co. 331 u. Robinson 410, 472, 476 a, 477 McDonald v. Chicago, &c. R. 603 V. Edgerton 477, 479 u. SnelUng 402 0. Western R. 539 McElroy v. Nashua & Lowell Rail- road Co. 601 McGee v. Bast 166 McGill «. Monette 394 u. Rowand 499 McGinn v. Butler 25, 450 a McHenry v. Philadelphia, &c. R. R. Co. 489 Mclntyre v. Carver 440 McKay v. Hamblin 62, 74, 439 M'Kean K. M'lvor 6456 McKee v. Owen 499 McKinney v. Neil 698, 601 a McLachlan v. Wright 288 McLain v. Huffman 107 McLaren t). Detroit, &c. R. Co. 545 a McLauchlin v. Lomas 396 McLean v. Burbank 600, 601, 601 a V. Walker 290, 310, 345, 349 McMahon v. New York 602 V. Sloan 266 McManus v. Crickett 402 V. Lancashire & York- shire R. Co. 549, 573 McMillan v. Mich. Southern Rail- road Co. 538 V. Vanderlip 441 a, 441 6 McNabb v. Lockhart 174 McNeil V. Tenth Nat. Bank 310, 322 M'Neills V. Brooks 405, 413 McPadden v. N. Y. Central Rail- road Co. 592 McQueen v. Great Western R. Co. 528, 554 Mears v. London, &c. R. R. Co. 394 INDEX TO CASES CITED. xlv Section Meclianics' Bank v. Barnett 328 Medeiros v. Hill 36 Meier v. Pennsylvania E. Co. 592, 601 a Memphis R. Co. u. Green 597 Menetone v. Athawes 408, 426, 426 a Mercantile Mut. Ins. Co. v. Chase 496 Merchants' Despatch Co. v. Bolles 508, 539, 549, 567 Merriam v. Hartford & N. H. R. R. 632 Merrick v. Gordon 606 V. Webster 509 Merrifield v. Baker 361 Merrill v. GrinneU 499 Merrimac (Ship) 6116 Merritt v. Claghorn 472 V. Earle 489, 511, 517 V. Old Colony & Newport Railway Co. 445, 453, 532 Merry v. Green 85 Mershon v. Hobensack 489, 504, 512 Merwin v. Butler 643, 645 a Metcalf I). Hess 472 Metcalfe v. London, &c. R. Co. 554 Meyerstein v. Barber 299 Michaels v. N. Y. Cent. R. Co. 511, 529, 537 Michigan Central R. y. Carrow 499, 457, 565 V. Curtis 545 a V. Hale 446, 543, 551 W.Ward 446,543 Michigan R. v. Bivens 543 V. Day 639 Michigan Southern Railroad v. Shurtz 537 Midland R. v. Bromley 538, 529, 410 Middlesex Bank v. Minot 319 Middleton v. Fowler 498, 500, 507 Miles V. Cattle 93 e, 150, 162, 533 Millen v. Hawery or Fawdry 83 a Miller v. Marston 443 V. Race 323 V. Steam Navigation Co. 511, 538, 539 Milligan v. Wedge 400, 403 a Millikin v. Dehon. 310 Millon V. Salisbury 398, 399, 408, 414 MiUs V. Graham 2, 50, 52 V. Michigan Central R. 539 V. Stewart 299 Minett v. Forrester 211 Minna (Ship) 394 Minter v. Pacific R. Co. 499, 507, 569, 572 Mitchell V. Lancashire R. Co. 448, 538, 549 V. Western R. 577, 601 a Miss., &c. Railway v. Kennedy 499 Mobile R. Co. v. Prewitt 538 Monarch (Ship) 608 a Moneypenny v. Hartland 431 Section Montgomery v. Evans 107, 140 Montgomery, &c. R. Co. v. Moore 506, 529 Montreal (Ship) 608 a Mooers v. Larry 405 Moore v. Erie Railway Co. 40 V, Evans 549 I). Michigan Railroad 511 V. Mourgue 179, 408, 433 V. Robinson 93 e V. Wilson 589 Moorsom v. Kymer 689 Moran a. Portland Steam Packet Co. 93 d Morehead v. Brown 444 Mores v. Conham 89, 303, 324, 329, 331 Morewood v. PoUok 511 Morgan v. Congdon 440 V. Dibble 545 V. Ravey 472 V. Stell 208 Moriarty v. Brooks ' 476 Morning Light (Ship) 608 Morris Canal, &c. Co. v. Lewis 290 Morris & Essex R. v. Ayres 603 Morris Railroad Co. c. Ayres 543 Morrison v. Davis 511, 515, 550 Morritt v. North Eastern E. Co. 554, 570 Morse v. Androscoggin R. E. Co. 422 a V. Brainerd 496, 538 .7. Crawford 66, 415 V. Slue 404, 472, 496, 526, 549, 667, 586 Morss V. Stone 2, 99 Morton v. Gloster 379 Morville v. Great Northern Rail- way Co. 549 Moses V. Boston & Maine R. Co. 446, 536, 537, 538, 643, 661 Moses Taylor (Ship) 607 Mosgrave v. Agden 86 Mosher v. Southern Express Co. 538 Moulton u. Phillips 444, 459 Mouse's case 575 Mowers v. Fethers 477, 483 Mowry v. Wood 317 Muddle V. Stride 496, 529, 574 Mudgett V. Bay State Steamboat Co 499 Mullen V. Morris 321 Munn V. Baker 568 Munster v. South Eastern R. 595 Murch V. Concord, &c. R. R. Co. 500 Murphy v. Staton 212, 629 V. Union Railway 601 Murray v. Burling 269 V. Clarke 477 Muschamp v. Lancaster & Pres- ton Railway Co. 606, 638 Myers v. Cottrill 483 xlvi INDEX TO CASES CITED. Section Mytton V. Cock 2, 21, 63, 67, 07 Mytton V. Midland Railway Co. 506, 538 ' N. Najac V. Boston & Lowell Railroad Co. I 538 Nashville R. Co. v. Messino 590, 592, 598 Naugatuclc R. Co. u. Beardsley Scythe Co. 506 Naugatuck Railroad Co. o. Water- bury Button Co. 538 Naylor v. Mangles 453 Neal V. Saunderson 489 V. Wilmington Railroad 444, 446, 538 Negus V. Simpson 414, 415 Nelson v. Edwards 310, 321 V. Iverson 104 V. Macintosh 15, 74, 181, 190 V. Wellington 321 V. Woodruif 492 a, 549 Neptune, (Ship) 607, 611, 6116 Nettles V. South Carolina R. R. Co. 543 Nevan v. Roup ^97, 410 Neve, Le, v. The Edinburgh & Lon- don Shipping Co. 608 a Nevins v. Bay State Steamboat Co. 499, 551 Newbold v. Wright 326 Newell V. Smith 496, 506, 551 Newhall v. Central Pacific R. 581 V. Paige 2, 8 Newport, &c. Bridge Co. u. Doug- lass 314, 315 Newsom v. Thornton 323, 325, 352 Newstadt v. Adams 496 Newton v. Pope 410 ii. Trigg 476 a v. Twigg 470 New Albany Railroad v. Campbell 543 New Brunswick Steamboat Co. v. Tiers 4',)2, 511 New England Express Co. i'. Maine Central R. Co. 508 New Jersey R. v. Pennsylvania R. 496, 667 New Jersey Steam Nav. Co. v. Merchants' Bank 496, 549, 551 New London Bank v. Lee 300 New Orleans Railway Co. v. Hurst 597 V. Burke 601 New Philadelphia (Ship) 496 New World (Steamboat) v. King 15, 17, 181, 512a, 590, 601, 605 Nichols V. Holliday 475 V. Smith 496, 6o7 Nicholson v. Chapman 83 a, 121, 621 V. Willau 549, 556, oo7, 561, 568 Section Nickolson v. Knowles 582 NicoUs V. Bastard 93, 93 d, 93 e, 93/; 94, 133, 150, 279, 280, 351, 352, 394 Nitro-Glycerine case 492 a, 608, 567 Nolan V. New York R. 603 Noland v. Clark 321 Noles V. Marable 308 Nolton V. Western Railroad 590 Norcross ;■. Norcross 472, 477, 479 North Central Co. v. Scholl 601 a Northern Belle (Ship) 509, 513, 562 Northern Railroad i'. Page 603 Northern Railroad Co. v. Fitchburg Railroad Co. 502, 537 Norton v. People 133 u. Woodruff 283 Norway Plains Co. v. Boston & Maine R. Co. 446, 448, 538, 543 Norwich Trans. Co. v. Flint 601 Notara v. Henderson 509, 512a Noyes v. Rutland & Burlington Railroad Co. 606, 538 Nudd V. Montayne 266 Nugent f. Smith 489,495,496,497,501, 511, 515, 576 Nutting V. Conn. River Railroad Co. 538 O. O'Bannon v. Southern Express Co. 532 Obey, (Ship) 6116 O'Brien v. Bound 399 Ockenden, Ex parte 300, 304 Odell V. Boston & Maine R. 545 6 Odiorne v. Colley 133 V. Maxcy 326 Ogden i: Lathrop 308, 310 Ogle ^. Atkinson 102, 105, 280, 340, 450, 582 Ohio & Mississippi v. Muhling 590 OhrlotfB. Briscall 550 Oppenheim v. White Lion Co. 479, 483 Oppenheinier i>. Edney 91,454,499 Orange County Bank v. Brbwn 470, 477, 490, 496, 498, 409, 500, 567, 668 Oratava (Ship) 608 o, 011a Orchard v. Raekstraw 476 Oriflamme, The 605 Orser v. Storms 277, 279 Ostrander v. Brown 543, 545 Oughton V. Seppings 93 rf, 133 Ouimit 1'. Henshaw 499, 538 Overlook o. Hills 321 Overstreet v. Nunn 321 Owen V. Burnett 549, 554, 570, 571 Owens V. Kinsey 297 Packard v. Earle 543 V. Getman 451, 453, 532, 5.33 u. Northcraft 471, 484 INDEX TO CASES CITED. xlvii Section Packet Co. v. Clough 590, 605 Page V. N. Y. Central Eailroad 595 Paige V. Smith 496 Pain V. Whittaker 93 c, 351, 394 Paint (Ship) 624 Palfrey v. Portland, &c. R. Co. 602 Palmer, In re 508 V. Grand Junction Railway Co. 496 V. London & Southwest- ern R. 573 Panton v. Panton 40 Paradine v. Jane 36 Paragon (Ship) 413(/, 515 Pardee v. Drew 496, 498, 499, 554 Parker v. Flagg 511, 515 V. Great Western Railway Co. 600 V. James 413 rf V. Lombard 414, 450 V. Marchant 87 V. Milwaukee, &c. R. Co. 446, 538 V. South Eastern R. 651 Parkhurst v. Foster 475 Parks V. Hall 287, 341 Parmelee v. Fischer 499 V. McNulty 496 Parrott v. Dearborn 128 Parshall v. Eggart 295, 297 Parsons v. Gingell 443 V. Hardy 496, 511, 541, 546 a, 578 V. Monteath 549, 654 V. Orermere 297 Pasley v. Freeman 156 Patapsco Ins. Co. v. Coulter 515 Patcliin V. Pierce 287, 310 Pattison v. Syracuse Nat. Bank 41, 81 Patton V. Baggs 450 Paynter v. James 588 Peacock v. Rhodes 32.3 Pearson v. Duane 601 Peckforton Castle (Ship) 611 6 Peebles v. Farrar 450 Peek u. North Staffordshire Rail- way Co. 549, 573 0. South Staffordshire Rail- way Co. 549 V. Weeks 545 a Peet V. Chicago, &o. E. Co. 509, 645 a u. McGraw 476, 477 Peik V. Cliicago R. 586 Peisch 0. Ware 624 Peixotti V. McLaughlin 496, 498 Pelletier u. Koumage 197 Pemberton Co. v. N. Y. Central R. 649 Pennewill v. CuUen 495, 496 Pennsylvania (Ship) . 6116 Pennsylvania R. ii. Butler 590 u. Henderson 690 Section Pennsylvania E. v. Kilgore 597 V. McCloskey 32 0. Zebe 600 Peninsular Steam Nav. Co. v. Shand 499, 549, 550 People V. Anderson 85 V. Caryl 603 V. Cogdell 85 V. Jones 475 Pepper v. Burland 441 o Percy v. Millaudon 173, 173 a, 181, 182 a, 186 a, 186 6, 187 Perkins v. Portland, Saco, &c. E. R. 538 V. Smith 404 Perley v. Brown 127 V. I'oster 125 Perry v. Thompson 551 Persch v. Quiggle 171 5, 174 Peters v. Ballistier 287 I/. Rylands 496, 501, 590, 601 V. Warren Ins. Co. 610 Petitt V. First Nat. Bank 297 Petrocochina v. Bott 544 Pettigrew v. Barnum 481 Petty V. Overall 338 Phelps V. Campbell 131 u. London & North Western Eailway Co. 499 Philadelphia & Eeading R. R. Co. V. Derby 402, 590, 601 Philadelphia R. R. Co. u. Harper 626 PhiUips V. Bridge 125, 128 ^. Clark 650 V. Condon 237 B. Earle 567 V. Edwards 551, 658 V. Kose 441 b V. Stevens 36 V. Thompson 300 Phllpot V. Kelley 107 Pickas V. Guile 2, 98 Pickering v. Barclay 512 V. Busk 322, 323, 325, 352 Pidcock V. Bishop 566 Piddington v. South Eastern Eail- way Co. 549 Pier V. Finch 603 Pierce v. Milwaukee & St. Paul Railroad Co. 505 V. Schenck 283, 439 V. Strickland 125 Pigot V. Cubley 308 Pinkertou v. Manchester Eailroad 297 V. Woodward 472, 475, 477, 481 Piper V. Manny 479, 480 Pitlock i: Wells 495 Pitt V. Albritton 340, 450 Pitts V. Gaince 93 e Pittsburg R. Co. v. Hinds 601 o. McClurg 592, 601 xlviii INDEX TO CASES CITED. Section Plaisted v. Boston & Kennebec Steam Navigation Co. 612, 514 Piatt V. Hibbard 212, 278, 339, 398, 410, 444, 449, 451, 452, 464, 602, 529, 537 PoUock V. Landis 477 Pomeroy v. Donaldson 496 u. Smith 352, 353 Pomfret v. Ricroft 392 Poole V. Symonds 133 Porcher v. North Eastern R. Co. 526 Portalis v. Getley 325 Porter v. Hildebrand 499 V. Steamboat New England 605 Porterfield v. Humphreys 576 Portland Bank v. Stubbs 297 Portsmouth (Ship) 525, 531 Pothonier v. Dawson 310, 311 Potter V. Lansing 589 V. Sutiblk Ins. Co. 512 a, 520 V. Thompson 310 Poulton V. London E. Co. 604 V. South Western R. R. Co. 402 Powell V. Mills 492 a, 496, 500 V. Myers 496, 498, 499, 545 b, 574, 690, 595, 604 V. Pennsylvania R. R. 649, 576 V. Sadler 396, 413 Powers V. Davenport 509 u. Mitchell 413 d, 414, 444, 450 a, 509, 515 V. Sixty Tons of Marble 453 a Prall V. Tilt 322 Pratt V. Ogdensburg R. Co. 506, 562, 576 Preston v. Neale 83 a, 121 Prevost V. Great Eastern Railway 595 Price V. Powell 446, 538, 543, 589 Proctor V. Nicholson 476 Profilet V. Hall 481 Propeller Niagara v. Cordes 509, 562 Proprietors of Trent Navigation v. Wood 489 Public Opinion (Ship) 607 Pudor V. Boston & Maine Railroad Co. 499 Pullman Palace Car Co. v. Smith 475, 499 Pultney v. Keymer 325 Purvis V. Coleman 481, 48.3 Putnam v. Wiley 277, 279 Pyne v. Dor 93 c Q. Quarman v. Burnett 400, 403 a Queen v. Rymer 475, 470, 477 Queiroz v. Trueman 323, 325 Quiggin V. Duff 444 Quimby v. Vanderbilt 538, 601 a Quinton v. Courtney 479 R. Section Railroad Co. v. Androscoggin Mills 538 V. Aspell 598, 601 V. Barron ■ 601 a, 602 u. Harris 601 a V. Lockwood 549, 590 V. Man. Co. 539, 543, 549, 551 V. Pratt 506, 538, 662, 576 u. Reeves 511, 515 Railway Co. v. Whitton 602 Ramaley v. Leland 481 Randall v. Cook 288 Randleson v. Murray 400, 403 a, 445 Rankin v. Craft 41 V. McCullough 310 Raphael v. Pickford 509 Rapson v. Cubitt 403 a Rasch V. His Creditors 309 RatoliflT V. Davis 803, 314, 324 Ratcliffe v. Vance 350 Rawson, In re 288, 290 Raymond v. Bearnard 441 b Read v. Amidon 471, 477, 483 V. Great Eastern R. 602 V. Smith 83 a Readhead v. Midland Railway Co. 592 Reading v. Menham 388, 392 Redmond v. Liverpool Steamboat Co. 509, 645 a Redpath v. Vaughan 611, 512 Reed v. Richardson 543 V. Shepley , 362 Reeder r. Anderson 121 Reedie v. London & North Western Railway Co. 403 o Reeside (Schooner) 512 a, 554 Reeves v. Capper 299, 364 ^. Ship Constitution 398, 399, 408, 608 a V. Plough 321 Regina v. Tliurborn 85 V. Wood 85 Relf !•. Rapp 565, 566 Eendsberg (Ship) 615,619,620 Reno V. Hogan 549 Reynolds v. Shuler 414 V. Toppan 501 Rex V. Humphery 453 a V. Ivens 470, 476 V. Kilderby 470, 508, 549 Rice V. Benedict 321 V. Boston & Worcester R. Co. 538, 543 u. Hart 446, 538, 539 u. Kansas Pacific 549 o. Ontario Steamboat Co. 608 d Rich I'. Aldred 52, 93, 103, 110, 281 V. Kneeland 472, 496 Richards v. Davis 315, 321 INDEX TO CASES CITED. xlix Section Richards v. Gilbert 497 I'. London, Brighton, & South Coast Rail- way Co. 499 o. London R. 538 V. Mich. Southern R. R. 446 V. Roe 573 V. Westcott 496, 499, 567 Richardson v. Goddard 545 a V. Goss 541 V. Great Eastern R. 592 V. Ins. Co. 315, 321 V. North Eastern R. 576 V. Rich 588 Riches v. Brigges 2, 98 Richmond (Ship) 608 a V. Smith 472, 482, 484 Riley v. Home 491, 508, 529, 554, 565, 667, 568, 571, 673 Rindge v. Colerain 394 Ringgold V. Haven 629 Ripley v. New Jersey R. 603 Roberts v. Thompson 321 V. Threadgill 2 V. Turner 344, 444, 449, 452, 502 V. Wyatt 58, 93 d, 93/ 93 h, 93 i, 133, 230. 279, 299, 395 V. Yarboro 415 Robertson v. Kennedy 496 V. New York R. 590 Robinson v. Baker 588 V. Dunmore 457, 495, 498, 499, 504, 533, 534, 678, 595 V. Fitchburg & Worcester Railroad 410 V. Hurley 310, 315 V. Larrabee 463 u Robson V. Godfrey 441 b, 441 c V. North Eastern R. 600 Rodocanachi v. Elliott 650 Rodgers v. Grotlie 440 Rogers v. Murray 509 u. Stophel 451, 452 V. Weir 450 Rohl V. Parr 613 Rohrle v. Stidzer 314 Rome R. Co. v. Cabot 509, 639 1-. Sullivan 509, 543 Rooth V. North Eastern Railway Co. 549 573 V. Wilson 52, 67, 93 e, 93/, 97, 133, 150, 183, 280, 394, 443 Rose (Ship) 611 Rosee v. Bramsteed 476 Rosenplaenter v. Roessle 481 Roskell V. Waterhouse 449, 537, 568 Ross V. Clark *13 V. Hill 438 V. Johnson 461 V Troy & Boston R. 492 a Rotch V. Hawes 396, 413, 413 d Section Roth V. Buffalo R. 538 Roulston V. McClelland 122, 171 b Rowe V. Pickford 541 Rowland v. Jones 399, 405 V. Plummer 302 Rowley v. Home 558 Rowning v. Goodchild 404, 463 Rowth V. Howell 621 Rozet c. McClellan 290, 315 Rucker v. Lond. Assur. Co. 533, 578 Rumsey v. North Eastern Railway Co. 565 Runyan v. Caldwell 217 V. Mersereau 364 Rushforth v. Hadfield 304 Russell V. Clarke 156 V. Fillmore 287 V. Koehler 429, 437 V. Livingston 496, 643 V. Niemann 526 V. Palmer 4.34 Rutgers v. Lucet 2, 166 Ryall V. RoUe 287, 364 S. Sage V. Gittner 463 Sager v. Portsmouth, &c. R. R. Co. 609, 649, 562 Salem Bank v. Gloucester Bank 400 Salter v. Hurst 399, 621 Saltus V. Everelt 176, 496 Sammel v. Wright 403 Samms v. Stewart 405 Sanborn v. Colman 413 Sandeman v. Scurr 496 Sanders v. Davis 350 V. Young 496 Sanderson e. Lamberton 678 Sandford v. Eighth Ave. R. 603 u. Housatonic R. R. Co. 589 V. Railroad 508 Sapphire (Ship) 608 a Sarah, The Schooner 509 Sargent w. Boston & Lowell R. Co. 608 V. Gile 122, 413 V. Morris 589 Sasseen v. Clark 472, 479, 481 Satterlee v. Groat 457, 495, 504 Sawyer v. Corse 462 V. Dulany 693 V. Hannibal R. Co. 601 a, 602 Scaife v. Farrant 496, 549 Scarfe v. Morgan 453 a Schietfelln v. Harvey 628, 533 Schmidt 0. Blood 410, 444, 454 Schneider v. Evans 638 Scliopman v. Boston & Worcester Railroad 590 Schroyer v. Lynch 463, 603 Schwerin v. McKie 444 INDEX TO CASES CITED. Section Scothorn v. South Staffordshire Railway Co. 509, 538 Scott V. Crane 117 . Caig 300 Shoecraft v. Bailey 472, 477 Shoemaker ?;. Kingsbury 590 Sibley v. Aldrich 472 Sickels V. Pattison 441 a Sidaways v. Todd 452 Sigourney v. Lloyd 323 Section Simmons u. New Bedford Steam- boat Co. 590, 601 Simmons «. South Eastern Rail- way Co. 545 a Simon v. Miller 481, 484 Simons v. Great Western R. Co. 551 Simpson v. London R. Co. 545 a u. Wrenn 266 Simson u. London Omnibus Co. 593, 601 a Sinclair v. Bowles 441, 441 b Siner v. Great Western Railway Co. 598 Singleton v. Hilliard 511 Siordet v. Hall 519 Sisson V. Cleveland & Toledo Rail- road 545 a Sisters (Ship) 608c Sjoerds v. Luscombe 36 Skelley v. Kahn 174 Skinner v. London, &c. Railway Co. 601a Skinner v. Upshaw 688 Slaughter v. Green 283 Sieade v. Paj'ne 545 a Sleat V. Eagg 15, 554, 561, 568, 570 Sleath u. Wilson 402 Slimmer v. Merry 496 Slingerland v. Morse 117 Slocum V. Fairchild 549 Slyu. Edgely 403 a Smedes v. Bank of TJtica 2, 171c Smiley v. Allen 105, 108, 110, 120, 265 Smith V. Atkins 294 V. Bank of Scotland 566 V. Boston & Maine Railroad 499, 665 ji. Clark 283 u. Cook 443 V. Dearlove 443, 477 V. First Nat. Bank 62, 63, 64, 88, 410 V. Poran 506 ^. Frost 444 V. Home 549, 570, 571 V. James 352 V. Keyes 477 V. Meegan 429, 431, 437 «. Milles 93 c, 277, 279 V. Nashua & Lowell Rail- road 62, 87, 446, 448, 543 u. New Haven R. 662, 576 V. New York Central E. 590 V. Pierce 496 V. Plomer 50 V. Sasser 299 V. Scott 475, 512 V. Seward 496 ,1. Shepherd 512, 515, 517, 528 u. Strout 315 V. Weguelin 288 V. Wright 525, 530, 575 INDEX TO CASES CITED. Section Smithurst v. Edmunds 294 Smyrl v. Niolon 611 Snead v. Watkins 476 Sneesby v. Lancashire Railway 615, 576 Sneider v. Geiss 466, 483 Snider v. Adams Express Co. 649 Snow II. Eastern Railroad Co. 499 Sodergren v. Fligiit 588 Solomons v. Dawes 120 Solly V. Rathbone 325 Somes V. British Empire Shipping Co. 306 a Soule V. Union Bank 290, 332 South Australian Ins. Co. v. Ran- dell 47, 283 South Sea Company v. Duncomb 314, 315 Southcote V. Bennet 78 Southcote's case 33, 69, 70, 93 a, 133, 549 Southern Express Co. i^. Caperton 549 u. Dickson 543, 545 6 V. Hess 496, 529 V. McVeigh 496 V. Newby 496, 551 V. Shea 538 Southern R. v. Kendrick 597 South Western Railroad v. Paulk 698 Southwood V. Myers 475 Spade V. Hudson River Railroad 537 Spangler v. Eicholtz 431, 443 Sparr v. Wellman 499 Sparrow v. Caruthers 541, 578 Spears v. Hartly 362, 453 Spence v. Union Marine Ins. Co. 40 Spencer v. Morgan 415 Spice V. Bacon 481 Spooner v. Mattoon 62, 188 Sprague v. Smith 496, 601 a Spring V. Haskell 545a Sproul V. Hemmingway 496 Squire v. N. Y. Central Railroad Co. 549, 551 Stainback v. Rae 608 Standish v. Narragansett Steam- ship Co. G04 Stanley v. Gaylord 122 Stannard v. Prince 502 Stanton v. Bell 97, 181 Star of Hope 512 a Starrett v. Barber 306, 343 State V. Bryant 229 V. Campbell 603 V. Eitzpatrick 124 V. Goold 603 V. Mathews 475 V. Meagher 186 V. Overton 603 V. Ross 603 Section State V. Thompson 603 Steamboat v. Vanderpool 499 Steamboat Co. «. Atkins QS f V. Whilklin 608, 6il Stearns v. Marsh 287, 290, 300, 310, 349 Steel V. State Line Steamship Co. 509, 549 Steele v. McTyler 495 Steinman v. Wilkins 453 a Stephen v. Smith 603 Stephens v. Elwall 414, 545 b V. Hartley 345 Stephens Transp. Co. v. Tucker- man 512, 512 a Stephenson u. Hart 414, 543, 545 o, 545 6, 654, 589 V. Price 450 Stevens v. Bell 300, 314, .317, 345 Stevens v. Boston & Maine Rail- road 450 a Stevens v. Boston & Worcester Railroad 588 Stevens v. Hurlbut Bank 310 Stevenson v. Blakelock 588 Stewart v. Davis 232, 254, 300, 379, 396 V. Frazier 107, 188 V. Fry 103 V. London & Northwest- ern Railway Co. 499, 551, 573 V. Parsons 481 Stief V. Hart 353 Stiles V. Davis 450, 582 Stimson v. Conn. River Railroad 499, 529 St. John V. Van Santvoord 538, 642 St. Louis & Alton H. u. South 603 St. Louis R. V. Montgomery 587 Stock V. Harris 463 Stockdale v. Dunlop 589 Stockton V. Frey 529, 598, 596, 601 a Stoddard v. Kimball 321 V. Long Island R. 549 Stoessinger v. South Eastern R. Co. 654 Stokes V. Frazier 308, 319 V. Saltonstall 493, 498, 529, 577, 593, 598, 601, 602 Stollard v. Great Western Railway Co. 509, 545 a Stone V. Lidderdale 293 V. Want 541, 542 Storer v. Gowen 17 Storey v. Ashton 402 Storm V. Livingston 39a Storr V. Crowley 843 Streeter v. Horlock 444, 455, 509 Strohn v. Detroit R. Co. 551, 595 Strong V. Natally 641, 642, 578 V. Nat. Bank Assoc. 290, 310, 349 Stuart V. Crawley 563, 576 Succession of Hiligsberg 297 Hi INDEX TO CASES CITED. Sullivan v. Philadelphia Railroad 592, 601 a u. Park 588 V. Scripture 399 V. Thompson 543 Sultana y. Chapman 545a Sumner v. Hamlet 296, ii99 Sunbelt' o. Alford 476, 476 a Sutton V. Buck 93 d, 93/ 133, 150, 152, 280, 443 Swain V. Shepherd 589 Swan V. Union Ins. Co. of Mary- land 515 Sweet V. Barney 496, 541 V. Pym 588 Swetland v. Boston & Albany R. Co. 511 Swett V. Brown 365 Swift I'. Fletcher 315 V. Moseley 394, 413 Swigert v. Graliam 217, 577 Swindler v. Hilliard 549 Swire v. Leach 303, 352 Syeds v. Hay 269, 414, 544 T. Taft V. Montague 441 a, 441 6 Tally V. Great Western R. Co. 499 Tally V. Treedman's Co. 299, 308 Tanner v. Oil Creek Railroad 643 Tarbill v. Central Railroad Co. 591 Tarbox v. Eastern Steamboat Co. 549 Tattan v. Great Western Railway Co. 590 Taylor v. Cheever 366 V. Cliester 291 V. Great Northern Railway Co. 509, 545 n, 550 u. Liverpool Steam Co. 512, 528, 549, 550 V. Monnot 475 V. Plumer 52, 102, 363, 682 V. Secrist 444 0. Whitehead 392 Teall 1'. Sears 602 Thames (Ship) 543, 546 a, 546 b, 560, 607, 611 Thayer v. Burchard 545 a V. D wight 299 V. Hutchinson 93 d, 133 !•. Mann 362 Thetis (Ship) 623 Thibaud v. Thibaud's Heirs 56 Thickstun v. Howard 472, 476, 477 Third Nat. Bank v. Boyd 41, 332, 338, 352 Thomas a. Boston & Providence R. R. Co. 446, 448, 600, 539, 543 f. Day 445 u. Rhymney Railway Co. 601a Section Thompson v. Andrews 297 u. Fargo 530 V. Harlow 405 V. Lacy 458, 470, 475, 476, V. Patrick 329, 331, 486 V. Toland 290, 322, 323, 359 Thome v. Deas 166, 168, 436 V. Tilbury 460, 582 Thornton v. Place 441, 441 a, 441 b Thorogood v. Marsh 569 Thorp u. Burling 94, 279 Three Friends (Ship) 624 Tibbetts V. Flanders 297 Tichburne v. White 5p5, 567 Tieman v. Jackson 103 Tierney v. N. Y. Central R. 549 Tittsworth v. Winnegar 444 Tobin V. Murison 410 Todd V. Figley 2, 269, 541, 578 „. Old Colony & Fall River Railroad Co. 590, 601 Toledo R. V. Lockhart 539 V. Roberts 551 Toledo, &c. B. v. Thompson 576 Tompkins v. Saltmarsh 2, 11, 16, 22, 63, 64, 181, 182 u, 339,410,454 Tooke V. Hartley 314 Tourtellot v. Rosehrook 410 Tower v. Utica, &c. R. R. Co. 499, 532 Townsend v. Newell 316, 366 Tracy v. Wood 17, 64 a, 67, 181, 183, 185, 186 Transit (Ship) 611 6 Transportation Co. v. Downer 612 a, 529 Tread well ;;. Davis 2y9 Treadwin v. Great Eastern R. Co. 554 Trefall v. Borwick 476 TreSiz v. Canelli 33, 81, 103, 104, 105 Treiher ". Burrows 481 Trent & Mersey Navigation Co. v. Wood 489, 507 a, 512 a, 518, 526, 528 Trent, &e. Co., In re. 422 a, 441 b Treuttel v. Barandou 323 Trotter v. McCall 396 V. White 620 Trowbridge v. Chapin 532 Tucker v. Buifington 297 V. Moreland 302 V. Taylor 440 V. Wilson 310 Tuckerman u. Brown 496, 501 V. Stephens Transp. Co. 512 a Tuller V. Cabot 593 Tunnell v. Pettijohn 495 Turley v. Thomas 599 Turrill v. Crawley 476 Tuttle V. Robinson 299 Tuxworth V. Moore 297, 850 Tyler v. Freeman 394 INDEX TO CASES CITED. liii Section Tyler v. TJImer 128, 131 Tyly V. Moriiee 495, 530, 5155, 567 Tyrrell v. Eastern E. 601 U. Ulmer v. Ulmer 188, 455 Union Steamship Co. u. New York Steamship Co. 608 Union Express Co. v. Graham 529, 649, 563 United States v. Hooe 300 V. Wheat 25 V. Wilder 583 United States Exp. Co. w. Backman 649 V. Meints 338 Upshare v. Aidee 498, 500 Urquhart v. M'lves 325, 326 V. Vail V. Pacific R. 529 Van Amrirge v. Peabody 326 Van Blarcom o. Broadway Bank 314, 327 Van Brunt v Schenck 39 a Van Bnskirk v. Koberts 601 a Van Horn c. Kermit 499 Van Toll v. South Eastern R. 551 Van Winkle v. South Carolina 529 Vance v. Throckmorton 472, 477, 483 Vanderplank v. Miller 608 a Vanderzee u. Willis 304, 310, 348 Vandrink v. Archer 87 Vaughan v. Menlove 11, 16, 22, 174, 233, 239 V. Webster 405, 416 Vaughton v. London, &c. R. Co. 554 Vaupell V. Woodward 310 Vaux V. Sheffer 608 a Vedder v. Fellows 603 Velasquez (Ship) 6115 Vennall v. Gerner 608 a Vere v. Smith 335, 406, 455 Vermont, &c. R. R. Co. v. Fitch- burg R. R. Co. 496 Verner v. Sweitzer 495, 496, 551 Verrall v. Robinson 107 Vest V. Green 300 Vicksburg R. Co. v. Howe 600 Vincent v. Rather 444, 450 a Vinton V. Middlesex R. 601, 603 Volant, The 608 c W. W. & A. Railroad v. Kelly 589 Wade V. Thayer 481 Wadsworth v. Allcott 283 V. Thompson 359 Section Wakeman v. Gowdy 321 Waland v. Elkins 593, 5'96, 598 Walcott V. Keith 297, 299 Walker v. Birch 304 c.. Boston Ins. Co. 608 d V. Jackson 567 V. Maitland 515 V. Staples 287, 290, 297, 299 V. Taylor 323 V. Transportation Co. 608 d V. York & North Midland Railway Co. 549, 551, 560 Wallace v. Canaday 444 ■,-. Cook 205 c^. Matthews 450, 582 Waller v. Parker 25, 437 Walley v. Wray 529 Walling V. Potter 475, 477 Walpole V. Bridges 489, 511 Walsh V. Whitcomb 209 Walter v. Brewer 501 Walton V. Waterhouse 392 Ward V. Fellers 349 w. Macauley 93?>, 93 c V. Sumner 287, 288 Warden v. Mourillyan 496, 640, 543 Warden v. Greer 492 o Ware, In re 415 V. Gay 593, 601 a Wareham Bank v. Burt 582 Waring, Ex parte 359 V. Clarke 687 Warner v. Martin 324, 326 Warren v. Fitchburg Railroad 592 w. Leland 93 6,126,133,394 V. Milliken 283 Washburn v. Jones 472, 477 V. Pond 310 Washington, The, & The Gregory 608 a Waterman v. Brown 346 V. Gibson 140, 153 V. Robinson 93 6, 93 rf, 93 f, 133, 280 Waters v. Merchants' Louisville Insurance Co. 512 a, 515, 519 a, 526 Watkins v. Roberts 240, 408 Watkinson v. Laugliton 528 Watson V. Ambergate, &c. Rail- way Co. 538 Watson V. Cross 470, 476 V. King 209 Watts V. Boston & Lowell R. Co. 537 Waugh V. Denham 588 Way V. Davidson 299, 364 V. Great Eastern R. 554 Wayde v. Carr 599 Webb, In re 448, 452, 539, 541, 543 «. Fox 93rf, 93A, 93j' Webber v. Great Western Railway Co. 538 Wedlake v. Hurley 103 liY INDEX TO CASES CITED. Section Weed V. Panama R. 597 u. Sarat. & Schenec. Rail- road Co. 506 Weisenger v. Taylor 472, 479 Weld V. Hadley 261 Welfare v. Loudon & Brighton Railway Co. 410, 601 a, 603 Weller v. London R. 600 Welles V. Thornton 450 Wells V. Ross 202 V. Steam Navigation Co. 32, 496, 549, 554 V. Wilmington Railroad 532 Welsh V. Pittsburg Railway Co. 549, 562 Wentworth v. Day 121, 621 V. McDuflBe 396, 413 West Chester R. v. Miles 591 a West V. London, &c. R. Co. 508 u. Murph 107 V. Steamboat Berlin 511 Westoa V. Grand Trunk Railway 545 o Weyland v. Elkins 506, 596 Whaite w. Lancashire B. 554 Whalley v. Wray 399, 492a, 496 Wheatley v. Low 2, 98, 171 6 Wheeler v. M'Earland 353 V. Newbould 310, 321 Wheelock v. Boston & Albany R. 601 V. Wheelock 100 V. Wheelwright 232, 269, 380, 413, 413 rf Whelden v. Chappel 379 Wliitakerv. Sumner 297,299,303,315, 324, 327, 350, 366 White V. Boulton 498, 601 V. Humphery 422, 444, 447 V. McDonough 605 V. Phelps 290, 321 V. Philbrick 276 V. Vann 588 W.Webb 93 c V. Winnisimmet Co. 457, 496, 53.3, 576 White Mountains R. R. Co. v. Bay State Iron Co. 290 Whitehead v. Greetham 2 Whitesell v. Crane 499 Whitesides v. Russell 512a, 529, 539 0. Thurlkill 512 Whitfield V. Despencer 461, 462, 463 Whitlock V. Heard 443 V. Stewart 340 Whitmore o. Steamboat Caroline 499, 530 Whitney v. Lee 71, 88, 171c, 181,450 a V. Peay 324 V. Tibbits 297 Whittier v. Smith 105, 125, 126, 129, 132, 266 Whitwell V. Brigham 366 Section Wibert v. N. Y. & Erie R. Co. 545 a Wiggin V. Boston & Albany K. 567 Wiggins V. Hathaway 463 Wilbraham u. Snow 39 a, 685 Wilby V. West Cornwall Railway Co. 538 Wilcox V. Fairhaven Bank 300, 312 Wiley V. First Nat. Bank 41 Wilkie V. Bolster 593 Wilkins v. Earle 481 WUkinson v. Coverdale 166, 172 V. King 102, 396, 413 V. Verity 107 Willard v. Bridge 414, 450 V. Beinhart 475 William (Ship) 66,67,615,616 Williams v. Cranston 507 w. East India Company 213 V. Everett 103 V. Grant 497, 511, 512, 550 u. Great Western R. 603 V. Hide 30 V. Jones 223 V. Landry 47 V. Lloyd 70 u. Schr. St. Stephens 320 V. Taylor 577 V. Vanderbilt 605 Williamson v. Barrett 611 V. Clements 2, 171a u. MoClure 315 V. White 487 Willoughby u. Backhouse 582a V. Horridge 496 Wilmot V. Smith 441 c Wilson V. Anderton 102, 105, 107, 266, 281, 582 V. Barker 39 u- V. Brett 17 V. Freeman 572 V. Grand Trunk Railway 499 V. Guyton 121, 621 V. Harry 506 V. Lancashire & Yorksliire Railway Co. 545 a V. Little 287, 290, 308, 310, 349 V. London Steam Nav. 544 V. Martin 440 V. Wilson 153, 189 b 0. Y. & M. R. Co. 22 Wilsons V. Hamilton 496, 576 Wilton c^. Atlantic Royal Mail Steam Co. 556, 601 V. Middlesex R. 590 Winkley v. Foye 103, 104, 119, 122 Winslow, R. G., The 445 Winslow V. Vt. & Mass. R. R. 545 A Winterbottom v. Wright 403 a Wintermute v. Clark 475, 477 Wise V. Great Western Railway Co. 448 Wiser v. Chesley 62, 410, 475, 477 INDEX TO CASES CITED. Iv Section Witherly v. Regent's Canal Co. 601 Witowski V. Brennan 130 Wolf V. Am. Express Co. 611 V. Summers 498, 604 V. Wolf 294, 300 Wood V. Churley 297 V. Hayes 326 V. McClure 237 Woodard v. Eastern Counties Kail- way Co. 603 Woodbury v. Frink 529 Wooden v. Austin 496 Woodger v. Great Western Railway Co. 545 a Woodleife v. Curteis 526 Woodman v. Hubbard 879, 392 Woodrop Sims. The 607, 608, 608 a, 608 6, 608 c, 611 WoodrufE V. Sherrard 551 Woods V. Devin 499 Woodward v. Cutter 403 a Woodworth v. Morse 472, 481, 485 Woolf u. Beard 608 a Word V. Morgan 321 Wordsworth v. Willan 598, 599 Worley v. Cincinnati, &c. E. 602 Worth V. Edmonds 511 V. Viner 417 a Worthington v. Tormey 290, 310 Section Wren v. Eastern Counties Railway Co. 695 V. Kirton 621 Wright V. Caldwell 499, 532 V. Snell 586, 589 Wyatt V. Great Western R. 601 Wyld V. Pickford 17, 570, 571 Yale V. Oliver 25, 444 Yates V. Bell 103 V. Railston 68 e Yonge V. Kinney 601 a York Co. V. Central Railroad Co. 549 York, &c. R. Co. v. Crisp 545 a York V. Grindstone 477 Youl V. Harbottle 396, 413, 414, 546, 671 Young V. Kimball 476 V. Lambert 297 V. Smith 538 Z. Zemp V. W. & M. Railroad Co. 601 a Zinn V. New Jersey Steamboat Co. 548 COMMENTARIES LAW OF BAILMENTS. CHAPTER I. ON BAILMENTS IN GENERAL. [§ 1. Importance of the Law of Bailments. 2. Definition of Bailments. 3. Division of Bailments into three sorts [with reference to the benefit derived. | . 4. Deposit, definition of. 5. Mandate, definition of. 6. Gratuitous Loan for use, definition of. 7. Pledge or Pawn, definition of. 8. Hiring, definition of, and various sorts of. 9. Obligations of Bailee in diflferent sorts of Bailments. Diflerence of Legal and Moral Obligation. 10. The same subject. 11. Diligence, three diflferent degrees of. Ordinary Diligence, what is. 12. Standard of Diligence variable. 13. And diflferent in different Countries and Ages. M, Diligence affected by Customs, and Usage of Trade and Business. 15. And by Nature, Bulk, and Value of Articles. 16. High or Great Diligence, what is. Low or Slight Diligence, what is. 17. Degrees of Negligence, — Slight, Ordinary, and Gross. 18. The like degrees in the Civil Law. 19. Gross Negligence, whether equivalent to Fraud. 20. The same subject. 20 a. The same subject. 20 b. The same subject. 21. The same subject. 22. The same subject. 23. Degree of Diligence required in different sorts of Bailments at the Com- mon Law. 24. And in the Civil Law. 25. Bailees not generally liable for inevitable accident, — what is such. Irre- sistible force, what is. # 1 2 BAILMENTS IN GENERAL. [CH. I. § 26. Eobbery, how far deemed Irresistible Force. 27. Theft, how far deemed Irresistible Force. 28. Burglary, how far Irresistible Force. 29. Other cases of Casualties at the Common Law. 30. And in the Civil Law. 31. Exception in cases of Special Contract. 32. Bailee cannot contract against his own Fraud. 33. Responsibility of Bailee may be enlarged by Special Contract. 34. So by the Civil Law. •35. Effect of Special Contract to keep safely: whether Bailee is hable for Bobbery or Theft. 36. Or, in such case, liable for Accidents. 37. How far such a Bailee is liable by the Civil Law. 38. Private Theft, whether Presumptive of Fraud at the Common Law. 39. The same subject. 39 a. Liability of second Bailee to the original Bailor when the second Bail- ment is made without right. 40. Confusion of Property by Bailee.] Sect. 1. The Law of Bailments lies at the foundation of many commercial contracts, and therefore is entitled to receive a distinct and independent consideration. It is of perpetual, although tacit, reference in the law of shipping and factorage ; and a just understanding of it seems prelim- inary to a full discussion of those heads, as well as of many other important heads in our jurisprudence. § 2. The term Bailment is derived from the French word bailler, which signifies to deliver.^ It is a compendious ex- pression to signify a contract resulting from delivery. Sir William Jones has defined bailment to be, " A delivery of goods on a condition, express or implied, that they shall be restored by the bailee to the bailor, or according to his direc- tions, as soon as the purpose for which they are bailed shall be answered." 2 He has again, in the closing summary of his Essaj', defined it in language somewhat different, as " A delivery of goods in trust, on a contract expressed or implied, that the trust shall be duly executed, and the goods redeliv- ered, as soon as the time or use for which they were bailed shall have elapsed, or be performed." ^ Each of these defini- tions seems redundant and inaccurate, if it be the proper 1 2 Black. Comm. 451; Jone3 on Bailm. 90. See 1 Dane, Abr. oh. 17, art. 2. 2 Jones on Bailm. 1. s Jones on Bailm. 117. CH. I.] BAILMENTS IN GENERAL. 3 office of a definition to include those things only which be- long to the genus or class. Both of these definitions suppose that the goods are to be restored or redelivered. But in a bailment for sale, as in the case of a consignment to a factor, no redelivery is contemplated between the parties.^ In some 1 Mr. Chancellor Kent, in his learned Commentaries, has expressed a doubt whether a consignment to a factor constitutes a case of bailment; and he says, that, in the present work on bailments, the term is applied to cases in which no return, or delivery, or redelivery to the owner or his agent is contemplated. He then adds: "But I apprehend this is extending the definition of the term beyond the ordinary acceptation of it in the English law." 2 Kent, Comra. Lect. 40. I regret that I cannot concur in this opinion. According both to Lord Holt and Sir William Jones, a consign- ment to a factor for sale falls within the meaning of the term, bailment ; and, indeed, it is difficult to perceive why it should not, if a bailment be a delivery for some special purpose. Lord Holt, in Coggs v. Bernard (2 Ld. Raym. 917, 918), in enumerating the various classes of bailments, says: " As to the fifth sort of bailments, namely, a delivery to carry, or otherwise manage for a reward to be paid to the bailee, these cases are of two sorts; either a delivery to one that exercises a public employment, or a delivery to a private person." He then proceeds to state, that of the first sort is the case of a common carrier, a common hoyman, a master of a ship, &c. He then adds: " The second sort are bailees, factors, and such like. And though a bailee is to have a reward for his management, yet he is only to do the best he can. And if he be robbed, &c., it is a good account. And the reason of his being a servant is not the thing; for he is at a distance from his master, and acts at discretion, receiving rents and selling corn, &c." And then, after stating the extent of his liability, he adds: " The same law [is] of a factor." Sir William Jones, speaking upon the subject of the different degrees of dili- gence required of different bailees, says: " When a person, who, if he were wholly uninterested, would be a mandatary, undertakes for a reward to per- form any work, he must be considered as bound still more strongly to use a degree of diligence adequate to the performance of it, &c. This is the case of commissioners, factors, and bailiffs, when their undertaking lies in fea- sance, and not simply in custody." Jones on Bailm. 98. Whether the delivery be for a reward, or without a reward, for custody or for feasance, makes no difference as to the case being a bailment, and the persons to whom the delivery is made being bailees, in the strictest sense of the term. Indeed, persons, to whom goods are delivered for sale (as factors are), are constantly treated in the old books as bailees. Thus, in KoU. Abridg. Accompt, 118, 1. 35, it is said: "If a man bail goods to another to sell, and he sells them accordingly, and receive the money, the bailor ought to charge him as bailee, and not as receiver." So in 1 Eoll. Abridg. Ac- compt, 119, 1. 25, it is said: "If a man make another the bailee of his wood, to put the same on sale, he ought to be charged as bailee, although 4 BAILMENTS IN GENERAL. [CH. I. cases no use is contemplated by the bailee ; in others, it is of the essence of the contract ; in some cases, time is material to terminate the contract ; in others, time is necessary to give a new accessorial right. Mr. Justice Blackstone has defined a bailment to be, "A delivery of goods in trust upon a contract, expressed or implied, that the trust shall be faithfully executed on the part of the bailee ; " ^ and in another place, as a " Deliv- ery of goods to another person for a particular use."^ It may, perhaps, be doubted whether (although generally true) a faithful execution (if by faithful be meant a conscientious diligence or faithfulness, adequate to a due execution), or a particular use (if by use be meant an actual right of user by the bailee), constitutes an essential or proper ingredient in all cases of bailment. Mr. Chancellor Kent, in his excellent he has not sold it." 8. p. Com. Dig. Accompt, A. 3; Year Book 41 Edw. 3, 3. [So, receiving goods from another, upon an agreement to sell and account for them to the owner, or to return them as good as when taken, with interest, has been held to be a bailment, and not a sale. Morss v. Stone, 5 Barbour, 516. See Hunt v. Wyman, 100 Mass. 198.] See also Southcote's case, 4 Co. Rep. 83, 84; 1 Bell, Comm. § 202, 407, 408, 4th edit.; 1 Bell, Comm. p. 259, 476, 5th edit. ; Ersk. Inst. B. 3, tit. 1, § 16, 17, 26; Id. tit. 3, § 31 to 39 ; 1 Stair, Inst. B. 1, tit. 12, § 1, 9, 19. {Bailment has reference to the treatment of a certain chattel or chattels, whose identity is to remain unchanged while the special purpose of the delivery is being accomplished. It is the identical thing, not an equiva- lent, which should be finally returned or delivered over. This cardinal principle may aid in distinguishing between bailment and sale. See 2 Sch. Pei-s. Prop., 704, 705. Again, the bailee holds a chattel with pos- session and the right of possession, but with no full right of property, or with only, as it is said, a special property. See Hunt v. Wyman, 100 Mass. 198 ; Becker v. Smith, 59 Penn. St. 469 ; Maxwell v. Houston, 67 N. C. 305; Bulkley v. Andrews, 39 Conn. 70; Foster v. Pettibone, 7 N. Y. 433. A seller with the goods still in his custody is a. bailee after the property has passed out of him. 2 Sch. Pers. Prop., 411, 696. And see Kohler V. Hayes, 41 Cal. 455; Duncan v. Stone, 45 Vt. 118. One may even make himself liable as a constructive bailee upon compulsion, or upon judicial seizure, or because of embezzling or intermeddling with another's goods. See Leavy v. Kinsella, 39 Conn. 50 ; Hobson v. Woolfolk, 23 La. Ann. 384; post, § 613. On the whole, it may be well conceived that one, occupying a certain legal relation whose full exposition does not belong to treatises like the present, may yet become so situated with reference to a certain chattel as to fairly subject himself to the doctrines of bailment, j 1 2 Black. Comm. 451. 22 Black. Comm. 395. CH. I.J BAILMENTS IN GENERAL. 6 Commentaries,' has blended, in some measure, the definitions of Jones and Blackstone. Without professing to enter into a minute criticism, it may be said that a bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust.^ > 2 Kent, Comm. Lect. 40, p. 558, 4th edit. ^ The late Mr. Wallace of the Philadelphia Bar, in an able article in the American Jurist for January, 1837, vol. 16, p. 253 to 285, insists that the definitions here given, as well as those of Mr. Justice Blackstone and Sir William Jones, are inaccurate in stating, that a bailment is a delivery upon a contract express or implied, because, in two classes of bailments, namely, mandates and deposits, there is no contract expressed or implied. His argument, in substance, is, that every contract presupposes a sufficient con- sideration, in point of law, to sustain it; and that, as there is no sufficient consideration moving to the bailee in cases of mandates and deposits, as the bailee in both cases acts gratuitously, there can be no ground to say, that either of them is founded upon contract. It appears to me that there is more of legal astuteness and technical refinement in this objection than of truth. The word contract, like many other words, is often used in difier- ent senses. It is often used as equivalent to engagement, or undertaking, or promise, without any reference to the fact whether there be a sufficient consideration to support an action at law to enforce the engagement, or undertaking, or promise, or not. Thus, we often say that a particular person has promised, engaged, undertaken, or contracted, to do a gratuitous act, as, to write a review, to deliver a message, to deliver a book, to pay a bill for another. This, however, is not the sense in which the word con- tract is used in the definitions above referred to. They refer to such a contract, engagement, undertaking, or promise, as is founded on a suffi- cient consideration, and is capable of being enforced at law. And it seems to me very clear, both upon principle and authority, that in every case of a deposit, and of a mandate, there is such a contract, founded on a sufficient consideration, and capable of being so enforced, whenever the bailment has been executed by a delivery of the thing to the bailee. In the case of a deposit, no one can doubt, that there is an engagement or promise to redeliver the thing to the bailor. The latter parts with his possession of it upon the faith of the due fulfilment of that engagement or promise ; and it cannot make any difference in relation to the legal validity of that engagement or promise, whether the bailee has expressly promised to redeliver it to the bailor, or whether it is inferred by impli- cation from the acts and intentions of the parties. In each case the con- sideration is precisely the same. What is the consideration? It is on the part of the bailor yielding up his present possession, custody, and care of the thing to the bailee, upon the faith of his engagement or 6 BAILMENTS IN GENERAL. [CH. I. § 3. Bailments are properly divisible into three kinds. 1. Those in which the trust is exclusively for the benefit of promise to redeliver it. It is true that the bailee may derive no benefit from the deposit. But that is not the only source of legal considerations. A detriment, or parting with a present right, or delaying the present use of a right on the part of the promisee, is a sufficient consideration to sup- port a contract by the promisor, although the promisor derives no benefit whatever from it. In Comyns's Digest, Action on the Case, Assumpsit B., it is laid down, that the consideration, upon which an assumpsit shall be founded, must be for the benefit of the defendant, or to the trouble or prejudice of the plaintiff. Thus, a forbearance of a suit against a stranger is a sufficient consideration to support a promise from the de- fendant. So, proof of a debt against a third person is a sufficient con- sideration for a promise by the defendant to pay a debt, if made at his request. So, doing any act, at the request of another, is a sufficient consideration of a promise, although the act i.s no benefit to the promisor. So, a promise to give A. £100, if he would go to Rome, would be founded on a sufficient consideration to support an action for the money, if, upon the faith of the promise, A. went to Rome, although no benefit might accrue to the promisor; for, in such a case, it is a trouble, or labor, or detriment to A. See Comyns's Digest, Action on the case upon Assump- sit, B. 1, 3, 4, 6, 11; Williamson v. Clements, 1 Taunt. 523; Longridge V. Dorville, 5 Barn. & Aid. 117. There is a clear distinction between the effect of a gratmtous engagement to take a thing on deposit, where the engagement is wholly unexecuted on both sides, and a like engagement, where the bailment has been completely executed on the side of the de- positor by a delivery to and receipt by the bailee. In the former case, the engagement, being executory, cannot be enforced, it being purely voluntary ; in the latter case, the bailment being executed, it becomes a valid and obligatory contract upon the bailee to perform the duty of re- delivery, expressly or impliedly resulting from his engagement. The distinction was expressly put in the Year Book, 2 Hen. 7, 11, and still more pointedly by Lord Holt, in Coggs v. Bernard (2 Ld. Raym. 919, 920), where he said: " But secondly, it is objected, that there is uO considera- tion to ground this promise upon (it was the case of a mandate to carry) and, therefore, the undertaking is but nudum pactum. But to this I answer, that the owner's trusting him with the goods is a sufficient con- sideration. Indeed, if the agreement had been executory, to carry these brandies from one place to another such a day, the defendant had not been bound to carry them. But this is a different case ; for assumpsit does not only signify a future agreement, but, in such a case as this, it signifies an actual entry upon the thing, and taking the trust upon him- self. And, if a man will do that, and miscarries in the performance of his trust, an action will lie against him for that, though nobody could have compelled him to do the thing." The very point arose in Riches v. CH. I.j BAILMENTS IK GEKERAL. 7 the bailor, or of a third person ; 2. Those in which the trust is exclusively for the benefit of the bailee ; and, 3. Those in Brigges, Yelv. 4 ; s. c. Cro. Eliz. 883, where the question was, whether if A. delivers goods to B., and B., in consideration thereof, promise to redeliver the goods, an action will lie upon the promise against B. And it was held, that the delivery was a good consideration to support the action. This judgment was afterwards reversed, and judgment given to the de- fendant in a writ of error. But in Game v. Harvie, Yelv. 50, the whole Court said the reversal was wrong. In Pickas v. Guile, Yelv. 128, the doctrine was, however, maintained, that no action would lie in such a case, for want of a sufficient consideration. The doctrine was again re-exam- ined in Wheatly v. Low, Cro. Jac. 668; s. c. Palmer, 281, where there was a mandate of money, not goods, and it was finally estahhshed, that there was a sufficient consideration to support the action ; and this last judgment was affirmed in error. Lord Holt, in Coggs v. Bernard (2 Ld. Baym. 920), recognized, in the fullest manner, the authority of this last case, and said, that the reversal of the case was grumbled at, and finally the contrary doctrines solemnly adjudged. He then added: " And yet, there is no benefit to the defendant, nor no consideration in that case, but the having the money in his possession, and being trusted with it ; and yet, that was held to be a good consideration. And so a bare being trusted with another man's goods must be taken to be a sufficient consideration, if the bailee once enter upon the trust and take the goods into his possession." See also Jones on Bailm. 51; Mytton v. Cock, 2 Str. 1099. The modern cases of Whitehead v. Greetham, 1 M'Clel. & Younge, 205; s. c. 2 Bing. 464; Doorman i'. Jenkins, 2 Adolph. & Ellis, 256 ; s. c. 4 Nev. & Mann. 170; [Robinson u. Threadgill, 13 IredeU, 39 ;] Shiells v. Blackburne, 1 H. Bl. 115; and Shillibeer v. Glyn, 2 Mees. & Welsh. 143, seem fully to sustain the doctrine, that a delivery of the thing bailed is a sufficient consideration to support an action of assumpsit in cases of this sort. It might be added, that, in cases of deposits and mandates, the law imposes mutual and reciprocal obligations on each of the parties, where there is an executed bailment, and these reciprocal obligations constitute mutual and reciprocal considerations. See also, 1 Bell, Comm. § 199, 202, 4th edit. ; 1 Bell, Comm. p. 258, 5th edit., and Ersk. Inst. B. 3, tit. 1, § 16, 17, 26; Id. tit. 3, § 31 to 39; 1 Stair, Inst. B. 1, tit. 10, § 10, 12; Id. tit. 12, § 1, 3, 10; Tompkins ». Salt- marsh, 14 Serg. & Rawle, 275 ; Rutgers v. Lucet, 2 Johns. Cas. 92. See also, Pothier on Oblig. n. 138, 139. In respect to the form of action, it seems, that in most, if not in all cases of bailment, the bailor has his election of a remedy against the bailee for negligence, misfeasance, or tort, either by an action on the case, or of assumpsit. It is not my design to answer the comments of Mr. Wallace ; but merely to suggest some of the grounds, on which I still retain the opinion, in common with Mr. Justice Blackstone, Sir William Jones, Lord Holt, and Mr. Chancellor 8 BAILMENTS IN GENERAL. [CH. I. which the trust is for the benefit of both parties, or of both or one of them and a third party. The first embraces Depos- Kent, that every bailment involves a contract, express or implied. " A bailment of goods," said Sir James Mansfield, "to be redelivered, im- ports an agreement to redeliver. All special bailments import a contract to redeliver, when the purpose for which the goods were deposited is answered." Mills v. Graham, 4 Bos. & Pull. 140, 145. See also, Smedes V. Bank of Utica, 20 Johns. 377, 885; s. c. in Error, 3 Cowen, 662; Bank of Utica v. M'Kinster, 11 Wend. 473 ; Todd v. Figley, 7 Watts, 542. A learned writer in the English Monthly Law Magazine for April, 1839, has defined a bailment to be a " delivery of a chattel from one person to another, for a special object or purpose; " and he has criticised the definition in the text as redundant and inaccurate ; because, in the first place, every trust involves a contract to conform to the object or purpose of the trust; and secondly, the term "trust" is ambiguous, inasmuch as, in strict legal phraseology, it is confined to express that particular species of confidence, which, as Blackstone observes, remains a kind of peculium in the courts of equity. The supposed redundancy, of which the learned writer complains, brings him in direct conflict with the opinion of Mr. Wallace, above stated; for, so far from a contract being implied in all cases, Mr. Wallace, as we have seen, contends, that, in some classes of bailments, there is no contract at all. In respect to the supposed inaccuracy in calling a, bailment a trust, for which Black- stone is cited, it will be found, that Blackstone, in the passage cited, is so far from considering the ■« ord, trust, as limited in its meaning to such a trust as is within the jurisdiction of a court of equity, that he distin- guishes that peculiar sort of trust by the term " a technical trust," and treats bailments as appropriately falling within the general definition of a trust, in the language of the law. The whole passage is as follows : " A technical trust, indeed, created by the limitation of a second use, was forced into courts of equity, in the manner formerly mentioned; and this species of trust, extended by inference and construction, have ever since remained as a kind of peculium in those courts. But there are other trusts which are cognizable in a court of law; as deposits, and all manner of bailments." 3 Black. Comm. 431, 432. And Blackstone's own defi- nition of bailments, cited in the text, speaks of a bailment as being a trust upon a contract. Indeed, the main distinction between his defini- tion, and that relied on in the text, is the omission of the word " faith- fully," and of "a particular use." If, by the word "faithfully," Blackstone merely meant, with a just regard of adherence to duty, or with a due observance of his undertaking or contract, which will in sub- stance be found among the definitions of Dr. Johnson, then the definition is sufficiently exact. If, on the other hand, by " faithfully " he meant a conscientious diligence or faithfulness, adequate to the due execution of the object of the bailment, then there is reason to doubt, if, in all cases CH. I.] BAILMENTS IN GENERAL. > 9 its and Mandates ; the second, Gratuitous Loans for Use ; and the third, Pledges or Pawns, and Hiring, and Letting to Hire.^ of bailments, that is required. See post, § 175 to 187. But, if by "faithfully" he meant merely honestly, uprightly, or without fraud, ■which also will be found among Dr. Johnson's definitions, then the word is misplaced; for an honest, upright performance of the duty, without fraud, is not, in all cases of bailment, sufficient to exempt the bailee from responsibility. In the last sense, the word has no proper place in the definition ; in the first, it may mislead by its ambiguity ; and the sense of the definition is complete without it. The other part of the writer's criticism is well founded. There was an inaccuracy in the former edition in using the word "diligent" as the equivalent of "faithful," without other explanatory words. I have endeavored now to make my meaning more clear. The learned critic's own definition has the merit of conciseness, and, perhaps, is entirely unexceptionable. And yet, it may admit of some doubt whether it is complete. If all bailments are, as he supposes, founded in contract, that circumstance should constitute a part of the definition. If all bailments are founded on a trust, that also is a proper ingredient. The omission of both of these would seem, therefore, to be a defect; for the very object of a definition is to present to the mind of the reader all the material ingredients necessary to explain and limit the meaning. Indeed, if one were disposed to refine, it might be said, that game delivered to a friend to be eaten at his own table, or wine delivered to a friend to be drunk at the marriage of his daughter, was a bailment within the very words of his definition ; for it would be the delivei-y of a chattel from one person to another for a special object or purpose ; and yet it would not be doubted, that it was, in fact, not a bailment, but a gift. See post, § 228. It may be added, that a bailment is strictly a trust in the common juridical sense of the word; and that a technical trust in lands in courts of equity is but a species of the generic appellation. Comyns, in his Digest (Chancery, 4 W. 5), says: " So, if a man gives goods or chattels to another upon trust to deliver them to a stranger. Chancery will obhge him to do it." No one can doubt that such a delivery is a bailment; and this statement is made by Comyns upon his own great authority. After all, in cases of this sort, one is often reminded of the sound admonitions of the maxims of the civil and the common law. Nimia subtilitas in lege reprobatur. Omnis definitio in lege periculosa est. | It is now generally conceded that all bailments with or without recompense are contracts upon sufficient consideration. The yielding up of the custody by the bailor, on the faith of the bailee's engagement to do something to the chattel, is enough, where no promise of recompense is expressed or implied. See Clark v. Gaylord, 24 Conn. 484; McCauley v. Davidson, 10 Minn. See the English Monthly Law Magazine for April, 1839, p. 216, 217. 10 BAILMENTS IN GENEKAL. [CH. I. § 4. A Deposit is commonly defined to be a naked bailment of goods to be kept for the bailor without recompense,^ and to be returned when the bailor shall require it. The appellation and the definition are both derived from the civil law. " De- positum est, quod custodiendum, alicui datum est." ^ § 5. A Mandate is commonly defined to be a bailment of goods without reward, to be carried from place to place, or to have some act performed about them.^ This appellation also is derived from the civil law. " Mandantis tantum gratiS, intervenit mandatum," is the language of the Institutes ; * " Mandatum, nisi gratuitum, nullum est," is that of the Pandects.^ § 6. A Loan for Use, called in the civil law Commodatum, is a bailment of goods to be used by the bailee temporarily, or for a certain time without reward.^ The same definition is given in the civil law : " Commodata autem res tunc proprie intelligitur, si null§, mercede accepta vel constitute,, res tibi utenda data est. Gratuitum enim debet esse Commodatum." ^ 418 ; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278 ; Mariner v. Smith, 5 Heisk. 203. Nor need the recompense be in money; for a contingent or indirect benefit, such as the opportunity of getting more business, may render the bailment in substance a bailment with recom- pense. Newhall v. Paige, 10 Gray, 368.} 1 Jones on Bailm. 36, 117. See also, 1 Bell, Comm. § 199, 4th edit. ; 1 Dane, Abr. ch. 17, art. 2, § 3 ; 2 Kent, Comm. Lect. 40, p. 560, 4th edit. ; 1 Stair, Inst. B. 1, tit. 18, § 1. ' Dig. Lib. 16, tit. 3, 1. 1 ; Just. Inst. Lib. 8, tit. 15, § 3; 1 Domat, Civ. Law, B. 1, tit. 7, § 1 ; Pothier, tit. Traite du Contrat de Depot, art. prelim.; Wood, Inst. Civ. Law, B. 3, ch. 2, p. 216 ; Vinnius in Inst. Lib. 3, tit. 15; Heinec. Elem. Jur. Lib. 3, tit. 15, § 1791; 2 Kent, Comm. Lect. 40, p.' 568, 3d edit. 3 Jones on Bailm. 36, 117. See also, 1 Bell, Comm. § 202, 4th edit. ; 1 Bell, Comm. p. 259, 5th edit. ; 1 Dane, Abr. ch. 17, art. 5; 1 Stair, Inst. B. 1, tit. 12, § 1. * Inst. Lib. 3, tit. 27, § 1. 6 Dig. Lib. 17, tit. 1, 1. 1. See also, 1 Domat, B. 1, tit. 15, § 1; Pothier, Traitfe de Mandat. art. prelim. ; Wood, Civ. Law, B. 3, ch. 5, p. 242. 8 Jones on Bailm. 36, 117. See also, 1 Bell, Comm. § 197, 4th edit. ; 1 Bell, Comm. p. 255, 5th edit.; 1 Dane, Abr. ch. 17, art. 2; 2 Kent, Comm. Lect. 40, p. 573, 4th edit. ; 1 Stair, Inst. B. 1, tit. 11, § 8. ' Inst. Lib. 3, tit. 15, § 2 ; Pothier, Trait6 de Pret. k Usage, art. pre- CH. I.] BAILMENTS IN GENERAL. 1] It differs from what is called in the civil law a Mutuum in this, that in a Gommodatum the goods are lent to be specifically returned ; in a Mutuum the goods are to be consumed, and are to be repaid in property of the same kind.^ Thus, corn or wine, delivered to one to be consumed, and to be repaid in kind, is a case of Mutuum; but if a horse be gratuitously lent for a journey, it is a case of Commodatum. § 7. A Pledge, or Pawn, is a bailment of goods to a cred- itor as security for some debt or engagement.^ In the civil law, that was properly called a Pignus (pledge), where the thing was delivered to the creditor. If it remained with the debtor, although pledged as security, it was called an Hypotheca (Hypothecation). "Proprie Pignus dicimus, quod ad creditorem transit ; Hypothecam, cum non transit, nee possessio ad creditorem.^ § 8. A Hieing, called in the civil law Locatio-Conductio, is a bailment always for a reward or compensation.* It is divisible into four sorts. 1. The hiring of a thing for use (^Locatio Rei). 2. The hiring of work and labor (JLocalio Operis Fadendi). 3. The hiring of care and services to be performed or bestowed on the thing delivered {Locatio Cus- todice). 4. The hiring of the carriage of goods (^Locatio Operis Mercium Vehendarurn) from one place to another.^ lim. ; Wood, Civ. Law, B. 3, ch. 1, p. 215; Dig. Lib. 13, tit. 6; 1 Domat, B. 1, tit. 5, § 1. 1 Inst. Lib. 3, tit. 15, § 2; Wood, Civ. Law, B. 3, ch. 1, p. 212; Pothier, Traite de Pret. de Consumption, art. prelim.; 1 Bell, Comm. § 197, 4th edit.; 1 Stair, Inst. B. 1, tit. 11, § 1 to 7. 2 Jones on Bailm. 36, 117 ; Inst. Lib. 3, tit. 15, § 4; Wood, Civ. Law, B. 3, ch. 2, p. 218; 1 Bell, Comm. § 200, 4th edit. ; 2 Kent, Comm. Lect. 40, p. 577, 3d edit. ; 1 Stair, Inst. B. 1, tit. 13, § 11; 1 Dane, Abr. ch. 17, art. 4, § 1. s Dig. Lib. 13, tit. 7, 1. 9, § 2; Lib. 20, tit. 1; 1 Domat, B. 3, tit. 1, §1- * [But this compensation need not be necessarily certain. It may be contingent, uncertain, and indirect; as in other cases of contracts. The nature and amount of the consideration are immaterial. The real ques- tion is, was the contract made for a consideration. Newhall o. Paige, 10 Gray, 368.] 6 Jones on Bailm. 36, 117; Wood, Civ. Law, B. 3, ch. 5, p. 235; Inst. Lib. 3, tit. 25; Dig. Lib. 19, tit. 2; Pothier, Traite de Louage, 12 BAILMENTS IN GENEEAL. [CH. I. The last three are but subdivisions of the general head of hire of labor and services. These divisions, it will at once be perceived, are borrowed from the civil law; and they have been transferred into our law by the elaborate opinion of Lord Holt, in the case of Coggs v. Bernard,^ and by the ele- gant genius of Sir William Jones, in his Essay on Bailments.^ Upon these definitions of the different kinds of bailments we shall have occasion more particularly to comment hereafter.^ § 9. It must be obvious upon the slightest consideration, that these various classes of bailments admit, or may admit, of very different obligations on the part of the bailee, both as to the nature and as to the extent of his responsibility. Where, indeed, he enters into an express contract, there may not, in point of morals, in foro conscientice, be any difference in relation to the extent of his duty, or the fidelity to be ex- acted of him in his performance of it. But law, as a practi- cal science, although it endeavors never to violate any moral duty, is compelled, on many occasions, to leave that duty wholly to the conscience of the party, without any attempt to enforce it by compulsive process. It is, for instance, a rule of the common law, which has its foundation also in other codes, not to enforce contracts made between parties, where there is no valuable consideration for the act to be done. If the act is left undone, the party, although his promise may be ever so direct and positive, is not compellable to perform it. If, for instance, a person has gratuitously promised to give another money, the law will not oblige him to perform his promise ; for it is deemed a 7iude pact {nudum pactum), a naked promise, not clothed with a valuable consideration to support it ; and the maxim is, " Ex nudo pacto non oritur actio." * If, on the other hand, the money has been paid, the ch. 1, n. 1 ; 1 Domat, B. 1, tit. 4, § 1. See also, 1 Bell, Comm. § 198, 4th edit.; 1 Bell, Comm. p. 4.52, 5th edit.; 1 Dane, Abr. ch. 17, art. 4; 2 Kent, Comm. Lect. 40, p. 585, 4th edit. ; 1 Stair, Inst. B. 1, tit. 15, § 1. 1 2 Ld. Eaym. 909 ; s. c. Com. Eep. 133 ; 1 Salk. 26 ; Holt, 13. 2 See Ayliffe, Pandect, B. 4, tit. 7, 10, 11, 16, 17, 18, 20; 1 Bell, Comm. § 198, 4th edit. ; 1 Bell, Comm. p. 452, 455, 458, 459, 461, 465, 5th edit. s See the Enghsh Monthly Law Magazine, for April, 1839, p. 216, 217. * Batson v. Donovan, 4 Barn. & Aid. 21, 34. CH. I.] BAILMENTS IN GENERAL. 13 law will not enable the party to recover it back, because it has been paid in discharge of a moral obligation. But if a party, undertaking to do a thing, does it so ill that the other party suffers an injury thereby, there the law will, in many cases, allow the injured party to recover a compensation to the extent of the injury.^ In respect, therefore, to gratuitous con- tracts, lying in feasance, such as mandates, the party may escape all responsibility by a single refusal to do the act promised,^ This distinction has been long settled in our law, upon principles of general policy ; and although it may seem somewhat artificial, it is probably well founded in public con- venience. It is generally true, in gratuitous contracts, that for nonfeasance, even when the party suffers a damage thereby, no action lies ; but for misfeasance an action will lie. Sir William Jones,* indeed, supposes that in each case, if there is a special damage, an action for that damage may be main- tained. But he is certainly mistaken.* The reason of this distinction may probably be, that in cases of nonfeasance it is the party's own folly to trust to a promise which has no legal obligation ; but that in cases of misfeasance, the other party has no right to excuse a wrongful act by setting up the defence that he was not bound to do any thing. Upon this subject, more will be said when we come to the consideration of the Law of Mandates.^ § 10. But to return. The general principles of law in re- spect to bailments are founded upon the absence of any positive engagements between the parties (for an express contract of the parties may vary or supersede those de- rived from the law) ; ^ and, therefore, the question arises, what obligations are, with reference to public and general convenience, implied by law in the absence of such positive engagements. Natural justice would hardly persuade us that 1 Post, § 164 to 172. 2 Jones on Bailm. 54; post, § 164 to 192; 16 American Jurist, p. 269 to 272 (1837). s Jones on Bailm. 56, 100, 101. * Elsee V. Gateward, 5 T. R. 143; Coggsu. Bernard, 2 Ld. Raym. 909, 919, 920; 11 Hen. 4, 33 ; post, § 164 to 172. 6 Post, § 164 to 172. « Post, § 31, 33, 34. ^ 14 BAILMENTS IN GBNEKAL. [CH. I. the same obligations and the same duties ought to arise in all classes of bailments ; and if it would, the general interests of society and the indulgence to involuntary error and mistake, which a sense of mutual infirmity insensibly produces, would soon introduce a relaxation of the rigid rule, and fix a prac- tical exposition, which should invite rather than repel mutual confidence. It would be very difficult, indeed, to persuade any civilized community that a depositary should be liable for every loss, and bound to the same vigilant care of the deposit, as a borrower for his own exclusive benefit ; or that a mandatarj', who, from mere kindness, gives his services to his friend, should have the same responsibility fastened on him as a carrier for hire, who stipulates and receives a suit- able and adequate reward both for his services and his vigi- lance. And it will accordingly be found that, in the most polished as well as in the least refined of nations, whether ancient or modern, distinctions in degrees of responsibility have been adopted, in all these classes of cases, with a sur- prising uniformity. It is not our purpose to dwell on them ; but many of them will be found collected in the beautiful Essay of Sir William Jones, which, with all its defects, will always constitute a gratifying and useful study for every jurist and scholar. § 11. Before entering, however, upon a particular consid- eration of the distinctions of the common law, with a view of ascertaining the precise nature and extent of the obligations of the bailee in the various sorts of bailment, it may be of use to say a few words on the subject of the various degrees of care or diligence which are recognized in that law. It has been justly said, that there are infinite shades of care or dili- gence, from the slightest momentary thought to the most vigilant anxiety : but extremes in this case, as in most others, are inapplicable to practice.^ There may be a high degree of diligence, a common degree of diligence, and a slight degree of diligence ; and these, with a view to the business of life, seem all that are necessary to be brought under review. Common or ordinary diligence is that degree of diligence 1 Jones on Bailm. 5. CH. I.j BAILMENTS IN GENERAL. 15 which men in general exert in respect to their own concerns. It may be said to be the common prudence which men of business and heads of families usually exhibit in affairs which are interesting to them. Or, as Sir William Jones has expressed it/ it is the care which every person of common prudence, and capable of governing a family, takes of his own concerns.^ It is obvious that this is adopting a very variable standard ; for it still leaves much ground for doubt as to what is common prudence, and who is capable of governing a family. But the diflBculty is intrinsic in the nature of the subject, which admits of an approximation only to certainty. Indeed, what is common or ordinary diligence is more a matter of fact than of law.^ And in every community it must be judged of by the actual state of society, the habits of business, the general usages of life, and the dangers, as well as the institutions, peculiar to the age. So that, although it may not be possible to lay down any very exact rule, applicable to all times and all circumstances, yet that may be said to be common or ordi- nary diligence, in the sense of the law, which men of com- mon prudence generally exercise about their own affairs in the age and country in which they live.* § 12. It will thence follow that, in different times and in different countries, the standard is necessarily variable with respect to the facts, although it may be uniform with respect to the principle. So that it may happen that the same acts which in one country or in one age may be deemed negligent acts, may at another time or in another country be justly deemed an exercise of ordinary diligence. § 13. It is important to attend to this consideration, not merely to deduce the implied obligations of a bailee in a given case, but also to possess ourselves of the true measure, by 1 Jones on Bailra. 6. 2 Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275; Vaughan v. Men- love, 3 Bing. N. C. 468. « See Doorman v. Jenkins, 2 Adolph. & Ellis, 256 ; Vaughan i>. Men- love, 3 Bing. N. C. 468, 475. * See Vaughan v. Meulove, 3 Bing. N. C. 468, 475; Batson v. Dono- van, 4 Barn. & Aid. 21, 30; [Cass v. Boston and Lowell Railroad Co., 14 Allen, 450.] 16 BAILMENTS IN GENBKAL. [CH. I. which to fix the application of the general rule. Thus, in times of primitive or pastoral simplicity, when it is customary to leave flocks of sheep to roam at large by night, it would not be a want of ordinary diligence to allow a neighbor's flock, which is deposited with us, to roam in the same manner. But if the general custom were to pen such flocks at night in a fold, it would doubtless be a want of such diligence not to do the same with them. In many parts of America, especially in the interior, where there are, comparatively speaking, few temptations to theft, it is usual to leave barns, in which horses and other cattle are kept, without being under lock by night. But in our cities, where the danger is much greater, and the temptations more pressing, it would be deemed a great want of caution to act in the same manner. If a man were, in many country towns, to leave his friend's horse in his field or in his open barn all night, and the horse were stolen, it would not be imagined that any responsibility was incurred. But if in a large city the same want of pre- caution were shown, it would be deemed in many cases a gross neglect. If robbers were known to frequent a partic- ular district of country, much more precaution would be there required than in districts where robberies were of very rare occurrence. What, then, is usually done by prudent men in a particular country in respect to things of a like nature, whether it be more or less in point of diligence than what is exacted in another country, becomes, in fact, the general measure of diligence. § 14. And the customs of trade and the course of business have also an important influence. If, in the course of a par- ticular trade, particular goods, as, for instance, coals, are usually left on a wharf without any guard or protection during the night, and they are stolen, the wharfinger, or other person having the custody, might not be responsible for the loss, although for a like loss of other goods, not fall- ing under a like predicament, he might be responsible. If a chaise were left during the night under an open shed, and were stolen, the bailee might not be liable for the loss, if such was the usual practice of the town or place ; and yet he might be liable, if greater precautions were there usually CH. I.J BAILMENTS IN GENERAL. 17 taken. In short, diligence is usually proportioned to the degree of danger of loss ; and that danger is, in different states of society, compounded of very different elements. Men intrusted with money might at some times and in some places be required to go armed ; when, at other times and in other places, such a precaution would be deemed wholly unnecessary. § 16. And what constitutes ordinary diligence may also be materially affected by the nature, the bulk, and the value of the articles.^ A man would not be expected to take the same care of a bag of oats as of a bag of gold ; of a bale of cotton as of a box of diamonds or other jewelry ; of a load of com- mon wood as of a box of rare paintings ; of a rude block of marble as of an exquisitely sculptured statue. The value, especially, is an important ingredient to be taken into consid- eration upon every question of negligence ; for that may be gross negligence in the case of a parcel of extraordinary value, which in the case of a common parcel would not be so. The degree of care which a man may reasonably be re- quired to take of any thing, must, if we are at liberty to consult the dictates of common sense, essentially depend upon the quality and value of the thing, and the temptation thereby afforded to theft. The bailee, therefore, ought to proportion his care to the injury or loss which is likelj'^ to be sustained by any improvidence on his part.^ But this, as well as some other considerations, touching the degree of dili- gence, will properly find a place in other parts of our in- quiry.3 § 16. Having thus ascertained the nature of ordinary dili- gence, we may now be prepared to decide upon the other two degrees. High or great diligence is of course extraordinary diligence, or that which very prudent persons take of their own concerns ; and low or slight diligence is that which per- sons of less than common prudence, or indeed of any pru- 1 Jones on Bailm. 38, 39. 2 Batson v. Donovan, 4 Barn. & Aid. 21, 36, 42 ; Sleat v. Flagg, 5 Barn. & Aid. 342; Nelson v. Macintosh, 1 Stark. 238; [Steamboat New World V. King, 16 Howard, U. S. 475; Baltimore and Ohio R. R. Co. v. Schumacher, 29 Md. 175. J ' Post, § 186. 2 18 BAILMENTS IN GENERAL. [CH. I. dence at all, take of their own concerns. ^ Sir William Jones considers the latter to be the exercise of such diligence as a man of common sense, however inattentive, takes of his own concerns.^ Perhaps this is expressing the measure a little too loosely ; for a man may possess common sense, nay, uncom- mon sense, and yet be so grossly inattentive to his own con- cerns as to deserve the appellation of having no prudence at all. The measure is rather to be drawn from the diligence which men habitually careless, or of little prudence (not "however inattentive " they may be), generally take in their own concerns. § 17. Having, then, arrived at the three degrees of dili- gence, we are naturally led to those of negligence, which cor- respond thereto ; for negligence may be ordinary, or less than ordinary, or more than ordinary. Ordinary negligence may be defined to be the want of ordinary diligence, and slight negligence to be the want of great diligence, and gross negli- gence to be the want of slight diligence.^ For he who is 1 See Vaughan v. Menlove, 3 Bing. N. C. 468, 475. ^ Jones on Bailm. 8. Mr. Justice Duncan, in delivering the opinion of tlie Court in Tompliins v. Saltmarsli, 14 Serg. & Kawle, 275, follows the doctrine and language of Sir ^Villia^l Jones. He says a gratuitous bailee " is only liable for gross negligence, dolo proximus , a practice equal to fraud. It is that omission of care, which even the most inattentive and thoughtless men never fail to take of their own concerns." 5 [In some modern cases, a doubt has been intimated whether these nice distinctions in the different degrees of negligence are useful or practi- cable. Thus, in Wilson v. Brett, 11 Meeson & Welsby, 113, Baron Rolfe declared he could see no difference between negligence and gross negli- gence; that it was the same thing, with the addition of a vituperative epithet. And in another case, — Plinton v. Dibbin, 2 Queen's Bench, 661, — Lord Denman said: " It may well be doubted whether between gross negligence and negligence merely, any intelligible distinction exists." And this remark was cited with approbation by Cresswell, J., in the late case of Austin u. Manchester Railway Co., 11 Eng. L. & Eq. 513; (10 C. B. 475}. See Cashill o. Wright, 6 Ell. & Bl. 897; Briggs v. Tay- lor, 28 Verm. 185; Beal v. South Devon Railway Co., 5 H. & N. 875; 3 H. & C. 337; Grill v. General Iron Screw Collier Co., Law Rep. 1 C. P. 612. In Lord u. Midland Railway Co., Law Rep. 2 C. P. 344, Willes, J., said: " Any negligence is gross in one who undertakes a duty and fails to perform it. The term ' gross negligence ' is applied to a gratuitous bailee, who is not hable unless he fails to exercise the degree of skill CH. I.] BAILMENTS IN GENERAL. 19 only less diligent than very careful men cannot be said to be more jbban slightly inattentive ; he who omits ordinary care, ■which he possesses." In Steamboat New World ». King, 16 Howard, 474, Curtis, J., said: " The theory that there are three degrees of negli- gence, described by the terms slight, ordinary, and gross, has been intro- duced into the common law from some of the commentators on the Roman Law. It may be doubted if these terms can be usefully applied in prac- tice. Their meaning is not fixed, or capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions, that the rules themselves can scarcely be said to have a general operation. In Storer v. Gowen, 18 Maine, 177, the Supreme Court of Maine say: 'How much care will, in a given case, relieve a party from the imputation of gross negligence, or what omission will amount to the charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define.' Mr. Justice Story (Bailments, § 11) says: ' Indeed, what is common or ordinary diligence, is more a matter of fact than of law.' If the law furnishes no definition of the terms gross negli- gence, or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned. Recently the Judges of sevei-al courts have expressed their disapprobation of these attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them. Wilson V. Brett, 11 Mees. & Welsh. 113 ; Wyld v. Pickford, 8 lb. 443, 461, 462; Hinton v. Dibbin, 2 Q. B. 646, 651. It must be confessed that the difficulty in defining gross negligence, which is apparent in perusing such eases as Tracy v. Wood, 3 Mason, 132, and Foster v. The Essex Bank, 17 Mass. 479, would alone be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman Law, and on the civil code of France, have wholly repudiated this theory of three degrees of diligence, as unfounded in principles of natural justice, useless in practice, and presenting inextricable embarrassments and diffi- culties. See Toullier's Droit Civil, 6th vol. p. 239, &c. ; 11th vol. p. 203, &c. Makeldey, Man. du Droit Remain, 191, &c." But notwithstanding these remarks, it cannot be doubted, that there are different degrees of negligence, although the dividing line between them may be narrow, and it may not always be easy to say on which side of the line a particular case may fall. It is possible, too, that no uniform meaning has always been ascribed to the words "gross negligence," and the term has some- times been loosely applied to carriers for hire, whereas it is more correctly used in describing that degree of negligence for which a gratuitous bailee 20 BAILMENTS IN GENEEAL. [CH. I. is a little more negligent than men ordinarily are ; and he who omits even slight diligence, fails in the lowest degree of prudence, and is deemed grossly negligent.^ In strictness of speech, as has been well observed by Pothier,^ negligence is not permitted in any contract ; but a less rigorous construc- tion prevails in some cases than in others. The law consid- ers diligence to be, in some sort, a relative term ; and it must be judged of from the nature of the bailment, and from all the other ingredients which may fairly be presumed to enter into the contemplation of the parties. He who asks a favor has no right to expect to be absolved from a proportionate care ; and he who accepts a burden has a right to presume that he will not be required to be as scrupulously exact as if he received a benefit. § 18. The view which has thus been taken of the various degrees of diligence required by the common law is in perfect conformity to that which the Civilians have laid down. And, indeed, it is almost impossible to escape from the conclusion, that our law is mainly a derivative from that source. In the is responsible. But the ftxistence of a practicable difference between the degrees of negligence hes at the foundation of the law of bailments.] {Lord Chelmsford observes in Giblin v. McMuUen, L. R. 2 P. C. 336 (1869): "Of course, if intended as a definition, the expression 'gross negligence ' wholly fails of its object. But as there is a practical differ- ence between the degrees of negligence for which different classes of bailees are responsible, the term may be usefully retained as descriptive of that difference, more especially as it has been so long in familiar use, and has been sanctioned by such high authority as Lord Holt and Sir William Jones." The current American decisions, it may he added, make constant use of the same expression. And see Allen, J., in First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278. But see Mariner ». Smith, 5 Heisk. 203. This subject receives further discussion as the several classes of bailments are treated in chapters hereafter.} ^ Jones on Bailm. 8, 9. ^ Jones on Bailm. 30. The passage in Pothier, here referred to, was originally published at the end of his Treatise on Marriage, and is con- tained in a dissertation, entitled " Observation G6n6rale sur le precedent Traite, et sur les suivans." It will now be found pubUshed at the end of Pothier's Treatise on Obligations, in the 4to edition of his works, printed at Orleans in 1781, vol. 1, p. 455 to 459, and the particular passage cited is at p. 458; and in the Paris edition of his works by Dupin, in 8vo, 1824, vol. 1, p. 542 to 549, and the particular passage at p. 546. CH. I.] BAILMENTS IN GENEEAX,. 21 civil law, there are three degrees of diligence : ordinary- diligence, diligentia; extraordinary diligence, exaetissima dili- gentia ; and slight diligence, levissima diligentia. In like man- ner, there are three degrees of fault or neglect : lata culpa, gross fault or neglect ; levis culpa, ordinary fault or neglect ; levissima culpa, slight fault or neglect ; and the definitions of these degrees are precisely the same with those in our law.* " Qui enim earn non adhibent diligentiam, quam solent patres familias ad rem attentissimi, culpam levissimam ; qui omittunt diligentiam, a frugi patre familias adhiberi solitam, levem ; qui, denique, ne eS. quidem diligentiS., quS, omnes, etiam dissoluti homines, uti solent, utuntur, latam committere dicuntur." ^ § 19. In respect to gross negligence, it is often said that it is equivalent to fraiid, and is evidence of fraud. That it may, in certain cases, afford a presumption of fraud, and, indeed, that in very gross cases it may approach so near as to be almost undistinguishable from it, may be admitted, especially when the facts seem hardly consistent with any honest inten- tion. But that generally gross negligence and fraud are convertible terms, is a doctrine not supported by any just inference from the authorities in the common law.^ § 20. Sir W. Jones, indeed, in various passages of his Essay, seems to inculcate a different doctrine, and to put gross negligence by the side of fraud, and as equivalent to it. Thus, he speaks of ordinary negligence as " a mean between fraud and accident ; " * of gross negligence as being inconsis- tent with good faith ;^ and of a bailee, without reward, being " answerable only for fraud, or for gross neglect, which is considered evidence of it."^ There are other passages again, in which he seems to indicate a clear distinction between them,' although the general course of his reasoning leans the other way. His great respect for the civil law, and his desire 1 Wood, Inst. B. 1, ch. 1. p. 106 ; Halifax, Civ. Law, ch. 14, p. 61. 2 Heinec. Elem. Jur. Inst. Lib. 3, tit. 14, § 787; Dig. Lib. 50, tit. 16, § 223, 226; Dig. Lib. 19, tit. 2, § 25, 7; Vinnius ad Inst. Lib. 3, tit. 15, § 12, 13. [' See Tudor v Lewis, 3 Met. (Ky.) 378.] * Jones on Bailm. 8. ^ Jones on Bailm. 10, 46, 119. « Jones on Bailm. 46. ' Jones on Bailm. 8, 9, 47, 120. 22 BAILMENTS UST GENERAL. [CH. I. to assimilate the doctrines of the common law to it, may, per- haps, somewhat have influenced his judgment. He admits that, in the Roman law, " gross neglect, lata culpa, as the Roman lawyers most accurately call it, dolo proxima, is in practice considered as equivalent to dolus, or fraud itself." ^ " Lata culpa plane dolo comparabitur." ^ He is certainly warranted in this remark by the opinion of many Civilians ; for they, in their definitions of the words dolus, culpa, and casus, leave little room to doubt that they understood such to be the true meaning of dolus in the Roman law. " Dolus est omnis calliditas, fallacia, machinatio ad decipiendum, fallen- dum, circumveniendum, alteram adhibita. Culpa, factum inconsultum, quo alter Iseditur, vel quod, quum a diligente provideri potuerit, non sit provisum. Casus est eventus a divind providentia profectus, cui resisti non potest." ^ § 20 a. But, after all, it may admit of question, whether in the Roman law the word dolus was used in the intense sense of the word fraud (that is, intentional fraud), in our law, or whether it meant any thing more than a breach of that good faith which is required by law of the bailee, and thus ap- proached nearer to what we are accustomed to call construc- tive fraud, or such acts or omissions as operate as a deception upon the other party, or violate the just confidence reposed by him, whether there be a deceitful intent, malus animus, or not. Pothier manifestly understands the word dolus, in the Roman law, in this last more mitigated sense ; for he says that it is not to be doubted that a depositary is liable for the loss or deterioration of things confided to him, when caused by his gross negligence ; because, such negligence being contrary to the good faith requisite in a deposit, it is comprised under the term of fraud, and of default of good faith <^sous le terme de dol, et de defaut de bonne foi), for which the Roman Law 1 Jones on Bailm. 21, 22; Id. 14, 15; Dig. Lib. 13, tit. 6, 1. 5, § 2; Dig. Lib. 50, tit. 17, 1. 23. 2 Dig. Lib. 11, tit. 6, 1. 1, § 1. See also, Dig. Lib. 44, tit. 7, 1. 1, § 5. •f Heinec. Elem. Jur. Inst. Lib. 3, tit. 14, § 784; Wood, Inst. B. 1, ch. 1, p. 100; Vinn. ad Inst. Lib. 3, tit. 25, § 12; Dig. Lib. 50, tit. 16, § 223, 226; Dig. Lib. 11, tit. 6, 1. 1, § 1 ; Dig. Lib. 13, tit. 6, 1. 5, § 2. {And see Gains, §207. J CH. I.] BAILMBNTS IN GENERAL. 23 declares the depositary responsible.^ And there certainly are various texts of the Roman Law which scarcely admit of any other reasonable interpretation than what belongs to this mitigated sense.2 Even in the Roman Law, a stipulation that the depositor should rely solely on the good faith of the depositary for the return of the deposit, without resorting to any action, was held valid ; while a stipulation that the depositary should not be liable for his own fraud (c?oZms) was held void.3 § 20 h. The Roman lawyers themselves do not seem to have been altogether agreed on this point ; for while Nerva main- tained that gross negligence was fraud, Proclus was dissatis- fied with the doctrine ; and Celsus, in giving his approbation to the opinion of Nerva, says: " Quod Nerva diceret, latiorem culpam dolum esse, Proclo displicebat ; mihi verissimum vi- detur."* And a distinction seems to have been taken in the Roman Law between dolus and dolus malus. " Magna negli- gentia culpa est (says the Digest), magna culpa dolus est.^ Dolum malum Servius quid em ita definit, machinationem alte- rius decipiendi causa, cum aliud simulatur, et aliud agitur. Labeo autem posse et sine simulatione id agi, ut quis circum- veniatur, &c. Itaque ipse sic definit dolum malum esse omnem ealliditatem, fallaciam, machinationem ad circumveniendum, fallendum, decipiendum, alterum adhibitum. Labeonis defi- nitio vera est." ^ 1 Pothier, Trait6 de Depot, n. 23; Id. n. 27. Pothier in other places manifestly understands the word "dolus" of the civil law in the same mitigated sense. Pothier, Contrat de Mandat. n. 211; Dig. Lib. 13, tit. 6, 1. 5, § 2; Dig. Lib. 50, tit. 17, 1. 23; Pothier, Pand. Lib. 16, tit. 3, n. 25; Post, § 65. 2 Pothier, Pand. Lib. 16, tit. 3, n. 16 to n. 25; Post, § 65. 8 Dig. Lib. 16, tit. 3, 1. 1, § 7; Dig. Lib. 2, tit. 14, 1. 7, § 15; Id. I. 27, § 3; Pothier, Pand. Lib. 16, tit. 3, n. 25; Id. Lib. 2, tit. 14, n. 59; Pothier, Traite de Depot, n. 24-27. Pothier's explanation of these dif- ferent stipulations will not perhaps be thought very satisfactory. But if the former stipulation be construed to mean, that the depositary shall not be held liable for any negligence, however gross, where he acted hon- estly, and without intentional fraud, it would be very intelligible. * Dig. Lib. 16, tit. 3, 1. 32; Pothier, Pand. Lib. 16, tit. 3, n. 25. 6 Dig. Lib. 50, tit, 16, 1. 226. « Dig. Lib. 4, tit. 3, 1. 1, § 2. There is a very acute and sound criti- 24 BAILMENTS IN GENERAL. [CH. I. § 21. Perhaps Sir William Jones did not intend to use the word fraud in its intense sense, but only to use it as equiva- cism upon this subject in the English Monthly Law Magazine, for May, 1839, p. 292, 293, and note, ibid. Aylifie, in his Pandects (B. 2, tit. 23, p. 108, 109, 110), has given an elaborate view of the different sorts of fault or negligence, and fraud and deceit. The passage is long ; but as it contains a very ample view of the opinions of the Civilians, I have thought, that it might be useful to place it in a note. " The word fault, in Latin called culpa, is a general term ; and, according to the definition of it, it denotes an offence or injury done unto another by imprudence, which might otherwise be avoided by human care. For a fault, says Donatus, has a respect unto him, who hurts another not knowingly or willingly. Here we use the word offence or injury by way of a genus, which comprehends deceit, malice, and all other misdemeanors, as well as a fault. For deceit and malice are plainly intended for the injury of another, but a fault is not so designed. And, therefore, we have added the word imprudence in this definition, to point out and distinguish a fault from deceit, malice, and an evil purpose of mind which accompanies all trespasses and misdemeanors. A fault arises from simplicity, a dul- ness of mind, and a barrenness of thought, which is always attended with imprudence ; but deceit, called dolus, has its rise from a malicious purpose of mind, which acts in contempt of all honesty and prudence, with a full intent of doing mischief or an injury. And by these last words in the definition, namely, which might otherwise be avoided by human care, we distinguish a fault from a fortuitous case. For a fault is blamable through want of taking proper cax-e ; and it obliges the person that does the injury ; because by an application of due diligence it might have been foreseen and prevented. But fortuitous cases often cannot be foreseen, or (at least) prevented by the providence of man; as death, fires, great floods, shipwrecks, tumults, piracies, &c. Those things are superior to the prudence of any man, and rather happen by fate, there- fore are not blamable. But if fraud or some previous fault be the occa- sion of these nocuments, they are not then deemed to be fortuitous cases. A fault is a deviation from that which is good ; and, according to Barto- lus, erring from the ordinance and disposition of a law. It is sometimes difiicult to judge what is the difference betwixt a fault and a dolus, since these words very often stand for one and the same thing. There is no one in this life lives without a fault: but he, that would speak distinctly and properly, must impute a dolus to some wickedness or knavery, and a fault to imprudence. The first consists chiefly in acting, and the other in not acting or doing something which a man ought to do. According to Bartolus, a fault is divided into five species; namely, culpa latissima, latior, lata, levis, and levissima. The first he makes to be equal to mani- fest deceit; and the second to be equivalent unto presumptive malice or deceit. The first and second of these distinctions (he says) approach CH. I.J BAILMENTS IN GENERAL. 25 lent to a breach of good faith, or to a gross breach of duty, operating as a constructive fraud on the bailee. Thus, in his unto fraud, and are sometimes called by the name of fraud. But a lata culpa, -which is occasioned by gross sloth, rashness, improvidence, and want of advice, is never compared unto deceit or malice. For he that understands not that, which all other men know and understand, may be styled (says Bartolus) a supine and unthinking man, but not a malicious and deceitful person. But, I think, none of those distinctions of his have any foundation in law; for such things as admit of any degree of comparison, in respect of being more or less so, do not admit of any spe- cific difference; as ' magis et minus diversas species non constituunt.' For that, which the law says de latiore culpa, sometimes is to be under- stood de lata culpa, after the manner that a word of the comparative degree is sometimes put for a word of the positive, as in Virgil: Tristior et lacrymis oeuloa suffusa nitentee. Wherefore, I shall here distinguish a fault into two species only, namely, into lata and levis, though others mention a culpa levissima too. The first denotes a negligence extremely blamable ; that is to say, such a neg- ligence as is not tempered with any kind of diligence. The other im- ports such a kind of negligence, whereby a person does not employ that care in men's affairs, which other men are wont to do, though he be not more diligent in his own business. But as often as the word culpa is simply used in the law, it is taken for that which we style culpa levis, a light fault, because words are ever understood in the more favorable sense. A culpa levissima, or simple negligence, is that which proceeds from an unaffected ignorance and unskilfulness (say they) and it is like unto such a fault, which we easily excuse, either on the account of age, sex, rusticity, &c. Or to set the matter in a clearer light, a lata culpa is a diligence in a man's own affairs, and a negligence in the concerns of other men. And a leois culpa is, when a man employs the same care or diligence in other men's affairs as he does in his own ; but yet does not use all care and fidelity, which more diligent and circumspect men are wont to make use of; and this may be called an accustomed negligence, as well in a man's own affairs, as in the business of other men. A lata culpa, I mean a great fault, is equivalent, or next unto deceit or malice. And it may be said to be next unto deceit or malice two ways, namely, either because it contains in it a presumptive deceit, as when a man does not use the same diligence in another's concerns, as in his own, or else because the fault is so gross and inexcusable, that, though fraud be not presumed, yet it differs but little from it. As when a person becomes negligent in favor of a friend ; for though favor, or too great a facility of temper, excuses a man from a malicious or knavish purpose, yet it is next of kin thereunto. And it is a rule laid down in law, that, when the law commands any act of deceit to be made good, it is also always understood of a lata culpa, or gross fault. Wherefore, since a great fault is equiva- 26 BAILMENTS IN GENERAL. [CH. I. synthetical arrangement of the doctrine of bailments, he says : " A depositary is responsible only for gross neglect, or, in other words, for a violation of good faith." ^ If, however, he is to be understood as maintaining, that in the common law there is no distinction between gross negligence and actual or inten- tional fraud, he is certainly under a mistake ; and the error requires correction, since many cases may arise in which the difference may be material. One is put by Sir William Jones himself; that if a depositary commit a gross neglect in regard to his own goods, as well as to those which are bailed to him, by which both are lost or damaged, he cannot be said to have violated good faith ; and the bailor must impute to his own folly the confidence which he reposed in so improvident and thoughtless a person.^ So, where a cartoon was left in the hands of an auctioneer, without any particular agreement to take care of it, or redeliver it safe, and without any agree- ment for a reward, and it appeared that the painting was upon paper, pasted on canvas, and that the bailee kept it in a room next to a stable, in which there was a wall, which had made it damp and peel, it was held to be gross neglect, and the bailee was made responsible, although there was no imputation of intentional fraud. ^ § 22. These cases sufficiently show, that the doctrine, that gross negligence is equivalent to fraud, cannot be maintained as a general result of the common-law authorities.'' On the lent, or next unto deceit, it follows, that in every disposition of law, where it is said that evil intent or dolus ought only to be repaired, it is to be understood also of a lata culpa ; which is true, I think, unless it be in the Cornelian law de Sicariis. For he who commits the crime of mur- der ex lata culpa, shall be punished according to the severity of that law, but in a more gentle manner; and thus herein a lata culpa is distinguished from malice, or an evil design, called dolus malus ; for a murderer is lia- ble on the score of his wicked purpose, and not on the account of gross negligence. Some say, that, generally speaking, whenever the law or an action is touching a pecuniary penalty, and the law expressly mentions a dolus, a lata culpa is insufficient, and is excluded." ^ Jones on Bailm. 120. 2 Jones on Bailm. 47. 8 Mytton V. Cook, 2 Str. 1099. See also, Batson v. Donovan, 4 Barn. & Aid. 21; Clarke v. Earnshaw, 1 Gow, 80. < Jones V. Smith, 1 Hare, 71; [Wilson v. Y. & M. Railroad Co., 11 Gill and J., 58.] CH. I.j BAILMENTS IN GENERAL. 27 contrary, gross negligence is, or, at least, may be, entirely consistent with good faith and honesty of intention. And it would be a most mischievous error to confound it with fraud ; for then, unless a jury should believe the party guilty of fraud, no laches would come up to the legal notion of gross negli- gence, so as to entitle the sufferer by the loss to a recovery. A man might leave a casket of jewels, or a purse of gold, upon the table of a public room at an inn, or might leave a large package of bank-bills in a great-coat, in the common entry of an inn, from pure thoughtlessness ; and a jury might be well satisfied that it was gross negligence.^ But if fraud were a necessary ingredient, the very statement of the case would negative any right of recovery. The law, however, does not necessarily include in the notion of gross negligence any admixture of fraud, or at least not of intentional fraud, although in argument that is sometimes urged, with a view to relieve the defence from the pressure of other facts.^ § 23. Having, then, ascertained the nature and various de- grees of diligence and negligence, it is next to be considered, in what manner the law applies them to the different sorts of bailments. And, here, the doctrine adopted in the common law seems at once rational, just, and convenient. When the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and of course makes him answerable only for gross neglect. When the bail- ment is for the sole benefit of the bailee, the law requires great diligence on the part of the bailee, and makes him re- sponsible for slight neglect. When the bailment is recipro- cally beneficial to both parties, the law requires ordinary diligence on the part of the bailee, and makes him responsi- ble for ordinary neglect.^ 1 See Tompkins v- Saltmarsh, 14 Serg. & R. 275, 280; Jones on Bailm. 38. 2 Post, § 32; Vaughan ». Menlove, 3 Bing. N. C. 468, 475. In Tomp- kins V. Saltmarsh, 14 Serg. & R. 275, Mr. Justice Duncan said: " One •who was bound to ordinary diligence, and suffered the goods to be taken by stealth out of his custody, was held by Sir William Jones not to have used ordinary diligence ; but a contrary practice now prevails. ' ' 8 Jones on Bailm. 10, 119; Coggs v. Bernard, 2 Ld. Raym. 919; Pothier, Traite de Depot, n. 23. 28 BAILMBNTS IN GENERAL. [CH. I. § 24. A like division of the degrees of responsibility is to be found in the civil law. " In contractibus (saj'S Heinec- cius), in quibus penes unum commodum, penes alteram in- eommodum est, ille ordinarie culpam etiam levissimam, hie, non nisi latam, prsestat. Ubi par utriusque contrahentis commodum atque incommodum est, culpa etiam levis ab utroque prsestanda est." ^ The same rules are found in the French law ; ^ and in the Scotch law ; ^ and they may be deemed the general result of the jurisprudence of Continen- tal Europe. § 25. It follows, as a natural consequence, from these prin- ciples, that bailees in general are not responsible for losses resulting from inevitable accident, or from irresistible force, although they may become so liable by special contract, or (as we shall hereafter see) by some positive policy of the law. By inevitable accident, commonly called the act of God, is meant anj^ accident produced by any physical cause, which is irresistible ; such as a loss by lightning or storms, by the perils of the seas, by an inundation or earthquake, or by sudden death or illness. By irresistible force is meant such an interposition of human agency, as is, from its nature and power, absolutely uncontrollable. Of this nature are losses occasioned by the inroads of a hostile army, or, as the phrase commonly is, by the king's enemies ; that is, by public ene- mies.'' In the same manner, losses occasioned by pirates are 1 Heinec. Elem. Jur. Inst. Lib. 3, tit. 14, § 788; Wood, Inst. B. 1, ch. 1, p. 107 ; Vinn. ad Inst. Lib. 3, tit. 15, § 12. 2 Pothier, Oblig. P. 1, ch. 2, art. 1, § 1, n. 141, 142. 8 Ersk. Inst. B. 3, tit. 1, § 21, p. 488 ; 1 Bell, Comm. § 411, 4th edit. ; 1 Bell, Comm. p. 453, 5th edit. ■* {The doctrine of a bailee's exemption for loss occasioned by vis major has been applied in several cases recently decided, in Southern States. See Abraham v. Nunn, 42 Ala. 51; Yale v. Oliver, 21 La. Ann. 454; Levy V. Bergeron, 20 La. Ann. 290; Waller v. Parker, 5 Coldw. 476. But the circumstances, to justify such exemption, should be strong; nor should complicity with the invading forces appear on the bailee's part. James r. Greenwood, 20 La. Ann. 297; Britton v. Aymar, 23 La. Ann. 63. As to loss of the thing bailed by fire, see Hobson v. Woolfolk, 23 La. Ann. 384; McGinn v. Butler, 31 Iowa, 160. By departing from the terms of the bailment, one may make himself in certaiu oases liable CH. I.] BAILMENTS IN GENEBAi. 29 deemed irresistible, and by hostile force ; i for pirates are deemed the enemies of the whole human race Qiostes humani generis} ; and by the common consent of nations, they are, when taken, everywhere punished with death.^ By the law of nations they are esteemed outlaws, and their crimes, against whomsoever committed, are punishable in the courts of any nation, within whose criminal jurisdiction they are brought. § 26. Robbery by force is also deemed irresistible. Rob- bery (japina) is in the civil law defined to be the violent taking from the person of another of money or goods for the sake of gain.^ The definition of the common law does not materially differ ; for, in that law, it is defined to be the felo- nious taking from the person of another, or, in his presence, against his will, of goods or money to any value, by force or violence, or by putting him in fear.* And, whether such rob- bery be by robbers on the highway, or by breaking open a' house, and assaulting the inmates, makes no difference. The acts of such banditti are considered irresistible.^ In like man- ner, in cases of insurance, the maritime law deems a loss by sea-robbers, or pirates, to be loss by irresistible force. " Si furtum committatur in mari per piratas et latrones, et tunc inter casus fortuitos connumeratur," is the language of Roccus.® We shall have occasion, hereafter, to notice an exception, not to the principle of the rule, but to its applica- tion by the common law, in the case of common carriers. § 27. But a loss by a mere private or secret theft is not deemed to be irresistible ; ^ and whether it excuses the party, absolutely for loss even by inevitable accident. See post, § 188, 232; Lane V. Cameron, 38 Wis. 603; Martin v. Cuthbertson, 64 N. C. 328. } 1 Abbott on Ship. Pt. 4, ch. 5, § 2, 3. [See The Magellan Pirates, 25 Eng. Law & Eq. 595. J 2 United States v. Smith, 5 Wheat. 153, 161, and note; Id. 163. 8 Halifax, Anal. Civ. Law, ch. 23, p. 79; Inst. Lib. 4, tit. 2; Wood, Inst. Civ. Law, B. 3, ch. 7, p. 257. i 4 Bl. Comm. 243 ; 2 East, PI. Cr. ch. 16, § 124, p. 707. 6 Jones on Bailm. 44, 119 ; 10 Hen. 6, 21, pi. (5). See also, Jones on Bailm. 40, 79 ; Lib. Assisarum, An. 29, pi. 28. ° Roccus de Assecur. n. 41. ' RoccvLS de Assecur. n. 42; Marsh. Insur. B. 1, ch. 7, § 4, p. 243; 80 BAILMENTS IN GENERAL. [CH. I. or not, depends upon the nature of the bailment, and the par- ticular circumstances of the case.^ If the proper degree of [Marshall u. Nashville Marine & Fire Ins. Co., 1 Humph. 99. In De Rothschild v. Royal Mail Steam Packet Co., 7 Exch. 734, Parke, B., said: " In this case the plaintiffs sought to recover from the defendants the value of two hoxes of gold dust, part of eleven received by them at Panama, to be carried to the Bank of England. The defendants carried the goods from Panama across the Isthmus by land, shipped them at Chagres, and brought them by steam vessels to Southampton, and thence carried them by the London and Southwestern Railroad to London. A bill of lading was given by them at Panama, acknowledging the receipt of eleven packages, said to contain 7000 and odd ounces of gold dust to be carried to the Bank of England, ' the act of God, the Queen's enemies, pirates, robbers, fire, accidents from machinery, boilers, and steam, dan- gers of the sea, roads, and rivers, of whatever nature or kind, excepted.' All the packages arrived safe at Southampton, and were placed on the railroad to be carried to London ; but two of them were stolen secretly from a railroad truck before their arrival there. " It was argued for the defendants that the word ' robbers ' ought not to be construed in the technical sense given to the word ' rob ' by the English law-writers, and by some of the English statutes (1 Vict. c. 87, § 2, for instance), where it means the felonious taking from the person or in the presence of another, of money or goods, against his will, by force, as putting him in fear, for it was not likely that robbery in that sense would occur, as the packages would not usually be in the personal pres- ence of the defendants or their servants, still less on their persons; and other statutes were cited, where the meaning is much more comprehen- sive, and includes a taking without force; and besides, in construing such insti-uments, it was contended that the ordinary meaning of the words used must be followed. \\'e think that position is correct, but we must also look at the circumstances under which the contract was made, and the peculiar subject to which it applied; and taking these into con- sideration, we cannot doubt that the meaning of the contract was, that the defendants were not to be liable for the loss of the gold dust, where it was taken by force by a vis major, which the defendants could not resist, but that they were to be liable where it was pilfered from them. It is very unreasonable to suppose that the shippers of a very precious article, in which a large value is comprised in a very small space, which is capable of being easily abstracted by any person employed in carrying it, meant to exempt the persons to whom they gave up the custody and care of it from all responsibility for theft committed by their crews or others, against which they could presumably guard by the exercise of reasonable care ; but it is likely that they should agree to exempt them where the 1 Clarke v. Earnshaw, 1 Gow, N. P. 30. CH. I.J BAILMENTS IN GENERAL. 31 diligence has been used by the bailee, and, notwithstanding that, a loss by such theft ensues, he is not responsible. There are also exceptions to this rule, which will be taken notice of hereafter.^ § 28. Whether a loss occasioned by the forcible breaking open of a house by robbers, or bandits, during the temporary absence of the family, would be deemed a loss by irresistible superior force, does not appear to have been directly settled in our law. Bonion's case,^ whether it be law or not, does not . come up to the doctrine. And Sir William Jones ^ states, that, in case of a loss by burglary, no bailee can be responsible with- out a very special undertaking ; but he cites no authority on the point. He doubtless intends to speak of that crime in its technical sense, which supposes an actual occupation of the house, as a mansion, or, at least, if the family is absent, that it is so animo revertendi.^ Pothier considers a loss by forcibly breaking open a house to be a loss by irresistible force. ^ goods were taken by a force which they could not resist. The nature of the transaction shows clearly, therefoi'e, that the word ' robbers' means, not 'thieves,' but robbers by force, to whom the term is more usually applied, though in common parlance it is often applied to every descrip- tion of theft. We have no doubt, therefore, that in this bill of lading this is the proper meaning of the word ' robbers; ' and this being so, the loss in this case was not by robbers: and that plea, in which the loss is so stated, ought to be found for the plaintiffs. " We do not feel any difficulty as to the meaning of the term ' dangers of roads.' We think the word ' roads ' either explained by the context to mean marine roads, in which vessels lie at anchor ; or supposing it to mean roads on land, the dangers of roads are those which are immediately caused by roads, as the overturning of carriages in rough and precipitous places; losses by robbers are already provided for under the general term ' robbers; ' and the same reason which induces us to believe that the par- ties did not mean that the defendants should be exempted from pilfering by thieves when loss by robbers is exempted, leads us to the conclusion that they did not intend that they should be protected in the case of loss by thieves in passing along roads."] 1 See Marshall on Insur. B. 1, ch. 7, § 4, p. 243; Roccus de Assecur. n. i2;post, §489. 2 Mayn. Year Book, 275 ; Fitz. Abr. Detinue, 59. 3 Jones on Bailm. 39. * 4 Black. Comm. 223 ; 2 East, PI. Cr. ch. 15, § 11, p. 496. 6 Pothier, Traite du Pret a Usage, n. 53. 32 BAILMENTS IN GENERAL. [CH. I. § 29. Our own Bracton enumerates among casualties, fire, the ruin or fall of edifices, shipwreck, robbery, and hostile incursions; for, speaking of certain cases, in which a bailee may be responsible for casualties, he says : " Si forte incendio, ruinS,, naufragio, aut latronum vel hostium incursu, consumpta fuerit, vel deperdita, subtracta, vel ablata." ^ § 30. In the civil law, in which parties are not generally liable for accidents, unless they expressly stipulate to be so liable, there are included under the head of accidents, not only losses by lightning, inundation, torrents, shipwreck,^ and other perils of the sea, but also losses by fire, robbery, hostile incursions, insurrections, and piracies.^ " Animalium, vero (says the Digest), casus, mortes, quseque sine culpS, accidunt, fugsB servorum, qui custodiri non solent, rapinae, tumultus, incendia, aquarum magnitudines, impetus prsedonum, a nuUo praestantur." * Vinius enumerates them somewhat more in detail. " Casus fortuiti varii sunt, veluti a vi ventorum, tur- binum, pluviarum, grandinum, fulminum, sestus, frigoris, et similium calamitatum, quae coelitus immittuntur. Nostri vim divinam dixerunt ; Grseci ©eov /Slav. Item naufragia, aquarum inundationes, incendia, mortes animalium, ruinse sedium, fun- dorum chasmata, incursus hostium, preedonum impetus, &c., fugse servorum, qui custodiri non solent. His adde damna omnia a privatis illata, quae quominus inferrentur, nulla curS, caveri potuit. Ad casus autem fortuitos non sunt referendi illi casus, qui cum culpS, conjuncti esse solent ; cujusmodi sunt furta. Quamobrem, qui rem furto amissam vel incendio, verbi causS servorum negligentia orto consumptam dicit, is diligentiam suam probare debet. Quod vero incendium in alienis sedibus obortum occupat aedes vicinas, aut quod ful- mine excitatur, aut a grassatoribus vel incendiariis immittitur, id inter casus fortuitos numerari debet." ^ § 31. These principles, both in the civil and in the common law, are to be understood with this limitation, that there is no 1 Bracton, Lib. 3, ch. 2, p. 99. 2 Dig. Lib. 4, tit. 9, 1. 3, 1. 8 Dig. Lib. 4, tit. 9, 1. 3, 1. * Dig. Lib. 50, tit. 17, L 23; Dig. Lib. 13, tit. 6, \. 5, § 4. 6 Vinn. ad Inst. Lib. 3, tit. 15, § 2, n. 5. CH. I.J BAILMENTS IN GENERAL. 33 subsisting contract between the parties, which varies the gen- eral obligation resulting from them ; for such contract, if it exists, governs the case, unless it be against public policy, or positive law.i § 32. In respect to cases of loss by fraud, there is a salutary principle, belonging both to our law and the civil law. It is, that the bailee can never protect himself against responsibility for losses occasioned by his own fraud ; nay, not even by a contract with the bailor, that he shall not be responsible for such losses. For the law wiU not tolerate such an indecency and immorality, as that a man shall contract to be safely dishonest. It, therefore, declares all such contracts utterly void ; and holds the bailee liable, in the same manner, and to the same extent, as if no such contract ever existed.^ " Non valet, si convenerit, ne dolus prsestetur," says the Digest.^ So says Heineccius. " Dolus semper et in omni contractu prsestandus, nee conveniri potest in antecessum ut ne dolus prsestetur." * Now, it will occur at once to the reader, that, if the law be so, and if gross negligence be equivalent to fraud, there could be no defence set up by the bailee, founded upon his own conduct being the same in respect to his own goods as in respect to those deposited or founded upon a special contract not to be liable for gross negligence.* But there is no principle in our law that would prevent a depositary from contracting not to be liable for any degree of negligence, in which fraud is really absent. The maxim of our jurisprudence is, that " Modus et conventio vincunt legem ; " and it applies to all contracts, not offensive to sound morals or to positive prohibitions by the legislature.^ 1 {But such a contract must be clearly shown. See Bigelow, C. J., in Conway Bank v. Am. Express Co., 8 AUen, 516.} 2 Jones on Bailm. 11, 48; Doct. and Stud. Dial. 2, ch. 38; s. p. Alex- ander V. Green, 3 Hill (N. Y.), 9, 20. [See Wells v. Steam Navigation Co., 4 Selden, 375.] 8 Dig. Lib. 50, tit. 17, 1. 23, Dig. Lib. 2, tit. 14, 1. 27, § 3; Wood, Inst. B. 1, ch. 1, p. 107; Vinn. ad Inst. Lib. 3, tit. 15, § 12. * Heinec. Elem. Jur. Inst. Lib. 3, tit. 14, § 785 6 Ante, § 20 to 23. [See Penn. Railroad Co. v. McCloskey, 23 Penn. St. 526.] « {In Lancaster County Nat. Bank v. Smith, 62 Penn. St. 47, it is said 34 BAILMENTS IN GENEKAL. [CH. I. § 33. And here it may be proper to state, that, as the legal responsibility of a bailee (except perhaps in the case of com- mon carriers),^ may be narrowed by any special contract, either express or implied, so it may in like manner be en- largedy Thus, if a depositary should specially contract to keep the deposit safely, he might be liable for ordinary negli- gence, although the law would otherwise hold him liable only for gross negligence. Upon this ground Southcote's case ^ may, perhaps, be maintained to be good law, and not to be liable to the objection made against it in Coggs v. Bernard.* If, indeed, it proceeded upon the ground asserted by Lord Coke, that a bailment upon a contract to keep, and to keep safely, is the same thing, it certainly is not law, and was overruled in Coggs V. Bernard. But from the report it would seem, that the bailment was there to keep safe ; and if so, then upon that special contract the party might have been held responsible, although he would not otherwise have been liable by the general law. This was the doctrine maintained by all the Judges, in the case of Coggs v. Bernard,^ which case pro- ceeded mainly upon this ground.^ In a later case the same distinction was adopted by the Court ; and it was held, that if a depositary should accept to keep safely, he would be responsible for losses by robbery or theft, although he would not otherwise be responsible upon the general principles of law.^ that a bailee cannot by contract stipulate absolutely against liability for his own negUgence. This was the case of a depositary, liable by law only for gross negligence.} ' Qusere, — if carriers may so limit their responsibility, and see the New York case of Hollister v. Nowlen, 19 Wend. 234; post, § 55i, note 3; [Cole v. Goodwin, 19 Wend. 251.] {Sce^osi, § 549 and notes.} ' [Ames V. Belden, 17 Barbour, 515.] 8 4 Co. 83, b. ; 1 Inst. 89, a. b. < 2 Ld. Raym. 909, 911. 6 2 Ld. Raym. 909. ° Jones on BaUm. 42 to 45. ' Kettle V. Bromsall, Willes, 118, 121. {See Trefftz v. Canelli, L. R. 4 P. C. 277.} [But modern cases have declared there is no difierence between a carrier's general duty to carry, and his special contract to carry " safely and securely," because both are subject to such excep- CH. I.] BAILMENTS IN GENERAL. 35 § 34. The rule of the civil law is on this point conformable to ours. " Si quid nominatim convenit " (is the language of that law), " vel plus vel minus in singulis contractibus, hoc servabitur, quod initio convenit; legem enim contractus dedit." 1 § 35. To what extent a special agreement actually varies the obligations of the bailee, resulting from the general prin- ciples of law, must in a great measure depend upon the true exposition of the terms of the particular agreement. The general rule in such cases would seem to be, not to expound the contract unfavorably to the bailee beyond the obvious scope of its terms.^ Sir William Jones thinks that a deposi- tary would not be liable for a loss of the goods by robbery, without a most express agreement.^ St. Germain also holds, that, if a depositary promise to restore the goods safe at his peril, he is not responsible for casualties ; but that it would be otherwise if he is to receive a reward.* Lord Holt, in Coggs V. Bernard,^ was of opinion, that upon a promise by a bailee without reward to keep or carry safely, he is not responsible for injuries or losses occasioned by the acts of wrong-doers ; ® and, a fortiori, that he is not responsible for a theft not caused by his own neglect. Robbery would, of course, in his opinion exempt him from liability. Mr. Justice Powell, in the same case thought that robber}' would not be an excuse ; and, of course, that theft would not ; ^ because the bailee would have a remedy over against the robber. Mr. Justice Powys and Mr. Justice Gould seem to have agreed in opinion with Lord Holt.^ Sir W. Jones holds, that in such a case the bailee would be responsible for a loss by theft, but tions as the law 'will create. See Austin v. Manchester, &c., Railway, 5 Eng. Law & Eq. 329; 16 Q. B. 600; Shaw v. York & N. M. Railway Co., 13 Q. B. 347; CoUett v. London & Iforthwestern Railway Co., 6 Eng. Law & Eq. 305 ; 16 Q. B. 984.J 1 Jones on Bailm. 48; Dig. Lib. 50, tit. 17, 1. 23; Dig. Lib. 17, tit. 1, 1. 39. 2 Post, § 512, 550. [See Ames v. Belden, 17 Barbour, 517.] » Jones on Bailm. 44, 97, 98. * Doct. and Stud. Dial. 2, ch. 38. 6 2 Ld. Raym. 909, 915, 918. « Dig. Lib. 13, tit. 6, 1. 19. r 2 Ld. Raym. 911. » 2 Ld. Raym. 909, 914. 36 BAILMENTS IN GENERAL. [CH. I. not for a loss by robbery. ^ He manifestly founds himself upon the distinction taken in the civil law, that the attack of robbers is an irresistible force ; but that of thieves may be guarded against by vigilance ; " Impetus predonum a nullo prsestantur."^ The reason given is: " quibus resisti non possit." ^ But theft was not deemed to fall under the like consideration. " Quod si furibus subreptum sit, proprium ejus detrimentum est ; quia custodiam prsestare debuit, qui sestimatum accepit." * Lord Chief Justice Willes, however, seems to have thought, that, upon such a special undertaking, even robbery would not be an excuse.^ The civil law does not appear to go so far as to make a bailee liable for robbery upon such a contract,^ although he would be liable for theft. Its language is : " Non enim dubitari oportet, quin is, qui salvum fore recipit, non solum a furto, sed etiam a damno recedere videatur." ^ § 36. In respect to losses occasioned by inevitable accident, such as by lightning, tempest, inundation, and other like un- avoidable calamities, there are very respectable authorities, that, notwithstanding a special contract or undertaking to keep safely, the bailee will not be responsible for such losses. Sir W. Jones manifestly supported this doctrine.^ It is sanc- tioned also by St. Germain in the passage above cited ; ^ and was avowed by the Court in Coggs v. Bernard. i" There are many cases in our law, where, if a contract or condition, pos- sible at the time it was made, becomes afterwards impossible 1 Jones on Bailm. 43, 44, 45, 98, 103. 2 Jones on Bailm. 44, note (o) ; citing Goth. Com. in LL. Contractus, p. 145. The same commentary is given in Van Leeuwen's edition of the Digest, Lib. 17, tit. 2, 1. 52, § 3, note 22, 24, edit. 1726; Dig. Lib. 50, tit. 17, 1. 23; Dig. Lib. 13, tit. 6, 1. 18; Dig. Lib. 17, tit. 2, 1. 52, § 3; post, § 38, 334 note. 8 Dig. Lib. 13, tit. 6, L 18. * Dig. Lib. 17, tit. 2, 1. 52, § 3, and the commentary in Van Leeuwen's edition, 1726. 6 Kettle V. Bromsall, Willes, 121. « Cod. Lib. 4, tit. 24, 1. 6. ' Dig. Lib. 4, tit. 9, 1. 5, § 1; Pothier, Pand. Lib. 4. tit. 9, n. S; post, §37. 8 Jones on BaUm. 43-45. 8 Doct. and Stud. Dial. 2, ch. 38; ante, § 35. i» 2 Ld. Raym. 909, 911, 915. CH. I.J BAILMENTS IN GENERAL. 37 by the act of God, or of the law, the obligation or condition is discharged.! There are others, again, where a different doctrine is inculcated.^ It is not easy to reconcile the cases, or to point out the different reasonings on which they pro- ceed. In a leading case, the following distinction was taken : " Where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and he hath no remedy over, there the law will excuse him : as in the case of waste, if a house be destroyed by tempest, or by enemies, the lessee is excused. But when the party, by his own con- tract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity ; because he might have provided against it by his contract. And, therefore, if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it."^ This distinc- tion has the countenance of highly respectable authorities.* But in the present state of the law, it does not seem possible to lay down any general rule on the subject, as to what casu- alties will excuse or not in cases of a special contract.® 1 Powell on Contr. 446; Com. Dig. Condition, D. 1, 1. 12, 13; Co. Litt. 206; 1 Roll. Abridg. Condition, G. p. 450, pi. 10; Id. I. p. 451, pi. 1, 2; Williams ». Hide, Palmer, 548, 550; W. Jones, 179; Com. Dig. Assumpsit, G. ; Bac. Abridg. Condition, D. 1, 2; Noy, Max. 35; Harring- ton V. Dennie, 13 Mass. 93; Badlam v. Tucker, 1 Pick. 284. 2 1 Roll. Abridg. Condition, G. p. 450, pi. 8-10; Com. Dig. .4s- sumpsit, G. ; Baylies v. Fettyplace, 7 Mass. 325; Phillips v. Stevens, 16 Mass. 238 ; 2 Saund. 422, note by Williams (2); 6 T. R. 759. ' Paradine v. Jane, Aleyn, 26, 27. * Brecknock and Abergaveny Canal Co. v. Pritchard, 6 T. R. 750; Hadley v. Clarke, 8 T. R. 259, 267; Blight v. Page, 3 Bos. & Pull. 295, note (a); Atkinson v. Ritchie, 10 East, 530, 533; Barker v. Hodgson, 3 Maule & Selwyn, 267 ; Sjoerds v. Luscombe, 16 East, 201 ; Bullock v. Dommitt, 6 T. R. 650; Digby o. Atkinson, 4 Camp. 275; Phillips v. Stevens, 16 Mass. 238; Medeiros v. Hill, 8 Bing. 231; Abbott on Shipp. Pt. 3, ch. 1, § 14 to 16; Id. ch. 7, § 17, 19; Id. ch. 11, § 3; 2 Story, Eq. Jurisp. § 1303 to 1311; 1 Roll. Abridg. Condition, G. pi. 8,1. 20; Id. pi. 9, 1. 25 ; Piatt on Covenants, Pt. 6, ch. 2, § 1, p. 582 to 585; Chitty on Contracts, by Perkins, p. 567 to 569, Amer. edit. 1839. ' See post, § 202, 550. A learned friend has submitted the following as the true distinction, which ought to govern in cases of this sort. Where the contract is for a personal service, which none but the promisor 38 BAILMENTS IN GENEKAL. [CH. I. § 37. The general rule of the civil law is that stated by Heineccius, that a bailee is never responsible for casualties, unless there has been some unjustifiable delay, or the party has taken upon him the risk of the casualty, or he is at the same time guilty of neglect. " Casus nunquam prsestatur nisi vel in mori sit debitor, vel casum in se ultro susceperit, vel culpam simul admiserit."i A bailee, therefore, may ren- der himself responsible for casualties, if he chooses to contract against them, even though he be a mere depositary. " Si convenit, ut in deposito et culpa prsestetur, rata est conventio ; contractus enim legem ex conventione accipiunt."^ But it does not seem precisely laid down, what cases, or rather what special contracts, shall be deemed to include the risk of casu- alties. The general rule of the civil law would seem to be, that the risk of casualties is never included under the general terms of a contract. But that, however general the under- taking may be, it includes only such risks as might be foreseen, and not those which there could be no room to apprehend. Pothier^ deduces this doctrine from the civil law; and the Code seems to countenance it : " Quae fortuitis casibus acci- can perform, ex. gr., that he will he at a certain place at a certain time, there, inevitahle accident will excuse the non-performance, by an inher- ent condition in the nature of the contract. But, where the thing to be done may be performed by the promisor, or by another person, there all accidents are at the risk of the promisor, if he makes no exception. It will be found difficult to reconcile this distinction with some of the au- thorities. See 1 Roll. Abridg. Condition, G. pi. 8-10 ; Com. Dig. Con- dition, D. 1; Com. Dig. Action on the Case upon Assumpsit, G. ; Com. Dig. Covenant, E. 3; Piatt on Covenants, Pt. 6, ch. 2, § 1, p. 582 to 585. Per- haps, if the question was entirely new, the good sense of the doctrine would be, that where the act stipulated to be done by a party becomes impossible to be done by any one, by inevitable accident, or the act of Providence, there the party shall stand excused. But, where the act is stipulated to he done by a party, and he becomes incapable, by death or otherwise, but the act can be done by another person, there the non- performance shall not be excused. 1 Heinec. Elem. Jur. Inst. Lib. 3, tit. 14, § 785; 1 Domat, B. 1, tit. 1, § 3, art. 10, and tit. 7, § 3, art. 6; Vinn. ad Inst. Lib. 3, tit. 15. 2 Dig. Lib. 16, tit. 3, 1. 1, § 6; Dig. Lib. 2, tit. 14, 1. 7, § 15; 1 Domat, B. 1, tit. 7, § 3, art. 7 ; Pothier on Oblig. P. 1, n. 142. » Pothier, ObUg. P. 3, n. 633; Pothier, Trait6 du Cont. de Louage, n. 5. CH. I.] BAILMENTS IN GENERAL. 39 dunt, cum prsevideri non potuerint (in quibus etiam aggressura latronum est), nullo bonse fidei judicio prsestantur." i The Code of France adopts into its positive regulations most, if not all, the rules of the civil law on this subject. It considers the obligation extinguished when the thing, which is the ob- ject of the obligation, is extinguished, or has perished without the default of the obligor, or unless he has agreed to be charged with accidents.^ And the same was the antecedent rule, as we learn from Pothier.* Pothier, in another place, says, that if by his contract the thing is to be at the risk of the hirer during the period of the bailment, by these terms the hirer is responsible for the slightest negligence, but not for losses by casualties, or by the vis major.^ § 38. In respect to theft. Sir William Jones has given an opinion, that a loss by private theft is presumptive evidence of ordinary neglect.^ And he cites with manifest approbation the commentary of Gothofred on the Pandects, where he says : " Alia est furti ratio ; id enim non casui, sed levi culpee, ferm^ ascribitur. Adversus latrones pariim prodest custodia; ad- versus furem prodesse potest, si quis advigilet." ^ The civil law seems to warrant this distinction.' Pothier, too, has adopted it ; but he considers the presumption of neglect, in case of theft, to be open to be rebutted by proof of due care.* 1 Cod. Lib. 4, tit. 24, 1. 6; ante, § 35. 2 Code Civil, B. 3, tit. 3, § 6, art. 1142, 1302, 1303. The Civil Code of Louisiana seems to have adopted similar principles. Code Civil of Louisiana (1825), art. 1927, 2216. 8 Pothier on Oblig. n. 142, 143, 148. * Pothier, Louage, n. 192. Pothier, in another place, speaks of the vford risk, as having several significations, one of ■which is, that the thing is entirely at the risk or peril (periculum) of the bailee, even against acci- dents by superior force; and another, when it signifies only that the bailee shall be held liable for any the slightest neglect or fault. Pothier, de D6p6t, n. 32. 5 Jones on Bailm. 38, 39, 40, 43, 44, 66, 76, 77, 78, '109, 110, and note (q), 119; ante, § 35; post, § 76, 230. ' Ante, § 35 ; Jones on Bailm. 44, n. (o). ' Dig. Lib. 17, tit. 2, 1. 52, § 3; Wood, Inst. B. 1, ch. 1, p. 107; 1 Domat, P. 1, tit. 4, § 8, art. 3; Just. Inst. Lib. 3, tit. 15, § 2, 3 ; Jones on Bailm. 44, n. (o) ; post, § 334, note. 8 Pothier, Traite du Pret k Usage, n. 53. 40 BAILMENTS IN GENERAL. [CH. I. § 39. There does not seem to be any such rule adopted into our law as Sir William Jones supposes. If the theft has been caused by negligence, it is without doubt, that the bailee will be responsible, where the nature of the bailment would make such a degree of negligence a breach of his implied obligation. But, abstractly speaking, there is nothing in the case of theft from which we have a right to infer, that, because a loss has happened by it, there must have been some neglect.^ On the contrary, no degree of vigilance will always secure a party from losses by theft. A store may be broken open, however securely locked ; a person may be robbed, while riding in a stage-coach, or while asleep ; a servant may be faithless, and betray the confidence reposed in him ; a person may be seized with a sudden fit, or alienation of mind, and the theft may be committed without any consciousness on his part. In these, and in many other cases, there would not be any presumption of neglect. And the civil law itself supposes, that in such cases the bailee might repel the imputation of negligence.^ By our law, a bailee is in many cases excusable, when the loss is by theft ; but never, when that theft is occasioned by gross negligence. So long ago as the reign of Edward the Third,^ it was held, that if a person bail his goods to keep, and they are stolen, the bailee is excused. The reasoning of the Court, in Coggs V. Bernard,* shows, that the Court did not consider theft as primd facie presumptive of negligence. In short, our law considers theft, like any other loss, to depend, for its validity as a defence, upon the particular circumstances of the case, and to be governed by the general nature of the bail- ment, and the responsibility attached thereto. It raises no presumption either way from the mere fact of theft. It neither imputes the theft to the neglect of the party, nor, on the other hand, exempts him from responsibility, from that fact alone. But it decides upon all the circumstances of the case, and ^ See Vere v. Smith, 1 Vent. 121 ; s. c. 2 Lev. 5 ; Jones on Bailm. 98. 2 Dig. Lib. 13, tit. 6, L 19, 20, 21; 1 Domat, B. 1, tit. 4, § 8, art. 3; Just. Inst. Lib. 3, tit. 15, § 3. 8 Year Book, Liber Assisarum, An. 29, pi. 28. < 2 Ld. Raym. 909. See 1 Vent. 121. CH. T.] BAILMENTS IN GENERAL. 41 thence arrives at the conclusion, that there has, or there has not, been a due degree of care used.^ § 39 a. In cases of bailment, the question sometimes oc- curs, how far a second bailee is liable to the original bailor, where the first bailee is a wrong-doer, or where the second bailee claims either by his own tort, or by a defective deriva- tive title under the first bailee. There is no doubt, that in each of these cases the original bailor has a good cause of action, as well against the first bailee, as the second bailee, for each is guilty of a wrong to him.^ But the form in which the remedy is to be sought has been thought to admit of a distinction. Thus, for example, if the first taker is a tres- passer and the second taker is a trespasser also, an action of trespass, or an action of replevin, or an action of trover, at the election of the owner, will lie against each of them.^ But, if the first taker only be a wrong-doer, and the second taker comes to the possession of the property by delivery as a pur- chaser or otherwise, bond fide and innocently, and without any fault on his own part, it is said that the owner cannot main- tain an action of trespass against the second taker ; but his appropriate remedy is either an action of trover or of replevin in the detinet.* § 40. There is another topic, which may properly be con- sidered in this preliminary view of the general doctrine of bailments, inasmuch as it seems applicable to every species of them. An allusion is here intended to the subject of the confusion of property by the bailee, so that the bailor's prop- erty cannot be distinguished from his own. Mr. Justice 1 Finucane v. Small, 1 Esp. N. P. C. 315; [Butt v. Great Western Railway Co., 11 C. B. 151, 7 Eng. Law & Eq. 448;] 2 Kent, Comm. Lect. 40, p. 556, 4th edit. ; Fitz. Abridg. Accompt, pi. 11 ; post, § 76, {338.} « See Cummings v. Vorce, 3 Hill, 282; Barrett v. Warren, 3 Hill, 348; Acker v. Campbell, 23 Wend. 372; Gary v. HotaiUng, 1 Hill, 311 ; Wil- braham v. Snow, 1 Siderf. 438. 8 Ibid. * Wilson V. Barker, 4 Bam. & Adolph. 614; Badkin v. Powell, Cowp. 476; Comyns, Dig. Trespass, D.; Bac. Abridg. Trespass, E. 2, citing Bro. Abridg. Trespass, pi. 48; Van Brunt v. Schenck, 11 Johns. 384 ; M'Carty V. Vickery, 12 Johns. 348 ; Storm v. Livingston, 6 Johns. 44 ; Barrett v. Warren, 3 Hill, 348. But see the opinion of Mr. Justice Cowen, ibid. 42 BAILMENTS IN GENBEAL. [CH. I. Blackstone has correctly stated the general rule, and truly- said, that the English law partly agrees with, and partly differs from, the civil law. " If (says he) ^ the intermixture be by consent, I apprehend, that, in both cases, the proprie- tors have an interest in common, in proportion to their re- spective shares.^ But, if one wilfully intermixes his money, corn, or hay with that of another man, without his approba- tion or knowledge, or casts gold, in like manner, into another's melting-pot or crucible, the civU law, though it gives the sole property of the whole to him who has not interposed in the mixture, yet allows a satisfaction to the other, for what he has so improvidently lost.^ But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavored to be rendered uncertain, without his consent."* But there may be a case of confusion of property, neither by consent, nor by wilfulness, as, where the bailee, by negligence, or unskilful- ness, or inadvertence, mixes up his own goods of the same sort with those bailed ; and there may also be a confusion arising from mere accident and unavoidable casualty. In the latter case, that of intermixture by accident, the civil law deemed the property to be held in common, whether the mixture produced a thing of the same sort, or not ; as if the wine of two persons were mixed by accident.^ The like rule would probably be adopted in our law, under the like circum- stances.^ But in cases of an intermixture by unskUfulness, 1 2 Black. Comm. 405. 2 Vinn. ad Inst. Lib. 2, tit. 1, p. 169; Just. Inst. Lib. 2, tit. 2, § 27; Ayliffe, Pand. B. 3, tit. 3, p. 29L 8 Vinn. ad Inst. Lib. 2, tit. 1, p. 170; Just. Inst. Lib. 2, tit. 1, § 28. ^ See Hart u. Ten Eyok, 2 Johns. Ch. 62; 2 Kent, Comm. Lect. 36, p. 364, 365, 4th edit. 5 Vinn. ad Inst. Lib. 2, tit. 2, § 28. « Dane's Abridg. ch. 76, art. 5, § 19. [A somewhat similar principle was acted upon in a recent interesting case in England. Several thousand bales of cotton were shipped at Mobile for Liverpool, forty-three of which belonged to S., and the rest to various other parties. The vessel was wrecked at Key West, and some of the cotton lost, and all more or less damaged. The marks on the bales saved were so obliterated by sea-water they could not be identified as belonging to any particular consignee; and CH. I.] BAILMENTS IN GENERAL. 43 negligence, or inadvertence, a different rule seems to prevail in our law. In cases of this nature, the principle seems to be, that, if a man, having undertaken to keep the property of another distinct from his own, mixes it with the latter, the whole must, both at law and in equity, be taken to be the property of the bailor, until the bailee puts the subject-matter under such circumstances, that it may be distinguished as satisfactorily, as it might have been before that unauthorized mixture on his part. This rule has been laid down by Lord Eldon,^ and by the Court of Exchequer.^ In the case before Lord Eldon, he said : " What are the cases, in the old law, of a mixture of corn and flour ? If one mixes his corn or flour with that of another, and they were of equal value, the latter must have the given quantity. But, if articles of different value are mixed, producing an aggregate of both, and, through the fault of the person mixing them, the other party cannot tell what was the original value of his property, he must have the whole." Mr. Chancellor Kent has acted upon a similar principle, holding, that, if a person, having charge of the property of another, so confounds it with his own, that it can- not be distinguished, he must bear all the inconveniences of the confusion. If he cannot distinguish and separate his own, he shall lose it.^ The conclusion to be drawn from these decisions, and other authorities,* seems to be, that, in cases of negligent and inadvertent mixtures (perhaps even of wil- ful mixtures), if the goods can be easily distinguished and separated, then no change of property takes place, and each party may lay claim to his own. If the goods are of the same nature and value, although not capable of an actual separa- it was held that the loss should not fall on any one owner, but that all became tenants in common in all the cotton saved, in proportion of each one's shipment to the whole cargo; and this section of Story on Bailments was cited and relied upon. Spenoe v. Union Marine Ins. Co., Law Rep. 3 C. P. 427 (1868). See farther, Buckley v. Gross, 3 B. & S. 574; Jones V. Moore, 4 Y. & C. 351 ;] {Moore v. Erie Railway Co., 7 Lans. 39.} 1 Lupton V. White, 15 Ves. 432, 436, 439. 2 Panton v. Panton, cited 15 Ves. 440. 8 Hart V. Ten Eyck, 2 Johns. Ch. 62. * See Bond v. Ward, 7 Mass. 123; Dane's Abridg. ch. 76, art. 3, §15. 44 BAILMENTS IN GENERAL. [CH. I. tion by identifjdng each particular ; yet, if a division can be made of equal value (as in the case of a mixture of corn or of coffee, or tea, or wine of the same kind and quality), there each may claim his aliquot part. But, if the mixture is un- distinguishable, and a new ingredient is formed, not capable of a just appreciation and division, according to the original rights of each, there the party who occasions the wrongful mixture must bear the whole loss.^ 1 See Aylifie, Pand. B. 3, tit. 3, p. 291, 292; Erskine, Inst. B. 2, tit. 1, § 17; 1 Story on Eq. Jurisp. § 628; Story on Agency, §193; 2 Story on Eq. Jurisp. § 1282, 1283. {The legal doctrine of confusion of property is treated at length in 2 Sch. Pers. Prop. 40-53. And see The Idaho, 93 U. S. Supr. 575 ; Dierkson v. Cass Co. Mill, 42 Iowa, 38.} CH. II.J ON DEPOSITS. 45 CHAPTER II. ON DEPOSITS. i 41, 42. Definition of Deposits. 43. From what the word is derived. 44. Division of Deposits into Voluntary and Necessary. 44 a. Involuntary Deposits, what. 45. Another Division into Simple Deposits and Sequestrations. 46. How far these Divisions are recognized at the Common Law. 47. Difference between Deposit and Muluum. 48. Principles of the Contract arising from Natural Law. 49. Divisions of the subject. 50. By and between what persons the contract of Deposit may be. 51. What may be the Subject-matter of a Deposit. 52. What title Depositor must possess. Secondary Bailments. 53. Effect of Return of Deposit to owner. 54. How and when an Accessorial thing passes with a Deposit. 55-60. What is of the Essence of the Contract of Deposit. Delivery of the thing. 61. Obligations of Depositaries. To keep with care ; and to restore on re- quest. 62. What is Keeping with reasonable Care. What degree of Diligence re- quired of Depositary. 63-71. Whether sufficient for the Depositary to keep, as he keeps his own goods. 72. An undertaking to keep, not equivalent to undertaking to keep safely. 73. Effect of undertaking to keep Deposit, as bailee keeps his own goods. He is not liable for theft. 74. Effect of undertaking to keep goods in a particular place. 75-78. Effect of Concealment of Contents of Deposit. Soman and Scotch Law. 79. Presumption of due Diligence, if bailee keeps the Deposit as he keeps his own goods. 80. Exceptions as to the general rule of Diligence. 1. Special Contract. 2. Officious Offer of Services. 81. 82. j These Exceptions considered.} 83. Kule as to Diligence in cases of Necessary Deposits. 83 a. Involuntary Deposit. Right to enter and reclaim property. 84. Irregular Deposits, what. , 86. Quasi Deposits by finding goods. Responsibility of Finder. 85 0-87. Whether Finder is responsible for Gross Negligence. 88. Bank Deposits General and Special. Embezzlement by Officers of the Bank. 89-91. Use of Deposit, — how far Depositary may use it. 46 ON DEPOSITS. [CH. II. § 92. Remedy in case of Breaking open a Sealed Deposit. 93-93 ;. Whether Depositary has a Special Property in the Deposit, or may maintain an Action for Injury to it. 94. The right of jeither Bailor or Bailee} to maintain an action against a Stranger, for Injury to it. 95. The Civil Law on this subject. 96. Eestitution of Deposit. Obligation of Depositary. 97. In what state to be restored. Responsibility for Injuries. 98. Formerly a doubt at the Common Law, whether Depositary was com- pellable at law to restore. 99. Restitution of the Increase and Profits of Deposits. 100. Sale of Deposit by Depositary, effect of. 101. Sale by Heir or Administrator without knowledge of the Deposit. 102. To whom Restitution is to be made. Bailment of Stolen Goods. 103. In case of Intermediate Transfer of Title by Depositor. Effect of Re- mittance to pay a Debt. 104. Whether Bailee may restore to his Bailor, notwithstanding an adverse claim. Countermand by Bailor. 106. Rights of Owner in case of a second Bailment by his Bailee. 106. To whom Restitution should be, where Deposit has been made by a Servant. 107. When Demand necessary to be made by Depositor. {Effect of Limita- tions. | 108. How Restitution to be made according to the Civil and Foreign Law. 109. Deposit by Guardians, Administrators, and Trustees, — to whom Resti- tution is to be made. 110. What is to be done in cases of Adverse Claims by Different Persons. 111. 112. Interpleader, what. When, and between whom it lies. 118. The Civil Law, and Foreign Law on the same subject. 114. Restitution in cases of Joint Deposits. Remedy of Depositary in such a case, if one Joint Depositor seizes the Deposits. 115. The Civil Law in Cases of Joint Deposits. 116. Responsibility of Joint Depositaries. 117. 118. Restitution of Deposit, in what place. 119. Restitution, whether demandable before expiration of time of Deposit. 120. Restitution, what will excuse the Depositary, or entitle him to Time to make return. Recovery by Title Paramount. 121. Expenses of Depositary to be reimbursed, whether he has a lien for. 121 a. Involuntary Deposits. Expenses. Salvage. 122. Effect of unjustifiable Refusal to restore the Deposit. Future Responsi- bility of Depositary. 123. When Interest or Damages payable on account of Detention. 124. Deposits of Goods attached on Process. 125. Rights of the Attaching Officer in cases of Deposits on Attachments. 126. When the attaching ofiicer may demand the Deposit attached. Effect of Judgment and Subsequent Attachment. 127. The Attaching officer may retake the goods attached from the possession of the Debtor. 128. Responsibility of the Attaching Officer to the Debtor. 129. Rights of the Creditor in such cases of Attachment and Deposit. CH. n.] ON DEPOSITS. 47 § 130. The Duties of the Attaching Officer, — what degree of Negligence will make liable. 131. Who is to indemnify the Attaching Officer for his expenses in keeping the Goods attached. 132. The Rights and Duties of the Attaching Officer's Bailee. 133. Whether the Bailee has a Special Property in the Goods attached. 134. Notice of the French Law in cases of Attachments and Sequestrations. 135. Effect of Attachment as to the Rights of the Owner of the Goods. 136. Conclusion of the head of Deposits.] § 41. A DEPOSIT is usually defined to be a naked bailment of goods, to be kept for the bailor without reward, and to be returned when he shall require it.^ Perhaps a more correct definition would be, that it is a bailment of goods to be kept by the bailee without reward, and delivered according to the object or purpose of the original trust ; for, in some cases, the deposit may be for the benefit of a third person, and to be delivered to him when demanded, and not to be returned to the bailor.^ The definition of the Roman law, as we shall presently see, is singularly brief, and pregnant in meaning. 1 Jones on Bailm. 36, 117; 1 Bell, Comm. § 199, 4th edit.; 1 Bell, Comm. p. 257, 5th edit. See also, 1 Dane's Abr. ch. 17, art. 1, § 3 ; 1 Stair, Inst. B. 1, tit. 13, § 1 ; Ersk. Inst. B. 3, tit. 1, § 26; 2 Kent, Comm. Lect. 40, p. 560, 4th edit. ; 1 Domat, B. 1, tit. 7, § 3. '^ {It should be carefully borne in mind that the word " deposit," as thus used (whether wisely or no) in the law of Bailments, has a technical meaning, far more restricted than our English word as commonly applied. The ordinary bank deposit, sometimes styled a general deposit, is no bailment at all, for the identical thing delivered is not to be restored. Nor would even a special deposit, so termed, be a bailment of the kind treated in this chapter, if received, as is now so frequent, on compensation for the keeping; it is a bailment of the " hire " species. A want of pre- cision in these distinctions is noticeable in some of our later reports and digests. See post., § 88. A deposit must in general be distinguished from a loan. Rankin v. Craft, 1 Heisk. 711. It is held in Pattison v. Syracuse Nat. Bank, 4 Thomp. & C. (N. Y.) 96, that where nothing was said about compensation at the time of the deposit, and the depositary has, by his course of dealing with depositors, the right to demand compensation, the bailment cannot be deemed gra- tuitous. And see Second Nat. Bank v. Ocean Nat. Bank, 11 Blatchf. 362. As to whether banks chartered by Act of Congress are empowered to take special deposits without compensation, see Third Nat. Bank v. Boyd, 44 Md. 47, 61; Wiley v. First Nat. Bank, 47 Vt. 546; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278. And in general as to whether the contract be gratuitous or not, see Mariner t>. Smith, 5 Heisk. 203. } 48 ON DEPOSITS. [CH. H. § 42. Pothier defines it to be a contract, by which one of the contracting parties gives a thing to another to keep, who is to do so gratuitously, and obliges himself to return it, when he shall be requested.^ In the Spanish Partidas, it is thus defined : " When one man gives any thing to another, in whom he has confidence, to keep it for him."^ § 43. The word is derived from the Latin, Depositwm, which, Ulpian informs us, is compounded of de and positum. " Depositum est, quod custodiendum alicui datum est. Dictum ex eo quod ponitur ; prepositio enim, de, auget depositum ; ut ostendat, totum fidei ejus commissum, quod ad custodiam rei pertinet." ^ It is also sometimes called Commendatum, for " Commendare nihil aliud est, quam deponere." * § 44. Deposits, in the civil law, are divisible into two kinds : necessary and voluntary. A necessary deposit is such as is made by the party upon some sudden emergency, and from some pressing necessity, as, for instance, in case of a fire, a shipwreck, or other overwhelming calamity ; and it is, there- fore, confided to any person, with whom the depositor meets, without any proper opportunity for reflection or choice ; ^ and thence it is called Miserabile depositum.^ A voluntary deposit is such as arises without any such calamity, from the mere consent and agreement of the parties.'^ This distinction was material in the civil law in respect to the remedy ; for, in vol- untary deposits, the action was only in simplum, in the other, it is in duplum, or twofold, whenever the depositary was guilty of any default.* The common law has made no such distinction ; and, therefore, in a necessary deposit, the rem- edy is limited to damages coextensive with the wrong.^ § 44 a. There is another class of deposits, which may prop- 1 Pothier, Traite de D^pot, n. 1. See Code Civil of France, art. 1915. 2 Moreau and Carlton's Partidas, 5th, tit. 3, b. 1. 8 Dig. Lib. 16, tit. 3, b. 1; Heinec. Pand. Lib. 16, § 217. * Dig. Lib. 50, tit. 16, § 186. » Pothier, Traits de Depot, u. 75 ; 1 Domat, B. 1, tit. 7, § 5, art. 1, 2. 6 Pothier, Traits de D6p6t, n. 75. ' Dig. Lib. 16, tit. 3, § 2; 1 Pothier, Pand. Lib. 16, tit. 3, n. 1; Heinec. Elem. Pand. Lib. 16, tit. 3, § 219. 8 Dig. Lib. 16, tit. 3, § 2-4; Pothier, Pand. Lib. 16, tit. 3, n. 16, 44, 51. ° Jones on Bailm. 48. CH. n.] ON DEPOSITS. 49 erly be called involuntary, as contradistinguished from neces- sary and voluntary, inasmuch as each of the latter presupposes some act of the depositor, whereas involuntary deposits may be without the assent, or even knowledge, of the depositor. Thus, for example, where lumber, floating in a river, is by a great flood or freshet thrown upon the land of another person, and is there left by the subsidence of the stream, it may prop- erly be called an involuntary deposit. § 45. Deposits are again divided, in the civil law, into simple deposits and sequestrations ; the former is, when a deposit is made by one or more persons, having a common interest ; ^ the latter is, when the deposit is made by one or more persons, each of whom has a different and adverse interest in contro- versy touching it : " Proprie autem in sequestre est depositum, quod a pluribus in solidum cert& conditione custodiendum reddendumque traditur.^ Sequester dicitur, apud quem plures eandem rem, de quS, controversia est, deposuerunt." ^ Deposits by sequestrations are of two sorts : first conventional, or such as are made by the mere agreement of the parties without any judicial act ; secondly, judicial, or such as are made by order of a court in the course of some judicial proceeding.* In all these cases of sequestrations, the depositary is a mere stake- holder, and the deposit is to be delivered to him who is ad- judged ultimately to have the right.^ § 46. These distinctions are also found in the French law ; ^ and they give rise to different considerations in point of re- sponsibility and rights.'' Hitherto they do not seem to have 1 PotMer, Traite de D6p6t, 1. 2 Dig. Lib. 16, tit. 3, 1. 6; PotMer, Pand. Lib. 16, tit. 3, n. 58; 1 Domat, B. 1, tit. 7, Prelim. Obs.; Pothier, Traits de D6p6t, n. 1, 84. 3 Dig. Lib. 50, tit. 16, 1. 110 ; Pothier, Pand. Lib. 16, tit. 3, n. 58 ; Pothier, Traite de DepSt, n. 1, 84. * Pothier, Traits de D6p6t, n. 84, 85, 90 to 100; Code of Louisiana, of 1825, art. 2941, 2948; 1 Domat, B. 1. tit. 7, § 4, art. 1. 6 Dig. Lib. 16, tit. 3, 1. 5, § 1, 2; Id. 1. 7 ; AyliSe, Pand. B. 4, tit. 17, p. 519, 520; Pothier, Traite de Depdt, n. 1; 1 Domat, B. 1, tit. 7, Prelim. Obs. Id. tit. 7, § 4, art. 5; Lafarge »., Morgan, 11 Martin, 462, 522; Code of Louisiana (1825), art. 2946.,. ' 8 Pothier, Trait6 de D6p6t, "Art Prelim.'n. 84; Code de Prance, B. 3, tit. 11, art. 1920, 1921, 1949; Moreau and Carlton, Partidas 5, tit. 3, 1, 1. ' Pothier, Traitd de D6p6t, 1i.'85 to 88. 4 so ON DEPOSITS. [CH. n. been incorporated into our law ; although, if cases should arise, the principles applicable to them could scarcely fail of receiv- ing general approbation, at least so far as they affect the rights and the responsibilities of the parties. Cases of judicial se- questrations and deposits, especially in courts of equity and courts of admiralty, may hereafter require the subject to be fully investigated. At present, fortunately, there have been few cases in which it has been necessary to consider upon whom the loss should fall, when the property has perished in the custody of the law.^ The general rale seems to be, that, in cases of conventional sequestrations, the depositary con- tracts the same obligations, as to diligence and care of the deposit, and the restitution of it, as he incurs in an ordinary deposit ; and the depositor contracts the like reciprocal obli- gations to the depositary.^ In cases of judicial sequestrations, when the depositary receives a compensation, he will be liable, like other persons for hire, for ordinary diligence.^ A receiver of money will sometimes be liable for extraordinary diligence, and bound by slight neglect.* § 47. A deposit differs from what is called in the civil law a mutuum, for in the latter case the identical thing lent is not to be returned, but another thing of the same kind, quality, nature, or value.^ Thus, for example, where the loan is of money, wine, or other things, that may be valued by number, weight, or measure, and are to be restored only in equal value or quantity, it is a mutuum fi In a mutuum the property passes 1 See Burke v. Trevitt, 1 Mason, 96, 101 ; post, § 125 to 132, 620. 2 Pothier, Trait6 de D^pot, n. 88, 98; Lafarge v. Morgan, 11 Martin, 462, 522; Code of Louisiana (1825), art. 2944. 3 Pothier, Traite de Depot, n. 96; Code of Louisiana (1825), art. 2943, 2949, 2950. " Pothier, Trait6 de DiJpot, n. 109-111. ^ Just. Inst. Lib. 3, tit. 15; Dig. Lib. 44, tit. 9, 1. 1, § 2; Dig. Lib. 12, tit. 1, 1. 2, § 2; Pothier, Pand. Lib. 12, tit. 1, n. 9, 10; Pothier, Pret a Usage, n. 10, 17; Pothier, Prfit de Consumption, n. 1, 4; AyhfEe, Pandect, B. 4, tit. 17 ; 1 Bell, Comm. § 197, 4th edit. ; 1 Bell, Comm. p. 257, 258, 5th edit.; 1 Stair, Inst. B. 1, tit. 11, § 1: Ersk. Inst. B. 3, tit. 1, §18. " Jones on Bailm. 64; Pothier, Trait6 du Pret h. Usage, n. 10; 1 Stair, Inst. B. 1, tit. 11, § 1; [South Australian Ins. Co. v. Randell, 6 Moore, P. C. (N. S.) 341.] CH. n.] ON DEPOSITS. 61 immediately from the mutuant, or lender, to the mutuary, or borrower, and the identical thing lent cannot be recovered or redemanded.i " Mutuum damns recepturi non eandem spe- ciem quam dedimus, alioquin commodatum erit aut depositum, sed idem genus." 2 Indeed, it is said in the civil law to de- rive its name from this very circumstance. " Appellata est autem mutui datio ab eo, quod de meo tuum fit ; et ideo si non fiat tuum, non nascitur obligatio." ^ But, in the case of a mere deposit, the property is not, as we shall hereafter see,* transferred or alienated; but it remains in the depositor; and the depositary has the mere possession or custody of the thing. ^ § 48. In the civil and French law, as in our law, the princi- ples which regulate the contract of deposit are deductions from natural law, and do not depend upon any positive regulations. Pothier boasts, that such is the foundation of the whole sys- tem : " II n'est assujetti (says he) par le droit civil &, aucune rdgle, ni a aucune forme." ^ He classes it, in his formal di- visions, as contract of natural law (^droit naturel) ; as a con- tract of beneficence ; as a real contract in the sense of the civil law, by which is meant such a contract as takes effect by the delivery of the thing itself ; and as a synallagmatical or bilateral contract, embracing reciprocal obligations ; although 1 AylifEe, Pand. B. 4, tit. 17, p. 519 ; Just. Inst. Lib. 3, tit. 15, Proem.; 1 Stair, Inst. B. 1, tit. 11, § 2; Ersk. Inst. B. 3, tit. 1, § 17, 18; Code of Loaisiana (1825), art. 2912; Jones on Bailm. 64; Pothier, Trait6 du Pr^t k Usage, n. 10; 1 Bell, Comm. § 197, 4th edit. Ayliffe uses the words mutuant and mutuary. Ayliffe, Pand. B. 4, tit. 11, p. 481. 2 Pothier, Pr6t de Consumption, n. 13; Dig. Lib. 12, tit. 1, L 2. 8 Dig. Lib. 12, tit. 1, 1. 2, § 2; Pothier, Pand. Lib. 12, tit. 1, n. 9, 10; 1 Stair, Inst. B. 1, tit. 11, § 2; Pothier, Pr^t de Consumption, n. 25; post, § 284. * Post, § 98, 94, 95, 150, 279, 283; St. Germain's Doctor and Student, oh. 38; 1 Stair, Inst. B. 1, tit. 11, § 2; Hurd v. West, 7 Cowen, 752, 756. 5 Pothier, Traits de Depot, n. 11, 12; Pothier, Traite du Pr6t a Usage, n. 10; Dig. Lib. 16, tit. 3, L 17; Ayliffe, Pand. B. 4, tit. 17; Hartop V. Hoare, 3 Atk. 44; s. c. 2 Str. 1187 ; 1 Wils. 8; 1 Bell, Comniv § 199, 4th edit. ; 1 Bell, Comm. p. 257, 258, 5th edit.; 2 Kent, Comm. Lect. 40, p. 568, 573, 585, 4th edit. ; [Williams v. Landry, 18 Louis. Ann. 208.] « Pothier, Traite de D6p6t, n. 18 to 21 ; Pothier on Oblig. n. 9. 52 OK DEPOSITS. [CH. H. it is imperfectly so, as the obligation of the depositary is the principal, and that of the depositor is a mere incident.' These divisions are not usually found in the treatises of the conamon law, although they have a just foundation in every system, aiming at entire accuracy. § 49. In considering the definition of a deposit, we are naturally led to the consideration of the persons by and be- tween whom it may be made ; the subject-matter of it ; what is of its essence ; when it is perfected ; and, lastly, the obliga- tions which arise from it. § 50. In respect to the persons by and between whom it may be made, it is only necessary to state that it is not dis- tinguishable from other contracts in this respect.^ It may be made by and between any persons who are capable of making a valid contract ; but not by and between those who are in- capable. Infants, married women, and other persons laboring under personal disability, cannot bind themselves, either as depositors, or as depositaries, although other persons may be bound to them. If an infant receives a deposit, he is, by the general principles of law, bound to restore it, if it is in his possession, or under his control ; but he is not responsible if he loses it.^ He may become responsible for any wUful wrong he does to it ; but he is not responsible upon the contract, unless it be a necessary contract, and manifestly for his ben- efit.* On the other hand, an infant may make a deposit ; and, in such a case, all the obligations of a depositary are binding upon the other party, until the infant repudiates the contract, or recalls the thing deposited.^ In the case of a married woman, if she makes a deposit without the consent of her husband, it is a mere void act, and no contract of de- posit arises : but the depositary will be bound to restore it to the husband.^ If, on the other hand, a married woman 1 Pothier, Traits de Dep6t, n. 18 to 21. 2 Post, § 162, 229. 8 Mills V. Graham, 4 Bos. & Pull. 140, 144; Code of Louisiana (1825), art. 2906, 2907. * See 1 Story on Eq. Jurisp. § 240-242 ; Pothier, Traite de D6p6t, n. 5; Mills v. Graham, 4 Bos. & Pull. 140, 144. ^ Code of Louisiana (1825), art. 2906. « Pothier, Trait6 de Depot, n. 6; 1 Story on Eq. Jurisp. § 243; Bac. Abridg. Bailment. CH. n.] OK DEPOSITS. 63 becomes a depositary without the consent of her husband, the act is a mere nullity, and no contract of deposit arises. Yet the husband will, in such a case, be bound to restore the thing to the depositor, if it is in his possession.^ Such also is the doctrine of the French law.^ The rule of the civil law is laid down somewhat differently; for it- is there said, that a slave or an unemancipated child may make a deposit, and be held liable upon a deposit ; yet, perhaps, it may be only where the act is done with the assent of the owner or father.^ § 51. In respect to the subject-matter, it is in our law lim- ited to personal or movable property, and is inapplicable to real or immovable property. The civil law, and the French law (which follows it) confine the bailment to corporeal property ; and do not admit its application to incorporeal property, such as choses in action and debts. But the title deeds, or evi- dences of such debts and credits, ipsa instrumentorum corpora, may become the subject of a bailment.* The distinction is nice ; but as the loss of the instrument will entitle the party to a recompense, adequate to the injury done him, it is un- important in practice.^ In the common law, and in the Scotch law, debts, choses in action, and other instruments and evi- dences of debts, may become the subject of a deposit, properly so called.^ § 52. It is not essential that the depositor should have an absolute title in the thing, in order to make it a valid deposit. It is sufficient, that he has a special property in it, or a lawful 1 Pothier, Traitt de D6p6t, n. 6; 1 Story on Eq. Jurisp. § 243; 2 Saun- ders, 47 d., Patterson & Williams's note (g) ; Smith v. Plomer, cited there, and in Peake on Evid. p. 342, 4th edit. {But for the sweeping changes made by later legislation in the contract capacity of married women, see Sch. Dom. Rel. and general works on Contracts. } 2 See Pothier, Traits de D6p6t, n. 5, 6; Pothier on Oblig. § 49; Code of Louisiana (1825), art. 2907. s See AyKffe, Pand. B. 4, tit. 17, p. 522; Dig. Lib. 16, tit. 3, 1. 11, 19; Pothier, Pand. Lib. 16, tit. 3, n. 41. * Pothier, Traits de D6p6fc, n. 2; Pothier, Pand. Lib. 16, tit. 1, n. 2-4. 5 Com. Dig. Trover, C. ; Arnold u. Jefferson, 1 Ld. Raym. 275; 1 Koll. Abridg. 5, K. 3. 8 1 Bell, Comm. § 199, 4th edit. ; 1 Bell, Comm. p. 258, 5tb edit. 54 ON DEPOSITS. [CH- H. possession of it.^ Nay, even a person who holds property by wrong, and without title, may lawfully deposit the same ; and he will be entitled to recover back the same against every one but the rightful owner.^ This is strongly put in the civil law, even in the case of a robbery or theft. " Si prsedo, vel fur deposuerint, et hos Marcellus putat recte depositi acturos."^ But in such a case, if the bailee ascertains who the rightful owner is, and that the goods have been stolen, the same law declares him at liberty, if it is not his absolute duty, to restore the goods to such owner.* And so is the French law.^ By the civil law, the owner was entitled to recover his property, tortiously taken, from any one into whose hands he could trace it. If there had been a second bailment, he might, at his elec- tion, proceed directly against the second bailee ; and if he recovered it against the latter, the right of the first bailee was extinguished.^ In the common law, also, where there has been a tortious conversion or possession, the owner may follow his property wherever he can find it.'^ Where there has been an original bailment by the owner, and a subsequent bailment by his bailee, if an action of detinue be brought by the owner against the last bailee, the latter may, in some cases, compel the owner and the first bailee to interplead, and thus escape the dangers of a double recovery.^ This remedy was given in 1 Armory u. Delamirie, 1 Str. 505; Rooth v. Wilson, 1 Bam. & Aid. 59 ; Com. Dig. Action on the Case, Trover, B. D. ; 2 Saund. 47, and note by Williams; 2 Kent, Comm. Leot. 40, p. 566, 567, 4th edit. ; 1 Stair, Inst. B. 1, tit. 11, § 8. 2 Aylifie, Band. B. 4, tit. 17, p. 522; Dig. Lib. 16, tit. 3, 1. 31, § 1. See Learned u. Bryant, 13 Mass. 224; post, § 132; Pothier, Traite de D6p6t, n. 51. 8 Dig. Lib. 16, tit. 3, 1. 1, § 39; post, § 108. < Dig. Lib. 16, tit. 3, 1. 31, § 1; post, § 108. ^ Pothier, Traite de Depot, n. 51. 6 Ayliffe, Pand. B. 4, tit. 17, p. 522; Dig. Lib. 16, tit. 3, 1. 1, § 30; Id. 1. 31, § 1. See also, 1 Roll. Abridg. Detinue, C. 4. ' Hartop V. Ploare, 3 Atk. 44; Taylor v. Plumer, 3 M. & Selw. 562 ; 2 Story, Eq. Jurisp. § 1257 to 1260 ; 2 Kent, Comm. Leot. 40, p. 566, 567, 4th edit. ; Mills v. Graham, 4 Bos. & Pull. 140, 147, per Chambre, J. ; post, § 102, 103, 105, 106. 8 Rich t). Aldred, 6 Mod. 216 ; 1 Roll. Abridg. Interpleader ; 2 Viner, Abridg. Bailment, E. § 32 ; Id. Interpleader ; 2 Story on Eq. Jurisp. § 801 CH. n.] OK DEPOSITS. 55 the old common law ; and it has been materially enlarged by the beneficent operation of the jurisdiction of courts of equity.^ But this subject will more properly find a place in a subse- quent discussion.2 § 53. If by mistake, or otherwise, the real owner receives his own property on deposit, his obligation to return it is ex- tinguished, unless another person has acquired, as against him, some right, interest, or lien, which he is bound to respect. " Qui rem suam deponi apud se patitur, vel utendam rogat, nee depositi nee commodati actione tenetur.^ And the same principle will apply where he has subsequently become enti- tled as owner.* § 54. It is said in the civil law, that, by a delivery of the principal thing, that which is accessorial does not pass ; as if a slave with his clothing on is deposited, or a horse with his halter, neither the clothes nor the halter are deposited.^ But this doctrine, if true at all in our law, must be received with many qualifications. It must always depend upon the intent of the parties. And even in the civil law, Pothier seems to consider the text as including no more than the proposition, that the clothing and the halter cannot be demanded in a separate action of deposit, but only as an accessory in the principal action for the slave or the horse ; at least, unless the slave or the horse have perished.^ § 55. As to what is of the essence of the contract of deposit, the civil law has expounded this with minute accuracy. In the first place, the thing must be actually delivered to the bailee, if he has it not already in his possession. In this sense, to 804 ; post, § 111, 112, 281, 282 ; 2 Kent, Comm. Lect. 40, p. 567, 568, 4th edit. ^ Bac. Abridg. Bailment, T>. ; Com. Dig. Chancery, Interpleader ; 2 Bulstrode, 313; 2 Story on Eq. Jurisp. § 805 to 807, 814 to 820 ; 2 Kent, Comm. Lect. 40, p. 567, 568, 4th edit. 2 Post, § 111, 112. « Dig. Lib. 16, tit. 3, 1. 15 ; Pothier, Traits de D6p6t, n. 4 ; post, § 110. * Ibid. 6 Dig. Lib. 16, tit. 3, L 1, § 5. « 1 Pothier, Pand. Lib. 16, tit. 3, n. 46. See also, Pothier, Traite de D6pot, n. 44. 56 ON DEPOSITS. [CH. II. a deposit is a real contract in the sense of the civil law.^ A mere contract, where the thing has never really or construc- tively been delivered, does not amount to a deposit.^ But the delivery, both by our law and the civil law is complete, whether given personally by the bailor, or by his order or ap- probation, when and as soon as the thing is received by the bailee, or by another for him, with his privity and approbation. When it is received by another person, it must clearly appear that the delivery is not on his own account, but is on account of the party who is charged as bailee. A delivery to a ser- vant, acting in the business of his master, is a delivery to the master, and binds the latter. Therefore, the delivery of a special deposit to the cashier of a bank, who is usually in- trusted with that duty, is a delivery to the bank itself. But it would be otherwise, if the receipt were hj a servant not intrusted with that duty, or if the receipt were clandestine, and in fraud of the master, and without his privity or consent.^ In respect to an implied or constructive delivery, any circum- stances which establish that the bailee assents to hold the property for another, although the same may not be in his actual possession, will be sufficient for this purpose. As, if a creditor, holding a pledge, assent, after payment of the debt, to hold it for the benefit of his debtor, it becomes a deposit. So, if a thing is hired, and the purpose of the hiring has been executed, and the property still remains with the hirer, with the assent of the lender, it becomes a virtual deposit with the hirer. * § 56. In the next place, it is said that the principal end of the delivery must be merely to keep the thing for the owner ; if it be not, then it becomes a different species of contract. ^ Thus, if the delivery is made in order to transfer the property in the thing to the party, as, for example, if the delivery is upon a donation, or a sale, or an exchange, or any other like valuable contract, it cannot technically be called a deposit.* > Ante, § 48; Code of Louisiana (1825), art. 2901. 2 Dig. Lib. 16, tit. 3, 1. 26, § 2. 8 Foster v. Essex Bank, 17 Mass. 479, 498; post, § 60. * Dig. Lib. 16, tit. 3, § 14; Pothier, Trait6 de Depdt, n. 8. 6 Thibaud v. Thibaud's Heirs, 1 La. 493. 6 Pothier, Traite de D^pot, n. 9; 1 Domat, B. 1, tit. 7, § 3, art. 1. CH. n.] ON DEPOSITS. 57 Another example put is, where title-deeds are delivered to an attorney or solicitor to enable him to defend my cause ; there it is said, not to be a case of deposit, but of mandate.^ So, if A. delivers a thing to B., that, if Titius will not receive it, B. shall keep it for A. ; or if A. directs B. to get a thing, which is in the custody of another, and to keep it for A. ; both of these are deemed cases of mandates, and not of deposits ; for the maxim is, " Uniuscujusque contractus initium spectandum et causam."2 These distinctions seem unimportant in our law, however important they may be (as they are said to be) in the civil law. § 57. In the next place, the custody must be gratuitous ;. which results, indeed, from the very definition already given.^ And care should be taken not to confound cases, where a com- pensation is allowed, with cases of pure deposit. Sometimes a compensation may be given to the party diverso intuitu, and yet the contract may be a pure deposit ; and sometimes the case may be of a mixed nature. As, if A. desires to hire the use of my barn, in common with me, for his chaise, for a spe- cific price, to which I agree ; and I keep my own carriage in the same barn ; and afterwards he desires me to take care of his chaise, when in the barn, to which I assent ; there I am a mere depositary of the chaise. But if the original contract were, that for the hire of the barn I should take care of the chaise, there it would be the case of a lucrative contract, and not a mere deposit. The same rule would apply to a case where a trunk of the bailor should be delivered to the bailee for safe custody, and the bailor should at the same time agree to pay a certain sum per week for room-rent for the trunk, but nothing was to be paid on account of the care and custody thereof, the trunk would be a mere deposit.* 1 Pothier, Traite de Depot, n. 9 ; Pothier, Pand. Lib. 16, tit. 1, n. 4. ^ Dig. Lib. 17, tit. 1, ]. 8; Dig. Lib. 16, tit. 3, 1. 1, § 11, 12, 13, 30 ; Pothier, Pand. Lib. 16, tit. 3, n. 4 ; Pothier, Traite de D6p6t, n. 9. 8 Dig. Lib. 16, tit. 3, 1. 1, § 8, 9; Pothier, Trait6 de Depot, n. 9; Durn- ford V. Segher's Syndics, 9 Martin, 484; Code of Louisiana (1825), art. 2900. * See Finucane v. Small, 1 Esp. 315; 2 Kent, Comm. Lect. 40, p. 565, 4th edit. ; Pothier, Trait6 de D6p6t, n. 13, 31. 58 ON DEPOSITS. [CH. II. § 58. In the next place, the deposit must ordinarily be made with some other person than the owner ; for if he receives his own property, as we have already seen, he generally receives it discharged of the bailment.^ There may, however, arise cases of deposit, where a bailee of the owner having an interest in the property, delivers the same to the owner, for a limited time, to be redelivered to the bailee on request, or at the end of the term. Thus, for example, if a box of jewels should be pledged by its owner for a debt, and the pledgee being about to go a journey, should deliver it to the pledgor, to be kept as a de- posit until his return, it would be a good deposit.^ § 59. And, in the last place, there must be a voluntary con- sent of the parties in entering into the contract.^ If, on either side, there is a real mistake as to the contract and its purport, it is obligatory on neither as a deposit; although when an actual delivery of the thing has taken place, other obligations, founded upon conscience and right, may be substituted by law between the parties.^ But a mere mistake of the quantity or the quality of the thing, or of the person of the bailor or the bailee, will not render it less obligatory upon the bailee as a deposit, unless fraud or intentional imposition has inter- vened.5 § 60. In every case, however, there must be a voluntary un- dertaking ; for it is not in the power of a bailor to force upon another person any custody of his goods ; but it must be vol- untarily assumed. Therefore, a person to whom a valuable picture is sent as a depositary, will not be answerable, if he has no knowledge of the fact and has not assented to receive it.^ Direct proof, indeed, is not indispensable ; for consent may be inferred from circumstances.^ Where servants and clerks are allowed to receive deposits, and especially if the 1 Dig. Lib. 16, tit. 3, 1. 31, § 1 ; Pothier, Traits de D6p6t, n. 4 ; ante, § 53; Civil Code of France, art. 1946; Code of Louisiana (1825), art. 2930. 2 Pothier, Traite de D6p6t, n. 4. See also, Roberts v. Wyatt, 2 Taunt. 268; post, § 299. a Code of Louisiana (1825), art. 2903, 2904. ■i Pothier, Traite de Depot, n. 16. 5 Pothier, Traits de Dep6t, n. 16, 17. » Lethbridge v. Phillips, 2 Stark. 544. ' Code of Louisiana (1825), art. 2904. CH. n.J ON DEPOSITS. 59 practice is general and unlimited, their acts will bind their principals as depositaries. But it will be otherwise, if the deposit is received by servants or clerks clandestinely, and without any consent, express or implied, on the part of their principals.^ § 61. Let us now pass to the consideration of the obligation arising on the part of the depositary from, the fact of the de- posit. It consists of two things : first, that he shall keep it with reasonable care ; secondly, that he shall, upon request, restore it to the depositor, or otherwise deliver it according to the original trust.^ § 62. As to the first, the natural inquiry is, "What is to be deemed reasonable care ? Being a bailee without reward, the depositary is bound, of course, upon the principles already stated in the introductory chapter, to slight diligence only ; and he is not, therefore, answerable, except for gross neglect.^ But, in every case, good faith requires that he should take reason- able care of the deposit ; and what is reasonable care must materially depend upon the nature, value, and quality of the thing, the circumstances under which it is deposited, and some- 1 Foster v. Essex Bank, 17 Mass. 479, 498 ; ante, § 55. 2 1 Dane, Abridg. ch. 17, art. 1, 2; 2 Black. Comm. 452; Pothier, Traite de D6p6t, n. 22. ' 1 Dane, Abridg. ch. 17, art. 2; ante, § 23 ; 2 Kent, Comm. Lect. 40, p. 560, 4th edit.; Doorman e. Jenkins, 2 Adolph. & Ellis, 256; Pothier, Traite de Dep6t, n. 23, 26, 28, 29; Lafarge v. Morgan, 11 Martin, 462; Foster v. Essex Bank, 17 Mass. 500; [Smith v. Nashua and Lowell Railroad, 7 Fost. 86; Giblinu. McMullen, Law Rep. 2 P. C. 317 ; Spooner V. Mattoon, 40 Verm. 300; Smith v. First Nat. Bank, 99 Mass. 611;] Edson V. Weston, 7 Cowen, 278. { See also Gulledge v. Howard, 23 Ark. 61; McKay i>. Hamblin, 40 Miss. 472; Dart v. Lowe, 5 Ind. 131; Green v. Birchard, 27 Ind. 483; Lancaster Co. Bank v. Smith, 62 Penn. St. 47; First Nat. Bank ». Graham, 79 Penn. St. 106; Knowles v. Atlantic, &c. B. B. Co., 38 Me. 55; Maury v. Coyle, 34 Md. 235; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Mariner v. Smith, 5 Heisk. 203 ; Wiser V. Chesley, 53 Mis. 547; Dunn ». Branner, 13 La. Ann. 452; Griffith v. Zipperwick, 28 Ohio St. 388 ; De Haven v. Kensington Bank, 81 Penn. St. 95. The rule is laid down in most of these later decisions in substan- tial accordance with the text. But see Freeman, J., in Mariner v. Smith, supra. Independent acts of negligence, disconnected with the loss, and not directly contributing thereto, are not properly admissible in evidence. First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278.} 60 ON DEPOSITS. [CH. H. times upon the character and confidence, and particular deal- ings of the parties.^ The degree of care and diligence is not altered by the fact, that the depositary is a joint owner of the goods with the depositor ; for in such a case, if the possessor is guilty of gross negligence, he will still be responsible in the same manner as a common depositary, who has no interest in the thing.^ § 63. It is often laid down in our books, that the depositary is bound to take the same care of the deposited goods as he takes of his own ; and it is thence deduced as a corollary, that, if he commits a gross neglect in regard to his own goods, as well as in regard to those bailed, by which both are lost, he is not liable, and the depositor must impute it to his own folly to have trusted so improvident a person. Sir William Jones seems, in some places, so to understand the doctrine.^ Thus, in his commentary on the case of Mytton v. Cock,^ where a painted cartoon, pasted on canvas, had been deposited, and the bailee kept it so near a damp wall, that it peeled, and was much injured, and the verdict was for the plaintiff, he says : " If it had been proved that the bailee had kept his own pict- ures of the same sort in the same place and manner, and they too had been spoiled, a new trial would, I conceive, have been granted." ^ And Bracton ^ lays down the same rule : " Is apud quem res deponitur, re obligatur, et de eS, re, quam accepit, restituendS, tenetur ; et etiam ad id, si quid in re deposit^, dolo commiserit. Culpse autem nomine non tenetur, scilicet, desidiae vel negligentiee, quia qui negligenti amico rem custodiendam tradit, sibi ipsi et proprise fatuitati hoc debet imputare." In 1 See Tompkins ». Saltmarsh, 14 Serg. & R. 275; 2 Kent, Comm. Lect. 40, p. 561, 4th edit. The question, what is gross negUgence or not, is ordinarily a matter of fact for the jury to decide, and not of law for the court. Doorman u. Jenkins, 2 Adolph. & Ellis, 256; ante, § 11; f Lan- caster Co. Bankr. Smith, 62 Penn. St. 47; Griffith u. Zipperwiok, 28 Ohio St. 388. But the courts sometimes direct a jury in such cases. Smith v. First Nat. Bank, 99 Mass. 605; Giblin v. McMullen, L. R. 2 P. C 317.} ^ Jones on Bailm. 82, 83; ante, § 15. " Jones on Bailm. 31, 32, 46, 47. But see Id. 82, 83, 122, 123 ; 1 Dane, Abridg. ch. 17, art. 1, § 3; post, § 337. * 2 Str. 1099. 6 Jones q^ Bailm. 122, 123. " Bracton, Lib. 3, cap. 2, § 1, p. 99, b. CH. n.] ON DEPOSITS. 61 this lie does no more than copy the language of the Institutes ; ^ and he is supported by the clear result of the Pandects.^ Lord Holt, too, has given the doctrine the authority of his own great name.^ Pothier implicitly adopts it,* and he is followed by Mr. Chancellor Kent,^ and other learned judges.^ § 64. Notwithstanding the weight of these authorities, they do not seem to me to express the general rule in its true mean- ing. The depositary is, as has been seen, bound to slight diligence only ; and the measure of that diligence is that de- gree of diligence which persons of less than common prudence, or indeed of any prudence at all, take of their own concerns.'^ The measure, abstractly considered, has no reference to the particular character of an individual ; but it looks to the gen- eral conduct and character of a whole class of persons ; ^ and so Sir William Jones has intimated on some occasions.^ § 64 a. There is a very recent case, which seems to me fully to recognize the doctrine for which I contend, that it will not exempt the depositary from liability for gross negligence, that he has kept the deposit in the same place, or with the same care, that he has kept his own property. In that case, a 1 Just. Inst. Lib. 3, tit. 15, § 3. 2 Dig. Lib. 16, tit. 3, 1. 20, 32; Pothier, Pand. Lib. 16, tit. 1, n. 25, 28, 29; Domat, Lib. 1, tit. 7, § 3, n. 2. » Coggs V. Bernard, 2 Ld. Raym. 909, 914 ; s. p. 1 Ld. Raym. 655. * Pothier, Traite de Dep6t, n. 23, 27. 6 2 Kent, Comm. Lect. 40, p. 562, 563, 4th edit, and note (a). 8 Foster w. Essex Bank, 17 Mass. 579, 499 ; Gibbon v. Paynton, 4 Burr. 2298; [Giblin v. McMullen, Law Rep. 2 P. C. 339.] The modern Civil Code of France (art. 1927) adopts the same rule. The depositary must bestow (says the Code), in the keep of the thing deposited, the same care that he bestows in the keep of things belonging to himself. The Code of Louisiana (art. 2908, edit. 1825) is to the same effect. {See Knowles v. Atlantic &c. R.R. Co., 38 Me. 55 ; Griffiths. Zipperwick, 28 Ohio St. 388.} ' Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275 ; Jones on Bailm. 8, 118, 119; ante, § 16; 1 Stair, Inst. B. 1, tit. 13, § 2. {Woodward, J., in First Nat. Bank v. Graham, 79 Penn. St. 106, 118, says that the fact that the bailee keeps the thing bailed the same , as his own is not really the test.} 8 See Jones on Bailm. 82, 83 ; Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275. See also, Foster v. Essex Bank, 17 Mass. 479; [Giblin v. McMullen, Law Rep. 2 P. C. 339; Smith v. First Nat. Bank, 99 Mass. 605.] 9 Jones on Bailm. 82, 83, 88 ; post, § 66, 337. 62 ON DEPOSITS. [CH. 11. coffee-house keeper received a deposit of money, and placed it in his cash-box in his tap-room, in which he kept liis own cash ; and both were stolen together. Lord Chief Justice Denman told the jury, that it did not follow from the defend- ant's having lost his own money at the same time as the plain- tiff's, that he had taken such care as a reasonable man would ordinarily take of his own ; and that the fact relied on was no answer to the action, if the jury believed that the loss had occurred from gross negligence. And this direction was held right by the whole Court, and the verdict found for the plain- tiff was confirmed.^ § 65. Cases may, indeed, occur, in which the particular character of the depositary may be important, for the purpose, not of furnishing a general rule, but an exception to thatrule.^ In the civil law, it was natural that there should be very great stress laid upon the habits and character of the deposi- tary. In that law gross negligence and fraud were considered as, in most cases, exactly or nearly equivalent to each other.^ Hence the depositary was not made responsible for any loss, which did not carry with it a just presumption of fraud, actual or constructive.* Now, if the depositary did in fatt take the same care of the bailed property as of his own, it would go far to repel the presumption of fraud ; for no person, however careless, could be presumed to desire the loss of his own prop- erty. " Nam et si quis non ad eum modum, quem hominum natura desiderat, diligens est, nisi tamen ad suum modum curam in deposito prsestat, fraude non caret.® Nam enim 1 Doorman v. Jenkins, 2 Adolph. & Ellis, 256 ; s. c. 4 Nev. & Mann. 170. See also, Tracy v. Wood, 3 Mason, 132 ; post, § 67. Mr. Justice Taunton, in Doorman v. Jenkins, 2 Adolph. & Ellis, 256, in delivering his opinion, said: " What care does he (the defendant) exercise? He puts it (the money) together with money of his own, which I think perfectly immaterial, into the till of a public house." » The William, 6 Rob. Adm. 316. 8 Dig. Lib. 16, tit. 3, 1. 32 ; Id. Lib. 50, tit. 17, 1. 23 ; Lib. 13, tit. 6, 1. 5, § 2; Just. Inst. Lib. 3, tit. 15, § 3; Pothier, Pand. Lib. 16, tit. 3, n. 25; ante, § 20; 1 Domat, B. 1, tit. 7 § 3, art. 2, 3. {Gaius, §207, speaks of a depositary as not answerable for the safe-keeping of the thing de- posited, but only for fraud.} * Ante, § 20. ' Dig. Lib. 16, tit. 3, L 32. CH. II.] ON DEPOSITS. 63 salv& fide minorem iis, quam suis rebus diligentiam prsestabit. Sed is ex eo solo tenetur, si quid dolo commiserit. Culpse autem nomine, id est, desidise ac negligentise, non tenetur. Itaque securus est, qui parum diligenter custoditam rem furto amiserit ; quia qui negligenti amico rem custodiendam tradit, non ei, sed suae facilitati, id imputare debet." ^ On the other hand, if the depositary took better care of his own property than of that bailed, the presumption of fraud would be strengthened. The principle on which this presumption rests is the same, whether the party is a very careless or a very care- ful person in his own affairs ; and it is applicable to other bail- ments, as well as to deposits.^ The French law has adopted the same line of reasoning, and therefore Pothier follows it.'' His language is in substance to this effect. The fidelity (^fid^litS) which the depositary ought to apply to the care of the thing confided to him, should be the same which he ap- plies to the care of his own. " Nee enim salvS fide minorem iis (rebus apud se depositis) quam suis rebus diligentiam prsestabit." * Gross negligence in the depositary in respect to the thing confided to him, which is denominated lata culpa, is contrary to that fidelity, because it is not credible that the depositary, however careless a person he may be supposed to be, would be guilty of such negligence in his own affairs.^ The reason why a depositary is not held responsible for ordi- nary negligence (Za faute Ugere ^) is, that such negligence is perfectly compatible with good faith or fidelity ; and when the depositary is a simpleton, or careless man, and subject in 1 Inst. Lib. 3, tit. 15, § 3; Dig. Lib. 16, tit. 3, 1. 32; 1 Domat, B. 1, tit. 7, § 3, art. 5. 2 Clarke u. Earnshaw, Gow, 30; Jones on Baibn. 46; Coggsf. Bernard, 2 Ld. Raym. 914, 915; Foster v. Essex Bank, 17 Mass. 479, 498. 8 Pothier, Trait* de D^pot, n. 23. * Dig. Lib. 16, tit. 3, 1. 32. « Pothier, Traite de D6p6t, n. 23. « I understand, that Pothier, when he uses the terms " la faute 16g6re," means ordinary negligence ; and that, when he means to speak of what we call slight negligence, he uses some other words, or some adjunct, such as Coggs V. Bernard, 2 Ld. Raym. 909-912, 914, 915. 2 Doot. and Stud., Dial. 2, oh. 38; Williams v. Lloyd, 1 Jones, 179; 8. c. Palmer, 549; 22 Liber Assisarum, 41. 8 Kettle V. Bromsall, Willes, 118. {See Giblin v. McMullen, L. R. 2 P. C. 339.} ■• Foster v. Essex Bank, 17 Mass. 479, 500. But see Noy's Maxims, oh. 43; {post, § 88 and notes.} ^ 1 Dane, Abridg. ch. 17, art. 11, § 3, is to the same efiect. [So, -where a promissory note was delivered to a bailee on his voluntary undertaking, ■without reward, " to secure and take care of it," it was held, by the same court, that he was not bound to any active measures to obtain security, but was simply bound to keep the note carefully and securely, and re- ceive the money due thereon, -when offered; and that the owner could not recover of him for the loss thereof, without proof of fraud or gross negli- gence. Whitney v. Lee, 8 Metcalf, 91.] e 2 Black. Comm. 452. ' Jones on Bailm. 39, 40, 43, 44, 119 ; ante, § 38, 39. 8 Ibid. CH. n.] ON DEPOSITS. 71 § 72. But all the later authorities explode the doctrine, that an undertaking to keep, and an undertaking to keep safely, amount to the same thing. It was expressly overruled in Coggs V. Bernard.! And in a very early case in the Year Books it V7as held, that if the goods be bailed to a party to keep, and he puts them among his own goods, and they are stolen, he is not chargeable with the loss.^ This, of course, must be subject to the exception, that the theft is not by gross neglect. § 73. The general doctrine, however, of Lord Coke, that, if a man accepts goods to keep as his own, he is not responsi- ble for losses by theft, is confirmed by later authorities. It is treated, however, as he treats it, not as an undertaking result- ing from the general law of deposit, but as a special under- taking, limiting the common responsibility created by law.^ In many cases this consideration may become important ; and especiaUy where the bailee is notoriously very careless and indifferent about his own affairs ; in which case, the depositor might fairly be presumed to know his habits, and to trust to such care as the bailee takes of his own goods.* § 74. In like manner, if the depositor agree, that the goods may be kept in a particular place, as on a ship's deck, or in a ship's cabin, he cannot afterwards object, that the place is not a safe one ; for his assent amounts either to a qualification of the contract for safe custody, or to an agreement, that for all the purposes of the deposit the place shall be deemed suffi- ciently safe. But if the depositary does, in such a place, expose the deposit to undue perils, or he is guilty of gross negligence, whereby it is stolen, he will be responsible for the loss. Thus, if a deposit of money is made with the master of a ship, with an assent, that he may place it in his cabin, for safe custody ; and he does so ; but he afterwards exposes the 1 2 Ld. Raym. 909, 910, 911, 914, 915; The King v. Hertford, 2 Show. *172 [184]. 2 29 Liber Assisarum, 28; Brook, Abridg. tit. Bailments, 7. See 1 Dane, Abridg. ch. 17, art. 7. » Southcote V. Bennet, Cro. Eliz. 815, 4 Rep. 84 a; Kettle v. Bromsall, Willes, 118; Coggs v. Bernard, 2 Ld. Raym. 909, Powell's Opinion; ante, § 68. * Ante, § 65, 66. ^ 72 ON DEPOSITS. [CH. n. place where the money is concealed, in the presence of suspi- cious persons, and enables them to know the fact, that money is there ; or if he leaves the cabin wholly unguarded during a considerable portion of the night, under circumstances calling for more precaution, and the money is stolen ; he will, under such circumstances, be deemed guilty of gross negligence, and held responsible for the loss.^ § 75. There is a question often treated of under this head, which is not merely curious, but important ; and that is, whether a depositary is responsible for the loss of articles con- tained in a package, the contents of which are unknown to him.2 If, for instance, a sealed box or locked casket contain- ing jewels, be deposited, and the depositary has no knowledge that it contains jewels, whether he will be responsible for any loss of the jewels. The Roman lawyers discussed this ques- tion with a good deal of acuteness and ability. In the Pan- dects we find the following case and reasoning : If a sealed box is deposited, is the box only to be demanded in an action, or may the clothes contained in it be comprehended ? Trebatius says, that the box only, and not the particular contents of it, must be sued for as a deposit. But if the contents were pre- viously shown, and then the box were deposited, the contents might be added and specified. But Labeo asserts that he who deposits the box seems to deposit the contents also ; and there- fore he ought to sue for the contents. What, then, if the depositary was ignorant what the contents were ? It is not of much consequence, since he has accepted the deposit. And I am of opinion (says Ulpian) that he has a right to sue for the deposit of the contents although the sealed box was de- posited.3 Domat adopts the doctrine of Trebatius.* The Scotch law arrives at the same conclusion.^ The case, as put in the Pandects, seems principally to have reference to the ^ Bradish v. Henderson, 1 Dane, Abridg. ch. 17, art. H, § 4. See also, Nelson v. Macintosh, 1 Starkie, 238; post, § 190; {Knowles v. Atlantic, &c. R. R. Co., 38 Me. 55; McKay v. Hamblin, 40 Miss. 47 o See 1 Dane, Abridg. ch. 17, art. 6, § 2. « Jones on Bailm. 38, 39 ; Dig. Lib. 16, tit. 3, 1. 1, § 41. * 1 Domat, B. 1, tit. 7, § 1, art. 17. » Ersk. Inst. B. 3, tit. 1, § 26, p. 490. CH. n.] ON DEPOSITS. 73 nature of the suit, or the form of the libel; but it is obvious that the difference of opinion among the Roman jurists was not confined to this merely technical point.^ § 76. Bonion's case, in the Year Books,^ may be supposed to bear upon this question. It is as follows : Bonion brought his writ of detinue for certain goods ; to wit, seals, plate, and jewels, against M. The defendant pleaded, that Bonion bailed to him. the chest under lock, to keep, and took away the key, and that he did not know that the jewels and other things were therein ; and thieves came in the night, and broke open the chamber of the defendant, and carried away the chest into the fields, and broke it open, and at the same time took and carried away the goods of the defendant with the other goods. The plaintiff replied, that the jewels, &c., were delivered with- out being locked up (hors cC enclosure), to be returned, at his pleasure ; and upon this issue was joined. The case is a little differently reported by Fitzherbert, in his Abridgment, who says, that the party was driven to reply, that the goods were not carried away by thieves.^ Sir William Jones seems to suppose this case to be wholly incomprehensible,* and incapa- ble of any rational explanation. If the case, however, turned upon the point of the issue suggested by Fitzherbert, namely, that the loss was not by thieves, there is nothing in it which is not sound law. For if the plea was falsified in a material fact, the action was clearly maintainable. It is true that the com- piler of the table to that Year Book relies on a distinction, that, " If a casket sealed be delivered to me, in which there are jewels, and thieves in the night rob me, and take them, I am not answerable ; but that it is otherwise, if the jewels were delivered to me, and I put them into a chest."® But this dis- tinction has no foundation in the case. And even if the account in that Year Book be the correct one, it shows no more than that the plaintiff chose to put his case upon an immaterial issue. Fitzherbert, in his Abridgment, refers to another case,^ which shows that the established law then was, 1 Jones on Bailm. 38, 39. 2 Mayn. Year Book, Edw. 2, p. 275; Fitz. Abridg. Detinue, .59. 8 Fitz. Abridg. Detinue, 59. ^ Jones on Bailm. 36 to 39. ^ Jones on Bailm. 39, 40. • Fitz. Abridg. Accompt, 11; 9 Edw. 4, 40; ante, § 38. 74 ON DEPOSITS. [CH. H. that, if a party receives goods to keep, and he keeps them as his own, he is not chargeable, even in a case of theft. § 77. The question, hovt^ever, which divided the Roman lawyers, would, in our law, admit of different determinations according to circumstances. (1) If the bailee knew that the box or casket contained jewels, although the bailor took away the key, he would be bound to a degree of diligence propor- tioned to the value of the contents.^ In other words, the same degree of care which would ordinarily be required to be taken of such valuables, when deposited, would be exacted of him.^ (2) If he had no ground to suppose that the box or casket contained any valuables whatsoever, he would be bound only to such reasonable care as would be required of depositaries in cases of articles of common value. ^ And under such circum- stances, if he were guilty of gross negligence, he would be held responsible for the loss, at least to the extent of what he might fairly presume to be the value of the contents. (3) If, on the other hand, there was a meditated concealment of the contents of the box or casket from the bailee, with a view to induce him to receive the bailment, and he would not have received it, or have exposed it, as he did, if he had been made acquainted with the facts, then the transaction would be deemed a fraud upon him ; or, at least, the loss would be deemed one occa- sioned by the bailor's own folly or laches ; and the bailee would not, even in a case of gross negligence, be responsible beyond the value of the box or casket itself, without the con- tents. § 78. The first two of these propositions may be deduced from the comments of Lord Holt, in the case of Coggs v. Ber- nard.* The last seems established by the prevailing doctrine in respect to carriers, who give notices, and thereby limit their responsibility, when packages are intrusted to them, the con- tents of which are unknown or concealed, upon which we shall have occasion to enlarge hereafter, when we come to that highly important branch of bailments.^ And there is sound reason 1 Jones on Bailm. 38, 39. 2 Ibid. 8 Ibid. * 2 Ld. Raym. 909, 914, 915. 5 Batson v. Donovan, 4 Bam. & Aid. 21; Sleat v. Flagg, 5 Barn. & CH. n.] ON DEPOSITS. 75 for the distinction thus made, in point of responsibility, in the different cases. No person has a right, by practising conceal- ment or fraud, to impose a duty upon another, which he would not knowingly have undertaken. On the other hand, no per- son, knowing, or having reason to presume, the contents of a box to be of very high and tempting value, has a right to excuse himself from a just responsibility, because the contents have not been formally communicated to him, and a request formally made, that he will undertake the custody of the whole ; since he may naturally presume that such is the intention of the depositor, notwithstanding the security of a lock or seal ; and good faith requires him, under such circumstances, not to disappoint the just confidence of the party. But if he has no reason to suppose the contents to be of more than ordinary value, and there is nothing communicated which calls for superior vigilance, then he may fairly discharge himself by such care as belongs ordinarily to trusts of that sort. § 79. The general rule, then, being, that the depositary is bound to reasonable care, proportioned, indeed, to the nature and value of the article, and the danger of loss, and the meas- ure of that care being slight diligence, the result is that he is generally liable for gross negligence only. If he takes the same care of the goods bailed as of his own, that ordinarily will repel the presumption cf gross negligence ; but he may still be chargeable, if the negligence is such as even persons of slight diligence would not be guilty of.^ In short, he must exert the common diligence used by, and required of, deposi- taries in general ; and he cannot exempt himself from the con- sequences of omitting such diligence, unless he can deduce a more limited liability from all the circumstances of his own particular case.^ He may make a special contract, either to narrow or to enlarge his general responsibility.^ And then, in case of a loss, it will be incumbent on the party, who seeks to avail himself of the benefit of such a contract, to establish it by Aid. 342; Bradley v. Waterhouse, Mood. & Malk. 154 ; Gibbon v. Paynton, 4 Burr. 2298 ; post, § 554, 556, 557, 563, 565, 566, 567. 1 Ante, § 63 to 67, 71, 73. 2 Jones on Bailm. 82, 83; ante, § 64 a. » Dig. Lib. 50, tit. 17, § 23 ; Jones on Bailm. 47, 48. 76 ON DEPOSITS. [CH. U. suitable proofs. It will be rare that such a contract can be expressly proved. It is usually implied from collateral circum- stances, which afford presumptions varying almost infinitely in cogency and strength. We have already seen, that the depositary's own character for diligence or carelessness may sometimes form an ingredient in the case, to negative or to support a presumption.! The proof must be strong, which will justify an inference that the bailee is at liberty to take less care of the thing bailed than of his own. And in many cases, a higher diligence may properly be exacted than the bailee is accustomed to take of his property, especially if his character in this respect is not thoroughly known to the bailor. ^ § 80. Some exceptions to the general rule of diligence, in cases of deposits, are laid down by elementary writers. ^ But where the case is in strictness a deposit, they all resolve them- selves into the following : (1) Cases where there is a special contract ; (2) Cases where there is a spontaneous and officious offer by the depositary to keep the deposit, without any pre- vious request on the part of the depositor.* § 81. The first exception requires no commentary ; for the rule promulgated in the civil law seems the rule of universal justice. " Si convenit, ut in deposito et culpa prsestetur, rata est conventio ; contractus enim legem ex conventione accipi- unt." 5 Or, as it is expressed in another place, " Si quid nomi- natim convenit, vel plus, vel minus, in singulis contractibus, hoc servabitur, quod initio convenit. Legem enim contractus dedit."^ The other exception is deserving of much considera- tion. Sir William Jones' states it to be a rule of our law, that the depositary is liable for losses, where he has made an offi- 1 Ante, § 63-65. 2 ^„,e^ § 65, 66. 8 Pothier, Trait(5 de Depdt, n. 30 to 33; 2 Kent, Coram. Lect. 40, p. 565, 4th edit. * 2 Kent, Coram. Lect. 40, p. 565, 4th edit. ; Jones on Bailra. 47 to 49. » Dig. Lib. 16, tit. 3, L 1, § 6; Pothier, Traite de Depot, n. 30. « Dig. Lib. 50, tit. 17, 1. 23; Jones on Bailm. 47, 48. (But a deposi- tary cannot so stipulate as to absolve himself altogether from liability. Lancaster Co. Banku. Smith, 62 Penn. St. 47. SeeTrefEtz u. CanelU, L.R. 4 P. C. 277 ; Pattison v. Syracuse Nat. Bank, 4 Thomp. & C. (N. Y.) 96 ; Maury v. Coyle, 34 Md. 235. i ' Jones on Bailm. 48, 50. CH. 11.] ON DEPOSITS. 77 cious offer, although he does not cite any other authority in support of it than the Roman law. The rule certainly existed in the Roman law. The Pandects adopted the doctrine of Julian on this subject. " Sed, etsi se quis deposito obtulit (idem Julianus scribit), periculo se depositi illigasse ; ita, ta- men ut non solum dolum, sed etiam culpam et custodiam, prses- tet ; non tamen casus fortuitos." ^ So that the party was liable, not merely for fraud but for negligence, or at least for ordinary negligence, although not for accidents. Domat^ says that the depositary in such a case is liable, not only for gross mistakes, but for other faults. The reason assigned for this doctrine is, that the depositor might, but for such ofBciousness, have chosen another depositary, who would have been more careful.^ Pothier adopts the Roman rule without comment or question. He holds, that, in such a case of an officious offer without request, the party is bound to keep the deposit with all possible care, since he has thereby prevented the depositor from deliv- ering it to a person who would have been more careful than he.* § 82. The rule is certainly strictissimi juris ; and the incor- poration into our law ought not readily to be admitted. A vol- untary offer of kindness to a friend, even when importunately urged, ought hardly to carry with it such penal consequences ; since it is generally the result of strong affection, and a desire to oblige, and often of a sense of duty, especially in cases of imminent peril or sudden emergency.^ The reason assigned for the rule is not satisfactory. It might, with at least as much force, be said, that he who trusts such a deposit to a friend at his urgent request, confides it to him as a proof of his personal confidence, and requires no more than that he should guard it as he guards his own, or at least as men ordinarily guard de- posits. He does not mean to place a burden on his friend, by which extraordinary responsibility is to be incurred ; but to manifest a personal confidence in the character and caution of 1 Dig. Lib. 16, tit. 3, 1. 1, § 35; Ayliffe, Pand. B. 4, tit. 17. 2 1 Domat, B. 1, tit. 7, § 3, art. 8; Vinn. Lib. 3, tit. 15, § 12. 8 1 Domat, B. 1, tit. 7, § 3, art. 8; Jones on Bailm. 48. * Pothier, Traitd de Depot, n. 30. s See 2 Kent, Comm. Lect. 40, p. 565, note (b). 78 ON DEPOSITS. [CH. II. his friend. Sir William Jones has himself quoted, with ap- parent approbation, the opinion of Labeo, in the stronger case of a Negotiorum Gestor,^ in which Labeo requires no more than good faith of him, when he interferes officiously, but from pure kindness to act in my affairs. " Nam si affectione coactus, ne bona mea distrahantur, negotiis te meis obtuleris ; sequissimum esse dolum duntaxat te prsestare." ^ The good sense of this, as a general rule, interpreting the offer of the party in its fair intendment, would seem more to belong to the manliness of the common law, than the rule promulgated by Julian, even with all the authority of imperial wisdom added to it. The modern Code of France introduces a mitigated form of the rule ; for having announced that a depositary must bestow, in keeping the thing deposited, the same care which he bestows in keeping his own property, it proceeds to declare that the rule thus promulgated is to be applied with more rigor, if the depositary has himself offered to receive the deposit.^ It seems thus to insist upon a high degree of diligence, without changing the ordinary obligations arising from deposits ; that is, it seems to require at least as high a degree of diligence as the depositary employs about his own property, construed in a rigorous sense, without absolutely changing the ordinary de- gree of diligence. The Code of Louisiana uses language some- what different. It says : " The depositary is bound to use the same diligence in preserving the deposit that he uses in pre- serving his own property." It then adds : " The provision in the preceding article is to be rigorously enforced when the deposit has been made at the request of the depositary."* 1 The Negotiorum Gestor in the civil law is one who spontaneously, and without authority, undertakes to act for another during his absence, in his affairs. Dig. Lib. 3, tit. 5; Pothier, Pand. Lib. 3, tit. 5, n. 1 to 18; 1 Bell, Comm. § 202, note (1), 4th edit.; 1 Bell, Comm. p. 260, 5th edit. Of course, as his acts are wholly without the assent of the owner, the case is much stronger than that of a depositary, who officiously inter- feres in another's affairs with his consent. Post, § 189; Pothier, Contrat de Mandat, n. 167; Pothier, Pand. Lib. 3, tit. 3, n. 2. 2 Jones on Baibn. 49 ; Dig. Lib. 3, tit. 5, 1. 3, § 9; Pothier, Pand. Lib. 3, tit. 5, n. 52. 8 Code Civil, art. 1927, 1928. * Code of Louisiana, (1825) art. 2908, 2909. CH. II.j ON DEPOSITS. 79 Perhaps this does not in effect differ from the intent of the French Code. § 83. In respect to cases of necessary deposits, that is, such as are suddenly and almost involuntarily made by the depos- itor, in cases of extraordinary peril and difficulty, such as in cases of fire, shipwreck, inundations, insurrections, attacks by mobs, and other casualties and pressing emergencies, our law ' does not seem to vary the responsibility of the bailee from that which arises under ordinary circumstances.^ Nor, indeed, does the Roman Law, as to the degree of diligence required ; but it only inflicts a double compensation for any misconduct of the bailee, upon the ground that public policy requires that perfidy in such cases should be punished, so as to suppress the tempta- tion to commit wroug.^ Our law contents itself with an ample compensation for the actual injury or loss, leaving the addi- tional moral infamy, which attaches to cases of extraordinary perfidy, to be punished by the severe judgment of public dis- grace, which inevitably follows it. The French law does not, in principle, differ from ours in cases of necessary deposits, ap- plying the general rule of responsibility to them.^ The only circumstance in that law, in which a necessary deposit differs from a common deposit, is, that oral proof by witnesses is ad- mitted, whatever may be the value of the necessary deposit, whereas in other cases no deposit beyond a limited value can be proved but by some writing.* § 83 a. There is another class of deposits alluded to in a former page, which indeed might, in one sense, fall under the head of necessary deposits, but which we have ventured to call involuntary deposits.^ Such is the case, where lumber, float- ing in a river, is by a sudden flood or freshet lodged on the 1 Jones on Bailm. 48, 49 ; 1 Domat, B. 1, tit. 7, § 5 ; Code of Louisiana (1825), art. 2935. 2 3 Dig. Lib. 16, tit. 3, L 3, § 1 to 4; 1 Domat, B. 1, tit. 7, prelim, art., and tit. 7, § 5; Jones on Bailm. 48, 49; Pothier, Traits de Depot, n. 76. 8 Code Civil, B. 3, tit. 11, art. 1949-1951 ; Pothier, Traits de Depot n. 75; 1 Domat, B. 1, tit. 7, § 5, art. ,3. 4 Pothier, Traite de Depot, n. 76 ; Code Civil, B. 3, tit. 11, art. 1924, 1950. {See Dunn v. Branner, 13 La. Ann. 452.} 6 Ante, § 44 a. [See Preston v. Neale, 12 Gray, 223.] 80 ON DEPOSITS. [CH. n. land of a stranger, and left there by the subsidence of the stream. Such also is the case of trees blown by a tempest upon the land of a stranger ; and also of goods lodged in the like manner by a whirlwind or tornado in a distant field of a stranger. What is the duty of the owner of the land in all such cases, as to the protection or preservation of the property, does not appear to be settled by any distinct decisions of the common law. But some curious questions have recently arisen, as to the rights of the owner of the lumber, or trees, or other goods. May he lawfully enter upon the land, and reclaim and retake his property, doing as little damage to the herbage or soil as possible ? Or is he bound to ask leave of the owner ? May the latter lawfully refuse such leave ? Or will a refusal to give such leave amount to a conversion of the property ? If the owner suffers the goods to remain without any effort to remove them, will it amount to a trespass or other ground of action ? These and many other questions may arise out of such calamitous occurrences ; and the inquiry, what are the true rights and duties of the parties, is a matter not unattended with difficulty. Such accidents are by no means uncommon in our great American rivers. There seems to be strong reason to hold, that, where the goods of any person have, by an unavoidable casualtj' or accident been lodged upon another's land, the owner may lawfully enter and take them away, doing as little damage as he may. But where the goods come upon the land by the act or negligence of the owner, there he can- not justify an entry at all, or, at all events, not without leave first asked. Thus, it has been held, that, if trees are thrown by the wind on the land of a stranger, the owner may enter and take them away ; but if in cutting them down they fall into a stranger's land, tha^it is a trespass.^ So, if fruit falls from a tree into another's land, by the force of the wind or other accident, there the owner of the tree may lawfully enter and gather it up, doing as little damage as he can, and staying there only a convenient time ; for it is a case of necessity .^ Upon 1 See Year Book, G Edw. 4, 7; Millenu. Hawery or Fawdry, Latch, 13, 14; 8. c. Latch, 119, 120; s. c. Popham, 161 ; 20 Viner, Abridg. Trespass, H. a 2, pi. 11 ; Anthony v. Haney, 8 Bing. 186. 2 See Millen v. Hawery or Fawdry, Latch, 120; s. c. Latch, 13 ; s. c. Popham, 161. CH. n.] ON DEPOSITS. 81 a like ground, it would seem reasonable, that, if timber is car- ried by a sudden flood or freshet in a river, where it is moored or floating, upon the land of a stranger, there the owner may- enter and take it away.i But, if the timber is drifted by his negligence or wilful act upon the land, there it is a trespass for which he will be held liable. The same rule may probably be held to apply, where the owner, after due notice, refuses to remove his timber from the land, although it has been carried there by an inevitable casualty. And in the like case, if the owner of the land improperly refuses, after a request from the owner of the timber, to permit him to remove it, it may be held a conversion thereof, on his part, for which trover will lie.^ In ^ ^ Year Book, 6 Edw. 4, 7 ; Millen ». Hawery or Fawdrye, Latcli, 13, 14; s. c. Latch, 119, 120; s. o. Popham, 161. ^ See Anthony v. Haneys, 8 Bing. 186 ; Nicholson v. Chapman, 2 H. Black. 254. This whole subject was very ably discussed by the Supreme Court of the Province of New Brunswick, in the case of Bead v. Smith, 1 Berton, 194, and by a learned writer in the American Jurist, for January, 1839 (vol. 20, p. 328 to 332). The following citation from the latter will be found exceedingly useful: " Generally, it is true, the owner of property is protected in the exclusive enjoyment of it. But not universally, for there are many cases, in which this right of the owner must yield to that service, which the members of the same community may have in each other's lands under peculiar circumstances. Prom the earliest days of the common law, of which we have any judicial records, four classes of cases have been recog- nized, as justifying an entry into another's close. 1. The first is, where the entry was to save life. ' If one be assaulted, and like to be killed, and he flye through my ground to save his life, I may not sue him for this. ' (37 H. 5, 37, cited in 4 Shep. Abr. 136.) The principle of this case, we think, would extend to the life of any other person than the defendant, which he might be endeavoring to save. 2. Where the object of the entry was to avert or prevent a common danger; such as fire, flood, attack of enemies; or the destruction of dangerous or mischievous beasts of prey. (21 H. 7, 27 ; Dyer, 36 b ; 12 H. 8, 2 ; Bro. Tresp. 40; 4 Shep. Abridg. 136, 137.) 3. Where it was for the purpose of staying and arresting felons, or preserv- ing the public peace. (4 Shep. Abridg. 137 ; Bro. Tresp. 327, 354.) These and the last-mentioned cases may be referred to one common principle, the public safety. 4. Where it was to identify and retake things stolen. (4 Shep. Abridg. 138 ; Pliggins v. Andrews, 2 Roll. 55.) In the latter case, the point was expressly limited to things stolen, excluding merely tortious takings. To these we think may be added a fifth class, comprising the cases of necessary or involuntary bailment: where the goods of one man, by the superior and overpowering force of the elements, or by ungovernable 6 82 ON DEPOSITS. [CH. n. respect to the duty of the owner of the land to preserve the property thus by accident thrown upon his land, it would brute force, are carried on to the land of another. This may be referred to the supposed fundamental principles of the social compact ; or to the neces- sities, or the tacit consent of society; or to the demands of our common religion. In 6 Ed. 4, 8, it was said by Choke, J., that, if the wind blows my tree upon the land of another, I may enter and take it, and it is no trespass; for it was the act of the wind, and not of me. (See also Nichol- son V. Chapman, 2 H. Bl. 254.) And with this agrees the Roman law ; by which the proprietor of ground , on which the property of another is carried by a iiood, is obliged to suffer him who had the loss to take away what remains, and to allow him such free access to his ground as is necessary for that purpose. But the owner of the goods is bound to indemnify the owner of the land for all damage occasioned by their lying there, and by the act of removing them. Yet, if he chooses not to take the goods away, he is not liable. (Domat's Civil Law, B. 2, tit. 9, § 2, art. 3, 4.) The same doc- trine is laid down by Mr. Hammond. (Hammond's N. P. 168, § 3.) The case of cattle escaping, without the owner's fault, or driven by a dog, against the owner's will, into the close of another, falls under the same prin- ciple ; and so it has been repeatedly held. Such a justification, in trespass, was held good, in 21 Ed. 4, 64, pi. 37. (See ace. Millen v. Fawdrye, Latch, 120; Poph. 161; Beckwith v. Shordike, 4 Burr. 2092; Deane v. Clayton, 7 Taunt. 489; Dovaston v. Payne, 2 H. Bl. 527.) The cases cited below were decided upon the ground that the defendant's property came into the plaintiff's close, without any direct or immediate human agency, and with- out any fault of the owner of the goods ; in which case he is not obliged to ask leave of the proprietor of the close, in order to enter and take them; and therefore is not a trespasser in so doing, whatever remedy the latter may have, in another form, for remuneration of his actual damage. Where the goods of one are placed within the close of another by human agency, the right of the owner to enter and take them will depend on the manner of their coming there. It may have been by the fault of the owner of the land; or of the owner of the goods ; or equally of both; or of a stranger. In the first case, the owner of the goods may lawfully enter and retake them. (Bro. Abridg. Trespass, pi. 180; 2 Roll. Abridg. 565, pi. 9; Houghton V. Butler, 4 T. R. 365.) In the second case, he may not. In the third case, he may; if, for example, the cattle of the defendant es- caped through a defective partition fence, maintainable jointly by both parties. (1 Dane, Abridg. 134, § 13.) In the fourth case, the owner of the land must be connected with the tort of the stranger, by a demand and refusal; in which case it becomes his own tort by subsequent assent. The assent of the plaintiff seems to have been an essential element in the case of Chapman v. Thumblethorpe (Cro. El. 329), in which a plea in bar to an action of trespass, stating that the defendant's beasts were wrong- fully taken by a stranger, and, with the plaintiff's assent, driven into the «H. II.] ON DEPOSITS. 83 probably be held, that it was of the same nature and extent as that of an ordinary finder of goods. ^ § 84. There is another class of deposits, noticed by Pothier, and called by him irregular deposit. This arises, when a party having a sum of money which he does not think safe in his own hands, confides it to another, who is to return to him, not the same money, but a like sum, when he shall demand it.^ An irregular deposit differs from a mutuum simply in this re- spect, that the latter has principally in view the benefit of the borrower, and the former the benefit of the bailor.^ In the civil law, the obligations springing from these contracts were differ- ent ; for in cases of mutuum, the party borrowing was not held to pay interest upon the money lent ; but in cases of irregular deposit, interest was due by the depositary, both ex nudo paoto and ex mord.^ These distinctions are not recognized, at least not practically, in the French law ; nor, as it is believed, in the common law. In both cases, interest is by the French law due ex mordJ' In the common law, the payment of interest is not generally fixed by positive rules ; but interest is usually allowed upon money lent, if detained beyond the proper period at which it ought to be repaid. And whether the case be a strict loan, or be an irregular deposit, or be a mutuum, if there be an un- reasonable delay in the repayment, our courts would generally, if not invariably, allow interest ex mord. To this class of irregular deposits, or of mutuum, the common deposits in our bank properly belong. § 85. There is also another kind of deposit which may, for distinction's sake, be called a quasi deposit, which is governed by the same general rule as common deposits. It is where a party comes lawfully to the possession of another person's property by finding it. Under such circumstances, the finder locus in quo, into which he entered to retake them, was, on demurrer, held a justification." 1 Post, § 85 to 88. See also Nicholson v. Chapman, 2 H. Black. 254. " Pothier, Traite de D^pot, n. 82, 83; Durnford v. Segher's Syndics, 9 Martin, 484; post, § 370 a. a Pothier, Traitd de Depot, n. 83. * Dig. Lib. 16, tit. 3, 1. 24; Pothier, Traits de D^p6t, n. 83. 6 Pothier, Traits de D6p6t, n. 83. 84 ON DEPOSITS. [CH. U. seems bound to the same reasonable care of it, as any volun- tary depositary ex contractu.^ St. Germain ^ says : " If a man finds goods of another, if they be after hurt or lost by wilful negligence, he shall be charged to the owner. But if they be lost by other casualty, as if they be laid in a house that by chance is burned, or if he deliver them to another to keep that runneth away with them, I think he be dis- charged." ^ § 85 a. In Bacon's Abridgment it is laid down, that, " If a man find goods and abuse them, or if he find sheep and kill them, this is a conversion. But if a man find butter, and by his negligent keeping it putrefy, or if a man find garments, and by negligent keeping they be moth-eaten, no action lies. So it is, if a man find goods, and lose them again." * And the reason of the difference is there stated to be this : " Where a man only finds the goods of another, the owner did not part with them under the caution of any trust or engagement ; nor did the finder receive them into his possession under any obligation ; and, therefore, the law only prohibits a man in this case from making an unjust profit of what is another's. But the finder is not obliged to preserve these goods safer than the owner himself did ; for there is no reason for the law to lay such a duty on the finder in behalf of the careless owner. And it seems too rigorous to extend the charity of the finder beyond the diligence of the proprietor. It is, therefore, a good mean to punish an injurious act, namely, the conversion of the goods to his own use ; but not to pun- ish a negligence in him, when the owner is guilty of a much greater one." ^ ^ Dougherty v. Posegate, 3 Clarke, 88. 2 Doctor and Student, Dial. 2, ch. 38. 8 Doctor and Student, Dial. 2, ch. 88. See under -what circumstances the finder of goods will be liable, upon a conversion thereof, to be treated as guilty of the crime of larceny or not. Merry v. Green, 7 Mees. & Welsh. 623, 631, 632; People u. Cogdell, 1 Hill (N. Y.), 94; People v. Anderson, 14 Johns. 294. [See also the subject fully discussed in Kegina v. Thurborn, 2 Lead. Crim. Cases, 409 and note ;] {2 Bish. Crim. Law, 812, 813; Regina v. Wood, 3 Cox C. C. 453.} * 1 Bac. Abridg. Bailment, D. 6 Ibid. CH. n.] ON DEPOSITS. 85 § 86. The doctrine above laid down is very unsatisfactory.^ Surely a thing may be lost without any negligence of the owner ; and if the owner is negligent in losing it, it furnishes no very good reason why the finder should apologize for his own negligence by setting up that of the owner. If it were meant only to affirm that the finder is not liable" for any thing but gross negligence, that would be intelligible. But the prop- osition is not so limited in the text. On the contrary, it sup- poses that no degree of negligence would make him chargeable ; which is directly against the doctrine laid down in the Doctor and Student in the passage above stated.^ The only author- ities relied on by the author of Bacon's Abridgment are certain cases in Owen's and Bulstrode's and Leonard's Reports. The citation from Bulstrode's Reports is a mere error. The case in Owen decides no more than that the finder of six barrels of butter was not liable in trover for a conversion, when the butter was impaired and decayed, ratione negligentis custodice; for the Court said, that he who finds goods is not bound to preserve them from putrefaction.^ But if the goods were used, and by usage made worse, the action would lie. For aught appearing in the case, there may not have been any but ordinary, or even slight negligence. And there is a clear difference between the conversion of a thing, and negligence in keeping it. Trover lies only in the case of a conversion. The same case is re- ported in Cro. Eliz. 219, and in 1 Leonard, 224. In the former report it is stated that the case came on upon a demur- rer to the declaration, the count alleging only that the finder tarn negliff enter custodivit, that the property became of little value. And the Court were of opinion that the action did not lie ; for negligence was no conversion. Lord Chief Baron Comyns, in his Digest,* understands this to be the sole point of the case. The Court, however, is reported to have said : " No law compelleth him that finds a thing to keep it safely ; as, if a man finds a garment and suffers it to be moth-eaten ; 1 See Mosgrave v. Agden, Owen, 141; 2 Ld. Kaym. 909, per Gould, J. ; Noy, Maxims, oh. 43, p. 92. 2 Doctor and Student, Dial. 2, ch. 38. * Mosgrave v. Agden, Owen, 141. * Com. Dig. Trover, E. 86 ON DEPOSITS. [CH. n. or if one finds a horse and gives him no sustenance. But if a man finds a thing, and useth it, he is answerable, for it is a conversion," &c. " But for negligent keeping no law pun- isheth him." In 1 Leonard, 224, the Court is reported to have said : "A man that comes to goods by trover is not bound to keep them so safely as he who comes to them by bailment." And Walmsley, J., said: " If a man find my gar- ments, and suffereth them to be eaten with moths by the neg- ligent keeping of them, no action lieth ; but if he weareth my garments it is otherwise, for the wearing is a conversion." The whole of this doctrine was clearly extrajudicial ; for the only point before the Court was whether there was any con- version or not. Another case cited from Leonard's Reports ^ turned on a point of pleading ; and Mr. Justice Anderson there said, arguendo : " When a man comes to goods by trover, there is not any doubt but by law he hath liberty to take possession of them. But he cannot abuse them, kill them, or convert them to his own use, or make any profit of them ; and if he do, it is great reason that he be answerable for the same. But if he lose such goods afterwards, or they be taken from him, then he shall not be charged ; for he is not bound to keep them." This is the only dictum in the case bearing on the doctrine ; and it may be correct, when understood with the natural limitations belonging to it ; namely, that the finder has not been guilty of gross negligence. But if the learned Judge meant to say, that, if the goods are lost by the gross negligence of the finder, he is not answerable for the loss, such a doctrine would require some authority beyond a mere incidental dictum to support it. § 87. At the time when these opinions were promulgated, the law of bailments was not as well defined as it is at pres- ent ; and, therefore, thej'' would be entitled to less weight than is usually given to judicial determinations, even if they stood without any contradiction. But at a later period we have an elaborate judgment of Lord Coke directly against the doctrine. In Isaack v. Clark,^ that great Judge deliberately declared, ' Vandrink v. Archer, 1 Leon. 221. 2 2 Bulst. 306, 312 ; s. c. 1 Roll. 126, 130. [See Smith v. Nashua & Lowell Railroad, 7 Foster, 91.] CH. II.] ON DEPOSITS. 87 that, " If a man finds goods, an action on the case lies for his ill and negligent keeping of them, but not trover or conver- sion, because this is but a nonfeasance." This seems the true doctrine of the law ; for, although a finder may not be com- pellable to take goods which he finds, as it is a mere deed of charity for the owner ; yet, when he does undertake the cus- tody, he ought to exercise reasonable diligence in preserving the goods. And the least degree of care known to our law, that is, slight diligence, may well be required of him, being that which is applied to gratuitous acts of kindness. This is conformable to the rule laid down, as has been already seen, in the Doctor and Student,^ and it seems incidentally recog- nized in other authorities.^ So that there seems no just foundation in our law for any distinction as to responsibility, although there may be as to remedy, between cases of conversion and misfeasance by the finder of goods, and cases of negligence, if the loss has arisen from that degree of negligence for which gratuitous bailees would ordinarily be liable. § 88. In the ordinary cases of deposits of money with bank- ing corporations, or bankers, the transaction amounts to a mere loan or mutuum, or irregular deposit, and the bank is to restore not the same money, but an equivalent sum, whenever it is demanded.^ But persons are sometimes in the habit of making what is called a special deposit of money or bills in a bank, where the specific money, the very silver or gold coin, or bills deposited, are to be restored, and not an equivalent. In this last case the transaction is a genuine deposit ; and the 1 Dial. 2, ch. 38 ; ante, § 85. " 8. p. Gould, J., in Coggs v. Bernard, 2 Ld. Raym. 909. See 2 Ld. Raym. 917; Noy, Maxims, ch. 43, p. 92; [Foley v. Hill, 2 H. L. C. 28; Parker v. Marchant, 1 Phillips, 360; Brandao v. Barnett, 12 CI. & Finn. 787.] ' Pothier, Pr6t de Consumption, n. 1, 4, 13; ante, § 85; [Keene ». Col- lier, 1 Met. (Ky.) 417. See Aurentz v. Porter, 56 Penn. St. 115; Dustin V. Hodgen, 38 111. 852.] {A bank deposit is general, unless there are circumstances to show that it was meant to he special. Brahm v. Adkins, 77 111. 263. But by subsequent agreement a special deposit may be turned into a general one. Howard v. Roebens, 33 Cal. 399; Chiles v. Garrison, 32 Mo. 475. And see ante, § 41, notes.} 88 ON DEPOSITS. [CH. n. banking company has no authority to use the money so de- posited, but is bound to return it in individuo to the pai'ty. A case of great interest has been recently decided upon this subject. A special deposit of gold coin was made in a bank, and the money was placed in the vault of the corporation, under the care of the cashier of the bank, who also had the custody of the money of the corporation in the same vault, and kept the keys thereof. He was unfaithful in the dis- charge of his duty, and embezzled the special deposit, as well as other property belonging to the bank. The Court before which the cause was heard, in a very elaborate judgment, decided, that in such a case the banking corporation was liable only for gross negligence ; that the receipt of the deposit by the cashier must be deemed obligatory upon the corporation; but that the corporation was not liable in this case, because there was no gross negligence on its part ; for the same care was taken of this as of other deposits, and of the property belonging to the corporation. The fraud and embezzlement, being by the cashier, did not, under such circumstances, vary the case. The responsibility of the bank was the same as if the theft had been committed by a stranger; for there was no want of diligence on its own part in selecting proper oificers, and the act of embezzlement was not within the scope of the duty of the cashier, as agent of the corporation. If goods depos- ited are stolen by the servants of a private depositary, with- out gross negligence on his own part, he is not chargeable, any more than he would be if the theft were by a stranger ; and the same rule must be applied to banking corporations.^ 1 Foster v. Essex Bank, 17 Mass. 479. See also Finueane v. Small, 1 Esp. 315; [Smith v. First Nat. Bank, 99 Mass. 605.] {There are several recent decisions in which the rule of a bank's liability for special deposits taken gratuitously is applied. See First Nat. Bank v. Graham, 79 Penn, St. 106; Lancaster Co. Bank v. Smith, 62 Penn. St. 47; Scott V. Nat. Bank of Chester Valley, 72 Penn. St. 471; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278; Maury v. Coyle, 34 Md. 235; ante, § 41 and notes. In these cases, responsibility to the extent only of slight diligence is deemed essential. See ante, § 62. In First Nat. Bank v. Graham, supra, the bank had failed to give prompt notice of the loss, and the depositor on learning of the loss had acquiesced in the policy of silence, hoping thereby to assist in discover- ing the thief. The question of negligence in Lancaster Co. Bank v. CH. n.] OK DEPOSITS. 89 In this case, the cashier had given a written acknowledgment, that the gold was deposited for " safe-keeping ; " but this was not thought to vary the application of the general rule, as the writing imported no more than was ordinarily implied in all such cases ; and a special contract was not within the scope of the authority of the cashier.^ § 89. In respect to the mode of keeping the deposit, and the authority of the depositary over it, a question often arises, how far the depositary is at liberty to use the thing deposited. In general it may be laid down that the depositary has no right to use the thing deposited, unless there be an express or implied consent on the part of the depositor. This is the clear result of the Roman law,^ and the French law, and the law of Louisi- ana,^ and it has been incorporated into ours.* But this prop- osition must be received with some qualifications. There are certain cases in which the use of the thing may be necessary for the due preservation of the deposit. There are others, Smith, supra, had reference to giving up the property received on deposit to the wrong party. The responsibility of the bank for the acts of its cashier was specially considered in smith v. First Nat. Bank, 99 Mass. 605; Giblin v. McMullen, L. R. 2 P. C. 317; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278 ; Scott v. Nat. Bank of Chester Valley, 72 Penn. St. 471; First Nat. Bank v. Graham, 79 Penn. St. 106. It would appear that the mere voluntary act of the bank cashier, who receives a gratuitous special deposit, will not render the hank liable for loss ; but there should be evidence of acquiescence on the part of the directors. First Nat. Bank v. Graham, and First Nat. Bank v. Ocean Nat. Bank, supra. In Scott v. Nat. Bank of Chester Valley, supra, the property specially deposited was taken by the teller. } 1 Foster v. Essex Bank, 17 Mass. 505. [A very similar instance oc- curred in a very recent Enghsh case before the Privy Council, in which the general doctrine before laid down as to the liability of bankers was approved and adopted. Giblin v. McMullen, Law Rep. 2 P. C. 317; citing and approving Foster v. Essex Bank, 17 Mass. 479. See also Whitney v. Lee, 8 Met. 91. J = Dig. Lib. 16, tit. 3, 1. 29; Cod. Lib. 4, tit. 34, 1. 3; 1 Domat, B. 1, tit. 7, § 3, n. 13; AylifEe, Pand. B. 4, tit. 17, p. 519; Pothier, Traits de D6p6t, n. 34. 8 Pothier, Trait6 de Dep6t, n. 34 to 37; Code Civil of France, art. 1930; Code of Louisiana (1825), art. 2911, 2913. ^ Bac. Abridg. Bailment, D.; Jones on Bailm. 81, 82; 1 Dane, Abridg. ch. 17, art. 1, § 2. 90 ON DEPOSITS. [CH. II. again, where it would be mischievous ; and others, again, where it would be, if not positively beneficial, at least indif- ferent. If a bailment were made of a horse, the depositary would certainly be at liberty to use him, so far, at least, as to preserve his health ; and if he should die from gross negligence in this particular, the depositary might be chargeable with the loss; for every person, in such a case, contracts for reasonable care.^ If a milch cow were deposited, the milking of the cow, to say the least of it, would not subject the depositary to an action, for it would not injure, but might promote the health of the animal.2 The Roman and the French law, in such a case, would justify the act ; but would require the depositary to account for the value of the milk, deducting the reasonable charges for her nourishment.^ On the other hand, if diamonds and jewels were deposited, it might be deemed an abuse of the trust to wear them, or to suffer them to be worn, by the family of the depositary, even although the use might be of no injury; for it would subject the deposit to undue perils and chances of loss.* ^ § 90. The best general rule on the subject (for every case must be governed by its own particular circumstances), is to consider, whether there may or may not be an implied con- sent on the part of the owner to the use. If the use would be for the benefit of the deposit, the assent of the owner may well be presumed ; if to his injury, or perilous, it ought not to be presumed ; if the use would be indifferent, and other circum- stances do not incline either way, the use may be deemed not allowable.^ If money is deposited, especially if locked up in a chest, or enclosed in a bag, the right to use it could scarcely be presumed to have been within the intention of the parties.® 1 Jones on Bailm. 81, 82. 2 Ibid. ; Mores v. Conham, Owen, 123, 124; Anon., 2 Salk. 522; 2 Kent, Comm. Lect. 40, p. 568, 578, 579. 8 Pothier, Traits de D6p6t, n. 47; Dig. Lib. 16, tit. 3, 1. 29, § 1 ; Jones on Bailm. 81, 82; Pothier, Nantissement, n. 35; Code Civil of France, art. 1936; Code of Louisiana (1825), art. 2919. 1 Jones on Bailm. 81, 82. ^ Jones on Bailm. 80, 81; ante, § 89, Code of Louisiana (1825), art. 2913. 8 Pothier, Traite de D^pot, n. 37; Code of Louisiana (1825), art. 2914. CH. n.] ON DEPOSITS. 91 The same rule would apply to other valuables, such as jewelry ; for they would be subject to extraordinary perils.^ If books are lodged in a trunk, and locked up, the use of them would seem to be impliedly prohibited, especially if the key is kept by the bailor. But if the books are in an open chest, or open bookcase, or are left generally accessible, Pothier supposes that a consent to the use of them by the depositary may be fairly presumed.^ But if this be true, still a right to lend them to other persons ought not to be presumed. And if the books are very valuable, and have very expensive plates in them, which would be injured by use, a consent to use them ought scarcely to be presumed. A deposit of valuable paintings would not justify a general use of them for purposes of show, or parade, which would expose them to injury ; but a modified use of them might be fairly presumed, as an ornament of a private room, if they were left open in their frames. A deposit of a library of law books in the library of a friend, who is a lawyer, would almost carry with it the implication of a right on his part to use them for private Misultation. Many other cases might be put to show ^e a;^Bcation of the principle of pre- sumption.^ Pothier puts one case of the deposit of a setting dog, where the use might fairly be presumed for shooting game ;_* and the same may apply to hounds for the chase.''' The French code expresses the true sense of the law on this subject. The depositary cannot make use of the thing de- posited without the express or presumed permission of the depositor.® § 91. The Roman law treated the use of the thing deposited without any express or implied consent of the owner, as being a gross breach of trust, and involving the criminality of theft, according to the definition of that offence in that law, which is more comprehensive than ours. " Si quidem, qui rem deposi- tam, invito domino, sciens prudensque in usus suos converte- 1 Ante, § 89. 2 Pothier, Traite de Depot, n. 37. » Ayliffe, Pand. B. 4, tit. 17; Jones on Bailm. 79-81. * Pothier, Traits de De'p6t, n. 37; Jones on Bailm. 80, 81. 5 Jones on Bailm. 79-81. « Code Civil of France, B. 3, tit. 11, art. 1930; Code of Louisiana (1825), art. 2911. 92 ON DEPOSITS. [CH. H. rit, etiam furti delicto succedit." ^ Our law deems it a mere breach of private confidence, unless in very special cases, which demonstrate a felonious intent, or, as it is technically called, animus furandi.^ § 92. It follows, from what has been said, that it is a gross breach of trust, which gives to the injured party a just cause of action, for a bailee to break open a locked chest, or a sealed package, which is deposited with him.^ A fortiori, the depos- itary has no authority to sell or pledge the deposit ; and if he does, the owner may reclaim it from any person who is found in possession of it.* The Roman law also gave a right of ac- tion to a testator, who trusted another with his will, to be kept for him, if he discovered the contents of it to any other per- sons.^ Our law does not, as far as I know, provide any redress in such a case ; unless, at least, some positive injury results from it. But it is as aggravated a breach of trust as can well be conceived, and may often be ajttended with serious mischiefs. The French law has followed ^« reasonable doctrine of the civil law ; ^ one cannot but ^^Hi that the common law had animadverted on it in some forW eith^ of civil or of criminal prosecution, which should add a legal sanction to what now seems a mere moral sanction upon the conscience of the de- positary of a will. § 93. It is often laid down in our books, that a depositary has a special property in the deposit. There is no doubt, that, in certain kinds of bailment, the bailee has a special prop- ' Cod. Lib. 4, tit. 34, 1. 3 ; Dig. Lib. 16. tit. 3, L 29. 2 In Herman ». Drinkwater, 1 Greenl. 27, where a shipmaster, having received a trunk of goods on board his vessel to be carried to another port, on the passage broke open the trunk, and rifled it of its contents ; the owner, having proved the delivery of the trunk, and the breaking open by the master by other evidence, was permitted, in the absence of all other evidence, to establish the particular contents of the trunk by his own testimony on oath, in odium spoliatoris. See Pothier, Traite de D^pot, n. 41; [1 Greenl. Evidence, § 348; Oppenheimer v. Edney, 9 Humph. 385] 8 Code of Louisiana (1825), art. 2914. 4 Hartopw. Hoare, 3 .^tk. 44; s. C. 1 Wils. 8, 9 ; 2 Str. 1187. "• Dig. Lib. 16, tit. 3, 1. 1, § 38; Pothier, Traite de Depot, n. 39. 8 Pothier, Traits de Depot, n. 38, 39; Code Civil of France, art. 1931 ; Code of Louisiana (1825), art. 2914. CH. n.] ON DEPOSITS. 98 erty ; but that he possesses it in the case of a mere deposit is a matter of serious doubt. Mr. Justice Blackstone, in his Commentaries,! lays down the doctrine as follows : " In all these instances (i.e. in all classes of bailment) 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 ha-ving still left in him the right to a chose in action, grounded upon such contract. And on account of this qualified prop- erty of the bailee, he may, as well as the bailor, maintain an action against such as injure or take away the chattels. The tailor, the carrier, the inn-keeper, 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." The phrase "possessory interest" does in truth express exactly the right of a general bailee, and ea^klly of a depositary ; that is, it is a right of possession ^^^m every person but the true owner. But as to the o^^^^Hees above stated, they have not only a right of pos^^^^pfainst third persons, but also against the owner himsel^^BT some of them, as, for example, a pawnbroker, have not only a possessory interest, but a special property in the pawn. For the full extent of his proposition, Mr. Justice Blackstone mainly relies on Heydon and Smith's case,^ which certainly does not support it.^ Sir William Jones 1 2 Black. Comm. 452. 2 13 Rep. 67, 69. ^ The case was an action of trespass for cutting down a timber tree. There was a justification pleaded, that it was done by command of the owner, A. The replication asserted a title in the plaintiff as a copyholder, and a custom to cut down wood in the manor for housebote , &c. , and that the plaintiff cut down the tree for repairs. There were several points argued. And, among other things, it was said: " That he who hath a special property of the goods at a certain time shall have a general action of trespass against him who hath the general property, and upon the evidence damages shall be mitigated. But clearly the bailee, or he who hath a special property, shall have a general action of trespass against a stranger, and shall recover all in damages, because that he is chargeable over." And for this is cited 21 Hen. 7, 14 b. It is then added: " If a man bails goods, which are taken out of his possession, if the bailee re- cover in trespass, the same shall be a good bar to the bailor." For this is cited, 5 Hen. 4, 2, which is a mis-citation, for there is nothing there to the point. 94 ON DEPOSITS. [oh. II. also lays down the doctrine in equally general terms. " For," says he, " every bailee has a temporary qualified property in the things of which possession is delivered to him ; and has, therefore, a possessory action, or an appeal in his own name, against a stranger who maj' damage or purloin them." ^ And he immediately adds : " With us the general bailee has un- questionably a limited property in the goods intrusted to his care." ^ And for this he relies on a case in the Year Book,^ which, it must be admitted, seems full to the point. It was an action of replevin. The defendant pleaded property in a stranger ; the plaintiff replied, that the stranger had bailed the goods to him to redeliver them to the stranger, and before the redelivery the defendant took them. There was a demur- rer to the replication, which was argued. Mr. Justice Fineux there said : " In this case, the bailee has a property in the thing against every stranger ; for he is chargeable to the bailor, and for this reason he shall recova^fcjMnst a stranger, who takes the goods out of his possessicM^^^^kid judgment was accord- ingly given for the plainti£f.^^^^^Ln action of replevin wiU lie only where the party hatll^^^^H. or a special property in the thing.* There can be no ^B^^hat if the bailee in that case was a pawnee or a factor, he might maintain the action. What sort of bailee he was does not positively appear in the report ; although it may fairly be inferred, from the language of the replication, that he was a mere depositary. There are other cases, which hint at the same doctrine as that in the Year Book.^ § 93 a. There are other cases, which certainly inculcate a different doctrine, and in which it has been lield that a mere depositary has no special property whatever in the deposit, but a custody only. There is a clear known distinction between 1 Jones on Bailm. 80. ^ j^id. 8 21 Hen. 7, 14 b. * Co. Litt. 145 b; Com. Dig. Replevin, B. 6 Rich V. Aldred, 6 Mod. 216 ; 2 Ld, Eaym. 912, per Powell, J. ; 2 Saund. 47 b, note ; HoUiday v. Camsell, 1 Term Rep. 658; 2 Black. Comm. 451-453 ; Arnold v. Jefferson, 1 Ld. Raym. 275. See also Mr. Wallace's remarks on this point, in the American Jurist for January, 1837, 16 American Jurist, p. 280 to 285. CH. n.] ON DEPOSITS. 95 the custody of a thing and the property, whether general or special, in a thing.i If a depositary has a special property in the deposit, it must be equally true that every other bailee has, and, indeed, that every person, who lawfully has the custody of a thing, with the assent of the owner, has a special property in it during the time of his custody. Under such circumstances the distinction between a special property and a mere custody would seem to be almost, if not entirely, eva- nescent. The point came directly before the court in the case of Hartop v. Hoare.^ In that case, certain jewels, enclosed in a sealed paper and sealed bag, had been placed by Hartop (the owner) in the hands of a jeweller, for safe custody, and the latter afterwards broke the seal, took out the jewels, and pledged them to the defendant for an advance of money. The owner afterwards brought an action of trover against the defendant, who refused to deliver up the jewels without payment of the advance, ^^^he question was made, whether the plaintiff was entitled ^^^^^r under those circumstances. The points made and c^^^^^Bwere, first, in what relation the jeweller stood to tl^^^^Hn; and, secondly, how far the plaintiff was bound by tE^^weller's acts in pawning them. The court, upon solemn deliberation, held, first, that the de- livery of the jewels to the jeweller was a mere naked bailment of them for the use of the bailor, and that the jeweller was a mere depositary, having no general or special property in the jewels, and no right to sell or dispose thereof, but having the custody only ; and, secondly, that the pledge by the jeweller was wrongful, and the refusal by the defendant was a tortious conversion of the property for which the action of trover lay. A similar distinction seems to have been taken in Southcote's case ;^ and it was also stated by Mr. Justice Buller, in Holliday V. Camsell.* It is also manifest from the judgment of Lord Coke, in the case of Isaack v. Clark,^ that he held the opinion, 1 Holliday v. Camsell, 1 Term Rep. 658, 659, per Buller, J.; Bac. Abridg. Bailment, A. C. ; 1 Dane, Abridg. ch. 17, art. 8, § 9. 2 3 Atk. 44; 8. c. 1 Wilson, 8; 2 Str. 1187. But the report in 3 Atk. 44 is the fullest and best. » 4 Co. Rep. 83 b. * 1 Term Rep. 658, 659. 6 2 Bulst. 306, 311. 96 ON DEPOSITS. [CH. II. that every bailment did not import a special property in the bailee. His language was : " Bailment makes a privity. If one has goods as a bailee, where he hath only a possession, and no property, yet he shall have an action for them." Unless the doctrine here stated, and especially that which was solemnly adjudged in Hartop v. Hoare, is to be overturned, it cannot be maintained, upon the footing of authority, that a mere depositary has a special property in the deposit, or any thing more than a mere rightful possession and custody. § 93 h. The very question arose in Waterman v. Robinson, ^ and it was the only point in judgment. In that case, which was an action of replevin, a commission of bankruptcy issued against the owner of the goods, and the goods were seized by the messenger under the commission, and delivered by him to the plaintiff, taking his obligation to keep them safely, and to redeliver them on demand. An assignee was duly appointed, and all the bankrupt's propert^^fcgned ; and the defendant, who was a deputy-sheriff, at't^^^^^ attached the goods on a writ against the bankrupt. ^^^^^K't' held, that the plaintiff was a mere bailee for safe-l^^^^Mand had no general or special property in the goods, aS^nerefore, was incompetent to maintain an action of replevin therefor, although he might, if his possession was violated, have maintained an action of trespass or trover.^ 1 5 Mass. 303, 304; post, § 125. 2 Mr. Chief Justice Parsons, in delivering the opinion of the Court in this case, said : " Upon these facts we are to decide, whether the property of the goods, so that he might lawfully replevy them, was in the plaintiff. Trover may be maintained by him who has the possession : but replevin cannot be maintained but by him who has the property, either general or special. Admitting the commission, and the proceedings under it to be regular, what property had the plaintiff in the goods ? The general prop- erty was in the commissioners until the assignment, and then in the assignee. The messenger, if any person, had the special property, and not the plaintiff, who had no interest in the goods, but merely had the care of them for safe-keeping. If his possession was violated, he might maintain trespass or trover, but he had no special property, by which he could maintain replevin ; in which the question is not of possession, but of property, although possession may be prima facie evidence of property. On this ground, we are of opinion that the plaintiff cannot maintain this action, he not proving that either the general or special property was in CH. n.] ON DEPOSITS. 97 § 98 c. It is sometimes supposed, that, because a depositary is entitled to maintain an action against a wrong-doer, who disturbs his possession, or injures, or takes away, or converts, the deposit, therefore he has a special property in the deposit; and, especially, it is supposed that the depositary has such a special property, because, in such cases, he may maintain an action of trover, as well as of trespass, against the wrong-doer ; because trover is an action exclusively founded in a right of property. It is, indeed, often stated in the authorities, that trespass is an action founded on possession, and trover on property ; and that, in order to maintain trover, it is neces- sary that the plaintiff should have either an absolute or a special property in the goods which are the subject of the ac- tion. ^ But this language is generally used merely to present the leading distinction between the action of trespass and that of trover ; in the former, possession is indispensable to main- tain the suit ; in the latter, property is suflBcient, if there is a right of possession ; for the rirht of property generally draws to it the possession.^ BuflmilesB the party has the right of possession, as well as the 'riHfcf property, he cannot maintain trover.3 himself." See also Ludden v. Leavitt, 9 Mass. 104; Warren v. Leland, 9 Mass. 265; Commonwealth v. Morse, 14 Mass. 217; all of which are directly to the point, that a bailee for safe-keeping has no special property but a mere custody. See also Brownell v. Manchester, 1 Pick. 232. It has sometimes been supposed that there was a distinction between the case of the possession of a bailee and the possession of a servant ; and that, where a sheriff attaches property, and delivers it to a person to keep for him, and to deliver it to him, the latter is not a bailee, but a servant of the sheriff. See 16 American Jurist, 1837, p. 284. But this is a very incorrect view of the matter. A bailee is often called the servant of the bailor. Mr. Justice BuUer, in Ward v. Macauley, 4 Term Rep. 489, 490, said: "The carrier is considered, in law, as the servant of the owner, and the possession of the servant is the possession of the master." And yet, the carrier has a special property in the thing bailed. 1 Pyne v. Dor, 1 Term Rep. 55, 56; Webb v. Fox, 7 Term Rep. 398, per Lawrence, J. ; 2 Saund. 47 a, Williams's note; Ward v. Macauley, 4 Term Rep. 489, 490; White v. Webb, 15 Conn. 302. 2 See 2 Saund. 47 a, Williams's note. * Gordon v. Harper, 7 Term Rep. 10, 12; Pain v. Whittaker, Ryan & Mood. 99; 2 Saund. 47 c, Williams's note; Smith v. Milles, 1 Term Rep. 480 ; Bac. Abridg. Trespass, C. 7 98 ON DEPOSITS. [CH. H. § 93 d. The language also used in some of the authorities, as to special property, has certainly no small tendency to mis- lead us ; for the phrase is often used in a loose and general sense, as merely equivalent to a right or title to hold the pos- session against all persons except the true owner, and even against him for a particular purpose, without intending that the bailee has any interest whatever in the thing ; that is, any jus in re.i Perhaps, in an accurate sense, it might be more proper to say, that the mere lawful possession of a chattel, whether accompanied with a special interest or property in it or not, is sufficient for the possessor to maintain an action of trover, as well as of trespass, against any wrong-doer who vio- lates that possession.'^ Thus, it has been held, that the finder of a jewel, although he does not by such finding acquire any absolute property, yet has such a property (title) as will enable him to keep it against all persons but the rightful owner, and he may maintain trover for it.^ There are many other cases, in which it has been held (as we shall presently see) that trover will lie in favor of a bailee, where the bailment is not made for any special purpose, b|l8ionly for the benefit of the rightful owner.* 1 See Giles v. Grover, 6 Bligh, 277, 291, 292, 316, 318, 319, 321, 322, 334, 335, 339 to 342, 371, 372, 405, 433, 434, 436, 437. 2 Waterman v. Robinson, 5 Mass. 303, 304; Giles v. Grover, 6 Bligii, 277, 436, 452, 453. * Armory v. Delamirie, 1 Str. 505 ; 2 Saund. 47 d, Williams's note [Clark V. Maloney, 3 Harringt. 68 ;J Sutton v. Buck, 2 Taunt. 302, 309 Webb V. Fox, 7 Term Eep. 391, 399; 1 Dane, Abridg. ch. 17, art. 8, 9 Godbolt, 160, pi. 224; Burton v. Hughes, 2 Bing. 175, by Best, Ch. Just., and Park, J.; {2 Sch. Pers. Prop. 14.} < Sutton V. Buck, 2 Taunt. 302, 309, per Chambre, J. ; Roberts v. Wyatt, 2 Taunt. 268, 278; Nicolls v. Bastard, 2 Cromp.,Mees. & Rose. 659; a. c. 1 Tyr. & Gr. 156. In Sutton v. Buck (2 Taunt. 302) , it was expressly held that possession of chattels was sufficient to maintain an action of trover against a mere wrong-doer. In that case, Lawrence, J., said : " There is enough property in this plaintifi to maintain trover against a wrong-doer. As far as regards the possession (of the plaintifi) it is good against all, exceptthe vendor himself. There is a difference made in the books between a wrong-doer and one acting under color of a title. In the case of Armory V. Delamirie, 1 Str. 505, the bare possession was held sufficient to recover (in trover) against a wrong-doer. " Chambre , J. , said : " Here the plaintiff has possession under the rightful owner, and that is sufficient against a CH. II.] ON DEPOSITS. 99 § 93 e. In a very recent case, in the House of Lords,i where the subject was much discussed, in consequence of a final dif- ference of opinion among the judges, the point was strenu- ously pressed, that, after a seizure of goods in execution by the sheriff, the property is devested out of the debtor, and a special property is vested in the sheriff ; and one argument to establish this special property was, that, if the goods after such execution, and before the sale, are taken out of the possession of the sheriff, he may maintain trover therefor against the wrong-doer. Upon that occasion Lord Tenterden said:^ "It has been argued that the property is vested in the sheriff, because there are authorities to show that the sheriff, if the property is taken out of his hands, may maintain an action of trover against the wrong-doer. These actions are maintainable upon a ground perfectly distinct from the right of property. They are maintainable upon the ground of possession. Any man in possession of goods, either as the bailee or otherwise, may, in his own name, maintain an action. The power, there- fore, of bringing an action of this kind does by no means prove that the property is in the sheriff." Upon the same occasion Lord Chief Justice Tindal said : " It has been further contended, that, as the sheriff may maintain an action of tres- person having no color of title." These remarks were quoted and ap- proved of by the Court in Burton v. Hughes (2 Bing. 175), where Lord Ch. Just. Best said: " The case, which has been referred to (2 Taunt 302) confirms what I had esteemed to be the law upon the subject, namely, that a simple bailee has a suflBcient interest to sue in trover." Park, J., said: " Admitting that the defendants were not wrong-doers, at all events they were strangers, and possession is sufficient to enable a party to main- tain trover against a stranger." And he then quoted the language of Chambre, J. , above cited, with approbation. Oughton v. Seppings, 1 Barn. & Adolph. 241, is to the same efiect, that mere possession is a sufficient title against a wrong-doer. See also 2 Saund. 47 c ; Id. 47 d, Williams's note; Webb v. Fox, 7 Term Rep. 391; ante, § 93 b, and note; [Moran V. Portland Steam Packet Co., 35 Maine, 55; Hyde v. Noble, 13 N. H. 494. A receiptor to whom a sheriff has intrusted for safe-keeping property attached by him on a writ against a third person, may maintain trover against a wrong-doer who takes the property from his possession without color of right. Thayer v. Hutchinson, 13 Vt. 504. J 1 GUes V. Grover, 6 Bligh, 277. 2 Giles V. Grover, 6 Bligh, 452, 453. 100 OK DEPOSITS. [CH. U. pass or trover against any wrong-doer for taking goods which he lias seized, it therefore follows that he, and not the defend- ant, has the property in the goods so seized. But to this argument it appears suiBcient to answer, that any person who has the legal possession of goods, though not the property, may maintain this action against a wrong-doer ; for a mere wrong- doer cannot dispute the title of the party who is in the posses- sion of the goods, without any color of legal title." ^ The same ' The whole passage deserves to be quoted at large ; because, although his Lordship uses the words " special property " in the sheriff, he after- wards explains his meaning to be, to use them in a very qualified sense, excluding every notion of interest. " It has further been contended, that, as the sheriff may maintain an action of trespass or trover against any wrong-doer for taking goods which he has seized, it therefore follows that he, and not the defendant, has the property in the goods so seized. But to this argument it appears sufficient to answer, that any person who has the legal possession of goods, though not the property, may maintain this action against a wrong-doer ; for a mere wrong-doer cannot dispute the title of the party who is in the possession of the goods, without any color of legal title. The sheriff, no doubt, has the legal custody and pos- session of the goods after seizure; he has a special property in him for that purpose, for the law has directed him to seize and make sale thereof. But this affords no argument that the absolute property in the goods is altered and devested from the defendant; for the very same ac- tion is maintainable by the finder of goods against the person who wrong- fully takes them from him, or by the carrier of goods for hire, or by the bailee of goods against a trespasser ; and yet, in the three cases last put, the absolute property is not devested from, but still remains in, the true owner." Again he says: " It would be a better definition of the sheriff's relation to these goods, to say he has them in his custody under a power to sell them, rather than any actual interest or property in them. His situation, indeed, cannot be better defined than by saying the goods are in cu.itodia legis, a phrase which plainly distinguishes a mere custody and guardianship of the goods from a change in the property. So far, there- fore, as a special property in the goods is necessary for their safe custody against wrong-doers, and to render the execution of his public duty use- ful to the judgment creditor, so far he may be said to have the property; but beyond this, and as against the rights of adverse claimants, there is no authority for saying that he has any property at all." p. 436. Mr. Justice Patterson, Mr. Baron Alderson, and Mr. Baron Vaughan, gave the same explanation. 6 Bligh, 291, 292 ; Id. 316 to 322 ; Id. 371, 372. Mr. Justice Taunton (p. 335) said : '• The sheriff, under the writ, has a mere power to sell, without any interest vested in him, except that which any bailee, such as a carrier, wharfinger, &c., who is answerable over, has CH. n.] ON DEPOSITS. 101 doctrine, that a bailee upon a simple bailment itiay maintain either trespass or trover, founded upon his mere possessioJi, has been recognized in other still more recent cases. ^ On a very late occasion, Mr. Justice Patterson said : " My brother Ludlow contends, that a person who has a right of custody of a chattel may bring trover to obtain the chattel. So he may, after he has once obtained the custody. But this is an action of trover to obtain custody."^ Mr. Justice Coleridge, in the same case, added : " When a plaintiff in trover has no posses- sion, he must have a general or special property ; "^ thus ad- mitting that possession alone, without property, is sufficient to maintain the action.* The circumstance, therefore, that trover may be maintained by a simple depositary against a wrong- doer, does not seem decisive that he has a special property in the deposit." for his own protection. This interest, if so it may be termed, is called a special property, as contradistinguished from a general property, and in respect to this we know he may bring trover for the goods seized. But it is not a beneficial interest." See Id. p. 340, .341. The House of Lords adopted this doctrine by affirming the judgment. See also Pothier, Traitd de D6p6t, n. 93. 1 NicoUs V. Bastard, 2 Cromp., Mees. &Rosc. 659, 660, 661. See also Moore v. Robinson, 2 Barn. & Adolph. 817; Pitts v. Gaince, 1 Salk. 10. 2 Addison v. Round, 4 Ad. & Ellis, 799, 804. 8 Id. 804. * See 2 Kent, Comm. Lect. 40, p. 568, 585, 4th edit. ; Webb v. Fox, 7 Term Rep. 391. s Post, § 150, 279, 280. The case of Rooth v. Wilson (1 Barn. & Aid. 59), and the case of Miles v. Cattle (6 Bing. 743; s. c. 4 Moore & P. 630), do not, properly considered, inculcate a different doctrine. The former was an action on the case against the defendant, for negligence in not repairing the fences of his close, by which non-repair a certain horse, of which the plaintiff was a gratuitous bailee, which was put by him in his adjoining close, fell into the defendant's close and was killed. The Court held, that the plaintiff was entitled to recover. Lord EUenborough said, that the plaintiff's putting the horse into his field, under such circumstances, was such a degree of negligence as rendered him liable to the owner, and this liability was sufficient to enable him to maintain the action. He had an interest in the integrity and safety of the animal, and might sue for damages done to that interest. Mr. Justice Bayley was of the same opin- ion, and said that case was a possessory action. Mr. Justice Abbot said, that the same possession which would enable the plaintiff to maintain trespass, would enable the plaintiff to maintain this action. Mr. Justice 102 ON DEPOSITS. [CH. II. § 93/. The true doctrine would seem to be, that every bailee ought to have a general right of action against mere wrong-doers to the property, while in his possession, whether he has a special property therein or not, because he is answer- able over to the bailor ; for (as has been well said) a man ought not to be charged with an injury to another, without being able to resort to the original cause of that injury, and in amends there to do himself right.^ And accordingly this rule is laid down in Bacon's Abridgment; and it is supported by the other authorities already cited.^ § 93 g. After all, the point, in the present state of the law, may, perhaps, depend more upon the definition of terms, than upon any real controversy as to principle. What is meant by a special property in a thing ? Does it mean a qualified right Holroyd said, that the negligence of the defendant had deprived the plaintiff, in some degree, of the means of exercising his right for the pur- pose of putting the cattle of others into his field, as well as his own; and if damage accrued to either, he was entitled to maintain the action. Nothing was said as to the plaintiif having a special property in the horse. In the other case (Miles v. Cattle), the action was case for negligence against a carrier. The plaintiff had received a parcel from A., to book for London, at the oflBce of the defendant. Instead of doing so, the plaintiff, being about to go to London in the defendant's coach, put the parcel in his own bag, containing his clothes, which was lost on the journey. The plaintiff had a verdict for the value of his own clothes ; but the Court held that he was not entitled to any thing for the loss of the parcel intrusted to him, because at the time he had no absolute or special property in the parcel, as the bailment had terminated by his own mis- feasance. Whether this case was correctly decided, and whether it is reconcilable with that in 1 Barn. & Aid. 59, or not, need not be discussed on the present occasion. It is sufficient that it turned on a point not now under consideration. Post, § 152. [See Fortune v. Harris, 6 Jones (N. C), 532. ^ Bac. Abridg. Bailment, D. [See Steamboat Co. v. Atkins, 22 Penn. St. 522.] 2 Bac. Abridg. Bailment, D. ; 1 Dane, Abridg. ch. 17, art. 8, 9 ; Kooth V. Wilson, 1 Barn. & Aid. 59; Heydon and Smith's case, 13 Co. 69; 21 Hen. 7, 14 b; Roberts v. Wyatt, 2 Taunt. 268, 275; Sutton v. Buck, 2 Taunt. 302; Hartop v. Hoare, 3 Atk. 44 ; s. c. 1 Wilson, 8; Burton v. Hughes, 2 Bing. 173 ; post, § 183; Addison v. Round, 4 Adolph. & Ellis, 799, 804 ; Nicolls v. Bastard, 2 Cromp., Mees. & Rose. 659, 660; Water- man V. Robinson, 5 Mass. 303, 301; ante, § 93 to 93 d. See also 2 Kent, Comm. Lect. 40, p. 567, 585, 4th edit. CH. II.] ON DEPOSITS. 103 or interest in the thing, &jus in re, or a right annexed to the thing ? Or does it mean merely a lawful right of custody or possession of the thing, which constitutes a sufficient title to maintain that possession against wrong-doers by action or other- wise ? If the latter be its true signification, it is little more than a dispute about terms ; as all persons will now admit that every bailee, even under a naked bailment from the owner, and every rightful possessor by act or operation of law, has in this sense a special property in the thing. But this certainly is not the sense in which the phrase is ordinarily understood. When we speak of a person's having a property in a thing, we mean that he has some fixed interest in it (^jus in re), or some fixed right attached to it, either equitable or legal ; and when we speak of a special property in a thing, we mean some special fixed interest or right therein, distinct from and subordinate to the absolute property or interest of the general owner. Thus, for example, if goods are pledged for a debt, we say that the pledgee has a special property therein ; for he has a qualified interest in the thing, coextensive with his debt, as owner pro tanto. So we say that artificers and workmen, who work on or repair a chattel, and warehousemen, and wharfin- gers, and factors, and carriers, have a special property in the chattel confided to them for hire, for the particular purpose of their vocation, because they have a lien thereon for the amount of the hire due to them, and a rightful possession in virtue of that lien, even against the general owner, which he cannot displace without discharging the lien.^ So the sheriff, who has lawfully seized goods on an execution, may in this sense be said, without, perhaps, straining the propriety of language, to have a special property in the goods, although, more cor- rectly speaking, the goods should be deemed to be in the cus- tody of the law, and his possession a lawful possession, binding the property for the purposes of the execution against the general owner, as well as against wrong-doers.^ But it seems a confusion of all distinctions to say, that a naked bailee, such as a depositary, has a special property, when he has no 1 Bac. Abridg. Bailment, C. 2 Giles V. Grover, 6 Bligh, 277, 291, 292 ; Id. 316 to 322 ; Id. 335; Id. 371, 372; Id. 436, 452, 453; ante, § 93 e. 104 ON DEPOSITS. [CH. II. more than a lawful custody or possession of the thing, with- out any vested interest therein for which he can detain the property, even for a moment, against the lawful owner. It might, with far more propriety, be stated that a gratuitous borrower has a special property in the thing bailed to him, because, during the time of the bailment, he has a right to the use of the thing, and seems thus clothed with a tempo- rary ownership for the purposes of the loan.i Yet this has sometimes been a matter denied or doubted.^ § 93 h. Mr. Justice Blackstone has defined an absolute prop- erty to be, " Where a man has solely and exclusively the right, and also the occupation, of any movable chattels, so that they cannot be transferred from him, or cease to be his, without his own act or default;"^ and qualified, limited, or special property to be such " as is not in its nature permanent, but may sometimes subsist, and at other times not subsist." * And, after illustrating this doctrine by cases of qualified property in animals ferm natures, and in the elements of fire, light, air, and water, he then proceeds : " These kinds of qualification in property depend upon the peculiar circum- stances of the subject-matter, which is not capable of being under the absolute dominion of any proprietor. But the property may also be of a qualified or special nature, on ac- count of the peculiar circumstances of the owner, when the thing itself is very capable of absolute ownership. As in case of bailment or delivery of goods to another person for a par- ticular use ; as to a carrier to convey to London, to an inn- keeper to secure in his inn, or the like. Here there is no absolute property in either the bailor or the bailee, the per- son delivering or him to whom it is delivered ; for the bailor hath only the right, and not the immediate possession ; the bailee hath the possession, and only a temporary right. But it is a qualified property in them both ; and each of them is entitled to an action, in case the goods be damaged or taken away ; the bailee, on account of his immediate possession ; the bailor, because the possession of the bailee is immediately his 1 See post, § 279, 280; Bao. Abridg. Bailment, C. ^ Bac. Abridg. Bailment, C. 8 2 Black. Comm. 389. * 2 Black. Comm. 391. CH. n.] ON DEPOSITS. 105 possession also. So also, in case of goods pledged or pawned upon condition, either to repay money or otherwise ; both the pledgor and pledgee have a qualified, but neither of them an absolute, property in them ; the pledgor's property is condi- tional, and depends upon the performance of the condition of repayment, &c. ; and so, too, is that of the pledgee, which depends upon its non-performance. The same may be said of goods distrained for rent, or other cause of distress ; which are in the nature of a pledge, and are not, at the first taking, the absolute property of either the distrainor, or the party distrained upon ; but may be redeemed, or else forfeited, by the subsequent conduct of the latter. But a servant, who hath the care of his master's goods or chattels, as a butler of plate, a shepherd of sheep, and the like, hath not any prop- erty or possession, either absolute or qualified, but only a mere charge or oversight." ^ The cases here put by the learned commentator, of qualified property, are clearly cases where the bailee has an interest or lien in rem. Mr. Justice Lawrence, on one occasion, said : " Absolute property is where one, having the possession of chattels, has also an ex- clusive right to enjoy them, and which can only be defeated by some act of his own. Special property is where he who has the possession holds them subject to the claims of other persons. There may be special property in various instances. There may be special property without possession ; or there may be special property arising simply out of a lawful pos- session, and which ceases when the true owner appears. Such was the case of Armory v. Delamirie."^ § 93 i. Now, with reference to the case in judgment, the language of the learned Judge may be strictly correct ; for it is by no means clear that the bankrupt had not an absolute property in the chattels, good against all the world, until his assignees asserted some title to it. The case cited of Armory V. Delamirie, was the case of goods coming to the party's possession by finding, where he might justly be said to be * 2 Black. Comm. 395, 396. Sir James Mansfield, in Roberts v. Wyatt (2 Taunt. 268, 275), spoke of a temporary property in a thing, as contra- distinguished from a special property. 2 1 Str. 504; Webb v. Fox, 7 Term R. 391, 399. 106 ON DEPOSITS. [CH. H. entitled to it, as well as possessed of it, as absolute owner, against all the world, until the rightful owner appeared and claimed it ; and if it was never claimed, his title as finder remained absolute. The case of a naked depositary does not seem to have been here presented to the mind of the learned Judge. 1 Indeed, there is no small refinement and subtility in suggesting, that a person lawfully in possession of a thing has at the same time a special property therein against strangers, and no property at all against the true owner. What sort of special property is that, which has no existence against the owner of the thing, and yet at the same time has an existence against other persons ? Can there be property and no prop- erty at the same time ? If the language were, that, when a party has a right of possession, that right cannot lawfully be violated by mere wrong-doers ; but, if violated, it may be redressed by an action of trespass or trover ; it would be in- telligible. If the language were, that a person maj^ have a present temporary or defeasible property in a thing, subject to be devested b}' the subsequent claim of the rightful owner under his paramount title (such as in the case of the finder of chattels),^ or a temporary property not special, which is to become absolute, or extinguished, by future events (such as the possession of an abstract of the title of the vendor b}^ the vendee, under a contract for a sale and conveyance of real estate), there would be little difficulty in comprehending the nature and quality of the right, as a jus in re? It would be a present fixed right of property, subject to be devested or destroyed by matters in futuro. In short, it would be a de- feasible, but vested interest in rem. But in the case of a naked deposit, by the very theory of the contract, the bailor never means to part for a moment with his right of property, either generally or specially, but solely with his present pos- session of it ; and the undertaking of the bailee is not to re- store any right of property, but the mere possession to the bailee. It is this change of possession which constitutes the 1 Bao. Abridg. Bailment, D.; Id. Trespass, C. 2; Id. Trover, C. 2 Armory v. Delamirie, 1 Str. 504; Webb u. Fox, 7 Term R. 391, 399; Sutton V. Buck, 2 Taunt. 302. 8 Boberts v. Wyatt, 2 Taunt. 268, 275. CH. II.] ON DEPOSITS. 107 known distinction between the custody of a bailee, and that of a mere domestic servant ; for in the latter case there is no change whatever of possession in the goods, but the possession remains in the master, and the servant has but a charge, or oversight ; ^ whereas, in the case of a bailee, there is a positive change of possession. The true description of the right con- ferred on a naked bailee is that which Mr. Justice Blackstone, in the passage before cited,^ calls a " possessory interest," or right of possession, in contradistinction to a general or special property.^ § 94. But, whatever may be the true doctrine on this sub- ject, whether that the depositary has a special property in the deposit, or not, there is no doubt, that not only he, but the general owner, in virtue of his general ownership and right of • possession, may also maintain a suit against a stranger, for an injury to it, or conversion of it.* Indeed, it is a general rule, that either the bailor or the bailee may, in such a case, main- tain a suit for redress ; and a recovery of damages by either of them will be a full satisfaction, and may be pleaded in bar of any subsequent suit by the other.^ § 95. The doctrine of the civil law coincides with what has been supposed to be the common law on the point, whether the depositary has a special property or not in the deposit. By the civil law the property of the thing remains in the de- positor ; and at most the possession only passes to the depos- itary. " Rei depositsB proprietas apud deponentem manet ; sed et possessio, nisi apud sequestrem deposita est." ^ Pothier states the doctrine quite as strongly. " In a true deposit," 1 2 Black. Comm. 396 ; ante, § 93 h. 2 Ante, § 93. 8 {See further, /losi, § 133, and notes.} * 2 Black. Comm. 453; Bac. Abridg. Bailment, A. B. C. ; Id. Trespass, C. ; Id. Trover, C. ; Thorgj;. Burling, 11 Johns. 285; Brownell w. Man- chester, 1 Pick. 232. See Smith on Merc. Law, ch. 5, § 6, p. 117, 2d edit. 6 Bac. Abridg. Trespass, C. 2; Id. Trover, C. ; 2 Roll. Abridg. Tres- pass, P. pi. 5; NicoUs v. Bastard, 2 Cromp., Mees. & Rose. 659, 660; 2 Saund. 47 c, Williams's note; Brook, Abridg. Trespass, pi. 67; ^os^, § 353. « Jones on Bailm. 80; Dig. Lib. 16, tit. 3, 1. 17, § 1; AyUfie, Pand. B. 4, tit. 17. 108 ON DEPOSITS. [CH. II. says he, "he who has deposited any pieces of gold or silver remains the proprietor of them, and he even continues the possessor of them, the depositary detaining them in the name of him who has made the deposit." ^ In the Scotch law, it vi'ould seem, that, although the property and possession are in some sort severed by the deposit, the former belonging to the depositor and the latter to the depositary, yet the posses- sion of the deposit is deemed for all effective purposes to re- main with the depositor.^ Perhaps, after all, the distinction here pointed out is not materially different from what is recognized in common law. The possession of the depositary is certainly, for many purposes, deemed the possession of the depositor in our law, both as to rights and remedies.^ And it could scarcely have been the intention of the civil law to declare, that possession did not in fact pass to the bailee by the delivery of the deposit. It meant only to affirm, that the possession was not exclusive of that of the bailor ; but rather in subordination to it. § 96. We may now pass to the consideration of another part of the duty of the depositary, and that is, his obligation to return the deposit, when it is required of him.* § 97. In the first place, the deposit is to be returned in in- dividuo, and in the same state in which it was received.^ If it is lost or injured, or spoiled by the fraud or gross negligence of the depositary, he is responsible to the extent of the loss or injury.^ If he has kept the deposit with the same care as his own goods of the same kind, this will ordinarilj' repel the presumption of fraud and gross negligence. Still, however, it must be under this reserve, that he has not omitted those common precautions, which other persons would not omit ; » Pothier, Traitt de Dep5t. n. 82; Id. n. 12. ' 1 Bell, Comm. § 199, 4th edit. ; 1 Bell, Coram, p. 257, 258, 5th edit. 8 Ante, § 94. * 1 Bell, Comm. § 199, 4th edit. ; 1 Bell, Comm. p. 257, 5th edit. ; Jones on Bailm. 36, 46. 6 Code of Louisiana (1825), art. 2915, 2916. « Jones on Bailm. 36, 46, 120; Foster o. Essex Bank, 17 Mass. 479; Stanton v. Bell, 2 Hawks (N. C), 145; 1 Dane, Abridg. ch. 17, art. 1, 2; jMaury v. Coyle, 34 Md. 235; Beyris v. Spor, 22 La. Ann. 16.} CH. n.] ON DEPOSITS. 109 such, for instance, as keeping money under lock and key.^ " Latse culpae finis est, non intelligere id, quod omnes intelli- gunt." 2 It follows, of course, that, where the deposit is lost, or perishes, or is injured, either by accident, or by inhe- rent defects, or by its own perishable quality, or even by the slight or ordinary neglect of the depositary, he is not charge- able.^ If a part is lost, and a part remains, the latter is to be restored.* If, to save a perishable deposit, it has been sold by the bailee, the money is to be paid to the owner ; for a necessary sale is good, and for his benefit.^ § 98. Although the obligation to restore a deposit seems to flow from the first principles of the contract, as well as from natural justice ; yet, in the reign of Queen Elizabeth, when it had been adjudged (as Sir William Jones has not scrupled to declare, consistently with common sense and common hon- esty),^ that an action on the case (assumpsit) lay against a man who had not performed his promise of redelivery, or of delivering over things bailed to him, that judgment was re- versed, upon the ground that the defendant had not any man- ner of profit to receive ; but it was only a bare possession ; and, therefore, there was no sufficient consideration for it.'^ However, this doctrine was not then acquiesced in; but was soon afterwards overturned, and the doctrine was firmly es- tablished, which is now acted on, that assumpsit will lie in such a case.® § 99. The depositary is also bound to restore not only the thing deposited, but any increase or profits which may have 1 1 Domat, B. 1, tit. 7, § 3, art. 3, 4 ; ante, § 63 to 74. 2 Dig. Lib. 50, tit. 16, 1.223; Mytton ». Cook, 2 Str. 1099. See Rooth V. Wilson, 1 Barn. & Aid. 59; ante, § 66. 8 1 Domat, B. 1, tit. 7, § 3, art. 5, 6; Jones on Bailm. 10, 46; Shiells V. Blackburue, 1 H. Black. 162; Pothier, Traite de Depot, n. 42-44. * Pothier, Traits de Depot, n. 44. ^ Pothier, Traite de D^pSt, n. 44, 45. * Jones on Bailm. 51. ' Richest). Brigges, Yelv. 4; s. c. Cro. Eliz. 883; s. p. Piokas v. Guile, Yelv. 128. 8 Game v. Harvie, Yelv. .50; Wheatley v. Low, Cro. Jac. 668; Coggs V. Bernard, 2 Ld. Raym. 920. 110 ON DEPOSITS. [CH. H. accrued from it.^ If an animal deposited brings forth young, the latter are to be delivered to the owner.^ And bj^ the civil and French law, if interest has been made upon money de- posited, this also should be given up to the depositor.^ If the depositary has used the money wrongfully, this seems a just and moderate compensation for the wrong. If the right to let the money, or to use it, followed from the bailment, it would cease to be a deposit, and fall under some other denomination.* § 100. If the depositary had sold the deposit, and after- wards repurchased it, he was by the civil law bound to restore the value, even if it was afterwards lost without his default ; and the reason assigned is, that the original sale was a fraud upon the owner, and could not be purged away, but by a deliv- ery of the thing itself to the owner. " Si rem depositam ven- didisti, eamque postea redemisti, in causam depositi, etiamsi sine dolo malo postea perierit, teneri te depositi ; quia semel dolo fecisti, cum venderes." ^ The same rule is incorporated in the French law.^ Our law would adjudge, in such a case, that the party should not be permitted to take advantage of his own wrong ; and, that, as the sale was a conversion of the property, the right of action of the owner was then complete, and could not be varied, except as to the extent of the damages, even by a subsequent restitution to the owner.'^ § 101. Cases are also put in the Roman and French law, how far the heir or administrator of a deceased bailee is liable, if in ignorance of the bailment he sells the thing. It is held, that he is liable, not as in case of a tort, but for the price 1 2 Kent, Comm. Lect. 40, p. 566, 567, 4th edit.; Code of Louisiana (1825), art. 2919. 2 Dig. Lib. 16, tit. 3, 1. 1, § 23, 24; 1 Domat, B. 1, tit. 7, § 1, art. 9; 2 Kent, Comm. Leot. 40, p. 567, 4th edit. 8 Pothier, Trait6 de Depot, n. 47, 48; Dig. Lib. 16, tit. 3, 1. 1, § 29; Aylifie, Pand. B. 4, tit. 17, p. 519, 523; Code Civil of France, art. 1936. [See also Morss v. Stone. 5 Barb. 516;] {ante, § 88 and notes.} * 1 Bell, Comm. § 199, 4th edit.; 1 Bell, Comm. p. 257, 5th edit.; Pothier, Traits de Depot, n. 9. 6 Pothier, Traite de Depot, n. 43; Dig. Lib. 16, tit. 3, 1. 1, § 25. ^ Pothier, Traits de Diipot, n. 43. ' 1 Roll. Abridg. Action sur Case, p. 5, L. pi. 1 ; Wheelock v. Wheel- wright, 5 Mass. 104; [Crump v. Mitchell, 34 Miss. 449.] CH. n.] ON DEPOSITS. Ill which he has received, and only when he has received it.^ But the depositor, in such a case, may, at his election, proceed against the purchaser, or, if he has not paid the price, the heir will be bound to cede his right of action against him to the depositor.^ Our law would probably treat the case as one of a conversion, and give the owner the value of the thing so sold ; or would enable him, in most cases, at his election, to proceed against the vendee for restitution .^ § 102. The next inquiry is. To whom is restitution to be made ? Generally speaking, it is to be made to the bailor ; although there may be special cases in which that would not be required or justified.* As, for instance, if goods have been deposited by a thief who has been convicted, and the owner reclaims them, the latter alone is entitled to receive them.^ A question has often been raised, whether an innocent bailee is generally responsible to any other person than to him from whom he immediatelj^ received the goods, or, in case of his death, to his legal representatives. It was formerly held, that if the goods of A. are bailed by B. to C, C. must redeliver them to B. ; for (it was said) C. cannot, as bailee, be allowed to remove or alter that possession which has been committed to him in order to restore it to the right owner ; for the right of restitution must be demanded of B., that did the injury, of which A., the bailee, has no pretence to judge ; and, therefore, it would be downright treachery in him to deliver them to any other person than his bailor.^ But it was said, that if A bails goods to B., to which C. has a right, and B. dies, there his executors are chargeable to C. only, who has the right ; for the executors came to the possession by the law, and therefore 1 Dig. Lib. 16, tit. 3, 1. 1, § 47, 1. 2; Pothier, Traite de Dep6t, n. 45, 46; Code Civil of France, art. 1935; Code of Louisiana (1825), art. 2918. 2 Pothier, Traits de D6p6t, n. 45, 46; Code Civil of France, art. 1935; Code of Louisiana (1825), art. 2918. 8 2 Saund. 47 b, Williams's note. [* See Bates v. Stanton, 1 Duer, 79.] 6 Dig. Lib. 16, tit. 3, 1. 31 ; Pothier, Traits de D6p6t, n. 51 ; Code Civil of France, art. 1937, 1938; Boardman v. Gore, 15 Mass. 331, 336 to 338. « Bac. Abridg. Bailment, A. ; 3 Reeves's Hist. 449, 453 ; 1 Roll. Abridg. Detinue, C. 606, 607; Fitz. N. B. 138, M. ; Bro. Tresp. 216, 295; 2 Saund. 47 b, Williams's note; 6 Mod. 216; post, § 105, 281. 112 ON DEPOSITS. [CH. II. must deliver it to that person in whom the law has established the property.! This doctrine, however, even in regard to the bailee himself, was probably limited to cases where the bailor came to the possession of the goods by right ; for, if he came to them by wrong, it would seem that the owner might reclaim them from any person in whose possession they were found.'' But the doctrine itself may now justly be deemed overruled; and the right of the owner to recover his property in all cases, against a person having no title, whether a bailee or not, and whether a first or a second bailee, seems now fully established in our law, upon the plain reason, that the bailee can never be in a better situation than his bailor. If the latter has no title, the real owner is entitled to recover the property, in whose hands soever it may be found.^ Recent cases have also decided, that if a bailee of goods for a particular purpose trans- fers them in contravention of that purpose, even although it be to a bond fide vendee without notice, the latter cannot resist the claim of the owner.^ And a fortiori, if the bailee has obtained the goods upon a claim of ownership not made out, and under an agreement, that, if the claim is unfounded, they shall be restored to him, the bailee cannot retain them against the true owner. ^ § 103. If a bailor, after a deposit, transfers to another per- son his right to the thing deposited, the latter cannot (it is said), at law, compel a delivery of it to himself ; but the bailee, if he chooses, may deliver it to the person to whom it is trans- ferred, and it will be a justification.^ But, if A. delivers goods 1 Bao. Abridg. Bailment, A. ; 9 Hen. 6, 58 ; 1 Roll. Abridg. Detinue, C. pi. 3. 2 Taylor v. Plumer, 3 M. & Selw. 562. See Hardman v. Willcock, 9 Bing. 382, note. ' Ibid.; Wilson u. Anderton, 1 Barn. & Ad. 450; Ogle v. Atkinson, 5 Taunt. 7o9 ; [Cheesman v. Excell, 4 Eng. Law & Eq. 438, {6 Ex. 341;} Bates V. Stanton, 1 Duer, 79;] post, § 132, 281. ■* Wilkinson v. King, 2 Camp. 335; Loeschman v. Machin, 2 Stark. 311; [Cooper V. Willomatt, 1 Mann., Grang. & Scott, 672;] 2 Saunders, 47 b, Williams and Patterson's note (e) ; Hartop i>. Hoare, 3 Atk. 44. See also Hardman 1). Willcock, 9 Bing. 382, note; {Brown v. Thayer, 12 Gray, 1.} ^ Hurd V. West, 7 Cowen, 7.32. Rich V. Aldred, 6 Mod. 216. But qiicere; and see post, § 265, 266, 282. In 1 Roll. Abridg. Detinue, C. pi. 2, 3, p. 605, it is said, that the CH. II.] ON DEPOSITS. 113 to B., to be delivered over to C, there C. hath the property, and may demand the goods, if B. undertakes to make the delivery to C, and hath no interest or claim, but for that purpose.! But in all such cases there must be a clear assent on the part of B. to such undertaking, otherwise no action will lie by C. ; and the mere receipt of the goods will not be suffi- cient to establish such assent.^ It has been settled by several modern decisions, that, in case of a remittance of a bill to an agent or banker, with directions to apply a part of it to the payment of a debt due to a third person, the mere fact of a receipt of the remittance does not, unless the remittee assents to such disposition of the proceeds, and agrees to pay over the sa-me to the creditor, amount to such an appropriation of the proceeds, as will enable such creditor to recover the same against the remittee.^ The same principle has been applied to a consignment of goods for sale, with directions to make pay- ment of a debt out of the proceeds to a creditor.* § 104. It has been further asserted to be the law (although it is open to much question), that, if goods are delivered to a bailee, to be delivered over to another, and afterwards an action grantee may have an action of detinue in such a case; and 9 Hen. 6, 64 b, is cited in support of it. There would be a clear remedy in equity, if there were none at law, in such a case. Com. Dig. Chancery, 4, W. 5; Id. 2, A. 1 ; post, § 282. [See also European Royal Mail Co. v. Royal Mail Steam Packet Co., 8 Jur. (x. s.) 136; 10 C. B. (n. s.) 860 ; Sheridan v. New Quay Co., 4 C. B. (n. s.) 618;] {not cases of gratuitous " deposit."} ^ Bac. Abridg. Bailment, D. ; 1 Bulst. 68; 1 Roll. Abridg. Detinue, C. 606; 9 Hen. 6, 58. See also* Israel v. Douglas, 1 H. Black. 239. 2 See 2 Story on Eq. Jurisp. § 1041 to 1046, and notes to 2d edit. (1839). [See Winkley v. Foye, 33 N. H. 171.] 8 Williams v. Everett, 14 East, 582; 2 Story on Eq. Jurisp. § 1041 to 1046. 4 Williams v. Everett, 14 East, 582; Yates B.Bell, 3 Barn. & Aid. 643; Stewart v. Fry, 7 Taunt. 339; Grant v. Austen, 3 Price, 58; Wedlake v. Hurley, 1 Lloyd & Wels. 330; Tiernan v. Jackson, 5 Pet. 580; 2 Story on Eq. Jurisp. § 1041 to 1046. {If A. deposits money with B., to be paid C. when A. shall have satisfied himself of a certain fact, C. cannot sue without first showing that A. had satisfied himself, and had made that known to B. Carle v. Bearce, 33 Me. 337. But if the deposit is payable over on removal of an incumbrance, the depositary should surrender when that incumbraace is removed. Chase v. Gates, 33 Me. 363. And see TrefEtz v. Canelli, L. R. 4 P. C. 277.} 114 ON DEPOSITS. [CH. 11. is brought against him by one who hath a right to the goods, the defendant may, pending the action, deliver over the goods to the person to vrliom upon the bailment they vi^ere deliverable, and he will be discharged. ^ However, a bailor, where the delivery over is not for a valuable consideration, may at any time countermand his bailment ; and after such countermand, a delivery over by his bailee will not be good.^ § 105. If a bailee delivers the goods to a second bailee, the first bailee may demand and recover the same from the second bailee, because the latter hath the possession of the former, and undertakes for the custody .^ But the original bailor may also demand and recover the same from either bailee, because he has the property, and both are bound to answer to him.* A like action is given to the bailor by the civil law in the case of a second bailment.^ If the second bailee has delivered the goods to the original bailor, it is said, that it is no bar to a suit by the first bailee against him.^ But this doctrine seems at all times to have been questionable.'' And it may be now considered as entirely exploded, both in England and America, by the recent authorities.^ If the bailee should lose the goods bailed, and a stranger, finding them, should deliver them to 1 Fitz. N. B. 138, M. ; Bac. Abridg. Bailment, D.; 1 Roll. Abridg. Detinue, D. 607; post, § -281, 282. {See TrefEtz i>. Canelli, L. R. 4 P. C. 277; Winkley v. Foye, 33 N. H. 171 ; Britton v. Aymar, 23 La. Ann. 63; Cook u. Holt, 48 N. Y. 275. j [And at all events a delivery over by the bailee in good faith before he is informed of the claim of the true owner, is a good defence to such claim. Nelson v. Iverson, 17 Ala. 21C.] 2 Bac. Abridg. Bailment, D. ; 2 Story, Eq. Jurisp. § 1045, 1046, 2d edit. 1839. |And see Lees v. Dwight, 10 La. Ann. 711 ; Winkley v. Foye, 33 N. H. 171.} s 1 Roll. Abridg. Detinue, C. pi. 6 ; ante, § 102. * Isaack v. Clark, 2 Bulst. 306, 312, per Coke, C. J. ; Bac. Abridg. Bail- ment, D.; 1 Roll. Abridg. Detinue, C. p. 606, pi. 4; 9 Hen. 6, 58. See Goslings. Birnie, 7 Bing. 339; ante, § 102; [Smiley u. Allen, 13 Allen, 470.] 5 Pothier, Traite de Depot, u. 63. « 1 Roll. Abridg. Detinue, C. p. 606, pi. 5 ; 9 Hen. 6, 58. ' See Flewellin v. Rave, 1 Bulst. 69 ; 1 Roll. Abridg. Detinue, C. p. 607, pi. 7. * Ogle V. Atkinson, 5 Taunt. 759; Wilson v. Anderton, 1 Barn. & Ad. 450; Whittier v. Smith, 11 Mass. 211; Learned t/. Bryant, 13 Mass. 224. CH. II.] ON DEPOSITS. 115 the true owner, there the finder would not be liable to the bailee ; for he does not come in in privity under the bailment.^ But it is said, that, if a recovery is had by a third person against a stranger, so finding the goods, he will still be liable to the true owner of them in an action ; for it is no answer to the true owner, that another has recovered from the finder what he had no right to.^ Whenever such a question shall again arise, it will probably be thought worthy of farther consider- ation, especially if the finder has had no notice of the true ownership at the time of the first suit and recovery against him. § 106. Where a deposit has been made by a servant in behalf of his master, the goods are to be redelivered to the master, especially if he gives notice that they are not to be redelivered to the servant. But a delivery back to the ser- vant would, in many cases, and especially where there was no reason to suspect any impropriety, be a good discharge.^ § 107. No right of action, however, accrues in any case against the bailee, unless there has been some wrongful con- version or some loss by gross negligence on his part, until after a demand made upon him, and a refusal by him, to redeliver the deposit.* A demand and refusal is ordinarily evidence of a conversion ; unless the circumstances constitute a just excuse, or a justification of the refusal.^ 1 1 Eoll. Abridg. Detinue, C. p. 606, 607, pi. 9. 2 1 Roll. Abridg. Detinue, C. 667; Bao. Abridg. Bailment, D. 3 1 Domat, B. 1, tit. 7, § 1, art. 6 ; Pothier, Traite de D6p6t, n. 49. [See Hamilton v. Nickerson, 11 Allen, 309.] * Brown v. Cook, 9 Johns. 361; Hosmer v. Clarke, 2 Greenl. 308; {West V. Murph, 3 Hill (S. C), 284 ; Montgomery v. Evans, 8 Ga. 178; Jackman v. Partridge, 21 Vt. 558 ; McLain v. Huffman, 80 Ark. 428. And see, as to what constitutes such conversion as may dispense with a demand. Derrick v. Baker, 9 Port. (Ala.) 362; Stewart v. Prazier, 5 Ala. 114; ;jos(, § 122.} * Brown v. Cook, 9 Johns. 361; Chancellor of Oxford's Case, 10 Co. 56; 1 Roll. Abridg. 5, 1. 45; Cranch v. White, 1 Bing. N. Cas. 414; Wilson V. Anderton, 1 Bam. & Adolph. 450; Green v. Dunn, 3 Camp. 215, n.; Gunton v. Nurse, 2 Brod. & Bing. 447; Verrall o. Robinson, 2 Cromp., Mees. & Rose. 495; Philpot v. Kelley, 3 Adolph. & Ellis, 106; [Magee v. Scott, 9 Cush. 148.] jIn Wilkinson v. Verity, L. R. 6 C. P. 206, where goods deposited for safejieeping were wrongfully sold by the 116 ON DEPOSITS. [CH. II. § 108. The civil law and the French law coincide, in many respects, with ours, in the particulars above mentioned. In the civil law, the depositary was generally bound to restore the goods to the depositor. But if the right owner appeared, he might deliver them to him ; ^ and especially if they were stolen from the owner.^ If, however, the real owner, even in case of theft, did not make known his claim, or demand them from the depositary, the latter might restore them to the depositor. " Quod, si ego ad petenda ea non veniam, nihil- ominus ei restituenda sunt, qui deposuit, quamvis maid qusesita deposuit."^ If the ownership was doubtful, or the right was disputed by the depositor, the depositary had a right to detain the property until the right was ascertained, and thus he be- came, as it were, pending the dispute, a judicial depositary or sequestrator.* And the real owner, who, in ignorance of his rights, became a depositary, might always retain the deposit, unless some superior right attached in it to the depositor.^ The French law does not, in these respects, materially differ from the civil law.^ In case of stolen goods, the code of France requires that the bailee shall give notice to the owner, and if the owner fails to claim the goods in a limited time, he may safely redeliver them to the depositor.'^ The code of Louisiana adopts the same rule.^ But generally, in other bailee, and the bailor, more than six years afterwards, being ignorant o£ the fact of such sale, demanded a return of the goods, which the bailee refused, it was held, that the Statute of Limitations ran from the date of demand and refusal, not from the date of the wrongful sale. } 1 Big. Lib. 16, tit. 3, 1. 31, § 1; AylifEe, Pand. B. i, tit. 17, p. 522 ; Code Civil of France, art. 1937, 1938 ; Pothier, Traits de Depot, n. 51. See Code of Louisiana (1825), art. 2905, 2920. 2 Ibid.; ante, § 52. » Dig. Lib. 16, tit. 3, 1. 31, § 1 ; Pothier, Traits de D^pot, n. 51. * 1 Domat, B. 1, tit. 7, § 1, art. 5, 6; Aylilfe, Pand. B. 4, tit. 17, p. 520; Pothier, Traite de D6pot, n. 51; Code of Louisiana (1825), art. 2905. 6 Dig. Lib. 16, tit. 3, 1. 31, § 1; Pothier, Pand. Lib. 16, tit. 3, n. 9 ; Code Civil of France, art. 1916; Code of Louisiana (1825), art. 2930. 8 Pothier, Traits de Depot, n. 49 to 52, &c. ; Id. eh. 2, § 1, art. 3, n. 67. ' Code Civil of France, art. 1938. 8 Code of Louisiana (1825), art. 2920, 2921; Jenkinson v. Cope's Ex- ecutors, 7 Martin, 284. CH. II.J ON DEPOSITS. 117 cases, the depositary is bound to deliver the goods to the party on whose account he received them, whatever may be the claims of other persons.^ And this rule, it seems, will apply to a bailment by a servant of his master's property, where it has been bailed in his own name, and not in the name of his master.^ § 109. Where a deposit is made by a party in a special character, as in the character of guardian, or executor, or trustee, there, if the trust has terminated, as if the guardian- ship has ceased, or the executor has been removed and a new administrator appointed, the delivery should be to the party entitled of right to the property.^ Thus, if the ward has come of age, the delivery should be to him ; or in case of a new administrator, the delivery should be to him.* And the like rule applies, where a third person has, by forfeiture or otherwise, succeeded to the right of property ; ^ as in case of a forfeiture for crimes ; or the subsequent marriage of a female bailor ; or the guardianship of a person, who since the bailment has become non compos mentis. The French law furnishes a similar rule ; ^ and, indeed, it is so consonant to common sense, that it would seem to be a principle of uni- versal justice. § 110. It may be asked. What is to be done b}' a baUee, where different persons claim the same thing from him under different titles ? ^ Is he to be subject to the action of each, ' Code Ci\'il of France, B. 3, art. 1937, 1938; Pothier, Traits de Depot, n. 51; Jenkinson v. Cope's Executors, 7 Martin, 284; Butler v. Kenner, 14 Martin, 274; Code of Louisiana (1825), art. 2915, 2920. [But see Smiley v. Allen, 13 Allen, 465.] 2 Pothier, Traits de Dep5t, n. 49. s Code Civil of France, art. 1941 ; Pothier, Traite de Dep6t, n. 50 ; Code of Louisiana (1825), art. 2922, 2923. [As to the Uability of a banker to the heirs-at-law of a depositor, in case the executor has withdrawn the funds and misapplied them, see the late case in the House of Lords, of Gray v. Johnston, Law Rep. 3 H. L. 1, 1869;] {not. however, a case of " deposit " as bailment. } < Pothier, Traite de D6p6t, n. 50. ' Id. n. 52 ; Bac Abridg. Bailment, B. « Code Civil of France, B. 3, tit. 11, art. 1940, 1941 ; Pothier, Traite de D6p6t, n. 51; Code of Louisiana (1825), art. 2922, 2923. ' [In Smiley v. Allen, 13 Allen, 465, it was held, upon careful consider- 118 OK DEPOSITS. [CH. H. and thus to run the chance of a double recovery against him? Or may he protect himself by any legal proceedings ? We have already seen that he may, in certain cases, compel the adverse parties to litigate the right by interpleading at law, or in equity.^ But this right is principally limited to cases of privity between the parties, as, for instance, between the bailor and a second bailee, where the latter may compel the first bailee to interplead. But where the parties claim in abso- lutely adverse rights, not founded in any privity of title, or any common contract, there the bailee must defend himself as well as he may ; for, generally speaking, he cannot compel mere strangers to interplead with each other, and especially if any tort has intervened.^ Indeed, our law goes to the ex- tent of ordinarily denying to a bailee any right to set up the interest or title of a third person against the title of his own bailor. And if he should give a receipt to such third person, acknowledging that lie held the property for him, it would amount to a conversion of the property, for which his bailor might maintain an action.^ § 111. Although the subject of interpleader, in cases of this sort, belongs properly to another branch of law, it may not be without use to add here some explanations of it. In cases of bailments (as we have had occasion to state), the common law in certain cases enabled the bailee, if sued, to call upon the other proper parties, who were interested in the property, ation, that if a coroner find property on the person of one deceased, which really belongs to another, it is his duty to deliver it to the true owner, upon reasonable proof of his ownership, and he cannot refuse on the ground that it should be delivered to the administrator of the deceased.] 1 Rich V. Aldred, 6 Mod. 216 ; Coop. Eq. PL 45 to 50 ; Isaack u. Clark, 2 Bulst. 306, 313; ante, § 52; 2 Story on Eq. Jurisp. § 801 to 823. ^ Viner, Abr. Enterpleader, L. M. N. &c. See Rich v. Aldred, 6 Mod. 216; 3 Reeves's Hist, of the Law, 450 to 453; 7 Dane, Abr. ch. 226, art. 9. § 4; 2 Story on Eq. Jurisp. § 812 to 820. See Story on Agency, § 217. 2 Stoi-y on Agency, § 217; Holbrook v. Wight, 24 Wend. 169. [And a bailee, having received money from a bailor, in fraud of his cred- itors, cannot set up that fact in defence of an action by such bailor or his assignee, if the creditors have taken no steps to avoid the trans- fer. Brown v. Thayer, 12 Gray, l.J {And see Hendricks v. Mount, 2 South. (N. J.) 788; Clark v. Gaylord, 24 Conn. 484.} CH. II.j ON DEPOSITS. 119 to appear and contest the title between themselves, and thus to exonerate him from responsibility.^ Thus, by the common law, if two persons deposited deeds or chattels with a third, to be redelivered according to the terms of an agreement, and one of them brought an action of detinue against the depositary, the latter might, upon a suitable allegation, by a proceeding called garnishment, which is in effect a notice of the suit, compel the other depositor to appear and become defendant in the action in his stead. And if the bailee was sued in sepa- rate actions of detinue by two depositors upon such a deposit, or by any two persons, each claiming to be the owner of goods which he had found, he might in like manner allege the deposit or finding on the record, and compel them to interplead. But, as these proceedings by garnishment and interpleader were not allowed in any personal action, except that of detinue^ (a form of action which has of late fallen into much disuse), no prac- tical advantage has been derived from them in modern times. The only course no w resorted to for the relief of a person sued, or in danger of being sued, by several claimants, is that of filing a bill to compel the parties, by the authority of a court of equity, to interplead either at law or in equity.^ § 112. PVom this description of interpleader at the common law, it is obvious, that, with the exception of cases of the finding of goods, it is confined to cases where there is a privity between the parties. So that the remedy is not only restricted to actions of detinue, but falls far short of adequate relief, even in actions of that sort. Courts of equity are more liberal in granting relief, not only when suits are brought at law, but when they are threatened. But the relief even here is not, perhaps, in all cases, coextensive with the mischief; for the claim in each case must be of the same nature, or for the same duty, and be founded in privity.* At least, the claim must grow out of some transaction, in which the defendant is a mere 1 Ante, § 52. 2 3 Reeves's Hist, of the Law, 449; 2 Story on Eq. Jurisp. § 801 to 804. 3 See 2 Story on Eq. Jurisp. § 805 to 809; Id. § 814 to 820. * 2 Story on Eq. Jurisp. § 812 to 817, 820. 120 ON DEPOSITS. [CH. H. Stakeholder, or bailee, and disconnects himself from any tort in regard to the conflicting titles.^ § 113. It would seem, that the civil law and the French law do not exactly limit the rights of the bailee in the same manner as our law, in cases requiring an interpleader by third persons. On the contrary, wherever an adverse right is set up, and especially if the property is arrested in the hands of the depositary, he is not bound to deliver it to either party until the title is established ; or, at all events, not until one party, after notice, has refused to proceed,^ so as to decide in a fit suit the title to the property. § 114. Another inquiry may be, what is the duty of a de- positary, in cases where there has been a joint bailment to him ? Generally speaking, he is not bound to redeliver the deposit without the consent of all the parties to the bailment.^ But this rule applies in strictness to those cases only where the bailment has been joint ; and not where the interest in the deposit is joint, but there has been a delivery by one of the joint owners, without any consent or privity of the other owners.* There may also be a joint deposit, where a several delivery to each person of his share is expressly provided for 1 Eden on Injunctions, p. 339 et seq., 342; 2 Ves. Jr. 101; 1 Ves. & B. 334; 1 Merivale, 405 ; 3 Madd. 277,564; 5 Madd. 47 ; 1 Montague, PI. in Equity, 232, &c. ; 2 Mont. PI. in Eq. 380, 397, &c. ; Hinde, Prac. 26; Cooper, Eq. PI. 45 to 50; Bridgman's Prac, Index, Bill, 9, /n(er/)?earfer; Wilson V. Anderton, 1 Barn. & Adolph. 450, 456. This account of the proceedings by garnishment is copied almost verbatim from a recent Report made to Parliament by the Common-Law Commissioners, and ordered to be printed by the House of Commons, on the 8th of March, 1830, p. 25. For further information, the reader is referred to 3 Reeves's Hist, of the Law, 448 to 453; Eden on Injunctions, 335 et seq.; Cooper, Eq. PI. 45 to 50 ; 1 Mont. PI. in Eq. 232 ; 2 Mont. PI. in Eq. 380, 382, note X. P. ; Viner, Abridg. Enierpleader, L. M. N. ; Bac. Abridg. Bailment, D. 2 1 Domat, B. 1, tit. 7, § 1, art. 5, 6; Pothier, Traits de Depot, n. 51, 59; Ayliffe, Pand. B. 1, tit. 7. p. 519, 520; Code Civil of France, art. 1937, 1944 I Ersk. Inst. B. 3, tit, 1, § 27; Code of Louisiana (1825), art. 2905. 3 [2 Kent, Coram, p. 566, 567, 4th edit. ; May v. Harvey, 13 East, 197. See Brandon v. Scott, 40 Eng. L. & E. 105; 7 El. & Bl. 234; Harper v. Godsell, 18 Weekly Rep. 954 (1870).] 1 May V. Harvey, 13 East, 197. See 1 Roll. Abridg. Enterpleader, E. ; Brook, Abridg. Bailment, pi. 4. CH. II.] ON DEPOSITS. 121 in the original contract ; and in such a case, a several action will accrue to each owner upon a demand of his own share.^ If the property deposited belongs jointly to the depositor and depositary, this, as we have seen, in no respect varies the ordinary obligations of law, as to the care which he is bound to take of it.^ But in cases of joint deposit, where there are many owners, and the depositary is one, it seems, that, if either of the other owners gets the deposit out of his possession against his will, he is remediless ; for it has been decided, that, in such a case, he cannot recover back the deposit, although the delivery is upon a special trust for all the owners, and although he has given a bond for the safe custody of it.^ If this decision be correct, it is full of hardship and inconven- ience. It is full of hardship ; for it takes away from the depos- itary the means of preserving his exclusive possession and safe custody ; and yet does not seem to exonerate him from responsibility for such safe custody under his bond. It is full of inconvenience ; for it disables joint owners, in case of any personal distrust, from protecting their several rights by a mutual deposit, for the benefit of all, in the custody of one who may enjoy the respect and confidence of all. It enables one owner, in violation of his contract, by fraud or stratagem, to put at hazard the joint property, or even to apply it to purposes wholly different from those for which it is held. It deserves consideration, therefore, whether in such a case the bailee, in virtue of his special undertaking, may not fairly be held to have a special interest, or property, or lien, in the thing, as an indemnity against his own responsibility upon his bond, in virtue of an implied contract to this effect, evidenced by the very nature of the deposit. § 115. The civil law provided, that in cases of joint depos- its, restitution should be to all together, and not to one or 1 Dig. Lib. 16, tit. 3, 1. 1, § 44. 2 Jones on Bailm. 82, 83. 8 Holliday v. Camsell, 1 Term Rep. 658. |In Brandon v. Scott, 7 El. & Bl. 234, it is held, that, to an action at law by the co-owners, it is a good plea that the depositary restored to one of them; since one of these co- owners is, on technical grounds, disabled from suing at law for what he himself procured. } 122 ON DEPOSITS. [CH. II. more of the joint owners. This rule applied with more force and strictness, where the thing was indivisible, or was depos- ited as one thing, than where it was severable, or composed of different parcels. However, if the thing were divisible, as a sum of money, and the parties were agreed as to their shares, the depositary might divide it, and each was at liberty to receive his own. And so, in case of a joint deposit, the depositary was discharged by a delivery to any one, if such was the special agreement of the parties at the time of the deposit.^ The same general rule, as to the necessity of joint restitution, was applied to the case of co-heirs, where the de- positor died.^ However, it would seem that the depositary might, if the thing were divisible, deliver the share of each heir to him personally ; and in case of an insolvency of the depositary before all the heirs had received their shares, the heir who had received his would not be bound to contribution for the loss of his co-heirs.^ If any dispute arose as to the shares, or title of the heirs, the depositary was not bound to deliver up the property without security, or until the title was judicially ascertained.* The old French law closely fol- lowed the substance of these provisions : ^ and they stand in- corporated into the present Civil Code of that kingdom.^ If a deposit is bequeathed as a legacy, after the assent of the exec- utor to it, it may be delivered over to the legatee ; and after such assent it is held to the use of the legatee, although not before.' § 116. Where there are two or more joint depositaries, they are each liable for the restitution of the whole deposit. And consequentljs each in effect becomes a guarantor against the fraud and gross negligence of the other. Domat so interprets the civil law. " Si apud duos sit deposita res, adversus unum- 1 1 Domat, B. 1, tit. 7, § 3, art. 11-13; Dig. Lib. 16, tit. 3, 1. 1, § 36, 1. 14; Id. 1. 1, §44. 2 Ibid. 8 1 Domat, B. 1, tit. 7, § 3, art. 12; Dig. Lib. 16, tit. 3, L 14; Cod. Lib. 4, tit. 4, 1. 12 ; Code of Louisiana (1825), art. 2922. * 1 Domat, B. 1, tit. 7, § 3, art. 11 ; Dig. Lib. 16, tit. 3, 1. 1, § 36. 6 Pothier, Traite de D^pot, n. 54, 62. « Code Civil of France, art. 1939. ' Pothier, Traitd de D6p6t, n. 55; Toller on Executors, B. 3, oh. 4, § 2. CH. n.J ON DEPOSITS. 123 quemque eorum agi poterit. Nee liberabitur alter, si cum altero agatur. Non enim electione, sed solutions liberan- tur." ^ Pothier thinks, that an exception lies, or ought to lie, in favor of the depositary who is not guilty of fraud, at least when he has not actually bound himself for the good conduct of the other.^ § 117. The next inquiry is, as to the place where restitu- tion is to be made. If a particular place is agreed on between the parties, that of course is to regulate the matter.^ If no place is agreed on, the property ought to be restored at the place where it is found, or where it ought to be kept. " De- positum eo loco restitui debet, in quo sine dolo ejus est, apud quem depositum est ; ubi vero depositum est, nihil interest."* The modern Code of France prescribes, that, if the contract does not particularize the place where the restitution is to be made, it must be made at the very place where the deposit was made.^ Such also is the law of Louisiana.* If it is fraud- ulently or improperly removed to another place, the depositor is not bound to receive it there.'' On the other hand, the depositor cannot demand it at an improper place, nor the depositary insist upon its being received at such place. It is difBcult to lay down any general rule, as to the place of resti- tution, other than this, that ordinarily it may be at the place of deposit,^ unless some other place is agreed upon, or is implied from the nature of the transaction. If the deposit is of a nature to be kept at the domicile of the depositary, that will ordinarily be the place where it is to be restored, even when his domicile has been changed. But this, and indeed every other rule on the subject, must admit of exceptions. 1 1 Domat, B. 1, tit. 7, § 1, art. 14; Dig. Lib. 16, tit. 3, 1. 1, § 43. 2 Pothier, Traits de D6p6t, n. 64. s Dig. Lib. 16, tit. 3, 1. 12; Pothier, Traits de Depot, n. 56; Code Civil of France, art. 1942; Code of Louisiana (1825), art. 2924. * Dig. Lib. 16, tit. 3, I. 12, § 1 ; Pothier, Traits de Depot, n. 56. * Code Civil of France, art. 1943. This differs from the rule laid down in Pothier, Traite de D6p6t, n. 57, which conforms to the civil law. « Code of Louisiana (1825), art. 2925. ' Pothier, Trait6 de D6p6t, n. 56; Dig. Lib. 16, tit. 3, 1. 12, § 1; 1 Domat, B. 1, tit. 7, § 3, art. 8. 8 Code Civil of France, art. 1942, 1943. 124 on DEPOSITS. [CH. II. Much must depend upon the particular circumstances of the case, and the presumed intention of the parties. It cannot, for instance, be presumed that a depositor could intend that, if the depositary removed to another country, he should carry the deposit with him ; or, on the other hand, that if the de- positary should remove to another street or town, he might not take the deposit with him, and deliver it there. ^ § 118. Whenever by the contract it is agreed, that the de- posit may be restored in an}^ one of several places, the civil law would give to the depositary the choice of the place. ^ In our law, it would depend upon the particular structure of the agreement, or the presumed intention of the parties, deduci- ble from all the circumstances of the case. If the agreement did not expressly give the choice of place to the depositor, the natural inference would be, that the choice was given to the depositary, as the law would not incline to impose a burden upon him, when his undertaking was wholly gratui- tous. § 119. It is also laid down in the civil law, that, if a deposit is made to be restored at a future time, it maybe immediately demanded back by the depositor ; for as the depositary has no interest in the custody, he can have no right to retain the thing against the will of the depositor. " Si deposuero apud te, ut post mortem tuam reddas, et tecum, et cum haerede tuo, pos- sum deposit! agere. Possum enim mutare voluntatem, et ante mortem tuam depositum repetere." ^ This rule seems not un- reasonable in ordinary cases, and is adopted into the French 1 Mr. Chancellor Kent has deduced from the cases the following general doctrine: that, where a bailee promises to deliver specific goods on de- mand, though the demand may be made wherever he may be at the time, his offer to deliver at the place where the property is, or at his dwelling- house or place of business, will be suiEcient. This doctrine seems highly reasonable, and is supported by the cases which he cites, which are cases of a depositary of goods, who has received them, as a bailee of a sheriff, or other ministerial officer. 2 Kent, Comm. Lect. 39, p. 508, 4th edit. See Scott v. Crane, 1 Conn. 255 ; Higgins v. Emmons, 5 Conn. 76 ; Mason V. Briggs, 16 Mass. 453 ; Slingerland v. Morse, 8 Johns. 474 ; post, § 261 and note. 2 1 Domat, B. 1, tit, 7, § 3, art. 11; Dig. Lib. 16, tit. 3, 1. 5, § 1. 8 Dig. Lib. 16, tit. 3, 1. 1, § 45 ; 1 Domat, B. 1, tit. 7, § 1, art. 7. CH. n.] ON DEPOSITS. 125 law,^ and that of Louisiana.^ How far it would be adopted into our law maj'^ admit of some doubt ; for the general tendency of our law is to act upon the contracts of parties, exactly as they have made them. And, although cases may easily be im- agined, in which the detainer might be deemed wholly inex- cusable in point of justice and reason ; yet other cases may be put, in which the particular time might be very important, as an inducement for the depositarj'- to receive the deposit.* § 120. There are certain other cases put in the foreign law, which may constitute an excuse for non-delivery, or an excep- tion to the obligation of the depositary to deliver the deposit, when demanded. If, for instance, the depositary has it not at the place where it is demanded, Pothier seems to think, that time ought to be allowed him, even although he is bound to deliver it there.* Doubtless, also, by our law, the demand must be made at a reasonable time ; and a reasonable time must be allowed to redeliver the property. Another case of exception or excuse is, where the property is arrested or at- tached by a third person ; and this applies as well in our law, as in the French'.^ If the property is lawfully taken from the possession of the depositary by process of law, as if it is taken in execution, as the property of the bailor, the depositary will be excused ; unless, indeed, some previous conversion or in- jury to it has occurred from the tortious act or gross negli- gence of the depositary ; for in that case he must answer for the wrong or injury. So, if the deposit is recovered from the bailee by one who possesses a paramount title ; for he is only liable for a loss by gross negligence ; and he cannot help a recovery by law against him.^ Another case of exception or excuse is, where a party, as heir or executor, demands the property. In such a case, the depositary is not bound to 1 Pothier, Traitd de D6p6t, n. 58; Code Civil of France, art. 1944. 2 Code of Louisiana (1825), art. 2926 ; {Lees v. Dwight, 10 La. Ann. 711.} » {See Winkley v. Foye, 33 N. H. 171.} * Pothier, Traits de Depot, n. 59. 6 Ibid. ; Code Civil of France, art. 1944; post, § 266. 8 Edson V. Weston, 7 Cowen, 278; Shelbury v. Scotsford, Yelv. 23; post, § 266 ; [Biddle v. Bond, 34 Law J. Q. B. 137 (1865).] 126 ON DEPOSITS. [CH. II. deliver it, until the party has proved his title or character.^ And this is also true in our law; for the party must give rea- sonable proof of his title.^ § 121. The depositary is generally entitled to be reimbursed all the necessary expenses to which he has been subjected for the preservation of the deposit. And, by the Roman and French law, he is entitled to a lien for all such expenses upon the deposit.^ He has not, however, any right to detain it for any other debt, on any other account, than for such expenses.* The Roman and French law also give the depositary a right of indemnity for all losses occasioned by the deposit.^ When- ever he has a lien, he may of course detain the deposit, until the lien is fully discharged. § 121 a. In respect to involuntary deposits, and deposits by finding, the question may also arise as to the right of the de- positary to be paid his necessary and reasonable expenses for preserving and keeping the property. It is certain, that at the common law he has no lien therefor ; but the just doctrine seems to be, although, perhaps, there is no direct and positive adjudication, that the depositary may rightfully claim, and recover such expenses in an action .^ The foreign law would, 1 Pothier, Traite de Depot, n. 59; Code Civil of France, art. 1944. 2 Green v. Dunn, 3 Camp. 215, n. ; Solomons v. Dawes, 1 Esp. 83. [See Smiley u. Allen, 13 Allen, 470.] 8 Aylifie, Pand. B. 4, tit. 17, p. 521, 522; 1 Domat, B. 1, tit. 7, § 2, art. 1-3; Pothier, Traite de Depot, n. 59, 69, 74; Code Civil of France, art. 1948; Code of Louisiana (1825), art. 2927, 2931. ^ 1 Domat, B. 1, tit. 7, § 3, art. 14; Pothier, Traite de Depot, 59; Id. Oblig. n. 589 [624]; Code Civil of France, art. 1947, 1948; Code of Louisiana (1825), art. 2927. 5 Code Civil of France, art. 1948, 1949; Pothier, Traite de Depot, n. 70. The French law carries the right of indemnity further; for if a slave is placed in deposit with a friend, and he should break open a chest of the depositary, and steal his money, and escape with it, the depositor would be bound to repay the money. Pothier, Traite de Depot, n. 70. And this is in accordance with the rule of the civil law. Dig. Lib. 47, tit. 2, 1. 61, § 5 ; post, § 624. " Nicholson v. Chapman, 2 H. Black. 254. In this case a quantity of timber was placed in a dock in the Thames ; but the ropes, by which it was fastened, accidentally got loose, and it floated on a towing-path on the banks of the river, and was there left by the tide at low water. The bailiff of the CH. II.] ON DEPOSITS. 127 without doubt, inculcate the equitable doctrine,^ allowing a lien for all such expenses. And if the owner offers a reward ^ manor, on which it was left, removed it at some expense. In an action of trover, brought by the owner of the timber, it was held, that there was no lien for the expense ; and that the action was maintainable. Lord Chief Justice Eyre, in delivering the opinion of the Court, said : " The only diffi- culty that remained with any of us, after we had heard this case argued, was upon the question, whether this transaction could be assimilated to salvage. The taking care of goods left by the tide upon the banks of a navigable river, communicating with the sea, may in a vulgar sense be said to be sal- vage ; but it has none of the qualities of salvage, in respect of which the laws of all civilized nations, the laws of Oleron, and our own laws in par- ticular, have provided, that a recompense is due for the saving, and that our law has also provided, that this recompense should be a lien upon the goods which have been saved. Goods carried by sea are necessarily and unavoidably exposed to the perils which storms, tempests, and acci- dents (far beyond the reach of human foresight to prevent), are hourly creating, and against which it too often happens, that the greatest dili- gence and the most strenuous exertions of the mariner cannot protect them. When goods are thus in imminent danger of being lost, it is most frequently at the hazard of the lives of those who save them that they are saved. Principles of public policy dictate to civiUzed and commercial countries, not only the propriety, but even the absolute necessity, of establishing a liberal recompense for the encouragement of those who engage in so dangerous a service. Such are the grounds upon which sal- vage stands. They are recognized by Lord Chief Justice Holt in the case which has been cited from Lord Raymond and Salkeld. But see how very unlike this salvage is to the case now under consideration. In a navigable river, within the flux and reflux of the tide, but at a great dis- tance from the sea, pieces of timber lie moored together in convenient places ; carelessness, a slight accident, perhaps a mischievous boy, casts off the mooring-rope, and the timber floats from the place where it was deposited, till the tide falls, and leaves it again somewhere upon the banks of the river. Such an event as this gives the owner the trouble of employing a man, sometimes for an hour, and sometimes for a day, in looking after it, till he finds it, and brings it back again to the place from whence it floated. If it happens to do any damage, the owner must pay for that damage ; it will be imputable to him as carelessness, that his timber, in floating from its moorings, is found damage feasant, if that should happen to be the case. But this is not a case of damage feasance. The timber is found lying upon the banks of the river, and is taken into the possession and under the care of the defendant, without any 1 Pothier, Traite de Depot, n. 69, 72, 74, 78. " [jM. specific reward.] 128 ON DEPOSITS. [CH. II. to any finder of the property who shall restore it, that will give the finder a lien for the amount of the reward. ^ extraordinary exertions, without the least personal risk, and in truth with very little trouble. It is, therefore, a case of mere finding, and taking care of the thing found (I am willing to agree) for the owner. This is a good office, and meritorious, at least in the moral sense of the word, and certainly entitles the party to some reasonable recompense from the bounty, if not from the justice, of the owner; and of which, if it were refused, a court of justice would go as far as it could go towards enforc- ing the payment. So it would if a horse had strayed, and was not taken as an estray by the lord under his manorial rights, but was taken up by some good-natured man, and taken care of by him, till, at some trouble and perhaps at some expense, he had found out the owner. So it would be in every other case of finding, that can be stated (the claim to the recom- pense differing in degree, but not in principle) ; which, therefore, reduces the merits of this case to this short question, whether every man, who finds the property of another, which happens to have been lost or mislaid, and voluntarily puts himself to some trouble and expense to preserve the thing, and to find out the owner, has a lien upon it for the casual, fluc- tuating, and uncertain amount of the recompense, which he may reasonably deserve? It is enough to say, that there is no instance of such a lien having been claimed and allowed. The case of a pointer dog was a case in which it was claimed and disallowed, and it was thought too clear a case to bear an argument. Principles of public policy and commercial necessity support the lien in case of salvage. Not only pubhc policy and commercial necessity do not require that it should be established in this case, but very great inconvenience may be apprehended from it, if it were to be established. The owners of this kind of property, and the owners of craft upon the river, which lie in many places moored together in large numbers, would not only have common accidents from carelessness of their servants to guard against, but also the wilful attempts of ill-design- ing people to turn their floats and vessels adrift, in order that they might be paid for finding them. I mentioned, in the course of the cause, another great inconvenience, namely, the situation in which an owner, seeking to recover his property in an action of trover, will be placed, if he is, at his peril, to make a tender of a sufficient recompense, before he brings his action ; such an owner must always pay too much, because he has no means of knowing exactly how much he ought to pay, and because he must tender enough. I know there are cases, in which the owner of property must submit to this inconvenience ; but the number of them ought not to be increased. Perhaps it is better for the public, that these 1 Wentworth v. Day, 3 Met. 352; [Cummings v. Gann, 52 Penn. St. 484. But it has been held otherwise if the reward is merely " liberal," not naming any particular sum. Wilson v. Guyton, 8 Gill, 213.] CH. II.] ON DEPOSITS. 129 § 122. If the depositary improperly refuses to redeliver the deposit, when it is demanded, he henceforth holds it at his own peril. 1 If, therefore, it is afterwards lost, either by his neglect, or by accident, it is his own loss ; for he is answerable for ah. defaults and risks in such cases.^ It is said, indeed, in the civil law, that if the thing afterwards perishes from its own in- herent defect, without any accident, and it would have per- ished, although it had been restored to the depositor, such a loss, not being the effect of the delay, is not at the risk of the depositary .2 If such a case can exist, and be made entirely cer- tain, it must be a case of a very rare and extraordinary nature ; and any attempt to get rid of a loss on such a ground ought to be watched with great suspicion. Our law has not, as yet, recognized any such distinction; and, as the non-delivery after such a demand is a tortious conversion, it seems difficult to see how it could be maintained. So, if the depositary should make a sale of the goods bailed, that would, a fortiori, be a conversion.* § 123. And not only is the depositary, who is in default {in mora, as it is called in the civil law), liable for all losses, but the civil law imposes upon him the duty of paying interest, or voluntary acts of benevolence from one man to another, which are chari- ties and moral duties, but not legal duties, should depend altogether for their reward upon the moral duty of gratitude. But, at any rate, it is fitting that he who claims the reward in such case should take upon him- self the burden of proving the nature of the service which he has per- formed, and the quantum of the recompense which he demands, instead of throwing it upon the owner to estimate it for him, at the hazard of being nonsuited in an action of trover." [See Baker a. Hoag, 3 Barb. 203; 7 Id. 113; ante, § 44 a, 83 a; Wentworth v. Day, 3 Met. 352; Preston v. Neale, 12 Gray, 222; Reeder v. Anderson, 4 Dana, 193.] {Some of these cases favor a fair reimbursement of the finder's expenses. See Preston v. Neale, Reeder v. Anderson, supra.} 1 [See Roulston v. McClelland, 2 E. D. Smith, 60 ; Winkley v. Foye, 33 N. H. 171.J 2 Jones on Bailm. 70 to 121 ; Dane, Abridg. ch. 17, art. 14 ; Pothier, Traite de Depot, n. 33 ; ante, § 100 ; Holbrook v. Wight, 24 Wend. 169. See post, § 414. 3 Dig. Lib. 16, tit. 3, 1. 12, § 3, 1. 14, § 1. " See Sargent v. Gile, 8 N. H. 325; [Stanley v. Gaylord, 1 Gush. 536.] 9 130 ON DEPOSITS. [CH. n. of making other compensation for the use of it.^ And this is done with great justice. Our law would doubtless allow a like compensation in the shape of damages, where the circumstances of the case should call for any thing more than a simple indem- nity for the direct loss. § 124. There are certain cases of deposits made by public officers, which deserve to be brought under notice before this subject is concluded. By the local jurisprudence of some of the New England States, and particularly of the States of Massachusetts, New Hampshire, and Maine, personal property (as well as real estate) may be attached upon mesne process, to respond the exigency of the writ, and satisfy the judgment. In such cases of attachment, it is a common practice for the officer to bail the goods attached to some person, who is usually a friend of the debtor, upon an express or implied agreement on his part to have them forthcoming on demand, or in time to respond the judgment, when the execution thereon shall be issued.^ § 125. Upon bailments of this sort it may not be without use to consider what are the rights and duties of the officer or bailor, and what are the rights and duties of the bailee, com- monly called the receiptor. In the first place, as to the rights and duties of the officer : The officer making an attachment on process acquires a special property in the goods attached,^ which continues until the attachment is legally dissolved. If, during this period, his possession is violated, he may maintain all the usual remedies, such as trover, trespass, and replevin, against the wrong-doer.* If, upon the attachment being made, 1 Ayliffie, Pand. B. 4, tit. 17, p. 523; Code of Louisiana (1825), art. 2929. 2 {See Loyless v. Hodges, 44 Ga. 647; State v. Fitzpatrick, 64 Mo. 185; Foltz V. Stevens, 54 111. 180.} 8 Ladd V. North, 2 Mass. 514; Perleyt). Foster, 9 Mass. 112; Whittier V. Smith, 11 Mass. 211; Barkery. Miller, 6 Johns. 195. See ante, § 93 e; post, § 620. See Pierce «. Strickland, U. S. Circ. Court, Maine, May term, 1842, MSS. ; {2 Story 292 ;} ante, § 93 to 95. * Ibid. ; and Ludden v. Leavitt, 9 Mass. 104 ; Warren v. Leland, 9 Mass. 265; Gibbs v. Chase, 10 Mass. 125; Gates w. Gates, 15 Mass. 310; Brown- ell u. Manchester, 1 Pick. 232; Badlam v. Tucker, 1 Pick. 389. See ante, § 93 e to 93 h. CH. n.] ON DEPOSITS. 131 the goods are delivered into the hands of any bailee for cus- tody, without any specific time for the return, the officer has a right to demand the possession of them, at any time at his pleasure, even before any judgment or execution in the suit;^ and, upon the bailee's refusal, the officer may maintain a suit against him for the goods, and also for damages.^ Even if no actual attachment has taken place, but the bailee has accepted the bailment, as if the goods were attached, and waived the formality of an actual attachment, the officer, if he has made return upon his precept of an attachment of the goods, is enti- tled, as against the bailee, to all the rights which he would have acquired by an actual attachment.^ § 126. The right of the officer to have restitution of the goods against his bailee is not affected by the fact that the judgment in the suit, on which the attachment has been made, is satisfied by tVie debtor, if the officer still remains liable to the debtor for the goods, or to any subsequent attaching cred- itor.* But in case the officer is discharged from all liability over to any person, his right to maintain an action is goue, and the bailee will be discharged from his obligation to the officer.^ § 127. If the bailee has actually delivered over the goods to the debtor, the officer may, at any time during the continuance of the attachment, retake them from the possession of the debtor; for his special property continues, notwithstanding such bailment and delivery over.^ § 128. The officer, who has made an attachment upon goods, is considered as having the custody thereof as long as the at- tachment continues ; and if he delivers them over to the bailee, or to the debtor, and a loss ensues, he will be liable to the creditor, and the loss of the property is at his own peril.'' 1 Phillips V. Bridge, 11 Mass. 242. ^ Ibid. ' Jewett V. Torrey, 11 Mass. 219; Lyman v. Lyman, 11 Mass. 317; Bridge V. Wyman, 14 Mass. 190; {Foltz v. Stevens, 54 111. 180.} * Jenney v. Rodman, 16 Mass. 464; Whittier v. Smith, 11 Mass. 211; Knap V. Sprague, 9 Mass. 258 ; Jewett v. Torrey, 11 Mass. 219. ^ Lyman v. Lyman, 11 Mass. 317 ; Jenney v. Rodman, 16 Mass. 464. « Bond V. Padelford, 13 Mass. 394. [But so long as the bailee con- tinues liable on his receipt to the officer, the general owner can maintain no action against him therefor. Perley v. Brown, 18 N. H. 404.J ' Phillips V. Bridge, 11 Mass. 242; Tyler v. Ulmer, 12 Mass. 163; 132 ON DEPOSITS. [CH. II. § 129. The creditor in the suit has no property or interest whatsoever in the goods attached ; and can maintain no action for an}' wrong or injury done to them by any person who takes them or injures them, while in possession of the officer. His sole remedy is against the ofScer.^ The officer is not bound to deliver up the goods to the creditor, who has obtained judg- ment and execution, that they may be levied on by another officer ; for he is still accountable to the debtor for them.^ And, notwithstanding any delivery of the goods to a bailee, the officer majr attach them upon any subsequent process com- ing into his own hands, while they remain in the hands of his bailee, and the bailee will be responsible for the goods; and it will furnish no defence to the latter that he has subsequently delivered them up to the debtor.^ § 130. The officer, then, being responsible over to the debtor for a due redelivery of the property attached, in case of the dissolution of the attachment, or a satisfaction of the creditor's claim in any way whatsoever, it behooves him to take care that he does not put it in jeopardy by any act of his own. If it is lost by his negligence, he will be responsible therefor.* But what degree of negligence will make him responsible does not seem to have been directly decided. He would, doubtless, be responsible for gross negligence and fraud ; but whether he would be responsible for ordinary negligence does not appear to have been decided by any adjudged case ;^ although, as he is a bailee for a compensation, it may be thought that he ought to be bound by the common rule in such cases to ordinary diligence.^ § 131. In cases of such attachment of property, the question Congdon v. Cooper, 15 Mass. 10. {As to an officer's liability for goods stolen from his custody, see Blake v. Kimball, 106 Mass. 115. And see Parrott v. Dearborn, 104 Mass. 104. J 1 Ladd V. North, 2 Mass. 514; ante, § 93 to 95. 2 Blake v. Shaw, 7 Mass. 505; Badlam v. Tucker, 1 Pick. 389. 8 Whittier v. Smith, 11 Mass. 211; Knap v. Sprague, 9 Mass. 258; Jewett V. Torrey, 11 Mass. 219; Lyman v. Lyman, 11 Mass. 317. * See Jenner v. Joliife, 6 Johns. 9. 6 See Burke v. Trevitt, 1 Mason, 96, 100 to 102; [Browning v. Hanford, 5 Hill, 592 ;] ante, § 46; jWitowski v. Brennan, 41 N. Y. Superior, 284. [ 8 See Pothier, Trait6 de D6p6t, n. 91, 92, 96; post, § 620. CH. II.] ON DEPOSITS. 133 has often arisen, how and by whom the officer is to be indem- nified for the expenses of keeping the property. If, for in- stance, by direction of the creditor, he attaches cattle, who is to discharge the necessary expenses of their maintenance? There were formerly many doubts on the subject. The rule, as now settled, is, that the debtor, whose cattle are attached, is bound, at his own risk and peril, to provide suitable food for them, and if they perish through the want of it, it is his exclu- sive loss.i But the officer is bound, if the debtor neglects it, to provide suitable food ; and if he does, and a recovery is had against the debtor, the expenses are a charge upon the property in the officer's hands, and may be deducted by him from the proceeds of the sale on the execution.^ If no recovery is had in the suit against the debtor, then the officer is entitled to be reimbursed by the creditor, who has directed the attachment.^ If the officer does not provide suitable food, and by his neglect the cattle perish, he will be liable to the creditor for their full value.* § 132. In the next place, as to the rights and duties of the bailee of the attaching officer. His duties are sufficiently apparent from what has been already stated under the pre- ceding head. He is bound to keep the property, and to return it on demand to the officer, and to take reasonable care of it, while it is in his custody. For any omission of duty in any of these particulars, he will be responsible to the officer.^ But this obligation to return the property to the officer is not in all cases absolute. If the attachment is dissolved, and no other person has any just claim upon the property, he may, by a restitution of it to the owner, discharge himself from his obli- gation to the officer ; for, in such a case, the special property of the officer is gone.^ And if the officer has wrongfully attached 1 Sewall V. Mattoon, 9 Mass. 537. 2 Tyler v. Ulmer, 12 Mass. 163, 168. 3 Phelps V. Campbell, 1 Pick. 59, 61. * Sewall V. Mattoon, 9 Mass. 5.37. [And see Cross v. Brown, 41 N. H. 283.] s { As to the burden of proof of negligence, in case the receiptor fails to restore the thing on the officer's demand, see Cross v. Brown, 41 N. H. 283. } 6 Whittier v. Smith, 11 Mass. 211 ; Cooper v. Mowry, 16 Mass. 5. 134 ON DEPOSITS. [CH. II. the goods of a third person, as the property of the debtor, and has bailed them, the bailee may, by a delivery of them to the true owner, protect himself; for by such redelivery the officer will be discharged from any liability for the goods of the creditor, and the debtor, and the real owner.^ § 133. The bailee has no property whatever in the goods, but has a mere naked custody .^ And, therefore, it has been held in Massachusetts, that he cannot maintain any action for them against any one who shall take them out of his posses- sion.2 But it deserves consideration, whether his possession would not be a sufficient title against a mere wrong-doer, and whether his responsibility over to the officer does not furnish a just right for him to maintain an action for injuries, to which such responsibility attaches.* It has, on the other hand, been decided upon full consideration, in New Hampshire,^ that the 1 Learned v. Bryant, 13 Mass. 224; ante, § 52; [Dewey v. Field, 4 Met. 383; Fisher v. Bartlett, 8 Greenl. 122; Burt v. Perkins, 9 Gray, 317.] {See Clark v. Gaylord, 24 Conn. 484.} '^ Norton u. People, 8 Cow. 137; ante, § 93 e to 93 h; Waterman v. Kobinson, 5 Mass. 303, 304 ; ante, § 93 to 95. 8 Ludden v. Leavitt, 9 Mass. 104; Warren v. Leland, 9 Mass. 265; Commonwealth v. Morse, 14 Mass. 217; contra, Waterman y. Robinson, 5 Mass. 303, 304. In this last case, the court held that a naked bailee might maintain an action of trespass or of trover, but not of replevin, as the latter was founded in property. Ante, § 93 b to 93 h. * See ante, § 93 to 95, 153, 266, 267 ; Waterman u. Robinson, 5 Mass. 303; {Harrington i;. King, 121 Mass. 269.} * [This appears to be the Vermont rule also. In Thayer v. Hutchin- son, 13 Vt. 504, 507, Bennett, J., said : " The opinion and charge of the county court, in this case, that the plaintiff was not entitled to recover, no doubt proceeded upon the ground that the plaintiff had no such inter- est in the property in question, as would enable him to maintain trover. It is tx'ue that, in Massachusetts, it has been held that the receiptor of chattels attached has but a mere naked possession of them, as the servant of the officer, without any legal interest, and that, therefore, he cannot maintain any action against any one who shall take them out of his pos- session. Ludden v. Leavitt, 9 Mass. 104; Warren v. Leland, Id. 265; Commonwealth v. Morse, 14 Mass. 217. The same principle has been recognized in other cases in that State. In Dillenback v. Jerome et al., 7 Cow. 294, the Supreme Court of New York hold the same doctrine, and fully indorse the Massachusetts cases. See also. Barker v. Miller, 6 Johns. 196, and Norton v. People, 8 Cow. 137. The principle of these cases is directly opposed to the present action, and they are the opinions CH. II.j ON DEPOSITS. 135 bailee of the officer has a sufficient property to maintain an action against a stranger for any dispossession or injury of the of learned and highly respectable courts. Still we cannot accede to their soundness. The position that a mere depositary, or bailee for safe-keep- ing, has no special property in the deposit, but a custody only, is certainly a doctrine which is inculcated by the most respectable authorities. In addition to the foregoing, I might refer to Hartop v. Hoare, 3 Atk. 44; Southcote's case, 4 Coke, 84; Waterman v. Robinson, 5 Mass. 304; Brownell v. Manchester, 1 Pick. 232. Still, it is often laid down, by ele- mentary writers, that a depositary has a special property in the deposit. Blackstone, iu his Commentaries, 2d vol. 452, lays it down that the gen- eral bailee may vindicate, in his own right, his possessory interest against any stranger or third person. Sir William Jones, in his Law of Bail- ments, says : ' Every bailee has a temporary, qualified property in the things of which possession is delivered to him, and has, therefore, a pos- sessory action against a stranger who may damage or purloin them.' A case is cited from the Year Book, 21 Hen. VII. , in which Justice Fineax is reported to have said : ' In this case the bailee has a property in the thing, against every stranger, for he is chargeable to the bailor, and for this reason he shall recover against a stranger who takes the goods out of his possession.' The character of the bailment does not distinctly ap- pear in the report ; but, from the statement of the pleadings, it is to be inferred that the bailee was a mere depositary. Other cases are to be found in the books, recognizing the same doctiine. But, be this as it may, I do not think it is important, in this case, to determine whether the plaintiff had strictly a special property in the articles in question, or not. He is answerable over to the officer for the property, and the extent of his.responsibility may be immaterial ; and he ought not to be charge- able without having the means of redress. The plaintiff had the lawful possession of the chattels, and whether this was accompanied with a special interest or property in them, or not, it was sufficient to enable the possessor to maintain trover or trespass against any wrong-doer who vio- lates that possession. Fisher u. Cobb, 6 Vt. 624. The finder of a jewel has such a title to it as will enable him to keep the possession against all persons but the rightful owner, and he may maintain trover for it. Armory v. Delamirie, 1 Strange, 505. Sutton v. Buck, 2 Taunt. 301, 309, is to the same effect. Lawrence, J., in the latter case, says : ' There is enough of property in this plaintiff to enable him to maintain trover against a wrong-doer; ' and Chambre, J., says: ' The plaintiff has pos- session under the rightful owner, and that is sufficient against a person having no color of right; ' and he says, ' Even a general bailment only, for the benefit of the rightful owner, will suffice.' Burton v. Hughes, 2 Bing. 173, and Oughton v. Seppings, 1 Barn. & Adolph. 241, are to the same effect. But it does not follow that because a depositary or bailee for safe-keeping, who has the actual possession of a chattel, can main- 136 ON DEPOSITS. [CH. II. goods attached.^ In the French law, in cases of seizure or attachment of goods, the bailee is deemed to possess only a tain trover, as well as trespass, against a wrong-doer, who disturbs his possession, he must, therefore, have a special property in the chattel. In Waterman v. Robinson, 5 Mass. 304, which was replevin, Parsons, C. J., in giving the opinion of the court, expressly states that, as the plaintiff had merely the care of the goods for safe-keeping^ and no special property in them, he could not maintain replevin, which is founded in property either general or special, but might maintain trespass or trover, if his possession was violated. It is generally said that a sheriff, who has seized goods on an attachment, or execution, can maintain trover for them on the ground that he has a special property in them. In Giles v. Grover, 6 Bligh, 277, in the House of Lords, this subject is fully examined. Lord Tenterden, in that case, p. 4.52, says: ' These actions,' that is, actions by sheriffs, ' are maintainable upon a ground perfectly distinct from the right of property. They are maintainable upon the ground of possession;' and he adds, 'Any man in the possession of goods, as bailee, or otherwise, may, in his own name, maintain an action.' Lord Tindal, C. J., in the same case, says in substance : 'He who has the legal possession of goods, though not the property, may maintain trover against a wrong-doer, without color of legal title, who cannot dispute the title of the party in possession.' And he adds, ' It would be abetter definition of the sheriff's relation to these goods, to say, " he has them in his custody under a power to sell them, rather than an actual interest or property in them." They are in custodia legis, a phrase which plainly distinguishes a mere custody and guardianship of the goods from a prop- erty in them.' Several of the other Judges gave the same explanation. Justice Taunton added : ' The sheriff, under the writ, has a mere power to sell, without any interest vested in him, except that which any bailee, who is answerable over, has for his own protection.' If this maybe termed an interest, or a special property in the chattel, it is like the in- terest in the receiptmau. Both are founded upon a liability over to others. It is clear there is no beneficial interest. When we speak of a special property in a chattel, we usually mean some right therein distinct and subordinate to the general owner, as in the case of a pledge. If, by a special property, we mean a subordinate right to control the chattel, aris- ing out of a lawful possession of it, accompanied with a liability over, then it is clear the mere depositary, or bailee for safe-keeping, and the sheriff, who has it in custodia legis, have such property. The defendants, in the case before the court, stand as strangers, and have no color of right. " The fact that Kidder stated, when the defendants drove away the property, that he took it upon an attachment against Bracket, amounted 1 Poole V. Symonds, 1 N. H. 289; Odiorne v. Colley, 2 N. H. 70; [Hyde u. Noble, 13 N. H. 494;] ante, § 93 e to 93 h. CH. n.J ON DEPOSITS. 137 naked custody. But this is true in that law also, as to the attaching officer himself, in which respect it differs from our to nothing. No process was shown; none given in evidence or offered on the trial. The defendants, then, must stand, not only as strangers, but even without any color of right. If, then, we were even to hold, as in Massachusetts and New York, that the receiptman had no property what- ever in the chattels, for which this action was brought, but only a mere naked custody ; still, his possession and responsibility over to the officer, who delivered them to him, must furnish sufficient title and just right for him to recover, as we think, against these defendants. Without this, the plaintiff may be charged for not returning the chattels to the officer, and yet be left remediless for the very injury which may put it out of Ms power to return them. Though it may be true that the officer who served the process might have maintained the action in his own name, still, it does not follow that he alone can have the action. Chancellor Kent, in his Commentaries, vol. 2, p. 585, 3d edition, says, ' Notwithstanding all the nice criticism to the contrary, every bailee in lawful possession of the subject of the bailment may justly be considered 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 chattel.' See also 2 Kent, Comm. 568; Bac. Abridg. Bailment, D. ; Roberts u.Wyatt, 2 Taunt. 268; Rooth v. Wilson, 1 B. & Aid. 59; Addison v. Round, 4 Adolph. & Ellis, 799, 804; Nicolls v. Bastard, 2 Cromp., Mees. & Rose. 659, 660, 661. In the case of Burrows v. Stoddard, 3 Conn. 160, it was expressly held that the receiptor of goods attached, who had put them into the actual possession of a third person to take the charge of them, might maintain trespass, even against a person who had attached the goods as the property of the same debtor. Such third person was regarded as the mere servant of the receiptor. This same question has received very full consideration by the Supreme Court of New Hampshire, in the case of Poole V. Symonds, 1 N. H. 290, where it is held that the receiptor may well have the action. The defendant, another deputy sheriff, in that case, too, had attached the property for another creditor as belonging to the same debtor, and was not, of course, without some color of right. The court say that the receiptor acquired a special property in the goods, sub- ordinate to and consistent with the special property of the officer; and that it is not at all inconsistent that two persons should severally have a special property in the chattel, at one and the same time. " We have been led to a more full examination of this question, in consequence of the opposing decisions in Massachusetts and New York, than we should otherwise have thought necessary. We cannot, however, subscribe to the correctness of their doctrine; and we think, upon well- established principles, the plaintiff had, at least, in the language of Sir William Blackstone, ' such possessory interest,' in the chattels in question, as was sufficient to entitle him to maintain this action." ] 138 ON DEPOSITS. [CH. U. law.' But, assuming that the bailee has only a naked custody in the goods, it is agreed that the bailee may retake them from the custody of the debtor, to whom he has delivered them, although he could not maintain an action for the possession of them, either against him or against a third person.^ § 134. The French law upon the subject of the rights and duties of ofBcers attaching property under judicial process, and their bailees, is entitled to the attention of every lawyer, who is ambitious of acquiring a rational view of the subject.^ The general obligation in that law is understood to be for ordinary diligence on the part of the officer.* But a detail of all the rights and duties springing out of such attach- ments under that law would lead us too far into collateral inquiries.^ § 135. It has been said, that by an attachment the general property of the debtor is in abeyance and suspended.^ Tliis proposition, however, is to be received with some qualifica- tions. The debtor, during the existence of the attachment, is doubtless barred of any right to recover the same against the officer. But, subject to the lien of the attachment, he retains the right to the property, and may alienate the same ; and his vendee, upon discharging the attachment, or satisfy- ing the debt, will be entitled to receive the same from the person in whose custody it is.' § 136. Here we finish the consideration of the subject of deposits ; a title which has employed the learning and exer- cised the ingenuity of some of the proudest names in the annals of jurisprudence. 1 Pothier, Traite de Uep6t, n. 91, 92, 93, 99. 2 Bond V. Padelford, 13 Mass. 394. 8 Pothier, Traite de Depot, n. 91 to 98. * Pothier, Traite de Depdt, n. 92. ' Pothier, Traite de Depot, n. 91 to 98. {See Hobson v. Woolfolk, 23 La. Ann. 384.} « Ladd !). North, 2 Mass. 514; 1 Domat, B. 1, tit. 7, § 4. ' See the reasoning in Bigelow v. Willson, 1 Pick. 485. See also Pothier, Traite de Depot, n. 93. CH- in.] ON MANDATES. 139 CHAPTER III. ON MANDATES. [§ 137. Mandate. Definition of. 138. Mandator, Definition of. Mandatary, Definition of. 139. Contract of Mandate {how far J recognized in Common Law. 140. Distinction between a Deposit and a Mandate. 141. Contract of Mandate at Common Law confined to Personal Property ; — not so in Civil Law. 142. What Agencies are deemed Mandates in the Civil Law. 143. Nature and Character of the Contract of Mandate. 144. What is of the Essence of a Mandate. 145. The matter of the Contract. Acts in futuro. 146. Certainty in regard to the object of the Mandate. 147. The Act must be for the Benefit of the Mandator by another as his Agent. 148. It must be capable of being done. 149. It must not concern the Interest of the Mandatary alone. Joint Interest. 150. {Whether} the Mandatary has a Special Property in the thing. 151. How far the Act must be for the Benefit of the Mandator, or a Third Person. 152. Right of Mandatary to maintain an Action for an Injury to the thing. 153. The Contract must be gratuitous. Difference between Counsel and Attorney. 154. Expenses of Mandatary to be reimbursed. 155. The Contract must be voluntary, without mistake or fraud. Distinction between Advice and Representation. 156. 157. Rules of the Common Law on this subject. 158. The Contract must not be illegal or against sound morals. 159. Cases of Breach of Trust by Trustees and Guardians. How Mandate affected by. 160. No particular Form or Ceremony to create a Mandate. 161. The Contract of Mandate may be absolute or conditional, temporary or permanent. 162. Parties between whom the Contract may be made. 163. Obligations of the Mandatary {classified.! 164. Whether the Mandatary is legally bound to perform the act by the Civil Law. 165. 166. Whether he is so bound by the Common Law. 167-171 d. Common Law distinction between cases of Nonfeasance and Mis- feasance. 172. Cases of negligent execution of Mandate governed by the same rule as Misfeasance. 173, 173 a. What degree of Diligence the Mandatary is responsible for by the Civil Law. 140 ON MANDATES. [CH. III. § 174. What degree by the Common Law. 175-181. Whether there is any Distinction, as to Degree of Diligence, be- tween cases of Mandates to do work and to carry goods. 182. Opinion of Dr. Paley. 182 a. Mandatary generally liable only for gross negligence, j Skill not requi- site. Effect of special contract. } 183. Presumption of Diligence, if Mandatary keeps the goods as he keeps his own. 184. Illustrations of the Doctrine. 185. The same subject. Case of Mandate to carry Doubloons. 186. Degree of Diligence to be proportional to Value of the Goods, and Dan- ger of Loss or Injury. 186 a, b. Case of a Bank. What is Negligence in Directors. 187. The Scottish and Spanish Law on this subject. 188. Misuser by Mandatary. Violation of Trust, effect of. 189. Quasi Contract of Negotiorum Gestor, what. 189 a, b. Responsibility of Negotiorum Gestor. Law of Louisiana. 190. Illustrative Case at the Common Law. 191. Account to be rendered by Mandatary, how and when. 192. What Deductions to be allowed to Mandatary. 193. The Expenses and Disbursements of Mandatary to be allowed, 194. The Increase and Profits of Mandate to be accounted for. 195. Joint Mandataries severally liable in solido, 196. Obligations of Mandator. 197. In relation to Expenses of Mandatary. 198. In relation to Incidental Contracts of Mandatary. 199. Contracts of Mandatary, how far binding on Mandator. 200. How far Mandator is bound to indemnify Mandatary for Expenses. 201. Opinion of Dr. Paley on this subject. 202. How the Contract of Mandate is dissolved. 1. By Act of the Party. 2. By Death of Mandatary. Case of Death of one Joint Mandatary. 203. Death of Mandator, when it dissolves the Contract. 204. Effect of Death in case of part execution. 205. Difference of Civil and Common Law on this subject. 206. When Contract dissolved by Change of state of the parties, as Marriage, Insanity, &c. 207. Revocation of Mandate by operation of Law. 208. Revocation by the act of the Mandator in Civil Law. 209. Revocation by the act of the Mandator at Common Law. 210. Countermand of Delivery to a Third Person. 211. Bankruptcy of the Mandator a revocation by operation of Law. 212. Burden of Proof, on whom it lies in case of Loss or Injury of Mandate. 213. The same subject. Form of Action and Circumstances. 214. Anomalous case of unintentional injury by Negotiorum Gestor. 215. Exceptions from the general rule as to Diligence. 216. Loss of Chattel taken on trial with a view to subsequent Purchase. De- gree of Diligence required. 217. Mandate of a Slave, and Loss by FUght. 218. Conclusion of the head of Mandates.) CH. ni.j ON MANDATES. 141 § 137. We come next to the consideration of the contract which in the civil law is called Mandatum, and which Sir William Jones, for want of a more appropriate English word, has not scrupled to call a Mandate. We are accustomed, indeed, in common parlance, to use this word in the sense of a judicial command or precept, which, however, he deems only a secondary and inaccurate use of it.^ And he defines a man- date to be a bailment of goods without reward, to be carried from place to place, or to have some act performed about them.^ In this definition, he seems mainly to have followed that of Lord Holt, in Coggs v. Bernard,^ whose language is, that it is a delivery of goods or chattels to somebody, who is to carry them, or to do some act about them gratis, without any reward for such work or carriage. Perhaps this is more properly an enumeration of the various sorts of mandates, than a strict definition of the contract. At least, it may be more simply stated to be, at the common law, a bailment of personal prop- erty, in regard to which the bailee engages to do some act without reward. Pothier has defined it according to the civil law, thus: "Mandatum est contractus, quo quis negotium ge- rendum, committit alicui, gratis illud suscipienti, animo invicem contrahendi obligationis." * Wood defines it to be a contract of the law of nations, by which an affair is committed to the management of another, and by him undertaken to be per- formed gratuitously.^ This is substantially the definition of Pothier, who adds only, that it is to be done at the risk and in the place of the bailor, and that the bailee is to render to him an account.® Dr. Halifax says : " A mandate, or commission, is a contract, by which- a lawful business is committed to the management of another, and by him undertaken to be per- formed without reward."^ The Code of France declares that ^ Jones on Bailm. 52. ^ Jones on Bailm. 117. 8 2 Ld. Kaym. 909, 913. 4 Pothier, Pand. Lib. 17, tit. 1, n. 1; Dig. Lib. 17, tit. 1, 1. 1, § 4; Cod. Lib. 4, tit. 35; Inst. Lib. 3, tit. 27; Ayliffe, Pand. B. 4, tit. 10, p. 476 ; Story on Agency, § 4. 6 Wood, Civ. Law, B. 3, cli. 5, p. 242. 8 Pothier, Traite de Mandat, Art. Prelim, n. 1. ' Halifax, Analysis of the Civ. Law, 70. See Ayliffe, Pand. B. 4, tit. 10, p. 476, 477. 142 ON MANDATES. [CH. III. a mandate, or procui-ation, is an act by which one gives to another a power of doing something for the mandant, and in his name.i Heineccius gives a still more concise definition : " Mandatum (a manus datione dictum),^ quod est contractus consensualis, bonaB fidei quo alteri negotium gratis gerendum, committitur, et ab altero suscipitur."^ Erskine defines it to be, that contract by which one employs his friend to manage his affairs, or any branch of them.* In the choice of definitions, none strikes my mind to be more neat and distinct than that of Mr. Chancellor Kent. " A mandate," says he, "is when one undertakes, without recompense, to do some act for another, in respect to the thing bailed."^ § 138. But, not to dwell further upon mere definitions, the person employing is called in the civil law mandans or man- dator (and hence, in the Scotch and French law he is called mandant);^ and the person employed is called mandatarius, I shall not scruple to call the former, for want of a more appro- priate word, the mandator ; " and usage has already sanctioned the propriety of calling the latter the mandatary.^ § 139. From the language of Dr. Halifax, it would seem that he supposed that the contract of mandate was not recognized in the common law. His words are, " In the laws of England the contract of mandatum is of no use ;" ^ in which assertion he is under an entire mistake. The common law may not, and indeed does not, comprehend under that appellation, all 1 Code Civil of France, B. 3, tit. 13, ch. 1, art. 1981; Merlin, Repert. Mandat, § 1, Art. Prelim.; Code of Louisiana (1825), art. 2954. ^ Noodt gives a similar derivation. See also Pothier, Contrat de Man- dat, Art. Prelim. ; Ayliiie, Pand. B. 4, tit. 10, p. 476. 3 Heinec. ad Pand. Pars 3, Lib. 17, § 230. See Vinn. ad Inst. p. 684; Partidas, B. 5, tit. 12, 1. 20, &c.; 1 Bell, Comm. 259, 5th edit. * Ersk. Inst. B. 3, tit. 3, § 11. 6 2 Kent, Coram. Lect. 40, p. 568, 4th edit. « Ersk. Inst. B. 3, tit. 3, § 11; Pothier, Traite de Mandat, n. 1. ' 1 Brown, Civ. Law, 382 ; Halifax, Anal, of Civ. Law, 70. * Jones on Bailm. 63. In the French law, the former is called Le Mandat; the latter, Le Mandataire, or Procureur. Pothier, Traite de Mandat, Art. Prelim, n. 1. Dr. HaUfax calls the former Mandator; the latter, Mandatee. I should have followed him, if Mandatary had not been already naturalized. Hahfax, Anal, of Civ. Law, 70, § 16, 17. s Halifax, Anal, of Civ. Law, 70, § 16, 18, 19. CH. III. J ON MANDATES. 143 the contracts of mandate according to the civil law ; such, for example, as mere naked acts of agency, where there is no bail- ment of any thing to the agent.^ But, for the most part, the principles applicable to all the various classes of mandates have a place in our law, although they may be differently ar- ranged, and may have acquired a different appellation from that which is recognized in the civil law.^ § 140. The contract of mandate seems so nearly allied to that of deposit, that it may properly be deemed to belong to the same class. The great distinction between one sort of mandate and a deposit is said by Sir William Jones to be, that the former lies in feasance, and the latter simplj' in cus- tody.^ Philosophically, or even technically speaking, it may be doubted whether this distinction really exists. In cases of deposit, something almost always remains to be done, be- sides a mere passive custody. If the deposit is perishable, labor must be performed to keep it in proper order. If it is a living animal, as a horse, suitable food and exercise must be given to it. And these may properly be said to lie in feasance. In the next place, in mandates there is commonly custody ; the possession of the thing being generally indispensable to the performance of the act intended by the parties. So that, in each contract, there is custody and labor and service to be performed. The true distinction between them is, that, in the case of a deposit, the principal object of the parties is the custody of the thing, and the service and labor are merely accessorial ; in the case of a mandate, the labor and services are the principal objects of the parties, and the thing is merely accessorial. The distribution of the subject into different heads may, on this account, be not unjustifiable, and it is certainly convenient.'' 1 Post, § 142. 2 See Story on Agency, § 4. ' Jones on Bailm. 53. * { Our later decisions do not appear to have followed out the distinc- tions suggested in the text to any considerable extent; but, in almost every instance where a gratuitous bailment for the bailor's benefit hjis been presented, the court avoids making an issue between deposit and man- date, basing its legal conclusion upon principles common to both classes. Illustrations of mandate are to be found in recent reports. As, for 144 ON MANDATES. [CH. HI. § 141. The contract of mandate, in our law, is (as the com- mon definition imports) confined to mere personal property ; and does not embrace, as it does in the civil law, real property. In general, the civil law makes few distinctions of rights and duties and remedies between the one species of property and the other. In our law the distinctions are very broad and im- portant in many respects. There is certainly no repugnance to any principle of our law, in considering a gratuitous con- tract to do an act in respect to real property to be a mandate. It may involve obligations precisely the same as it would in relation to personal property. But the definition of Sir Wil- instance, the undertaking, without recompense, to carry a thing to a cer- tain place. See GuUedge v. Howard, 23 Ark. 61 ; Ferguson v. Porter, 3 Fla. 27. Or to purchase and transmit a draft. Eddy v. Livingston, 35 Mo. 487. It is evident that many gratuitous bailments may be found compounded of a deposit and mandate, and that the negligence under dis- cussion may have reference to the one element and not the other. See Mariner v. Smith, 5 Heisk. 203; Montgomery v. Evans, 8 Ga. 178; Good- enow V. Snyder, 3 Iowa, 599. Whether it is worth the while to pursue distinctions so subtle in two classes of bailment, whose general doctrines, mutatis mutandis, so fully correspond, may fairly be questioned. The context shows that this man- datum of the civil law takes a range far beyond the scope of a work on bailments ; applying not necessarily to personal property nor to the de- livery of a thing to be restored in identical form ; involving, in fact, a sort of gratuitous agency, whatever those words might imply. (See § l'S7-15i,passim.) Indeed, some have asserted that the gratuitous charac- ter of ma7idatu7a yiaa,ia most cases, nominal rather than real, inasmuch as one, hke a counsel, could, under some sort of proceeding, get his compensa- tion, even though that compensation were disguised under the name of honorarium. See Poste's Gaius, § 155-162. The Louisiana Code so far modifies the civil law as to distinctly provide that a mandate need not be gratuitous. Waterman n. Gibson, 5 La. Ann. 672; Lea, J., in Lafourche Navigation Co. v. Collins, 12 La. Ann. 119. We are not to assume that in cases where a thing is taken gratuitously into custody by one as stakeholder pending some controversy, or upon the understanding that he must exercise discretion in determining to whom he shall finally deliver it, the bailment constituted is a strict de- posit. But see ante, § 103, 121:. This point does not appear to have been specially considered by our learned author; yet, by the civil law, deposit, or the delivery of a thing for custody, was carefully distinguished from sequestration, or the deposit of a subject of litigation in the hands of a stakeholder to abide the result. See Gaius, § 207.} CH. ni.] ON MANDATES. 145 liam Jones, above stated, as well as the description of this sort of bailment by Lord Holt in Coggs v. Bernard, in which he constantly speaks of goods and chattels,^ abundantly shows the habit of our law to be, to confine bailments to personal property. In the civil law, a gratuitous engagement to clear out a ditch, or to cultivate or to sell a farm, belonging to the person giving the direction, would be deemed a mandate.^ In our law it would be treated merely as a special undertaking, without falling under that class of contracts. § 142. In the civil law the contract of mandate might also intervene, although there was no delivery of property in the mandator. The French law and the law of Louisiana adopt the same interpretation.^ Thus, every case of a gratuitous agency or procuration gave rise to the obligations of a man- date in the civil law. As if A. requested B. to purchase a farm for him, or to buy stock, or to build a boat, or to write a deed or other instrument, without any recompense, express or implied, it was deemed a mandate.* In our law we should treat it as a case of agency, and not of bailment."* The obli- gations in point of law may, in many respects, be the same ; but the classification would be different.^ § 143. It has been observed, according to the known dis- tinctions in the foreign and Roman law, that the contract of mandate is one of the law of nations (that is, one arising from the law of nature, common to nations) ; that it is founded upon mere consent, express or implied ; that it is a contract of mere kindness and beneficence ; and that it belongs to the class called synallagmatical, that is, involving mutual and re- 1 Ld. Raym. 909, 913, 918. See also Jones on Bailm. 1, 117; Bac. Abr. Bailment. 2 1 Pothier, Pand. Lib. 17, tit. 1, n. 3-5; Dig. Lib. 17, tit. 1, 1. 2; 1 Brown, Civ. Law, 381. ' Pothier, Contrat de Mandat, n. 1 ; Code Civil of France, art. 1984 to 1991 ; Code of Louisiana (1825), art. 2954 to 2964. * 1 Domat, B. 1, tit. 15, § 1; Wood, Civ. Law, 242; 1 Pothier, Pand. Lib. 17, tit. 1, n. 3, 5; Pothier, Contrat de Mandat, ch. 1, n. 1, 6, 7; Gains, Institutes, Lib. 3, § 155 to 161; 1 Brown, Civ. Law, 381; Ayliffe, Pand. B. 4, tit. 10, p. 476. ' Story on Agency, § 4. ° Ibid. 10 146 ON MANDATES. [CH. HI. ciprocal obligations.-' But these distinctions are not material to be considered in our law. § 144. From the very terms of the definition, three things are necessary to create a mandate. First, that there should exist something, which should be the subject-matter of the contract, or some act or business to be done ; " Ut sit nego- tium, quod gerendum alter committat, alter suscipiat ; " ^ secondly, that it should be to be done gratuitously ; ^ and, thirdly, that the parties should voluntarily intend to enter into the contract.* § 145. In the first place, as to the matter of the contract. It must respect an act to be done in futuro, and not one already completed ; " ut sit gerendum, non jam gestum." ^ Thus, it is said, that if A. requests B. to lend C. at his, A.'s, risk, a sum of money, and he lends it accordingly, it is prop- erly a mandate, and A. is responsible accordingly. But if, unknown to A., B. has already lent C. the sum, there the like contract does not arise.^ So says the Roman law, " Si post creditam pecuniam mandavero creditori credendam, nullum esse mandatum."'' And the Roman law would also class under the head of a mandate a request from a third person to a creditor to give time to his debtor, at the risk of the mandator.^ § 146. It must also respect some certain thing ; for if the thing be wholly uncertain, it is impossible that any contract can arise. The very vagueness of it prevents the law from acting upon it.^ Thus, in the French laAV, an example of a 1 Pothier, Contrat de Mandat, ch. 1, n. 1 to 5 ; Vinn. ad Inst, de Man- dat, Lib. 3, tit. 27. 2 Pothier, Pand. Lib. 17, tit. 1, n. 1, Art. Prelim. ; Pothier, Contrat de Mandat, u. 6. 3 Pothier, Pand. Lib. 17, tit. 1, n. 1, Art. Prelim.; Id. n. 15; Pothier Contrat de Mandat, n. 18. * Pothier, Pand. Lib. 17, tit. 1, n. 1; Pothier, Contrat de Mandat, n. 5, 6, 9, 17, 22. 6 Pothier, Pand. Lib. 17, tit. 1, n. 1, Art. Prelim. ; Pothier, Contrat de Mandat, n. 6. " Pothier, Contrat de Mandat, n. 6. 7 Ibid. ; Dig. Lib. 17, 1. 12, § 14; Pothier, Pand. Lib. 17, tit. 1, n. 2. 8 Pothier, Contrat de Mandat, n. 6 ; Dig. Lib. 17, 1. 12, § 14. ' Pothier, Contrat de Mandat, n. 9. CH. ni.] ON MANDATES. 147 void mandate would be, where A. charged B. to buy some- thing for him on a particular evening, or at a particular fair. There, as it is wholly uncertain what he is to buy, no contract arises.1 An example in our law would be, where A. requested B. to take something for him to carry to C, and nothing was ever delivered, or designated to B., to be carried. § 147. It must also be an act of such a nature, that it may properly be deemed the act of the mandator, through the instrumentality of the mandatary, or his agent, according to the maxim, " Qui mandat, ipse fecisse videtur." ^ Thus, if A. directs B. to borrow a sum of money from his banker, belong- ing to A., as a gratuitous loan, and B. receives it as such, it is plain that it is not a mandate, but a mere loan ; for A. cannot lend to himself.^ This case may seem too clear for contro- versy ; but the civil law has thought it important enough for a place in its text. " Si quis Titio mandaverit, ut ab actori- bus suis mutuam pecuniam acciperet, mandati eum non acturum." * § 148. So, the act to be done must be of a nature capable of being done, and not be a vain or absurd act.^ A. cannot create a contract of mandate with B. by requesting B. to buy for him his, A.'s, goods, for A. cannot buy of himself; nor to buy B.'s goods, for B. cannot buy of himself.^ But if the act be possible, the contract may arise, although the mandatary may not have the proper skill or power to perform it well ; for there is no absurdity in his undertaking it ; for in such a case the maxim applies, " Spopondit peritiam et industriam negotio gerendo parem." "^ § 149. If the thing to be done concerns only the interest of the mandatary, it is equally plain that no contract arises.* 1 Ibid. {See Dunbar v. Hughes, 6 La. Ann. 672.} 2 Id. n. 10. " Id. n. 10. < Id. n. 10 ; Pothier, Pand. Lib. 17, tit. 1, n. 5, 50. ' Pothier, Contrat de Mandat, n. 12. 8 Pothier, Pand. Lib. 17, tit. 1, n. 6, 10, 11 ; Pothier, Contrat de Man- dat, n. 14. ' Pothier, Contrat de Mandat, n. 13, 14 ; Pothier, Pand. Lib. 17, tit. 1, n. 25 to 30. 8 Pothier, Contrat de Mandat, n. 15; 1 Stair, Inst. B. 1, tit. 12, § 1; Ersk. Inst. B. 3, tit. 3, § 13. 148 ON MANDATES. [CH. in. As if I direct A. to invest his money in a particular fund, it is but mere advice or recommendation. ^ " Si tuS. tantum gratis, tibi mandem, supervacuum est mandatum, et ob id nulla ex eo obligatio nascitur." ^ But if it concerns tbe inter- est of the mandator as well as the interest of the mandatary, or another, the contract may arise ; for there is nothing incon- sistent, in such a case, in the mandatary undertaking to act for the mandator in respect to his interest. Therefore, it is said, in the civil law : " Mandatum inter nos contrahitur, sive mek tantum gratia tibi mandem, sive alienei tantum, sive meS. et alienS,, sive mek et tu^, sive tu& et alienH." ^ § 150. In general, a mandatary cannot, according to the prin- ciples already stated,* be said to have any special property in the thing, unless he has incurred expenses about it, for which he has a lien. In this respect he stands in the same situation as a depositary.^ But, although neither of them has a special property in the thing bailed, it does not follow that they may not have an action for any tort done to the thing while in their possession, especially if they are liable over to the bailor in such a case.^ Indeed, as we have already seen, a depositary 1 Pothier, Contrat de Mandat, n. 15; 1 Domat, B. 1, tit. 15, § 1, art. 13; 1 Stair, Inst. B. 1, tit. 12, § 2 ; Ersk. Inst. B. 3, tit. 3, § 13. 2 Dig. Lib. 17, tit. 1, 1. 2; Id. § 6; Pothier, Contrat de Mandat, n. 15. 3 Pothier, Contrat de Mandat, n. 15; Id. n. 17; Dig. Lib. 17, tit. 1, L 2, § 1 to 6; Pothier, Pand. Lib. 17, tit. 1, n. 11 to 14; Wood, Civ. Law, 242; 1 Domat, B. 1, tit. 15, § 1, art. 10 to 12; Halifax, Anal. Civ. Law, 70. See post, § 216. The Code of Louisiana of 1825, art. 2955, says: " The mandate may take place in five different manners: for the interest of the person granting it alone ; for the joint interest of both parties ; for the interest of a third person; for the interest of such third person, and that of the party granting it ; and, finally, for the interest of the manda- tary and a third person." This embraces the exact divisions of the Roman law. * Ante, § 93 to 93 h ; post, § 279. 6 Ante, § 93 to 93 h. « Rooth V. Wilson, 1 Barn. & Aid. 59 ; Coggs v. Bernard, 2 Ld. Raym. 909, 911 ; Pothier, Pand. Lib. 17, tit. 1, n. 80. But see Jones on Bailm. 80; Miles v. Cattle, 1 Llo. & Welsh. 353; s. c. 6 Bing. 743; Giles w. Grover, 6 Bligh, n. s. 277. See also Burton v. Hughes, 2 Bing. 173; Sutton V. Buck, 2 Taunt. 302; ante, § 93 c to 93 h; post, § 152. CH. III.] ON MANDATES. 149 has such a right of action, flowing from his possessory title ; and the same rule applies to a mandatary.^ § 151. But it may be asked, whether it is necessary, that the act done should be for the benefit of the mandator, or whether he must have a right or interest in the thing itself. Pothier has answered this question in the negative. If the act to be done at the request of the mandator be for the benefit of a third person, and the mandator might himself become liable if it were not done, then the mandatary would be chargeable upon his undertaking.^ But if the mandator acts simply as an agent in giving the mandate, and incurs no personal responsibility, or merely gives an honest recommendation to do an act, and not an order,^ it would be otherwise. In the Roman law, the rule is, that no one can contract, except for his own interest ; " Nemo stipulari potest nisi quod suS interest."* But the same law says : " Si tibi mandavero, quod me& non intererat, veluti ut pro Sejo intervenias, vel ut Titio credas, erit mihi tecum actio mandati; et ego tibi sum obligatus."^ And Pothier under- stands this doctrine to rest on the distinction above suggested.^ § 152. The common law has not general^ been supposed to be different. And where a mandatary delivers goods to another person, and they receive an injury, for which the mandatary would be liable over to the owner, there does not seem to be any objection, upon principle, to his right to recover for his own indemnity.'' At least, there are analogous cases, which approach very near to this doctrine,^ even if others should be 1 Mcolls V. Bastard, 2 Cromp., Mees. &Roso. 659, 660; ante, § 93 c to 93 h ; post, § 152. » Pothier, Contrat de Mandat, n. 17; Pothier on Oblig. n. 138, 139. 8 Pothier, Pand. Lib. 17, tit. 1, n. 17; 1 Domat, B. 1, tit. 15, § 1, art. 13; Pothier, Contrat de Mandat, n. 18 to 21; Dig. Lib. 17, tit. 1, 1. 12, § 12. * Pothier, Contrat de Mandat, n. 17. 6 Dig. Lib. 17, tit. 1, L 6, § 4; Pothier, Pand. Lib. 17, tit. 1, n. 13; Pothier, Contrat de Mandat, n. 17. « Pothier, Contrat de Mandat, n. 17; Dig. Lib. 17, 1. 6, §4; Id. Lib. 3, tit. 5, 1. 21, § 3 ; Wood, Civ. Law, 242 ; 1 Domat, Civ. Law, B. 1, tit. 15, § 1, art. 11, 12; Halifax, Anal. Civ. Law, 70; Ayliffe, Pand. B. 4, tit. 10, p. 477; Pothier, Pand. Lib. 17, tit. 1, n. 30. ' [See Kellogg v. Sweeney, 1 Lans. 401.] 8 Bac. Abridg. Bailment, D. ; Id. Trover, C; 2 Kent, Comm. Lect. 40, p. 565, 585, 4th edit.; Eooth v. Wilson, 1 Barn. & Aid. 59; 2 Ld. Raym. 909, 911. 150 ON MANDATES. [CH. in. thought to question it. The ground of the doctrine has been before alluded to. The general principle of the common law- is, that possession with an assertion of right, and in many cases possession alone, is a sufficient title to enable the pos- sessor to maintain a suit against a mere wrong-doer for any wrong or injury done to the thing. ^ However, in Miles v. Cat- tle^ (which has been already cited in another place),^ this rule seems not to have been deemed applicable to the case of a man- datary, who had disobeyed the directions, under which a parcel had been intrusted to him, and thereby had made himself personally responsible to the owner; first, because he had no special property in the parcel, which was delivered to him for a particular purpose, which he had disobeyed ; and, secondly, because by that act he had deprived the defendants of the in- tended hire for the carriage of the parcel. Whether this case can be distinguished in principle from other decisions, which have been made in cases of deposits and gratuitous loans,* and whether, if so distinguishable, it stands upon satisfactory reason- ing, and just analogies of the law, are points which deserve the consideration of those who shall hereafter be called upon to ad- minister this branch of the law. It is clear that the plaintiff in this case, by his own misconduct, had rendered himself liable to the owner for the full value of the parcel ; and, indeed, in a legal sense, he had converted it to his own use. Why, under such circumstances, he should not be entitled to an action against mere wrong-doers, or his own bailees, for their tort or negligence in regard to the parcel, it is somewhat difficult to perceive. Is the principle, that a bailee, whether he is so by right or by wrong, may protect his possession against a wrong- doer ? Or is he protected only when he is a bailee by right ?^ § 1.53. Secondly. The contract must be gratuitous.^ And 1 Ante, § 93 a to 93 h ; ante, § 150. 2 1 Lloyd & Welsh. 353; s. c. 6 Bing. 743. s Ante, § 93 e, note 5. * 2 Saund. 47 b, Williams's note; Sutton v. Buck, 2 Taunt. 302; Armory v. Delamirie, 1 Str. 505; Burton v. Hughes, 2 Bing. 173; Hurd V. West, 7 Cow. 752 ; ante, § 93 to 93 g ; post, § 230, 279, 280. 6 See Giles v. Grover, 6 Bligh, n. s. 412, 453. ^ [See Wilson v. Wilson. 16 La. Ann. 155 ; Lafourche Navigation Co. v. Collins, 12 Id. 119;] {Waterman v. Gibson, 5 La. Ann. 672; ante, § 140 and notes, j CH. ni.] ON MANDATES. 151 this is the very essence of the contract ; for if any compensa- tion is to be paid, it passes into another contract, that is to say, the contract of hire. " Mandartum, nisi gratuitum, nullum est."i And it matters not, in this particular, whether the compensation is express or implied ; whether it is certain or uncertain in amount.^ If, however, there is a mere honorary payment, not as a compensation, but as a mark of respect and favor, this will leave it still a mandate. So says Ulpian : "Si remunerandi gratiS. honor intervenet, erit mandati actio." ' Thus, if a client, upon employing an advocate in his cause, promises to give him ex honore a valuable book, it does not change the contract from that of a mandate to a hiring of services ; for it is not understood between the parties as a com- pensation for services.* In England, counsel are understood not to be at liberty to make any pecuniary charge for their ser- vices in arguing a cause, or for advice ; and thej' cannot recover in a suit for such services. The compensation given to them is therefore deemed a gratuity, quiddam honorarium. And their employment in the civil law would be called a mandate.^ But it is different in respect to attorneys. They are entitled to compensation, and, therefore, are strictly engaged under a contract for hire. In America, counsel, as well as attorneys, may maintain a suit for their fees. § 154. But although a mandatary, as such, is not entitled to any compensation for his services, his actual disbursements and expenses about the thing may, nevertheless, be recovera- ble.® This is naturally implied in the undertaking ; because a gratuitous act would otherwise become a burden. § 155. Thirdly. There must be a voluntary intention on the 1 Dig. Lib. 17, tit. 1, 1. 1, § 4; Pothier, Pand. Lib. 17, tit. 1, n. 15 Pothier, Contrat de Mandat, n. 22; 1 Stair, Inst. B. 1, tit. 12, § 5. 2 Pothier, Contrat de Mandat, n. 24 to 26. = Pothier, Contrat de Mandat, n. 22, 23 ; Pothier, Pand. Lib. 17, tit. 1 n. 15, 16; Dig. Lib. 17, tit. 1, 1. 1, § 4; Id. 1. 6; 1 Domat, B. 1, tit. 15 art. 1, 9; Ayliffe, Pand. B. 1, tit. 10, p. 477. * Pothier, Contrat de Mandat, n. 23, 24. 6 Pothier, Pand. Lib. 17, tit. 1, n. 15; Dig. Lib. 17, tit. 1, 1. 6 Pothier, Contrat de Mandat, n. 23. s Pothier, Contrat de Mandat, n. 68 to 78; jDevalcourt v. Dillon, 12 La. Ann. 672.} 152 ON MANDATES. [CH. HI. part of both parties to enter into the contract.^ If there be any constraint or duress, any substantial mistake, any fraud or imposition, any misconception of the real intention on either side, the contract does not arise.^ Thus, in the Roman law, a mere recommendation, and so lond fide intended, cannot amount to a mandate.^ But care must be taken in using language, that a contract of mandate be not implied from the purport of the expressions. For, if the language would natu- rally, even though unintentionally, create on the other side a belief that the party designed to raise a contract of mandate, and not to give a mere recommendation, the Roman law would deem it to be at the risk of the party using it, and as operating as an imposition upon the other party.* But, with the excep- tion above stated, mere advice wUl not create the obligation of a mandate, according to the known maxim, " Nemo ex consilio obligatur." ^ However, if there is any fraud intervening, there a right of action may arise for any injury, although the contract of mandate may not strictly take effect. The general rule of the Roman law is, "Consilii non fraudulent! nulla obligatio ; " however indiscreet the advice may be.^ The exception is, where there is fraud or bad faith ; " Caeterum, si dolus et cal- liditas intereessit, de dolo actio competit.'"' § 156. The common law would not treat these as cases of mandates, but as cases of guaranty or fraudulent representa- tion ; and would administer a remedy accordingly.^ 1 Pothier, Pand. Lib. 17, tit. 1, n. 17, 18; Pothier, Contrat de Mandat, n. 18-20; 1 Stair, Inst. B. 1, tit. 12, § 3. 2 Ante, § 59. 8 Pothier, Pand. Lib. 17, tit. 1, n. 17, 18; Pothier, Contrat de Mandat, n. 18-20. « Ayliffe, Pand. B. 4, tit. 10, p. 477, 478. 6 Dig. Lib. 17, tit. 1, 1. 2, § 6 ; Pothier, Pand. Lib. 17, tit. 1, n. 12; Pothier, Contrat de Mandat, n. 20, 21. « Dig. Lib. 50, tit. 17, 1. 47 ; Pothier, Contrat de Mandat, n. 20, 21. ' Pothier, Contrat de Mandat, n. 18 to 21; Dig. Lib. 50, tit. 17, 1. 47; Wood, Civ. Law, 243; 1 Domat, B. 1, tit. 15, § 1, art. 13; Pothier, Pand. Lib. 17, tit. 1, n. 17, 18; Aylifie, Pand. B. 4, tit. 10, p. 477; Russell u. Clarke, 7 Cranch, 69. See Fell on Guaranty, passim. ^ Russell V. Clarke, 7 Cranch, 69 ; Pasley v. Freeman, 3 Term R. 51 ; Eyre v. Dunsford, 1 East, 318; Haycraft <;. Creasy, 2 East, 92. See also Fell on Guaranty, passim. CH. ni.] ON MANDATES. 153 § 157. But the common law follows the civil law in the other particulars, and would deem the contract of mandate, properly so called, void, where there was a substantial mis- take, or fraud, or imposition practised by one party on the other ; as if an article were left without any express or im- plied assent of the mandatary to perform the act. A case affording a striking analogy, although not a mandate, has been decided. A. lent a picture to B., who wished to show it to C. ; B., without any communication with, and unknown to, C, sent the picture to C.'s house, where it was acciden- tally injured ; it was held, that C. was not liable for not keeping the picture safely, inasmuch as he had not voluntarily entered into any engagement to receive the picture.^ § 158. Fourthly. In mandates, as in other species of con- tracts, it is indispensable that the act to be done should be lawful and not against sound morals.^ This is a principle of universal justice, and is as fully recognized in the civil law as in ours ; " Rei turpis (says the former), nullum mandatum est." * It matters not whether the act is against sound mor- als, or is malum in se, or is only against positive legislation, as malum prohibitum, although otherwise it might be lawful. In all such cases, the contract has no legal obligation. Thus, if a person is authorized by another to smuggle contraband goods belonging to the latter, it is a void mandate ; and the party is not bound to execute the commission ; and, if he does execute it, he will not be entitled to recover the expenses incurred by him in the service.* And no action will lie to compel the mandatary to account for such goods. In con- science, there may be a moral obligation to restore the goods and to account for the profits. But the law leaves the vio- lators of its precepts to their own remedies, and assists neither.^ This is an example of a prohibition by positive law. But the 1 Lethbridge v. Phillips, 2 Stark. 544. ^ Pothier, Contrat de Mandat, n. 7; 1 Stair, Inst. B. 1, tit. 12, § 4. « Pothier, Pand. Lib. 17, tit. 1, n. 3; Dig. Lib. 17, tit. 1, 1. 6, § 3; Ayliffe, Pand. B. 4, tit. 10, p. 476, 477, 479. * See Pothier, Contrat de Mandat, n. 7, 8 ; 1 Story on Eq. Jurisp. § 296 to 300. 5 Pothier, Contrat de Mandat, n. 7, 8; Pothier, Pand. Lib. 17, tit. 1, n. 3 ; 1 Story on Eq. Jurisp. § 296 to 300. 154 ON MANDATES. [CH. HI. rule is the same, if a person undertakes to carry poison for the purpose of poisoning another ; or undertakes to do some act about goods for the purpose of having them used in a house of infamy .1 § 159. But suppose the case of an act which is lawful in itself, but not strictly lawful with reference to certain rela- tions between the parties, or others. As if a trustee author- izes another person to buy or to sell, or to carry away the goods of the cestui que trust, in violation of his trust, would a legal contract arise between the trustee and the mandatary ? Pothier puts the case of a tutor or guardian, who authorizes another person, who knows the relation, to become the highest bidder for him at the sale of his pupil's or ward's propert3% which is an act interdicted by law ; and he supposes the in- quiry to be made whether the mandate is valid or not. To which he replies, that, in such a case, the mandatary may properly refuse to execute the mandate. But if he does execute it, then it becomes a valid mandate, to the extent of making him liable to account to the tutor. A fortiori, the mandator will not be permitted to set up its nullity, in order to escape from the payment of the expenses of the mandatary. And Pothier distinguishes between those acts which are posi- tively forbidden by the law, or involve moral turpitude, and those acts which the law forbids upon the policy of suppress- ing fraud.^ In the common law, the case would probably turn upon the question, whether it was an actual fraud, meditated by the parties to injure the cestui que trust, or only a construc- tive fraud, consistent with good faith, but inconsistent with the juridical policy, which governs in cases of trusts. In the latter case, at least, it might not be deemed utterly void, but only voidable at the election of the cestui que trust. If he ratified it, there would be no reason to consider it a mere nullity.^ If the mandatary is ignorant of the illegality, he would of course be entitled to his action for an indemnity.* 1 Ibid.; Dig. Lib. 17, tit. 1, 1. 12, § 11; Pothier, Pand.Lib. 17, tit. 1, n. 3. '^ Pothier, Contrat de Mandat, n. 11. 8 See 1 Story on Eij. Jurisp. § 317 to 323; 2 Story on Eq. Jurisp. 1261, 1262. " Pothier, Pand. Lib. 17, tit. 1, n. 4. CH. in.] ON MANDATES. 155 § 160. Lastly. There is no particular form or manner of entering into the contract of mandate prescribed either by the common law, or by the civil law, in order to give it validity. It may be verbal, or in writing; it may be express, or implied ; it may be in a solemn form, or in any other manner.^ Thus, the civil law declares : " Obligatio mandati consensu contra- hentium consistit. Ideo per nuntium quoque, vel epistolam, mandatum suscipi potest. Item, sive rogo, sive volo, sive mando, sive alio quocumque verbo scripserit, mandati actio est." 2 The French law, in certain cases, requires it to be in writing ; but this is a matter of positive institution.^ Our law has introduced no such positive restriction, although it has in some kinds of contracts, as, for example, in those enumerated in the statute of frauds, required the solemnity of a writing to give them validity.* § 161. The contract of mandate may be varied at the pleas- ure of the parties ; it may be absolute or conditional ; general or special ; temporary or permanent.^ In the sense of the civil and foreign law, a power of attorney to do any act or acts is a mandate or procuration, and is governed by the principles applicable to such a contract.^ " Procurator et ad litem futuram, et in diem, et sub conditione, et usque ad diem dari potest, et in perpetuum." ' But in the common law, as 1 Pothier, Pand. Lib. 17, tit. 1, n. 19. 2 Pothier, Pand. Lib. 17, tit. 1, n. 19; Dig. Lib. 17, tit. 1, 1. 1; Id. § 1, 2; 1 Stair, Inst. B. 1, tit. 12, § 11, 12 ; Ersk. Inst. B. 3, tit. 8, § 33. " Pothier, Contrat de Mandat, n. 28 to 36 ; Merlin, Eepert. Mandat, § 1, art. 7. * Stat, of 29 Car. 2, ch. 3; 2 Story on Eq. Jurisp. § 752 to 755 ; Long on Sales, ch. 2, p. 44 (27) to p. 91 (88) Rand's edit. 1839; {Browne, Stat. Frauds; 2 Scb. Pers. Prop. 442.} [Neither is it necessary, in all cases, that there should be an actual delivery of the article bailed, to the mandatary in person ; an agency may be implied in a third person to re- ceive the mandate, from various circumstances; in the same manner as in bailments for hire. Lloyd v. Barden, 3 Strobh. 343.] 6 Wood, Civ. Law, 242; 1 Domat, B. 1, tit. 15, § 1, art. 6-8; Pothier, Contrat de Mandat, n. 34-36. « Ibid. ; Pothier, Contrat de Mandat, n. 1, 30, 31; Code Civil of France, art. 1984; Ayliffe, Pand. B. 4, tit. 10, p. 476 to 480 ; Merlin, Eepert. Mandat, § 1, art. 8; Pothier, Pand. Lib. 17, tit. 1, n. 1, 19; ante, § 137. ' Dig. Lib. 3, tit. 3, 1. 3, 4. 156 ON MANDATES. [CH. IH. has been already intimated, such cases are treated as cases of naked agency. ^ § 162. The next inquiry naturally arising is, between what parties the contract may take effect. The general answer is, that it may take effect between all parties who are capable and willing to enter into contracts. Married women and minors may doubtless become mandataries.^ But, inasmuch as they are not capable of entering into contracts to bind themselves to any responsibility, there may not be the same remedy against them, in many cases, as there is in respect to persons possessing full capacity. Their acts, when done, may bind the mandator ; but it does not follow, that they would be liable for an imperfect or ill execution of the thing com- mitted to their charge. A married woman, or a minor, may also become a mandator ; but the mandatary may not have any remedy against them upon the implied obligations of the contract ; although they may have a remedy against him.^ The principles, however, which are applicable to this subject, turn upon the general rights and disabilities of married women and minors in respect to contracts generally, and therefore they do not require any particular enumeration in this place.* § 163. The next inquiry is, what are the obligations arising in point of law, on each side, from the contract of mandate, when made between competent parties. And first, as to the mandatary. Pothier lays it down, that the mandatary incurs three obligations : first, to do the act which is the object of the mandate, and with which he is charged ; secondly, to bring to it all the care and diligence which it requires ; and, thirdly, to render an account of his doings to the other party .^ The Code of France has given a positive sanction to the same obligations,^ as has also the Code of Louisiana.'^ The doc- trines of each are directly derived from the text of the civil 1 Ante, § 139, 142. 2 Story on Agency, § 485. » See ante, § 50. See also Pothier, Traite de Depot, n. 5, 6. * Merlin, Repert. Mandat, § 1, art. 9. 6 Pothier, Contrat de Mandat, n. 37; Id. n. 200; Merlin, Repert. Man- dat, § 2 ; Pardessus, Droit Comm. torn. 2, § 558 to 560. ' Code Civil of France, art. 1991, et seq. ' Code of Louisiana (1825), art. 2971-2973. CH. III.] OK MANDATES. 157 law.^ It may be well to consider, how far these principles have been ingrafted into the common law; and the limitations and qualifications with which they are received in that law, as well as in the foreign law. § 164. And here the first point which meets us is, how far the mandatary is under an obligation to perform the act, which he has undertaken to do. The general principle of the civil law certainly is, that, although a bailee is at liberty to reject a mandate, yet, if he chooses to accept it, he is bound to perform it according to his engagement ; and if he fails so to do, he will be liable for all damages sustained by the mandator by his neglect, in like manner as he would be liable for any mis- feasance. The rule in the Digest is thus laid down : " Sicut autem liberum est, mandatum non suscipere ; ita susceptum consummari oportet, nisi renunciatum sit. Si susceptum non impleverit, tenetur. Quod mandatum susceperit, tenetur, etsi non gessisset.^ Qui mandatum suscepit, si potest id explere, deserere promissum ofificium non debet ; alioquin, quanti mandatoris intersit, damnabitur.^ Procuratorem non tantum pro his, quae gessit, sed etiam pro his,, quae gerenda suscepit, prsestare necesse est."* Certain excuses, however, for non- performance were admissible in the civil law; such as ill health, and other just causes of hinderance, among which were enumerated deadly enmities (eapitales inimicitice.y And if no loss or injury was sustained by the mandator, or the mandatary renounced it in a seasonable time to prevent injury, no action lay.^ " Mandati actio tunc competit, cum coepit interesse ejus qui mandavit. Caeterum, si nihil interest, cessat mandati actio; et eatenus competit, quatenus interest."^ 1 1 Domat, B. 1, tit. 15, § 3, art. 1 et seq.; Dig. Lib. 17, tit. 1, 1. 5, § 1; Id. 1. 6, § 1; Id. 1. 22, § 11; Inst. Lib. 3, tit. 27, § 11. 2 Dig. Lib. 17, tit. 1, 1. 5, § 1; Id. 1. 6, § 1 ; Id. 1. 22, § 11 ; Inst. Lib. 3, tit. 26, 1. 11; Pothier, Pand. Lib. 17, tit. 1, n. 25 to 29; Pothier, Contrat de Mandat, n. 38 ; Ayliffe, Pand. B. 4, tit. 10, p. 478, 479. » Dig. Lib. 17, tit. 1, 1. 27, § 2; Pothier, Contrat de Mandat, n. 38. * Cod. Lib. 4, tit. 35, 1. 11; Pothier, Contrat de Mandat, n. 38. " Dig. Lib. 17, tit. 1, 1. 23-25; 1 Domat, B. b, tit. 15, § 3, art. 1; Po- thier, Contrat de Mandat, n. 39-41. 6 Dig. Lib. 17, tit. 1, 1. 22, § 11, 1. 27, § 2. ' Dig. Lib. 17, tit. 1, 1. 8, § 6; Id. 1. 22, § 11; Id. L 27, § 2; Pothier, Contrat de Mandat, u. 38. 158 ON MANDATES. [CH. IH. And if the neglect of the mandatary were owing to the in- ability of the mandator to perform his own implied obligations, such as to furnish funds for the object, there the former was excused. "Et sit iniquum" (says the civil law) "damnosum cuique esse officium suum." ^ The same rules governed in the old French law, as expounded by Domat and Pothier ; ^ and they are. now substantially incorporated into the modern Code of France.^ The Scotch law also recognizes them in their full extent.* § 165. Sir William Jones has strenuously contended, that the same doctrine substantially belongs in the common law. He admits, indeed, what cannot be denied, that, in the common law, there is a clear distinction between cases of nonfeasance and misfeasance. In cases of nonfeasance the mandatary is not generally liable, because, his undertaking being gratuitous, there is no consideration to support it, and it becomes a nude pact; and the rule is, "Ex nudo pacto non oritur actio." But in cases of actual misfeasance, the common law gives a remedy for the injury done, and to the extent of that injury. But while he admits this distinction, and its consequences, to be well settled, he contends that the rule, as to nonfeasance, applies only where no special damage or injury accrues to the mandator ; and that, in cases of such special damage or injury, an action will lie.^ § 166. But this doctrine of Sir William Jones, however rational and equitable it may seem to be, upon the ground stated by the great Roman lawyer, Paulus : " Adjuvari quippe nos, non decipi, beneficio oportet; " ^ and, however reprehen- sible it may be in morals to break a deliberate promise of this sort, it cannot be affirmed to constitute an actual element in the common law. The early cases in the Year Books, which have been commented upon by Sir William Jones with much 1 Pothier, Contrat de Mandat, n. 41 ; Dig. Lib. 29, tit. 3, 1. 7. 2 1 Domat, B. 1, tit. 15, § 3, art. 1, 12, § 4, art. 3-5 ; Pothier, Contrat de Mandat, u. 38 to 42. » Code Civil of France, art. 1991 to 1997. See Code of Louisiana (1825), art. 2972. * Ersk. Inst. B. 3, tit. 3, § 35, 40; 1 Stair, Inst. B. 1, tit. 12, § 9. 5 Jones on Bailm. 53, 57, 61, 120. " Jones on Bailm. 57; Dig. Lib. 13, tit. 6, 1. 17, § 3. CH. in.] ON MANDATES. 159 ingenuity, and by Mr. Chief Justice Kent with admirable fulness and accuracy, may not be thought entirely satisfactory or conclusive upon the point. But the modern cases of Elsee V. Gatward,! in England, and of Thorne v. Deas,^ in America, which were very fully argued and deliberately considered, appear to conclude the question, so far as judicial reasoning goes, in both countries.^ Mr. Chancellor Kent, in his Commen- taries, upon a very full review, has given the doctrine of these cases his entire approbation.* If the question were now open for controversy, it might not be uninstructive to examine the decisions at large, and the reasoning by which they are sup- ported. But it is believed that the authorities already referred to contain all that is material ; and it would be a waste of time to subject them to a critical analysis for purposes of mere speculative argument. § 167. The ground upon which this doctrine of the common law is founded has often been a matter of doubt and inquiry by ingenious minds. There is so much apparent equity in allowing compensation for injuries, resulting from a misplaced confidence in others, that it is not easily reconcilable with a sense of justice, to allow the contrary rule to prevail. Besides, there is an artificial refinement in the distinction between non- feasance and misfeasance, which seems to be a little unphilo- sophical, and not quite agreeable to the dictates of common sense. § 168. It is not easy in all cases to give satisfactory reasons for doctrines which are, nevertheless, firmly established in the jurisprudence of many countries. In some instances these doctrines were probably founded upon accidental or tempo- rary reasons ; in others, upon false theories ; and in others, again, upon what may fairly be deemed a mere measuring cast of conflicting opinions. But, whenever a doctrine is estab- » 5 Term Rep. 143. [And see Balfe v. West, 13 C. B. 466 ; 22 Eng. L. & Eq. 506.] 2 4 Johns. 84. { And see McGee v. Bast, 6 J. J. Marsh. 455. } 8 See also Coggs v. Bernard, 2 Ld. Raym. 909, 919, 920; Rutgers v. Lucet, 2 Johns. Cas. 92; Doct. and Stud. Dial. 2, ch. 24, p. 210 ; Wilkin- son V. CoYerdale, 1 Esp. 75. * 2 Kent, Comm. Lect. 40, p. 569 to 573, 4th edit. 160 ON MANDATES. [CH. IH. lished in either way, it cannot, upon the theory of our judicial institutions, be broken in upon, without disturbing the cer- tainty as well as the harmony of the law. Perhaps it would have been better if the distinction alluded to had never been recognized, and the broad principle of the Roman Code, which gives a remedy in all cases of special damage, had been uni- versally proclaimed.^ It is not, however, difSeult to perceive some of the reasons upon which the common law has stopped at its present point, as that law generally aims more at prac- tical good than at mere theoretical consistency. § 169. There are many rights and duties of moral obliga- tion, which the common law does not even attempt to enforce. It deems them of imperfect obligation, and therefore leaves them to the conscience of the individual. And, in a practical sense, there is wisdom in this course ; for judicial tribunals would otherwise be overwhelmed with litigation, or would become scenes of the sharpest conflict upon questions of casuistry and conscience. It is a fundamental principle of the common law, that a valuable consideration is necessary to support every parol contract ; and the importance of such a consideration is never lost sight of, except in solemn instru- ments under seal. A gratuitous executory contract, not under seal, is, therefore, absolutely void.^ It has no legal existence or power. Now, a mandate is precisely a contract of this nature. What reason, then, is there for accepting this par- ticular class of contracts out of the general rule, any more than many, or even all, others ? It may not involve more of good faith or confidence than many others. We must, then, either dispense with the general rule, or with the exceptions, or draw an arbitrary line between them. The common law has adhered to the general rule, as the wisest and safest, both in principle and application. ' The rule being once known and established, there cannot be any real ground of complaint on the part of the mandator. He knew, or might have known (and his ignorance of the law cannot constitute any better excuse in this than in other cases), that the contract was a 1 See Kent, C. J., in Thome v. Deas, 4 Johns. 84. 2 Coggs V. Bernard, 2 Ld. Raym. 909, 911, 919 ; Elsee v. Gatward, 5 T. R. 143; Doct. and Stud. Dial. 2, ch. 24, p. 210, 211. CH. ni.J OK MANDATES. 161 nullity. It was his own folly or rashness to confide in it. If he trusted to it, he took the risk of the non-fulfilment upon himself, and he has no right to complain that he has suffered by that risk a loss which has been the result of his own over- weening confidence. § 170. In regard to the distinction between nonfeasance and misfeasance, although it is nice, it may be accounted for in this way. The mandatary has his choice, to renounce the contract, or to perform it ; to treat it as a nullity, or as a sub- sisting obligation.! If he chooses to consider it in the latter light, and to act upon it as obligatory, why should he be permitted to separate the parts of the obligation, or to disjoin those which were entered into as a whole ? Besides, an injury accrues, and the mandator sues the other party for the wrong. The wrong is admitted, and the party sets up the contract in his defence. Ought the law to give him the benefit of the contract, as a subsisting obligation, to protect him from being deemed a mere unauthorized wrong-doer ; and yet, at the same time, to enable him to escape from his obligations, by proving that he has violated the fundamental terms of that very con- tract ? The common law has deemed it unreasonable that he should have such an indulgence. It has left him free to act, or not to act ; but if he chooses to act, it is at his own peril. He is not at liberty to commit a tort, and then shift his de- fence upon the imperfect obligation of a contract, under which the tort was done. It is difficult to affirm that there is any thing positively inequitable or unjust in this ; and it is not inconsistent with the general rule, as to nude pacts, that the common law should give a remedy for injuries occasioned by an unskilful or mischievous execution of the trust.^ § 171. Whether this reasoning is entirely satisfactory or not, it furnishes the key to the doctrine now under consideration; and if the result is thought to be inconvenient, it exclusively belongs to the legislative power to apply the proper remedy. It may, however, be observed, that it is generally a favorite policy of the common law to prompt men to vigilance and care in their own concerns, and not to an overweening confidence 1 Elsee V. Gatward, 5 T. R. 143; ante, § 2, n. 1, p. 2. 2 Coggs V. Bernard, 2 Ld. Raym. 909, 918, 919. 11 162 ON MANDATES. [CH. in. in others. The maxim, Caveat emptor^ rests on this founda- tion ; and it has not hitherto been thought wrong in principle, or found inconvenient in practice. § 171 a. But, although the distinction is thus clearly estab- lished in the common law, between cases of nonfeasance and cases of misfeasance in a mandatary, and the former will not confer a right of action, but the latter will ; yet the just ap- plication of the doctrine may become matter of very sei'ious importance. The ground of the doctrine in the cases of nonfea- sance is (as we have seen), that there is no consideration : and the rule is, " Ex nudo pacto non oritur actio." But this rule is inapplicable, where the mandate has been fully executed on the part of the mandatary, as if he has delivered the thing, which is the subject of the mandate, to the mandatary ; for in such cases there arises, from such a delivery and receipt, a sufficient consideration to support the contract, and to found an action for any negligence or omission in the due execution of the mandate. 1 It is not necessary, to constitute a sufficient con- sideration to support the contract, that the bailee should derive some benefit from it. It will be sufficient if the bailor, on the faith of the promise, parts with some present right, or delays the present use of some right, or suffers some immediate preju- dice or detriment, or does some act at the bailee's request.^ Thus, for example, if A. should intrust a letter to B., contain- ing money, to pay his note at a bank in Boston, due on a par- ticular 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 dam- age, B. would at the common law be liable to an action for his negligence, and the delivery of the letter to B., under such circumstances, would be a part execution, and a sufficient consideration to support the action. § 171 h. Upon the same ground, if a mandatary should gra- i Year Book, 2 Hen. 7, 11, pi. 9 ; Coggs v. Bernard, 2 Ld. Raym. 919, 920; ante, § 2, subjinem, note 2. 2 Ante, § 2, subjinem, note 2; Com. Dig. Action on the Case on Assump- sit, B. 1, 3, 4, 6, 11 1 Williamson v. Clements, 1 Taunt. 523; Longridge V. Dorville, 5 Barn. & Aid. 117. CH. m.J ON MANDATES. 163 tuitously undertake to carry, or to pay, or to transmit, money for a mandator to a particular place, there to be paid on a par- ticular day, and the money should be delivered to him for that purpose, he would be bound by his receipt of the money to carry, pay, or transmit the money accordingly ; and if he should omit to do so, he would be responsible for his negligence to the mandator;^ for the delivery of the money to him would con- stitute a sufficient consideration for his undertaking; and it would also be on his part an inception or part execution of the mandate.^ And yet, if he had not received the money, the undertaking would have been a mere nude pact.^ § 171 c. Upon the same ground, if a bank should gratui- tously undertake to collect the money on a note, when due, upon the note being indorsed in blank, and left in the bank, and the bank should neglect to present the same duly for pay- ment, or should neglect to give due notice to the indorsers of the dishonor, when duly presented, it would be responsible to the holder for such neglect. For the indorsement and delivery of the note to the bank would constitute a sufficient consideration to maintain an action of assumpsit upon the im- plied promise of due diligence, and the breach thereof by such negligence.* § 171 d. This doctrine of the common law is in precise co- incidence with that deduced from the rule of the Roman law applied to similar eases. Thus, it has been held in Louisiana, that if a bank, with which a note is lodged for collection by 1 [See Kellogg v. Sweeney, 1 Lans. 402.] 2 [See Jenkins v. Motlow, 1 Sneed (Tenn.), 248; Kirtland ». Mont- gomery, 1 Swan (Tenn.), 457; Eddy v. Livingston, 35 Mo. 487; Bland v. Womack, 2 Murphey, 373;] {Roulston v. McClelland, 2 E. D. Smith (N. Y.), 60; Persch u. Quiggle, 57 Penn. St. 247; Graves v. Ticknor, 6N. H. 537.} s Shillibeer v. Glyn, 2 Mees. & Welsh. 145; Wheatley v. Low, Cro. Jac. 667. See also Beauchamp v. Powley, 1 Mood. & Roh. 38; [Fellowes v. Gordon, 8 B. Monr. 415 ; Ferguson v. Porter, 8 Ela. 38 ;] Coggs v. Ber- nard, 2 Ld. Raym. 909, 918, 919; ante, § 2, suh finem, note 2. < Smedes v. Bank of Utica, 20 Johns. 377, 385; s. c. in Error, 3 Cow. 662, 683, 684; Bank of Utica v. McKinster, 11 Wend. 473; Callender v. Oelrichs, 1 Am. 401, 402 ; ante, § 2, sub finem, note 2. [See Whitney v. Lee, 8 Met. 91; Curtis ». Leavitt, 15 N. Y. 9, 167.] 164 ON MANDATES. [CH. III. the holder, omits to present it for payment at maturity, the bank, although it acts gratuitously, will be responsible for its negligence to the holder. On that occasion, the court said : " If he, who undertakes the business of another, is capable of managing it, and neglects to do so with due care, he is respon- sible. If he is not capable, he is still answerable ; for he ought not to have engaged to do that wliich he could not perform. ' A procuratore dolum, et omnem culpam, non etiam impro- visum casum praestandum esse, juris autoritate manifeste de- claratur.' The principles above laid down govern as well in cases of gratuitous agencies as in others. The truth is, that they are derived from the Roman law, in which no such thing was known as agency for a salary." ' § 172. The same rule, which is applied by the common law to cases of malfeasance, governs also cases of the negligent execution of a gratuitous trust or agency. As, for instance, if a gratuitous agent should undertake to procure a policy of in- surance, which is in his own name, to be renewed and assigned to a party who has become a purchaser of the property insured, and he should proceed to procure a renewal of the policy, but should not indorse thereon an assignment to the purchaser, and obtain the allowance thereof by the underwriters (which are necessary acts to make the policy valid in favor of the pur- chaser), so that, upon a subsequent loss of the property, no recover)' could be had by the purchaser, he will be responsible for the loss ; although if he had done nothing, he would have been exonerated from all responsibility .^ § 173. In the next place, what is the degree of care or dili- gence which the mandatary is bound to apply in respect to the thing committed to his charge ? It is not, perhaps, very easy to ascertain from the texts of the Roman law, what was the degree of diligence exacted by that law in all cases of 1 Duruford v. Patterson, 7 Mart. 464, cites Cod. Lib. 4, tit. 35, 1. 13. 2 Wilkinson v. Coverdale, 1 Esp. 75; Marsh. Insur. B. 1, ch. 8, § 29, p. 299; [French v. Keed, 6 Binn. 308; Ferguson v. Porter, 3 Fla. 38.] j On the other hand, if a person gratuitously undertakes the duties of steward of a horse-race, but does not commence to perform such duties, he is not liable for negligent non-feasance in not appointing a judge. Balfe V. West, 22 Eng. L. & Eq. 506; 13 C. B. 466.} CH. III.] ON MANDATES. 165 mandataries. The language in Ulpian's famous law is, that in mandates the party is liable for deceit and neglect, " Dolum et culpam mandatum."^ In other passages, something more would seem to be required, and even a very high degree of diligence. Thus, in the Code it is said, that a procurator is liable for fraud, and every neglect: "A procuratore dolum et omnem culpam, non etiam improvisum casum prsestandum esse, juris autoritate manifesto declaratur."^ The treatise of Sir William Jones abundantly shows, that civilians are not agreed among themselves, as to the true interpretation of the Roman law on this point.^ And Domat is manifestly perplexed in his own attempt to explain it.* Ayliffe says: "In a com- mission (mandate), sometimes the exactest diligence is re- quired, as in a proctor ad lites; and then he shall be liable for the smallest neglect or fault, because he asserts himself to be skilful in the business relating to judicial matters. Sometimes only an exact diligence is required, as in the payment of money ; and then the person executing such commission shall be an- swerable de laid et levi culpd. And sometimes a commission is granted, which requires little or no diligence, because every person may speed such an act, as to carry a letter or book from one person to another, and then the person is only liable for fraud and gross negligence, unless he has received a reward for so doing." ^ Heineecius, one of the most exact of jurists, seems to adopt the conclusion, that, by the Roman law, a man- datary is liable, not only for fraud or deceit, but for neglect, although very slight. " Ut non solum dolum sed et culpam, etiam levissimam, prsestare debeat."^ Pothier (admitting at the same time that it is an exception to the common rule) asserts the true principle to be, as well in the Roman as in the French law, that the mandatary is not only bound to good faith, but is also bound to bestow on the matter, with which he 1 Dig. Lib. 50, tit. 17, 1. 23; Jones on Bailm. 14-16. 2 Cod. Lib. 4, tit. 35, 1. 13 ; Pothier, Pand. Lib. 17, tit. 1, n. 35, 36. 8 Jones on Bailm. 14, &c. * 1 Domat, Civ. Law, B. 1, tit. 15, § 3, art. 4, 5. See also Ayliffe, Pand. B. 4, tit. 10, p. 478. 6 Ayliffe, Pand. B. 4, tit. 10, p. 478. 6 Heinec. Elem. Pand. Lib. 17, tit. 1, § 233. 166 ON MANDATES. [CH. UI. is charged, all the diligence and all the skill which the proper execution of it requires.^ And he holds the mandatary liable, not merely for fraud and faults of commission or misfeasance, but also for all faults of omission or negligence. According to him, every mandatary engages himself for every thing neces- sary to accomplish his undertaking ; and consequently for all the care and diligence required by it : " Spondet diligentiam et industriam negotio gerendo parem." If, therefore, the man- datary exerts himself to his utmost capacity, and yet he has not sufficient skill to accomplish the undertaking, he is, accord- ing to Pothier, still responsible ; for he should have made a better estimate of his capacity, and he should not have engaged in the undertaking. ^ Pothier does not, indeed, insist, that in all cases he shall exert the same care and diligence that the most diligent and attentive men do. But he holds him liable even for the slightest neglect (levissimd culpd') in affairs requiring extraordinary diligence ; and in affairs requiring only ordinary diligence, for slight neglect (levi culpd). ^ He allows, indeed, some indulgence, where the mandatary has been pressed into the service, because a competent person could not be found ; for, in such a case, he admits, that the mandatary ought not to be held responsible for any more dil- igence or skill than he possesses.* And he exempts the manda- tary from all responsibility for losses from mere accidents and superior force, unless he has entered into some stipulation to the contrary." But, on the other hand, he holds the manda- tary to be at liberty to exempt himself from all responsibility, except for fraud, by an exceptive stipulation.^ The modern Code of France does not speak so definitely on this subject as it might ; but it seems silently to pursue the lead of Pothier.' The Code of Louisiana is to the same effect as that of France.^ 1 Pothier, Contrat de Mandat, n. 46 to 49. 2 Pothier, Contrat de Mandat, 46, 47, 48, 208. 8 Id. II. 49. ■• Ibid. 6 Id, n. 50. e ibid. ' Code Civil of France, B. 3, tit. 13, ch. 2, art. 1992; Merlin, Eepert. Mandat, § 2, art. 3. 8 Code of Louisiana (1825), art. 2972. See Hodge's Heirs i>. Durnford, 13 Mart. 100, 125, 126, where Mr. Justice Porter suggests a doubt -whether the Spanish law goes so far. See also Percy v. Millaudon, 20 Mart. 68. CH. III.] ON MANDATES. 167 § 173 a. This doctrine of Pothier has been combated with great ability, and in my judgment with entire success, by a learned Judge, whose judicial life has been devoted to the administration of the jurisprudence derived from the Roman, the French, and the Spanish law. His language on the occa- sion was : " It is said by a writer of great authority (Pothier), who treats the doctrine of mandate, that the mandatary can- not excuse himself by alleging a want of ability to discharge the trust undertaken. That it will not be sufficient for him to say he acted to the best of his ability, because he should have formed a more just estimate of his own capacity before he engaged himself. That if he had not agreed to become the agent, the principal could have found some other person willing and capable of transacting the business correctly. This doctrine, if sound, would make the attorney-in-fact re- sponsible for every error in judgment, no matter what care and attention he exercised in forming his opinion. It would make him liable to the principal in all doubtful cases, where the wisdom or legality of one or mpre alternatives was pre- sented for his consideration, no matter how difficult the subject was. And if the embarrassment in the choice of measures grew out of a legal difficulty, it would require from him knowledge and learning, which the law onlj^ presumes in those who have made the jurisprudence of their country the study of their lives, and which knowledge often fails in them, from the intrinsic difficulty of the subject, and the fallibility of human judgment.' It is, no doubt, true, that, if the business to be transacted presupposes the exercise of a particular kind of knowledge, a person who should accept the office of manda- tary, totally ignorant of the subject, could not excuse himself on the ground that he discharged his trust with fidelity and care. A lawyer who should undertake to perform the duties of a physician, a physician who should become an agent to carry on a suit in a court of justice, a bricklayer who should propose to repair a ship, or a landsman who should embark on board a vessel to navigate her, may be presented as exam- ples to illustrate this distinction. Thus, it was a provision of 1 Pothier, Traits de Mandat, n. 48. 168 ON MANDATES. [CH. IH. the Spanish law, ' Gran culpa es aquel, que se trabaja de facer cosa, que non sabe, o quel non conviene.' (Part 7, tit. 33, ley 13.) But when the person who is appointed attorney-in- fact has the qualifications necessary for the discharge of the ordinary duties of the trust imposed, we are of opinion, that, on the occurrence of difficulties in the exercise of it, which offer only a choice of measures, the adoption of a course from which loss ensues cannot make the agent responsible, if the error was one into which a prudent man might have fallen. The contrary doctrine seems to us to suppose the possession, and require the exercise of perfect wisdom in fallible beings. No man would undertake to render a service to another on such severe conditions. The reason given for the rule, namely, that, if the mandatary had not accepted the office, a person capable of discharging the duty correctly would have been found, is quite unsatisfactory. The person who would have accepted, no matter who he might be, must have shared in common with him who did accept, the imperfection of our nature, and consequently must be presumed just as liable to have mistaken the correct course. The test of responsibility, therefore, should be, not the certainty of wisdom in others, but the possession of ordinary knowledge ; and by showing that the error of the agent is of so gross a kind, that a man of common sense and ordinary attention would not have fallen into it. The rule which fixes responsibility because men of unerring sagacity are supposed to exist, and would have been found by the principal, appears to us essentially erroneous." ' § 174. Let us now proceed to the consideration of the manner in which the common law has treated this subject. According to the general principles, which have been already stated, a mandatary, as the contract is wholly gratuitous and for the benefit of the mandator, is bound only to slight dili- gence, and of course is responsible only for gross neglect.^ 1 Mr. Justice Porter, in Percy v. Millaudon, 20 Mart. 75 to 79. 2 Doorman v. Jenkins, 2 Adolph. & Ellis, 256 ; s. c. 4 Nev. & Mann. 170; Beardslee y. Kichardson, 11 Wend. 25; 2 Kent, Comm. Lect. 40, p. 571, 572, 4th edit. ; [Lampley v. Scott, 24 Miss. 528. See also Kemp V. Farlow, 5Ind. 462; Fulton o. Alexander, 21 Texas, 148; Skelley v. Kahn, 17 111. 170; McNabb v. Lockhart, 18 Ga. 495.] {And see Colyar v. CH. in.] ON MANDATES. 169 And this, it is conceived, is the doctrine of the common law universally applied to mandates.^ § 175. Sir William Jones, however, has taken a distinction, and maintained that there is a difference of principle in respect to the two classes into which he divides mandates: (1) A mandate to do work about goods ; (2) A mandate to caiTy goods from place to place.^ In respect to the latter, he adopts without hesitation the doctrine, that the party is bound only to good faith and slight diligence, and is responsible only for gross neglect.* But, in respect to the former, he holds that the mandatary engages to use a degree of diligence and at- tention adequate to the due performance of the undertaking. It may be well to give his reasoning in his own words. " The great distinction, then," says he, " between one sort of man- date and a deposit is, that the former lies in feasance, and the latter simply in custody ; whence, as we have already inti- mated,* a difference often arises between the degrees of care demanded in the one case and the other. For, a mandatary being considered as having engaged himself to use a degree of diligence and attention adequate to the performance of his undertaking, the omission of such diligence may be, according to the nature of the business, ordinary or slight neglect ; al- though a bailee of this species ought regularly to be answerable only for a violation of good faith. This is the common doctrine taken from the law of Ulpian. But there seems in reality to be no exception in the present case from the general rule ; Taylor, 1 Cold. 372; Persch v. Quiggle, 57 Penn. St. 247; Eddy v. Liv- ingston, .35 Mo. 487; Lobenstein u. Pritohett, 8 Kans. 213; Ferguson v. Porter, 3 Fla. 27; Mariner v. Smith, 5 Heisk. 208; Gulledge v. Howard, 23 Ark. 61 ; McCauley v. Davidson, 10 Minn. 418. } 1 Ibid. The question, whether there is gross negligence or not, seems in general to be a matter of fact for the jury upon all the circumstances, rather than of law for the court. Doorman v. Jenkins, 2 Adolph. & Ellis. 256; s. c. 4 Nev. & Mann. 170 ; Vaughan v. Menlove, 3 Bing. N. C. 468 ; 475; ante, § 11; Beardslee u. Richardson, 11 Wend. 25; {Lobenstein v. Pritchett, 8 Kans. 213. i 2 Jones on Bailm. 53, 62, 117, 120. ' Coggs V. Bernard, 2 Ld. Raym. 909; Jones on Bailm. 62, 63; Beau- champ V. Powley, 1 Mood. & Rob. 38; Doorman v. Jenkins, 2 Adolph. & Ellis, 256; s. c. 4 Nev. & Mann. 170. See Dartnall v. Howard, 4 Barn. & Cress. 345. ^ Jones on-Baihn. 22. 170 ON MANDATES. [CH. HI. for, since good faith itself obliges every man to perform his actual engagements, it of course obliges the mandatary to exert himself in proportion to the exigence of the affair in hand ; and neither to do any thing, how minute soever, by which his employer may sustain damages, nor omit any thing, however inconsiderable, which the nature of the act requires. Nor will a want of ability to perform the contract be any de- fence for the contracting party ; for though the law exacts no impossible things, yet it may justly require that every man should know his own strength before he undertakes to do an act ; and that, if he deludes another by false pretensions to skill, he shall be responsible for any injury that may be occa- sioned by such delusion. If, indeed, an unskilful man yield to the pressing instances of his friend, who could not other- wise have his work performed, and engage reluctantly in the business, no higher degree of diligence can be demanded of him than a fair exertion of his capacity." ^ In other passages he enlarges on the same point.^ And he adds, in another place : " A bailment without reward to carry from place to place, is very different from a mandate to perform work. And there being nothing to take it out of the general rule, I cannot conceive that the bailee is responsible for less than gross neg- lect, unless there be a special acceptance, &c. Every thing, therefore, that has been expounded in the preceding article concerning deposits, may be applied exactly to this sort of bailment, which may be considered as a subdivision of the second species." ^ § 176. If this distinction, taken by Sir William Jones, is clearly settled in the common law, it ought to be acquiesced in, even if the reasons on which it is built should not be thought entirely satisfactory. But the inquiry naturally pre- sents itself, whether it is thus firmly established. Sir William Jones has cited no authority in support of it ; and none has been found, in my researches, which directly recognizes it. § 177. It is worthy of remark, that the whole reasoning of Sir William Jones on the point is exclusively derived from 1 Jones on Bailm. 53; Pothier, Contrat de Mandat, n. 49. 2 Jones on Bailm. 22, 61, 98, 120. 8 Id. 62, 63 ; Saltus v. Everett, 20 Wend. 267. CH. in.] ON MANDATES. 171 the views taken of the civil law by the able commentators already referred to. But they apply the rule to all cases of mandates whatsoever, and by no means limit it to cases where work is to be performed. So far as their authority goes, then, it repudiates the distinction ; and, so far as their reasoning goes, it proceeds on a basis applicable to every spe- cies of manSate.i And, indeed, it is very difficult to perceive, in common sense, or in legal principles, any ground upon which the distinction can be maintained. A mandate to carry a thing from one place to another may properly enough be deemed a mandate to perform work ; and it imports, just as much as a mandate to do any other work, an engagement to perform the undertaking, and to exercise due diligence and care about it. If A. undertakes gratuitously to carry B.'s goods from one place to another, does not good faith oblige him to perform his undertaking, and to exert proper diligence in proportion to the exigence of the affair ? Does not the bailor trust to his fidelity in performing it, with as much con- fidence as when he undertakes to do work, strictly speaking, upon the same goods? Why should he not be under the same obligation to carry safely, as to do the work well ? When he undertakes to carry, does he not, by necessary implication, engage that he has ability to do so, and that he will exercise all reasonable diligence to accomplish his undertaking ? To do work on goods, is not, or may not be, more important than to carry them to another place. To carry jewels safely may be a far more valuable service, and require far more vigilance, than to clean the gold which enchases them. The same rea- soning, then, seems applicable to all classes of mandates ; and it is applied in the text of the civil and foreign law, from which the rule is borrowed, indiscriminately to all. Where the act to be done requires skill, and the party who undertakes it either has the skill, or professes to have it, there he may well be made responsible for the want of due skill, or for the neg- lect to exercise it. In such cases the undertaking may well be deemed a special undertaking to exercise due skill ; and 1 Pothier, Contrat de Mandat, n. 46-48, 49 ; Las Siete Partidas, Liv. 5, tit. 12, 1. 20 to 25. 172 ON MANDATES. [CH. HI. the omission of it imports, in all such cases, at least ordinary- negligence ; and in many cases, operating, as it must, as a fraud upon the party, it may well be deemed gross negligence. But this class of cases stands, not as an exception from the general law, but as a qualification of it from the implied engagement of the mandatary. It is only deciding that the parties may vary the responsibility, implied by law, by an express or implied contract for this purpose. Sir William Jones himself puts a case, which shows the propriety of admitting this doc- trine ; for he agrees, that if an unskilful man, who is known to be so, does the work at the solicitation of a friend, with such ability as he possesses, he stands excused, although it is unskilfully done ; for it is the mandator's own folly to trust to him, and the party engages for no more than a reasonable exertion of his capacity.^ It is apparent, then, that the fact of skill, or of want of skill, as known or unknown to the bailor, or professed or not professed by the bailee, constitutes a material ingredient in construing the engagement, and quali- fies or enlarges it. In other terms, it varies the presumption as to the actual contract, according to the express or implied . intention of the parties. It is not so much an exception from the common rule, as a waiver or limitation of it. § 178. If there be no authority in support of the distinction suggested by Sir William Jones, and none has been produced, let us next inquire, whether there are not authorities which lead the other way. In the great case of Coggs v. Bernard,^ where all the antecedent authorities were reviewed, and where Lord Holt expounds the nature and responsibility arising from every kind of bailment, no such distinction is hinted at. Yet that was the ease of a mandate to carry goods ; and Lord Holt says, this undertaking obliges the undertaker to diligent man- agement. The reasons, he says, are, because, in such a case, a neglect is a deceit to the bailor, who trusts the bailee upon his undertaking to be careful ; and the latter puts a fraud upon the former by being negligent. And Lord Holt puts, by way of illustration of his doctrine, the case of a mandate of the other sort, namely, an action against a man who had under- 1 Jones on Bailm. 53, 98. Pothier asserts the same dootrine. Pothier, Contrat de Mandat, n. 49. ^ 2 Ld. Raym. 909. CH. III.J ON MANDATES. 173 taken to keep one hundred sheep ; and he was held liable for letting the sheep be drowned by his default. He afterwards puts the case of a carpenter, who unskilfully builds a house without reward ; and suggests no difference between that case and a mandate to carry.^ From these considerations it may fairly be deduced, that, as Lord Holt, in treating on the express point, suggests no such distinction, none was, in his judgment, furnished by the common law. Mr. Justice Gould in the same case said: " If a man takes upon him expressly to do such an act^ safely and securely, if the thing comes to any damage by his miscarriage, an action will lie. If it be only a general bailment (that is, without such express undertaking), the bailee will not be answerable without a gross neglect."^ So that the difference he insists 'on is between a special contract, and the general obligation, implied by law from the nature of the bailment. § 17y. The case of Moore v. Mourgue* probably decided the very question under consideration, if that case was a gratui- tous undertaking. There, an agent, having written orders for the purpose, procured a policy of insurance to be made ; but in the policy there was an exception of a risk common in the policies of other offices, but not in those used by this office, and the loss arose from that risk ; and the same premium was given in all the offices, without any increase on account of such risk. It was held by the court, that the agent was not liable, as he had acted bond fide, and to the best of his judg- ment, and without gross negligence. There is, however, noth- ing on the face of the report which absolutely settles it to have been a gratuitous undertaking, although the structure of the case would lead to that conclusion. § 180. But the case of Shiells v. Blackburne^ seems directly in point against the distinction of Sir William Jones. There, a merchant had undertaken gratuitously, but not, as it should seem, officiously, to enter certain goods of the plaintiff at the custom-house, with his own goods of the like kind ; and by mistake he entered them by a wrong name, so that aU the 1 2 Ld. Raym. 909, 919, 920. ^ {Misprinted in report : a fact.] 8 2 Ld. Raym. 909. ^ Cowp. 480. ^ i h. Black. 158. 174 ON MANDATES. [CH. III. goods were seized and lost, both the plaintiff's and his own. An action was brought by the plaintiff to recover damages for this misfeasance ; and upon full consideration the court held, that, as there was not any gross negligence, the action would not lie. Now, this was the very case of a mandate to do an act, in contradistinction to one to carry goods. And if the contract did, per se, imply an engagement to use all the care and diligence which were necessary to the performance of the act, namely, to make a proper entry at the custom-house, and the bailee omitted so to do, he ought to have been held liable, even if there was not gross negligence. The court, however, put the case upon the true ground of a general mandate, where there is no sjiecial undei'taking for skill. Mr. Justice Heath there said: " The defendant waS not guilty either of gross neg- ligence or fraud. He acted bond fide. If a man applies to a surgeon to attend him in a disorder for a reward, and the sur- geon treats him improperly, there is gross negligence, and the surgeon is liable to an action. The surgeon would also be lia- ble for such negligence, if he undertook gratis to attend a sick person, because his situation implies skill in surgery. But if the patient applies to a man of a different employment or occupation for his gratuitous assistance, who either does not exert all his skill, or administers improper remedies to the best of his ability, such person is not liable. It would be attended with injurious consequences, if a gratuitous undertaking of this sort should subject the person who made it, and who acted to the best of his knowledge, to an action." Mr. Justice Wilson said : " Where the undertaking is gratuitous, and the party has acted bond fide, it is not consistent either with the spirit or the policy of the law to make him liable to an action. A wrong entry at the custom-house cannot be considered as gross neg- ligence, when, from the variety of laws, &c., reliance must be placed on the clerks in the office." Lord Loughborough said : " I agree with Sir William Jones, that where a bailee under- takes to perform a gratuitous act, from which the bailor is alone to receive benefit, there the bailee is only liable for gross negligence. But if a man gratuitously undertakes to do a thing to the best of his skill, where his situation or profession is such as to imply skill, an omission of that skill is imputable CH. III.] ON MANDATES. 175 to him as gross negligence.^ If in this case a ship-broker, or clerk in the custom-house, had undertaken to enter the goods, a wrong entry would in them be gross negligence, because their situation and employment necessarily imply a competent degree of knowledge in making such entries. But when an application, under the circumstances of this case, is made to a general merchant to make an entry at the custom-house, such a mistake as this is not to be imputed to him as gross negli- gence." So that the whole court held that a mandatary was not liable except for gross negligence ; and that an express or implied warranty of skill was necessary, under such circum- stances, to impute to him gross negligence. § 181. The doctrine of the case of Shiells v. Blackburne^ has never been impeached; and it is incidentally confirmed in other analogous cases.^ So far as the American authorities have gone,* they appear to proceed on the same principles, and to deem the mandatary, like the depositary, liable in all cases for gross negligence only. § 182. Dr. Paley, in his treatise on Moral Philosophy, has, with his usual practical good sense, put the case of mandates upon a reasonable ground. " Whoever," says he, " undertakes another man's business, makes it his own, that is, promises to employ upon it the same care, attention, and diligence, that he would do if actually his own ; for he knows that the business is committed to him with that expectation. And he promises no more than this." ^ § 182 a. The true rule of the common law would seem, 1 See Jones on Bailm. 53, 54, 98. 2 1 H. Black. 158. 8 See Nelson v. Macintosh, 1 Stark. 237 ; Rooth v. Wilson, 1 Barn. & Aid. 59; Doorman v. Jenkins, 2 Adolph. & Ellis, 256; s. c. 4 Nev. & Mann. 170. See Dartnall v. Howard, 4 Barn. & Cress. 345. * Stanton v. Bell, 2 Hawks (N. C), 146; Foster v. Essex Bank, 17 Mass. 479 ; [Whitney v. Lee, 8 Met. 91 ; Steamboat New World v. King, 16 How. (U. S.) 475;] Tracy v. Wood, 3 Mason, 132; Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275; Percy v. Millaudon, 20 Mart. 75 to 79; 2 Kent, Comm. Lect. 40, p. 569, 570; [Jourdan ». Reed, 1 Clarke (Iowa), 135; Hyland v. Paul, 33 Barb. 241;] {Eddy u. Liviugston, 35 Mo. 487.} 6 Paley, Moral Phil. B. 8, P. 1, oh. 12. 176 ON MANDATES. [CH. HI. therefore, to be, that a mandatary, who acts gratuitously in a case, where his situation or employment does not naturally or necessarily imply any particular knowledge or professional skill, is responsible only for bad faith or gross negligence. If he has the qualifications necessary for the discharge of the ordinary duties of the trust which he undertakes, and he fairly exercises them, he will not be responsible for any errors of conduct or action, into which a man of ordinary prudence might have fallen. If his situation or employment does imply ordinary skill or knowledge adequate to the undertaking, he will be responsible for any losses or injuries resulting from the want of the exercise of such skill or knowledge. If he is known to possess no particular skill or knowledge, and yet undertakes to do the best which he can under the circumstances, all that is required of him is the fair exercise of his knowledge, and judg- ment, and capacity.^ This general responsibility may be varied by a special contract of the parties, either enlarging, or qualifying, or narrowing it ; and in such cases the particular contract will furnish the rule for the case. The mandatary may take upon himself responsibility for accidents, although a very special contract would be required for such a purpose ; and the civil law upon this subject speaks but the general sense of mankind. " Placuit, posse rem h§.c conditione deponi, man- datumque suscipi, ut res periculo ejus sit, qui depositum vel mandatum suscepit."^ On the other hand, a mandatary can- ' See 2 Kent, Comm. Lect. 40, p. 571-573, 4th edit.; Percy v. Millaudon, 20 Mart., 75 to 79; Shiells v. Blaokburne, 1 H. Black. 158; Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275 ; Foster v. Essex Bank, 17 Mass. 479. Mr. Chancellor Kent has well observed: "It is a little difficult to reconcile the opinions on this point of a gratuitous undertaking to do some business for another; but the case of Shiells v. Blackburne contains the most authoritative declaration of the law, in favor of the more limited responsibility of the bailee. There are, however, a number of instances, in which such a mandatary becomes liable for want of due care and attention. Thus, it has been held to be an act of negligence, sufficient to render a gratuitous bailee responsible, for him to have turned a horse after dark into a dangerous pasture, to which he was unaccus- tomed, and by which means the loss of the horse ensued." 2 Kent, Comm. Lect. 40, p. 572, 4th edit. ; Rooth v. Wilson, 1 Barn. & Aid. 59. 2 Pothier, Contrat de Mandat, n. 50; Dig. Lib. 17, tit. 1, 1. 39; ante, § 25, 30 to 35, 37 ; Dig. Lib. 2, tit. 14, 1. 7, § 15. CH. ni.] ON MANDATES. 177 not, any more than any other bailee, stipulate for an exemp- tion of liability for his own fraudulent acts or omissions. " Illud nulls, pactione effici potest, ne dolus prsestetur." ^ § 183. Primd facie, in cases of a general mandate, the fact, that the party did the work on the goods bailed with the same care that he did the work on like goods of his own, would repel the imputation of any negligence.^ But, without doubt, the presumption may be overcome by proofs of actual negligence,^ or of conduct, which, though applied to his own goods as well as to those bailed, would be deemed negligence, in bailees without hire, of ordinary prudence.* § 184. Sir William Jones has put a case, aptly illustrating the former position.^ " If Stephen desire Philip to carry a diamond ring from Bristol to a person in London, and he put it with bank-notes of his own into a letter-case, out of which it is stolen at an inn, or seized by a robber on the road, Philip shall not be answerable for it, although a very careful, or, perhaps, a commonly prudent man, would have kept it in his purse at the inn, and have concealed it somewhere in the carriage. But if he were to secrete his own notes with pecu- liar vigilance,* and either leave the diamond in an open room, or wear it on his finger in the chaise, he would be bound, in case of a loss by stealth or robbery, to restore the value of it to Stephen." ^ The case of a robbery may, perhaps, admit of some qualification ; for if the robbery were by force, and if every thing found on Philip's person, including his purse, were stolen, then, if the exposure of the ring did not afford any additional temptation, nor aid the loss, it might, perhaps, be thought that the bailee ought to be excused.^ 1 Pothier, Contrat de Mandat, n. 50; Dig. Lib. 2, tit. 14, 1. 27, § 3; ante, § 32. ^ Lane v. Cotton, 1 Ld. Raym. 655; Kettle v. Bromsall, Willes, 121. 8 Kooth V. Wilson, 1 Barn. & Aid. 59. * Tracy v. Wood, 3 Mason, 132 ; 1 Brown, Civ. Law, 383, note. {It is a suspicious circumstance, that a bailee, in carrying his own and the bailor's chattels together, claims to have lost the other's property and not his own. See Bland v. Womack, 2 Murph. 373. } s Jones on Bailm. 62. 6 lb. ' See 1 Brown, Civ. Law, 383, note 73. 12- 178 ON MANDATES. [CH. HI. § 185. The other position maybe illustrated by a case, which has passed into actual judgment.^ A. undertook, gratuitously, to carry two parcels of doubloons for B., from New York to Boston, in a steamboat, by the way of Providence. A., in the evening (the boat being to sail early in the morning), put both bags of doubloons, one being within the other, into his valise with monej' of his own, and carried it on board the steamboat, and put it into a berth in an open cabin, although notice was given to him by the steward that they would be safer in the bar-room of the boat. A. went away in the evening and returned late, and slept in another cabin, leaving his valise where he had put it. The next morning, just as the boat was leaving the wharf, he discovered, on opening his valise, that one bag was gone ; and he gave an immediate alarm, and ran up from the cabin, leaving the valise open there with the remaining bag, his intention being to stop the boat. He was absent for a minute or two only, and on his return the otlier bag also was missing. An action being brought against him by the bailor for the loss of both bags, the question was left to the jury whether there was not gross negligence, al- though the bailee's own money was in the same valise. The jury were directed to consider whether the party used such diligence as a gratuitous bailee ought to use under such cir- cumstances. They found a verdict for the plaintiff for the first bag lost, and for the bailee for the second. § 186. It may be added, that the degree of care which a mandatary may be required to exert, must be materially affected by the nature and value of the goods, and their liability to loss and injury. That care and diligence, which would be sufficient as to goods of small value, or of slight temptation, might be wholly unfit for goods of great value, and very liable to loss and injury .^ In the former case, the same acts might be deemed slight neglect only, which, in respect to the latter, might justly be deemed gross neglect. Illustrations of this rule have already been presented in another place.2 Lord Stowell, in the case of the Rendsberg,* put a 1 Tracy v. Wood, 3 Mason, 132. 2 [See State v. Meagher, ii Mo. 363.] « Ante, § 15. ■• 6 Bob. Adm. 142, 155. CH. m.] ON MANDATES. 179 ease in point. " If," said he, " I send a servant with money to a banker, and he carries it with proper care, he would not be answerable for the loss if his pocket was picked in the way. But if, instead of carrying it in a proper manner, and with ordinary caution, he should carry it openly in his hand, thereby exposing valuable property, so as to invite the snatch of any person he might meet in the crowded population of this town, he would be liable, because he would be guilty of the negligentia malitioga, in doing that from which the law must infer that he intended the event which has actually taken place." Perhaps the best general test is to consider whether the mandatary has omitted that care which bailees without hire, or other mandataries of common prudence, are accus- tomed to take of property of the like description.^ § 186 a. A very important question recently arose, and was decided, in Louisiana, as to the responsibility of the directors of a bank (who are there treated as falling within the pre- dicament of mandataries) to the stockholders, for any losses sustained by the latter in the course of the management of the concerns of the bank. The doctrine established on that occasion was, that the directors of a bank are bound to the exercise of ordinary diligence and attention in the discharge of their official duties ; and, if they are guilty of gross negli- gence or misconduct in their management of the business and property of the bank, they are in their private capacities responsible to the stockholders for any losses occasioned thereby. But for mere errors of judgment, unless of the grossest kind, they are not responsible. Upon this point, the court said : " The directors of banks, from the nature of their undertaking, fall within the 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 in- stitution to which they are appointed, and guard it from injury by constant superintendence. Other officers, on whom com- pensation is bestowed for the employment of their time in the affairs of the bank, have the immediate management. In relation to these officers, the duties of directors are those of 1 Tracy v. Wood, 3 Mason, 132 ; ante, § 182, 182 a. ] 80 ON MANDATES. [CH. III. control, and the neglect, which would render them responsible for not exercising that control properly, must depend on cir- cumstances, and in a great measure be tested by the facts of the case. If nothing has come to their knowledge to awaken 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." ^ § 186 b. Upon the ground, however, of gross negligence or wanton disregard of duty, the directors of a bank were, in the same case, held responsible to the stockholders, for losses to the bank, occasioned by acts of the following character : (1) Permitting the president and cashier to discount notes from the funds of the bank, without the assent and interven- tion of five directors, as required by the rules and regulations of the bank ; (2) Permitting purchases to be made of the stock of the bank out of the funds of the bank by the president and cashier, at a rate above the known true value thereof, or allowing them to take and use the money of the bank, contrary to the rules and regulations thereof ; (3) Not opposing an ille- gal measure of the board of directors to discharge the cashier and his sureties from the responsibility on the official bond of the former.^ How far similar doctrines will be adopted in courts sitting under the jurisprudence of the common law, remains for future discussion in those courts, as I am not aware that the question has as yet been directly litigated therein. But there can be little doubt that these doctrines are just conclusions from the general law of mandates. § 187. It may not be unfit, at the close of this discussion on the point of the mandatary's responsibility for gross negligence only, to remark, that the Scottish law has deserted the Roman doctrine on this subject, and holds the mandatary liable only for actual intromissions, and misfeasances, and for such dili- 1 Percy v. Millaudon, 20 Mart. 68, 73, 74, 75; Old Code of Louisi- ana (1809), p. 124, art. 17. {See Bank of United States v. Dunn, 6 Pet. 51 ; Morse on Banking, 93. } i» Percy v. Millaudon, 20 Mart. 68, 79, 80, 81, 92. CH. in.] ON MANDATES. 181 gence as he employs in his own affairs.^ It will probably be found, that the Spanish law also has adopted an equally reasonable rule.^ § 188. The general rule, that a mandatary is responsible for gross negligence only, applies solely to cases where he is in the actual performance of some act or duty intrusted to him in regard to the property. For if he violates his trust by a misuser of the property, or he does any other act inconsis- tent with his contract, or in fraud of it, he will clearly be liable for all losses and injuries resulting therefrom. He is not bound to suggest wise precautions against accident or loss ; but he is not at liberty to expose the property to injury or loss by haz- ards inconsistent with his dutJ^^ And in cases of misuser, especially such misuser as amounts to evidence of a conversion, it is, perhaps, strictly true, that every subsequent loss and in- jury, whether it be by accident or otherwise, will be at the risk of the mandatary.* This is certainly the rule of the civil law; and it has been incorporated into many, and perhaps into all, the systems of foreign law derived from it.^ § 189. There is a class of mandates arising iu the Roman law, which does not seem to have any place in our law, at least not under the same appellation. This class arises under . what is 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 to carry it to another place, &c. In cases of this sort, as he acts wholly without authority, there can, strictly speaking, 1 Ersk. Inst. B. 3, tit. 3, § 36, 37; 1 Bell, Comm. § 411, 4th edit.; 1 Bell, Comm. p. 481, 5th edit. ; 1 Stair, Inst. B. 1, tit. 12, § 10. " Hodge's Heirs v. Durnford, 13 Mart. 100, 125, 126 ; Percy v. Mil- laudon, 20 Mart. 68, 77. 8 Jones on Bailm. 101, 114, 115, 116. * De Tollenere v. Fuller, 1 So. Car. Const. 121; Ulmer v. Ulmer, 2 Nott & McC. 489; Catlin v. Bell, 4 Campb. 183; 2 Kent, Comm. Lect. 40, p. 572, 4th edit. ; post, § 413 a, § 413 b, § 413 c, § 413 d, § 414; { Stewart v. Frazier, 5 Ala. 114. See Spooner v. Mattoon, 40 Vt. 300 ; Martin v. Cuthbertson, 64 N. C. 328. } 6 Pothier, Contrat de Mandat, n. 51 ; Ersk. Inst. B. 3, tit. 3, § 37 ; Merlin, Repert. Mandat, § 2; Pothier, Pand. Lib. 17, tit. 1. n. 28, 29; Vinn. ad Inst. Lib. 3, tit. 27, § 8. 182 ON MANDATES. [CH. HI; be no contract. But the Roman law raises a quasi mandate, by implication, for the benefit of the owner, in many of such cases.^ Nor is an implication of this sort wholly unknown to the common law, where there has been a subsequent ratifica- tion of the acts by the owner ; and sometimes, where unau- thorized acts are done, positive presumptions are made by law for the benefit of particular parties. Thus, if a stranger enters upon a minor's lands, and takes the profits, the law will, in many cases, oblige him to account to the minor for the profits, as his bailiff; for it will be presumed, that he entered to take them in trust for the infant.^ § 189 a. As the Negotiorwm Grestor interferes without any actual mandate, there is good reason for requiring him to exert the requisite skill and knowledge to accomplish the oliject or business which he undertakes ; to do every thing which is incident to or dependent upon that object or business ; and to finish whatever he has begun. ^ The Roman law says : " Qui absentis negotia gerere inchoavit, neque, enim impune peritura, deseret ; suscepisset enim fortassis alius, si is non coepisset ; voluntatis est enim suscipere mandatum, necessi- tatis consummare." ^ "Without such an obligation, every man in the community would be at the mercy of ignorant and offi- cious friends.^ And hence, the proper rule would seem to be, that he should be responsible at least for ordinary skill and ordinarj' diligence ; ^ if, indeed, he might not be subjected, in some cases, to a severer rule, and be deemed to act at his peril, and to be accordingly responsible for slight faults or neglects. Pothier holds, that the Negotiorum Grestor is gen- ^ Pothier, Appendioe du Quasi Contrat, Negot. Gest. Appendioe Con- trat de Mandat, n. 167, &c. 2 1 Dane, Abridg. oh. 8, art. 2, § 10; 1 Bac. Abridg. Account; 1 Com. Dig. Accompt, A. 3; Co. Litt. 89 b, 90 a; 1 Story on Eq. Jurisp. § 51. 8 Hodge's Heirs v. Durnford, 13 Mart. 100, 124. < Dig. Lib. 13, tit. 6, 1. 17, § 3. ^ Hodge's Heirs v. Durnford, 13 Mart. 100, 124; Pothier, Contrat de Mandat, n. 200, 201; Dig. Lib. 3, tit. 5, \. 21, § 2 ; Pothier, Pand. Lib. 3, tit. 5, n. 41, 42; Bayon v. Prevot, 4 Mart. 58, 65. 6 Jones on Bailm. 49; Dig. Lib. 3, tit. 5, 1. 3, § 9 ; Pothier, Pand. Lib. 3, tit. 5, n. 52; Pothier, Contrat de Mandat, n. 211; Bayon v. Pre- vot, 4 Mart. 58, 65. OH. III.] ON MANDATES. 183 erally bound to the same degree of diligence and attention as a common mandatary ; that is to say, that he is bound to ac- complish and finish the business or affair which he undertakes ; to render an account of his doings therein to the principal ; ^ to apply the same degree of diligence and attention to it as he does to his own ; and that, like a mandatary, he is liable sometimes for ordinary negligence, and sometimes for slight negligence, according to the nature of his undertaking.^ But he holds that the Negotiorum Crestor is sometimes bound to a higher degree of diligence than a mandatary; for in respect to common affairs, in which it is sufficient for a man- datary to exercise common diligence, the Negotiorum G-estor is sometimes bound to exercise the utmost possible diligence, and bound for the slightest negligence ; as, for example, when he fails to bring to his undertaking the same degree of diligence which persons of more capacity and diligence than himself would bring to accomplish it.^ Nay, Pothier insists, that he is sometimes responsible even for accidents ; as when he undertakes to engage in some business which the princi- pal has not been accustomed to do, and a loss occurs to him thereby.* He deduces these conclusions, as the just results also of the Roman law. In that law the geneiial rule is: " Si negotia absentis et ignorantis geras, et culpam et dolum prsestare debes." ° And it is not sufJficient in all cases, that he applies the same diligence as he does in his own affairs. " Quo casu ad exactissimam quisque diligentiam compellitur reddere rationem ; nee sufificit talem diligentiam adhibere, qualem suis rebus adhibere solet, si modo alius diligentior eo commodius administraturus esset negotia."® So, where he engages in new business to which the principal is not accus- tomed, he is liable; for, it is treated as an improper act. " Culpa est, immiscere se rei ad se non pertinenti." ^ Labeo, 1 Pothier, Contrat de Mandat, n. 200, 201, 202, 212. 2 Pothier, Contrat de Mandat, n. 37, 46, 47, 48, 208 ; ante, § 174. 8 Pothier, Contrat de Mandat, n. 209. * Pothier, Contrat de Mandat, n. 210. 6 pig. Lib. 3, tit. 5, 1. 11 ; Pothier, Pand. Lib. 3, tit. 5, n. 51. « Inst. Lib. 8, tit. 28, § 1. 'Dig. Lib. 50, tit. 17, L 86; Pothier, Pand. Lib. 8, tit. 5, n. 52. 184 ON MANDATES. [CH. m. however, thought (and Pothier agrees with him), that where a friend interferes in a case of seeming necessity for the principal, as to prevent his goods from being sold, he is not responsible, except for bad faith or fraud. " Interdum in Negotiorum Gestorum actione Labeo scribit, dolum solum- modo versari. Nam, si affectione coactus, ne bona mea dis- trahantur, iiegotiis te meis obtuleris, eequissimum esse, dolum duntaxat te prsestare."-' § 189 h. The law of Louisiana has generally adopted the same rules on the subject of the rights and duties of the Negotiorum Gestor as the civil law.^ The Civil Code declares that, when a man undertakes, of his own accord, to manage the affairs of another, whether the owner be acquainted with the undertaking, or ignorant of it, the person assuming the agency contracts the tacit engagement to continue it, and to complete it, until the owner shall be in a condition to attend to it himself. He assumes, also, the payment of the expenses attending the business. He incurs all the obligations which would result from an express agency, with which he might have been invested by the proprietor. In managing the busi- ness, he is obliged to use all the care of a prudent adminis- trator or -father of a family. Yet, where circumstances of friendship or of necessity have induced a person to undertake the management, that consideration may authorize the judge to mitigate the damages, which may arise from the faults or negligence of the manager.^ So that, according to this law, a Negotiorum Gestor is bound to observe the ordinary diligence and care which may be expected from the prudent master of a family. Whoever wishes for more exact information upon this title of the Roman law (Negotiorum Gestorum') will find it 1 Dig. Lib. 3, tit. 5, 1. 3, § 9 ; Pothier, Pand. Lib. 3, tit. 5, n. 52. ^ [See Wilson v. Wilson, 16 La. Ann. 156; Lafourche Navigation Co. V. Collins, 12 Id. 119.] 2 Code of Louisiana of 1825, art. 2275; Bayon v. Prevot, 4 Mart. 58, 65; Hodge's Heirs v. Durnford, 13 Mart. 100, 124. The recent edition of this code, by Wheelock S. Upton, Esq. (in 1838), is incompa- rably the best, and contains exceedingly valuable, though brief commen- taries, drawn from the State decisions and from foreign authorities. It must be invaluable to students, and I take this occasion to say, that I have constantly referred to this edition in the present volume. CH. in.] ON MANDATES. 185 treated with uncommon fulness and accuracy by the learning of Pothier.i But it is so remote from the jurisprudence of the common law, that it does not seem important to review it in this place, with its various distinctions. § 190. There is a case which has undergone a decision in our law, which approaches very near to that of a Negotiorum Gestor. A master of a ship had gratuitously taken charge of and received on board of his vessel, a box containing doubloons and other valuables, belonging to a passenger, who was to have worked his passage, but was accidentally left behind. During the voyage, the master opened the box in the presence of the passengers, to ascertain its contents, and whether there were contraband goods in it or not ; and he took out the contents and lodged them in a bag in his own chest in his cabin, where his own valuables were kept. After his arrival in port, the bag was missing. The master was held responsible for the loss, on the ground that he had imposed upon himself the duty of carefully guarding against all perils to which the prop- erty was exposed by means of the alteration in the place of custody, although, as a bailee without hire, he might not other- wise have been bound to take more than a prudent care of them ; and that he had been guilty of negligence in guarding the goods.^ § 191. We come, in the next place, to the implied obligation of the mandatary to render an account. And here the Roman law, the law of France, and of other modern nations, whose jurisprudence has been derived from that source, and the com- mon law, generally recognize the same doctrine, and proceed pari passu. The mandatary is bound to render to the man- dator, upon request, a full account of his proceedings ; to show that the trust has been duly performed ; or, if ill performed, to offer a justification or legal excuse for such ill performance. If the property is to be restored to the bailor after the work is done, then such restitution is included in the mandatary's duties. If by his fraud, or gross negligence, or misuser, the mandatary 1 Pothier, Contrat de Mandat, n. 167 to 228. 2 Nelson v. Macintosh, 1 Stark. 237. The case stated by Lord Ellen- borough, in Drake v. Shorter, 4 Esp. 165, and cited post, § 214, seems to approach still more nearly to that of a Negoliorum Gestor. 186 ON MANDATES. [CH. lU. has made himself liable in damages, he must pay these dam- ages.' Of course the form and mode in which the remedies of the bailor are to be enforced, in case of any fault committed by the mandatary, for which he is responsible, will depend upon the municipal law of the particular country. In the Roman law, and the foreign law derived from it, the remedy would ordinarily be the Actio mandati directa, which is one of the nominate forms of that law.^ In the common law it would be either an action founded on the contract, such as an action of assumpsit, or an action founded on the tort, such as an action on the case for misfeasance, or negligence, or conversion. § 192. It has been asked, whether a general mandatary can recoup or set off in damages the benefits which the mandator has received on one mandate, against the losses which he has sustained on another. Pothier decides the question in the same manner as, it is presumed, the common law would decide it, that he cannot.^ But if, upon a mandate of a package of goods, a part be injured by the inexcusable negligence of the mandatary, and extraordinary profit be made upon the rest by his extraordinary diligence, it might deserve consideration, whether the damage should exceed what, upon an average of the whole, might be deemed the fair profit, which would have accrued, if the mandatary had used ordinary care and diligence throughout. § 193. Of course, in rendering an account, the mandatary is entitled to deduct and receive an allowance for all expenses and charges, to which he has been necessarily subjected in performing the trust. But the consideration of this subject will fall more properly under another head.* § 194. In making restitution of the propert}'- bailed, when that constitutes a part of the duty of the mandatary, he is not only bound to restore the thing specially, but also the incre- 1 Pothier, Contrat de Mandat, n. 61; Pothier, Pand. Lib. 17, tit. 1, n. 25 to 30, 36. 2 Pothier, Contrat de Mandat, n. 61 to 66; Pothier, Pand. Lib. 17, tit. 1, n. 23 to 41. » Pothier, Contrat de Mandat, n. 52; Story on Agency, § 223; 1 Liv- ermore on Agency, p. 394. 4 Post, § 196, 197 to 200. CH. III.] ON MANDATES. 187 ments, earnings, and gains derived from it.^ If animals are to be restored, their young also belong to the bailor. If gold or silver coins have been delivered, to be made interest of, and to be specifically returned, the interest is to be accounted for as well as the principal. If a vehicle has been delivered to be let for hire, the mandatary must account for the hire earned, as well as for the vehicle. These principles are founded on the Roman law, where the general rule is laid down : " Ex man- date, apud eum, qui mandatum suscepit, nihil remanere opor- tet;"2 and they seem of general applicability in the common law. § 195. If there are joint mandataries, each is responsible for the whole in solido. If there are joint mandators, the account must be rendered to them all jointly. But these are points of pleading and practice in the common law, and more properly belong to a general treatise on the proper parties to suits, than to one on a single branch of contracts.^ § 196. We come next to the consideration of the obligations of the mandator, arising from the contract of mandate. And here little more remains than to state the doctrines of the Roman and Continental law, the common law having, as yet, furnished no decisions which go to the point. What is here stated can therefore be relied on only as the reasoning of learned minds on a similar subject, which, in the absence of all posi- tive adjudications, may not be unfit to be submitted to the con- sideration of the professors of the common law. The manda- tor, then, contracts to reimburse the mandatary for all expenses and charges, reasonably incurred in the execution of the man- date, and also to indemnify him for his liability on all contracts, which arise incidentally in the proper discharge of his duty. This is called, in the Roman law, Obligatio mandati contraria, because it is reciprocal, and incidental to that of the manda- 1 Pothier, Contrat de Mandat, n. 58, 59 ; 2 Kent, Comm. Lect. 40, p. 566, 567, 4th edit. ; ante, § 99. 2 Dig. Lib. 17, tit. 1, 1. 20; Pothier, Pand. Lib. 17, tit. 1, n. 31 to 34. * Jones on Bailm. 51, 52; Pothier, Contrat de Mandat, n. 63; 1 Domat, B. 1, tit. 13, § 2, art. 5; Pothier, Pand. Lib. 17, tit. 1, n. 24; Ersk. Inst. B. 3, tit. 3, § 34; 2 Kent, Comm. Lect. 40, p. 567, 4th edit.; ante, § 114-116. 188 ON MANDATES. [CH. m. tary, which is deemed the principal obligation, and is therefore called, Ohligatio mandati directa.^ § 197. First, in relation to expenses. It is obvious that, if the bailor contemplates any thing to be done on his goods by which the mandatary must or may incur expenses, he is bound to reimburse him ; for it can never be presumed that a gratuitous trust is designed to be a burden on the mandatary. Thus, if a party requests a friend to receive his goods, and enter them at the custom-house, and pay the duties thereon, an implied obligation arises to reimburse him the amount of the duties, and the other incidental expenses and charges upon the entry. If a party requests a friend to carry goods for him in a stage-coach to another town, for which goods carriage-hire is usually paid, a like duty to pay the bill is presumed. And even if the expenses should exceed what the owner himself would have paid, still, if they are such as were reasonably incurred, he is liable therefor ; and under particular circum- stances he may also be compellable to pa}' interest thereon.^ It will make no difPerence, that the mandator has not derived the expected benefit from the execution of the trust, if it is not oc- casioned by the default of the mandatary.^ It follows of course from what has been said, that, if the expenses are unnecessary or extravagant, or arise from the gross negligence or fraud of the mandatary, or from his exceeding his authority, they are not reimbursible.* § 198. Secondly. As to indemnity for incidental contracts made by the mandatary. This is obviously founded on the same general principles of justice, and the presumed intention of the parties, as the reimbursement of expenses. If A. re- quests B. to take a package of goods with him as a favor in a ' Pothier, Contrat de Mandat, n. 68, 82. 2 1 Domat, B. 1, tit. 15, § 2, art. 2, 3; Dig. Lib. 17, tit. 1, 1. 10, § 9; Id. 1. 27, § 4; Id. 1. 12, § 9; Pothier, Contrat de Mandat, n. 69, 78, 79; Pothier, Pand. Lib. 17, tit. 1, n. 53, 54, 55, 56, 58, 59. 8 1 Domat, B. 1, tit. 15, § 2, art. 2; Cod. Lib. 4, tit. 35, 1. 4; Code Civil of France, art. 1999 ; Pothier, Pand. Lib. 17, tit. 1, n. 53, 54, 59, 63, 64, 67, 68, 69, 70, 79. * 1 Domat, B. 1, tit. 15, § 2, art. 2; Pothier, Contrat de Mandat, n. 3, 78, 79; Pothier, Pand. Lib. 17, tit. 1, n. 53 to 69; Pelletier v. Roumage, 2 Miller's La. 528; {Harter v. Blanchard, 64 Barb. 817.} CH. in.] ON MANDATES. 189 ship in which B. is bound from Liverpool to Boston, and B. engages with the master to pay the freight thereof, A. is bound to indemnify B. for entering into the contract. So, if B. in the same case gives a bond at the custom-house for the duties, A. is bound to indemnify him therefor. So, if A. requests B. to carry his chaise to Boston, and procure it to be repaired there by some proper artisan, and B. contracts to pay the repairs, A. is bound to indemnify him. But in all such cases the contract must be reasonably and properly entered into by the mandatary; and no presumption must arise from the circumstances, that no indemnity is expected or intended between the parties. For the parties are at liberty to waive such compensation, or to decline entering into a stipulation of indemnity. If a father says to his son, I will take your chaise to Boston, and have it repaired at my own expense, no contract to indemnify the father arises. But if the right to compensation or indemnity exists, then it is not material, that by some accident the man- dator has not derived the contemplated benefit from the act ; as if his chaise, sent to be repaired, is burnt up, or is acci- dentally destroyed, before it is returned to him.^ § 199. It follows, from the like considerations, that all con- tracts made with third persons by the mandatary in the exe- cution of his agency, and within the scope of his authority, are binding upou the bailor, and must be fulfilled by him, when he is made a contracting party. Pothier has under this head discussed many questions as to the extent, scope, and limits of the agency, and how far the acts of the agent bind the bailor.^ But discussions of this nature more properly fall, in our law, under the general head of agency, than under the particular contract of bailment. § 200. Thirdly. Another question is, how far the manda- tor is bound to indemnify the mandatary for any losses or in- juries sustained by him in the execution of the trust. Now, upon this subject, the Roman law and the foreign law contain some very nice distinctions. The general rule seems to be, that the mandator is bound to indemnify the mandatary against 1 Pothier, Contrat de Mandat, n. 80, 81; Dig. Lib. 17, tit. 1, 1. 45; {Harfer v. Blanchard, 64 Barb. 617.} 2 Pothier, Contrat de Mandat, n. 90 to 100. 190 ON MANDATES. [CH. HI. all losses and injuries, the proximate cause of which can be directly traced to the execution of the mandate ; but not for losses and injuries of which the mandate was merely the occa- sion.' Thus, in the Roman law it is said, that if A. is plun- dered b}^ a slave, whom he has been requested by B. to buy and bring to him, B. is responsible for the loss, although he was ignorant that the slave was a thief, if the loss was not occasioned by any default of the mandatary.^ Pothier says, that the distinction between the cause and the occasion of a loss is most important to be attended to ; and he puts several cases to illustrate it, some of which he borrows from the Ro- man law.^ Some of these cases furnish matter of much nice and curious reasoning, and deserve the attention of critical jurists. But it will be sufficient to illustrate his meaning by a few obvious cases. If A. undertakes to carry money gra- tuitously for B. to another place, and the journey is undertaken wholly on B.'s account, and A. is robbed of his own money) as well as of B.'s, on the journey, there the loss must be borne by B. ; for the mandate is the cause of the loss. So if A. were going the same journey by another road, less infested by rob- bers, and he takes a particular road solely for B.'s accommo- dation, there B. must bear the loss. But if A. were making the same journey on his own account, or were bound to the same place, and there was no choice of roads, or one was not more dangerous than another, there the loss must be borne by A. ; for there the mandate is not the cause, but the occasion, of the loss. So, in a case of shipwi-eck, if it happens in pass- ing a river, at a place which the mandatary is accustomed to pass on his own business, there it cannot be said that the ex- ecution of the mandate, with which he is intrusted at the same time, is the cause of the loss which is sustained by the shipwreck. It is but the occasion. " Hsec magis casibus, quam mandato, imputari oportet." * But if the loss happens in the 1 Pothier, Pand. Lib. 17, tit. 1, n. 61. 2 Dig. Lib. 47, tit. 2, 1. 61, § 5; Pothier, Contrat de Mandat, n. 75; Pothier, Pand. Lib. 17, tit. 1, n. 60, 61. 8 Pothier, Contrat de Mandat, a. 75-77; Pothier, Pand. Lib. 17, tit. 1, n. 61, 62. ■> Pothier, Contrat de Mandat, n. 76; Dig. Lib. 1, tit. 1, 7, 1. 26, § 6. CH. in.] ON MANDATES. 191 course of a navigation, to the risk of which the mandatary is exposed solely in the execution of the trust, and to which he ■would not otherwise be exposed, there the mandate is to be considered the cause of the loss. But even in such cases, the loss of such goods or things only as are indispensable for the voyage or journey are to be repaid, and not of such as are carried for the mere pleasure or profit of the mandatary.^ § 201. How far any of these doctrines are or would be adopted into our law, cannot be satisfactorily answered by adjudged cases ; for none can be found. Doctor Paley has, however, discussed the same points ; and it seems fit, in the absence of all authorities, to lay before the reader the opinion of this eminent divine. " The agent," says he, " may be a sufferer in his own person or property by the business he un- dertakes. As where one goes a journey for another, and lames his horse, or is hurt himself by a fall on the road ; can the agent in such case claim a compensation for the misfortune ? Unless the same be provided for by express stipulation, the agent is not entitled to any compensation from his employer on that account. For where the danger is not foreseen, there can be no reason to believe that the emploj'cr engaged to in- demnify the agent against it. Still less, where it is foreseen ; for whoever knowingly undertakes a dangerous employment, in common construction, takes upon himself the danger and the consequences. As where a fireman undertakes for a re,- ward to rescue a box of writings from the flames, or a sailor to bring off a passenger from a ship in a storm." ^ In such a case, however, one would incline to say with Pothier, that, if there is no legal obligation to indemnify, there is a strong moral claim upon the party from propriety and humanity to do so.^ § 202. We next come to the inquiry, in what manner the contract of mandate maybe dissolved. (1) And, in the first place, it may at the common law be dissolved by the renunci- 1 Pothier, Contrat de Mandat, n. 75-77; 1 Domat, B. 1, tit. 15, § 2, art. 6 ; Code Civil of France, B. 3, tit. 13, art. 2000. See also, Heinec. Pand. Lib. 17, § 234. "" Paley's Moral Phil. B. 3, P. 1, ch. 12. « Pothier, Contrat de Mandat, n. 76. 192 ON MANDATES. [CH. III. ation of the mandatary, at any time before he has entered upon its execution ; although the rule of the Roman and for- eign law is (as we have seen), under some circumstances, dif- ferent.^ But in this case, as indeed in all others where the contract is dissolved before the act is done, which the parties intended, the property bailed is to be restored to the manda- tor.2 (2) In the second place, it is, or may be, dissolved by the death of the mandatary ; for, being founded in personal confidence, it is not presumed to pass to his representatives, unless there is some special stipulation to that effect.^ But this principally applies to cases where the mandate remains wholly unexecuted ; for, if it be in part executed, there may, in some cases, arise a personal obligation on the part of the representatives to complete it.* As, for example, if A. has bought books for B. at his request, to be sent to B. at Wash- ington, and the books are bought, and before they are sent to Washington A. dies, the representative of A. is bound to send them. At least, such is the doctrine of the Roman and foreign law.^ If there are joint mandataries, the death of one of them dissolves the contract as to all, according to the French law.^ At the common law the rule will be the same, whenever the bailment is of a nature which requires the united advice, confidence, and skill of all, and may, there- fore, be deemed a joint personal trust to all. The general rule of the common law is, that an authority to two cannot 1 Ante, § 164, 165; post, § 208; Story on Agency, § 462, 478, 479; Pothier, Pand. Lib. 17, tit. 1, n. 80 ; Pothier, Contrat de Mandat, n. 38, 44; 2 Kent, Comm. Lect. 40, p. 569-571; Code of Louisiana of 1825, art. 3000; 1 Bell, Comm. § 413, 4th edit. ; 1 Bell, Comm. p. 488, 5th edit. ^ See also Pothier, Contrat de Mandat, n. 38 to 46. * 2 Kent, Comm. Lect. 41, p. 643, 644, 4th edit. ; Story on Agency, § 488, 491, 492, 493, 494; Pothier, Contrat de Mandat, n. 100, 101; Code of Louisiana of 1825, art. 2996; Pothier, Contrat de Mandat, n. 80; Ersk. Inst. B. 3, tit. 3, § 40. " 2 Kent, Comm. Lect. 41, p. 643, 644, ;4th edit. See Story on Agency, *i i 65, 466. * Pothier, Contrat de Mandat, n. 101 ; Pothier, Pand. Lib. 17, tit. 1, n. 80; 2 Kent, Comm. Lect. 41, p. 643, 644, 4th edit.; Ersk. Inst. B. 3, tit. 3, § 40. 8 Id. n. 102; 2 Kent, Comm. Lect. 41, p. 643, 644, 646, 4th edit. CH. in.] ON MANDATES. 193 be executed, except by both ; and if one refuse, or die, the authority is gone ; for in such cases the authority is construed strictly. Therefore, generally, an authority given to A., B., and C, to sell a thing, is gone by the death of either of them.^ But suppose goods are sent to a partnership at Boston, to be by them sent to New Orleans, and they gratuitously undertake to forward them, and then one of the partners dies ; is the mandate at an end, it being an act in its own nature requiring no peculiar personal confidence or skill ? Suppose goods sent to a partnership to sell gratis, and one partner dies ; is the power to sell necessarily gone, or may it be construed by implication to survive ? These questions are put merely for consideration ; as they do not appear to have been decided by any direct authority .^ But where the au- thority is joint and several, there the death of one mandatary does not revoke the authority of the others to act.* § 203. The death of the mandator, in like manner, puts an end to the contract ; the rule of the common law being, on this point, coincident with that of the Roman law : " Manda- tum, re integrS,, domini morte finitur." * And in like manner, if a power of substitution be allowed by the original mandate, the substitution ceases with the death of the mandatary who made it, unless, indeed, the nature of the substitution pro- vided for be such that the substitute becomes the direct agent of the mandator, in lieu of the mandatary." § 204. But although an unexecuted mandate ceases with the death of the mandator, yet, if it is executed in part at that 1 See Co. Litt. 112 b; Id. 181 b; Comm. Dig. Attorney, C. 8; Bac. Abridg. Authority, C; 2 Kent, Comm. Lect. 41, p. 643, 644, 646, 4th edit. ; Story on Agency, § 488. 2 See 2 Kent, Comm. Lect. 41, p. 643, 644, 646, 4th edit. ; Wells i>. Koss, 7 Taunt. 403; Story on Agency, § 488 to 500. » Pothier, Contrat de Mandat, n. 102, 109. * Cod. Lib. 4, tit. 35, 1. 15; Huntu. Rousmaniere, 2 Mason, 342; s. c. 8 Wheat. 174; 2 Kent, Comm. Lect. 41, p. 643, 644, 646, 4th edit.; 1 Domat, B. 1, tit. 15, § 4, art. 6-8; Pothier, Contrat de Mandat, n. 103 ; Story on Agency, § 469; Pothier, Pand. Lib. 17, tit. 1, n. 76; Ersk. Inst. B. 3, tit. 3, § 40, 41; Code of Louisiana (1825), art. 2996; 1 Bell, Comm. § 413, 4th edit. ; 1 Bell, Comm. p. 488, 5th edit. See Harper v. Little, 2 Greenl. 14. 6 Pothier, Contrat de Mandat, n. 105; Story on Agency, § 469, 490. 13 194 ON MANDATES. [CH. in. time, it is binding to that extent, and his representatives must indemnify the mandatary.^ And the civil law goes farther, and provides, that, if the mandatary in good faith acts after the death of the mandator, and in ignorance of that fact, his acts are binding upon the representatives of the mandator.^ And if the mandate be of a nature which admits of no delay, the mandatary may, in order to prevent a positive loss or injurjr, even with a knowledge of the death of the mandator, proceed to execute it, if there be no time to give notice to his representatives to act.^ As, if fruit is ordered to be sold in a foreign port, and it would perish before the proper orders from the administrators could be obtained, the mandatary would be justified in making a sale. In such a case the common law may not, perhaps, differ; since factors are not obliged to sell goods in the name of their principal, as mere agents ; but they are clothed with an implied authority to sell them in their own names, as persons having a general right of disposal thereof.* § 205. The common law, however, is, in some respects, different from the Roman law on this subject ; for although by that law an authority, coupled with an interest in the thing, may survive, yet a mere naked power or authority ordinarily dies with the party giving it.^ And there is no exception, even although the mandatary is ignorant of the death of the party .^ This seems to be a very rigid rule ; but it flows nat- urally from the doctrine, that the power to be executed can exist only while the party, in whose name it is to be done, is 1 Pothier, Contrat de Maudat, n. 101 ; Code of Louisiana (1825), art. 3001. 2 Pothier, Contrat de Mandat, n. 106; Dig. Lib. 27, tit. 1, 1. 26, 58; Pothier, Pand. Lib. 17, tit. 1, n. 77; 1 Domat, B. 1, tit. 15, § i, art. 7; Code Civil of France, art. 2008; Code of Louisiana (1825), art. 3001; Ersk. Inst. B. 3, tit. 3, § 40, 41. 8 Pothier, Contrat de Mandat, n. 107; Ersk. Inst. B. 3, tit. 3, § 40, 41. * Ibid. ; Story on Agency, § 492. ' Story on Agency, § 488-490 ; Hunt v. Rousmaniere, 8 Wheat. 174; s. c. 2 Mason, 244. 6 2 Kent, Comm. Lect. 41, p. 643, 644, 4th edit.; King v. Bedford Level, 6 East, 356; Hunt v. Rousmaniere, 2 Mason, 244; s. c. 8 Wheat. 174; Willes, 101, 103; 2 Ves. & B. 51; Wallace v. Cook, 5 Esp. 118; Story on Agency, § 488-490. CH. in.] ON MANDATES. 195 in existence. A dead man can do no act. Whether the civil law has not introduced a more equitable principle, is a point fairly open for consideration, and upon which much reasoning may be urged on both sides.^ § 206. In the third place, the contract of mandate may be dissolved by a change of the state of the parties. As, if either party, being a female, marries before the execution of the mandate ; or if either party becomes insane, or non compos mentis, or is put under guardianship, the mandate is dissolved.^ Pothier puts the case of the marriage of the mandator only.^ But the same rule would seem, ordinarily, to apply to the marriage of the mandatary ; since her husband's rights may be affected by her conduct.* The Roman law treats all these supervening disabilities as good causes of dissolution, subject, however, to the same exceptions as it recognizes in case of death.^ The common law, in like manner, deems the marriage of a woman to be a revocation of the antecedent authorities conferred by her on other persons ; for her acts may be to the prejudice of the husband's rights.^ But it does not appear to have ingrafted the same exceptions upon the rule, as the Roman law. § 207. The contract of mandate may also cease by a revo- cation of the authority, either by operation of law, or by the act of the mandator.-^ It ceases by operation of law, when the power of the mandator ceases over the subject-matter. As, if he be a guardian, it ceases as to his ward's property by the termination of the guardianship.^ So, if he sells the 1 See Story on Agency, § 488 to 500. ^ ibid. § 481. 8 Pothier, Contrat de Mandat, n. Ill ; 1 Bell, Comm. § 413, 4th edit. ; 1 Bell, Comm. p. 488, 489, 5th edit. * See Story on Agency, § 481; 2 Kent, Comm. Lect. 41, p. 645, 4th edit. 6 Pothier, Contrat de Mandat, n. Ill, 6 2 Roper, Hushand and Wife, 69, 73; Salk. 117; Bac. Abridg. Baron and Feme, E. ; 2 Kent, Comm. Lect. 41, p. 645, 4th edit. ; Story on Agency, § 481. {See Schouler, Dom. Rel. 74, 238.} ' Pothier, Pand. Lib. 17, tit. l,n. 79; Pothier, Contrat de Mandat, n. 112, 113 ; 2 Kent, Comm. Lect. 41, p. 643 to 646, 4th edit. ; 1 Bell, Comm. § 413, 4th edit. ; 1 Bell, Comm. p. 488, 489, 5th edit.; Ersk. Inst. B. 3, tit. 3, § 40, 41; Story on Agency, § 463 to 476. 8 Pothier, Contrat de Mandat, n. 112 ; Story on Agency, § 600. 196 ON MANDATES. [CH. III. property, it ceases upon the sale, if it is made known to the mandatary.^ § 208. By the Roman law, the contract of mandate also ceases, by the revocation of the authority by the mandator himself. In general, eveiy mandator may revoke a mere authority at his own will. " Extinctura est mandatum, finite voluntate." ^ And this revocation may be express, or it may be implied. The latter is quite as effectual as the former, if it be clearly manifested. As, if a mandator appoints another person to do the same act, this is an implied revocation.^ So an authority to act during the absence of a party is revoked by implication by his return, although it is not expressly limited to such return by its terms, if the intention be clear.* But, in such cases, the revocation is not complete until notice is given to the mandatary, whose acts still bind until such notice.^ But if the mandate is partly executed at the time, to that extent it is obligatory. Nay, by the Roman law, in such a case, the mandatary may, notwithstanding the rev- ocation, go on to do whatever necessarily follows from the antecedent part of the execution thereof.^ § 209. The common law, in many of these respects, coin- cides with the civil law. In general, the party giving an authority is entitled to revoke it. But if it is given as a part of a security, as if a letter of attorney is given to collect a debt, as a security for money advanced, it is irrevocable by the party, although it is revoked by his death.'^ 1 7 Ves. Jr. 276. j See Sohouler, Dom. Eel. 464. } 2 Dig. Lib. 17, tit. 1, 1. 12, § 16; Code Civil of France, art. 2003 to 2008; Pothier, Pand. Lib. 17, tit. 1, n. 79; Pothier, Contrat de Mandat, n. 113; 1 Bell, Comm. § 413, 4th edit. ; 1 Bell, Comm. p. 489, 5th edit. ■* Copeland v. Merc. Ins. Co., 6 Pick. 198; Pothier, Contrat de Mandat, n. 113-115. ^ Pothier, Contrat de Mandat, n. 119. 6 Id. n. 120; Salte v. Field, 5 Term R. 213; Bowerbank v. Morris, Wallace (U. S. Circ), 126; Morgan v. Stell, 5 Binn. 316; Code Civil of France, art. 2005; Code of Louisiana (1825), art. 2996, 2997; Story on Agency, § 470. f Pothier, Contrat de Mandat, n. 122 ; 2 Kent, Comm. Lect. 41, p. 644, 4th edit. ; Story on Agency, § 468 to 474. ' Hunt V. Rousmaniere, 2 Mason, 342; a. c. 8 Wheat. 174; Walsh v. CH. III.] ON MANDATES. 197 § 210. In cases of mandates, where the thing is to be deliv- ered to a third person, if the latter has no vested interest in it, the bailor may revoke the bailment at any time.^ And Avhenever a revocation takes place by the act of the party, it ordinarily suspends, by the common law, all future operations of the mandatary, under the power previously confided to him.2 § 211. Bankruptcj' of the mandator, also, generally operates as a revocation of the authority of the mandatary by the com- mon law as well as by the foreign law.^ Bankruptcy of the mandatary is, in like manner, a revocation by the foreign law.* But, at the common law, it is not necessarily a revocation of the mandate in all cases. Where the mandatary is to execute a mere authority, it seems not to be revoked, but where the act to be done may involve the receipt or expenditure of money on account of the mandator, it may, perhaps, be otherwise.^ § 212. There still remain a few points to be considered, before we close the subject of mandates. One is, upon whom the burden of proof lies, in cases where the bailor sues the mandatary on the ground of gross negligence. In respect to different sorts of bailees, different rules, as to the burden of proof, seem to be adopted in the common law on this point.^ Whitcomb, 2 Esp. 565; Bromley v. Holland, 7 Ves. 28; Lepard v. Ver- non, 2 Ves. & B. 51; Watson v. King, 1 Stark. 121; s. c. 4 Camp. 272; Story on Agency, § 488, 489. 1 1 Dane, Abr. ch. 12, art. 4, § 10; 2 Story on Eq. Jurisp. § 1045, 1046. 2 Story on Agency, § 466, 467, 468, 470. ' See Pothier, Contrat deMandat, n. Ill, 112; Code Civil of France, art. 2003; Code of Louisiana (1825), art. 2996; 1 Bell, Comm. § 413, 4th edit.; 1 Bell, Comm. p. 488, 489, 5th edit.; Minett o. Forrester, 4 Taunt. 541; Parker u. Smith, 16 East, 382; 2 Kent, Comm. Lect. 41, p. 644, 645, 4th edit. ; Story on Agency, § 482. * Pothier, Contrat de Mandat, n. 120. The Scotch law, on the whole subject of revocation, seems a mere transcript from the civil law. Ersk. Inst. B. 3, tit. 3, § 40. ^ gtory on Agency, § 486. « Jones on Bailm. 96, 98; Bennett v. Mellor, 5 Term R. 276, perBuller, J. ; Finucane v. Small, 1 Esp. 816; Murphy ». Staton, 3 Munf. 239; Bell V. Reed, 4 Binn. 127; 6 Johns. 160; Harris v. Packwood, 3 Taunt. 264; Marsh v. Home, 5 Barn. & Cress. 822; Forward v. Pittard, 1 Term R. 38; Piatt V. Hibbard, 7 Cowen, 497 and 500, note; post, § 213 and note, § 278, 339, 410, 454, 529. 198 ON MANDATES. [CH. III. The present remarks will, therefore, be confined to the case of mandataries. § 213. It may be proper to remark, that something may- depend upon the form of the action and upon the posture of the evidence at the trial, as well as upon the stage of the cause at which the question arises. It may possibly be different where a primd facie case, to support an action of trover, is made out at the trial, from what it would be in an action of assumpsit, or an action of the case founded on negligence. In the latter actions, the plaintiff must make out his case primd facie, as he charges it ; in the former, he may rely on an appar- ent conversion, or on a demand and refusal of the property, and thus put the other side on the defence. But, waiving all considerations of this sort, it seems a general principle of the common law, that every person is presumed to do his duty, until the contrary is established; and on this account, in many cases, the burden is on the plaintiff to negative this presump- tion by appropriate proofs. ^ How far this principle ought to govern in cases of bailment generally, deserves consideration.^ 1 Williams u. East India Company, 3 East, 192. In a recent case in New York, Beardslee v. Richardson, 11 Wend. 25, it was held that, where a mandatary had received a sealed letter, with money in it, to carry from New Orleans to New York, the plaintifE was not entitled to recover, with- out showing either that the letter had been opened by the mandatary, or had been lost by his gross negligence, or that, on a demand, he had re- fused to deliver it. If demanded, the mandatary would be bound to give some account of the loss, and to indemnify the plaintifE, unless he could show that the property was lost without gross negligence on his part. But suppose, when demanded, the mandatary should state, that he had not broken the seal, and that the letter was lost by accident, or stolen from him, and should narrate all the circumstances ; the question would then arise, whether they ought not to be deemed a part of the case, so as to entitle the mandatary to the benefit of the statement at the trial, as a part of the res gestce at the time of the demand and refusal. It would seem that he would be so entitled. Still, however, the jury would doubtless be at liberty to disbelieve the statement, or to find the mandatary guilty of gross negligence, if the circumstances did not, in their judgment, repel it. In Doorman v. Jenkins, 2 Adolph. & Ellis, 2.56, such evidence was admitted ; and yet the jury found the mandatary guilty of gross negli- gence. The like rule would apply to depositaries and borrowers. See a\so post, § 278, 339, 410, 454, 529. See Clark v. Spence, 10 Watts, 335. 2 Ibid. CH. ni.] ON MANDATES. 199 That gross negligence by a gratuitous bailee is a very repre- hensible neglect of duty, will scarcely be doubted. And it was accordingly deemed infamous in the Roman law.^ Under such circumstances, it may not be thought unreasonable, that the burden of proof of such negligence should be thrown upon the plaintiff.'^ § 214. A case of a somewhat anomalous character was once put by Lord Ellenborough, and deserves notice in this place. Suppose a chattel, as a boat, belonging to another person, be taken to do an act of charity (as to extinguish a fire), or to do an act of kindness to the party who is the owner of it (as to save his other property from the flames), and an injury or loss happens unintentionally to the thing in the use of it for this purpose ; how far would the party be responsible to the owner for such loss or injury ? Lord Ellenborough was of opinion that he would not be responsible in any manner for it.^ § 215. There are certain exceptions usually enumerated under the head of Mandates, in which the responsibility of the bailee for neglect is different from that which is ordinarily implied by law. Such are the cases of a special contract or engagement; an oiBcious voluntary offer by the mandatary; or an interest accruing to both parties from the particular bailment.* These cases do not, however, properly con- stitute exceptions from the general rule, but they rather furnish grounds for excluding its operation ; and what has been already said respecting them, under the head of De- posits, applies with equal force here, and needs not be re- peated.^ 1 Jones on Bailm. 62 ; Pothier, Contrat de Mandat, n. 65. 2 Ante, § 213, note (1); post, § 278, 339, 410, 454, 529; Beardslee v. Kichardson, 11 Wend. 25. See Clark v. Spenoe, 10 Watts, 335. ^ Drake b. Shorter, 4 Esp. 165; ante, § 190 and note. * Jones on Bailm. 63. 6 Ante, § 80 to 82. Mr. Chancellor Kent, in his Commentaries (2 Kent, Comm. Lect. 40, p. 572, 573), puts the case of a spontaneous and officious offer by a mandatary, in which he suggests, that he may be re- sponsible for slight neglect. It appears to me, that there is great diffi- culty in maintaining that doctrine ; and the learned author relies solely on Jones on Bailm. 48; ante, § 80 to 82. 200 ON MANDATES. [CH. III. § 216. A case falling practically under the last class of exceptions deserves attention. A conversation took place between A. and B. relative to the purchase of a slave of A. by B. ; and it was agreed between them, that B. should have the slave for a particular price, if, on trial and keeping him, he liked him. B. accordingly received the slave, and suffered him to go to a neighboring village the same evening, when the slave ran away. The question was, whether this permission on the part of the bailee was such a negligence as rendered him liable to the bailor. The court thought that it was not, any more than it would have been to suffer him to go on an errand for the bailee.^ This case seems one of mutual interest, rather than one of gratuitous bailment. § 217. But suppose a slave should be put into the custody of a friend, to be carried in a vessel from one port to another, and he should run away during the voyage ; would the friend be responsible, unless there had been gross negligence on his part, even if he did not take, as he might have done, greater precautions to prevent his escape ? Looking to the analogy furnished by other cases, it would probably be held that he would not be responsible for the loss.^ And this is certainly the doctrine of the courts of Louisiana, in cases of escape of a slave from the custody of a Negotiorum G-estor, who is held responsible only for ordinary care and diligence.* § 218. Here end these Commentaries on the subject of Man- dates, a contract on which, Sir William Jones has remarked, actions are very uncommon, for a reason not extremely flatter- ing to human nature; because it is very uncommon to under- take any oiEce of trouble without compensation.* Perhaps a 1 De Fonclear v. Shottenkirk, 3 Johns. 170. See post, § 577. 2 Beverly v. Brooke, 2 Wheat. 100; post, § 577. « Bayon v. Prevot, 4 Martin, 65; Code of Louisiana (1825), art. 2274, 2275 ; ante, § 189 b, and oases cited in Upton's edition of the Code of Louisiana (1825), art. 2275; [Swigert v. Graham, 7 B. Monr. 661. See further on the liability of bailees of slaves for their loss, Bowling v. Strat- ton, 8 Humph. 430; Harvey v. Epes, 12 Gratt. 153 (1855); Ford «. Sim- mons, 13 La. Ann. 397 (1858); Runyan v. Caldwell, 7 Humph. 134; Browne v. Johnson, 29 Texas, 40 (1867).] {But see amendments to U. S. Constitution, art. xiii.} * Jones on Bailm. 57. CH. III.] ON MANDATES. 201 large survey of human life might have furnished a more char- itable interpretation of this absence of litigation : first, because from the great facilities of a wide and cheap intercourse in modern times, there is the less reason to burden friends with the execution of such trusts ; and secondly, because in cases of loss, there is an extreme reluctance, on the part of bailors, to make their friends the victims of a meritorious, although, it may be, a negligent kindness. 202 ON GRATUITOUS LOANS. [CH. IV. CHAPTER IV. ON GRATUITOUS LOANS. [§ 219, 220. Gratuitous Loans, definition of. 221. No English word exactly expresses the meaning of Commodatum. 222. The use of the word " Loan " in this Treatise. 223. What is of the essence of a Gratuitous Loan. It must be Personal Prop- erty. 224. It must be absolutely gratuitous. 225. It must be for the use of the Borrower. 226. Joint use of Lender and Borrower, effect of. 227. Contract may be limited, or conditional, and during pleasure. 228. The thing loaned to be returned. Case of Mutuum. 229. Capacity to Contract. Loan must not be immoral. 230. Whether the Lender need be the absolute Proprietor. 231. The Rights of the Borrower. Use by him. 232. Limitation of Right to use. 233. Illustration of the Doctrine. 2.34, 235. When the Loan is Personal. Comment on Bringloe v. Morrice. 236. The Obligations of the Borrower, 237, 238. Degree of Diligence required of the Borrower. 238 a. Case of Accessories to the principal thing. 239. Degree of Diligence, how varied. Theft, when Borrower responsible for. 240. Borrower not liable for Accidents. 241. Except when he is in default. 242. 242 a. Loss by Robbery, when Borrower is responsible for. 243. Effect of Fraud and fraudulent Concealment. 244. Losses by Accident, in case of Ordinary or Extraordinary Use. 245. 246. In case of Eire, whether Borrower may save his own Goods in preference. 247. The doctrine of Sir William Jones and Pothier doubted and discussed. 248, 249. The same subject. Statement of the point in question. 249 a. The same subject. Different reasoning in case of Deposit. 249 6. The same subject. Test, whether there has been Negligence, against Superior Duty. 250. The same subject. Borrower need not make every possible Sacrifice to save Borrowed Goods. 251. The same subject. Principles of Morality. 252. Exceptions to the general rule of Diligence. Special Contract. 253. 253 a. Effect of Valuation of the Loan. The question one of Construction. 25.3 b. Diligence in case of a Precarium. 253 c. Diligence, what is required by the Scottish Law. 254. 255. The Use to be made by the Borrower. CH. rv.] ON GEATT7IT0US LOANS. 203 § 256. Expenses of Borrower, by whom to be borne. 257. The Restitution of the Loan, how and when. Rules of the Ciyil Law. 258. Rules of the Common Law. Of Revocation of Loan. 259. Effect of Delay in Restitution. 260. Accessorial things to be delivered back. 261. Place of Restitution. 262. To whom and by whom Restitution is to be made. 263. Special Excuses for non-return. 264. Borrower cannot detain for prior Debt. 265. To whom Restitution is to be made. 266. In case of Title by a Stranger. 267. In case of Joint Loan. 268. Condition in which the thing is to be returned. 269. How far receiving the thing back affects damages. Right of action for Injuries. 270. Obligations of the Lender. 271. As to the Use of the Thing. How far Bailment revocable. 272. Disturbance in use by a Stranger. 273. Reimbursement of Expenses by Lender at the Civil Law. 274. At Common Law. 275. Concealment of Defects by the Lender. 276. Restitution of thing, after paid for by Borrower. 277. Revocation of Loan by act of the Party, and by Death or Marriage. 278. Burden of Proof on whom, in case of Loss or Injury. 279. Borrower has no Special Property in the Loan. 280. But he has a Right of Action in certain cases. 281. 282. Comment on certain Positions in Rich v. Aldred (6 Mod. 216). 283. Comment on Seymour v. Brown, J as to mixture of chattels.} 284. Fungibles in Scottish Law, what are. 285. Conclusion of the head of Gratuitous Loans.] § 219. The next class of Bailments to be considered is that which, in the civil law, is called a Commodattjm, and which, for the want of a more appropriate term, Sir William Jones has, after the French jurists, called a loan for use QPret a Usage"), to distinguish it from a Mutuum, or loan for consump- tion. ^ He defines it thus : " Lending for use, is a bailment of a thing for a certain time, to be used by the borrower without paying for it." ^ In the civil law, it is defined to be the grant of a thing to be used by the grantee gratuitously for a limited time, and then to be specifically returned. " Commodata autem res tunc proprie intelligitur, si null4 mercede acceptS, vel constitute res tibi utenda data est. Gratuitum enim debet esse commodatum. Is, cui res aliqua utenda datur, id ^ Jones on Bailm. 64. See Monthly Law Magazine (London), April, 1839. 2 joneg ^n Bailm. 118, 217. 204 ON GEATTTITOUS LOANS. [CH. IV. est, commodatur, re obligatur." ^ Ayliffe says : " It is a grant of something, made in a gratuitous manner, for some certain use, and for a certain term of time, expressed or implied, to the end that the same species should be again returned or re- stored again to us ; and not another species of the same kind or nature ; and this in as good a plight as it was first deliv- ered." 2 § 220. Lord Holt has defined this bailment to be, when goods or chattels, that are useful, are lent to a friend gratis, to be used by him ; and it is called Commodatum, he adds, because the thing is to be restored in specie.^ Mr. Chancellor Kent, with his usual neatness, defines it to be a bailment or loan of an article for a certain time, to be used by the bor- rower without paying for the use.* § 221. It is unfortunate, that our language has no word which exactly expresses the meaning of the Roman word ; for the term " loan " is often employed to signify a lending upon interest, or a lending to be returned in kind.^ It would have been well if Sir William Jones had not scrupled to naturalize the name by calling it a commodate (as he has called Manda- tum a mandate), and thus to have made it as familiar in our law as commodate is in the Scottish law, to express the same contract.^ Ayliffe, in his Pandects, has gone further, and terms the bailor the coimnodant, and the bailee the commoda- tary,'' thus avoiding those circumlocutions, which, in the 1 Ayliffe, Pand. B. 4, tit. 16, p. 516 ; Inst. Lib. 3, tit. 15, § 2 ; Dig. Lib. 13, tit. 6, L 1; Id. 1. 17, 3; Pothier, Pand. Lib. 13, tit. 6, Introd.; 1 Domat, B. 1, tit. 5, § 1, art. 1 ; Wood, Inst. B. 3, ch. 1, p. 215 ; Heineo. Pand. Lib. 13, tit. 6, § 96; Pothier, Pand. Lib. 13, tit. 6, n. 1. 2 Ayliffe, Pand. B. 4, tit. 16, p. 516. » Coggs V. Bernard, 2 Ld. Raym. 909, 913. * 2 Kent, Comm. Leot. 40, p. 573, 4th edit. {Since the quid pro quo of hire is not necessarily a money payment, our courts incline to construe the bailment of a chattel into one of hiring rather than of borrowing, wherever some sort of consideration appears. See Carpenter v. Branch, 13 Vt. 161; Chamberlin v. Cobb, 32 Iowa, 161; Francis v. Shrader, 67 111. 272 ; post, § 377. } 5 Doct. & Stud. Dial. 2, ch. 38 ; Jones on Bailm. 64. « Ersk. Inst. B. 3, tit. 1, § 20; 1 Bell, Comm. § 197, 4th edit. ; 1 Bell, Comm. p. 225, 5th edit. ; 1 Stair, Inst. B. 1, tit. 11, § 1. ' Ayliffe, Pand. B. 4, tit. 10, p. 517. CH. IV.J ON GRATUITOUS LOANS. 205 common phraseology of our law, have become almost indis- pensable. § 222. In the subsequent remarks on this subject, this con- tract will be designated by the term " Loan," and the bailor will be called the lender, and the bailee the borrower, accord- ing to the known usage of our language. § 223. It follows, from the definition above stated, that sev- eral things are essential to constitute this contract. First. There must be a thing, which is lent ; and this, according to the civil law, may be either a thing movable, as a horse, or an im- movable, as a house, or land, or goods, or even a thing incor- poreal.i But in our law the contract seems confined entirely to goods and chattels, or personal property, and it does not extend to real estate. This is sufficiently apparent from the definition of Lord Holt.^ It must be a thing lent, in contra- distinction to a thing deposited, or sold, or intrusted anotlier for the sole benefit or purposes of the owner.^ § 224. Secondly. It must be lent gratuitously ; for if any compensation is to be paid in any manner, whatsoever, it falls under another denomination, that of hire.* Therefore, if A. lends B. his oxen for a week, under an engagement that B. shall lend A. his oxen in return for another week, this is not a Commodatum, but a contract for hire.^ § 225. Thirdly. It must be lent for use, and for the use 1 Ayliffe, Pand. B. 4, tit. 16, p. 517; Dig. Lib. 13, tit. 6, 1. 1, § 1; Pothier, Pr^t a Usage, n. 14; 1 Domat, B. 1, tit. 5, § 1, art. 5; Pothier, Pand. Lib. 13, tit. 6, 1. 1, § 1 ; Pothier, Pr6t k Usage, n. 2. 2 2 Ld. Raym. 913. * [In a very recent English case the question arose whether the law as to the liability of gratuitous bailees of personal property, for injury to the thing loaned, applied to a loan of a building. The plaintiff loaned his shed to the defendant to make a signboard therein, and the defendant's servant set fire to the shed by dropping alighted shaving with which he was lighting his pipe. It was held that the defendant was not liable; as the loan of the shed was a mere license to use the shed, revocable at any time. Williams v. Jones, 3 H.& C. 256; affirmed in Exchequer Chamber, Id. 602.] {But as to the distinction between real and personal property with refer- ence to things placed upon or in the soil, see 1 Sch. Pers. Prop. 25, 31. j * Ayliife, Pand. B. 4, tit. 16, n. 516; Dig. Lib. 19, tit. 5, 1. 17, § 3; 1 Domat, B. 1, tit. 5, § 1, art. 1 ; Pothier Pret4 Usage, n. 3. 6 Pothier, Pr6t a Usage, n. 2, 3, 11; Dig. Lib. 19, tit. 5, 1. 17, § 3. 206 ON GRATUITOUS LOANS. [CH. IV. of the borrower. It is not material, whether the use be ex- actly that which is peculiarly appropriate to the thing lent, as a loan of a bed to lie on, or a loan of a horse to ride. It is equally a loan, if the thing is lent to the borrower for any other purpose, as to pledge as a security on his own account.^ But it is said in the Roman and foreign law, not to be a loan, if the lender himself, at the request of the borrower, directly pledges the property to a creditor of the borrower, as security for his debt ; for then it is properly a mandate.^ This, at least, in our law, may often turn upon a nice question of evi- dence, as to the intent of the parties, whether it be to create a loan or a mandate. § 226. The use, also, must be the principal object, and not merely accessorial ; for a pawnee, or depositary, may be at liberty to use the thing bailed, or even bound so to do, if necessary for its due preservation.^ If the use be jointly for the benefit of the borrower and lender, it is no longer a loan. As if A. and B. are about to make a common entertainment for their mutual friends, at their joint expense, at B.'s house, and A. lends a service of plate to B. for the occasion; it is not strictly a loan, but an innominate contract, where ordinary diligence only is required.* So, if the goods are lent for the sole benefit or gratification of the lender, the borrower will not be liable, except for gross neglect ; as if a person passion- ately fond of music, for his own gratification at a concert, were to lend his own instrument to a player, and it were injured, without any gross negligence or wantonness, by the player, he would not be liable for the injury. But if it were lent for their joint benefit and gratification, then he would be bound to ordinary diligence at least, and he would be liable for ordinary neglect.^ 1 Pothier, Pr^t a Usage, n. 2, 5; 1 Domat, B. 1, tit. 5, § 1, art. 6; Dig. Lib. 13, tit. 5, 1. 5, § 12. - Pothier, Pret A Usage, n. 2 ; Dig. Lib. 13, tit. 6, L 5, § 12. 3 Post, § 329 to 332. ^ Jones on Bailm. 72; AyUfCe, Pand. B. 4, tit. 16, p. 517; Dig. Lib. 13, tit. 6, 1. 18; 1 Domat, B. 1, tit. 5, § 1, art. 6, 12; Pothier, Pret k Usage, n. 51. ^ Jones on Bailm. 73; 1 Daue, Abridg. ch. 17, art. 2, §2. [See Car- penter V. Branch, 13 Vt. 161.] CH. IV.J ON GRATUITOUS LOANS. 207 § 227. But the rights of the borrower are strictly confined to the use actually or impliedly agreed to by the lender, and cannot be lawfully exceeded.^ The use may be for a limited time, or for an indefinite time. If it is for an indefinite time, but at the mere pleasure of the lender, it would in the civil law fall under the denomination of a Precarium, or a bailment at will. " Precarium est, quod precibus petenti utendum conceditur tamdiu, quamdiu is, qui concessit, pati- tur. Qui precario concedit, sic dat, quasi tunc recepturus, cum sibi libuerit precarium solvere." ^ And this distinction between an ordinary loan and a Precarium gave rise in the Roman law to very different obligations on the part of the borrower, as to his responsibility for care and diligence.^ But it would, in our law, still remain a loan. § 228. Fourthly. The property must be lent to be spe- cifically returned to the lender at the determination of the bailment; and in this respect it differs from a Mutuum, or loan for consumption, where the thing borrowed, such as corn, wine, oil, or money, is to be returned in kind.* " Mutui autem datio consistit in his rebus, quse pondere, numero, mensur&ve constant ; veluti vino, oleo, frumento, pecuniS. numerate ; quas res in hoc damns, ut fiant accipientis ; postea alias recepturi ejusdem generis et qualitatis." ^ It follows, that a loan can never be of a thing which is to be consumed by the use ; as if wine is lent to be drunk at a feast, even if no return in kind is intended, unless, perhaps, so far as it is not drunk ; for as 1 Pothier, Pr6t k Usage, n. 5, 21 ; 1 Domat, B. 1, tit. 5, § 1, art. 9, Introd., and § 2 ; post, § 232, 255 ; 2 Kent, Comm. Lect. 40, p. 573, 574, 4th edit. 2 Aylifie, Pand. B. 4, tit. 16, p. 516 ; Dig. Lib. 43, tit. 26, 1. 1, § 1, 2; 1 Domat, B. 1, tit. 5, § 1, art. 2; Id. § 3, art. 2; Pothier, Pret k Usage, n. 86-88; 1 Stair, Inst. B. 1, tit. 11, § 11; Ersk. Inst. B. 3, tit. 1, § 25. 8 Pothier, Pret k Usage, ii. 96; post, § 253 a; 1 Domat, B. 1, tit. 5, § 3, art. 2; Ersk. Inst. B. 3, tit. 1, §25. ^ Jones on Bailm. 64; Pothier, Pr6t a Usage, n. 4, 10, 17; Aylifie, Pand. B. 4, tit. 16, p. 517; 2 Kent, Comm. Lect. 40, p. 573, 4th edit.; 1 Domat, B. 1, tit. 5, § 1, art. 3, 6; 1 Dane, Abridg. ch. 17, art. 11; ante, § 47; post, § 283, 284; 1 Stair, Inst. B. 1, tit. 11, § 1, 2; Pothier, Pret de Consumption, n. 4 to 7 ; Id. n. 22 to 24. 6 Dig. Lib. 44, tit. 7, 1. 1, § 2; Dig. Lib. 12, tit. 1, L 1, § 2; Pothier, Pand. Lib. 12, tit. 1, n. 19. 208 ON GRATTJITOUS LOANS. [CH. IV. to all the rest, it is strictly a gift.^ " Non potest commodari id (says the Roman law), quod usu consumitur, nisi forte ad pompam vel ostentationem quis accipiat." ^ § 229. As to the persons between whom a gratuitous loan may be contracted. In general, the contract may be said to arise between any persons who have a legal capacity to con- tract. But in respect to idiots, lunatics, and married women, it cannot arise, unless, in the latter case, it is with the consent of her husband ; in which event it binds him, but not her. In respect to minors, the contract is not absolutely void ; but it is voidable at his election. ^ The contract must also be of a legal nature ; for if it is immoral, or against law, it is utterly void. But on these points we need not dwell, since they belong to the law of contracts generally, and are suificiently explained in other places.* The same principles, in most if not in all these respects, apply in the Roman and foreign law ; and Pothier deduces them from the general analogies which govern in other cases of contracts.^ § 230. It is not necessary, that the lender should be the absolute proprietor of the thing ; it is sufficient, if he have either a qualified or a special property therein, or a lawful pos- session thereof.^ " Commodare possumus alienam rem, quam possidemus, tametsi scientes alienam possidemus." " The Roman and foreign law carry this doctrine a step further ; for it is there held, that even a thief may make a valid loan of the thing stolen, which the borrower will be bound to return, in the same manner as if the lender were the bond fide owner.* 1 Dig. Lib. 13, tit. 6, 1. 3, § 6. See 1 Domat, B. 1, tit. 5, § 1, art. 6 ; Pothier, Pr^t k Usage, n. 17 ; Ayliffe, Pand. B. 4, tit. 16, p. 517. 2 Dig. Lib. 13, tit. 6, 1. 3, § 6; Pothier, Pr6t k Usage, n. 17. {A mu- luum is no bailment at the common law. See 2 Sch. Pers. Prop. 704; Lonergan u. Stewart, 55 111. 44; Hurd v. West, 7 Cow. 752; Chase u. Washburn, 1 Ohio St. 244.} 8 Ante, § 50, 182; pos^ § 302, 380. { See Hagebush v. Ragland, 78 111. 40. j * Ante, § 158 ; post, § 379. {The contract of loan must be voluntarily entered into ; and to extort by force is not borrowing. State v. Bryant, 74 N. C. 124.} 6 Pothier, Prfit a Usage, n. 13, 15 ; Pothier on Oblig. n. 49 to 52. ° 1 Domat, B. 1, tit. 5, § 1, art. 7; Pothier, Pret a Usage, n. 18. ' Dig. Lib. 13, tit. 6, § 15, 16. 8 Pothier, Pr6t k Usage, n. 18, 46; Dig. Lib. 13, tit. 6, 1. 15, 16; 1 Do- mat, B. 1, tit. 5, § 1, art. 7; post, § 266. CH. IV.] ON GEATUITOUS LOANS. 209 But this doctrine is to be received with the qualification, that the contract is valid as between the parties, and not as to the real owner.^ And, although a man cannot generally become a borrower of his own goods, so as to bind himself by the con- tract, whether the fact of his ownership be known or unknown to him at the time, according to the maxim, " Commodatum rei suae esse non potest ;"2 yet, where the lender has a special property, or a lien on them, he may lend them to the general owner for a particular or temporary use ; and the contract of loan, with its accessorial obligation to return it, will henceforth arise. ^ § 231. In the next place, let us consider what are the rights which the contract of loan confers on the borrower. In general, it may be said that the borrower has the right to use the thing during the time and for the purpose which was intended be- tween the parties. During this period and continuance of the use, the lender, according to the Roman law, is bound to suffer it to remain in the possession of the borrower, unless it be the case of a mere Precarium.* Of this more will be said hereafter. § 232. But the right of using the thing bailed is strictly confined to the use expressed or implied in the particular transaction.^ And the borrower, by any excess, will make himself responsible. If, therefore, A. lends B. his horse to ride from Boston to Salem, B. has no right, however urgent his business may be, to ride with the horse to Newburyport.^ And in such a case, if he rides the horse to Newburyport, and any accident occurs to the horse, although it be by inev- itable casualty, he will be responsible for the loss. This rule is equally the result of the common law and the Roman law.^ 1 Pothier, Pr6t a Usage, n. 46. 2 Pothier, Pret a Usage, n. 19. » Pothier, Pret a Usage, n. 19 ; 1 Atk. 235; 8 Term K. 199; Eoberts V. Wyatt, 2 Taunt. 268. * Pothier, Pret a Usage, n. 20; ante, § 227; post, § 255. ' Pothier, Pr6t k Usage, n. 21, 22. * Jones on Bailm. 68; Wheelock v. Wheelwright, 5 Mass. 104 ; Pothier, Pr6t li Usage, n. 21, 22. ' Jones on Bailm. 68, 69; Cro. Jac. 244; 2 Ld. Kaym. 909, 916; Ayliffe, Pand. B. 4, tit. 16, p. 517 ; 1 Doinat, B. 1, tit. 5, § 2, art. 10 to 14 210 ON GKATUITOUS LOANS. [CH. IV. The Roman law treated a wilful deviation from the use intended as bringing with it the odium of theft, in the sense of that word as used in that law, which is more extensive than in ours. " Qui jumenta sibi commodata longius duxerit, alien^ve re, invito domino, usus sit furtum facit." i § 233. Lord Holt has put several cases to illustrate this doctrine. If a man lends another a horse to go westward, or for a month, and the bailee goes northward, or keeps the horse above a month, if any accident happens on the northern jour- ney, or after the expiration of a month, the bailee will be chargeable ; because, says he, he has made use of the horse contrary to the trust he was lent under; and it may be, if the horse had been used no otherwise than he was lent, that acci- dent would not have befallen him.^ Bracton inculcates the like doctrine ; and it seems, indeed, as old as the first rudi- ments of our law.^ § 234. A gratuitous loan is to be considered as strictly per- sonal, unless from other circumstances a different intention may fairly be presumed. Thus, if A. lends B. her jewels to wear, this will not authorize B. to lend them to C. to wear. So, if C. lends D. his horse to ride to Boston, this will not authorize D. to allow E. to ride the horse to Boston. But if a man lends 12; Dig. Lib. 13, tit. 6, 1. 18; Code Civil of France, art. 1881; Pothier, Pr^.t k Usage, n. 21, 22; Id. n. 58, 60; Isaac u. Clark, 2 Bulst. 306. Pothier makes a distinction between the case where the borrower in- tended to go further when he set out on the journey, and where on the journey he had an unexpected call to go further. In the latter case, he thinks that the going further with the horse would be justifiable or ex- cusable, upon the presumed consent of the owner ; in the former, not, if the intention to go further was concealed from him. Pothier, Prfit k Usage, n. 21. In such a case our law would decide that the borrower had no right to go beyond the place named with the horse, since that was all the leave which he obtained. Post, § 251, 396, 409, 413. jAnd see CuUen V. Lord, 39 Iowa, 302 ; Kennedy v. Ashcraft, 4 Bush, 530 ; Stewart V. Davis, 31 Ark. 318 ; Martin v. Cuthbertson, Gl N. C. 328. } 1 Dig. Lib. 47, tit. 2, 1. 40 ; Id. 13, tit. 6, 1. 5, § 8; Pothier, Pr6t k Usage, n. 22. 2 Coggs V. Bernard, 2 Ld. Raym. 909, 915, 916; De ToUemere v. Fuller, 1 So. Car. Const, n. s. 121; Pothier, Pret k Usage, n. 21, 22; Vaughan u. Menlove, 3 Bing. N. C. 468. « Bracton, Lib. 3, ch. 2, § 1, p. 99, 100. CH. IV.] ON GEATTTITOUS LOANS. 211 his horses and carriage for a month to a friend for his use, there a use by any of his family, or for family purposes, may be fairly presumed; although not a use for the benefit of mere strangers. § 235. The case of Bringloe v. Morrice ^ illustrates this doc- trine. There, an action of trespass was brought for immod- erately riding the plaintiff's horse. The defendant pleaded that the horse was lent to him by the plaintiff, and license given him to ride him, and that, by virtue of the license, the defend- ant and his servants alternately had ridden the animal. The plaintiff demurred. And the Court, on the demurrer, held, that the license was annexed to the person of the defendant, and could not be communicated to another ; for this riding was matter of pleasure. And Lord Chief Justice North took a difference, where a certain time is limited for the loan of a horse, and where it is not. In the first case, the borrower has an interest in the horse during that time ; and in that case his servant may ride, but in the other case, not. A differ- ence was also taken between hiring a horse to go to York, and borrowing a horse. In the first place, the party may allow his servant to ride ; in the second, not. The case is obscurely reported. But the real meaning of the Court seems to have been, that in eases of a mere gratuitous loan, the use is to be deemed strictly a personal favor, and confined to the borrower, unless a more extensive use can be implied from the other attendant circumstances. § 236. In the next place, as to the obligations of the bor- rower. These are, to take proper care of the thing borrowed ; to use it according to the intention of the lender; to restore it at the proper time ; and to restore it in a proper condition.^ These will be spoken of in their order. § 237. In the first place, as to the proper care of the thing. As the loan is gratuitous, and exclusively for the benefit of the borrower, he is, upon the common principles of bailment, already stated, bound to extraordinary diligence ; and of course 1 1 Mod. 210 ; s. c. 3 Salk. 271. [And see Scranton v. Baxter, 4 Sandf. 5, 8.] ' 1 Domat, B. 1, tit. 5, § 2, art. 1; Pothier, Pr6t k Usage, n. 23 ; ante, § 232; post, § 25i, 255. [See Eedfield on Carriers and Bailments, § 625.] 212 ON GRATUITOUS LOANS. [CH. IV. he is responsible for slight neglect in relation to the thing loaned.^ It is singular that Lord Holt,^ and after him Mr. Justice Blackstone,^ should have considered that the same degree of diligence, and the same degree of responsibility, attached to a bailee of a thing for hire, and to a mere borrower of a thing ; for the contracts are wholly unlike in their nature and chaiacter. Sir William Jones is of opinion that the bor- rower's incapacity to exert more than ordinary diligence will not, even upon the ground of an impossibility, furnish a suffi- cient excuse for slight neglect; for he contends, that the bor- rower ought to have considered his own capacity, before he deluded his friend by engaging in the act of borrowing.* And this also is the doctrine of Pothier.^ But this doctrine must be received with some qualification and reserve, and be con- fined to cases where there is either an implied engagement for extraordinary diligence, or the lender has no reason to suspect or presume a want of capacity. For if the lender is aware of the incapacity of the borrower, he has no right to insist upon such rigorous diligence. He has a right to insist on that degree of diligence only, which belongs to the age, the 'char- acter, and the known habits of the borrower. Thus, if a spirited horse is lent to a raw or rash youth, or to a weak and inefficient person, who is known to be such, the lender must content himself with such diligence as they may fairly be ex- pected to use ; and he has no right to insist upon the diligence or prudence of a very thoughtful and experienced rider.'' Pothier himself admits the propriety of this distinction ; and it is adopted by Dumoulin.' Indeed, in this case, as in the case of a deposit or a mandate, the bailor may, in many cases, 1 Jones on Bailm. 64, 65; Vaughan v. Menlove, 3 Bing. N. C. 468, 475; [Howard v. Babcock, 21 111. 259; Bennett v. O'Brien, 37 111. 250; Phillips V. Condon, 14 111. 84 ; Scranton v. Baxter, 4 Sandf. 5 ; Wood v. McClure, 7 Ind. 155; Carpenter v. Branch, 13 Vt. 161;] jHagebush V. Ragland, 78 111. 40; Green v. HoUingsworth, 5 Dana, 173; Fortune u. Harris, 6 Jones, 532.} 2 Coggs v. Bernard, 2 Ld. Raym. 909, 916. 8 2 Black. Comm. 453. * Jones on Bailm. 65; 1 Dane, Abridg. eh. 17, art. 12. ' Pothier, Pret k Usage, n. 49. ' Jones on Bailm. 65; 2 Kent, Coram. Lect. 40, p. 574, 575, 4th edit.; Pothier, Pret k Usage, n. 49, 89; Bracton, Lib. 3, tit. 2, § 1, 99 b. ' Pothier, Pr6t a Usage, n. 49. CH. IV.] ON GRATUITOUS LOANS. 213 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.^ § 238. The language of the Roman law, on the subject of the diligence exacted from the borrower, is very strong. " Exactis- simam diligentiam custodiendse rei prsestare eompellitur; nee sufficit ei eandem diligentiam adhibere, quam suis rebus adhi- bet, si alius diligentior custodire poterit," is the language of the Pandects.^ And again : " In rebus commodatis talis dili- gentia prsestanda est, qualem quisque diligentissimus pater- familias adhibet ; ita ut tantum eos casus non prsestet, quibus resist! non possit."^ Pothier says, that it is not sufficient for the borrower to exert the same ordinary care which fathers of families are accustomed to use about their own affairs; but that he ought to exert all possible care, such as the most care- ful persons apply to their own affairs; and that he is liable, not only for a slight fault, but for the slightest fault, de levis- simd culpd.* And again he says, that the borrower is not lim- ited by his undertaking to bringing to the care of the thing loaned the same diligence which he would exert if it were his own. He is bound to bring to it all possible care : " Tenetur exhibere exactissimam diligentiam."* This rule, however, ' See ante, § 63 to 66, 175, 177, 180, 182. 2 Dig. Lib. 44, tit. 7, 1. 1, § 4. 3 Dig. Lib. 13, tit. 6, I. 18. {And see Gaius, § 206.} * Pothier, Pret it Usage, n. 48, 50, 54 to 56. Yet some of the civilians use language so loose and indeterminate, as might lead one to doubt what the true rule was. Thus Ayliffe says : " The commodatary, or person to whom the thing is lent, is not obliged to answer for an uncontrollable force, or for the loss or damage of the thing, which happens by any fortu- itous cause, provided such accident does not intervene through his fault or neglect. But, if he is guilty of any fraud or gross negligence, he shall make the loss or damage good ; for it is necessary that he should take the same care of the thing as every prudent man would take of his own goods, since this contract is entered into for his sake." Ayliffe, Pand. B. 4, tit. 16, p. 517. This last is only ordinary diUgence. ' Pothier, Pret a Usage, n. 56. Pothier here relies on the intense sense of the words " exactissimam diligentiam," in the Roman law. Yet he admits, and indeed insists, that, in cases of hire, the words " exactissi- mam diligentiam " are not used in this intense sense, but mean only ordinary diligence. Sir William Jones contends for the same doctrine. Post, § 398 ; Jones on Bailm. 87, 88. 214 ON GEATTJITOUS LOANS. [CH. IV. admits, both in the Roman law and in the foreign law, of two exceptions: the first is, where there is a special contract, express or implied, varying the general obligation ; for, in such a case, the special contract will govern in all cases, unless, indeed, it should provide that the borrower shall not be respon- sible for his own fraud. The borrower, therefore, may lawfully contract that he shall be responsible onlj' for ordinary dili- gence, or even for good faith. " Interdum plane dolum solum in re commodate, qui rogavit, prsestabit; utputa, si quis ita convenit." ^ The second exception is, where the loan is not strictly for the benefit of the borrower alone ; for, if it is for the mutual benefit of the borrower and lender, there ordinary diligence only is required.^ An attempt has been made to ingraft another exception upon the rule ; namely, where the lender makes a voluntary or oflScious offer, before he is asked by the borrower. But Pothier justly considers that such an offer, if accepted, ought not to change the responsibility of the borrower.^ § 238 a. It seems hardly necessary to add, that the same care, which the bailee is bound to take of the principal thing bailed, must be extended to such accessory things as belong to it, and were delivered with it. Thus, if a man borrows a watch, with seals to it, he will be responsible for any loss or injury, occasioned by his slight neglect, as well to the seals as to the watch.* § 239. What shall be deemed slight neglect, or want of extraordinary diligence, must depend upon the particular circumstances of each case. It has been before seen, that by the Roman law and the foreign law theft ordinarily constitutes no excuse, because it is said that it can scarcely arise without some default or negligence of the borrower.^ But this is 1 Pothier, Pret \ Usage, n. 51, 60; Dig. Lib. 13, tit. 6, 1. 5, § 10; Jones on Bailm. 72. 2 Pothier, Pret a Usage, n. 50, 51; Dig. Lib. 13, tit. 6,1. 18; Pothier, Pand. Lib. 13, tit. 6, n. 17; Ayliffe, Pand. B. 4, tit. 16, p. 517; Jones on Baihn. 72. s Pothier, Prrt a Usage, n. 52; anU, § 214. * Jones on Bailm. 66 ; Pothier, Pret ik Usage, n. 54, 74; Dig. Lib. 13, tit. 6, 1. 5, § 9 ; post, § 260. 5 Ante, § 38; Pothier, Pr6t a Usage, n. 53. CH. IV.] ON GRATUITOUS LOANS. 215 merely presumptive evidence, which may be repelled by the borrower, and, if the theft has been without any fault on his part, he will be excused.^ Thus, if A. borrows a silver ewer of B., and afterwards delivers it to a person of such approved fidelity and wariness, that no event could be less expected than its being stolen, to be by him returned to B., if it should be stolen from that person by thieves, without any neglect on his part, A. would be excused, and it would be treated as damnum absque injurid? A fortiori, the borrower would be excused, if the thing should, under such circumstances, be stolen b}"- robbery with open force, or by burglary ; for this would be a case of the vis major? In our law, as we have already seen, theft is not presumptive of negligence or default in the bailee ; * and therefore, whether the borrower would be liable in a case of theft or not, would depend upon the point, whether, taking all the circumstances together, there was any proof of negligence in the borrower. § 240. The borrower is also exempted, generally, from all liability for losses by inevitable accident, or by casualties which could not be foreseen and guarded against. This is equally true in the common law and in the Roman law. " Is, vero, qui utendum accepit, si majore casu, cui humana infir- mitas resistere non potest, veluti incendio, ruinS., naufragio, quam accepit, amiserit, securus est," is the language of the Pandects ; ^ and our own Bracton announces the same doc- trine.® Under the head of casualties may be enumerated, not only such losses as have been mentioned, namely, fire, the fall of edifices or ruins, shipwreck, and lightning, but also all such losses as human prudence cannot by extraordinary diligence guard against, such as losses by pirates, by enemies,^ by mobs, by sudden inundations, by sudden sickness, and even by the 1 Dig. Lib. 13, tit. 6, 1. 20, 21, § 1; Pothier, Prdt a Usage, n. 53; ante, § 38, 39. 2 Dig. Lib. 13, tit. 6, 1. 20; Pothier, Pr6t A Usage, n. 53; Jones on Bailm. 66; ante, § 39. ^ Pothier, Pret a Usage, n. 53; Jones on Bailm. 69 ; 2 Ld. Kaym. 909, 915, 916; 2 Kent, Comm. Lect. 40, p. 575, 4th edit. 4 Ante, § 38, 39. « Dig. Lib. 44, tit. 7, L 1, § 4; ante, § 30. « Bracton, Lib. 3, ch. 2, p. 99; Vin. Abr. Bailment, A.; Bao. Abr. Bailment, C; Doct. and Stud. Dial. 2, ch. 38; ante, § 29, 30; post, § 268. ' [See Watkins v. Roberts, 28 Ind. 167.] 216 ON GRATUITOUS LOANS. [CH. IV. frauds of strangers, against which the borrower could not guard himself.^ § 241. But there is an implied exception in all these cases of casualty and accident, which is, that they shall be without any default on the part of the borrower; for if they are con- nected with his default, his responsibility remains.^ Such is the express rule of the Roman law. " Sed, et in majoribus casibus, si culpa ejus interveniat, tenetur."^ Thus, if a bor- rower is imprudent enough to leave the high-road and pass through some thicket or unfrequented path, or to travel at a very unseasonable hour, or on a road notoriously frequented by robbers, without proper precautions, and a robbery takes place, he will, nevertheless, be liable for the loss.* So, if he rides a borrowed horse on a dark and improper road, and the horse falls, and is killed by the accident ; or if he puts the horse into an improper pasture, and he is stolen by robbers, he will be responsible for the loss ; for accident or irresistible force will not excuse his own rashness.^ So, if a lady borrows jewels to wear at a ball, and by her imprudence they are lost by robbery ; or if she exposes them to any other undue perils by leaving them in an improper place, the loss, although by accident, will be her own.® So, if a man borrows jewels and other valuable articles to wear at a mask or a ball, and he afterwards goes with them to a theatre or to a gaming- house, and the jewels are there lost or stolen, he will be responsible therefor ; for the loss may justly be attributed to his own negligence or rashness.' 1 Ante, § 25, 26, 28 to 30; 1 Domat, B. 1, tit. 5, § 2, art. 6, p. 113; Dig. Lib. 13, tit. 6, 1. 5, § 2, 4; Pothier, Pret a Usage, n. 55, 57; Jones on Bailm. 66, 67. ' Potliier, Pret a Usage, n. 55-58; Jones on Bailm. 67-69; Dig. Lib. 13, tit. 6, 1. 5, § 4; Ayliffe, Pand. B. 4, tit. 16, p. 517; ante, § 93, 94, 184, 185. 8 Dig. Lib. 44, tit. 7, 1. 1, § 4; Pothier, Prfit k Usage, n. 56, 57. * See Pothier, Pr^t a Usage, n. 57; Pothier, Louage, n. 195; Pothier on Oblig. n. 142; Jones on Bailm. 68; 2 Kent, Comm. Lect. 40, 576, 4th edit. « Jones on Bailm. 67,68; Pothier, Prfit 4 Usage, n. 55 to 57; ante, § 93 to 96. = Jones on Bailm. 68, 69 ; Pothier, PrM k Usage, n. 56, 57. 7 Jones on Bailm. 69. [And see Scranton v. Baxter, 4 Sandf. 5.] CH. IV.] OK GRATUITOUS LOANS. 217 § 242. But in a like case of borrowed jewels, if they were lost by robbery or by accident, and the borrower used them in a suitable manner, and left them in suitable places only, then the loss must fall on the lender ; for although the borrower's wearing them, or leaving them in a particular place, may be said to be the occasion of the loss, yet it cannot be said to be the cause of the loss. So, in the case of a borrowed horse for a journey, if the borrower rides him by the usual roads, and at the proper hours, and in the usual manner, if the horse should be stolen by robbers in passing through a forest in the road, or he should fall and be killed, the borrower, if he has used all proper care and diligence, will not be responsible for the loss.^ And this difference is deemed very material by Pothier in solving questions of this nature.^ My passing through a forest with a borrowed horse may be the occasion of my being robbed of him there ; but in a just sense, if the forest were necessary to be passed in my journey, my passing could not be considered as the cause of the loss, as I was guilty of no neglect. But the cause of the loss is correctly to be referred to the robbery.^ § 242 a. Again, the borrower is responsible for the loss, not only when he might have saved the thing by proper care from the accident, but when his own neglect has been the occasion of the accident.* If the borrower puts a borrowed horse under a ruinous building, and it falls, and kills or maims the horse, and the borrower might have foreseen this, he is responsible.^ But if the fall is caused by an unexpected storm, then he is not responsible, if, in ordinary cases, the place would have been safe.^ § 243. Cases of fraud, also, are naturally and properly ex- cepted, whether they are founded in positive misrepresentation, 1 Pothier, Pret a Usage, n. 55. 2 Jones on Bailm. 67 ; Pothier, Prfit i Usage, n. 55-57. » Ibid. * Pothier, Pr6t h Usage, n. 56, 57; Dig. Lib. 13, tit. 6, I. 5, § 4; Dig. Lib. 44, tit. 7, 1. 1, § 4. 6 Doct. and Stud. Dial. 2, ch. 38; Jones on Bailm. 68; Id. 109, note (q). « Pothier, Pret A Usage, n. 56; Jones on Bailm. 68; Id. 109, note (q); Doct. and Stud. Dial. 2, ch. 38. 218 ON GRATUITOUS LOANS. [CH. IV. or injurious concealment: " Vel suppressione veri, vel allega- tione falsi." There may be a direct fraud practised, by asking the loan under false pretences ; and there may be a tacit fraud, by misleading the ignorance of the lender under ciicumstances raising the presumption of a different state of facts. Pothier, and, after him, Sir William Jones, put a case in illustration of this doctrine. If a soldier were to borrow a horse of a friend for a battle, expected to be fought the next morning, and were to conceal from the lender the fact that his own horse was as fit for the service, if the borrowed horse were slain in the en- gagement, the borrower would be responsible : for the natural presumption created bj^ the concealment is, that the horse of the borrower is unfit, or that he has none. But if the borrower had frankly stated the fact, then the loss must be borne by the lender.! A more simple case of tacit fraud would be, where the soldier has borrowed the horse for the next day, concealing the fact of any expected battle, or of any intended use for that purpose ; for the lender may be fairly presumed, in such case, to lend for a journey, or for common use, and not for war.^ § 244. There are yet other cases which also form, or rather which ma}', under peculiar circumstances, form exceptions to the general rule, that the borrower shall not be responsible for accidents. Thus, it is said by Domat, that if the thing lent perishes by an accident, against which the borrower might have guarded by employing a like thing of his own, he shall be responsible for the loss ; for it is said, he ought not to have used it, except for want of his own.^ But this doctrine, if true at all, is true only under such circumstances as lead to a just imputation of negligence, or of an improper exposure of the thing borrowed.* If A. borrows the jewels of B. for a ball, deeming them more brilliant or more pleasing than his own, and they are lost by a casualty without his default, it is difficult to perceive a sound reason why he should be made 1 Pothier, Pret h. Usage, n. 59; Jones on Bailm. 70; 2 Kent, Comm. Lect. 40, p. 575, 4th edit. 2 Dig. Lib. 13, tit. 6, 1. 5, § 7; 1 Domat, B. 1, tit. 5, § 1, n. 9. 3 1 Domat, B. 1, tit. 5, § 2, art. 7; 2 Kent, Comm. Lect. 40, p. 576, 4th edit. * See post, § 245 to 250. CH. IV.J ON GEATTJITOUS LOANS. 219 liable for the loss. The use was contemplated ; and if the lender knew that the borrower also owned jewels, he must have meant to leave the choice to the borrower. If he did not know that the borrower owned jewels, and there was no fraud or concealment practised upon him to encourage the loan, the same result would seem to follow. If A. owns a horse, and B. lends him his horse for a week, why may not A. use the borrowed horse, as well as his own, for common pur- poses, if he does not expose him to undue labor or peril ? Suppose he should deem the exercise proper and beneficial for the borrowed horse, and the latter should perish by some accident, would it be his loss ? § 245. Pothier and the civilians have put a case under this head, which is somewhat nice and curious ; and, as Sir Wil- liam Jones has commented on it, it may be well to state it in his own words. " If the house of Caius be in flames," says he, " and he, being able to secure one thing only, saves an urn of his own in preference to the silver ewer which he had bor- rowed of Titus, he shall make the lender a compensation for the loss ; especially if the ewer is the more valuable, and would consequently have been preferred, had he been owner of them both. Even if his urn is the more precious, he must either leave it, and bring away the borrowed vessel, or pay Titus the value of that which he has 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 presented itself." ^ This is apparently the doctrine of the Pandects, the text of which is as follows : " Si incendio vel ruinS aliquid contigit, vel aliquod damnum fatale, non tenebitur ; nisi forte, quum possit res commodatas salvas facere, suas prsetulit." 8 Pothier approves of the same doctrine ; and assigns as a reason, that the bor- rower is obliged to use the most exact diligence in I'espect to the thing borrowed, and he bestows less than his engagement imports, when he uses less than he applies to his own prop- erty, even when he applies it to a case where there is an ' Jones on Bailm. 69, 70. 2 Dig. Lib. 13, tit. 6, 1. 5, § 4; Fothier, Prfit k Usage, n. 56, 220 ON GRATUITOUS LOANS. [CH. IV. impossibility of saving the borrowed property as well as his own.^ § 246. Three cases are put by Pothier, and may readily be imagined: first, where the thing borrowed is of greater value than the borrower's own property ; secondly, where the things are each of the same kind and value ; thirdly, where the bor- rower's own property is of the greatest value. Pothier decides each of the cases against the borrower, admitting the last to be of chief difficulty.^ His reasoning on the last case is to this effect. It is true, that the borrower cannot be reproached with any want of fidelity ; but still the borrower undertakes for extraordinary diligence (" Tenetur adhibere exactissimam diligentiam ") ; and by the nature of his contract he engages for all risks, except losses occasioned b}^ the vis major. " Prse- stat omne periculum, praeter casus fortuitos, sen vim majo- rem." Now that alone is deemed to be vis major which cannot be resisted : " Vis major, cui resisti non potest." Al- though the borrower could not save both his own and the borrowed goods, yet he could have saved the latter at the ex- pense of his own ; and therefore they could not be said to be lost by the vis major. He admits that it would be otherwise, where the tumult is such that the borrower has no choice, and saves what comes to his hands first, without any oppor- tunity to exercise his judgment.^ § 247. It may seem rash to doubt the accuracy of the rea- soning or conclusions of such distinguished minds, backed, as they are, by the positive text of the Roman law. And, if the question were one of a practical nature, it might be fit to abstain from any commentary. But, as it is scarcely more than a speculative proposition, it may not be wholly useless to lay before the reader some considerations for doubt upon the point. § 248. It is observable, that the question is not stated by the learned jurists, as one of presumptive evidence, fit for the decision of a court or of a jury, as judges of the facts ; but 1 Pothier, Pidt k Usage, n. 56. In the case of a deposit, Pothier holds a different doctrine, and decides in favor of the depositary. Pothier, Trait6 de Depot, n. 29 ; post, § 249. 2 Pothier, Pret 4 Usage, n. 56, 57. « Id. n. 56. CH. IV.] ON GEATUITOXTS LOANS. 221 as a clear conclusion of law. If the thing borrowed is of very great value, such as a casket of jewels, and the thing saved is of little proportionate value, there might be some foundation for a presumption o!:" undue preference for the latter, and of undue inattention to the former. That, however, would be matter of fact, to be weighed under all the circum- stances. But the case, as put, goes much farther, and decides that even if the borrower's own property is of very great value, nay, of the highest value, and the borrowed property is of a very subordinate value, the law is the same ; and, a fortiori, it is the same if they are of equal value. It is chiefly in relation to the case of the superior value of the borrower's property that the reasoning is pressed ; and to that our doubts may be now confined. § 249. The question, in our law at least (and it would seem, also, in the Roman law), is, whether the borrower has been guilty of slight negligence, which, of course, is the omis- sion of very exact diligence ; for without that he is not liable at all. The loss is confessedly by an " inevitable mischance " (for so Sir William Jones and Pothier put it) ; ^ and, in such a case, no responsibility can attach upon the borrower, unless there has been some neglect on his own part. It is not true, as Pothier suggests, that the borrower is responsible for all losses, not occasioned by the vis major, or by fortuitous occur- rences. Losses by theft without any default of the borrower, and losses of all sorts, where he exercises the proper degree of diligence, are to be borne by the lender. It is not neces- sary to show that the loss has been absolutely fortuitous, or by the vis major, in a strict sense. It is sufficient to show that there has been no negligence whatsoever in occasioning the loss. The question, then, is, whether there is any negli- gence in the case thus presented. It is not, of course, suffi- cient to show, as Pothier suggests, that the borrower has taken as good care of the borrowed goods as of his own ; for that is not the extent of his obligation, it being for very exact dili- gence. But if the party does, in fact, use very exact diligence 1 Jones on Bailm. 69. Fothier puts the case of a fire by lightning. Pothier, Fret a Usage, n. 56. 222 ON GEATUITOUS LOANS. [CH. IV. in respect to his own goods, then, if he uses the same dili- gence in regard to the borrowed goods, liis obligation is fully- complied with. Now, if a man, in a case of fire, saves of his own goods those which are pre-eminently valuable, it would be against common sense to say that he did not use the ut- most diligence in respect to others, when it was impossible for him to save them all. The very case put by Pothier sup- poses that it is impossible to save both the lender's and the borrower's goods. In a case, then, confessedly of extreme necessity, the borrower is made responsible for an exercise of his natural right of choice. He saves the most valuable goods, which would seem to be a rational course ; and yet he is bound to pay for the loss of the other goods. Pothier does not pretend, that, in such a case, there is any real negligence imputable to the borrower. His reasoning implies that there is none. But he assumes (what he does not prove), that, if the thing borrowed could by possibility have been saved, at however great a sacrifice, the borrower is bound to make that sacrifice. Nay, the reasoning of Pothier and Sir William Jones would almost tempt one to suppose that they thought, that, if in such a case the borrower might have saved the borrowed goods by abandoning his own, and he should leave both to perish in the flames, he might be excusable.^ Yet this cannot be, if there is any negligence in the case arising from the mere fact of leaving the borrowed goods to perish. If a party suffers his own goods to perish in the flames, it is no excuse for suffering the borrowed goods to perish in the same manner. It may afford some presumption against neg- ligence, especially if the borrower's own goods are of a very superior value. But, if he might have saved the borrowed goods by uncommon diligence, there is no excuse for him in point of law.2 § 249 a. Both Pothier and Sir William Jones reason differ- ently in the case of a deposit under the like circumstances. After having remarked, that a depositary is only bound to the same measure of diligence which he uses in his own affairs. Sir William Jones adds : " It must, however, be confessed 1 Pothier, Traite de Depot, n. 29, 66. 2 Jones on Bailm. 69, 70 ; Id. 46, 65, 66, 120, 122. CH. IV.J ON GRATUITOUS LOANS. 223 that the character of the individual depositary can hardly be an object of judicial discussion. If he be slightly or even ordinarily negligent in keeping the goods deposited, the favor- able presumption is, that he is equally neglectful of his own property. But this presumption, like all others, may be re- pelled. And, if it be proved, for instance, that, his house being on fire, he saved his own goods, and, having time and power to save also those deposited, suffered them to be burned, he shall restore the worth of them to the owner. If, indeed, he have time to save only one or two chests, and one be a deposit, the other his own property, he may justly prefer his own ; unless that contain things of small comparative value, and the other be full of much more precious goods, as fine linen, or silks ; in which case he ought to save the more val- uable chest, and has a right to claim indemnification from the depositor for the loss of his own. Still further : if he commit even a gross neglect in regard to his own goods, as well as those bailed, by which both are lost or damaged, he cannot be said to have violated good faith, and the bailor must impute to his own folly the confidence which he reposed in so improvident and thoughtless a person." ^ Precisely the same doctrine is maintained by Pothier. He admits that in the case of a deposit, under similar circumstances, if the depos- itary cannot save his own goods, as well as those deposited, he may innocently save his own in preference to those depos- ited. If, indeed, the deposited goods are of far greater value than his own, he thinks the depositary is bound to save those deposited, even if thereby his own perish ; but then he in- sists, that in such a case he is entitled to be indemnified by the depositor for his own loss.^ § 249 b. The true test of liability in all cases of this sort would seem to be, to ascertain whether there is any negli- gence in not saving the borrowed goods ; and whether there is any superior duty of the borrower to save them and sacri- fice his own. Unless there is some such superior duty, it is difficult to perceive what ground there is to impute negligence to the borrower in so calamitous a case. The case put of a 1 Jones oa. Bailtn. p. 46, 47. « Pothier, Traite de D^pot, n. 2) ; ante, § 66 a. 224 ON GRATUITOTTS LOANS. [CH. IV. depositary shows that he is guilty of no negligence or default in saving his own goods in preference to those of the depos- itor. When he saves the latter, it is treated as a sacrifice beyond his duty, entitling him to a compensation in the na- ture of salvage.^ § 250. But it is not true, that a borrower is bound to make every possible sacrifice in order to save the borrowed goods. If a man borrows a friend's horses and carriage for a journey, he is not bound to carry with him a troop of horse to guard them against a possible robbery ; nor is he bound to protect them at the risk of his own life, or to the imminent hazard of his own person, or of other valuable property. If, finding himself unexpectedly beset by robbers, and not knowing their force, he abandons the horses and carriage, and he escapes with his servants, not choosing to hazard the possible chances of resistance, partly' because he has very valuable treasures with him, and partly from fear of assassination, can he be held responsible for the loss, if there was a fair and honest exercise of judgment, and it was such conduct as a very dili- gent and careful man would adopt ? If a house is on fire, is a man bound to risk his life or limbs to save borrowed goods, even if, in the event, from unforeseen circumstances, or by great steadiness of purpose, it is possible, nay, practicable, so to do ? No doctrine has as yet gone to this extent. The rea- soning, then, which we have been considering, turns upon a supposed superior duty, in a common calamity or accident, to save that which is borrowed in preference to that which is one's own, whatever may be the value of the latter compared with the former. But the whole controversy turns upon the very question, whether there is any such superior duty. It is not to be assumed, and then reasoned from. It must be established as a just inference from the principles of law appli- cable to the subject. § 251. The doctrine of our law is, that, in every case of a gratuitous loan, to charge the borrower, there must be some neglect of duty, some slight omission of diligence. If the highest possible diligence cannot save both the borrowed goods 1 Pothier, Traite de Depot, n. 29 ; Pothier, Pr6t A Usage, n. 55 ; ante, § 66 a. CH. rv.] ON GRATUITOUS LOANS. 225 and the goods of the borrower, where is the rule to be found which prescribes the choice in such a case, and compels a man to abandon his own for another's ? Principles going much deeper into human feelings and morals and rights, have not insisted on such an overwhelming sacrifice of personal prefer- ence. If two men are on a plank at sea, and it canijot save both, but it may save one, it has never yet been held, that, in a common calamity and struggle for life, either party was bound to prefer the other's life to his own. If a ship is cap- sized at sea, and the ship's boat is sufficient to save a part of the crew only, is there a known duty to prefer a common de- struction of all to the safety of a part ? If the crew of a foundered ship are dying from hunger at sea, are all to perish, or may thej' not cast lots for life or death, to preserve the rest ? These cases are put merely to show, that, in a common calamity, the law does not look to mere heroism, or chivalry, or disinterested sacrifices. If it has furnished no rule for such cases, it is because they are incapable of any ; for ne- cessity has no law. And to say the least of it, the equity as well as the policy, of any such rule as Pothier contends for, is as questionable as any which can be put in the dialectics of casuistry .1 The Code of France and the Code of Louisiana have, however, adopted the doctrine of Pothier ; ^ and have thus given it a sanction, which may, perhaps, be thought suf- ficient to silence any private doubts. § 252. Another exception may arise, where there is a special contract between the parties. As, if the borrower undertakes for all perils, he will become chargeable for any loss, covered by his engagement, although he would not be otherwise chargeable ; for there is a sufficient consideration to support such an engagement.^ In this respect the Roman and the foreign law are in perfect accordance with the common law. For the lender has certainly a right to prescribe his own terms ' See 2 Kent, Comm. Lect. 40, p. 575, 576, 4th edit. 2 Code Civil of France, art. 1882 ; Code of Louisiana (1825), art. 2817. » 1 Domat, B. 1, tit. 5, § 2, art. 8 ; Pothier, Pr6t k Usage, n. 61 ; Jones on Bailm. 72 ; Cod. Lib. 4, tit. 23, 1. 1 ; ante, § 2, p. 5, sub Jinem, note 2. 15 226 ON GEATUITOUS LOANS. [CH. IV. as to the loan ; and if the borrower assents to them, and the loan is perfected by a delivery, there is neither equity nor justice in absolving him from the terms of his engagement, to the injury or detriment of tlie lender.^ § 253. Another curious question has been much discussed by the civilians, which Pothier mentions, and Sir William Jones has also commented on, as properly belonging to this head. It is, whether, in the case of a valued loan, or where the goods are estimated at a certain price, the borrower must be considered as bound, at all events, to restore either the things lent, or the value of them.^ The controversy has grown out of some texts of the Pandects, in one of which it is said: " Si forte res aestimata data sit, omne periculum prse- standum ab eo, qui SBstimationem se pi-iestaturum recepit ; " ^ and in another place : " ^stimatio autem periculum facit ejus, qui suscepit." * The civilians have entertained different opinions upon this subject ; but it seems unnecessary to state them at large. Pothier has given a very clear summary of them, and holds the better opinion to be, that the borrower is not in such a case responsible for losses by accident.^ § 253 a. In the common law the controversy would turn wholly upon the construction of the words of the particular contract. The mere estimation of a price would not, of itself, settle the point, whether the borrower took upon himself every peril, or any additional perils, beyond the common rules of law. But it would be construed as a mere precaution to avoid dispute in case of a loss, unless some other circumstances raised a presumption, that the parties intended something more. If the lender were to say to the borrower, on lending him a horse: "You know my horse is worth one hundred dollars, and you will be obliged to pay that sum, if he should be lost by any negligence ; take, therefore, the proper care ' Pothier, Pr6t il Usage, n. 61. {See Archer v. Walker, 38 Ind. 472.} 2 .Tones on Bailm. 71, 72. 8 Dig. Lib. 13, tit. 6, 1. 5, § 3. < Dig. Lib. 19, tit. 3, L 1, § 1 ; Pothier, Prfet a Usage, n. 62. 6 Pothier, Prfet A Usage, n. 62, 63; Jones on Bailm. 71, 72; Code of Louisiana (1825), art. 2872 ; 1 Stair, Inst. B. 1, tit. 11, § 9 ; post, § 253 b. CH. IV.J ON GRATUITOUS LOANS. 227 of him ; " to which the borrower should assent ; no one would imagine, that, if the horse died on the journey Avithout any default of the borrower, he would by our law be liable to pay for the loss. But if the borrower were to say to the lender: " Lend me your horse to go to Oxford, and I will either return him to you or pay you his value, which is one hundred dol- lars," and the lender should assent ; then it might justly be inferred, that he took the peril upon himself. So that it would with us come to a matter of fact, what the contract was, rather than to a matter of law. Such is the opinion of Sir William Jones. ^ Pothier holds a like opinion, and sup- ports it with strong reasons.^ It is not of any great importance to perplex ourselves with questions of this nature, as they seem purely speculative, since a case can scarcely be imagined, where some circumstance, giving a construction one way or the other, would not be found to explain the reason for fixing the price. The Code of France and the Code of Louisiana have solved the difficulty by a positive declaration, that, if the article is valued on the lending, the loss which may happen even by accident shall be that of the borrower, if there is no agreement to the contrary." The fixing of a price, therefore, is thus interpreted to raise a presumption of a contract on the part of the borrower against all risks, which, however, he may repel by other proofs. § 253 b. What has been already said in respect to the de- gree of care and diligence required of the borrower, applies to gratuitous loans, strictly so called. But, in the Roman law, a distinction was taken between the responsibility in cases of a gratuitous loan, and that in cases of a precarious loan (^Precariwm).^ In the former, as we have seen, the most exact possible care was required of the borrower, and he was liable for the slightest fault.^ But in cases of a precarious loan, or Preearium, it was not treated as properly a contract, 1 Jones on Bailm. 71, 72; post, § 253 b. {See Archer v. Walker, 38Ind. 472.} 2 Pothier, Pret a Usage, n. 62, 63. 8 Code Civil of France, art. 1833, and Code of Louisiana (1825), art. 2872. * Ante, §227. ^ A,ite, %23S. 228 ON GBATUITOTJS LOANS. [CH. IV. or quasi contract, on which an action at law lay ; but only as an obligation which could be enforced in the forum of the praetor, upon equitable principles. And hence the borrower, in such a case, was held responsible only for good faith, and was made responsible only for fraud and gross negligence ; " De dolo, et de lata culpS., quae dolo comparatur." ^ This distinction of the Roman law is not, however, recognized in the law of France ; ^ although it is in that of Scotland ; ^ and it probably also may be found in the law of some other modern nations. It certainly has no existence in our law, where, indeed, all gratuitous loans are treated as precarious.* § 253 c. It may be well to close this head by stating in the words of Lord Stair, the general rule of the Scottish law on the subject of the care and diligence of the borrower, which, indeed, includes the substance of what has been already stated. " As to the diligence due by the borrower," says he, " the case must be distinguished ; for some things may be lent only for the behoof of the lender, as he who lends clothes or instru- ments to his servants for his own use and honor ; sometimes to both the lender's and borrower's use ; and oftenest to the borrower's use alone. In the first case, the borrower is holden only for the grossest faults and negligence ; in the second, for ordinary faults, culpd levi ; in the last, for the lightest fault, and is obliged for such diligence as the most prudent use in their affairs. But in all cases the borrower is obliged de dolo ; yea, no paction can be valid in the contrary, as being against good manners. In no case is the borrower obliged for any accident, as death, naufrage, burning, unless he hath under- taken that hazard, either expressly or tacitly ; as in commodato cestimato, which imports, that if the thing perish it is lost to the borrower, and he must pay the price. For, as in dote cestimatd, so in commodato cestimato, it is in the debtor's option whether to restore the thing itself entire, or the price at which it is estimated. But if the estimation be only in the case of the deterioration or loss, it doth no more but save questions 1 Pothier, Pr^t k Usage, n. 88 ; Dig. Lib. 43, tit. 26, 1. 8, § 3, 6. 2 Pothier, Pr6t a Usage, n. 89. 8 Ersk. Inst. B. 3, tit. 1, § 25. * Post, § 258. CH. rv.] ON GRATUITOUS LOANS. 229 as to the value, and is not commodatum cestimatum ; or that the borrower hath applied the loan to another use than it was leiit for; in which ease it perisheth to him, yea, he committeth theft, in that misapplication. So if a fault precede, occasioning the accident, as if money lent for show, being carried abroad, be taken by robbers." ^ § 254. In the next place, as to the proper use of the thing by the borrower. It is very clear, that the lender has a right to prescribe the terms and conditions on which the loan shall be made. " Sicut autem (says the Roman law) voluntatis et officii magis, quam necessitatis est, commodai-e, ita modum commodati, finemque prescribere, ejus est, qui beneficium tribuit." 2 And the borrower is bound to follow these terms and conditions with all due fidelity.* If there is any excess in the nature, time, manner, or quantity of the use, beyond what may be fairly inferred to be within the intention of the parties, the borrower will (as we have already seen) be re- sponsible, not only for any damages occasioned by such excess, but even for losses by accidents, which could not be foreseen or guarded against.* As, if a man lends his friend a service of plate for an entertainment in a city, and he, without the knowledge or assent of the lender, carries it into the country, and it is there lost by accident, or otherwise, the borrower is responsible for the loss.^ So, if the borrower is in mord, as it is technically called, that is, if he is in default, as if he has omitted or refused to return the thing loaned, when it ought to have been returned, or after a due demand, he will be 1 1 Stair, Inst. B. 1, tit. 11, § 9 ; Ersk. Inst. B. 3, tit. 1, § 20, 21. 2 Dig. Lib. 13, tit. 6, 1. 17, § 3 ; Pothier, Prefc a Usage, n. 24. 8 1 Domat, B. 1, tit. 5, § 1, art. 8 ; ante, § 232. * Ante, § 188, 232, 233, 241; post, § 396, 409, 413 ; Noy, Max. ch. 43 ; 2 Ld. Raym. 909, 915, 916 ; Jones on Bailm. 68, 69 ; Bac. Abridg. Bail- ment, C. ; Bracton, lib. 3, ch. 2, § 1, p. 99 ; Pothier, Pret i Usage, n. 21, 22, 57, 58, 60; Dig. Lib. 13, tit. 6, 1. 18 ; Code Civil of France, art. 1880, 1881 ; Code of Louisiana of 1835, art. 2870 ; [Booth v. Terrell, 16 Ga. 25;] ante, § 232 ; 2 Kent, Comm. Lect. 40, p. 574, 4th edit. ; Doctor and Student, Dial. 2, ch. 38; {Cullen v. Lord, 39 Iowa, 302 ; Kennedy v. Ash- craft, 4 Bnsh, 530 ; Stewart v. Davis, 31 Ark. 818 ; Martin v. Cuthbert- son, 64 N. C. 328.} 5 Jones on Bailm. 68, 69 ; Pothier, Pret k Usage, n. 58 ; Dig. Lib. 13, tit. 6,1. 18; anie,§232. 230 OK GEATUITOUS LOANS. [CH. IV. responsible for any subsequent loss thereof, although it may be occasioned by accident or the vis major} § 255. In respect to the use, what is, or is not, within the scope of the bailment, must depend upon a great variety of implications and presumptions, growing out of the circum- stances of each particular case ; and no general rule can be laid down which will govern all cases. In general, it may be said, in the absence of all controlling circumstances, that the use intended by the parties is the natural and ordinary use to which the thing is adapted.^ In regard to time, if no particular time is fixed, a reasonable time must be intended, keeping in view the objects of the bailment. If a horse is lent for a jour- ney, it is presumed to be a loan for the ordinary time consumed in such a journejr, making proper allowance for the ordinary delays and the ordinary objects -of such a journey.^ The place of the use must also be governed by circumstances. If A. lends his horse to B. to be used for a day, and both reside in the same town, it may be presumed that the use is to be within that town, unless there are some circumstances creating a different presumption of intention. § 256. If, in using the thing, the borrower is put to any expense, this must be borne by himself.* Thus, for example, if a horse is lent to a friend for a journey, he must bear the expenses of his food during that journey, and of getting him shod, if he should chance to require it ; for it is a burden which is naturally attendant upon the use of the horse. And this is according to the rule of the Roman law, where it is said : " Nam cibariorum impensse, naturali scilicet ratione, ad eum pertinent, qui utendum accepisset." ^ But if there are any extraordinary expenses incurred in the journey, as for curing the horse of a distemper, in such a case the Roman law 1 Pothier, Pret a Usage, n. 60 ; Pothier on Oblig. n. 627, 628 (n. 663 and 664 of the French editions) ; Dig. Lib. 45, tit. 1, 1. 82, § 2; 2'>'>st, § 259 ; Jones on Bailra. 70. 2 1 Domat, B. 1, tit. 5, § 1, n. 8, 9, § 2, n. 11 ; Pothier, Pret a Usage, n. 21 ; Bac. Abridg. Bailment, C. » 1 Domat, B. 1, tit. 5, § 1, art. 10, § 2, art. 11. * 1 Domat, B. 1, tit. 5, § 3, art. 4; post, § 273 ; Pothier, Prdt a Usage, n. 24, 81. 6 Dig. Lib. 13, tit. 6, 1. 18, § 2. CH. IV.] ON GRATUITOUS LOANS. 231 and the foreign law, as we shall presently see, entitled the borrower to a remuneration from the lender.^ But suppose, in consequence of the loan, the lender in the mean time is put to some trouble or expense ; is the borrower to repay it ? As if A. lends his horse to B. for a journey, and during the inter- val of his absence A. is forced by some pressing business to hire another horse ; is B. responsible for the hire ? Pothier thinks he is ; and Sir William Jones has apparently adopted his reasoning.^ No case in our law has decided such a point; and it would be extremely difficult to deduce it, as implied from the nature or obligations of the contract. § 257. As to the restitution of the thing loaned. This is a most material part of the obligations of the borrower. He is to make a return of the thing at the time, and in the place, and in the manner contemplated by the contract.^ He must also make a like return of all the increments and offspring of the thing lent.* " In deposito et commodate fructus quoque prse- standi sunt."^ If no particular time is agreed on, then the partj"^ is to return it in a reasonable time. By the Roman law, and the foreign codes derived from it, the borrower is not bound to return the thing, until he has had the proper use of it, or until the bailment has terminated, although the thing is previously demanded by the lender.* The ground of this doc- trine, as stated in the Roman 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 unseasonable withdrawal of the loan, impose a burden, rather than a benefit, and thus violate the implied obligation between the parties : " Cum autem id fecit, id est, postquam commoda- vit, tunc finem prsescribere, et retro agere, atque intempestive 1 Post, § 273 ; Dig. Lib. 13, tit. 6, 1. 18, § 2; Pothier, Prfit a Usage, n. 81. 2 Pothier, Fret a Usage, n. 55; Jones on Bailm. 67. 8 1 Domat, B. 1, tit. 5, § 1, art. 11 ; Dig. Lib. 13, tit. 6, 1. 5, § 1 ; Id. 1. 17, § 3 ; Id. L 3, § 1 ; ante, § 255. < [See Booth w. Terrell, 16 Ga. 25.] 6 Dig. Lib. 22, tit. 1, 1. 28, § 1 ; Id. 1. 38, § 10 ; Pothier, Prfit k Usage, n. 73, 74. 6 Pothier, Prfit h Usage, n. 20, 24, 27, 76, 77 ; Ersk. Inst. B. 3, tit. 1, §22. 232 ON GBATTJITOUS LOANS. [CH. IT. usum commodatse rei auferre, non officium tantum impe- dit, sed et suscepta obligatio inter dandum accipiendumque. Adjuvari quippe nos, non decipi, beneficio oportet."i Nor is the borrower even then obliged to return it in any other man- ner than was originally contemplated by the parties.^ The same rule applies, although the lender has in the mean time had a necessity of using the same thing, if the occurrence might have been foreseen. But if it is a sudden and unex- pected necessity, then the thing may be demanded back before the expiration of the time, unless the borrower will furnish a proper substitute, if the return will be to his injury.^ So, if the purpose of the loan is accomplished, although the time has not expired, it may be demanded back again.*^ As, if a manu- script is lent for a week to be copied, and the copy is made in two days, the lender may require the manuscript back, unless some other circumstance has intervened to justify the full delay. ^ However, where the loan is by its nature or character precarious, it may by the civil law be demanded at any time.® But even in such a case the demand must be made in a reason- able manner, and under reasonable circumstances, and so that no damage shall occur to the borrower ; ^ for the rule of the Roman law is : " In omnibus jEquitas spectanda." * § 258. These principles are not supposed to have any gen- eral foundation in the common law, in which the loan is under- stood, as to its continuance, to rest upon the good pleasure and good faith of the lender, and to be strictly precarioiis.^ As the bailment is merely gratuitous, tlie lender may terminate 1 Dig. Lib. 13, tit. 6, 1. 17, § 3 ; PotUer, Pret k Usage, n. 24 ; 1 Domat, B. 1, tit. 5, § 3, art. 1. 2 Pothier, Pret a Usage, n. 20, 24 ; Dig. Lib. 13, tit. 6, 1. 17, § 3; 1 Domat, B. 1, tit. 5, § 1, n. 13, § 3, n. 1; Code Civil, art. 1888 ; post, §271. 8 Pothier, Prfit a Usage, n. 25, 77. ■> Id. n. 26. 6 Id. n. 26, 27. 6 1 Domat, B. 1, tit. 5, § 1, 2, art. 13, § 3, art. 2; Pothier, PrSt.^ Usage, n. 86-90 ; ante, § 227, 253 a ; 1 Stair, Inst. B. 1, tit. 11, § 10. ' 1 Domat, B. 1, tit. 5, § 3, art. 2. 8 Ibid. ; Dig. Lib. 50, tit. 17, 1. 90, 183. » Ante, § 253 ; post, § 277. {But see Clapp v. Nelson, 12 Texas, 373.} CH. IV.] OK GRATUITOUS LOANS. 233 it whenever he pleases.^ But if he does so unreasonably, and it occasions any injury or loss to the borrower, the latter may, perhaps, have a suit for damages, where the object of the bail- ment has been partly accomplished ; or if he retains the thing, and a suit is brought by the lender, he may insist upon the unreasonableness of the demand, or the injury to himself ; and thus, perhaps, he may recoup in the damages whatever he has lost, and repel any claim for a large compensation, on account of his delay and refusal to return the thing bailed when it was demanded of him. § 259. If the borrower does not return the thing at the proper time, he is deemed to be in default, or, as the Roman law phrases it, in mord (en demeure), and then he is responsible for all losses and injuries, and even for all accidents.^ Sir William Jones has put as exceptions (in which he is apparently supported by Pothier) : " Unless in cases where it may be strongly presumed that the same accident would have befallen the thing bailed, even if it had been restored at the proper time ; or unless the bailee has legally tendered the thing, and the bailor has put himself in mord by refusing to accept it." ^ The latter is a very clear case in the common law, as well as in the Roman law. But, in the former case, the common law may, perhaps, be different, although the precise point has not been decided ; for the refusal or delay puts the thing at the risk of the borrower, and is deemed such a misfeasance or negligence on his part, as will ordinarily make him liable for accidents.* The modern Code of France, and that of Louisi- J Orser v. Storms, 9 Cow. 687; Viner, Abridg. Bailment, D. ; Bac. Abridg. Bailment, D. ; Clark's case, 2 Leon. 30, 89; Lyte v. Peny, Dyer, 48 b; Harris v. Bervoir, Cro. Jac. 687; Id. 2 Roll. 440; Id. 38; Atkin v. Barwick, IStr. 165; Vin. Abridg. Countermand, A.; Sheppard's Epitome, Countermand; Taylor v. Lendey, 9 East, 49; 1 Dane, Abridg. ch. 17, art. 4, § 10. 2 Jones on Bailm. 70 ; Pothier, Pret k Usage, n. 60 ; Pothier on Oblig. n. 143, 144, 627, 628 (663, 664, of French editions); ante, § 254; Ersk. Inst. B. 3, tit. 1, § 22; 2 Kent, Comm. Lect. 40, p. 576, 4th edit. ; Dig. Lib. 22, tit. 1, 1. 32. [See Clapp v. Nelson, 12 Texas, 373.] " Jones on Bailm. 70; Pothier, Pr^taUsage, n. 60; Pothier on Oblig. n. 143, 627 (n. 663 of the French editions); ante, § 122. " Noy, Max. ch. 43; Jones on Bailm. 68; Coggs v. Bernard, 2 Ld. Raym. 909, 916; Doct. and Stud. Dial. 2, ch. 38. See;jos(, § 413, 413 a, &c., where this subject is more fully considered. Ante, § 122, 188. 234 ON GRATUITOUS LOANS. [CH. IV. ana,i as well as the Scottish law, make the borrower liable, in such a case, for all losses by accident.^ § 260. The thing borrowed is not only to be returned, but every thing that is accessorial to it. Thus, the young of an animal, born during the time of the loan, is to be restored; and the income of stock, which has been lent to the borrower to enable him to pledge it, as a temporary security, also belongs to the lender.^ § 261. In regard to the place where the thing is to be re- turned, several rales are found in the foreign law. If no par- ticular place is pointed out by the contract, it is to be returned to the lender at his usual dwelling-house, unless the thing prop- erly belongs elsewhere. If the lender has in the mean time removed his domicile to another place, the borrower is not bound to follow it, and return the thing at the new residence.^ But he is bound only to return it at the former residence, un- less, indeed, there is but a trifling difference in the distance between them.^ The common law seems not to have laid 1 Code Civil of France, art. 1881 ; Code of Louisiana of 1825, art. 2870. See Dig. Lib. ,30, tit. 1, 1. 47, § 6 ; Dig. Lib. 16, tit. 3, 1. 14, § 1, Dig. Lib. 10, tit. 4, 1. 12, § 4; Dig. Lib. 6, tit. 1, 1. 15, § 3. ' Ersk. Inst. B. 3, tit. 1, § 10. 8 Dig. Lib. 13, tit. 6, L 5 ; Ayliffe, Pand. B. 4, tit. 16, p. 518; Pothier, Pret a Usage, n. 73, 74; ante, § 238 a; Jones on Bailm. 66; ante, § 194, 257. * [But see Esmay v. Fanning, 9 Barb. 176.] ^ Pothier, Pr^t k Usage, u. 36, 37. The question as to the place where goods are to be delivered frequently arises under contracts for the sale and delivery of specific articles; and the adjudications upon that subject often afford useful illusti-ations in cases of gratuitous loans. Mr. Chancellor Kent, in his Commentaries (Vol. 2, Leot. 39, p. 506 to 509, 3d edit.), has summed up the doctrine in the following terms: " Lord Coke lays down the rule, that if the contract be to deliver specific articles, as wheat, or timber, the obligor is not bound to carry the same abroad, and seek the obligee (as in the case of payment of money), but he must call upon the obligee before the day, to know where he would receive the articles, and they must be de- livered, or the obligor must be ready and able to make the delivery, at the place designated by the obligee. This doctrine was admitted in the case of Aldrich v. Albee (1 Greenl. 120), in which it was declared, that if no place be mentioned in the contract to deliver specific articles (and which in that case were hay, bark, and shingles) , the creditor had the right to name the place. It is evident, however, that this rule must be received with consider- CH. IV.] ON GRATUITOUS LOANS. 235 down any special rules on this subject; but it has left the decision to be made upon the particular circumstances of each able qualification; and it will depend, in some degree, upon the nature and use of the article to be delivered. The creditor cannot be permitted to appoJht an unreasonable place, and one so remote from the debtor, that the expense of the transportation of the articles might exceed the price of them. If the place intended by the parties can be inferred, the creditor has no right to appoint a different place. But if no place of performance be designated, and none can be clearly inferred from collateral circumstances, it seems to have been again admitted, that the creditor may designate a reasonable place for the delivery of the articles. Mr. Chipman also states it as a rule of the common law, well understood and settled in Vermont, that if a note be given for cattle, grain, or other portable articles, and no place of payment be designated in the note, the creditor's place of residence at the time the note is given is the place of payment. The same rule is declared in New York, when the time, but not the place, of the payment of the portable article is fixed. If the article be not portable, but ponderous and bulky, then Lord Coke's rule prevails, and the debtor must seek the creditor, or get him to name a place. And if no place, or an unreasonable one, be named, the debtor may deliver the articles at a place which circumstances shall show to be suitable and con- venient for the purpose intended, and presumptively in the contempla- tion of the parties, when the contract was made. There is a material difference in the reason of the thing between a tender of cumbersome goods, and those which are portable ; and the same removal from one place to another is not equally required in the two cases. There is another class of cases, in which the position is assumed, that, if the par- ties have not designated any particular place of delivery, it is to be at the debtor's residence, or where the property was at the time of the contract; as in the case of a note, payable in farm produce, without mentioning time or place, the place of demand and delivery is held to be at the debtor's farm. It is likewise adjudged, that, where a person, in the character of bailee, promises to deliver specific goods on demand, though the demand may be made wherever he may be at the time, his offer to deliver at the place where the property is, or at his dwelling-house, or place of business, will be sufficient. If the debtor be present in person, or by his agent, and makes a tender of .specific articles at the proper time and place, according to contract, and the creditor does not come to receive them, or refuses to accept them, the better opinion is, that, if the article is properly designated and set apart, the debt is thereby discharged. If the debtor be sued, he may plead the tender and refusal, and he will be excused by the necessity of the case from pleading uncore prist, and bring- ing the cumbersome articles into court. And it is not like the case of a tender of money, which the party is bound to keep good, and on a plea of tender to bring the money into court. The creditor is entitled to the 236 ON GRATUITOUS LOANS. [CH. IV. case, as it shall arise, according to the presumed intention of the parties.! § 262. It is wholly immaterial, whether the thing is returned to the lender, or to his authorized agent, or by the borrower, or by his agent.^ If the thing has been properly delivered to the agent of the lender, the borrower will be discharged, although it never comes to the possession of the lender, by the fraud or neglect of the agent. " Commodatam rem mis- sus qui repeteret, cum recipisset, aufugit. Si dominus ei dari jusserat, domino perit."^ But a mere delivery to the agent of the borrower will not discharge him, unless there is a complete return to the lender, or to his agent.* § 263. Perhaps, also, a delay in the return of the thing may, in some cases, be excused by the imminent danger of loss, if it had been sent at the stipulated time ; for there must be an exercise of due diligence, as to the time and manner of return ; and if the borrower takes undue hazards by returning the thing punctually (^ad punotum temporis'), he may be responsible for any loss occasioned by his rashness. Pothier holds, also, that the borrower is not bound to return it at the stipulated time, if thereby a great damage will accrue to himself.^ So, if his refusal is solely to prevent the commission of a crime, money at all events, whatever may be the fate of the plea; and there is equal reason, that he should be entitled to the specific articles tendered. But in Weld v. Hadley (1 N. II. 295), it was decided, after a very able discussion, that, on a tender and refusal of specific articles, the property did not pass to the creditor. This was contrary to the doctrine declared in other cases; and the weight of argument, if not of authoritj', and the analogies of the law, would appear to lead to the conclusion, that, on a valid tender of specific articles, the debtor is not only discharged from his contract, but the right of property in the articles tendered passes to the creditor. The debtor may abandon the goods so tendered; but if he elects to retain possession of the goods, it i^ in the character of bailee to the creditor, and at his risk and expense." See also Chipman on Contracts for Payment in Specific Articles, p. 25-27; ante, § 117 and note. 1 Ante, § 117 and note. 2 Pothier, Pr6t a Usage, n. 30, 31. 8 Dig. Lib. 13, tit. 6, 1. 12, § 1 ; Pothier, Pand. Lib. 13, tit. 6, n. 18; Pothier, Pret i Usage, n. 41. * Pothier, Pret k Usage, n. 41. ' Pothier, Pret A Usage, n. 42; Id. n. 26. CH. IV.] ON GRATUITOUS LOANS. 237 he may stand excused. As if the lender desires his pistols to be returned, in order to kill another person.^ Pothier also thinks, that the borrower ma)'^ lawfully retain the thing beyond the stipulated time, if he has not entirely finished the business for which it was loaned, and if no injury will thereby occur to the lender. Nay, even if the lender would suffer some preju- dice by the delay, if the borrower would suffer a greater prejudice by returning it, he holds that the borrower may retain it, making a due compensation to the lender.^ Our law would reject these nice distinctions ; and would require the return to be made at the stipulated period, if it could be made without undue hazards or criminality. § 264. The borrower cannot retain the thing borrowed for any antecedent debt due to him. This is the rule of the Ro- man and foreign law, as well as of the common law.** " Prse- textu debiti restitutio commodati non probabiliter recusatur."* The plain reason is, that it would be a departure from the tacit obligations of the contract. No intention to give a lien for a debt can be implied from the grant of a mere favor. § 265. In regard to the person to whom the thing is to be restored. Generally speaking, it is to be restored to the lender, or person entitled to the custody, unless it has been agreed that the restitution shall be to some other person.^ If the lender is dead, it is to be restored to his personal repre- sentative, if known.^ If not known, or no administration is taken on his estate, the borrower may detain the thing until an administration is made known. A restitution to or by an agent is, of course, the same thing as to the lender person- ally.'' If the lender is a woman, and she afterwards marries, restitution is to be made to her husband, and not to her per- sonally. So, if the lender has been put under guardianship, the return must be to his guardian.^ And if the lender has 1 Pothier, Fret k Usage, n. 45. = Pothier, Pr6t a Usage, n. 28. 8 1 Domat, B. 1, tit. 5, § 2, art. 13; Vin. Abridg. Bailment, B. 6; Pothier, Pret a Usage, n. 44. * Cod. Lib. 4, tit. 23, 1. 4; Pothier, Pr6t k Usage, n. 44. 5 Pothier, Pret a Usage, n. 31, 33. • [See Booth v. Terrell, 16 Ga. 26;] {Smiley v. Allen, 13 Allen, 465.} ' Ante, § 262. « Pothier, Pret a Usage, n. 31, 33. 238 ON GRATTJITOTJS LOANS. [CH. IV. become non compos mentis, or a lunatic, and has no guardian, a re-delivery to him will not be good ; but the thing must be kept until a competent party exists, to whom it may be de- livered. ^ But a re-delivery to a minor will be good, if he has not any guardian appointed over him ; and even if he has a guardian, if the thing has been usually intrusted to the minor by his guardian.2 § 266. Even if the lender is not the owner of the thing, the borrower must ordinarily restore it to him, and has no right to set up the title of a mere stranger against him ; for the lender has, by his contract, a right to be reinstated in his possession.^ However, if, in the mean time, a recovery has been had against the borrower without his default,* or if the thing has been attached in his hand in an adverse suit, that will constitute a suiScient excuse.^ If the borrower actually restores the thing to the true and real owner, without any injury or injustice to the lender, he will no longer be liable to any action.^ In like manner, if the thing is taken out of the possession of the borrower by the real owner,^ or if, upon a threat by such owner to sue him, he has delivered up the thing to him, he will be discharged.^ § 267. If the loan has been to several persons jointly, they are all responsible in solido (each for the whole), for the re- turn ; and of course, a return by one is a discharge of all, as 1 Pothier, Pret k Usage, n. 34. ^ Pothier, Pret i Usage, n. 35. 3 Pothier, PrOt a Usage, n. IS, 46; ante, § 230. * Edson i\ Weston, 7 Cow. 278; Wilson v. Anderton, 1 Barn. & Adolph. 450; ante, § 120. [See Sheridan v. New Quay Co., 4 C. B. N. s. 650 [where, in the case of a carrier, the above passage is criticised by the court j and note; European Royal Mail Co. r. Royal j\Iail Co., 10 Id. 860; Cheesman v. Exall, 6 Exch. 341 ; Biddler. Bond, 34 L. J. Q. B. 137 (186.5). J 5 Pothier, Pret ii Usage, n. 46 ; ante, § 120. « Whittier v. Smith, 11 Mass. 211 ; (The Idaho, 93 U. S. Supr. 575.} ' Shelbury v. Scotsford, Yelv. 23. [So it has been held that, if the article is taken from the possession of the bailee by a superior force, this is a defence. Watkins v. Roberts, 28 Ind. 167.] * Wilson V. Anderton, 1 Barn. & Adolph. 450, per Littledale, J. {Nor can the borrower set up a title in himself to justify violating his promise to return it. Simpson v. Wrenn, 50 111. 222; Nudd k. Montayne, 38 Wis. 511. Whether the fact that the lender has become a bankrupt affects CH. IV.] ON GEATUITOtrS LOANS. 239 a misuser by one is a misuser by all.^ The French Code and the Code of Louisiana have in like manner made the joint borrowers responsible in solido.^ § 268. As to the state or condition in which the thing is to be restored. The borrower not being liable for any loss or de- terioration of the thing, unless caused by his own neglect of duty, or that of persons for whom he is responsible, it follows, that it is suiBcient, if he returns it in a proper manner, and at the proper time, however much it may be deteriorated from accidental or other causes, not connected with any such neg- lect.^ Thus, if the loss or deterioration shall have arisen from the wrongful act of a third person, which the borrower could neither foresee nor prevent, he will not be responsible there- for, any more than if it had happened by mere accident, or the vis major ; for it is not possible, by any care or diligence, to guard against such an act. The Roman law states this doc- trine in a very satisfactory manner. " Ad eos, qui servandum aliquid conducunt, aut utendum accipiunt, damnum injuria, ab alio datum non pertinere, procul dubio est. Qu& enim cur^ aut diligeuti^ consequi possum us, ne aliquis damnum nobis in- juria, det ? " * Nor will it make anj-^ difference, that the dete- rioration has arisen from the use made of it by the borrower, if that use is reasonable, and not beyond what was contem- plated by the parties ; for, by the loan, the lender has taken upon himself to bear the loss consequent upon such a use.^ Thus, if A. lends B. a cloak to wear on a journey from Bos- ton to Washington and back again, the injury by the wear and tear of the journey must be borne by A.® So, if A. the borrower's obligation, see Lain v. Gaither, 72 N. C. 234. See, as to general acts of ownership assumed by the borrower without the lender's assent, McMahon v. Sloan, 12 Penn. St. 229; Crump v. Mitchell, 34 Miss. 449.} ' Pothier, Pret k Usage, n. 65. ^ Code Civil of France, art. 1887; Code of Louisiana (1825), art. 2876. » Pothier, Pret a Usage, n. 38,40; Dig. Lib. 13, tit. 6, L 19; ante, §240. 4 Dig. Lib. 13, tit. 6, 1. 19 ; Pothier, Pr6t k Usage, n. 38. 6 Pothier, Pr6t a Usage, n. 39; Dig. Lib. 13, tit. 6, § 23. 8 Pothier, Pret a Usage, n. 39. 240 OK GRATUITOUS LOANS. [CH. TV. lends B. his horse for a long journey ; and, by the natural fatigues of such a journey, the horse is injured, it is A.'s own loss.' § 269. By the Roman law, wherever the thing borrowed is returned in an injured or deteriorated state by the default of the borrower, the latter is responsible for all damages, not- withstanding the return, at least, if there has not been an express or implied waiver of any damages by the lender. " Si reddita quidem sit res commodata, sed deterior reddita, non videbitiir reddita, quae deterior facta redditur, nisi quod interest, prsestetur. Proprie enim dicitur res non reddita, quae deterior redditur." ^ If the thing is materially damaged, the owner may refuse to receive it back ; but it is otherwise, if the damage is inconsiderable.^ By the common law, if the act by which the injury is occasioned is a mere negligence, the remedy would be by an action on the case, in which damages for the injury only would be recovei'able.* But wherever it amounts to a misfeasance and conversion of the property, there the owner is not bound to receive it back, but may re- cover the full value of it in a suitable action, as, for example, in an action of trover.^ If he does receive it back, he will still be entitled to damages for the injury, in a like action, or an action on the case.^ So, if the thing has been returned, but not at the proper time, the lender is entitled to recover damages for the delay." If, by any improper use of the thing loaned, the borrower has made a profit, that profit also be- longs to the lender.^ § 270. In the next place, as to the obligations on the part 1 Pothier, Pret a Usage, n. 39 ; Dig. Lib. 13, tit. 6, 1. 23; 1 Domat, B. 1, tit. 5, § 2, art. 6, 12. 2 Dig. Lib. 13, tit. 6, 1. 3, § 1; Pothier, Pret & Usage, n. 69. 8 Pothier, Pret k Usage, n. 69-71. * 1 Selw. N. P. 432, 11th edit. 6 j^nte, § 232. ^ Bayliss u. Fisher, 7 Bing. 153; Paley on Agency, by Gow, 73, 74, n. (e) ; Id. by Lloyd, p. 70, 80; Syeds v. Hay, 4 Term R. 264; Peake, N. P. 49; Murray B. Burling, 10 Johns. 172; Gibbs v. Chase, 10 Mass. 125; Wheelock v. Wheelwright, 5 Mass. 104 ; Bowman u. Teall, 23 Wend. 306; post, § 541, 578; Todd o. Figley, 7 Watts, 542. ' Pothier, Pr6t a Usage, n. 72. ' Pothier, Pret a Usage, n. 73. CH. IV.] ON GEATTTITOUS LOANS. 241 of the lender. These, as the nature of a gratuitous loan would naturally lead us to presume, are few, and merely accessorial. § 271. In the Roman law, the first obligation on the part of the lender is, to suflFer the borrower to use and enjoy the thing loaned during the time of the loan, according to the original intention, without any molestation or impediment, under the peril of damages. If he is not positively bound, like a letter to hire, to guarantee the use of the thing, he is at least bound to abstain from doing any act, by which the thing loaned may be less useful to the borrower : " Per se hseredemque suum non fieri, quo minus commodatorio uti liceat." ^ And, therefore, if by any act of the lender the borrower is molested or impeded or injured in the use of the thing loaned during the stipulated period, he is by the Roman law entitled to an action for damages.^ The modern nations of Continental Europe have adopted the same rule.^ We have already seen, that by the common law the bailment may be terminated at the pleasure of the lender, and that it is always deemed a precarious loan.* § 272. But if, during the time of the use, a stranger molests or disturbs the borrower in the use, there the remedy of the borrower is solely against the stranger, and not against the lender, unless the stranger derives a title from the lender, or does the act by his connivance ; or unless the loan is made in bad faith by the lender, knowing that the title is in the stranger, who will reclaim it.^ § 273. Another obligation of the lender, by the Roman and foreign law, is to reimburse the borrower the extraordinary expenses to which he has been p\it for the preservation of the thing lent.^ The borrower (as we have already seen) is 1 Pothier, Pr6t k Usage, n. 20, 75, 76, 77 ; 1 Domat, B. 1, tit. 5, § 3, art. 1, 2 ; Dig. Lib. 13, tit. 6, 1. 17, § 3 ; ante, § 257. 2 Dig. Lib. 13, tit. 6, L 5, § 8. 8 Pothier, Pr6t a Usage, n. 78. * Vin. Abridg. Bailment, D. ; Bac. Abridg. Bailment, D. ; ante, § 257, 258 ; post, § 277 ; Jones on Bailm. 45. 6 Pothier, Pr6t h Usage, n. 79, 80; ante, § 266, 268. 6 Pothier, Prdt k Usage, n. 81. 16 242 ON GEATTJITOUS LOANS. [CH. IV. compellable to bear the ordinary expenses ; for, the loan being for his benefit, he must be presumed to engage to bear the burden as an incident to the use.^ But the extraordinary expenses are at the risk of the lender.^ Thus, if a horse is lent for a journey, the ordinary expenses of the horse on the journey are to be borne by the borrower. But if the horse is taken sick, the extraordinary expenses of the cure are to be paid by the lender. So, if the horse is stolen, the extraordi- nary expenses of pursuit and recapture are to be paid by the lender.^ Upon the same reasoning, if a coach is lent for a journey, the ordinary repairs of a slight nature during the journey will belong to the borrower ; but those of an extraor- dinary nature, as procuring a new wheel for one which has failed, will belong to the lender. In all these cases the bor- rower will have a lien on the thing, and detain it until these extraordinary expenses are paid ; and the lender cannot, even by an abandonment of the thing to the borrower, excuse him- self from the repayment. Nor is he excused by the subsequent loss of the thing by accident ; nor by a restitution of it by the borrower, without insisting upon the repayment.* § 274. No case seems to have arisen iu the common law, where this precise question has occurred in judgment. Prob- ably, in such a case (for it cannot be asserted to be clear), in the absence of all countervening presumptions, if the repairs had conferred a permanent benefit upon the thing loaned, be- yond the mere use for the journey, an obligation to reimburse the borrower to that extent might be implied. There might be more diificulty in regard to the cure of the sick horse, the expenses of which cure might reasonably be presumed to be a charge on the borrower within the scope of the contract, as necessary to his further use upon the journey.^ § 275. Another case of implied obligation on the part of the lender, by the Roman law, is, that he is bound to give notice 1 Ante, § 256; 1 Domat, B. 1, tit. 5, § 3, art. 4. 2 Pothier, Prtt k Usage, n. 81. 8 Pothier, Pr^t a Usage, n. 81; 1 Domat, B. 1, tit. 5, § 3, art. 4; post, §389. « Pothier, Prdt k Usage, n. 43, 82, 83; Dig. Lib. 13, tit. 6, 1. 18, § 2, 4. 6 Ante, § 121, 121 a, 256. CH. IV.] ON GEATTJITOUS LOANS. 243 to the borrower of the defects of the thing loaned ; and if he does not, and conceals them, and an injury occurs to the bor- rower thereby, the lender is responsible.^ The ground of this doctrine is, that when we lend we ought to confer a benefit, and not to do a mischief. " Adjuvari quippe nos, non decipi beneficio oportet." ^ One case put in the Roman law is, where a party lends vitiated or defective casks, and the wine or oil put into them by the borrower leaks out, or is spoiled thereby, from want of notice of the defect, the lender is answerable. " Qui sciens vasa vitiosa commodavit, si ibi infusum vinum, vel oleum corruptum effusumve, condemnandus eo nomine est." 3 A more stringent case would be, where a vicious horse is lent to put into a chaise for a ride, or drive, with a conceal- ment of his defects, and thereby the chaise is broken to pieces, and the borrower is injured in his limbs. How our law would deal with such cases, where there is no fraud in the conceal- ment, does not appear to have been decided.* § 276. Another case of implied obligation on the part of the lender, in the Roman law, arises where the thing has been lost by the borrower ; and, after he has paid the value thereof to the lender, the thing is restored to the lender. In such a case, the lender by that law must return to the borrower either the price paid, or the thing ; for, by such payment of the loss, the property is effectively transferred to the borrower.^ " Rem commodatam perdidi, et pro eS, pretium dedi, delude res in potestate tu^ venit ; Labeo ait, contrario judicio aut rem 1 Pothier, Pr6t k Usage, n. 84. 2 1 Domat, B. 1, tit. 5, § 3, art. 3; Dig. Lib. 13; tit. 6, 1. 17, § 3; Id. 1. 18, § 3. ' Pothier, Prfit^ Usage, n. 84; Dig. Lib. 13, tit. 6, 1. 18, § 3; Pothier, Pand. Lib. 13, tit. 6, n. 28; 1 Domat, B. 1, tit. 5, § 3, art. 3. * See post, § 390, 391. [But this question has been carefully examined in a late English case, and the general doctrine above laid down fully approved. Blakemore v. Bristol & Exeter Railway Co., 8 El. & Bl. 1035, {per Coleridge, J.,} although the case turned upon another point. In a still more recent case it was adjudged that a gratuitous lender of an article is not liable for an injury to the borrower while using it, from a defect of which the lender was not aware. MacCarthy v. Young, 6 H. & N. 329 (1861).] 6 Pothier, Pr6t a Usage, n. 85; Dig. Lib. 13, tit. 6, I. 17, § 5. 244 ON GRATtJITOUS LOANS. [CH. rv. mihi prsestare te debere, aut, quod a me accepisti, reddere." ' The result is the same, if a recovery of the full value is had by the lender in a suit against the borrower for an alleged conversion of the thing. In such a case the property, by a satisfaction of the judgment, is transferred to the borrower.^ Under such circumstances, the borrower is deemed to be sub- rogated to the rights of action of the lender to recover the thing lost or injured, if found in the possession of any stran- ger ; for, when he has paid the full value thereof he has a clear right to have the beneficial interest secured to him.^ The common law seems, for the most part, to recognize the same principles, although it would not, perhaps, be easy to cite any case of a gratuitous loan directly on the point.* Where the full price has been paid, or a judgment and satis- faction has been obtained for the full value of the thing lost, the common law treats the right of property as absolutely transferred to the borrower ; and the lender has no such elec- tion as is given by the Roman law, to return the money or price paid, and to receive back the thing loaned, if afterwards found.^ Whether, in case the thing lost had a peculiar per- sonal value, such as a present from a friend, a unique copy of a rare work, or a fine picture of an ancient master, if the value had been paid under the supposition of an absolute loss or destruction of tlie thing, the lender might not, upon an offer to return the value paid, be entitled to relief in equity for a restitution of it when found, is a point which may deserve consideration ; since, under such circumstances, it may be open to the suggestion, that the settlement is founded upon a mistake, or is conditional merely ; that is, that the lender will be content with the value only in case that the thing is never 1 Dig. Lib. 13, tit. 6, 1. 17, § 5; Pothier, Pand. Lib. 13, tit. 6, n. 27; Pothier, Prtt i Usage, n. 85. = Pothier, Pr^ta Usage, n. 68; Greenleaf on Evid. § 533. [See Buck- land V. Johnson, 26 Eng L. & Eq. 328 ; and Bennett's note.] 8 Pothier, Pret k Usage, n. 68. * Adamau. Broughton, 2 Str. 1078; Lamine v. Dorrell, 2 Ld. Raym. 1216 ; Broome v. Wooton, Yelv. 67 j, and Mr. Metcalf snote (1) ; White V. Philbrick, 5 Greenleaf, 147, [and Bennett's note to 2d edit. ;] Camp- bell V. Phelps, 1 Pick. 62; post, § 414. s Post, § 414. CH. IV.] ON GKATUITOUS LOANS. 245 found. Pothier has also put the case, whether the borrower, also, after he has paid the price or value of the thing lost, is entitled, upon finding it again, to receive back the price or value paid upon tendering the thing to the owner ; and he decides, that he is not so entitled ; because in the mean time the owner may have supplied himself with another thing for the same purpose.' § 277. We next come to the consideration of the right or power of the lender to make a revocation of the loan. How far the lender may revoke the loan at his mere pleasure, has been already incidentally noticed ; ^ and it seems that by the common law all such loans are deemed precarious, and during the mere will and pleasure of the lender.^ But there are also revocations implied by law, as by a change of the state or condition of the parties. Thus, the death of the borrower will ordinarily operate as a revocation of the loan ; for it is presumed to be a matter of personal confidence and benefit.* But, if such a presumption does not arise from the nature and circumstances of the loan, the Roman law deems the death of the party no revocation.* On the other hand, the death of the lender does not by the Roman law operate as a revocation of the loan, unless it is of the nature called precarious, or during pleasure.^ The general analogy of the common law would lead us to the conclusion, that the death of either party would amount to a revocation of a gratuitous loan. Thus, if a woman, after a bailment made by her, or to her, contracts marriage, that operates as a termination or revocation of the bailment.'^ § 278. In this class of bailments, also, the question may arise, upon whom, in case of any damage or loss to the thing loaned, the burden of proof rests ; whether upon the lender to 1 Pothier, Pr6t k Usage, n. 68. 2 Ante, § 257, 258, 271. ' Orser v. Storms, 9 Cow. 687; Putnam v. Wiley, 8 Johns. 432; Smith V. Milles, 1 Term R. 480; ante, § 227, 258 ; Jones on Bailm. 45. * Pothier, Pret k Usage, n. 27. 6 Ibid. 6 1 Domat, B. 1, tit. 5, § 1, art. 13. ' Vin. Abridg. Bailment, D. ; Story on Agency, § 462, 480 to 500. {See Sch. Dom. Eel. 74; Hagebush v. Eagland, 78 111. 40. j 246 ON GEATUITOTJS LOANS. [CH. IV. establish the neglect of the borrower, which renders him re- sponsible, or upon the latter to establish his innocence, and to show that the damage or loss has been without any neglect. Pothier, in several passages, intimates his own opinion to be, that the burden of proof is on the borrower.^ This, also, is the doctrine of the Roman law.^ " In exceptionibus dicendum est, reum partibus actoris fungi oportere, ipsumque excep- tionem, velut intentionem, implere (id est, probare debere)."^ It is, perhaps, not easy to lay down any absolute rule on this subject, as the rule of the common law, which might not be subject to some exceptions. Where a demand of the thing loaned is made, the party must return it, or give some account how it is lost. If he shows a loss, the circumstances of which do not lead to any presumption of negligence on his part, there the burden of proof might, perhaps, belong to the plaintiff to establish it. There are cases, at least, in which it has been held, that the plaintiff must prove the negligence under special circumstances.* But where there is a demand of the thing 1 Pothier, Pr6t i Usage, n. 40. 41 ; Pothier on Oblig. n. 620 (n. 656 of the French editions) . Pothier, in his work on ObUgations, n. 620, uses the following language: " There remains a question upon this subject ; where the debtor of a specific thing, who has not taken upon himself the risk of accidents, and is only answerable for his own neglect, alleges that the thing is lost without his fault, or by accident, is it incumbent on the creditor to prove, that the loss was occasioned by the fault of the debtor; or, on the other hand, must the debtor prove the accident, which he alleges to have taken place? I think that the proof is incumbent on the debtor. If the person, who asserts a claim, is obliged to show the foundation of that claim by proof, the other party is equally bound to prove what constitutes the foundation of his defence. The creditor, who demands payment of what his debtor has engaged to give him, ought to prove the credit which is the foundation of his demand. The debtor, who resists that demand, upon the plea that he is discharged by an accident which occasioned a loss of the thing due, should prove the accident which is the foundation of his defence." Ante, § 212, 213; post, § 339, 410, 454, 529. 2 [See also Bennett v. O'Brien, 37 111. 250; Cumins v. Wood, 44 111. 416.] s Dig. Lib. 22, tit. 3, 1. 19; Pothier on ObUgations, n. 620 (n. 656, French editions). * Harris v. Packwood, 3 Taunt. 284; Abbott, C. J. , in Marsh v. Home, 5 Barn. & Cress. 322; Piatt ^. Hibbard, 7 Cow. 497, 500, note; Door- man V. Jenkins, 2 Adolph. & Ellis, 256, 259; ante, § 64 a; Beardslee v. CH. IV.J ON GEATUITOTTS LOANS. 247 loaned, and a general refusal, without any special excuse stated or proved at the time of the demand, there the burden of proof would seem to be on the defendant, to negative the primd facie right of recovery thus made out by the plaintiff.^ And in many complicated cases of evidence, the burden of proof may alternately shift from one party to the other, in different stages of the trial.^ § 279. There is another point, in respect to the rights of the lender and the borrower, which it may be of some impor- tance to mention, although it has been somewhat considered under other heads. It is, who is to be deemed the owner or proprietor of the thing during the period of the loan, or, in other words, whether the borrower has a special property in it, or only a bare or naked possession. By the Roman law the lender still retains the sole proprietary interest, and nothing passes to the borrower, but a mere right of possession and user of the thing during the continuance of the bailment. Nay, the possession of the borrower is deemed the possession of the lender. " Rei commodatse et possessionem et proprietatem retinemus ; Nemo enim commodando rem facit ejus, cui com- modat." Such is the doctrine of the Roman law, as well as the Continental jurisprudence founded on it in modern times. ^ The same rule seems to prevail in the common law ; so that an action for a trespass or conversion will lie in favor of the lender against a stranger, who has obtained a wrongful possession, or has made a wrongful conversion of the thing loaned.* A mere gratuitous permission to a third person to use a chattel does not, in the contemplation of the common law, take it out of the possession of the owner, so as to prevent him from maintaining Richardson, 11 Wend. 25; ante, § 212, 213, and note; post, § 339, 41C, 454, 529. [See Am. Law Review, Boston, Jan. 1871,] {p. 205 et seq. ; an article by Judge E. H. Bennett on the Burden of Proof in Cases of Negligence. } 1 Ante, § 212, 213, and note, 214; [Logan v. Mathews, 6 Penn. St. 417 ; Bush v. Miller, 13 Barb. 482.] 2 See ante, § 212-214 ; post, § 339, 410, 454, 529. 8 Dig. Lib. 13, tit. 6, 1. 8, 9 ; Pothier, Pret k Usage, n. 5, 9; Aylifie, Pand. B. 4, tit. 16, p. 517; 1 Domat, B. 1, tit. 5, § 1, art. 4. * Ante, § 93, 93 a, 94. 248 ON GRATUITOUS LOANS. [CH. IT. an action for any injury to it, or for any conversion of it by a third person.^ § 280. But, notwithstanding the borrower has no special property in the thing loaned, still it seems, that, if the injury done by a stranger is of such a nature that the bailee would be liable over to the lender for it, the latter may maintain an action of trespass, and even of trover, founded upon his pos- session, to recover damages ; for the mere possession of prop- erty without title is sufficient against a wrong-doer.^ It has been affirmed by a learned judge, that a simple bailee has a sufficient interest to sue in trover.^ The same doctrine is laid down in Blackstone's Commentaries, in very strong and decided terms.* Indeed, it may now be affirmed, as a general doctrine, 1 Thorp w. Burling, H Johns. 285; Kurd ». West, 7 Cow. 753; Orser I'. Storms, 9 Cow. 687; 2 Sannd. 47 b, by Williams; Bac. Abridg. Tres- pass, C. 2; Id. Trover, C. ; Smith . Wiley, 8 Johns. 432; Hoyt u. Gelston, 13 Johns. 141, 561; Nicolls v. Bastard, 2 Cromp., Mees. &Rosc. 659; ante, § 93, 93 a to 94; 2 Kent, Comm. Lect. 40, p. 574, 4th edit. In Bac. Abridg. Bailment, C, it is said, in one place, that if a man lends another his sheep, oxen, or his cart, the borrower hath a qualified property in them, according to the purposes for which they were borrowed ; and the Doctor and Student, Dial. 2, ch. 38, is cited. But there is nothing in the latter book as to the point of special property in the borrower. On the other hand, it is stated in Bac. Abridg. Bailment, C, in another place, that if a man lend another his sheep to stock his land, the borrower hath a bare use of them. But if he kill them, the owner shall have a general action of tres- pass, or an action of trover, at his election ; for though the use is in the bor- rower, yet the property is in the lender, and the killing of the sheep is an open violation of another's property. And for this is cited Co. Litt. 57, which supports the text. In Roberts v. Wyatt, 2 Taunt. 275, Lord Chief Justice Mansfield took a distinction between a special property and a tem- porary property upon a bailment. [See Booth v. Terrell, 16 Ga. 25.] 2 Hurd V. West, 7 Cow. 753; Bac. Abridg. Trespass, C. 2; Burton v. Hughes, 2 Bing. 173 ; Sutton v. Buck, 2 Taunt. 302 ; Rooth v. Wilson, IBarn. & Aid. 59; 2 Ld. Raym. 911; Barker v. Miller, 6 Johns. 195; Badlam v. Tucker, 1 Pick. 889, 395 ; Waterman «. Robinson, 5 Mass. 303; Bao. Abridg. Bailment, D. ; 2 Black. Comm. 453; 1 Dane, Abridg. ch. 17, art. 9; ante, § 93 a to 94. 8 Burton v. Hughes, 2 Bing. 173, 175, per Lord Ch. J. Best. See also Ogle V. Atkinson, 5 Taunt. 759 ; Hurd v. West, 7 Cow. 753; Armorie v. Delamirie, 1 Str. 505; Nicolls v. Bastard, 2 Cromp., Mees. & Rose. 659. * 2 Black. Comm. 453. See also ante, § 93, 94, 150, 152. CH. IV. J ON GEATUITOTTS LOANS. 249 that, in cases of a simple bailment without reward, an action may be maintained, either by the bailor or by the bailee, for any wrong done to the bailee's possession.^ § 281. There is a very loose note of a case before Lord Holt,^ which contains two positions said to have been laid down by his Lordship on the subject of bailments, which may seem to require notice. One is, that if A. bails the goods of C. to B., and C. brings detinue against B. for them, the latter may plead the bailment to him by A. to be re-delivered to A., and so bring in A. as garnishee to interplead with C. It does not appear under what circumstances this opinion was expressed ; and it is by no means clear, that in all cases such a plea would be good even for the purposes of interpleader at the common law, however the case ma}'^ be in equity.^ Generally speak- ing, a bailee cannot, as we have before seen, be in a better situation than the person from whom he has received the property.* If the latter has no title to detain the property against the owner, the bailee cannot do it ; and his detention of it is a conversion.^ § 282. The other position is, that if A. bails goods to C, and afterwards transfers his whole right in them to B., B. cannot maintain detinue for them against C, because the special prop- erty that C. acquires by the bailment, is not thereby trans- ferred to B.^ This position also seems questionable. For if the bailment is a naked bailment, no special property passes to C. ; and what difficulty can there then be in A.'s trans- ferring his property to a thing in the possession of his agent or bailee ? Even if a special property did pass to the bailee by a simple bailment, yet the bailment and special property would be determined by the sale and due notice thereof to the bailee ; and the bailor would by the sale transfer the gen- eral property. Nothing is more common than a transfer by a principal of his property in goods in the hands of his fac- 1 NicoUs V. Bastard, 2 Cromp., Mees. & Rose. 659; ante, § 93, 93 a to 94. 2 Rich V. Aldred, 6 Mod. 216; ante, § 108. ' Ante, § 110-112. See also 2 Story on Eq. Jurisp. § 805 to 809; Id. § 814 to 820; 3 Reeve's Hist, of the Law, ch. 23, p. 453, 454. * Wilson V. A-nderton, 1 Barn. & Adolph. 450 ; ante, § 102, 110. 6 Ibid. ' Ante, § 103. 250 ON GEATUITOTJS LOANS. [CH. IV. tor ; and no one doubts that it is a valid transfer, subject only to any lien which the factor may possess thereon. So, a transfer of goods, while at sea in the possession of the master of a ship, is deemed a valid transfer ; and if he refuses to de- liver them upon a due demand and refusal, the vendee may maintain a suit against him for a recovery of them or their value. There is great reason, therefore, to suspect the accu- racy of the report in both respects. § 288. We have already had occasion to notice the distinc- tion between a mutuum and a commodatum. In the latter case, no special property passes to the borrower.^ In the for- mer case (a mutuum'), the absolute property passes to the borrower, it being a loan for consumption, and he being bound to restore, not the same thing, but other things of the same kind.^ Thus, if corn, wine, money, or any other thing which is not intended to be re-delivered back, but only an equiva- lent in kind, is lost or destroyed by accident, it is the loss of the borrower ; for it is his property, and he must restore the equivalent in kind ;^ and in such cases the general rule is: "Ejus est periculum, cujus est dominium."* In one case in New York, the accuracy of this doctrine seems to have been brought into doubt. There a person sent to a miller a quantity of wheat to be exchanged for flour, and the miller mixed it with a mass of wheat of the same quality, belong- ing to himself and others. Before the flour was delivered to the party, the mill with all its contents was destroyed by an accidental fire, without any fault or negligence of the miller. It was held by the court, in a suit by the party who sent the wheat, that the miller was not responsible for the loss, and was not obliged to deliver the flour. The ground was, that the contract was not a sale of the wheat, and the property in 1 Ante, § 47. ^ Jones on Bailm. 6i; 2 Ld. Raym. 916; 1 Dane, Abridg. ch. 17, art. 11, 16; 1 Bell, Comm. § 197, 4th edit.; 1 Bell, Comm. p. 255, 5th edit.; ante, § 47, 228; Hard v. West, 7 Cow. 752, 756. 8 Noy, Max. ch. 43; Jones on Bailm. 64, 102 ; ante, § 47, 228; Pothier, Prfit de Consumption, n. 50; Pothier on Oblig. n. 622 (n. 658 of the French editions); Doot. and Stud. Dial. 2, ch. 38; post, § 439. * 1 Stair, In§t. B. 1, tit. 11, § 2. CH. IV.] ON GEATUIT0X7S LOANS. 251 it was not transferred to the miller.^ Now, in this case, if the flour to be returned was to be that to be ground out of the specific wheat delivered, the decision of the court stands upon acknowledged principle. But if other flour, only equal to that which would be ground out of wheat of a like kind and quality, was to be returned, it was a clear case of mu- tuum, and the defendant (the miller) was responsible ; for the wheat, on the delivery, became his prope^tJ^ The latter would seem to have been the actual posture of the case. But the Court must have proceeded upon the ground that it was a bailment of hire.^ The decision in this case has been point- edly disapproved, upon its own circumstances, by Mr. Chan- cellor Kent, in his Commentaries ; and his opinion is supported by a later decision in the same State.^ The common law is coincident with the Roman law on this point, as Sir William Jones has sufficiently pointed out.* § 284. In the Scottish law, there is a peculiar word, fungi- Ue, which is used to designate such articles as may be the subject of contracts of mutuum. A fungible, in that law, is defined to be any thing whatever which consists in quantity, and is regulated by number, weight, or measure, — such as corn, wine, or money ; and it answers to the description, in ^ Seymour v. Brown, 19 Johns. 44. [This case has been overruled. See Smith v. Clark, 21 Wend. 83; Pierce ». Schenck, 3 Hill, 28, 31, note (a); Baker v. Woodruff, 2 Barb. 520; Norton v. Woodruff, 2 Comst. 153; Mallory w. Willis, 4 Comst. 76; Wadsworth v. AUcott, 2 Selden, 64; Foster iJ. Pettibone, 3 Selden, 433.] '^ The case of Slaughter v. Green, 1 Rand. (Va.) 3, must be supported, if at all, upon the same ground. [See Inglebright v. Hammond, 19 Ohio, 337.] {See further, upon this principle of miKture, 2 Sch. Pers. Prop. 44, and cases cited ; Chase v. Washburn, 1 Ohio St. 244; Lonergan v. Stew- art, 55 111. 44; Gushing v. Breed, 14 Allen, 376 ; Warren v. Milliken, 57 Me. 97; The Idaho, 93 U. S. Supr. 575: ante, § 40; Dierkson v. Cass Co. Mill, 42 Iowa, 38. } » 2 Kent, Coram. Lect. 40, p. 589, 4th edit.; Kurd v. West, 7 Cowen, 752, 756, note; Buffum ». Merry, 3 Mason, 478; Ewing v. French, 1 Blackf. 353; post, § 439. * Jones on Bailm. 102; Dig. Lib. 19, tit. 2, 1. 31 ; Pothier, Pr6t de Con- sumption, n. 4, 5, 6, 13 ; Doct. and Stud. Dial. B. 2, ch. 38; Bac. Abridg. Bailment, C. [And see the very recent case before the Privy Council, of South Australian Ins. Co. v. Randell, 6 Moore P. C. n. s. 341.] 252 OK GEATUITOTJS LOAKS. [CH. IV. the Roman law, of things of which there may be a " mutuum, quae pondere, nnmero, et mensurS. constant." ^ The word/ww- gihle is used in the French law to express the same notion. Both words are derived from the Latin word fungibiles ; be- cause (as Pothier says), " Earum natura est, ut aliae aliarum ejusdem generis rerum vice fungantur."^ § 285. Here ends the intended commentary on the Contract of Gratuitous Loans, a subject of daily occurrence in the ac- tual business of human life. It has, however, furnished very little occasion for the interposition of judicial tribunals, for reasons equally honorable to the parties, and to the liberal spirit of polished society. The generous confidence thus be- stowed is rarely abused ; and if a loss or injury unintention- ally Occurs, an indemnity is either promptly offered by the borrower, or compensation is promptly waived by the lender. 1 1 Bell, Comm. § 199, 4th edit.; 1 Bell, Comm. p. 255, 5th edit. ; 1 Stair, Inst. B. 1, tit. 11, § 2, 4; Heinec. Elem. Band. Lib. 12, tit. 1, § 3. Heineccius uses the same word to express the same things, ' ' res fungibiles. " Heineo. Elem. Pand. P. 3, Lib. 12, tit. 1, § 5. Ayliffe, also, uses the word " fungible." Ayliffe, Pand. B. 4, tit. 11, p. 481. " Mutui datio " (says the Roman law), " consistit in his rebus, quae pondere, numero, mensura, consistunt; quoniam eorum datione possumus in creditum ire, quia in suo genere functionem recipiunt per solutionem, quam specie." Dig. Lib. 12, tit. 1, 1. 2, § 1; Pothier, Pr6t de Consumption, n. 25; ante, § 47. 2 Pothier, Prfit de Consumption, n. 25. Pothier has devoted an entire treatise to the law arising out of the contract of mutuum. It does not seem to me, that in our law it requires any such distinct examination, as it falls under the general head of sale or barter, and is governed by the same general rules. {See ante, § 228, and notes.} CH. v.] OK PAWNS OR PLEDGES. 253 CHAPTER V. ON PAWNS OR PLEDGES. [§ 286. Definition of a Pawn or Pledge. 287. Distinction between a Pawn and a Mortgage. 288. Hypothecation without Possession, in what cases. 288 n. {" Collateral security " as applied to Pawns and Mortgages.! '" 289. The Essence of the Contract of Pawn or Pledge. 290. It must be of Personal Property ; jincorporeal kinds, whether included.[ 290 a. Whether by Civil Law only j corporeal kinds} might be pledged. 291. Whether the Pawnor need be owner of the Pledge. 292. Increase of Pledge, whether subject to the Contract. 293. What may not be pawned by the Civil and Common Law. 294. Whether any Future Interest the proper subject of a Pawn. 295. I Right to pledge a limited or special interest. } 296. Pawn of Negotiable Instruments { by one who possesses without owning. [ 297. Delivery of the Pawn, Necessity of, at Common Law. 298. How far necessary by Civil and Foreign Law. 299. Effect of Redelivery. 300. For what Debts and Engagements a Pawn may be Security. 301. Extent of the Security. 302. Pawn, Contract of, between what persons. 303. Rights of Pawnee ; — Special Property. 304. Whether Pawn may be retained for other Debts. 305. Rule of the Civil Law on this subject. 306. Expenses of Pawn. 306 a. The same subject. Rules of Foreign Law. 307. Special Property in Pawn, how far by Civil and Foreign Law. 308-310. Sale of Pawn. Judicial Sale. ' 311. Distinction between Pawns and Liens in regard to sale. 312, 813. Rights of Creditors on Proceeds of Sale. Roman and Common Law. 314. Sale of Pawns, when composed of Different Articles. 315. Right of Pawnee to sue personally for the Debt. 316. Whether Pawnee can be compelled to such Suit by the Civil Law. 317. Effectof Stipulation prohibiting Sale jor prescribing its terras.} 318. jPawnee cannot appropriate pawn.} 319. Sale must be bona fide; {Pawnee cannot purchase.} 320. Whether a Pawnee is compelled to sell ; jhis right to retain.} 321. Negotiable Securities in Pawn, how disposed of ; — Compromise with Debtor. 322. Transfer of Pawn by Pawnee. 323. Transfer of Negotiable Securities. 254 ON PAWNS OK PLEDGES. [CH. V. § 324. Transfer by Pawnee in Pledge. 325. Common Law Doctrine of Pledge by Factors, in England. 326. In America. 327. Pledge by the Pawnee, when good by the Common Law. 328. "When by the Civil Law. 329. 380. Use of the Pawn by Pawnee. 331. Use by the Civil Law. 332. Duties of the Pawnee. Diligence, what degree required. 333-339. Whether Theft is presumptive evidence of Fraud. Duty of Pawnee to return Pawn. Onus Prohundi in case of Loss. 340. When Pawn may be delivered to original Owner, if he is not the Pawnor. 341. Effect of Refusal to return the Pawn. 342. Liability of Pawnee for Acts of Omission as well as of Commission. 343. Pawnee, how and when to render an Account. 344. Antichresis, what in Civil Law. Welsh Mortgage. 345. Eights of Pawnor. Right of Redemption. 346. Time of Payment. Lapse of Time. 347. Prescription, and Statute of Limitations. 348. Time to redeem, when not fixed by the Parties. 349. Effect of Sale before Offer of Redemption. 350. Sale and Transfer by Pawnor. 351. Damage to Pawn ; {Owner's recompense. [ 352. Pawnee has a Special Property. Action for Damage by a Stranger. 353. Pawns not seizable on Execution. 354. Duties of Pawnor. Warranty of Title. 355. Concealment of Defects of Pawn. 356. Fraud by Pawnor. 857, 358. Reimbursement of Expenses of Pawn. 359-364. Extinguishment of the Contract of Pawn. 365. Common Law on this subject similar to the Civil Law. 366. Local Law of Massachusetts respecting Attachments by Pawnor. 367. Conclusion of the subject of Pawns.] § 286. Having gone through with the subject of gratuitous loans, we next come to the consideration of contracts of bail- ment, founded in the mutual benefit and interest of the parties. And first, of the contract of pledge, or pawn, for these words seem indifferently used in our law to express the same idea. Sir William Jones defines a pledge to be " a bailment of goods by a debtor to his creditor, to be kept till the debt is dis- charged." ^ Lord Holt defines it thus : " When goods or ' Jones on Bailm. 117; Id. 36; 1 Dane, Abridg. ch. 17, art. 4. My learned friend, Mr. Chancellor Kent, follows the definition of .Sir William Jones. 2 Kent, Comm. Lect. 40, p. 577, 4th edit. See also Halifax's Analysis of the Civil Law, 63. The definitions in the Scottish law do not essentially differ from that commonly given, except, that the Scottish CH. v.] ON PAWNS OE PLEDGES. 256 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 vadimn, and in English a pawn or pledge." ^ In the Roman law it is prop&rly called piffnus, and is defined thus: " Pignus appellatum a pugno, quia res quae pignori dantur, manu traduntur." ^ And in that law the term was generally applied to mere personal property, or movables. " Unde etiam Tideri potest, verum esse, quod quidam putant, pignus proprie rei mobilis constitui." ^ In the Roman law, also, a pawn (^pignus) was distinguished from an hypothecation (hypotheca) in this, that in the former the possession was delivered to the pawnee ; in the latter it was retained by the pawnor.* How- ever, the words pignui and hypotheca seem often to have been confounded ; for it is Iftid, " Inter pignus autem et hypothecam tantum nominis sonus differt." ^ Pothier defines a pawn or pledge to be a contract by which a debtor gives to his creditor a thing to detain as security for his debt (c»*e«nce), which the creditor is bound to return when the debt is paid. And he makes the like distinction between a pledge and an hypothe- cation, as is made in the Roman law.^ The foregoing defini- tions are sufficiently descriptive of the nature of a pawn or pledge. They are, in terms, limited to cases where a thing is given as a mere security for a debt ; but a pawn may well be given as security for any other engagement.^ The definition authors generally include in it a power of sale of the pledge, to satisfy the claims of the pledgee. See 2 Bell, Comm. § 701, 4th edit.; 2 Bell, Comm. p. 20, 5th edit. ; Ersk. Inst. B. 3, tit. 1, § 33; 1 Stair, Inst. B. 1, tit. 13, § 11. 1 Coggs V. Bernard, 2 Ld. Raym. 909, 913. 2 Dig. Lib. 50, tit. 16, 1. 238; Heinec. Elem. Pand. Lib. 20, tit. 1, § 2 to 5; Pothier, de Nantissement, u. 5. 3 Dig. Lib. 50, tit. 16, 1. 238; Heinec. Pand. Lib. 20, tit. 1, § 2 to 5; Pothier, de Nantissement, n. 5. < Dig. Lib. 13, tit. 7, 1. 9, § 2; Inst. Lib. 4, tit. 6, § 7 ; Pothier, de Nantissement, Art. Prelim. 1. ' Dig. Lib. 20, tit. 1, 1. 5, § 1; Ayliffe, Pand. B. 4, tit. 18, p. 524 ; Halifax, Analysis of Civ. Law, 63. « Pothier, de Nantissement, Art. Prelim, n. 2; Pothier, Pand. Lib. 13, tit. 7, n. 1. The Code of Louisiana of 1825 defines it thus: The pledge is a contract, by which one debtor gives something to his creditor, as a securiiy for his debt. Art. 8100. ' Isaac V. Clark, 2 Bulst. 306, &c.; Pothier, de Nantissement, n. 11. 256 ON PAWNS OB PLEDGES. [CH. V. of Domat is, therefore, more accurate, because it is more com- prehensive ; namely, that it is an appropriation of the thing given for the security of an engagement.^ In the common law, it may be defined to be a bailment of personal property, as a security for some debt or engagement. In our language, the term pawn or pledge is ordinarily confined to personal prop- erty ; ^ and where real or personal property is transferred by a conveyance of the title, as a security, we commonly denominate it a mortgage. § 287. A mortgage of goods is, in the common law, distin- guishable from a mere pawn. By a grant or conveyance of goods in gage or mortgage, the whole legal title passes condi- tionally to the mortgagee ; and if the goods are not redeemed at the time stipulated, the title becomes absolute at law, although equity will interfere to compel a redemption.^ But in a pledge, a special property only, as we shall presently see, passes to the pledgee, the general property remaining in the pledgor.* There is also another distinction. In the case of a pledge of personal property, the right of the pledgee is not consummated, except by possession ; and ordinarily, when that possession is relinquished, the right of the pledgee is extinguished or waived.^ But in the case of a mortgage of 1 1 Domat, B. 3, tit. 1, § 1, art. 1. " Post, § 290. = Post, § 308 to 311. See 2 Story on Eq. Jurisp. § 1030, 1031; Parks V. Hall, 2 Pick. 206; Gordon t;. Mass. Fire & Marine Ins. Co., 2 Pick. 249; Brown v. Beraent, 8 Johns. 96; Ackley v. Finch, 7 Cow. 290; Hart v. Ten Eyck, 2 Johns. Ch. 100 ; Peters v. Ballistier, 3 Pick. 495; Langdon v. Buel, 9 Wend. 80; Patchin v. Pierce, 12 Id. 61. « Kyall V. KoUe, 1 Atk. 167; Jones v. Smith, 2 Ves. Jr. 378; Lickbar- row V. Mason, 6 East, 2.5, note; Cortelyou v. Lansing, 2 Cain. Cas. in Err. 200; Badlam v. Tucker, 1 Pick. 389, 397 ; 2 Story on Eq. Jurisp. § 1030; 1 Dane, Abridg. ch. 17, art. 4, § 11; Conardu. Atlantic Ins. Co., 1 Peters, 449 ; [Brownell v. Hawkins, 4 Barb. 491;] post, § 307. s Jewett V. Warren, 12 Mass. 300; [Kimball v. Hildreth, 8 Allen, 168; Eastman v. Avery, 23 Me. 248; Russell v. Fillmore, 15 Vt. 135; Walker v. Staples, 5 Allen, 34.] What constitutes a sufficient possession is a matter sometimes of considerable nicety. Where logs in a boom on a river were pledged and shown to the pawnee at the time, the pledge was held as e^eotual as an actual delivery of property capable of personal pos- session, as it was all the possession which the logs were then capable of. [See Martin v. Reid, 11 C. B. n. s. 730. See also Wilson ». Little, 2 Comst. (N. Y.), 443; Donald ». Suckling, L. R. 1 Q. B. 585.] CH. v.] ON PAWKS OR PLEDGES. 257 personal property, the right of property passes by the convey- ance to the pledgee, and possession is not, or may not be, essential to create or to support the title. ^ § 288. There are few cases, if any, in our law, where an hypothecation, in the strict sense of the Roman law, exists ; that is, a pledge without possession by the pledgee. The nearest approaches, perhaps, are the cases of holders of bot- tomry bonds, of material-men, and of seamen for wages in the merchant service, who have a claim against the ship, in rem. But these are rather cases of liens or privileges, than strict hypothecations. There are also cases, where mortgages of chattels are held valid, without any actual possession by the mortgagee ; but they stand upon very peculiar grounds, 1 Per Wilde, J., in Homes v. Crane, 2 Pick. 610; post, § 297, 299; Peters v. Ballistier, 3 Pick. 495; Langdon w. Buel, 9 Wend. 80; Ferguson V. Lee, Id. 258; Patohin v. Pierce, 12 Id. 61. In the case of Bonsey v. Amee, 8 Pick. 236, the court said that delivery is necessary to constitute a mortgage of a chattel. See also Carrington v. Smith, 8 Pick. 419. But this seems contrary to the current of the authorities. {The term *' collateral security " has come to be applied of late years to transactions of the pledge character; and more especially where the thing pledged is an incorporeal chattel. The use of this term in the reports must frequently be ascribed to a judicial uncertainty as to whether the particular transaction be in fact a pledge or a mortgage. From the language of some authorities it would appear as if the transfer of an incor- poreal chattel by way of collateral security were thought something dis- tinct from a pledge. See Coulter, J., in Chambersburg Ins. Co. v. Smith, 11 Penn. St. 120. But what is transferred as collateral is meant to insure the performance of the principal. The better view is that "collateral security " in its broadest sense embraces both pledge and chattel mort- gage transactions, and yet applies more appropriately to the former class, and in the popular sense to pledges of incorporeal personalty alone. The distinction between a pledge and chattel mortgage remains substantially as stated in the text above ; yet the old tests are often hard to apply: (1) Inasmuch as so many new kinds of incorporeal chattels have sprung up ; (2) Because of local statutes which make pledges and chattel mortgages quite alike. See Leach v. Kimball, 34 N. H. 568 ; Stearns v. Marsh, 4 Denio, 227; Wilson v. Little, 2 Comst. 443 ; Gay v. Moss, 34 Cal. 125 ; Hancock v. Franklin Ins. Co., 114 Mass. 155; Belden v. Perkins, 78 111. 449 ; 1 Sch. Pers. Prop. 507, 535. In Fraker v. Reeve, 36 Wis. 85, a written instrument assigning property as ' ' collateral security ' ' is construed as evincing a transaction by way of chattel mortgage, rather than pledge. But see this case commented upon post. } 17 258 OK PAWNS OE PLEDGES. [CH. V. and may be deemed exceptions to the general rule.^ They either stand upon the positive provisions of some statute, or they are the result of some contract, stipulating for the pos- session of the mortgagor, under circumstances in which such possession is deemed compatible with good faith, and does not hold out false colors to creditors or purchasers.^ In these cases, the courts have recognized the general distinction, that a mortgage may be without possession ; but that a pledge cannot be without possession.^ But of this more will be said hereafter. § 289. Let us consider then, in the first place, what are the essential ingredients in the contract of pledge. It may be treated in the common law, as it is in the Roman law, as a contract founded in the law of nature, of reciprocal obligation, and of mutual benefit.* § 290. And first, as to the things which may be the subject of it. These are, ordinarily, goods and chattels ; but money, debts, negotiable instruments, choses in action, and, indeed, any other valuable things of a personal nature, such as patent- rights and manuscripts, maj', by the common law, be delivered in pledge.^ Of things not in existence, there cannot (as we 1 Ward u. Sumner, 5 Pick. 59; Homes v. Crane, 2 Pick. 607; post, § 294; Macomber v. Parker, 14 Pick. 505. ' McLachlan v. Wriglit, 3 Wend. 348; Divver v. McLaughlin, 2 Wend. 596; Langdonu. Buel, 9 Wend. 80; Gardner v. Adams, 12 Wend. 297; Barrow v. Paxton, 5 Johns 258; Looku. Comstock, 15 Wend. 244; Ran- dall y. Cook, 17 Wend. 53; Beekman v. Bond, 19 Wend. 444; Louis v. Stevenson, 2 Hall, 63 ; Badlam u. Tucker, 1 Pick. 389 ; Macomber v. Parker, 14 Pick. 497, 505. The statutes of Massachusetts respecting registered mortgages of personal property seem in a great measure to have changed such mortgages into hypothecations. See Mass. Revised Statutes, 1836, tit. 6, ch. 74, § 5-7; Bullock v. Williams, 16 Pick. 38; Forbes v. Parker, 16 Pick. 462. {See In re Rawson, 2 Lowell, 519.} 8 Wardw. Suinner, 5 Pick. 59, 60; Homes t>. Crane, 2 Pick. 607; Cor- telyou V. Lansing, 2 Cain. Cas. in Err. 200, 202 ; ante, § 287 ; Brown v. Bement, 8 Johns. 96 ; Barrow v. Paxton, 5 Johns. 258. { See Smith v. Weguelin, L. R. 8 Eq. 199, as to hypothecation under a foreign law.} * Pothier, de Nantissement, n. 13 to 17. '' Kemp V. Westbrook, 1 Ves. Sen. 278; Lockwood v. Ewer, 9 Mod. 278; 8. c. 2 Atk. 303; M'Lean v. Walker, 10 Johns. 471, 475; Roberts i'. Wyatt, 2 Taunt. 268; Jarvis v. Rogers, 13 Mass. 105; s. c. 15 Mass. 389; Bowman v. Wood, 15 Mass. 534; Cortelyou v. Lansing, 2 Cain. Cas. in CH. v.] ON PAWNS OR PLEDGES. 259 shall presently see) be a technical pledge at the common law; and yet there may be an hypothecary contract, which will attach as a lien or pledge to them, as soon as they come into existence.! § 290 a. In the Roman law, it is said that nothing, but what is capable of a delivery to the pledgee, is deemed to be the proper subject-matter of a pledge. This would seem to be a natural result of the definition already stated from the Digest, where it is said : " Pignus appellatum, quia res quse pignori dantur, manu traduntur." ^ Hence, it is said by Pothier, that by the Roman law incorporeal things, such as Err. 200 ; 1 Dane, Abridg. ch. 17, art. 4, § 11 ; Garlick v. James, 12 Johns. 146; [Stearns u. Marsh, 4 Denio, 227.] { Among the incorporeal chattels ■whose pledge has been recognized as valid in the later cases may be men- tioned the following classes : — Bills and notes : White v. Phelps, 14 Minn. 27 ; Louisiana State Bank v. Gaiennie, 21 La. Ann. 553 ; Appleton v. Donaldson, 3 Penn. St. 381. Coupon bonds : Morris Canal, &o. Co. v. Lewis, 1 Beasl. 323 ; Wilson v. Little, 2 Comst. 443 ; Strong v. Nat. Bank. Assoc, 45 N. Y. 718 ; Loomis v. Stave, 72 111. 623. In fact, negotiable instruments generally: See Jerome v. McCarter, 94 U. S. Supr. 734 ; Donald v. Suckling, L. R. 1 Q. B. 585. Shares of stock and scrip certificates : Fisher d. Brown, 104 Mass. 259 ; Thompson v. Toland, 48 Cal. 99 ; Langton v. Waite, L. R. 6 Eq. 165 ; Halliday v. Holgate, L. R. 3 Ex. 299 ; Rozet v. McClellan, 48 111. 345 ; Worthington V. Tormey, 34 Md. 182 ; Conyngham's Appeal, 57 Penn. St. 474 ; Heath v. Silverthorn, &c. Co., 39 Wis. 147. A bond with warrant to con- fess judgment, together with the judgment thereon: Hanna v. Holton, 78 Penn. St. 334. Bonds secured by mortgage : White Mountains R. R. o. Bay State Iron Co., 50 N. H. 57. A chattel mortgage: Fraker v. Reeve, 86 Wis. 83. An instrument purporting to be a bill of sale, but intended for security: see Walker v. Staples, 5 Allen, 34; Shaw v. Wilshire, 65 Me. 485 ; In re Rawson, 2 Lowell, 519 ; Hudson v. Wilkinson, 45 Texas, 445. Even a mortgage of real estate: Campbell v. Parker, 9 Bosw. 322. Or a lease: Dewey v. Bowman, 8 Cal. 145. A " broker's margin " con- tract for " carrying " stocks is in effect a pledge contract: Markham v. Jau- don, 41 N. y. 235. For the effect of an insurance policy on the debtor's life taken by the creditor as pledge security, see Bruce v. Garden, L. R. 5Ch. 32; Soule v. Union Bank, 45 Barb. Ill ; Edwards b. Martin, L. R. 1 Eq. 121. And as to taking marine or fire insurance policies in like manner, see Latham v. Chartered Bank of India, L. R. 17 Eq. 205. } ' Macomber ». Parker, 14 Pick. 497; post, § 290 a, 294. 2 Ante, § 286, 290 a, 294 ; 2 Bell, Comm. § 704, 4th edit. ; 2 Bell, Comm. p. 23, 5th edit. 260 ON PAWNS OR PLEDGES. [CH. V. debts and other choses in action, cannot become the subject- matter of a pledge ; for, according to that law, they are incapable of any delivery. " Incorporales res traditionem et usucapionem non recipere, manifestum est." ' There are, indeed, other pas- sages in the Digest, which seem to import a different rule. Thus, it is said : " Quod emptionem venditionemque recipit, etiam pigiiorationem recipere potest."^ And again: "Pignus contrahitur non solS. traditione, sed etiam nudS, conventione, etsi nontraditum est."^ Pothier endeavors to reconcile these different passages by stating that the word pignus is sometimes used in a strict sense, and sometimes in a broad or general sense. In a strict sense, it includes only a pledge, where there has been a delivery, and which alone was recognized, jure civili, as a pledge ; in a broad or general sense, pignus not only included a strict pledge, but also agreements for a pledge, where there was not any delivery ; but which agreement would be enforced by the prsetor. Jure prcetorio.^ Domat insists, that by the Roman law not only corporeal things, but incorporeal things also, such as debts, actions, and other rights, might be pledged.^ And there are passages in the Code which support this view. " Nomen quoque debitoris pignorari et generaliter et specialiter posse, jam pridem pla- cuit."^ But then it is added in the Digest : " Si convenerit, ut nomen debitoris mei pignori tibi sit, tuenda est a Prsetore hsec conventio," ' which supports the distinction of Pothier. Pothier seems to think, that in the French law the same rule exists, as to the necessity of a delivery to perfect a pledge, as in the Roman law, and, therefore, that incorporeal things, such as debts and choses in action, are not strictly capable of being conveyed in pledge.^ However, they are in his opinion 1 Dig. Lib. 41, tit. 1, 1. 43, § 1 ; Pothier, de Nantissement, n. 6, and note (1). 2 Dig. Lib. 20, tit. 1, 1. 9, § 1; Pothier, Pand. Lib. 20, tit. 3, n. 1. 8 Dig. Lib. 13, tit. 7, 1. 1; Pothier, Pand. Lib. 20, tit. 1, n. 2; Id. tit. 3, n. 2, 4; Pothier, de Nantissement, n. 0, and note (1). * Pothier, de Nantissement, n. 6, note (1); 1 Stair, Inst. B. 1, tit. 13, §12. « 1 Domat, B. 3, tit. 1, § 1, art. 231, &c. 6 Cod. Lib. 8, tit. 17, 1. 4. ' Dig. Lib. 13, tit. 7, 1. 18. * Pothier, de Nantissement, n. 6, 8, 9. CH. v.] ON PAWNS OR PLEDGES. 261 capable, by assignment, of being effectively used for the same purpose.! By the modern Code of France, to give a privilege or preference of payment to other creditors, it is necessary that there should be an act of pledge, either public, or under private signature, duly registered, containing a declaration of the sum due as well as the kind and nature of the things placed in pledge, or a statement of their quality, weight, and measure, where the matters exceed one hundred and fifty francs.^ The like privilege attaches also upon incorporeal movables, such as movable debts, only where the pledge is by public act, or under private signature, also registered, and made known to the debtor, for the debt given in pledge.^ By the law of Louisiana, a pledge may be not only of corporeal things, but also of incorporeal things, such as debts, and negotiable instruments, and other securities and choses in action. But to give a privilege against third persons, a similar written act and registration and notice are necessarj'.* In the Scottish law, goods, wares, and commodities are deemed the proper subjects of a pledge. Negotiable securities, also, are deemed capable of becoming a pledge. But, strictly speaking, debts and choses in action are not so ; although by being assigned, and the vouchers delivered, some benefit, by the right of retaining them, may indirectly be obtained.^ § 291. It is not indispensable that the pledge should belong to the pledgor; it is sufficient, if it is pledged with the consent of the owner.^ And even without the consent of the owner, the thing may, as between the parties, be completely deemed a pledge, so that the pledgor himself cannot reclaim it, except on discharging the obligation ; for it does not lie in his mouth to assert himself not to be the owner.' On the other hand, 1 Pothier, de Nantissement, n. 6 and note; post, § 297; 1 Domat, B. 3, tit. 1, § 1, art. 23; Ayliffe, Pand. B. 4, tit. 18, p. 527, 530, 5i2; Wood, Civ. Law, 219; Cod. Lib. 8, tit. 17, 1. 4. 2 Code Civil of France, art. 2074. ' Id. art. 2075. * Clay u. His Creditors, 9 Mart. 523, 525; Code of Louisiana of 1825, art. 3109, 3120 to 3125, 3127 to 3129, 3137. 6 2 Bell, Comm. § 702 to 705, 4th edit. ; 2 Bell, Coram, p. 20 to 23, 5th edit. * See Code of Louisiana of 1825, art. 3112. ' Pothier, de Nantissement, n. 7, 27, 28; Aylifee, Pand. B. 4, tit. 18, p. 538; 1 Dane, Abridg. ch. 17, art. 4, § 7, 8; Jarvis v. Rogers, 13 Mass. 262 ON PAWNS OK PLEDGES. [CH. V. the pledgee cannot ordinarily resist the right of the pledgor to redeem it, under the like circumstances ; for he has no right to set up the right of a third person (/ms tertii) against him, unless, indeed, that third person enforces against him his own superior right of property.^ To the same effect is the Roman law. "Is quoque, qui rem alienam pignori dedit, solutS. pecuniS,, potest pigneratitiS experiri."^ Nay, a person holding it by a wrongful title, or even by a criminal title, as by theft, might insist upon his rights as a pledgor. " Si praedo rem pignori dederit, competit ei et de fructibus pigneratitia actio." 3 § 292. By the pledge of a thing, not only the thing itself is pledged, but also, as accessory, the natural increase thereof. As, if a flock of sheep are pledged, the young, afterwards born, are also pledged.* The Roman law adopted this doctrine in its fullest extent. " Grege pignori obligato, quae postea nas- cuntur, tenentur. Sed et si capitibus decedentibus totus grex 105; s. c. 15 Id. 889; Code of Louisiana of 1825, art. 3114; post, § 340. I See Mairs v. Taylor, 40 Penn. St. 446. The pledgor of a chattel he does not own cannot set up a title which he afterwards acquires while the pledge continues. Goldstein v. Hort, 30 Cal. 372. ) 1 Pothier, de Nantissement, n. 7, 27 ; ante, § 102. ° Dig. Lib. 13, tit. 7, 1. 9, § 4; Pothier, de Nantissement, n. 7. « Dig. Lib. 13, tit. 7, 1. 22, § 2; Pothier, de Nantissement, n. 7. {A chattel delivered in pledge illegally cannot be recovered by the pledgor on the ground of such illegality. The rule here applies in pari delicto potior conditio possidentis . The pledgor must, at least, discharge his debt first. King V. Green, 6 Allen, 139 ; Curtis v. Leavitt, 15 N. Y. 9 ; Causey v. Yeates, 8 Humph. 605. In Taylor v. Chester, L. R. 4 Q. B. 309, stress is laid upon the circumstance that the pledgor had to set up his own illegal act in suing the pledgee. But as to transactions positively immoral at common law, and those made illegal by statute, and the general principles involved, see 2 Sch. Pers. Prop. 643. For the rule where one fraudulently puts negotiable securities into circulation for the purpose of pledge, see Francia v. Joseph, 3 Edw. Ch. 182 ; Curtis v. Leavitt, supra. And see Fisher i>. Fisher, 98 Mass. 303; Berry ». Gibbons, L. R. 8 Ch. 747. In Hambleton v. Central Ohio R. R. Co., 44 Md. 551, the question of loss is considered as between pledgee and the company, both bona fide parties, in the case of stock of the company pledged under forged orders of transfer. } ' 1 Domat, B. 3, tit. 1, § 1, art. 7 to 10; Dig. Lib. 20, tit. 1, 1. 13, 29; Ayliffe, Pand. B. 4, tit. 18, p. 530. CH. V.j ON PAWNS OR PLEDGES. 263 fuerit renovatus, pignori tenebitur." ^ The law of Louisiana is to the same effect.^ § 293. By the Roman law, certain things were prohibited from being put in pawn ; such as the necessary apparel and furniture, beds, utensils, and tools of the debtor; his ploughs, and other utensils for tillage ; things esteemed sacred in the Roman law ; the benevolence, or pension, or bounty of a mon- arch ; and the pay and emoluments of officers and soldiers.^ With the exception of the last two cases, which stand upon general principles of public policy,* the common law allows a debtor to pledge any of his property, whether it consists of necessaries, or other things.^ § 294. By the Roman law, not only property of which the party was at the lime in possession, or to which he had then a present title, might be pledged ; but also property of which he had neither a present possession nor a present title, and which might be acquired by him only infuturo. And when the title was so acquired infuturo, the right of the pledgee attached immediately upon it.^ But in such cases it was more properly an hypothecation than a pledge. In our law, a pledge is strictly confined to property of which there may be a present possession and title, or in which there is a present vested right or interest.^ But although, by the common law, there cannot be a technical pledge of property not then in existence, or to be acquired in 1 Dig. Lib. 20, tit. 1, 1. 13; Pothier, Pand. Lib. 20, tit. 3, n. 14 to 17. 2 Code of Louisiana (1825), art. 3135. s 1 Domat, B. 3, tit. 1, § 1, art. 24 to 27; Cod. Lib. 8, tit. 17, 1. 8; Ayliffe, Pand. B. 4, tit. 18, p. 527, 530. * M'Carthy v. Goold, 1 Ball & Beat. 389 ; Stone ». Lidderdale, 2 Anst. 533; Barwick v. Reade, 1 H. Bl. 627; Flarty v. Odium, 3 Term R. 681; Lidderdale v. Montrose, 4 Term R. 248. 5 Aylifie, Pand. B. 4, tit. 18, p. 542. {Articles which the statute ex- empts.from attachment or sale on execution may nevertheless be pledged so as to bind the pledgor. Frost v. Shaw, 3 Ohio St. 270.} 8 1 Domat, B. 3, tit. 1, § 1, art. 2, 5, 6, 20; Dig. Lib. 20, tit. 1, 1. 1, 15 ; Ayliffe, Pand. B. 4, tit. 18, p. 530. The Code of Louisiana of 1825, art. 3111, is to the same effect. {And see Wolf v. Wolf, 12 La. Ann. 529.} ' [Smithurst v. Edmunds, 1 McCarter, 408. But it seems that the future product of a farm may be pledged as security for the rent. Smith i>. Atkins, 18 Vt. 461.] 264 ON PAWNS OR PLEDGES. [CH. V. futuro, yet there may be a contract for an hypothecation thereof ; and when the title is acquired, or the property comes into exist- ence, the right of the pledgee will immediately attach to it. Thus, for example, where a brickmaker stipulated with the lessees of a brick-yard, in which he manufactured bricks, that the lessees should retain the bricks to be made there, as secu- rity for their advances to him, it was held that the bricks became pledged, under the contract, as fast as they were manufactured. 1 § 295. If the pledgor has only a limited title to the thing, as for life or for years, he may still pawn it to the extent of his title ; but when that expires, the pledgee must surrender it to the person who succeeds to the ownership.^ The same rule applies to any other special interest or special property in a thing ; such, for example, as a lien or a right by a former pledge, which may be again pledged to the extent of such right or lien, although not beyond it.^ § 296. In respect to negotiable instruments for money, the party who has a lawful possession of them, although he is not the owner, has generally the power of pledging them, as well as of selling them absolutely, so as to bind the rights of the owner.* But it seems otherwise in relation to negotiable secu- rities for goods, such as bills of lading ; for a factor having a lawful possession of a bill of lading of goods under an assign- 1 Macomber v. Parker, 14 Pick. 497, 505, 509; ante, % 290; jCush- inan v. Hayes, 46 111. 145. See Ayers v. Banking Co., L. R. 3 P. C. 54S. } It is not easy to reconcile the doctrine of this j first-named) case, in some of its hearings, with that of Bonsey v. Amee, 8 Pick. 236. See Goodenow v. Dunn, 21 Me. 86. ^ Hoare v. Parker, 2 Term R. 376 ; Hooper v. Ramsbottom, 4 Camp. 121; M'Combie v. Davies, 7 East, 5; 1 Dane, Abridg. ch. 17, art. 4, § 7 ; 1 Domat, B. 3, tit. 1, § 3, art. 25. J See Dewey v. Bowman, 8 Cal. 145. In Parshall v. Eggert, 54 N. Y. 18, a pledge was held effectual as against a subsequent creditor of the pledgor, though the chattel was not delivered when the contract was entered into ; the pledgee securing possession before such creditor attached. } a Story on Agency, § 113; post, § 322, 324 to 327; 1 Bell, Comm. § 412, 4th edit. (n. 5) ; 1 Bell, Comm. p. 482, 483, 5th edit. < Jarvis v. Rogers, 13 Mass. 105; s. c. 15 Mass. 389; 2 Bell, Comm. § 704, 4th edit.; post, § 322, 323 ; {Shelton v. French, 33 Conn. 489.} CH. v.] ON PAWNS OB PLEDGES. 265 ment, may sell them ; but ordinarily he has no authority to pledge them.i § 297. Secondly. It is of the essence of the contract, that there should be an actual delivery of the thing to the pledgee.^ Until the delivery of the thing, the whole rests in an executory contract, however strong may be the engagement to deliver it; and the pledgee acquires no right of property in the thing.^ What will amount to a delivery of the thing is, in many cases, matter of law. There need not be an actual manual delivery of the thing. It is sufficient, if there are any of those acts or circumstances which, in construction of law, are deemed suffi- cient to pass the possession of the property.* Thus, goods at sea may be passed in pledge by a transfer of the muniments of 1 Abbott on Shipp. P. 3, ch. 9, § 19; Story oa Agency, § 113 and note; Id. § 225; post, § 323, 325 to 328 ; Code of Louisiana of 1825, art. 3119. See the late statutes of 6 Geo. 4, ch. 94, and 7 & 8 Geo. 4, ch. 29, {and 5 & 6 Vict. ch. 39, j enabling factors, in certain cases, to pledge the goods of their principals; 2 Kent, Comm. Lect. 41, p. 627, 628, and note (a), 4th edit. ; Sumner u. Hamlet, 12 Pick. 76, 81; {Cartwright u. Wilraer- ding, 24 N. Y. 521 ; Henry v. Philadelphia Warehouse Co. , 81 Penn. St. 76. } 2 Ante, § 290; 2 Kent, Comm. Lect. 40, p. 581, 4th edit. ; Cortelyou e. Lansing, 2 Cain. Cas. in Err. 200, 202 ; Code of Louisiana of 1825, art. 3119, 3120, 3129; Homes v. Crane, 2 Pick. 610; ante, § 287; Bonsey v. Amee, 8 Pick. 236; Lee v. Bradlee, 8 Mart. 20; [Thompson v. Andrews, 8 Jones (N. C), 453; Pinkerton u. Manchester Railroad, 42 N. H. 424; Owens V. Kinsey, 7 Jones (N. C), 245; Walker w. Staples, 5 Allen, 34; Beeman v. Lawton, 37 Me. 543. See also Succession of Hiligsberg, 1 La. Ann. 340.] ' Pothier, de Nantissement, n. 6, and note (1); Id. n. 8, 9; Portland Bank v. Stubbs, 6 Mass. 422; Tucker v. Buffington, 15 Mass. 477; Gale v. Ward, 14 Mass. 352 ; Cortelyou v. Lansing, 2 Cain. Cas. in Err. 200 2 Kent, Comm. Lect. 40, p. 581, 4th edit.; Bac. Abridg. Bailment, B. Wood V. Churley, 2 Roll. 439; {First Nat. Bank i'. Nelson, 32 Ga. 391 Beeman v. Lawton, 37 Me. 543; Walcott v. Keith, 2 Fost. 196; Parshall V. Eggart, 52 Barb. 367. As to the enforcement of an executory pledge contract, see City Fire Ins. Co. v. Olmsted, 33 Conn. 476.) * [AVhitney v. Tibbits, 17 Wis. 359; Tibbetts v. Flanders, 18 N. H. 284; Martin v. Creditors, 15 La. Ann. 165; Cartwright v. Wilmerding, 24 N. Y. 521; Nevan v. Roup, 8 Iowa, 207. Goods left in a warehouse, subject to customs, freight, and storage, and which the warehouseman agrees to hold for the pledgee and deliver to him upon payment thereof, may be con- sidered as sufficiently delivered. Young v. Lambert, 18 Weekly Rep. 497 (1870).] 266 ON PAWNS OE PLEDGES. [CH. T. title ; as by a transfer of the bill of lading, or by a written as- signment thereof. So goods in a warehouse may be transferred by a symbolical delivery of the key thereof .^ So, if the pledgee ^ has the thing already in possession, as by a deposit or a loan, there the very contract transfers to him, by operation of law, a virtual possession thereof as a pledge, the moment the con- tract is completed.^ § 298. In the Roman law, although a delivery of the thing took place in cases of a strict pledge (^pignua), yet, as has been already stated, in the case of an hypothecation, no such deliv- ery or possession was necessary. ^ An hypothecation had the complete effect to transfer and vest a title in the thing, if that was the intention of the parties, upon the mere execution of the contract, although no possession was given, or it was even stipulated not to be given. This part of the Roman law seems not to have been absolutely adopted, in respect to movables, by any of the States of modern Europe ; and it has been silently suppressed, or restricted within very narrow bounds, by their anxious desire to promote the interests of commerce. In none of these States is the hypothecation of movables allowed to prevail (as it did at Rome) against a subsequent bond fide purchaser ; and in many of these States it is void, even against ^ Atkinson v. Maliug, 2 Term R. 462. See also Jewett v. Warren, 12 Mass. 300; Badlam v. Tucker, 1 Pick. 386, 396; Whitaker v. Sumner, 20 Pick. 405; Tuxworth v. Moore, 9 Pick. 347, 349. "^ Pothier, de Nautissement, n. 9; [Brown u. Warren, 43 N. H. 430. See Tibbetts v. Flanders, 18 N. H. 284; Parsons v. Overmire, 22 111. 58.] { Bills of lading are frequently indorsed and delivered by way of collateral security for advances ; and such transactions are upheld, whether the goods be in transit by land or sea. First Nat. Bank d. Kelly, 57 N. Y. 34; Dows V. Nat. Exchange Bank, 91 U. S. Supr. 618; Petitt v. First Nat. Bank, 4 Bush, 334. For other cases of constructive delivery held suffi- cient, see Keiser v. Topping, 72 111. 226; Brewster v. Hartley, 37 Cal. 15. Statute requirements are sometimes found for guarding certain classes of chattels. See Mass. Gen. Sts. ch. 68, § 13 ; supra, § 290. See 1 Sch. Pers. Prop. 95-109, for the general distinctions between corporeal and incor- poreal chattels as to the mode of transfer. Where delivery is made, it is immaterial whether the chattel be held by the pledgee himself or by a third person for him. Brown v. Warren, 43 N. H. 430.} 8 Ante, § 286. CH. T.J ON PAWNS OR PLEDGES. 267 personal creditors.^ This is true in respect to the law of Scot- land and the law of France, which agree with the common law of England in making void all hypothecations of movables without a delivery, so far as regards creditors,^ with the excep- tion of a few privileged cases of tacit hypothecations ; such as that of seamen for their wages, and of material-men for their supplies to foreign ships. ^ § 299. As possession is necessary to complete the title by pledge, so, by the common law, the positive loss, or the de- livery back, of the possession of the thing with the consent of the pledgee, terminates his title.* However, if the thing is delivered back to the owner for a temporary purpose only, and it is agreed to be redelivered by him, the pledgee may recover it against the owner, if he refuses to restore it after the purpose is fulfilled.^ So, if it is delivered back to the owner in a new character, as for example, as a special bailee, or agent. In such a case, the pledgee will still be entitled to 1 2 Bell, Comm. § 703, 707, 4th edit.; 2 Bell, Comm. p. 25, 5th edit., and the authorities there cited; 1 Stair, Inst. B. 1, tit. 13, § 14. 2 2 Bell, Comm. § 702, 703, 707, 4th edit. ; 2 Bell, Comm. p. 25, 5th edit. ; Emerigon, Traite kla Grosse Aventure, ch. 12, § 1; 1 Valin, Comm. 341 ; 2 Kent, Comm. Lect. 40, p. 581, 4th edit ; Pothier, de Nantissement, n. 26. But see Code Civil of France, art. 20T4 to 2077. » 2 Bell, Comm. § 708, 719 to 724, 4th edit; 2 Bell, Comm. p. 25 to 27, 5th edit. ; 1 Stair, Inst. B. 1, tit. 13, § 14; Ersk. Inst. B. 3, tit. 1, § 34; Emerigon, Trait6 k la Grosse Aventure, ch. 12, Introd. ; Id. § 1, 2. See Code of Louisiana, art. 3256,3272; Malcolm v. Schooner Henrietta, 7 La. 488, 490, 491, 492. * Per Wilde, J., in Homes v. Crane, 2 Pick. 607; Jarvis v. Rogers, 15 Mass. 389, 397; Sumner v. Hamlet, 12 Pick. 76, 81 ; ante, § 287 ; Bonsey V. Amee, 8Pick. 236; Looku. Comstock, 15 Wend. 244; Reeves v. Capper, 5 Bing. N. C. 136 ; Ryall v. Rolle, 1 Atk. 165; post, § 364. See [Day v. Swift, 48 Me. 368;] Grinnell v. Cook, 3 Hill, 485; {Shaw v. Wilshire, 65 Me. 485; Walker v. Staples, 5 Allen, 34; Mills v. Stewart, 5 Humph. 308; Treadwell v. Davis, 34 Cal. 601.} 6 Roberts v. Wyatt, 2 Taunt. 268; 1 Domat, B. 8, tit. 1, § 1, art. 30; ante, § 58; Pothier, Traite de D6p6t, n. 4; Story on Agency, § 367 to 370; {Collins V. Buck, 63 Me. 459; Black i,. Bogert, 65 N. Y. 601.} [In like manner, if the pledgor recover possession of the pledge wrong- fully, without the consent of the pledgee, this does not terminate the bailment. Walcott v. Keith, 2 Fost. 196; Way v. Davidson, 12 Gray, 466.] 268 ON PAWNS OK PLEDGES. [CH. V. the pledge, not only as against the owner, but also as against third persons ; for, under such circumstances, the possession is perfectly consistent with the existence of the original right of the pledgee. 1 But if the pledgee voluntarily, by his own act, places the pledge beyond his own power to restore it, as by agreeing that it may be attached at the suit of a third per- son, that will amount to a waiver of his pledge.^ And, in like manner, it maj^ under the like circumstances, be recov- ered from a lona fide holder for value ; for the possession of the pledgor will be deemed a continuance of the possession of the pledgee.'' In the civil law, it was competent for the creditor, after the constitution of a pledge by delivery, to re- store the thing to the possession of the pledgor, either on hire, or under any other contract, without impairing his right. " Si pignus mihi traditum locassem domino, per locationem retineo possessionem ; quia antequam conduceret debitor, non fuerit ejus possessio ; cum et animus mihi retinendi sit, et condu- centi non sit animus possessionem adipiscendi." * But this principle has not, from its inconvenience generally, found its way into the modern jurisprudence of Continental Europe, at least, not without many restrictions.^ 1 Macomber v. Parker, 14 Pick. 497, 505, 509. The opinion of the court in this case, delivered by Mr. Justice Putnam, is very able, and will reward a diligent perusal. [See also Hays v. Riddle, 1 Sandf. (N. Y.) 248;] {Thayer v. Dwight, 104 Mass. 254; Chapman, J., in Walker ... Staples, 5 Allen, 34 ; Hutton v. Arnett, 51 111. 198 ; Cooper v. Ray, 47 111. 53.} 2 Whitaker v. Sumner, 20 Pick. 399. [But see Arendale v. Morgan, 5 Sneed, 703. See Donald v. Suckling, L. R. 1 Q. B. 585; Johnson v. Stear, 15 C. B. N. 8. 330, and the learned note of the American editor, James Parsons, Esq.] [And see Tally v. Freedmen's Co., 93 U. S. Supr. 821.} 8 Reeves v. Capper, 5 Bing. N. C. 136. [But see contra, Bodenham- mer v. Newsom, 5 Jones (N. C), 107; Smith v. Sasser, 4 Id. 43; Way v. Davidson, 12 Gray, 466. So it is held that a creditor of the pawnor may attach and sell the property if redelivered to the pawnor. Barrett v. Cole, 4 Jones (N. C), 40.] jA transposition of the above sentence in the text with that immediately preceding might make the author's meaning clearer. ) * Dig. Lib. 13, tit. 7, 1. 37. 6 Dig. Lib. 20, tit. 1, 1. 37; 2 Bell, Comm. § 703, 706, 707, 4th edit.; 2 Bell, Comm. p. 22, 5th edit.; Emerigon, Traits k la Grosse Aventure, ch. 12, § 1, 2 ; ante, § 295, 298 ; 2 Kent, Comm. Lect. 40, p. 581, 4th edit. ; CH. V.J ON PAWNS OR PLEDGES. 269 § 300. Thirdly. It is of the essence of the contract that the thing should be delivered as a security for some debt or engagement. But it is of no consequence whether the debt or engagement, for which the security is given, is that of the pledgor, or of some other person ; for if there is an assent by all the proper parties, it is equally obligatory in each case.^ It may be delivered as security for a future debt, or engage-\ ment, as well as for a past debt ; ^ for one or for many debts and engagements ; upon condition, or absolutely ; for a lim- ited time, or for an indefinite period.^ It may also be implied from circumstances, as well as arise by express agreement;* and it matters not what is the nature of the debt or the en- gagement.^ The contract of pledge is not confined to an engagement for the payment of money ; but it is susceptible of being applied to anj^ other lawful contract whatever.^ Voet ad Pand. Lib. 20, tit. 1, § 12; Sumner v. Hamlet, 12 Pick. 76, 81; Jones V. Baldwin, 12 Pick. 316, 320; Macomber v. Parker, 14 Pick. 497, 505 to 510; Look v. Comstook, 15 Wend. 244. [See the two preceding sections commented upon and limited in application, in the recent case of Meyerstein v. Barber, L. R. 2 C. P.»56 (1866).] {A change of posses- sion might suffice as between the parties themselves which would not avail as against third parties. See Tuttle v. Robinson, 78 111. 332.} ' Pothier, de Nantissement, n. 16; 1 Domat, B. 3, tit. 1, § 1, art. 32, 33. { The security of a debt, in whosesoever hands it may be, is a fund held in trust for the payment of such debt ; and if a surety has paid off the creditor he may call for the security to indemnify himself. New London Bank v. Lee, 11 Conn. 112 ; Brick v. Freehold, &c. Co., 37 N. J. L. 307 ; Stewart v. Davis, 18 Ind. 74.} •■' Badlami;. Tucker, 1 Pick. 398; Holbrook v. Baker, 5 Greenl. 309; D'Wolf V. Harris, 4 Mason, 515; Conard v. Atlantic Ins. Co., 1 Peters, 448; [Steams v. Marsh, 4 Denio, 227;] { Eichelberger v. Murdock, 10 Md. 373. } » United States v. Hooe, 3 Cranch, 73; Shirras v. Caig, 7 Cranch, 34; 2 Johns. Ch. 309; Pothier, de Nantissement, n. 12; Dig. Lib. 13, tit. 7, 1. 11, § 2; Ex parte Ockenden, 1 Atk. 236; Coles v. Jones, 2 Vern. 692; Demainbray v. Metcalfe, Id. 698; Prec. Ch. 419 ; Gilb. Eq. 104; Stevens V. Bell, 6 Mass. 339; Pothier, Pand. Lib. 20, tit. 1, n. 7-9. {See Wil- cox t). Fairhaven Bank, 7 Allen, 270; Beach v. State Bank, 2 Ind. 488; WoK V. Wolf, 12 La. Ann. 529.} * Heinec. Pand. P. 4, Lib. 20, tit. 1, § 7; 1 Domat, B. 3, tit. 1, § 1, art. 2-4; AylifEe, Pand. B. 4, tit. 18, p. 528. 6 1 Domat, B. 3, tit. 1, § 2, art. 3, 5. • 1 Domat, B. 3, tit. 1, art. 2-4; Pothier, Pand. Lib. 20, tit. 1, n. 7-9. { See Vest v. Green, 3 Mo. 219. } 270 ON PAWNS OE PLEDGES. [CH. V. § 301. In all cases the pledge is understood to be a secu- rity for the whole and for every part of the debt or engage- ment, unless it is otherwise stipulated between the parties.^ The payment or discharge of a part, therefore, still leaves it a perfect pledge for the residue of the debt or engagement. " Individua est pignoris causa," is the language of the civil- ians.^ § 302. As to the persons by whom, and between whom, the contract may be made, a few words will suffice. All persons, having a general capacity to contract, may enter into this en- gagement. But persons under disabilities are aflPected by the like incapacity in this, as in other cases of contract.^ Married women, idiots, lunatics, and persons non compotes from age, or debility or otherwise, are wholly unable to make a valid pledge, or, indeed, to receive one. But, in respect to minors, it may be otherwise ; for their contracts are generally not void, but voidable only, and are to be avoided only at their own election.* § 308. The next inquiry to which the subject leads, is as to the rights and duties of the pawnee or pledgee. (1) As to his rights. In virtue of the pawn, the pawnee acquires, by the common law, a special property in the thing,^ and is entitled to 1 Pothier, de Nantissement, n. 46; Code Civil of France, art. 2082, 2083; Code of Louisiana of 1825, art. 3130, 3131. ^ Pothier, de Nantissement, n. 43, 46; AylifEe, Pand. B. 4, tit. 18, p. 533; 1 Domat, B. 3, tit. 1, § 1, art. 18; Pothier, Pand. Lib. 20, tit. 6, n. 1, 2 ; Code of Louisiana of 1825, art. 3130, 3131. {Security taken for a specific purpose must be applied to that precise purpose alone. Phillips v. Thompson, 2 Johns. Ch. 418. And where a loan is made upon one pledge, and a later distinct loan is made the same party upon another pledge, it may be presumed that each transaction was intended to stand by itself. Baldwin d. Bradley, 69 111. 32. See Diwer v. McLaughUn, 2 Wend. 596. The mutual intention of the parties is the thing to be ascertained, j » See ante, § 50, 162, 229; post, § 380. * See Tucker v. Moreland, 10 Peters, 58 ; Keane ti. Boycott, 2 H. Black. 515; 2 Kent, Comm. Lect. 31, p. 234 to 237, 4th edit. {As to the capac- ity of married women to enter into such contracts, see Leitch v. Wells, 48 N. Y. 585; Rowland v. Plummer, 50 Ala. 182. For restraints im- posed upon certain corporations as to pledge contracts, see Bank u. Lanier, 11 Wall. 369.} * 2 Black, Comm. 396; Jones on Bailm. 80; Cortelyou u. Lansing, 2 Cain. Cas. in Err. 202; Garlick v. James, 12 Johns. 146; Mores v. Con- CH. v.] ON PAWNS OR PLEDGES. 271 the exclusive possession of it, during the time and for the ob- jects for which it is pledged. If the owner should wrongfully repossess himself of the pawn, the pawnee may maintain a suit for the restitution of the thing itself, or for damages, at his elec- tion.^ If it should be taken from his possession by a stranger, he may sue the stranger in the like manner.^ And in a suit for damages, the pawnee may recover against a stranger the full value of the thing, although it is pledged to him for less, as he will be answerable over to the owner for the excess.^ § 304. If there are any subsequent accessorial engagements, which are intended by the parties, either tacitly or expressly, to be attached to the pledge, the pledgee has a title and right of possession, coextensive with the new engagements.* But the mere existence of a former debt due to the pledgee does not authorize him to detain the pledge for that debt, when it has been put into his hands for another debt or contract, un- less there is some just presumption that such was the inten- tion of the parties.^ The like rule applies to a subsequent ham, Owen, 123, 124; RatclifE v. Davis, 1 Bulst. 29; s. c. Yelv. 178; Cro. Jac. 244; Coggs o. Bernard, 2 Ld. Raym. 909, 916; Bac. Abridg. Bail- ment, B. ; 1 Dane, Abridg. ch. 17, art. 4, § 1, 6; 2 Kent, Comm. Lect. 40, p. 578, 585, 4th edit.; 1 Bell, Comm. § 200, 4th edit; 2 Bell, Comm. § 701, 4th edit.; Whitaker v. Sumner, 20 Pick. 399, 405; Jones v. Bald- win, 12 Pick. 316; post, § 380. ' [Gibson V. Boyd, 1 Kerr (New Brunswick), 150;] jTreadwell v. Davis, 34Cal. 601.} 2 2 Saund. 47, WilUams's note; WoodruJEE v. Halsey, 8 Pick. 333; 2 Kent, Comm. Lect. 40, p. 585, 4th edit. ; Story on Agency, § 367 to 370; [Gibson v. Boyd, 1 Kerr, 150;] { Ayers v. South Australian Banking Co., L. R. 3 P. C. 548; Noles v. Marable, 50 Ala. 366; Brownellw. Hawkins, 4 Barb. 491. This supposes that the stranger cannot show a better title than the pledgee. } " Lyle V. Barker, 5 Binn. 457; [Harkeru. Dement, 9 Gill, 7; Benjamin V. Stremple, 13 111. 466; Swire v. Leach, 18 C. B. n. s. 479, where this question was much considered; Donald u. Suckling, L. R. 1 Q. B. 585; Adams v. O'Connor, 100 Mass. 515.] * Demandray v. Metcalf, Prec. Ch. 419; s. c. 2 Vern. 691; 2 Story on Eq. Jurisp. § 1034. 6 Jarvis v. Rogers, 15 Mass. 389, 397, 414; Green v. Farmer, 4 Burr. 2214; Walker v. Birch, 6 Term R. 268; Rushforth v. Hadfield, 7 East, 224; Allen v. Megguire, 15 Mass. 490 ; 2 Kent, Comm. Lect. 40, p. 584, 585, 4th edit. ; Demandray v. Metcalf, Prec. Ch. 419 ; 8. c. 2 Vern. 691 ; 2 Story on Eq. Jurisp. § 1034. 272 OK PAWNS OE PLEDGES. [CH. V. debt or loan contracted by the pledgor; for in such a case, the new debt or loan will not be deemed to attach to the pledge, so that the pledgee may retain the same therefor, unless, from all the circumstances, there is just ground of presumption, that the new debt or loan was made upon the credit of the pledge, and was so understood by the parties.^ The rule, in all these cases, strictly applies, that the particular contract is to govern the rights of the parties. " Modus et conventio vincunt legem." § 305. The rule of the Roman law is generally supposed to be different, and to justify the pawnee in insisting upon being paid all the debts due to him, whether those debts are secured by the pledge or not, before he is called upon to deliver it up. " Si in possessione fueris constitutus, nisi ea quoque pecunia tibi a debitore reddatur vel offeratur, qute sine pignore debetur, earn restituere, propter exceptionem doli mali, non cogeris. Jure enim contendis debitore eam solam pecuniam, cujus nomine pignora obligaverunt, offerentes, audiri non oportere, nisi pro ill^ etiam satisfecerint, quam mutuam simpliciter acceperunt."^ This, however, is at most but a general rule, founded in the presumed intention of the parties; for if the parties otherwise agree, their own stipulation will prevail.^ " Si in sortem duntaxat, vel in usuras obstrictum est pignus, eo soluto propter quod obligatum est, locum habet pignera- titia."* So that, after all, it may, perhaps, be doubtful, whether the rule of the Roman law was intended to apply to any cases except those in which there was a natural implication or primd facie presumption, that the subsequent debts should, by the 1 2 Kent, Comm. Lect. 40, p. 584, 4th edit. ; 4 Kent, Comm. Lect. 58, p. 175, 4th edit. ; 2 Story on Eq. Jurisp. § 1010, 1034 ; Jarvis v. Rogers, 15 Mass. 389, 397, 414; Gilliat v. Lynch, 2 Leigh, 493; Demandray v. Metcalf, Prec. Ch. 419; s. C. 2 Vern. 691; Ex parte Ockenden, 1 Atk. 236; Jones v. Smith, 2 Ves. Jr. 372; Vanderzee v. Willis, 3 Bro. Ch. 21. But see Adams v. Claxton, 6 Ves. 226. 2 Cod. Lib. 8, tit. 27 ; Pothier, de Nantissement, n. 47. " Pothier, de Nantissement, n. 47; 2 Story on Eq. Jurisp. § 1034, 1035. * Dig. Lib. 13, tit. 7, 1. 11, § 3; 2 Kent, Comm. Lect. 40, p. 584, 4th edit. CH. v.] ON PAWNS OR PLEDGES. 273 consent of the parties, be tacked to the preceding.^ Pothier, however, deems the Roman law clear on this point of retainer for other debts, independent of any such consent, and that it is a just right, resulting to the pledgee by mere operation of law, whenever no stipulation exists to the contrary.^ And he states the French law to concur with the Roman law in all such cases where the claim is certain, and does not sound merely in unliquidated damages.^ By the Scottish law, if the precise limits of the security, and the special appropriation to a par- ticular debt, are not established by the clearest evidence, the pledge will be deemed an effectual security for all debts.* § 306. The pledge applies, not only to the debt or other engagement, but also to the interest, and all the incidental charges and expenses due thereon. If, for instance, a pledge is for a debt, it covers the interest upon the debt. If interest is expressly stipulated for, it follows from the presumed inten- tion of the parties, that the pledge is to cover both principal and interest. If interest is not stipulated for, and yet is due ex mord, because of the unjust delay of the pledgor to pay the debt when he ought, that also in equity is required to be paid, as well as the principal, before a redemption of the pledge is allowed;^ for here the rule of the Roman law justly applies: " Minus solvit, qui tardius solvit ; nam et tempore minus solvitur."^ § 306 a. In regard to the expenses which have been incurred by the pledgee about the pledge, we are to consider whether they are necessary and proper for its protection and preser- vation, or are merely useful.^ If the former, then the pledgor 1 Jarvis v. Rogers, 15 Mass. 389, 397, 407, 415; Cod. Lib. 8, tit. 27; Wood, Civ. Law, 222 ; 2 Kent, Comm. Leot. 40, p. 584, 4th edit.; 2 Story on Eq. Jurisp. § 1010 and nofe. 2 Pothier, de Nantissement, n. 47; Code Civil of France, art. 2082. 3 Pothier, de Nantissement, n. 47. * 1 Bell, Comm. § 607, 4th edit. ; 2 Bell, Comm. § 702. 4th edit. ; 2 Bell, Comm. p. 684, 5th edit. ; 2 Bell, Comm. p. 22, 5th edit. ; Bell, Illustr. of Law of Scotland, § 1364, edit. 1838; Cod. Lib. 8, tit. 14, 1. 6. 6 Pothier, Pand. Lib. 13, tit. 7, n. 5, and note (2), Ibid.; Dig. Lib. 13, tit. 7, 1. 11, § 3. 6 Pothier, Traitd de I'Usure, n. 117; Dig. Lib. 50, tit. 16, 1. 12, § 1. ' [In a recent case in the House of Lords, it was held that a person, 18 274 ON PAWNS OE PLEDGES. [CH. V. is bound to reimburse them to the pledgee; if the latter, then he is not bound to reimburse them, unless incurred by his own expressed or implied authority. ^ In the Roman and foreign law, the pledgee will, however, be entitled to reimbursement for them, if they were moderate, and it should be deemed equi- table by the proper judge to allow them.^ Even if the pledge should perish, the pledgee will be entitled to be repaid his necessary expenses.^ By the law of Louisiana, the debtor is bound to pay to the creditor all the useful and necessary expenses which the latter has incurred for the preservation of the pledge.* The French Code is to the same effect.^ § 307. In the Roman law, it should seem that the pledgee has not any property in the thing ; but he has a mere right of retention or detainer. " Pignus, manente proprietate debito- ris, solam possessionem transfert ad creditorem ; " ^ or, as we should saj^ the pawnee has a mere lien, and no property. Strictly speaking, at the common law, a mere lien may be constituted without either a jus in re or a jus ad rem,'' although for the most part it is accompanied by a special property. In the law of Sootland, a pledge confers what is called a real right (that is, a right in the thing), ^ but it is not attended with any other effect than the power to retain the pledge, and to apply to the proper judicial authority for a warrant to have it sold for the debt or other engagement.^ This also seems having a lien on a chattel for a debt, cannot add to his debt the expense of keeping until the debt is paid. Somes v. British Empire Shipping Co., 8 H. L. C. 338.] {But this bailment was not by way of pledge.} 1 Post, § 357, 358; {Starrett v. Barber, 20 Me. 457; McCalla u. Clark, 55 Ga. 53; Blake v. Buchanan, 22 Vt. 548.) 2 1 Domat, B. 3, tit. 1, § 3, art. 4, 19, 20; Dig. Lib. 13, tit. 7, 1. 8, § 5; Id. 1. 25; Dig. Lib. 20, tit. 4, 1. 18; Ayliffe, Pand. B. 4, tit. 18, p. 531, 532, 537; 1 Dane, Abridg. ch. 17, art. 4; 2 Kent, Comm. Lect. 40, p. 583, 4th edit. ; Pothier, de Nantissement, n. 60, 61; post, § 358. 8 Pothier, de Nantissement, n. 60, 61 ; Dig. Lib. 13, tit. 7, 1. 8. * Code of Louisiana of 1825, art. 3139. s Code Civil of France, art. 2080. « Dig. Lib. 13, tit. 7, 1. 35, § 1 ; Pothier, Pand. Lib. 20, tit. 1, n. 26; Pothier, de Nantissement, n. 22; Code of Louisiana of 1825, art. 3133. ' Brace v. Duchess of Marlborough, 2 P. Williams, 491. 8 1 Bell, Comm. § 200, 4th edit.; 1 Bell, Comm. p. 210, 258, 5th edit. 8 2 Bell, Comm. § 701, 4th edit.; Id. p. 20-22, 5th edit. CH. v.] ON PAWNS OE PLEDGES. 275 to be the law of France, as well as of other continental nations.^ § 308. Another right resulting, by the common law, from the contract of pledge, is the right to sell the pledge, when there has been a default in the pledgor in complying with his engagement.^ Such a right does not devest the general property of the pawnor, but still leaves in him (as we shall presently see) a right of redemption.^ But if the pledge is not redeemed within the stipulated time, by a due perform- ance of the contract for which it is a security, the pawnee has then a right to require a sale to be made thereof, in order to have his debt or indemnity.* If there is no stipulated time for the payment of the debt, but the pledge is for an indefinite period, the pawnee has a right, upon request, to insist upon a prompt fulfilment of the engagement ; and if the pawnor neglects or refuses to comply, the pawnee may, upon due demand and notice to the pawnor, require the pawn to be sold.^ § 309. By the Roman law a right of sale was given, to the 1 Pothier, de Nantissement, n. 22. 2 2 Kent, Coram. Lect. 40, p. 581, 582, 4th edit.; post, § 310. ' Post, § 310. [A sale before default would be a conversion. Johnson ». Stear, 15 C. B. n. 8. 730;] {Cushman v. Hayes, 46 111. 145; Ogden v. Lathrop, 65 N. Y. 158. A sale by a pledgee for non-compliance with a de- mand which he has no right to make, or after the pledgor's rightful tender of what was due under the pledge, is conversion. Pigot v. Cubley, 15 C. B. N. s. 702; Hope v. Lawrence, 1 Hun (N. Y.), 317. But even if the pledgee makes a wrongful sale, the immediate right of possession does not thereupon revest in the pledgor. It is held that the pledgor cannot in such case maintain trover or detinue either for the whole value of the pledge or for nominal damages, without paying or tendering what he owed the pledgee. Circuity of action is thus avoided. See Donald v. Suckling, L. R. 1 Q. B. 585; Johnson v. Stear, supra; Halliday v. Holgate, L. R. 3 Ex. 299 ; Talty v. Freedmen's Trust Co., 93 U. S. Supr. 321 ; Baltimore Mar. Ins. Co. v. Dalrymple, 25 Md. 269; Bulkeley v. Welch, 31 Conn. 339; Lewis v. Mott, 36 N. Y. 395; Davis v. Funk, 39 Penn. St. 243; Kidney v. Persons, 41 Vt. 386.} * 2 Kent, Comm. Lect. 40, p. 581, 582, 4th edit. ; post, § 310. 6 2 Kent, Comm. Lect. 40, p. 581, 582, 4th edit.; post, § 310; 2 Story on Eq. Jurisp. § 1031 to 1033; [Wilson v. Little, 2 Comst. (N. Y.) 443.] {Demand and notice ought to be given to the pledgee in all such cases of indefinite period. See Pigot v. Cubley, 15 C. B. n. s. 702; Martin v. Reid, 11 C. B. n. s. 730; Stokes v. Frazier, 72 111. 428.} 276 ON PAWNS OE PLEDGES. [CH. V. same effect as in the common law.^ If a right to sell consti- tuted a part of the contract, it was, of course, obligatory. If no such right was provided for in the contract, and a sale was not prohibited, it might be made ; and even if prohibited, the pledgee might, after regular notice and proceedings against the pledgor, have a right to sell upon his default of pay- ment.^ The sale might be, by a judicial order of sale, or by the act of the party, after due notice to tlie owner ; and in either case, if the sale was bond fide, it passed the title com- pletely to the purchaser.^ Justinian, however, directed that if any mode of selling was prescribed by the parties, that should be followed ; and that, in the absence of any such stip- ulation, the pawnee might sell, after two years from the proper notice to the party, or from a judicial sentence, and not before.* The modern nations of Continental Europe, and others using the civil law, seem generally to have adopted the rule of requiring a judicial sale.^ The Code of Louisiana has adopted the like rule.^ § 310. The common law of England, existing in the time of Glanville, seems to have required a judicial process to justify the sale, or at least to destroy the right of redemption.'^ But the law as at present established leaves an election to the pawnee. He may file a bill in equity against the pawnor for a foreclosure and sale ; or, he may proceed to sell ex mero 1 Pothier, Pand. Lib. 20, tit. 5, n. 1-3, 18, 19. 2 Pothier, Pand. Lib. 20, tit. 5, n. 1-3, 18, 19 ; 1 Domat, B. 3, tit. 1, § 3, art. 10 ; Ayliffe, Pand. B. 4, tit. 18, p. 533. 3 2 Story on Eq. Jurisp. § 1008, 1009. * Pothier, Pand. Lib. 20, tit 4, n. 18, 19 ; Cod. Lib. 8, tit. 34, 1. 3, § 1; Heinec. Pand. P. 4, Lib. 20, tit. 5, § 37-39, 42; 1 Domat, B. 3, tit. 1, § 3, art. 9, 10 ; Ayliffe, Pand. B. 4, tit. 18, p. 532. 5 Pothier, de Nantissement, n. 24, 25; Code Civil of France, art. 2078; Code of Louisiana of 1825, art. 3132; Ersk Inst. B. 3, tit. 1, § 33; 2 Kent, Comm. Lect. 40, p. 581, 582, 4th edit. ; 1 Domat, B. 3, tit. 1, § 3, art. 1, 2; Ersk. Inst. B. 3, tit. 1, § 33; 2 Bell, Comm. § 701, 4th edit; Id. p. 20-22, 5th edit. 8 Code of Louisiana of 1825, art. 31, 32; [Rasch ». His Creditors, 1 La. Ann. 31. J ' Glanville, Lib. 10, ch. 1, 6; 1 Reeves's Hist, of Law, 161, 162; 2 Bell, Comm. § 701, 4th edit. ; Id. p. 20-22, 5th edit.; j9os(, § 346. CH. v.] ON PAWNS OE PLEDGES. 277 motu, upon giving due notice ^ of his intention to the pledgor.^ In the latter case, if the sale is bond fide and- reasonably made, it will be equally as obligatory as in the first case.'' But a 1 [This is essential unless waived. Millikin v. Dehon, 10 Bosw. 325; Stevens v. Hurlbut Bank, 31 Conn. 146; Nelson u. Edwards, 40 Barb. 279; Brass i>. Worth, Id. 648; Davis i). Funk, 39 Penn. St. 243;] {Wash- burn V. Pond, 2 Allen, 474; Bryan v. Baldwin, 52 N. Y. 233; Cushman V. Hayes, 46 111. 145; Ogden v. Lathrop, 65 N. Y. 158; Conyngham's Appeal, 57 Penn. St. 474; Gay v. Moss, 34 Cal. 125.} [In respect to notice of sale, there is no difference between the case of a pledge for a debt payable immediately, and one where the debt does not become payable until a future day. Stearns v. Marsh, 4 Denio, 227. See also Wilson V. Little, 2 Comst. 443.] {Formal notice of the time and place of sale is not requisite, if the pledgor has actual knowledge, and the pledgee's procedure is fair and reasonable. Alexandria R. K. Co. v. Burke, 22 Gratt. 254. Nor is this right to sell to be deemed a peculiar trust reposed in the creditor, but rather an incident to the contract of pledge. Ibid. ; Jerome v. McCarter, 94 U. S. Supr. 734. It is held that if the pledgor be gone beyond seas, notice may be served upon his authorized agent. Potter v. Thompson, 10 R. I. 1. But see Stearns v. Marsh, 4 Denio, 227. As to publication of notice in a newspaper in certain cases, see Potter v. Thompson, supra. Notice of the place of sale of stock has been thought unnecessary. Worthington v. Tormey, 34 Md. 182. For the notice requirement upon default in a " margin " contract, see Markham v. Jaudon, 41 N. Y. 235; McNeil f. Tenth Nat. Bank, 55 Barb. 59; Child v. Hugg, 41 Cal. 519.} ^ Kemp V. Westbrook, 1 Ves. 278; Cortelyou d. Lansing, 2 Cain. Cas. in Err. 200, 202; Garlick v. James, 12 Johns. 146; Patchin v. Pierce, 12 Wend. 61; Hart v. Ten Eyck, 2 Johns. Ch. 62, 100; 2 Story on Eq. Jurisp. § 1030-1033; [Brightman v. Reeves, 21 Texas, 70; Mauge v. Heringhi, 26 Cal. 577; Vaupell v. Woodward, 2 Sandf. Ch. 143.] 8 Pothonier o. Dawson, Holt, N. P. 385; 2 Bell, Comm. §703, 4th edit. ; 2 Bell, Comm. p. 20, 22, 5th edit. ; 2 Story on Eq. Jurisp. § 1032, 1033; Tucker o. Wilson, 1 P. Wms. 261; s. c. 5 Bro. Pari. Cas. 193, Tomlin's edit. ; Lockwood v. Ewer, 9 Mod. 278; s. c. 2 Atk. 303; Cor- telyou V. Lansing, 2 Cain. Err. 200; 2 Kent, Comm. Lect. 40, p. 581, 582,4th edit.; [Robinson v. Hurley, 11 Iowa, 410;] Garlick v. James, 12 Johns. 146; Kemp v. Westbrook, 1 Ves. 278. There does not seem to be any distinction, as to the right to sell, between the case of a pledge and that of a mortgage of chattels. Ibid. ; 2 Story on Eq. Jurisp. § 1030 to 1035; Hart ». Ten Eyck, 2 Johns. Ch. 62, 100; Patching. Pierce, 12 Wend. 61. {See also Ainsworth v. Bowen, 9 Wis. 318; Alex- andria R. R. Co. V. Burke, 22 Gratt. 251; Strong v. Nat. Banking Asso- ciation, 45 N. Y. 718 ; Davis v. Funk, 39 Penn. St. 243.} [The sale should be at public auction. Rankin v. McCullough, 12 Barb. 103; Wheeler v. 278 ON PAWNS OK PLEDGES. [CH. V. judicial sale is most advisable in cases of pledges of large value ; as the courts watch any other sale with uncommon jealousy and vigilance ; and any irregularity may bring its validity into question.^ With the exception of Louisiana, where the civil law prevails, the English rule seems gene- rally adopted in America.^ § 311. The case of pawns seems in this respect distinguish- able from the ordinary case of liens; for a mere right of lien is not understood to carry with it any general right of sale to secure an indemnity. The foundation of the distinction rests in this, that the contract of pledge carries an implication that the security shall be made effectual to discharge the obligation ;^ but in the case of a lien, nothing is supposed to be given but a right of retention or detainer, unless under special circumstances.^ § 312. But it may be asked. What are the rights of the Newbould, 16 N. Y. 392; Dykers v. Allen, 7 Hill, 497; Washburn v. Pond, 2 Allen, 474 ;] | Stevens v. Hiirlbut Bank, 31 Conn. 146. i [Whether a sale at the broker's board will suffice in certain cases, see Brass v. Worth, 40 Barb. 648 ;] \ Child v. Hugg, 41 Cal. 519. } [Evidence of a local custom to sell at a private sale is inadmissible, as being contrary to law. Wheeler V. Newbould, 16 N. Y. 392 ; Markham ». Jaudon, 41 N. Y. 235.] (The pledgor's bankruptcy does not deprive the pledgee of his right to sell upon default. Jerome v. McCarter, 94 U. S. Supr. 734. And, of course, con- duct on the pledgor's part subsequent to the sale may amount to ratifica- tion, so as to debar him from setting up the plea of informality. Hamilton V. State Bank, 22 Iowa, 306; Child v. Hugg, 41 Cal. 519; Clark v. Bou- vain, 20 La. Ann. 70. } 1 2 Kent, Comm. Lect. 40, p. 581, 582, 4th edit.; Demandray v. Met- calf, Free. Ch. 419; s. c. Gilb. Eq. 104; Kemp v. Westbrook, 1 Ves. 278; Vanderzee v. Willis, 3 Bro. Ch. 21; Hart v. Ten Eyck, 2 Johns. Ch. 62, 100. {See further as to the sale of incorporeal chattels pledged, §321,^os(.} 2 2 Kent, Comm. Lect. 40, p. 581, 582, 4th edit.; Cortelyouu. Lansing, 2 Cain. Err. 200; M'Lean v. Walker, 10 Johns. 471 ; Garlick v. James, 12 Johns. 146 ; Hart v. Ten Eyck, 2 Johns. Ch. 62. 8 Gibbs, C. J., in Pothonier v. Dawson, Holt, N. P. 386. 4 2 Bell, Comm. § 701, 773, 4th edit. ; 2 Bell, Comm. p. 20-22; Id. p. 95, 96, 5th edit. ; Story on Agency, § 371 ; Pothonier v. Dawson, Holt, N. P. 385. IShaw, C. J., in Doane ;;. Russell, 3 Gray, 382, comments upon Pothonier v. Dawson, supra, and other eases, and dis- cusses the general question, whether a right of lien upon a chattel carries with it the right to sell. See 1 Sch. Pers. Prop. 498. } CH. v.] ON PAWNS OE PLEDGES. 279 pledgee when the pledge is sold, and there are various claims upon the fund produced by the sale ? This subject is treated at large in the Roman law ; and a few of the leading distinc- tions will be here adverted to.^ In the first place, those cred- itors who have what are called privileged debts in the Roman law, that is to say, debts in respect to which a lien or right of preference exists on the property, enjoy a priority of payment, and are to be paid before the pawnee ; and privileged cred- itors of equal rank and degree are to take pari passu. In the next place, those creditors who, as mortgagees or pawnees, have a specific title to the thing, take according to the priority in point of time of their respective titles, unless some peculiar circumstances intervene to vary the rule. " Qui prior est tempore potior est jure." ^ In the next place, if the pledge is for the joint benefit of several creditors, each of them is enti- tled to share equally with the others according to his debt. But if the thing is pledged severally to two creditors, without any communication with each other, and one of them has ob- tained the possession, he is entitled to a preference, according to the maxims, " In pari causS. possessor potior haberi debet ; " ^ " In sequali jure melior est conditio possidentis." In the case of a sale of a pledge, these rules are constantly observed in the distribution of the fund ; so that every creditor who possesses a superior right or privilege will be entitled to maintain it, and to receive a full compensation from the fund, before the creditor who holds under a mere contract of pledge from the debtor.* In the next place, if the thing is pledged to one and the same creditor for several debts, and the pledge, when sold, is not sufficient to pay all the debts, the money arising from the sale is to be applied proportionally to all the debts, to extinguish the same pro tantoJ' 1 See 1 Domat, B. 3, tit. 1, § 5, per tot.; Pothier, de Nantissement, n. 26 ; Pothier, Pand. Lib. 20, tit. 4, per tot. 2 Pothier, Pand. Lib. 20, tit. 4, § 1. 1 Big. Lib. 50, tit. 17, L 128. * 1 Domat, B. 3, tit. 1, § 5, per tot.; 1 Domat, B. 3, tit. 1, § 1, art. 18, 14 ; Id. § 3, art. 3 ; Heinec. Pand. P. 4, Lib. 20, tit. 4, § 31 to 36; AylifEe, Pand. B. 4, tit. 18, p. 529; Pothier, Pand. Lib. 20, tit. 4, per tot. 5 Herkimer Manuf., &c. Co. v. Small, 21 Wend. 273; Blackstone Bank v. Hill, 10 Pick. 129, 131 ; Domat, B. 4, tit. 1, § 4, art. 7 ; Id. B. 3, 280 ON PAWNS OR PLEDGES. [CH. V. § 313. Few cases have arisen upon this subject in the com- mon law ; and it would be unsafe to rely wholly upon the civil law as furnishing safe analogies for our guidance. In the absence, however, of any authoi-ity, the civilians may assist our inquiries ; and for this purpose, Domat, in an especial manner, may be consulted with advantage.^ It has been decided, that a person who held a mortgage as security for a debt due to himself, and for another debt due to a third per- son, and who had agreed to sell the property whenever he could realize a sum equal to both debts, and to apply the proceeds to the payment of the debt of the third person, was entitled, if the proceeds were insufficient to satisfy both debts, to satisfy his own debt first, and to apply the surplus only to the other debt.^ The case seems to have turned upon the construction of the peculiar language of the agreement in that case. But the court said, that, as there was no stipulated appropriation, in case the proceeds should fall short of both debts, the party holding the pledge was entitled to satisfy his own demand first, and to pay over the surplus only to the other party. This seems to follow out the rule of the Roman law, which, in a like case, considers the possession as entitling the party to a preference.^ " In pari causa possessor potior haberi debet." * tit. 1, § 3, art. 15. [If a creditor holds collateral security for various notes, some of which also bear the names of sureties, he may, in the absence of any stipulation to the contrary, apply the proceeds of the collateral secur- ity so as to best protect his own interest; and is not bound to apply such proceeds in the first instance to those notes having sureties upon them. Wilcox V. Fairhaven Bank, 7 Allen, 27.] {See Goss v. Emerson, 3 Fost. 38; § 300, supra. For the effect of an agreement to hold a pledge as security for general indebtedness besides a certaia present debt, and the application of the proceeds of the sale under such circumstances, see Eichel- berger v. Murdock, 10 Md. 373. And see Beach v. State Bank, 2 Ind. 488. J 1 Pothier, de Nantissement, n. 26; Heinec. Pand. P. 4, Lib. 20, tit. 4, § 36; Dig. Lib. 20, tit. 1, 1. 10 ; Ayliffe, Pand. B. 4, tit. 18, p. 524 ; 1 Do- mat, B. 3, tit. 1, § 1, art. 14; Wood, Civ. Law, 221 ; 1 Domat, B. 3, tit. 1, § 5, per tot.; Pothier, Pand. Lib. 20, tit. 4, per tot. 2 Marshall v. Bryant, 12 Mass. 321. s 1 Domat, B. 3, tit. 1, § 1, art. 14; Dig. Lib. 20, tit. 1, 1. 10; Dig. Lib. 50, tit. 17, 1. 128; Pothier, Pand. Lib. 20, tit. 4, § 20, 31. * Dig. Lib. 50, tit. 17, 1. 128; ante, § 312. CH. v.] ON PAWNS OE PLEDGES. 281 § 314. If several things are pledged, each is deemed liable for the whole debt or other engagement.^ And the pledgee may proceed to sell them from time to time, until the debt or other claim is completely discharged.^ If one thing perishes by accident or casualty without his default, he has a right over all the residue for his whole debt or other duty.^ ■ The pledgee may also sell, not only the things pledged, but all their increments.* But when once he has obtained an entire satisfaction, he can proceed no further ; and if there is any surplus, it belongs to the pledgor.^ If the things pledged are insufficient to pay the whole debt or other duty, the surplus constitutes a personal charge on the debtor, or other con- tracting party, and may be recovered accordingly.^ ■ And the pledgee may release one of the things pawned without affecting any of his rights over the others.^ § 315. The possession of the pawn does not suspend the right of the pawnee to proceed personally against the pawnor for his whole debt or other engagement, without selling the pawn ; for it is only a collateral security.^ If the pawnor, in 1 Pothier, de Nantissement, n. 43, 44, 46; Code Civil of France, art. 2082, 2083; Code of Louisiana, art. 3130, 3131. |Tlie pledgee is not obliged to pursue one security in preference to another, where two or more securities were taken, but may take his choice. See Comstock V. Smith, 23 Me. 202; Brick v. Freehold, &c. Co., 37 N. J. L. 307; Buchanan v. International Bank, 78 111. 500. } 2 Ibid. 8 1 Domat, B. 3, tit. 1, § 1, art. 18, § 3, n. 12; Ratclife v. Davis, Yelv. 178; Bac. Abridg. Bailment, B.; Anon., 2 Salk. 522; Pothier, de Nan- tissement, n. 43. * Code of Louisiana, art. 3135. 6 1 Domat, B. 3, tit. 1, §1, art. 29, § 3, art. 12; Bac. Abridg. BaUment, B. ; Stevens v. Bell, 6 Mass. 339. { See Newport, &c. Bridge Co. v. Doug- lass, 12 Bush, 673 ; Andrews v. Scotton, 2 Bland, 629 ; Jesup v. City Bank, 14 Wis. 331 ; Rohrle e. Stidzer, 50 Cal. 207 ; Van Blarcom v. Broadway Bank, 37 N. Y. 540. } « 1 Domat, B. 3, tit. 1, § 1, art. 31; Tooke v. Hartley, 2 Brown, Ch. 125; South Sea Company y. Duncomb, 2 Str. 919; {Faulkner v. Hill, 104 Mass. 188.} ' 1 Domat, B. 3, tit. 1, § 3, art. 13, 14. 8 South Sea Company v. Duncomb, 2 Str. 919 ; Bac. Abridg. Bailment, B.; Anon., 12 Mod. 564; 1 Dane, Abridg. ch. 18, art. 4, § 9. See post, § 366; [Bank of Rutland v. Woodruff, 34 Vt. 89; Robinson v. Hurley, 282 ON PAWNS OR PLEDGES. [CH. T. consequence of any default or conversion of the pawnee, has, by an action, recovered the value of the pawn, still the debt remains, and is recoverable, unless in such prior action it has been deducted.^ It seems, that by the common law the pawnee, in such an action brought for the tort, has a right to have the amount of his debt recouped in the damages.- § 316. By the Roman law the pawnee could not be forced to commence a personal suit against the debtor ; but he might rely upon the security of his pledge. " Creditor ad petitio- iiem debiti urgeri jure minime potest." ^ Nor did it make any difference in this respect that the pawnee had omitted to 11 Iowa, 410; Butterworth v. Kennedy, 5 Bosw. 143;] Elder v. Rouse, 15 Wend. 218; Langdon t'. Buel, 9 Wend. 80, 83; Case v. Houghton, 11 Wend. 106; Cleverly D. Brackett, 8 Mass. 150; Beckwith v. Sibley, 11 Pick. 482,484; Townsend u. Newell, 14 Pick. 332; Whitaker v. Sum- ner, 20 Pick. 399, 406; {Dugan v. Sprague, 2 Ind. 600. j [The pawnee may attach the identical property pledged to secure his debt. Buck v. IngersoU, 11 Met. 226; Arendale v. Morgan, 5 Sneed, 703.] j Where the pledgee sues on the original debt, it would appear that the pledgor cannot set ofE damage to the pledge by the pledgee's want of dili- gence, but must bring his separate action. See May v. Sharp, 49 Ala. 140. Since the pledgee is not obliged to sell on default, neither is he liable while the pledgor fails to redeem if the pledge depreciates on his hands. This rule has been applied in the case of pledged stock and other chattels which sell in the market. Rozet v. McClellan, 48 111. 345 ; Granite Bank V. Kichardson, 7 Met. 407; Robinson v. Hurley, 11 Iowa, 410; Richardson V. Ins. Co., 27 Gratt. 749; Williamson d. MeClure, 37 Penn. St. 402; Richards v. Davis, 5 Penn. Law J. 471. But in the case of pledged collat- erals presently payable, as a promissory note or bond with short time to run, the rule appears to be different. See § 321, post. As to whether mortgage bonds held as collateral security should be foreclosed after the pledgor's default, see Newport, &c. Bridge Co. u. Douglass, 12 Bush, 673; Fletcher v. Dickinson, 7 Allen, 23. The rule, whatever the security, appears to be one of good faith and a reasonable pursuance of the pledge contract according to its manifest intent. Judgment obtained against the pledgor does not preclude the pledgee from continuing to hold the pledge. Smith V. Strout, 63 Me. 205; Charles v. Coker, 2 S. C. 122. But the local statutes sometimes regulate the sale ; as in requiring the creditor to exhaust his collateral before suing on the original debt. Swift v. Fletcher, 6 Minn. 550. } 1 Ratclift V. Davis, Yelv. 179 ; Bac. Abridg. Bailment, B. 2 Jarvis v. Rogers, 15 Mass. 389. [See Johnson v. Stear, 15 C. B. N. s. 336; Brierly t;. Kendall, 17 Q. B. 937;] {supra, § 308.} 8 Cod. Lib. 8, tit. 14, 1. 20. CH. v.] ON PAWNS OR PLEDGES. 283 sell the pledge. The language of the Code is, " Persecutione pignoris omiss^, debitores actione personali convenire creditor urgeri non potest." i The common law has adopted the same doctrine. § 317. In speaking of sales by the pledgee, it has been as- sumed, that there is no special agreement between the parties, as to the time or mode of sale, nor any stipulation wholly in- terdicting any sale. If any such agreement exists, it must ordinarily regulate the rights of both parties ; and neither of them will be allowed to depart from it with impunity .^ Even where there was an express prohibition of sale in the terms of the contract, the Roman law (as we have seen) ^ author- ized the pledgee to demand his debt, and, upon the pledgor's refusal to pay it, enabled him to obtain a judicial decree for a sale ; for it was said, that otherwise the pledge might be use- less.* The common law does not appear to have made any direct provision in such a case. How far a court of equity might interfere to grant redress, it is not, perhaps, easy to say, especially if the pledge should be perishable.^ § 318. But the right of the pledgee is strictly confined to a sale ; for he cannot appropriate the property to himself upon the default of the pledgor ; nor can he so appropriate it (as we shall hereafter see) by any agreement with the pledgor, that upon such default it shall be irredeemable ; for such an agreement is repudiated by the common law and the Roman law, as unconscionable and against public policy.® 1 Pothier, Pand. Lib. 20, tit. 6, § 2, 1. 6; Cod. Lib. 8, tit. 14, L 24. 2 Stevens v. Bell, 6 Mass. 339; [Mowry v. Wood, 12 Wis. 413;] {Loomis V. Stave, 72 111. 623; Hestonville R. R. Co. v. Shields, 3 Brews. (Pa.) 257; Robinson v. Hurley, 11 Iowa, 410; Maryland Fire Ins. Co. v. Dalrymple, 25 Md. 242; Genet v. Rowland, 45 Barb. 560. The right to sell on default without notice or at private sale may thus be stipulated. It is said in Belden v. Perkins, 78 111. 449, that the mere fact that the pledgor has the right to determine when the chattel pledged shall be sold does not affect the legal character of the contract. } 8 Ante, § 309. * 1 Domat, B. 3, tit. 1, § 3, art. 10; Aylifie, Pand. B. 4, tit. 18, p. 533 ; Pothier, Pand. Lib. 20, tit. 5, n. 1, 2. « See 2 Story on Eq. Jurisp. § 1030 to 1036. <5 1 Domat, B. 3, tit. 1, § 3, art. 11; post, § 345; Pothier, de Nantisse- ment, n. 18; 2 Story on Eq. Jurisp. § 1008, 1009, 1019, 1031; Garlick v. James, 12 Johns. 146; {Lucketts v. Townsend, 3 Texas, 119.} 284 ON PAWNS OR PLEDGES. [CH. V. § 319. In respect to sales, also, there is this salutary re- straint upon the pawnee to secure his fidelity and good faith, that he can never become a purchaser at the sale.^ This rule will be found recognized equally in the common law and the Roman law.^ Indeed, it is founded on a principle still more broadly enforced in equity jurisprudence, that where a fidu- ciary relation exists between parties, the agent shall never be permitted to obtain a personal benefit to himself, by any act done or purchase made, which may prejudice the right or interests of his principal,^ or may involve him in a conflict of duties and interests.'' § 320. Where there is no contract on the part of the pledgee requiring him to sell the pledge, it has been said, that at the common law he is not compellable so to do ; but he may re- tain the pledge, until the discharge of his debt or other con- tract.^ This doctrine is true with reference to the case in which it was used ; for the point there was, whether another creditor, by a foreign attachment or execution, could compel the pledgee to sell ; and it was very properly held that he could not.^ But a court of equity might, in a fit case, inter- fere in favor of the pledgor, and compel a sale, if it was clear that the property would produce more than sufficient to sat- isfy the debt, or if it was of a perishable nature.' The Roman law authorized the pledgor to insist upon a compulsive sale 1 [Middlesex Bank o. Minot, 4 Met. 325;] jBalt. Mar. lus. Co. v. Dalryraple, 25 Md. 269; Bank v. Dubuque, &c. R. R. Co., 8 Iowa, 277; Chicago Artesian Well Co. v. Corey, 60 111. 73. The practical eifect of such purchase by the pledgee is to leave the pledge in slalu quo, though it is open to the pledgor to affirm or disaffirm by his acts and conduct. See cases supra; Stokes v. Frazier, 72 111. 428; Bryan u. Baldwin, 7 Lans. 174. While any collusive sale is open to impeachment, the rule is general, that if the pledgee sells the pledge on default fairly and publicly he is not answerable for the loss which may ensue on its estimated value. See Ainsworth v. Bowen, 9 Wis. 348.} " Ayliffe, Pand. B. 4, tit. 18, p. 534; Cod. Lib. 8, tit. 28, 1. 10. ' [See Donald v. Suckling, L. R. 1 Q. B. 587.] * 1 Story on Eq. Jurisp. § 308 to 323. ^ { See § 315, supra. ] « Badlam v. Tucker, 1 Pick. 389, 400. ' See 2 Story on Eq. Jurisp. § 1031-1033 ; Kemp v. Westbrook, 1 Ves. 278. CH. v.] ON PAWNS OR PLEDGES. 285 against the pledgee in many cases, if not universally, although it is admitted that it might be dealing out to the latter a hard measure of justice. " Invitum enim creditorem cogi vendere, satis inhumanum est." i The law of Louisiana has recognized the same right.^ § 321. Where the pledge is a negotiable security (such as a negotiable note), the pledgee has a right to recover and re- ceive the money due thereon, and to sue for it in his own name.3 But he has no right (unless perhaps in a very ex- treme case) to compromise with the parties to the security for a less sum than the sum due on this security ; and if he does, he will be compelled to account to the pledgor for the full value.* 1 Pothier, Pand. Lib. 20, tit. 5, n. 16; Dig. Lib. 13, tit. 7, 1. 6. 2 Williams v. Schr. St. Stephens, 14 Martin, 24. ^ [Jones V. Hawkins, 17 Ind. 550; Nelson v. Wellington, 5 Bosw. 178; Dix V. Tnlly, 14 La. Ann. 456 ; Hilton v. Waring, 7 Wis. 492. But if the note was originally without consideration between the maker and payee, and the latter pledge the note for less than its face, the pledgee should recover only to the amount of his debt. Stoddard v. Kimball, 6 Cush. 469; Fisher v. Fisher, 98 Mass. 303;] {White ». Phelps, 14 Minn. 27; Louisiana State Bank v. Gaiennie, 21 La. Ann. 555; Lobdell 0. Merchants' Bank, 33 Mich. 408; Houser v. Houser, 43 Ga. 415; Mayo v. Moore, 28 111. 423; Lawrence v. McCalmont, 2 How. 426; Fisher v. Fisher, 98 Mass. 303. For whatever the pledgee may collect on such security, whether in full or part payment, he must account when- ever the pledgor redeems. Overstreet v. Nunn, 36 Ala. 666 ; Rice v. Benedict, 19 Mich. 132.} * Bowman v. Wood, 15 Mass. 534 ; Garlick v. James, 12 Johns. 146; [Depuy V. Clark, 12 Ind. 427.] {As to the extent of the pledgee's right to grant extensions, make exchange of the securities, &c., without the pledg- or's express consent, see Girard Fire Ins. Co. v. Marr, 46 Penn. St. 504.} [It has been held that a pledgee of such paper has no right, in the absence of a special power, to sell the pledge, but is bound to collect it and apply the proceeds to his own debt. Wheeler v. Newbould, 16 N. Y. 392. And see Fletcher v. Dickinson, 7 Allen, 23; Nelson v. Edwards, 40 Barb. 279; Lambertson v. Windom, 12 Minn. 232. And a usage among brokers to sell such notes instead of collecting them was held to be void, being in opposition to a rule of law. Wheeler v. Newbould, supra. And see Markham v. Jaudon, 41 N. Y. 235. And it is the duty of the pledgee to use all due diligence to collect such notes, or he will be liable. Wakeman V. Gowdy, 10 Bosw. 208; Girard Ins. Co. v. Marr, 46 Penn. St. 504; Roberts v. Thompson, 14 Ohio St. 1.] {The doctrine of Wheeler v. New- 286 ON PAWNS OE PLEDGES. [CH. V. § 322. In the next place, as to the right of the pledgee to alienate the property. It is very certain that, at the common law, he cannot alienate the property absolutely, nor beyond the title actually possessed by him, unless in special cases.' bould, supra, has led to some confusion, as though applying to pledged negotiable paper, on the pledgor's default, a rule at variance with that of other kinds of pledged chattels, noted supra, § 310. In the recent case of Fraker v. Reeve, 36 Wis. 85, much ingenuity is shown in reaching a righteous conclusion, without disturbing the force of that New York authority. As a matter of fact, the pledged paper in Wheeler v. New- bould had but a short time to run, and the collection of that paper on maturity instead of its public sale in the market, to the probable injury of the parties' credit whose names were upon it, was most consistent with the rational intention of pledgor and pledgee at the outset, aud, indeed, for the interest of both on the former's default. But in Fraker v. Reeve, the paper pledged was long paper, having one year and two years to run. Now, in this latter case, and, in fact, wherever the negotiable instrument taken as security is not to mature till long after the principal debt, it is reasonable to suppose that the contract contemplated authority in the pledgee to sell that security in case of the pledgor's default. Such is the inclination of later decisions, in fact, notwithstanding the New York rule as stated in Wheeler v. Newbould. See Overlock e. Hills, 8 Me. 383; Richards u. Davis, 5 Penn. L. J. 471. It is further true that stock, coupon bonds, and the like incorporeal chattels, taken in pledge, carry such a power to sell on default of the pledgor, where not presently paya- ble. See § 315, note, Rozet ». McClellan and other cases cited ; 1 Beasl. 823; Richardson v. Ins. Co., 27 Gratt. 749. For a corresponding rule as to mere debts or choses, see Mullen v. Morris, 2 Penn. St. 85; Rice v. Benedict, 19 iSIich. 132. In short, the length of time for which the incor- poreal security taken as collateral is to run, as compared with the princi- pal debt, bears materially upon the present issue, as manifesting the true intent of the original pledge contract. As to the "due diligence" required of the pledgee in collecting the negotiable paper taken as security, see further May ti. Sharp, 49 Ala. 140; Burrows v. Bangs, 34 Mich. 304; Reeves o. Plough, 41 Ind. 204; Goodallw. Richardson, 14 N. H. 567; Cardinu. Jones, 23 Ga. 175; Word V. Morgan, 5 Sneed, 79; Hanna ». Holton, 78 Penn. St. 334; Noland v. Clark, 10 B. Monr. 239. Wherever the pledgee is thus bound to collect, a reasonable diligence is the full measure of his responsibility. Nor, as it is held in Overlock v. Hills, 8 Me. 383, is it incumbent on him to keep and collect the security after the principal debt has been paid; his duty thereupon being to give the security back to the pledgor. } 1 Demandray v. Metcalf, 2 Vern. 691; s. c. 1 Eq. Cas. Abr. 324; s. c. Prec. Ch. 419; Hartop v. Hoare, 3 Atk. 44; Pickering v. Busk, 15 East, 38; Ayliffe, Pand. B. 4, tit. 18, p. 534. [See Bailey v. Colby, 34 N. H. CH. V.j ON PAWNS OR PLEDGES. 287 But if the pledge is of mere current coin, or of a negotiable security, capable in its own nature of passing by delivery, there, if the pledgee sells it to a bond fide purchaser without notice, the latter acquires an absolute property in the pledge.^ For, in a concurrence of equal rights, he who has trusted the party, and enabled him to impose upon another, shall be bound by his acts. Thus, if a pledge is of a certificate of stock, which may pass by delivery, a bond fide purchaser, or subsequent pledgee, may hold the stock against the real owner.^ § 323. The like rule applies to negotiable securities.^ But if a negotiable note, or other security, contains on it any inti- mation that it belongs to another person, or that it is for his use or account, there, it is incapable of being pledged for the use of the holder.* And the rule, in respect to negotiable 29.] {la a pledge of stock, the identical stock pledged should be re- turned, as between pledgor and pledgee. Langton v. White, L. R. 6 Kq. 165. But see Thompson v. Toland, 48 Cal. 99. See further Hawks v. Hinchliff, 17 Barb. 492; Prall v. Tilt, 27 N. J. Eq. 39.3; ante, § 308.} 1 Ayliffe, Pand. B. 4, tit. 18, p. 534; Cod. Lib. 8, tit. 30, 1. 1; 1 Story on Eq. Jurisp. § 434, 435 ; Story on Agency, § 126-130. 2 Jarvis v. Rogers, 13 Mass. 105; 8. c. 15 Mass. 389. [But it has re- cently been held that a pledgee of stock has no legal right to sell the same ■without notice to the pledgor, and such sale passes no title as against the pledgor, even to a bona fide party. McNeil v. Tenth National Bank, 55 Barb. 59. J {See Lewis v. Mott, 36 N. Y. 395; Thompson v. Toland, 48 Cal. 99; Brightman u Reeves, 21 Texas, 70. In Ashton's Appeal, 73 Penn. St. 153, where the pledgee of stock as collateral pledged it to a third party for his own debt, it was held that the latter took the stock subject to the original equities. And as to a " mixture " of stock held in pledge with stock of one's own, see Berlin v. Eddy, 33 Mo. 426. It should be noted that the formalities attending the transfer of stock are not in all parts of the United States the same. See 1 Sch. Pers. Prop. p. 631.} * Bowman y. Wood, 15 Mass. 534; Garlick v. James, 12 Johns. 146; [Depuy t). Clark, 12 Ind. 432;] Collins v. Martin, 1 Bos. & Pull. 648; Peacock v. Rhodes, 2 Doug. 633; Hartop v. Hoare, 3 Atk. 50; Miller ». Race, 1 Burr. 452; ante, § 296; 1 Bell, Coram. § 412, 4th edit.; 1 Bell, Coram, p. 486, 487, 5th edit. {See Baker v. Arnot, 67 N. Y. 448.} * Treuttel v. Barandon, 8 Taunt. 100 ; Sigourney v. Lloyd, 8 Barn. & Cressw. 622; 8. c. 5 Bing. 525. [Thus if C, holding certificates of stock in his name, " as trustee," although not saying for whom, pledge thera for his own individual debt, which has no connection with his trusteeship, the pledgee is, by the very terms of the certificate, put upon 288 ON PAWNS OR PLEDGES. [CH. V. securities, seems coniined to cases of securities which pass as mone}'. For although a bill of lading of goods is negotiable, yet if the consignee has a mere lien for advances, he cannot pledge them by indorsing the bill of lading (although he may sell them), even if the pawnee is ignorant that he is not the owner ; unless, indeed, the owner should have enabled him so to act, by holding him out to the world as exclusively owner ; for then he might be bound by the pledge. -"^ ) § 324. The pawnee may, by the common law, deliver over ' the pawn into the hands of a stranger for safe custody with- out consideration ; ^ or he may sell or assign all his interest; in the pawn ; ^ or he may convey the same interest condition- ally by way of pawn to another person ; without in either case destroying or invalidating his security.* But if the pawnee should undertake to pledge the property (not being negotiable securities) for a debt bej'ond his own, or to make a transfer thereof to his own creditor, as if he were the abso- lute owner ; it is clear that in such a case he would be guilty of a breach of trust ; and his creditor would acquire no title beyond that held by the pawnee.'* The only question which, inquiry as to the right to so pledge ; and if he accepts the pledge without inquiry, he does so at his peril. Shaw v. Spencer, 100 Mass. 382, where a valuable opinion is given by Foster, J. See Calais Steamboat Co. v. Van Pelt, 2 Black, 372; Ashton v. Atlantic Bank, 3 Allen, 217; Walker v. Taylor, 4 Law Times, n. s. 845.] {But see Thompson v. Toland, 48 Cal. 99.} 1 Newsom v. Thornton, 6 East, 17; Martini v. Coles, 1 M. & Selw. 140; Shipley u. Kymer, 1 M. & Selw. 484; Pickering v. Busk, 15 East, 38; Queiroz v. Trueman, 3 Barn. & Cressw. 342; ante, § 296; post, § 325 to 328; Story on Agency, § 93, 225; See 1 Bell, Comm. § 412, 4th edit.; 1 Bell, Comm. p. 483 to 488, 5th edit. ' IngersoU v. Van Bokkelin, 7 Cow. 670. 8 Whitaker v. Sumner, 20 Pick. 399, 405, 406; per Jackson, J., in Jarvis v. Rogers, 15 Mass. 408; Macomber y. Parker, 14 Pick. 497; Hunt V. Holton, 13 Pick. 216; post, § 327, 350; {Ashton's Appeal, 73 Penn. St. 153; Belden v. Perkins, 78 111. 449; Warner v. Martin, 11 How. 209; Shelton v. French, 33 Conn. 489 ; Whitney v. Peay, 24 Ark. 22.} * Mores v. Conham, Owen, 123; RatclifE t). Davis, 1 Bulst. 29; 8. o. Yelv. 178; Cro. Jac. 211; Jackson, J., in Jarvis v. Rogers, 15 Mass. 389, 408; Man v. ShifEner, 2 East, 523, 529; M'Combie v. Davies, 7 East, 6, 7; ante, § 296; post, § 325 to 328, 350. 6 See Ayhffe, Pand. B. 4, tit. 18, p. 534; post, § 325, 326; Story on Agency, § 224. CH. V.J ON PAWNS OR PLEDGES. 289 under such circumstances, would seem to admit of contro- versy, is, whether the creditor should be entitled to retain the pledge until the original debt was discharged, or whether the owner might recover the pledge in the same manner as if the case was a naked tort, without any qualified right in the first pawnee. § 325. The doctrine of the common law now established in England, after some diversity of opinion, is, that a factor having a lien on goods for advances, or for a general balance, has no right to pledge the goods ; and if he does pledge them, he conveys no title to the pledgee.^ The effect of this doc- trine is, in England, to deny t& the pledgee any right in such a case to retain the goods, even for the advances or balance due to the factor. In short, the transfer is deemed wholly tortious ; so that the principal may sue for and recover the pledge, without making any allowance or deduction whatso- ever for the debts due by him to the factor.^ The inconven- ience, not to say harshness, of the latter part of the doctrine has been very seriously felt in England. And what renders it somewhat objectionable in principle is, that it is admitted that the factor has a right to assign or deliver over the goods as a pledge or security to the extent of his lien thereon, if he avowedly confines the assignment or pledge to that, and does not exceed his own interest therein.* Now, if the right or lien of the factor is capable of assignment or transfer at all, as an interest or right adhering to the goods, and enti- tled to accompany the possession, there seems great difficulty in maintaining, that, because the title to the pledge is infirm 1 Daubigny v. Duval, 5 Term R. 604 ; Newsom v. Thornton, 6 East 17; M'Combie v. Davies, 7 East, 5; Martini v. Coles, 1 M. & Selw. 140; Shipley v. Kymer, 1 M. & Selw. 484; Solly v. Rathbone, 2 M. & Selw. 298; Pickering v. Busk, 15 East, 44; Queiroz v. Trueman, 3 Barn. & Cressw. 342; Story on Agency, § 113 and note; Id. § 225, 227. 2 Story on Agency, § 113 and note, § 225, 227. [See Johnson v. Stear, 15 C. B. n. s. 338.] 3 Man V. Shiffner, 2 East, 523, 529; M'Combie v. Davies, 7 East, 6, 7; Kuckein v. Wilson, 4 Barn. & Aid. 443; 1 Bell, Comm. 483, 5th edit.; 2 Bell, Comm. 95, 5th edit.; Urquhart v. M'lver, 4 Johns. 103; 2 Kent, Comm. Lect. 41, p. 625 to 628, 4th edit. ; Story on Agency, § 113 and note; Id. § 225, 227. 19 290 ON PAWNS OE PLEDGES. [CH. V. in part, upon a general transfer or a general pledge, it shall be bad m toto, notwithstanding the pledgee may be an inno- cent bond fide holder. The general denial of the right of factors to pledge does not appear to have approved itself to the minds of Lord Eldon and Lord Ellenborough ; ^ and it has been suggested by Mr. Bell, that it probably had its origin in mis- take.^ Parliament, however, has at length interfered, and has by statute placed the doctrine on this subject upon a far more rational foundation than it was placed by the decisions of Westminster Hall.^ § S26. In America, the general doctrine, that a factor cannot pledge the goods of his principal, has been frequently recognized.* But it does not appear, as yet, to have been carried to the extent of deeming the pledge altogether a tor- tious proceeding, so that the title is not good in the pledgee, even to the extent of the lien of the factor ; or, so that the principal may maintain an action against the pledgee without discharging the lien, or at least without giving the pledgee a right to recoup the amount of the lien in the damages. Con- sidering the present state of the English law on this point, and the unsatisfactory principle on which the former doctrine rests, it would, perhaps, be matter of regret, if the American courts should feel themselves constrained, by the pressure of authority, to j'ield to it.^ 1 Pultney v. Keymer, 3 Esp. 182 ; Pickering v. Busk, 15 East, 44. 2 1 Bell, Comm. § 412, 4th edit.; 1 Bell, Comm. p. 486, 5th edit.; 2 Kent, Comm. Lect. 41, p. 627, 628, note (a); Story on Agency, § 113 and note. 8 4 Geo. 4, ch. 94 ; 1 Bell, Comm. p. 486, 487, 5th edit. ; Story on Agency, § 113, note; 2 Kent, Comm. Lect. 41, p. 627, 628, note (a). { The English act 5 & 6 Vict. ch. 39, changes the old law still further in the same direction. See Fuentis v. Montis, L. R. 3 C. P. 268; s. c. 4 C. P. 93; Exparle Alston, L. R. 4 Ch. 168; Portalis v. Tetley, L. R. 5 Eq. 140.} * Kinder v. Shaw, 2 Mass. 398; Odiorne v. Maxcy, 13 Mass. 178; 2 Kent, Comm. Lect. 41, p. 025 to 628, 4th edit. ; Jarvis v. Rogers, 15 Mass. 389 ; Urquhartu. M'lver, 4 Johns. 103; Van Amringe v. Peabody, 1 Mason, 440; [Bott V. McCoy, 20 Ala. 578.] {See Wood v. Hayes, 15 Gray, 375.} 6 2 Kent, Comm. Lect. 41, p. 625 to 628, note (a), 4th edit. [Later decisions have, however, fully settled the law that a pledge by a factor of his principal's goods is wholly tortious, and the owner may recover their whole value of the pledgee without any reduction or recoup- CH. v.] ON PAWNS OE PLEDGES. 291 § 327. But whatever doubt may be indulged as to the case of a mere factor, it has been decided, that, in case of a strict pledge, if the pledgee transfers the same to his own creditor, the latter may hold the pledge until the debt of the original owner is discharged.^ And it has been intimated, that there is, or may be, a distinction favorable to the pledgee, which does not apply, or may not apply, to a factor, since the latter has but a lien ; whereas the former has a special property in the goods.2 It is not very easy to point out any substantial distinction between the case of a pledgee and the case of a factor. The latter holds the goods of his principal, as a security and pledge for his advances and other dues. He has a special property in them, and may maintain an action for any violation of his possession, either by the principal or by a stranger.^ And he is generally treated, in juridical discus- sions, as in the condition of a pledgee.* But whether the distinction is well or ill founded, it does not materially affect the reasoning, which assigns to the pledgee of a factor a right to detain the pledge, until the lien of the factor is discharged. Where, instead of a mere pledge, there is an actual transfer ment for his claim against the factor. See Hofiman v. Noble, 6 Met. 74; Warner v. Martin, 11 How. 209 ; Newbold v. Wright, 4 Rawle, 195 ; Holton V. Smith, 7 N. H. 446.] {But the tendency of legislation in this country, as in England, appears to be towards enlarging the rights of the bond fide pledgee of any person who has possession of merchandise or a bill of lading with power to sell. See Mass. Gen. Sts. ch. 54, § 4; Henry V. Phil. Warehouse Co., 81 Penn. St. 76; Cartwright v. Wilmerding, 24 N. Y. 521.} 1 Jarvis v. Kogers, 15 Mass. 389. [And see Donald v. Suckling, L. R. 1 Q. B. 585. Therefore, in an action by the pledgor against the pledgee for the conversion, the latter may recoup the amount of the debt. John- son V. Stear, 15 C. B. 3S-. s. 338; Lane v. Bailey, 47 Barb. 395; Fant v. Miller, 17 Gratt. 187; Brightman v. Reeves, 21 Texas, 70;] {Van Blar- com V. Broadway Bank, 37 N. Y. 540; supra, § 308, 324.} ^ Jarvis v. Kogers, 15 Mass. 408. See also Homes v. Crane, 2 Pick. 610. 3 Ante, § 303. * M'Combie v. Davies, 7 East, 5; Whitaker on Liens, 127; 2 Black. Comm. 395, 396 ; Jones on Bailm. 85, 86 ; 2 Kent, Comm. Lect. 41, p. 625 to 628, 4th edit. ; 2 Saund. 47, note by Williams ; 1 Bell, Comm. § 483, 5th edit.; 1 Bell, Comm. § 412, 4th edit ; Id. § 773; Paley on Agency, by Gow, ch. 5, 6, p. 282 to 288 ; Id. by Lloyd, p. 218-233, 341, 342. 292 ON PAWNS OB PLEDGES. [CH. V. of the goods by a deed or other legal conveyance by way of mortgage, there is no question that the mortgagee may assign over the goods ; and the assignee will be entitled to hold them against the mortgagor, until the mortgage debt, originally contracted, is paid. In such a case, a legal, although a defeas- ible title, is vested in the mortgagee, and not a mere lien;i and to the extent of that title his assignment is operative and valid, and cannot be disturbed by the mortgagor, even although the mortgagee shall have assumed to convey an absolute title. ^ § 328. Upon this subject the Roman law seems to have adopted the following rule. It enabled the pawnee to assign over, or to pledge the goods again, to the extent of his inter- est or lien on them ; and, in either case, the assignee was entitled to hold the pawn until the original owner discharged the debt for which it was pledged.^ " Jure pignoris teneri non posse, nisi quae obligantis in bonis fuerint ; et per alium rem alienam invito domino pignori obligari non posse, cer- tissimum est." * But beyond this, the pledge was inoperative, and conveyed no title, according to the known maxim, "Nemo plus juris ad alium transferre potest, quam ipse haberet."^ A relaxation of the strict rule of the Roman law, founded upon the convenience of commerce, seems to have worked its way into the modern jurisprudence of Continental Europe ; in which it is said to be a general rule, that possession consti- tutes a title, and that persons making advances of money upon movable goods are not required to inquire to whom the prop- erty belongs, and are fully protected for the advances they make.® The rule, though expressed in such general terms, 1 Ante, § 287, 311. 2 Ante, § 287. See Whitaker v. Sumner, 20 Pick. 405; Ferguson v. Union Furnace Co., 9 Wend. 345; ante, § 325; post, § 350. 8 Cod. Lib. 8, tit. 24, 1. 1 ; 1 Domat, B. 3, tit. 8, § 6, art. 1 to 7; Ayliffe, Pand. B. 4, tit. 18, p. 539. 4 Cod. Lib. 8, tit. 16, L 6; 1 Bell, Coram. § 412, 4th edit.; Id. p. 485, 5th edit. 6 Dig. Lib. 50, tit. 17, 1. 54 ; Cod. Lib. 8, tit. 16, 1. 6 ; Pothier, de Nantissement, n. 27. « 1 Bell, Coram, p. 483 to 486, 5th edit. ; 1 Bell, Coram. § 412, 4th edit. {See Davidson v. Bodley, 27 La. Ann. 149.} CH. v.] ON PAWNS OK PLEDGES. 293 ought probably to be received with the qualification, that the possession is hond fide, and not by a tort, and that the pledgor has an apparently good title, or right of possession.^ But, at all events, there seems no doubt, that by the law of Conti- nental Europe, it is universally recognized, that factors have a right to pledge the goods intrusted to them, and may thereby bind the goods to the full extent of any advances made upon them, although they cannot for any antecedent debts due from the factor.2 Mr. Bell, in his Commentaries, has given an inter- esting view of the origin, progress, and present state of the law of Scotland, as well as of the Continent of Europe, on this subject, which will reward a careful perusal.^ § 329. Another point usually discussed under this head, is, how far the pawnee is entitled to use the pawn. Much of what properly belongs to this subject has been already antici- pated under other heads.* The true rules deducible from the common-law authorities, and founded upon the presumed in- tentions of the pawnor, seem to be the following. (1) If the pawn is of such a nature, that the due preservation of it requires some use, there such use is not only justifiable, but it is indispensable to the faithful discharge of the duty of the pawnee.^ (2) If the pawn is of such a nature, that it will be worse for the use, such, for instance, as the wearing of clothes which are deposited, there the use is prohibited to the pawnee.^ (3) If the pawn is of such a nature, that the keeping is a charge to the pawnee, as if it is a cow or a horse, there the 1 1 Stair, Inst. B. 1, tit. 7, § 4; 1 Bell, Comm. § 412, 4th edit. ; 1 Bell, Comm. p. 483-487, 5th edit. ; 2 Kent, Comm. Leet, 41, p. 527, 528 and note (a), 4th edit. (See Mechanics' Bank v. Barnett, 27 La. Ann. 177.} 2 1 Bell, Comm. p. 483, 484 and note, 486, 5th edit.; 1 Bell, Comm. § 412, 4th edit. I have occasionally quoted both the 4th and the 5th edi- tions of Mr. Bell's Commentaries. The fourth has the benefit of being subdivided into sections, and is best known in America. The fifth, pub- lished in 1826, is most valuable, as containing the learned author's last corrections. It is to be regretted, that he did not continue the subdivi- sions of sections in this last edition. See al.so Code of Louisiana of 1825, art. 3123, 3214; 2 Kent, Comm. Lect. 41, p. 627, 628, note (a). 8 1 Bell, Comm. p. 483 to 488, 5th edit. ; 1 Bell, Comm. § 412, 4th edit. * Ante, § 89, 90. ^ Jones on Bailm. 81. « 2 Salk. 522; Coggs v. Bernard, 2 Ld. Raym. 909, 916; Jones on Bailm. 81; Mores ». Conham, Owen, 123, 124. 294 ON PAWNS OK PLEDGES. [CH. T. pawnee may milk the cow and use the milk, and ride the horse, by way of recompense (as it is said) for the keeping. i (4) If the use will be beneficial to the pawn, or it is indiffer- ent, there it seems that the pawnee may use it ; as, if the pawn is of a setting dog, it may well be presumed that the owner would consent to the dog's being used in partridge shooting, and thus confirmed in the habits which make him valuable.^ So books, which will not be injured by a moderate use, may be read, examined, and used by the pawnee.^ § 330. (5) If the use will be without any injury, and yet the pawn will thereby be exposed to extraordinary perils, there the use is impliedly interdicted. Sir William Jones, indeed, suggests, that in such a case the goods may be used (by which he is presumed to mean lawfully used), but it will be at the peril of the pledgee.* Thus, he says, that if chains of gold, ear-rings, bracelets, or other jewels, be left in pawn with a lady, and she wear them at a public place, and be robbed of them on her return, she must make them good.^ In another work of considerable authority, it is said, that if the goods pawned will be the worse for using, the pawnee must not use them ; otherwise he may use them at his peril. Thus, if jewels are pawned to a lady, and she keeps them in a bag, and the}' are stolen, she shall not be charged. But if she goes with them to a party, and they are stolen, she shall be an- 1 2 Salk. 522; Coggs v. Bernard, 2 Ld. Raym. 909, 917 ; Jones on Bailm. 81; 1 Dane, Abridg. ch. 17, art. 4, § 2. Mr. Chancellor Kent thinks the profits should belong to the pawnor, and be deducted from the debt. 2 Kent, Coram. Lect. 40, p. 578, 579, 4th edit. ; post, § 329, 331, 843. But in the case of Mores v. Conham (Owen, 123, 124), Lord Coke, and Warburton, and Daniel, Justices, held that the pawnee might take the milk and use it, as the owner would. The question has sometimes arisen as to the point whether, in case of a distress, the distrainor may milk a cow, &c. See Bagshawe v. Goward, Cro. Jac. 147; s. c. Noy, 119; Duncomb v. Reeve, Cro. Eliz. 783; Roll. Abridg. 673, 1. 32 ; 9 Viner, Abridg. Dis- tress, P. pi. 8 ; Com. Dig. Distress, D. 6 ; Chamberlayn's Case, 1 Leon. 220; Mores v. Conham, Owen, 123, 124; Bac. Abridg. Distress, D.: Gilbert on Distresses, by Hunt, 73, 74. 2 Jones on Bailm. 81. See Thompson v. Patrick, 4 Watts, 414. ^ Jones on Bailm. 81; Mores v. Conham, Owen, 123, 124. * Jones on Bailm. 81. 6 ii3i(j_ CH. V.J ON PAWNS OR PLEDGES. 295 swerable.' To the former position Sir William Jones objects, because, he says, the bag could hardly be taken privately and quietly without her omission of ordinary diligence. And he considers himself well supported in this objection by the authorities.^ This, however, will be a matter of discussion in a subsequent section. But it may well be doubted, whether there is any foundation for the doctrine, which is affirmed both by Mr. Justice Buller and by Sir William Jones, that, in case of a deposit of things which are not hurt by use, the depositary may, at his peril, use them. The language of the authority, which is principally relied on for its support, does not, when properly construed, justify any such conclu- sion. In Coggs V. Bernard,^ Lord Holt says : " If the pawn be such, as it will be worse for using, the pawnee cannot use it, as clothes, &c. But if it be such as will never be worse, as if jewels for the purpose were pawned to a lady, she might use them. But then she must do it at her own peril. For, whereas, if she keeps them locked up in lier cabinet, if her cabinet is broken open, and the jewels taken from thence, she would be excused : if she wears them abroad, and is there robbed, she will be answerable. And the reason is, because the pawn is in the nature of a deposit, and, as such, is not liable to be used." Now, the reason here given, so far from proving that the pledgee may lawfully use the jewels, ex- pressly negatives any such right. And, unless the contrary is expressly agreed, it may fairly be presumed, that the owner of such a pawn would not assent to the jewels being used as a personal ornament, and therebj' exposed to unnecessary and extraordinary perils. § 331. The Roman law and French law do not, in respect to the right of using pawns, seem materially to differ from the common law, unless there is an exception furnished by the rule thereof, that, where the pawn is used (as if a cow is milked), and a profit is obtained thereby, the pawnee shall be bound to. account for the profits, deducting all expenses 1 Buller, Nisi Prius, 72. 2 2 Salk. 522; 2 Ld. Raym. 916, 917. 3 2 Ld. Kaym. 909, 916. 296 ON PAWNS OR PLEDGES. [OH. V. for the keeping.^ By the law of Louisiana, the fruits of the pledge are deemed to make a part of it, and the pledgee can- not appropriate them to his own use, but is bound to account for them.2 Mr. Chancellor Kent seems to think that the rule in the common law is, or at least ought to be, the same.^ And his doctrine certainly carries with it a most persuasive equity, although, as we have seen, it seems inconsistent with the rule laid down in some of the authorities.* § 332. Having considered the rights of the pawnee, the next inquiry is, as to his duties. And here the question naturally presents itself, What is the degree of diligence imposed upon the pawnee, in respect to the preservation of the pawn ? As the bailment is for the mutual benefit and interest of both parties, the law requires, upon the principles already stated, that the pawnee should use ordinary diligence in the care of the pawn ; and consequently he is liable for ordinary neglect in keeping the pawn.^ This is the rule laid down by Brac- 1 Jones on Bailm. 82; Pothier, Traits de Depot, n. 47; Pothier, de Nantisseinent, n. 23, 35, 36; 1 Domat, B. 8, tit. 1, § 4, art. 6; Dig. Lib. 20, tit. 1, 1. 21, § 2; Pothier, Pand. Lib. 20, tit. 1, n. 26; ante, § 330; post, § 343 ; Code of Louisiana of 1825, art. 3135. ^ Code of Louisiana of 1825, art. 3135. 8 2 Kent, Comm. Leet. 40, p. 578, 579, 4th edit. {See Lawrence v. Maxwell, 53 N. Y. 19; Thompson v. Patrick, 4 Watts, 414; Andros- coggin R. R. Co. V. Auburn Bank, 48 Me. 335. The pledgee of stock appears not to have the right to vote as owner. McDaniels v. Flower Brook Man. Co., 22 Vt. 274. But the fact that he votes does not amount to its conversion. Heath v. Silverthorn, &c. Co., 39 Wis. 147.} * Ante, § 329 and note; Mores v. Conham, Owen, 123, 124. { See 1 Soh. Pers. Prop. 517-519, for the present editor's criticism upon the statement in the text of § 329-331.} ^ Jones on Bailm. 75; 2 Kent, Comm. Lect. 40, p. 578, 579, 4th edit. ; 1 Dane, Abridg. ch. 17, art. 12; ante, § 23; [Commercial Bank of New Orleans v. Martin, 1 La. Ann, 344;] {Maury v. Coyle, 34 Md. 235; Third Nat. Bank v. Boyd, 44 Md. 47; Scott v. Crews, 2 S. C. .522; Girard Fire Ins. Co. v. Marr, 46 Penn. St. 504 ; Second Nat. Bank v. Ocean Nat. Bank, 11 Blatohf. 362. Under special circumstances, the pledgee's responsibility for the pledge may, by virtue of custody, continue as a "mutual-benefit bailee," after the pledgor has paid his debt. See Third Nat. Bank v. Boyd, supra. For the rule of diligence applicable to the collection by the pledgee of negotiable notes left with him in pledge, see ante, § 321. See Soule v. Union Bank, 45 Barb. Ill, where a cred- itor who took a life-insurance policy on the debtor's life as security was, CH. v.] ON PAWNS OR PLEDGES. 297 ton,^ and maintained by Lord Holt.^ This, too, seems, accord- ing to the better opinion, to be the rule of the Roman law.^ The point of responsibility is in the Roman law stated to be, where there is deceit and negligence of the pawnee. "Dolum et culpam, &c., pignori acceptum,"* is the language of one passage of the Digest. " Sed ubi utriusque utilitas vertitur, ut in empto, ut in locato, ut in dote, ut in pignore, ut in soci- etate, et dolus et culpa prsestatur,"^ is that of another passage of the same great work. A third passage declares : " Ea igitur, quae diligens paterfamilias in suis rebus prsestare solet, a creditore exiguntur ; " ^ and a fourth passage, " Quia pignus utriusque gratiS. datur,. &c., placuit sufficere, si ad earn rem custodiendam exactam diligentiam adhibeat." ^ The same rule of ordinary diligence is understood to be adopted in modern times in the principal countries of Continental Europe and in Scotland. It has the express sanction of Pothier, and other writers of acknowledged authority.^ § 333. It is under the head of pawns, also (although it is often alluded to elsewhere), that Sir William Jones has prin- cipally discussed the question, how far theft (by which he means private theft, as contradistinguished from robbery) constitutes a valid excuse for bailees, who are responsible for ordinary diligence, and especially, how far it constitutes an excuse for pawnees.^ We have already had occasion to notice under special circumstances, deemed negligent in not having kept alive the insurance. The pledgee's liability to restore the pledge or its equiva- lent at the end of the bailment may, by express contract, be made absolute. Drake v. White, 117 Mass. 10. } 1 Bracton, 99 b. 2 Coggs V. Bernard, 2 Ld. Raym. 909, 916. 8 Jones on Bailm. 15, 21, 23, 75; Heinec. Pand. Lib. 13, tit. 6, § 117, 118; 1 Domat, B. 1, tit. 1, § 4, art. 1. < Dig. Lib. 50, tit. 17, 1. 23. 6 Dig. Lib. 13, tit. 6, 1. 5, § 2; Id. tit. 7, 1. 13, 14. « Dig. Lib. 13, tit. 7, 1. 14. ' Inst. Lib. 3, tit. 15, § 4; AyUfEe, Pand. B. 4, tit. 1, p. 531. 8 Jones on Bailm. 29-31; Pothier, de Nantissement, n. 32-34; Pothier on Obligations, n. 142; 1 Domat, B. 3, tit. 1, § 4, art. 1; Ersk. Inst. B. 3, tit. 1, § 33; 1 Bell, Comm.453, 5th edit; IBeU, Comm. § 389, 4th edit. 9 Jones on Bailm. 75 to 83. 298 ON PAWNS OR PLEDGES. [CH. V. this subject in our Introductory Chapter ; ^ and to state that Sir William Jones holds, that theft is presumptive evidence of ordinary neglect, and, of course, that pawnees are liable for losses by theft ; ^ unless in cases where they can by positive evidence repel every presumption of such neglect.^ In this view of the matter, he follows the supposed doctrine of the Roman law ; and, indeed, it seems to have had an undue influence upon his judgment. It may not be unimportant in this connection to review the doctrine of Sir William Jones a little more at large than has been already done, since he puts himself in direct opposition to Lord Coke, and has bestowed an elaborate criticism on the opinion of the latter. § 334. Lord Coke, in his Institutes, has said : * "If goods be delivered to one as a gage or pledge, and they be stolen, he shall be discharged, because he hath a property in them ; and therefore he ought to keep them no otherwise than his own." To which Sir William Jones, with unusual point, has replied : " I deny the first proposition, the reason, and the conclusion." ^ The first proposition is, that, if goods in pledge are stolen, the pawnee is discharged. Sir William Jones asserts the contrary ; and says, that a bailee cannot be con- sidered as using ordinary diligence, who suffers the goods to be taken by stealth out of his custody. But for this position he cites no common-law authority, except a dictum of Mr. Justice Cottesmore, in 10 Hen. 2, 21, 5, who said: "If I grant goods to a man to keep for my use, if the goods by his default (mesgarde, i.e. inattention) are stolen, he shall be chargeable to me for the same goods ; but if he is robbed of the same goods, he is excusable by law." ^ Now the case here put is plainly a mere deposit, where the bailee is responsible only for gross neglect ; and if Mr. Justice Cottesmore meant more, he was wrong in point of law. But in fact he was not drawing any distinction between cases of theft, and cases of robbery, 1 Ante, § 38, 39. 2 Jones on Bailm. 76, 78, 79, 81; Id. 43, 44, 109, 110, 119; ante, § 38, 39. ^ Jones on Bailm. 98; Vere v. Smith, 1 Vent. 121. < 1 Inst. 89, a; 4 Rep. 83, B. 6 Jones on Bailm. 75. ^ Jones on Bailm. 44, note; Id. p. 79. CH. v.] ON PAWNS OR PLEDGES. 299 as to the presumption of neglect ; but between cases of losses by theft by neglect of the bailee, and cases of robbery by superior force, as affecting, in opposite manners, the respon- sibility of the bailee. The dictum, therefore, furnishes no authority to the purpose; and, exclusively of this dictum, the sole reliance of Sir "William Jones is on the text of the Roman law and the commentaries of the civilians.^ Even if the true purport of the text of the Roman law (as well as the commentaries of the civilians thereon) were not open to controversy, and susceptible of various explanations, the application thereof as an authority in the common law is not admitted.2 There is, then, no authority at the common law, which maintains the argument of Sir William Jones. 1 Ante, § 38, 39. ^ It may perhaps after all admit of doubt, whether, as a general rule, theft was deemed even in the civil law as necessarily per se importing neg- ligence, or presumption of negligence. The text of the Digest relied on by Sir William Jones to establish it, is that which makes a partner liable for a loss by theft of a flock of sheep left with him by his partner to de- pasture. " Damna, quse imprudentibus accidunt " (says the Digest, Lib. 17, tit. 2, 1. 52, § 3; Pothier, Pand. Lib. 17, tit. 2, n. 36), "hoc est, damna fatalia, socii non cogentur praestare. Ideoque, si pecus sestimatum datum sit, et id latrocinio aut incendio perierit, commune damnum est; si nihil dolo aut culpa acciderit ejus, qui sestimatum pecus acoeperit. Quod si k furibus subreptum sit, proprium ejus detrimentum est, quia custodiam prsestare debuit, qui sestimatum accepit. Usee vera sunt, et pro socio erit actio, si modo societatis contrahendse causa pascenda data sunt, quamvis sestimata." Now, in the case of a flock of sheep, it may be that there could scarcely be a loss by theft without some negligence, or even without gross negligence, when in other cases theft might be with- out any the slightest negligence. Upon this text in Van Leeuwen's edition of the Corpus Juris Civilis (1726) , with Gothof red's Notes, is the following commentary : " Socius socio non praestat damnum fatale a Latronibus ac- ceptum, licet a furibus prsestet. Cur? Adversus Latrones parum prodest custodia ; adversus furem prodesse potest, si quis advigilet. Latrocinium fatale damnum; sed casus fortuitus est; at non furtum. The reasoning can only apply, where vigilance would in the ordinary course of things have guarded against the theft, and, therefore, where the omission im- plied negligence. But there are many cases, where theft may be com- mitted, against which no reasonable diligence could guard the bailee. See ante, § 38, 39, and the comments there stated. Besides, in many cases, where the thing bailed is valued, the Roman law presumed that the party took upon himself extraordinary risks. See ante, § 253, 254. See also 1 Domat, B. 1, tit. 7, § 3, art. 5; Just. Inst. Lib. 3, tit. 15, § 3. 800 ON PAWNS OR PLEDGES. [CH. V. § 335. But there are common-law authorities, which are directly the other way. In Vere v. Smith, ' which was a suit upon a bond to account, the defendant pleaded, that he locked up the money in his master's warehouse, and it was stolen from thence (not saying without any default on his part), and it was adjudged, that the plea was a good bar to the action, and a sufficient accounting within the condition of the bond. In the case cited from Fitzherbert's Abridgment, in 8 Edw. 2,^ where goods were locked in a chest and left with the bailee, and the owner kept the key, and the goods were stolen, the bailee was held to be discharged. The whole reasoning of Lord Holt, in Coggs v. Bernard,^ proceeds upon the ground, that theft is not presumptive of negligence. In the case even of a gratuitous loan, he says : " If the bailee puts the horse lent into his stable, and he is stolen from thence, the bailee is not answerable. But if he leaves the stable-doors open, and thieves steal the horse, he is charge- able ; because the neglect gave the thieves the occasion to steal the horse." * The case found in the Book of Assises,^ and cited by Sir William Jones in another page,^ is directly in point in favor of Lord Coke's opinion. The action was detinue for a hamper, which had been bailed, and the bailee pleaded, that it had been delivered to him in gage for a certain sum of money ; that he had put it among his other goods ; and that all the goods had been stolen together from him. On that occasion, the Chief Justice said : " If a man bails me goods to keep, and I put them among my own, I shall not be charged, if they be stolen." And the plaintiff was driven to reply, that " he had tendered the money before the stealing of the goods, and that the bailee (the creditor) refused to accept the money." To this case Sir William Jones gives no other answer, than that he suspects that by theft in this report was meant robbery, as Brook, in his Abridgment, had abridged the case with a marginal note, 1 1 Vent. 121. 2 Fitz. Abridg. Detinue, 59. 8 2 Ld. Raym. 909, 912. * 2 Ld. Raym. 918. ^ Year Book, 29 Lib. Assisarum, 28; Bro. Abridg. Bailment, pi. 7. « Jones on Bailm. 39, 40, 77, 78. CH. v.] ON PAWNS OE PLEDGES. 801 " Quant les biens sont robbes." ^ But, as we have the origi- nal case, we have just as good means to judge of its import as Brook ; and the language of the Book of Assises is, that it was a case of theft. It is highly improbable, that, in a tech- nical sense, there should have been any robbery, that is, a stealing of the hamper and other goods from the person of the bailee, or in his presence, with force, or b)'^ terror. The language of the case does not lead to any such conclusion ; and the nature of the article, as well as the language of the court, seems to point to it as a case of mere theft. The plea asserts the hamper to have been put among the other goods of the pawnee, which would seem to exclude the notion, that it was in his personal presence. In a modern case, Lord Kenyon held, that a bailee of goods kept for hire was not liable for a theft committed by his servants, although there were some prior suspicious circumstances impeaching their fidelity.^ If, indeed, the circumstances of the particular case prove that the theft has been occasioned by negligence or by want of proper caution, the pawnee may properly be held responsible for the loss.^ § 336. The reason given by Lord Coke for his opinion is, that the pawnee has a special property therein. Sir William Jones says, that this is no reason at all ; for every bailee has a temporary, qualified property in the thing bailed.* In this assertion he has been shown, in some prior pages of these Commentaries, to be incorrect ; ^ for neither depositaries, nor mandataries, nor borrowers, have any special property in the thing bailed; although, as they have a lawful possession, and they are answerable over, they may maintain an action for any tort done to the thing bailed during the time of their possession.^ The reason given by Lord Coke is not indeed 1 29 Lib. Assis. 28; Brook, Abridg. Bailment, 7; Jones on Bailm. 79. The word "robbes" is equivocal. Kelham, in his Dictionary of the Norman Law French, gives it the meaning, " taken from, robbed." 2 Finucane v. Small, 1 Esp. 315. [And see Butt v. Great Western Railway Co., 7 Eng. Law & Eq. 448.] 8 Clarke v. Earnshaw, 1 Gow, 30 ; post, § 338. i Jones on Bailm. 80, 81. « j^nte, § 93 to 95, 150, 279. 6 Ante, § 93 to 95, 150, 152, 191, 279, 260. 302 ON PAWNS OE PLEDGES. [CH. V. the true reason ; but the true reason is (as Lord Holt says), that the law requires nothing extraordinary of the pawnee, but only that he shall use an ordinary care for restoring the goods.i § 337. Then, as to the conclusion of Lord Coke, that there- fore the bailee ought to keep the goods merely as his own. This is certainly open to the criticism made upon it by Sir William Jones, that it does not express the true rule of law ; for the bailee is bound " to take more care of the goods bailed than of his own, unless he be in fact a prudent and thoughtful manager of his own concerns ; since every man ought to use ordinary diligence in affairs, which concern another as well as himself."^ But where a bailee takes the same care of the pledge as he does of his own goods, and both are lost by theft, that furnishes primd facie a presumption of ordinary diligence ; for every man will be presumed to exercise common diligence in respect to his own affairs and property, until the contrary is shown. In other words, every man will be presumed to do his duty, until the contrary appears. And if the bailee is shown to have taken less care of the bailed goods than of his own, that may furnish a strong, and perhaps in some cases a decisive, presumption of negligence.^ Indeed, Sir William Jones himself admits, that the particular character of the bailee may, under some circumstances, enter into the contract, and qualify it, making him, if known to be a very negligent man, not liable, unless the loss is occasioned by more than his habitual negligence ; and, on the other hand, if he is known to be a very diligent man, making him liable for losses occasioned by less than his habitual diligence.* Lord Holt, also, has proceeded upon the like presumption of due diligence, where a man takes the same care of the bailed 1 Coggs V. Bernard, 2 Ld. Raym. 909, 916, 917; Jones on Bailm. 82. 2 Jones on Bailm. 82, 83 ; Id. 30, which cites Pothier, Observation Generale, now priuted at the end of his Treatise on Obligations, in all the modern French editions. See ante, § 17, note (2) ; Pothier, Louage, a. 190, 192, 429. 8 Jones on Bailm. 30, 31, 46, 47, 82 ; Clarke v. Earnshaw, 1 Gow, 30 ; post, § 407. * Jones on Bailm. 46, 47 ; Id. 30, citing Pothier, ilU supra, § 337, n. b. CH. V.J ON PAWNS OE PLEDGES. 303 goods that he does of his own.^ So that, although Lord Coke's conclusion may not be strictly logical, yet it is not, according to the ordinary presumption of law, far from the truth ; and at all events it does not leave Sir William Jones in possession of such a victory as he supposes, since Lord Coke's main proposition remains unshaken. § 388. The true principle supported by the authorities seems to be that theft, per se, establishes neither responsi- bility nor irresponsibility in the bailee.^ If the theft is occa- sioned by any negligence, the bailee is responsible ; if without any negligence, he is discharged. Ordinary diligence is not disproved, even presumptively, by mere theft ; but the proper conclusion must be drawn from weighing all the circumstances of the particular case.^ This is the just doctrine to which the learned mind of Mr. Chancellor Kent has arrived, after a large survey of the authorities ; * and it seems at once rational and convenient. § 339. Another duty of the pawnee is, to return the pledge and its increments, if any, after the debt or other duty has been discharged.^ Of course this debt or duty is by the com- mon law extinguished, when the pledge is lost by casualty or other unavoidable accident, or it perishes through its own intrinsic defects, without the default of the pawnee.^ The same rule applies, when the pawn is lost by robbery, or by superior force, or even by theft, if the pawnee has exercised reasonable diligence. The same doctrine will also be found in the Roman law. Its language is : " Pignus in bonis debi- toris permanere, ideoque ipsi perire in dubium non venit.^ 1 2 Ld. Raym. 909, 914, 915. 2 Ante, § 38, 39. » Ibid. * 2 Kent, Comm. Lect. 40, p. 580, 581, 4th edit. { Ordinary care is, in America, the well-established test of a pledgee's liability for a pledge stolen from his custody. Maury v. Coyle, 34 Md. 235; Third Nat. Bank V. Boyd, 44 Md. 47; Scott v. Crews, 2 S. C. 522; Petty w. Overall, 42 Ala. 145. The pledgee may follow a stolen pledge into the hands of a third person. U. S. Express Co. v. Meints, 72 111. 293. But the usual limitations as to a bona fide holder for value of certain negotiable kinds of chattels would doubtless apply. See 2 Sch. Pers. Prop. p. 23.} 6 Isaack v. Clark, 2 Bulst. 306 ; Pothier, de Nantissement, n. 29, 35. ' Coggs V. Bernard, 2 Ld. Kaym. 909. ' Cod. Lib. 4, tit. 24, 1. 9. 304 ON PAWNS OE PLEDGES. [CH. V. Quae fortuitis casibus accidunt, cum prsevideri non potuerint (in quibus etiam aggressura latronum est) nuUo bonse fidei judicio preestantur ; et ideo creditor pignora, quae hujusmodi casu interierint, praestare non compellitur, nee a petitions debiti submovetur, nisi inter contrahentes placuerit, ut amis- sio pignorum liberet debitorem.^ Si creditor sine vitio suo argentum pignori datum perdiderit, restituere id non cogitur."^ The modern nations of Continental Europe have fully recog- nized and adopted the like doctrine.^ It is not, however, sufficient for the pawnee to allege that there has been such a loss. It must be established by proper proofs. And it would seem, that in the Roman and foreign law the onus prohandi is on the pawnee, to establish the loss to be by such casualty, superior force, or intrinsic defect. "Sed, si culpse reus deprehenditur, vel non probat manifestis rationibus se perdi- disse, quanti debitoris interest, condemnari debet," * is the language of the Roman law ; and Pothier implicitly follows the text, as requiring, on the part of the pawnee, due proof of the accident, which has caused the loss, and that he was unable to prevent it.^ The common law does not, probably, differ, when a suit is brought for the restitution of the pawn, after a due demand and refusal. In such a case, the demand and refusal would ordinarily be evidence of a tortious conver- sion of the pawn ; and it would then be incumbent on the pawnee to give some evidence of a loss by casualty, or by superior force, independent of his own statement, unless, indeed, upon the demand and refusal, he should state the cir- cumstances of the loss ; and then the whole statement must be taken together, and submitted to the jury, who would, under all the circumstances, decide whether it was a satisfac- tory account, or not.^ But, if a suit should be brought against 1 Cod. Lib. 4, tit. 24, 1. 6. 2 Cod. Lib. 4, tit. 24, \. 5. 8 Pothier, de Nantissemeut, n. 29, 30; 1 Domat, B. 3, tit. 1, § 4, art. 2, 7; Cod. Lib. S, tit. 14, 1. 19; Aylifee, Pand. B. 4, tit. 18, p. 541; Cod. Lib. 4, tit. 24, 1. 5, 9 ; 1 Domat, B. 3, tit. 1, § 4, art. 6. 4 Cod. Lib. 4, tit. 24, 1. 5. ' Potliier, de Nantisisement, n. 31. See ante, § 254. « Anon. , 2 Salk. 655 ; Piatt v. Hibbard, 7 Cow. 500, note (a) ; Forward V. Pittard, 1 Term R. 33; Isaack v. Clark, 2 Bulst. 306; ante, § 213, CH. v.] ON PAWNS OR PLEDGES. 305 the pawnee for a negligent loss of the pawn, there it would be incumbent upon the plaintiff to support the allegations of his declaration by proper proofs, and the onus probandi, in respect to negligence, would be thrown on him.* In such an action for a negligent loss, brought against the bailee, it seems that his acts and remarks, contemporaneous with the loss, are admissible evidence in his favor, to establish the nature of the loss.^ § 340. If the party who pledged the goods was not the owner of them, the pawnee may defend himself by showing that he has delivered over the goods to the real owner, unless the pawnor has a special property, which he is entitled, under the circumstances, to assert against the owner.^ The general rule in such cases, subject, however, to some exceptions, is that of the Roman law: "Nemo plus juris ad alium transferre potest, quam ipse haberet." * The exceptions are founded upon the public policy of protecting bond fide purchasers, under peculiar circumstances.^ If the pawnee hold the pledge, merely as a pledge from the owner, the second pawnee may discharge himself from any obligation to the owner, by deliv- ering it up to his own pledgor at any time before an offer to redeem is made by the owner.® § 341. The pawnee makes himself responsible for all losses and accidents, whenever he has done any act inconsistent with his duty, or has refused to perform his duty. If, therefore, 278; post, § 410, 454, 529; Beardslee v. Richardson, 11 Wend. 25; Door- man V. Jenkins, 2 Ad. & Ell. 256; Tompkins v. Saltmarsh, 14 Serg. & R. 275. 1 Cooper V. Barton, 3 Camp. 5; Harris v. Packwood, 3 Taunt. 264; Marsh v. Home, 5 Barn. & Cressw. 322. But see Piatt v. Hibbard, 7 Cow. 497 ; ante, § 213 and note; Id. § 278; post, § 410, 454, 529. 2 Tompkins v. Saltmarsh, 14 Serg. & R. 275. See Beardslee v. Rich- ardson, 11 Wend. 25; Doorman v. Jenkins, 2 Ad. & Ell. 256; {Dearborn V. Union Nat. Bank, 61 Me. 369. } 8 See Pothier, de Nantissement, n. 7, 27; ante, § 291. See Ogle v. Atkinson, 5 Taunt. 759; [Cheesman v. Excell, 4 Eng. Law & Eq. 438; j6 Ex. 341;} Bates v. Stanton, 1 Duer, 79; Pitt v. Albritton, 12 Ired. 74;] {Whitlockc. Stewart, 15 Ala. 601.} * Pothier, de Nantissement, n. 27; Dig. Lib. 50, tit. 17, § 4. 6 See Story on Agency, § 125 to 134; Id. § 93, 227, 228. 6 Jarvis v. Rogers, 15 Mass. 389. 20 806 ON PAWNS OE PLEDGES. [OH. V. the pawnor makes a tender of the full amount of the debt, for which the pawn is given, and the pawnee refuses to receive it, or to redeliver the pledge, the special property which he has in it is determined, and he is henceforth treated as a wrong-doer, and the pawn is at his sole risk.^ The same rule applies to all cases of a misuser or conversion of the pawn by the pawnee.^ The rule, however, must be understood with the same qualifications as in other cases, that the same loss or accident would not otherwise have inevitably happened ; for if it would and must have happened at all events, then, perhaps, he might not be liable for the loss. But of this, more hereafter.^ § 342. The defaults by which the pawnee may render himself responsible are not only those which consist in acts of commission (in admittendo) ^ but also in omissions of duty (in omittendo') ; for the pawnee is bound to apply all proper care for the preservation of the pledge. He is not, there- fore, less liable, if by his neglect he suffers a mirror, which is pawned to him, to be ruined or lost, than he would be if he had broken it by an improper use, or even by a mere wilful act.* § 843. Another duty of the pawnee at the common law is, to render a due account of all the income, profits, and advan- tages derived by him from the pledge, in all cases where such an account is within the scope of the bailment.^ If, for instance, the pawn is a slave, the profits of his labor are to be accounted for.^ If the pawn consists of cows, horses, or other cattle, the profits of their labor are also to be accounted for, if within the contemplation of the parties. The Roman and foreign law seem, in all cases of this sort, to imply an obliga- i Coggs V. Bernard, 2 Ld. Kaym. 909, 916, 917; Anon., 2 Salk. 522; Jones on Bailm. 79, 80; Bae. Abridg. Bailment, B. ; Id. Trover, C; Rat- cliff V. Davis, Yelv. 178; Bull. N. P. 72; Parks v. Hall, 2 Pick. 206; Pothier, de Nantissement, n. 51. ' De Tollenere v. Fuller, 1 S. C. Const, n. s. 121; 1 Domat, B. 3, tit. 1, § 4, art. 1-3; Pothier, de Nantissement, n. 51. 8 See post, § 413 a to 413 d. ^ Pothier, de Nantissement, n. 33. 6 Ante, § 329 to 331; Pothier, de Nantissement, n. 35, 37, 40, 41. 8 Hinton v. Holliday, 1 N. C. Law Journ. 87; ante, § 329-331; Code of Louisiana of 1825, art. 3135; [Geron v. Geron, 15 Ala. 562.] CH. v.] ON PAWNS OR PLEDGES. 307 tion to account, from the very nature of such a pledge.^ In rendering an account of the profits, the pawnee is at liberty to charge all the necessary costs and expenses to which he has been put, and to deduct them from the income or profits.^ If he has sold the pledge, he is bound to account for the pro- ceeds, and to pay over to the pawnor the surplus beyond his debt, or other demand, and the necessary expenses and charges.^ Pothier thinks, that the duty of the pawnee goes farther; and that he is bound to account for all the profits and income which he might have received from the pledge but for his own neg- ligence.* This would, doubtless, be true in the common law, in all cases where there is an implied obligation to employ the pledge at a profit. As, if there is a pledge of money, and it is agreed that it shall be let out at interest by the pawnee, and he has neglected his duty. So, if it is contemplated between the parties, that the pledge shall be employed in its usual business upon profit; as a ferry-boat at a ferry, or a coach and horses in the customary carriage of passengers. § 344. There was a peculiar sort of pledge or mortgage in the Roman law, called Antichresis, whereby the creditor was entitled to take the profits of the pledge (as, for instance, of lands or animals), as a compensation for, and in lieu of, inter- est. This mode of contract was not held illegal in the Roman law, unless it was made a cover for some illegal act, or for some oppressive usury.^ But in the modern Continental nations, it seems, from its tendency to give the creditor an 1 Ante, § 329, 331 ; Code of Louisiana of 1825, art. 3135; Pothier, de Nantissement, n. 35, 37, 40, 41. 2 1 Domat, B. 3, tit. 1, § 3, art. 19; Id. § 4, art. 4, 5; Pothier, de Nantissement, n. 35, 37, 40, 41; Ersk. Inst. B. 3, tit. 1, § 33; 2 Kent, Comm. Lect. 40, p. 583, 4th edit. ; post, § 357; {Starrettt). Barber, 20 Me. 457. Assessments rightfully paid upon pledged stock are a proper charge for adjustment on an account. McCalla v. Clark, 55 Ga. 53. See, as to the question of costs, Blake v. Buchanan, 22 Vt. 548. } 8 Pothier, de Nantissement, n. 35, 37, 40, 41. i Pothier, de Nantissement, n. 36; Aylifie, Pand. B. 4, tit. 18, p. 533. 6 1 Domat, B. 3, tit. 1, § 1, art. 28; Id. § 4, art. 5; Pothier, de Nan- tissement, n. 20; Ayliife, Pand. B. 4, tit. 18, p. 525; Code of Louisiana, art. 3102, 3143; Livingston v. Story, 11 Peters, 351. 308 ON PAWNS OE PLEDGES. [CH. V. oppressive power, and to cover usury, to be generally dis- countenanced ; for, in all such cases, the party is bound to account for the profits, deducting his expenses, and then is simply allowed his interest.^ This, also, seems to be the gen- eral rule adopted in England. Welsh mortgages bear, in many respects, a close resemblance to the contract of antichresis, as the mortgagee is entitled to receive the profits in lieu of interest. But this kind of mortgage, though formerly much in use, is now in a great measure obsolete. It does not seem ever to have been applied to mere personalty.^ § 345. In the natural order of the subject, we are next led to a consideration of the rights and duties of the pledgor. And, in the first place, as to his right of redemption. If the pledge is conveyed by way of mortgage, and thus passes the legal title, unless the pledge is redeemed at the stipulated time, the title of the pledgee becomes absolute at law ; and the pledgor has no remedy at law, but only a remedy in equity to redeem.^ If, however, the transaction is not a transfer of ownership, but a mere pledge, as the pledgor has never parted with the general title, he may at law redeem, notwithstanding he has not strictly complied with the conditions of his con- tract.* If a clause is inserted in the original contract, provid- 1 Ibid. 2 1 Powell on Mortgages, by Coventry & Rand, p. 373 a, and note (E) . jIn Langton v. Waite, L. R. 6 Eq. 165, a pledgee of stock who had wrongfully sold it was held liable for the stock pledged, and also for the profits he had made on the sale. And see Hunsaker v. Sturgis, 29 Cal. 142. As to the profits for which a pledgee is accountable who has sold a pledged gold bond at a premium, see Hancock v. Franklin Ins. Co., 114 Mass. 155. And see Fowle ti. Ward, 113 Mass. 548; Gilson v. Martin, 49 Vt. 474.} ^ Jones V. Smith, 2 Ves. Jr. 378 ; Cortelyou v. Lansing, 2 Cain. Cas. in Err. 200; ante, § 287, 308 to 311. ^ Com. Dig. Mortgage, B. ; 1 Powell on Mortgages, by Coventry & Rand, 401, and notes, ibid. ; ante, § 287, 308 to 311 ; JDoak v. Bank of State, 6 Ired. 309. As to the method of tender required on the part of the pledgor, see Dunham v. Jackson, 6 Wend. 22; McCallaw. Clark, 55 Ga. 53; Hancock v. Franklin Ins. Co., 114 Mass. 155; Fisher v. Brown, 104 Mass. 259. The pledgee's lien under the pledge is extinguished by the pledgor's rightful tender; audit is conversion for him to refuse and hold the pledge longer. Otherwise, where the pledgor is the party in default. See M'Lean v. Walker, 10 Johns. 471; Geron v. Geron, 15 Ala. 558; CH. v.] ON PAWNS OR PLEDGES. 809 ing that, if the terms of the contract are not strictly fulfilled at the time and in the mode prescribed, the pledge shall be irredeemable, it will not be of any avail. For the common law deems such a stipulation unconscionable and void, upon the ground of public policy, as tending to the oppression of debtors.^ The Roman law treated a similar stipulation (called in that law lex eommissoria) in the same manner, holding it to be a mere nullity .^ However, the Roman law allowed the parties to agree, that, upon default in payment, the creditor might take the pledge at a stipulated price, provided it was its reasonable value, and the transaction was bond fide. In both respects the modern Continental nations of Europe have adopted the Roman law.^ Whether the same principle exists in the common law does not appear to have been decided. But there is no doubt, that a subsequent agreement to that effect, or a subsequent waiver of the right to redeem, if made under proper circumstances, would be held binding between the parties.* § 346. It is clear, by the common law, that, in cases of a mere pledge, if a stipulated time is fixed for the payment of the debt, and the debt is not paid at the time, the absolute property does not pass to the pledgee. This doctrine is, at least, as old as the time of Glanville.® If the pawnee does not McCalla v. Clark, supra. Trover for the pledge is the common-law remedy. But the pledgor who has paid or tendered what was due has likewise a remedy in equity to compel specific delivery of the pledge ; a remedy peculiarly appropriate to such chattels as family relics, yet not confined to articles specially valued for associations' sake. Brown i;. Eunals, 14 Wis. 693. See Stephens v. Hartley, 2 Montana, 504. As to whether a third person who holds the pledge is ohliged to return it before receiving notice that the pledgor has paid up, see Dewart v. Messer, 40 Penn. St. 302.} 1 Cortelyou v. Lansing, 2 Cain. Cas. in Err. 200; 2 Kent, Comm. Lect. 40, p. 581 to 583, 4th edit. ; {ante, § 318.} 2 1 Domat, B. 3, tit. 1, § 3, art. 11; Pothier, de Nantissement, n. 18; 2 Kent, Comm. Lect. 40, p. 583, 4th edit. ^ 1 Domat, B. 3, tit. 1, § 3, art. 11 ; Pothier, de Nantissement, n. 19. * Stevens v. Bell, 6 Mass. 339. 6 Glanville, Lib. 10, ch. 6; 1 Reeves's Hist. 161, 168; Cortelyou v. Lan- sing, 2 Cain. Cas. in Err. 200; Ratcliff w. Davis, 1 Bulst. 29; s. c. Yelv. 178 ; ante, § 308 to 310. 310 ON PAWNS OK PLEDGES. [CH. V. choose to exercise his acknowledged right to sell, he still retains the property as a pledge, and, upon a tender of the debt, he may at anytime be compelled to restore it ; for prescription, or the statute of limitations, does not run against it.-' However, after a long lapse of time, if no claim for a redemption is made, the right will be deemed to be extinguished ; and the property will be held to belong absolutely to the pawnee. Under such circumstances, a court of equity will decline to entertain any suit for the purpose of a redemption.^ A like rule is adopted in the common law in case of mortgages.'' § 347. The Roman law also has declared, that prescription shall not run against the pawnor in respect to the pawn ; for the pawnee is always considered to hold by his title, as such, until some other title supervenes.* " Neminem sibi ipsum causam possessionis mutare posse." ^ But, nevertheless, where the title of the pawnee has remained undisturbed for a great length of time, it seems that such an extraordinary prescription may be insisted on as a bar, for the sake of the repose of titles founded on long possession.^ § 348. But, where no time of redemption is fixed by the contract, there, upon the general principles of law, the pawnor has his whole life to redeem,' unless he is previously quick- ' Kemp V. Westbrook, 1 Ves. 278. 2 [See Henry v. Tupper, 29 Vt. 358, for a discussion of the power of a court of equity to relieve from forfeiture.] {In White Mountains R. R. Co. u. Bay State Iron Co., 50 N. H. 57, pledgors of bonds secured by mortgage were allowed to redeem where the pledgee, who had foreclosed the mortgages, still had possession of the bonds. But see Waterman v. Brown, 31 Penn. St. 161, where, in the case of certain bank stock, the pledgor was not allowed to redeem after six years. See Hancock v. Frank- lin Ins. Co., 114 Mass. 155; Jones v. Thurmond, 5 Texas, 318.} s Lockwood V. Ewer, 2 Atk. 303 ; Mathews on Presump. Evid. 20, 331; Powell on Mortgages, Coventry & Rand's edit., Coventry's note, 401. « Pothier, de Nantissement, n. 53; Cod. Lib. 4, tit. 24, 1. 10, 12; Aylifie, Pand. B. 4, tit. 18, p. 531 ; 1 Domat, B. 3, tit. 1, § 4, art. 7; Id. tit. 7, § 5, art. 11, 12; Dig. Lib. 44, tit. 3, 1. 12; Dig. Lib. 41, tit. 3, 1. 13. 6 Dig. Lib. 41, tit. 2, 1. 3, § 19 ; Pothier. de Nantissement, n. 53. 6 AylifiEe, Paud. B. 4, tit. 18, p. 531; Cod. Lib. 7, tit. 39, 1. 4, 9; 1 Domat, B. 3, tit. 7, § 4, art. 14, and note of the author. 7 Com. Dig. Mortgage, B. ; Ratcliff v. Davis, Yelv. 178, 179; Cortelyou I). Lansing, 2 Cain. Cas. in Err. 200; Bac. Abridg. Bailment, B.; 2 Kent, Comm. Lect. 40, p. 581, 582, 4th edit. CH. V.J ON PAWNS OB PLEDGES. 311 ened, as lie may be, by the pawnee, through the instrumen- tality of a court of equity, or by notice in pais to the party .^ A question has arisen, whether, if the pawnor dies without redeeming, the right survives to his personal representatives. In one case,^ it seems to have been thought by the court, that the right expired with the pawnor's life. However, there have been cases in equity, in which the right has been enforced in favor of the representatives of the pawnor ; and this seems, according to modern opinions, the true doctrine.^ If the pawnee dies before redemption, the pawnor may still redeem against his representatives.* § 349. If, at the time when the pledgor applies to redeem, the pledge has been sold by the pledgee, without any proper notice to the former, no tender of the debt due need be made before bringing an action therefor ; for the party has incapaci- tated himself to comply with his contract to return the pledge.^ The same rule applies, where the pledgee dispenses with a ten- der ; as if he refuses under any circumstances to restore the pledge.^ But, if an action is brought, the pledgee may recoup his debt in the damages.'^ § 350. Subject to the rights of the pledgee, the owner has a right to sell or assign his property in the pawn ; and in such 1 Cortelyou v. Lansing, 2 Cain. Cas. in Err. 200; Hart v. Ten Eyck, 2 Johns. Ch. 62; Garlick v. James, 12 Johns. 146; 2 Kent, Comm. Lect. 40, p. 581, 582, 4th edit. 2 Ratclift' V. Davis, Yelv. 178; s. c. 1 Bulst. 29; s. c. Noy, 137; s. c. Cro. Jac. 244. 3 Demandrayj). Metoalf, Free. Ch. 420; 2 Vern. 691, 698; Vanderzee V. Willis, 3Bro. Ch. 21; Cortelyou v. Lansing, 2 Cain. Cas. in Err. 200. * Com. Dig. Mortgage, B. 6 Cortelyou v. Lansing, 2 Cain. Cas. in Err. 200; M'Lean v. Walker, 10 Johns. 472; [Stearns v. Marsh, 4 Denio, 227.] {See McCalla v. Clark, 55 Ga. 53; Wilson v. Little, 2 Comst. 443. But see Halliday r. Holgate, L. R. 3 Ex. 299; ante, § 308 and notes.} 6 Cortelyou v. Lansing, 2 Cain. Cas. in Err. 200, and cases cited; Id. 214. ' Jarvis v. Rogers, 15 Mass. 389; [Steams v. Marsh, 4 Denio, 227. See Ward v. Fellers, 3 Mich. 288.] {In Strong v. Nat. Banking Associa- tion, 45 N. Y. 718, the pledgee's transfer of his claim for over-draft was held, under the circumstances, to deprive him of the right to recoup for such over-draft. See Blackwood v. Brown, 34 Mich. 4.} 312 ON PAWNS OR PLEDGES. [CH. V. a case, the vendee will be substituted for the pledgor, and the pledgee will be bound to allow him to redeem, and to account with him for the pledge, and its proceeds. If he refuses, an action at law will lie for damages, as well as a bill in equity to compel a redemption and account.^ § 351. In every case, where the pledge has suffered any injury by the default of the pledgee, the owner is entitled to a recompense in proportion to the damages sustained by him. But, in estimating the damages, no compensation is to be made for any injury which has arisen by accident, or from the natural decay of the pledge.^ § 352. As the general property of goods pawned remains in the pawnor, and the pawnee has a special property only,^ the latter (as we have seen), as well as the former, may maintain an action against a stranger for any injury done to it, or for any conversion of it.* Where a stranger comes into possession under a wrongful title from the pawnee, the owner, having a right to consider the bailment, for many purposes, at an end, if not for all, may recover it against the stranger, and hold him liable for damages.^ But where there is any injury or conversion by a stranger, for which an action lies both by the pawnor and pawnee, a recovery by either of them will oust the other of his right to recover; for there cannot be a double 1 Ratcliffe v. Vance, 2 Const. S. C. n. s. 239; Kemp v. Westbrook, 1 Ves. 278; Hunt v. Holton, 13 Pick. 220; Tuxworth ... Moore, 9 Pick. 347; Whitaker v. Sumner, 20 Pick. 399, 405; ante, § 324 to 328; [Franklin v. Neate, 13 M. & W. 481.] jThe owner may pledge and then mortgage ; in which case the mortgagee's interest is merely the sur- plus remaining after satisfaction of the pledgee's claim. Sanders v. Davis, 13 B. Mon.432.J 2 Pothier, de Nantissement, n. 39, 40. s Ante, § 287. « Bae. Abridg. Trover, C. ; 2 Black. Coram. 453; 1 Roll. Abridg. 569, pi. 5. See Pain v. Whittaker, 1 Ryan & M. 99; Gordon v. Harper, 7 T. R. 9; ante, § 93, 94, 95, 150, 152; Nicolls v. Bastard, 2 Cromp., Mees. & Rose. 659, 660. 6 Newsom v. Thornton, 6 East, 17; Martini v. Coles, 1 M. & Selw. 140; Pickering v. Busk, 15 East, 38; M'Combie v. Davies, 6 East, 538; Dillen- back i\ Jerome, 7 Cow. 294 ; Smith u. James, 7 Cow. 328 ; ante, § 324- 327; Story on Agency, § 113 and note; Id. § 225, 227. CH. v.] ON PAWNS OR PLEDGES. 313 satisfaction.^ This is true, as a general rule. But it deserves consideration, whether the owner can, by his recovery of the pledge itself, or of damages for the conversion of it, against a stranger, oust the pledgee of his security in the pledge or its proceeds. And if the pledgee has recovered damages against a stranger only to the extent of his own lien, it may further deserve consideration, whether, upon suitable proofs, the owner may not also be entitled to recover for the surplus. However, these are propounded merely as matters open to further inquiry. Where the pledgee is ousted of his possession by a mere stran- ger, it is said that he is entitled to recover the full value of the pledge.^ But where the pledge has been wrongfully taken possession of, and retained by the owner, or by one acting under his authority, or with his assent, there the pledgee is entitled to recover damages only to the amount of his lien.^ § 858. Goods pawned are not liable to be taken in execu- tion in an action against the pawnor;* at least, not unless the bailment is terminated by payment of the debt, or by some other extinguishment of the pawnee's title. ^ This is the rule 1 Bac. Abridg. Trover, C. ; Rooth v. Wilson, 1 Bam. & Aid. 59 ; Bush V. Lyon, 9 Cow. 52; Smith v. James, 7 Cow. 328; NicoUs v. Bastard, 2 Cromp., Mees. & Rose. 659, 660; 2 Saund. 47 c, Williams's note; ante, § 94, 150, 152. ^ Lyle V. Barker, 5 Binn. 457; Heydon & Smith's case, 13 Co. Rep. 67; ante, § 93; IngersoU v. Van Bokkelin, 7 Cow. 670, and note (a); Pomeroy v. Smith, 17 Pick. 85; [Swire v. Leach, 18 C. B. n. s. 479, a carefully considered case on this subject.] * IngersoU M. Van Bokkelin, 7 Cow. 670, 681, and note; Lylew. Barker, 5 Binn. 457; Heydon & Smith's case, 13 Co. Rep. 69. [See Benjamin v. Stremple, 13 111. 468.] jFor damages recoverable in case the pledge was stolen through the pledgee's want of due diligence, see Third Nat. Bank o. Boyd, 44 Md. 47. But see May v. Sharp, 49 Ala. 140. } * [But see Stief v. Hart, 1 Comst. (N. Y.) 20, where it was decided that a 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, and sell the right and interest of the pledgor therein.] 6 Coggsu. Bernard, Holt, 528, 529; Badlam ti. Tucker, 1 Pick. 389; Bigelow V. Willson, 1 Pick. 485; Marsh v. Lawrence, 4 Cow. 461; 1 Dane, Abridg. ch. 17, art. 4, § 3 ; Pomeroy v. Smith, 17 Pick. 85. By a special statute provision in Massachusetts, pledges may be attached by the cred- itors of the pledgor upon a tender of the amount due on the pledge, or the pledgee may be summoned as his trustee to answer for the sur- 814 ON PAWNS OR PLEDGES. [CH. V. in cases of executions at the suit of private persons. But it would seem, that in the case of the Crown the pawn may be taken generally, on satisfaction of the debt to the pawnee, or taken and sold subject to his right.^ § 354. In the next place, as to the duties and obligations of the pawnor. By the act of pawning, the pawnor enters into an implied engagement or warranty, that he is the owner of the property pawned ; and, unless he gives notice of a different interest, that he is the general owner and that he has good right to pass the pawn. If he violates this engage- ment, either by a tortious or by an innocent bailment of prop- erty, which is not his own, or by exceeding his interest therein, he is liable to the pawnee in an action for damages.^ It fol- lows, that the pawnor is under an implied engagement not to retake the pledge, or in any manner to interfere with the rights of the pawnee. § 355. If the pawn has a defect, unknown to the pawnee, which destroys its value, the French law gives him a right of action for another pawn in its stead. ^ This seems highly reasonable ; the common law, however, does not give any such right. But in such a case, an action will lie at the com- mon law against the pawnor, upon his implied engagement or plus. Revised Statutes, 1836, ch. 90, § 78-80; Id. ch. 109, § 25, 26; Pomeroy v. Smith, 17 Pick. 85. See also Wheeler v. M'Farland, 10 Wend. 318. Whether, in case of a pledge of personal property, the property can be levied on under an execution by a creditor of the pledgee, so as to sell and pass the pledgee's title therein, is a point upon which no direct adjudication has been made. In the case of a mortgage of personal property, it has been held, that, after a forfeiture by non-payment of the debt, the property may be levied on under an execution by a creditor of the mortgagee, even although the property is in the possession of the mortgagor. Ferguson v. Lee, 9 Wend. 258. But qucere, whether in such a case the equity of redemption of the mortgagor would be destroyed, or whether it would subsist against the purchaser at the sheriff's sale. [Nor are pawned goods liable to distress for rent of the pawnee. Swire v. Leach, 18 C. B. n. s. 479.] 1 2 Chitty on Prerog. ch. 12, P. 1, § 5, p. 285, 286. 2 Pothier, de Nantissement, n. 54-56; Dig. Lib. 13, tit. 7, L 32; Id. 1. 16 ; [Mairs v. Taylor, 40 Penn. St. 446.] ' Pothier, de Nantissement, n. 57. CH. v.] ON PAWNS OR PLEDGES. 315 warranty of title ; and, a fortiori, if any fraud is practised by the pawnor, an action for damages will doubtless lie against him. Perhaps, also, the whole contract may, under such circumstances, at the option of the pawnee, be rescinded by a court of equity. § 356. The pawnor, indeed, is in all cases of this sort bound to good faith, and is responsible for all frauds, not only in the title, but in the concoction of the contract.^ Thus, if he should fraudulently misrepresent the nature or quality of the thing pledged, as for example, if he should pledge a vase of brass, asserting it to be gold, he would be liable therefor ; for it is a rule of the common law, that fraud vitiates every con- tract ; and damages, by way of recompense, may be recovered for all losses and injuries occasioned by fraud. The like rule prevails in the Roman law ; and indeed fraud is therein denounced with studied reprobation. " Si quis in piguore pro auro 8es subjecisset creditori, qualiter tenetur ? Si quidem dato auro ses subjecisset, furti tenetur ; quod, si in dando ses subjecisset, turpiter fecisse, non furem esse ; sed et hie puto pigneratitium judicium locum habere." ^ But whenever there is a defect in the pawn, or in the title to it, there is no pre- tence to impute fraud, if the pawnee takes it with full knowledge of all the circumstances ; for he is then bound by his contract, as he has chosen to make it ; and volenti non fit injuria. The Roman law has promulgated the like doctrine. " Si sciens creditor accipiat vel alienum, vel obligatum, vel morbosum, contrarium judicium einon competit."^ The same doctrine is also fully recognized in the French law.* § 357. Another obligation of the pawnor, by the Roman law, is to reimburse to the pawnee all expenses and charges, which have been necessarily incurred by the latter in the preserva- tion of the pawn,^ even though, by some subsequent accident, 1 Pothier, de Nantissement, n. 59. 2 Dig. Lib. 13, tit. 7, 1. 36. 8 Dig. Lib. 13, tit. 7, 1. 16, § 1; Pothier, Pand. Lib. 18, tit. 7, n. 27. * Pothier, de Nantissement, n. 58, 59. 5 Pothier, de Nantissement, n. 60, 61; Dig. Lib. 13, tit. 7, 1. 8; 1 Domat, B. 3, tit. 1, § 3, art. 19; ante, § 306, 343, {and cases cited in notes. } 316 ON PAWNS OE PLEDGES. [CH. V. these expenses and charges may not have secured any perma- nent benefit to the pawnor. No decision has been found in the common law directly upon this point. If there is an express contract to pay such expenses, that doubtless ought to govern the case. And where the circumstances of the case naturally lead to an implied agreement to the same effect, it will be equivalent to an express declaration. But whatever may be the rule, as to ordinary expenses and charges in a case of mutual silence, it seems but reasonable, that extraordinary expenses and charges, which could not have been foreseen, should be reimbursed by the pawnor. If, for instance, a horse is pawned, and he meets with an injury by accident, the expenses of his cure seem justly chargeable upon the pawnor, as they are incurred for his ultimate benefit. So, if a ship, which is pledged, is injured by a storm, and expenses are necessary to preserve her from absolute foundering, such expenses seem properly to fall on the owner. ^ § 358. In respect to expenses which are not necessary, but still are useful to the thing pawned, the Roman law pursued a middle course, and left them to be allowed or disallowed by the proper judicial tribunal, according to circumstances. If the expenses were very large and onerous, they were not to be allowed. If moderate and beneficial, they might be allowed at the discretion of the court.^ The common law has not invested courts of justice with any such discretion, or allowed the pawnee any such latitude of expenditure, without the approbation of the pawnor, either express or implied. § 359. We come, in the last place, to the consideration of the manner in which the contract of pledge or mortgage is, or may be, extinguished. An extinguishment may arise in several ways. (1) By the full payment of the debt, or the discharge of the other engagements, for which the pledge was given.8 " Si dominus solverit pecuniam, pignus quoque 1 See ante, § 121, 121 a,, 154, 197, 256, 273, 306; post, § 888, 389. 2 Pothier, de Nantissement, n. 61; Dig. Lib. 13, tit. 7, 1. 25; 1 Domat, B. 3, tit. 1, § 3, n. 20; AylifEe, Pand. B. 4, tit. 18, p. 530, 531; ante, § 121, 121 a, 154, 197, 236, 274. 8 1 Domat, B. 3, tit. 1, § 7, art. 1 ; Pothier, Pand. Lib. 20, tit. 6, § 1, 1. 1-5; Ayliffe, Pand. B. 4, ch. 18, p. 536, 537. CH. v.] ON PAWNS OR PLEDGES. 317 perimitur." ^ (2) By a satisfaction of the debt, in any other mode, either in fact, or by operation of law ; as, for instance, by receiving other goods in payment or discharge of the debt.^ "Item liberatur pignus, sive solutum est debitum, sive eo nomine satisfactum est."^ § 360. (3) An extinguishment of the right of pledge may also be by taking a higher or a different security for the debt (as, for example, a bond or obligation for a promissory note), without any agreement that the pledge shall be retained therefor. This, in the Roman and foreign law, is called a Novation; and, as the original debt is thereby extinguished, the contract of pledge, which is but an accessory, is also extinguished. " Novata autem debiti obligatio pignus perimit, nisi convenit, ut pignus repetatur." * But as no novation has the effect to extinguish a prior debt, unless such is the inten- tion of the parties, it follows, that a mere change of the securitj-- will not extinguish the right to the pledge, without the express or implied assent of both parties.^ § 361. (4) In the next place, whatever by operation of law extinguishes the debt, will extinguish the. right to the pledge also.^ Therefore, if, in a suit brought by the pledgee for the debt, the pledgor obtains a judgment in his own favor, which bars any future recovery of the debt, that will extinguish the right to the pledge.' 1 Dig. Lib. 20, tit. 1, 1. 13, § 2. " 1 Domat, B. 3, tit. 1, § 7, art. 4; Pothier, Pand. Lib. 20, tit. 6, § 4, 1. 17, 20; AylifEe, Pand. B. 4, tit. 18, p. 536, 537. 8 Dig. Lib. 20, tit. 6, 1. 6. {See Knox v. Turner, L. R. 9 Eq. 155. Satisfaction is to be distinguished from a mere renewal of the evidence of that indebtedness -which the pledge was given to secure. See Thomp- son V. Toland, 48 Cal. 99; Wadsworth v. Thompson, 8 111. 423. Cf. Ex parte Waring, 19 Ves. 345; Ex parte Alliance Bank, L. R. 4 Ch. 423; Levi's case, L. R. 7 Eq. 449. } * 1 Domat, B. 3, tit. 7, § 7, art. 2, 4; Id. B. 4, tit. 3, § 1, art. 1 to 5; Pothier, Pand. Lib. 20, tit. 6, § 1, 1. 6, 7; AylifEe, Pand. B. 4, tit. 18, p. 536, 537; Dig. Lib. 13, tit. 7, 1. 11, § 1. » 1 Domat, B. 4, tit. 3, § 1, art. 1 to 5; AylifEe, B. 4, tit. 18, p. 536, 537; {Mayo v. Avery, 18 Cal. 309; Girard Ins. Co. v. Marr, 46 Penn. St. 504.} « [Merrifield v. Baker, 9 Allen, 29.] ' 1 Domat, B. 3, tit. 7, § 1, art. 3; Pothier, Pand. Lib. 20, tit. 6, § 1, L 8. 818 ON PAWNS OK PLEDGES. [CH. V. § 362. (5) In the next place, if the right to the debt is barred by prescription, it is said in the Roman law that the right to the pledge is also gone.^ This is equally true in the common law, when from the length of time there arises a pre- sumption of the payment or discharge of the debt. But if there is merely a positive bar by the statute of limitations against a personal action for the debt, it may deserve consid- eration, how far this will oust the party of his right to retain the pledge towards satisfaction of the debt ; for the posses- sion of the pledge may be the very reason why the pledgee has omitted to bring a personal suit for the debt within the prescribed time. The pledgor is not ordinarily barred of his right to redeem the pledge, so long as the pledgee may be presumed to hold it as a pledge.^ And the continued posses- sion of the pledgee, being founded upon the presumed consent of the pledgor, affords, under such circumstances, proof of the non-extinguishment of the debt, although the statute of limi- tations may present a bar to a mere personal action. On the other hand, if a very long period has elapsed, and the pledge has continued in the possession of the pledgee, it affords a presumption of the abandonment of it by the pledgor ; and if any presumption of an extinguishment of the debt arises in such a case, it is an extinguishment by receiving the pledge in satisfaction. If, then, the statute of limitations has run against the debt as a personal claim, and the pledgor seeks to recover back the pledge, why may not the pledgee avail him- self of the protection of the same statute to bar such suit? If the pledgor insists, that it is still a pledge, why may not the other party avail himself of all the fair presumptions arising in the case, that the debt has not been in fact paid, or that the pledge has been deemed a satisfaction of it ? Some of the adjudged cases seem silently to admit the existence of a right in the pledgee over the pledge, notwithstanding the lapse of a period exceeding that of the statute of limitations for a per- 1 1 Domat, B. 3, tit. 7, § 4, art. 9; Pothier, Pand. Lib. 20, tit. 6, § 5, 1. 37-40. 2 See Spears v. Hartly, 3 Esp. 81 ; Thayer v. Mann, 19 Pick. 536 ; Reed v. Shepley, 6 Vt. 602 ; {ante, § 346 and note. } CH. v.] ON PAWNS OE PLEDGES. 319 sonal suit for the debt.^ This, however, must be considered, in the absence of some direct authority, as a point merely propounded for further consideration. But if the pledgor admits the existence of the debt, and brings a bill to redeem, he can do so only upon payment of the debt, although the statute of limitations might otherwise be pleaded as a bar to it. § 363. (6) The right to the pledge is also gone, when the thing perishes. " Sicut re corporal! extinctS,, ita et usufructu extincto, pignus hypothecave perit," is the language of the Roman law.^ If it undergoes any permanent and essential transmutation, it would seem, by the Roman law, that the right to it, under some circumstances, would be extinguished. Thus, if a wood should be delivered as a pledge, and a ship should be afterwards built of the trees, the ship would not be pledged, unless there were an express stipulation, that the trees, and whatever should be constructed out of them, should be equally subject to the pledge. " Si quis caverit, ut sylva sibi pignori esset, navem ex e^ materia factam non esse pig- noris, Cassius ait ; quia aliud sit materia, aliud navis. Et ideo nominatim in dando pignore adjiciendum esse, ait, quseque ex sylvS. facta natave sint." ^ This example, perhaps, ought not to be deemed to furnish the foundation of any general rule, since in the building of a ship various other materials, besides the trees, must have been used in the construction. Let us suppose a gold vase to be pledged, and then melted down into a bar of gold, or a bar of gold to be wrought into a vase, without the use of any other materials, and the question might then present itself in a very different aspect. However this may be, it seems certain, that, at the common law, the pledge is not thereby extinguished.* As far as the property can be traced, it will still be held a pledge by the common law, what- 1 Kemp V. Westbrook, 1 Ves. 278; Gage v. Bulkeley, Kidg. Cas. temp. Hard. 278; RatclifE v. Davis, Yelv. 178, 179. See also Pothier, Pand. Lib. 20, tit. 6, § 1, art. 2 ; 1 Powell on Mort. by Coventry & Rand, 401, and notes, ibid. ; Higgins v. Scott, 2 Barn. & Ad. 413. 2 Dig. Lib. 20, tit. 6, 1. 8; Pothier, Pand. Lib. 20, tit. 6, n. 12. 8 Dig. Lib. 13, tit. 7, 1. 18, § 3. * Pothier, Pand. Lib. 20, tit. 6, n. 12, 13; 1 Domat, B. 3, tit. 1, § 7, art. 7 ; Ayliffe, Pand. Lib. 4, tit. 18, p. 536, 537. 320 ON PAWNS OE PLEDGES. [CH. V. ever transmutations it may have undergone without the assent of the pledgee.^ § 364. (7) The right also is extinguished by any act of the pledgee which amounts to a release or waiver of the pledge. This may be by a release in solemn form of the debt, or by any other discharge of the right to the pledge. But a release of a part, or of an undivided portion of the things pawned, will operate as an extinguishment only pro tanto? If the pledgee yields up the possession of the pledge to the pledgor,^ or consents that the latter shall alienate it, or pledge it to an- other person, either of these acts will amount to a waiver of his right to the pledge.* § 365. These formal divisions of the modes of extinguish- ing the right to the pledge have been taken from the Roman law, in which they are set down with minute accuracy. The common law, however, is precisely the same as to all the principles which govern them, with the exceptions which have been incidentally suggested. Indeed, the whole doctrine of extinguishment is resolvable into the very first elements of justice, and is founded upon the express or implied intention of the parties to extinguish the pledge, or upon a virtual ex- tinguishment by the necessary operation of law. § 866. It remains to take notice of a few peculiarities in the local jurisprudence of Massachusetts, upon the point now under consideration. It seems to have been held in one case, that, if a pawnee causes the goods which are pawned to be attached in a personal suit against the pawnor for the very debt for which it is pledged, his lien or right to the pledge is waived or extinguished by such an attachment.^ But this i Taylor v. Plumer, 3 M. & Selw. 562 ; Story on Agency, § 224, 229- 231. •^ Pothier, Pand. Lib. 2, tit. 6, § 4, 1. 14; Macomber «. Parker, 14 Pick. 497, 507. * Homes e. Crane, 2 Pick. 607; Runyan v. Mersereau, 11 Johns. 534; ante, § 287, 299; Reeves v. Capper, 5 Bing. N. C. 136; Ryall u. RoUe, 1 Atk. 165. [See Way v. Davidson, 12 Gray, 466;] {ante, § 299.} * Pothier, Pand. Lib. 20, tit. 6, § 4, 1. 21; 1 Domat, B. 3, tit. 1, § 7, art. 12-14; ante, § 287, 289. ' Swett V. Brown, 5 Pick. 178. See also Jacobs v. Latour, 5 Bing. 130 ; Story on Agency, § 367. CH. v.] ON PAWNS OR PLEDGES. 321 doctrine, if it is admitted to be fully settled, is to be restricted to the very case stated ; for an attachment of the same prop- erty by the pawnee, for the security of other debts due to him by the pledgor, will not be a waiver or extinguishment of the lien or right of the pledgee to the pledge, if at the time of such attachment he gives notice to the officer that he means also to insist on such lien and pledge, and he requires the offi- cer to maintain the possession accordingly for him.i It seems, also, to have been held in another case, that the pledgee has no right, in any personal suit, to attach any other property of the pawnor for the debt, without first returning the pawn to him.2 It is to be observed, that the common process, by which personal suits are instituted in Massachusetts, is a writ of attachment, which authorizes an attachment of the prop- erty, or, if none can be found, an arrest of the person of the debtor, to answer the exigency of the writ. In order to make the process effectual, it is indispensable that there should be either an attachment of property (nominally at least), or an arrest of the person. The effect of these decisions, there- fore, supposing them to be sustained to their full extent, may be, that the writ of attachment, in all cases of pledge, will be but a writ of capias in favor of the creditor, and that, how- ever inadequate the pledge may be as a security, he must abandon it before he can secure himself by any attachment of the property of his debtor. What would be the effect of a levy of the execution, which should issue upon a judgment in favor of the creditor for the debt, upon the pledge or other property of the debtor, does not appear to have been decided. Nor, indeed, does it appear to have been decided, what would be the effect of a personal suit brought by the creditor while he retains the pledge. § 367. The important head of Pawns or Pledges is thus 1 Townsend v. Newell, 14 Pick. 332, 335; Whitaker v. Sumner, 20 Pick. 399, 406. 2 Cleverly v. Brackett, 8 Mass. 150. [But if this ever was the law in Massachusetts, it has long since been overruled. See Beckwith v. Sib- ley, 11 Pick. 482 ; Cornwall v. Gould, 4 Pick. 444; Whitwell v. Brigham, 19 Pick. 117; Buck v. Ingersoll, 11 Met. 232; Taylor v. Cheever, 6 Gray, 146.] {Note particularly the language of Metcalf, J., in Taylor v. Chee- ver, id. } 21 322 ON PAWNS OK PLEDGES. [CH. V. brought to a conclusion. And, however minute some of the details and distinctions may appear to be, they are far from exhausting the subject. If the object of these Commentaries had not been rather to present a practical view of the leading principles, than to introduce nice discussions, there would not be wanting other materials to exercise the subtilty, as well as to employ the patience, of the inquisitive jurist. CH. VI.] CONTRACTS OF HIRE. 323 CHAPTER VI. CONTRACTS OP HIRE. [§ 368. Contract of Hire, Locatio-Conductio,J)e&mtion of. 369. Parties, Denomination of, in Common, Civil, and Foreign Law. 370. Division of Contract of Hire into three kinds. 370 a. Pothier's Division into Regular and Irregular Contracts of Hire. 371. Nature of the Contract. 372. Essence of the Contract. 373. The same subject. What may be let to hire. 373 a. The same subject. Use by the Hirer. 374. The same subject. Price. 375. The same subject. Price need not be specified. 376. The same subject. Price payable in Money. Innominate Contracts. 377. The same subject. Pecuniary Recompense. 378. Requisites of a valid Contract of Hire. 379. Illegal Contracts, what. 380. Between what Parties the Contract may be. 381. Consent. Mistake. Imposition. 382. Obligations and Rights arising from the Contract. {The subject classi- fied.}] § 368. The fifth and last class of Bailments consists of bail- ments for hire. A contract of this ?ort is called in the Roman law Loeatio or Locatio-Oonductio, both words being used pro- miscuously to signify the same thing.^ In the Roman law it may be defined thus : " Locatio-Conductio est contractus, quo de re fruendS, vel faciendS. pro certo pretio convenit." ^ In other words, it is a contract, whereby the use of a thing, or the services and labor of a person, are stipulated to be given for a certain reward.^ Pothier defines it to be a contract, by which one of the contracting parties engages to allow the other to enjoy or use the thing hired, during the stipulated 1 Ayliffe, Pand. B. 4, tit. 7, p. 460. 2 This is the definition given by Pothier, in his edition of the Pan- dects, deduced from the Roman text, but not the text itself. Pothier, Pand. Lib. 19, tit. 2, n. 1 ; Inst. Lib. 3, tit. 25; Dig. Lib. 19, tit. 2, 1. 1, 2; Heinec. Pand. Lib. 19, tit. 2, § 307. 3 Wood, Inst. B. 3, ch. 5, p. 235, 236; 1 Domat, B. 1, tit. 4, § 1, art. 1. 324 CONTEACTS OP HIRE. [CH. VI. period, for a compensation wlijch the other party engages to pay.i A definition, substantially the same, will be found in other writers.^ Lord Holt has defined it to be, " when goods are left with the bailee to be used by him for hire." ^ The objection to this, as well as to the definition of Pothier, is, that it is incomplete, and covers only cases of the hire of a thing (locatio rei}, and excludes all cases of the hire of labor and services, and of the carriage of goods. Mr. Bell defines it with great exactness thus : " Location is in general defined to be a contract, by which the temporary use of a subject, or the work or service of a person, is given for an ascertained hire." * At the common law it may properly enough be de- fined to be a bailment of a personal chattel, where a compen- sation is to be given for the use of the thing, or for labor or services about it ; or, in other words, it is a loan for hire, or a hiring or letting of goods, or of labor and services, for a reward.^ § 369. We are accustomed, in the common law, to use words corresponding to those of the Roman law, almost in the same promiscuous manner. Thus letting (^locatio') and hiring (conductio') are precise equivalents, used for the pur- pose of distinguishing the relative situation of different par- ties to the same contract. The letter, called in the civil law locator, and in the French law locateur, loueur, or bailleur, is he who, being the owner of the thing, lets it out to another for hire or compensation ; and the hirer, called in the civil law conductor, and in the French law conducteur, preneur, locataire, is he who pays the compensation, having the benefit of the use of the thing.^ Both Heineccius and Sir William 1 Pothier, Contrat de Louage, n. 1. '^ 1 Doinat, B. 1, tit. 4, § 1, art. 1. See also Code Civil of France, art. 1709, 1710. 8 Coggs V. Bernard, 2 Ld. Raym. 909, 913. * 1 Bell, Comm. § 198, 385, 4th edit. ; 1 Bell, Comm. p. 255, 451, 5th edit.; 1 Bell, Comm. § 198, 385, 4th edit. 6 2 Kent, Comm. Leot. 40, p. 585, 4th edit. ; 1 Bell, Comm. p. 255, 451, 5th edit.; 1 Bell, Comm. § 198, 385, 4th edit. See also Monthly Law Magazine (London) for April, 1839, p. 217-219. " Wood, Inst. B. 3, ch. 5, p. 236; Pothier, Contrat de Louage, n. 1; 1 Domat, B. 1, tit. 4, § 1, art. 2; Heinec. Band. Lib. 19, tit. 2, § 318; Jones on BaUm. 90: Wood, Inst. Civ. Law, 236. CH. VI.J CONTRACTS OF HIRE. 325 Jones have taken notice of a nicety in the use of the words locator and conductor in the Latin language. The employer, who gives the reward, is called locator operis (the letter of the work), but conductor operarum (the hirer of the labor and services) ; while the party employed, who receives the pay, is called locator operarum (the letter of the labor and ser- vices), but conductor operis (the hirer of the work).^ This nicety, although not as much felt in the English language, is yet not a total stranger to it.^ § 370. The contract of letting and hiring is usually divided into two kinds : — (1) Locatio, or locatio-conductio rei, the bail- ment or letting of a thing to be used by the bailee for a com- pensation 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 be- stowed, 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 compensa- tion.* Each of these heads will be severally treated of in its order ; and for the sake of brevity we shall often call the bailor the letter, and the bailee the hirer. Lord Holt has 1 Heinec. Paod. Lib. 19, tit. 2, § 320, note ; Jones on Bailm. 90, note (r); Pothier, Pand. Lib. 19, tit. 2, p. 2, n. 1, 15; Pothier, Contrat de Louage, n. 392. 2 Mr. Gibbon, in common with many other writers, has complained of the poverty of our language in regard to terms expressive of some of the different classes of bailments, and especially of the difierence between a mutuum and a commodatum. He has not hesitated to adopt the term " lo- cation," to signify the contract of hire. One might almost be tempted to follow him in this naturalization of the Roman word. Gibbon's Rome, vol. 8, eh. 44, p. 84. In the Scottish law, the letter is called the locator, and the hirer the conductor, and the contract of hire, location. 1 Stair, Inst. B. 1, tit. 15, § 1, 5, 6. {For the distinction between the relation of letter and hirer, and master and servant, see Fowler v. Lock, L. R. 7 0. P. 272.} ' Code Civil of France, art. 1709, 1710; Pothier, Contrat de Louage, art. Prelim. ; Merlin. Repert. art. Louage, art. Bailment. * Jones on Bailm. 85, 86, 90, 103; Id. 118; 2 Kent, Comm. Lect. 40, p. 585, 586, 4th edit. ; Code Civil of France, art. 1709-1711. 326 CONTEACTS OF HIKE. [CH. VI. called the former the lender, and the latter the borrower.^ But this language is equivocal, and may lead to some confu- sion, since it is usually appropriated to cases of gratuitous loans. § 370 a. There is another classification, made by Pothier and alluded to by Sir William Jones, in contracts of hire, and in which the former divides them into regular contracts of hire, and irregular contracts of hire. In the former case, the specific thing which is let to hire is to be returned ; in the latter case, the specific thing is not to be returned, but a thing of a similar nature and value.^ In this view the regular hiring corresponds to a regular deposit, and the irregular hiring to a mutuum ; and the same distinction subsists between them. In the regular contract of hire, the proprietary interest in the thing let is not changed, but remains in the letter ; in the irregular contract of hire, the proprietary interest in the thing is changed and passes to the hirer.^ The same distinction was recognized in the Roman law. Thus, if cloths were let to a fuller to be dressed and to be returned, there the contract was deemed to be one of regular hire. On the other hand, if an ingot of silver was given to a smith, to be by him melted and wrought into vases, there it was a contract of irregular hire. " Rerum locatarum duo genera esse ; ut aut idem redderetur, sicuti quum vestimenta fulloni curanda locarentur ; aut ejus- dem generis redderetur, veluti, quum argentum pustulatum fabro daretur, ut vasa fierent, aut aurum, ut annuli; ex supe- riore causS rem domini manere ; ex posteriori in creditum iri.* Idem juris esse in deposito." ^ This distinction is not formally acknowledged in the common law ; although it may exist in practice, and give rise to different rights and responsibilities in the hirer.s Sir William Jones says, that, in the former case, 1 Coggs V. Bernard, 2 Ld. Raym. 909, 913. 2 Pothier, de Depot, n. 82; Jones on Bailm. 102; ante, § 84. 8 Pothier, de Dep6t, n. 84; ante, § 84; post, § 415 a; 2 Kent, Comm. Lect. 40, p. 588, 589, 4th edit. ; Jones on Bailm. 102. 1 Dig. Lib. 19, tit. 2, 1. 31; Pothier, Traitfe de Depot, n. 82; ante, § 84; Jones on Bailm. 102; 2 Kent, Comm. Lect. 40, p. 539, 3d edit.; post, § 415 a, 438, 439. 5 Ibid. ; ante, § 84. Post, § 415 a, 438, 439; Jones on Bailm. 102, 103; Pothier, TraitA de D^pot, n. 83. CH. VI.J CONTBACTS OF HIEB. 327 it is a regular bailment ; in the latter it becomes a debt.^ Perhaps the latter falls more properly, in the common law, under the head of the innominate contract. Do ut facias.^ § 371. Before proceeding to the consideration of the differ- ent species of contracts of bailments for hire, it may be proper to state some things which are applicable to them all. Pothier (as well as other foreign jurists, who have treated the subject with systematic accuracy) has remarked that it is a contract which arises from the principles of natural law ; that it is vol- untary and founded in consent ; that it involves mutual and reciprocal obligations ; and that it is for mutual benefit.^ In some respects it bears a strong resemblance to the contract of sale (^emptio-venditio') ; the principal difference between them being, that in cases of sale the owner parts with the whole proprietary interest in the thing ; and in cases of hire the owner parts with it only for a temporary use or purpose.* § 372. From what has been observed, it is obvious that sev- eral ingredients are of the essence of the contract. (1) There should be a thing in esse which may be the subject-matter of the contract. (2) It should be a thing capable of being let. (3) The bailee should have a right to use, enjoy, and possess it, during the period for which it is let. (4) There should be a price for the hire. And (5) there should be a contract possessing a legal obligation between the parties. These are accordingly treated by Pothier as of the essence of a location, or contract of hire.^ (1) The first requires scarcely any comment ; for unless there is a thing in esse, to which the contract can attach, and which necessarily consti- tutes its basis, the parties have acted under a mistake, and ought not to be bound by the bargain. Thus, for instance, if the thing which is the intended subject of the contract has perished, as if a horse, the intended subject of the hire, is dead at the time when the contract is entered into, the con- tract becomes a nullity.^ 1 Jones on Bailm. 102. 2 pgst^ § 377, 8 Pothier, Louage, n. 2; Wood, Civ. Law, B. 3, ch. 5, p. 235, 236; Ayliffe, Pand. B. 4, tit. 7, p. 460; Pothier, Pand. Lib. 19, tit. 2, n. 2. * Pothier, Louage, n. 2-4 ; Jones on Bailm. 86 ; Dig. Lib. 19, tit. 2, L 1,2; Pothier, Pand. Lib. 19, tit. 2, n. 2, 9, 10. 6 Pothier, Louage, n. 6, 7, 9, 22, 27, 32, 42. « Id. n. 7. 328 CONTRACTS OF HIRE. [CH. VI. § 373. (2) As to what things may be let to hire. In the common law, when the bailment of a thing is spoken of, it is confined to personal or movable property ; ^ although, in the Eoman and Continental law, the corresponding expression is equally applicable to real estate or immovable property, and to incorporeal hereditaments. ^ There seems no difficulty, in the common law, in applying the contract of bailment for hire to choses in action and to written securities as well as to goods and chattels. Although the use of the former on hire is probably rare, the carriage of them is a very common business of bailees for hire. Nor is there any intrinsic difficulty in applying the term bailment to land and immovable property. But, wherever land or immovable property is the subject of the contract, it passes under another denomination, and em- braces many different considerations. We never hear of the bailment of houses or farms, although we often hear of the demise, and lease, and renting of houses and lands. § 373 a. (3) The use and enjoyment of the thing by the bailee. The thing must not only be personal or movable prop- erty, but it must be let to the bailee for a certain time and for certain purposes, either expressed or implied ; and there must be a right in the bailee to use the thing, or to have the possession or enjoyment of it for those purposes, during the contemplated period of the bailment.^ It would be prepos- terous to suppose that the bailee would contract to pay a compensation for a thing, from which he could derive no use, benefit, or enjoyment, and which he should hold by the pre- carious tenure of the mere will of the bailor. As to the nature or the time of the use or enjoyment of the thing, it may be expressed, or it may be implied from circumstances.* Whether it is expressed or implied, the same legal result takes 1 Coggs V. Bernard, 2 Ld. Raym. 909, 913; Jones on Bailm. 89, 90; ante, § 51. 2 Pothier, Contrat de Louage, n. 9 ; 1 Domat, B. 1, tit. 4, § 1, art. 4, 9; Id. § 4; Code Civil of France, art. 1713; Ayliffe, Pand. B. 4, tit. 7, p. 464; 1 Bell, Coram, p. 451, 5th edit.; 1 Bell, Coram. § 385, 4th edit. 8 Pothier, Contrat de Louage, n. 22, 23, 27, 31; Pothier, Pand. Lib. 19, tit 2, n 4 ; post, § 395-397. * Pothier, Contrat de Louage, n. 22, 23, 27, 28, 31. CH. VI.] CONTRACTS OP HIRE. 329 place.^ The bailee must not exceed the proper use or enjoy- ment of the thing, either in time, or mode, or extent.^ If he does, he will become responsible for the tortious conversion of the property, and generally for all losses consequent thereon, or subsequent thereto.^ § 374. (4) As to the price or recompense. This, also, is of the essence of the contract, for if no hire is to be paid, it becomes a gratuitous loan.* " Pretium autem constitui opor- tet, nam nulla emptio sine pretio esse potest," is the language of the Institutes in cases of sale ; * and the same rule applies to bailments for hire.® According to the Roman and foreign law, the price must not be merely nominal, but must be in- tended to be a substantive compensation.^ It must be certain and determinate, or be capable of certainty and estimation, in contradistinction to being contingent and conditional in its nature. As, if the contract is to pay such price as A. shall decide, it will be a good contract of hire, if A. fixes the price ; but if A. is dead, or he refuses to name any price, the contract will be void.s But, in cases of this sort, Pothier thinks that it would be more just to interpret the intention of the parties to be, that, at all events, a reasonable compensation should be made ; and if it could not be ascertained in the manner prescribed, that it should be ascertained by other persons. Indeed, in many cases, this would be not only a natural, but almost a necessary, interpretation of the real intention of the parties. He thinks that this interpretation ought especially to be adopted, if, when the person designated to fix the price has refused to do it, or is dead before he has fixed it, the hirer has already been put in possession of the thing hired, or the 1 Ibid. ^ Ibid. 8 Post, § 413; Pothier, Contrat de Louage, n. 22, 2.3; ante, § 232, 233, 2i:l\ post, §396, 412, 413. ■* Pothier, Contrat de Louage, n. 32-35; Just. Inst. Lib. 3, tit. 25; Pothier, Pand. Lib. 19, tit. 2, n. 4^6. 6 Just. Inst. B. 3, tit. 24, § 1. « Pothier, Contrat de Louage, n. 37; De Vente, n. 23-25. ' Ibid.; Pothier, de Vente, n. 16 to 19. 8 Pothier, Contrat de Louage, n. 37 ; Pothier, de Vente, n. 23-25 ; Pothier, Pand. Lib. 19, tit. 2, n. 5 ; Long on Sales, by Rand, p. 5, edit. 1839; {2 Soh. Pers. Prop. 188-195.} 330 CONTEACTS OP HIRE. [CH. VI. time for possessing and using it is so near and pressing, that delay would be injuiious.-* The common law would probably adopt a similar interpretation, and hold the real intention of the parties to be, that the price should be named by the third person, if he could or would ; otherwise, that a reasonable price should be paid for the hire.^ § 375. It is not necessary that a specific price should be expressly agreed on ; for it may be tacitly implied. When the labor is to be performed by an artisan, if no express price is agreed on, he is tacitly presumed to engage for the usual price paid for the like service at the same place, according to the general custom of the trade ; or, which is the same thing, to pay what they are fairly worth there, according to the maxim, " Id certum est, quod certum reddi potest." ^ So, in cases of hiring the use of a thing, the customary price is, in the absence of all positive engagements, presumed to be that which is agreed to be given ; and if no price is fixed by custom, then a reasonable price is to be allowed. § 376. According to the Roman and foreign law, the price ought to be payable in money ; for, if it is not payable in money, but in some other manner, as by a delivery of goods, or by labor and services, or by the hire of another thing, it is not strictly a locatio-conductio, but it passes into another class of contracts, that of innominate contracts.* However, this distinction was not a very important consideration, even in the Roman law ; for the innominate contract was equipollent, and was governed by the same rules and obligations as a loeatio-conductio.^ § 377. Sir William Jones, whose close adherence to the Roman law marks every page of his treatise, has, in one place, confined his definition of letting to hire to cases where a pecuniary compensation is given.^ In another place, he speaks of the contract being for a stipend or price ; ' and he classes ' Pothier, Contrat de Louage, n. 37. 2 See the reasoning of Pothier, Contrat de Louage, n. 37. » Pothier, Contrat de Louage, n. 40; Id. de Vente, n. 23, 26. * Pothier, Contrat de Louage, n. 38; 1 Stair, Inst. B. 1, tit. 15, § 1. 5 Pothier, Contrat de Louage, n. 38; Id. Appx. Contrat de Louage, n. 458, 491; Inst. Lib. 3, tit. 25, § 2; Pothier, Pand. Lib. 19, tit. 2, n. 5. ^ Jones on Bailm. 118. ' Jones on Bailm. 86. CH. VI.] CONTRACTS OP HIRE. 331 all other cases as innominate contracts.^ But there seems no reason for any such distinction in the common law ; since no difference, either in responsibility or in remedy, exists between cases of a pecuniary payment and cases of any other sort of recompense.2 They are all treated indiscriminately as cases of bailment for hire.^ Lord Holt's definition* suggests nothing as to the hire being pecuniary. Sir William Jones himself admits, that a pecuniary recompense is not indispensable, and says : " Although a stipend or reward in money be of the essence of the contract called locatio, yet the same responsi- bility for neglect is justly demanded in any of the innominate contracts, or whenever a valuable consideration of any kind is given or stipulated." ^ He proceeds to illustrate the position in various instances. Thus the innominate contract of the Roman law. Bo ut des, is formed by a reciprocal contract for use. As if A. permits B. to use his pleasure-boat for a day, in consideration that B. will permit him to use his chariot for the same time, this is the case of a double or reciprocal bailment for use on hire.® So, if A. gives a pair of pointers to B., for the use of B.'s hunter during the season, it is a grant of the absolute property on one side, for the temporary bailment of property for use on the other side.'' These cases belong to the class of innominate contracts of the civil law. Do ut des? The same rule applies to the innominate contract, Facio ut facias ; where two persons agree to perform reciprocal works. As if a mason and a carpenter have each respectively undertaken to build an edifice, and they mutually agree that the first shall ' Jones on Bailm. 93; 2 Black. Comm. 444; Halifax, Analysis of Civil Law, 62. ^ Jones on Bailm. 93. ' Mr. Chancellor Kent has adopted the same view of the suhject in the last edition of his Commentaries. He there defines a location of hiring for a reward to he a " bailment, where a compensation is given (not saying pecuniary) for the use of a thing, or for labor and services about it." 2 Kent, Comm. Lect. 40, p. 595, 4th edit. {And see Chamberlin v. Cobb, 32 Iowa, 161; Francis u. Shrader, 67 111. 272; Carpenter v. Branch, 13 Vt. 161.} * Coggs V. Bernard, 2 Ld. Raym. 909, 913. * Jones on Bailm. 93. " Ibid. ' Ibid. « Ibid. 382 CONTRACTS OF HIRE. [CH. VI. finish all the masonry, and the second all the wood- work in their respective buildings, this would be the innominate con- tract, Facio ut facias} A more simple case of the same sort is, where A., a cabinet-maker, agrees to repair B.'s sideboard, if B., who is a carrier, will carry A.'s bureau to Boston. This is a case of a double or reciprocal bailment, operis faciendi. Similar illustrations may be given of the other in- nominate contracts, Do ut facias, and Facio ut des. Thus, if a goldsmith should make a bargain with an architect to give him a quantity of wrought plate for building his house, this is a case of the reciprocal contract. Do ut facias, or Facio ut des? All these, then, being strictly cases of bailments for hire at the common law, and governed by similar obligations, without any of the set forms of remedy known to the Roman law, it seems, at best, but useless to retain distinctions borrowed from that law, which involve no real differences of principle, and may embarrass without instructing us. § 378. (5) As to the legal obligation of the contract. To produce this result it is necesssary, (1) That the bailment should not be prohibited by law ; (2) That it should be be- tween persons competent to contract; and (3) That there should be a free and voluntary consent between the parties. § 379. (1) Certain bailments are prohibited by law, either from their being repugnant to sound morals, or their being against public policy, or their being positively forbidden. A bailment of furniture to be used in a brothel is an example of the first kind ; a bailment of goods for the purpose of supply- ing a public enemy is one of the second kind ; and a bailment of goods for the purpose of smuggling is one of the third kind.^ The case of a locksmith, who should lend tools and instru- ments to thieves, to enable them to open the doors of houses, in order to steal goods therefrom, would seem to be prohib- ited, and void upon all these grounds ; * the act being equally 1 Jones on Bailm. 93. 2 ly^^ " Pothier, Contrat de Louage, n. 24-26. * Pothier, Contrat de Louage, n. 24. jIn most States there are statutes which prohibit, in terms more or less specific, the transaction of secular business on Sunday. It is held, in Fisher V. Kyle, 27 Mich. 454, that taking aprisoner to jail on Sunday under legal CH. VI.] CONTRACTS OF HIRE. 333 against morals, public policy, and law. Pothier has put a question : How far the letting of masks and dresses for mas- querades and balls is a matter of a valid civil contract, seeing that, by the severe discipline of the Catholic church, these amusements are not permitted. He thinks, that, as the use for which these things are hired is not prohibited by the sec- ular law, the bailment will have an obligatory force in the secular forum ; but that in the forum of conscience such a letting to hire is treated as a dishonest traffic, by which the parties ought not to profit ; and, therefore, that in the forum of conscience, in foro conscientice, and, perhaps, in the eccle- siastical courts, the parties ought to be compelled to renounce them, and to devote the profits to purposes of charity.' process is a work of necessity, and not within the Sunday laws. The same may be said of hiring a horse on Sunday to attend a funeral, Home v. Meakin, 115 Mass. 326 ; or even, as it would appear, to make a family visit, Logan v. Mathews, 6 Penn. St. 417. Several late cases support a dis- tinction between the mere breach of a contract of hiring, and wrongful acts, such as causing injury to the thing hired by going beyond the purpose of the bailment; as where one hires ahorse on Sunday to go to a certain place, and by fast driving elsewhere causes the death of the animal. See Fisher V. Kyle, supra; Frost u. Plumb, 40 Conn. Ill; Hallu. Corcoran, 107 Mass. 251; Woodman v. Hubbard, 5 Fost. 67; Stewart v. Davis, 31 Ark. 318; Morton v. Gloster, 46 Me. 520. Contra, Whelden v. Chappel, 8 R. 1. 230 ; Gregg ». Wyman, 4 Cush. 322. Says Carpenter, J., in Frost v. Plumb, 40 Conn. Ill: " We understand the rule to be this: — the plaintiff can- not recover whenever it is necessary for him to prove, as a part of his cause of action, his own illegal contract, or other illegal transaction; but if he can show a complete cause of action, without being obliged to prove his own illegal act, although such illegal act may incidentally appear, and may be important, even as explanatory of other facts in the case, he may recover. It is sufficient if his cause of action is not essentially founded upon something which is illegal. If it is, whatever may be the form of the action, he cannot recover." And see remarks of Gray, J., in Hall v. Corcoran, supra.} ' Pothier, Contrat de Louage, n. 26. { Some of the latest editions of the present work, issued since Judge Story's death, have given a more cor- rect translation of this passage from Pothier ; namely, ' ' Pothier has put a question: How far the letting of masks and dresses for masquerades and balls is a matter of a valid civil contract, seeing that, by the severe maxims of the Gospel, these amusements are not permitted. He thinks that, as the use for which these things are hired is not prohibited by the secular law, the bailment will have an obligatory force in the secular forum; but 334 CONTEACTS OF HIKE. [CH. VI. § 380. (2) The parties must be competent to contract. In this respect, the general principles of the common law, as to the incapacity of contracting parties, apply to this, in common with other contracts.^ Thus, married women, idiots, lunatics, and persons non compotes mentis, by reason of age, infirmity, or sickness, are unable to contract. Minors, also, are incapable of contracting, unless the contract is clearly for their benefit. Where a minor carries on trade, work done for him in the course of his trade is not, ordinarily, the subject of an action against him ; for the law will not suffer him to engage in trade.^ And the party is not permitted, by bringing an action in tort against a minor, which is founded on a contract with him, to charge him, if he would not otherwise be liable. Therefore, if a minor hires a horse, and rides him immode- rately, he is not responsible in an action laying the grievance in tort, as he would not be, if it were an action of assumpsit brought upon the coutract.^ It would, however, be other- wise, if the minor should ride the horse beyond the place agreed on ; for in such a case he would exceed the limits of his contract, and be guilty of a tort, for which trover would lie.* § 381. (3) There must be a free and voluntary consent. But upon this we need not enlarge. If there is any substan- tial mistake between the parties, as to the thing to be hired, or the price to be paid, or as to the use to be had of it, or the act to be done upon it ; or if there is any fraud or imposition, or any concealment, injurious to either party ; in all such cases, the contract has not any legal obligation.^ § 382. The next consideration is, as to the rights, duties, that in the forum of conscience such a letting to hire must he treated as a dishonest traffic, by which the parties ought not to profit ; and that the church cannot be expected to absolve them, unless they promise to renounce the traffic, and to devote the profits to purposes of charity."] 1 Pothier, Contrat de Louage, n. 42, 46. 2 Dilk V. Keighley, 2 Esp. 480; Green ». Greenbank, 2 Marsh. 485. » Jennings v. Eundall, 8 Term R. 335. See Homer v. Thwing, 3 Pick. 492; post, § 396, 413. <> Homer v. Thwing, 3 Pick. 492; Wheelock ». Wheelwright, 5 Mass. 104; post, § 396, 413. 6 Pothier, Contrat de Louage, n. 48 to 52; Pothier, Pand. Lib. 19, tit. 2, n. 7. CH. VI.] HIRE OF THINGS. 335 and obligations of the parties, resulting from the contract of bailment for hire. And here the subject may, for convenience, be naturally divided into several classes. (1) The hire of things ; (2) The hire of labor and services in regard to things ; (3) The hire of the custody of things ; (4) The hire of the carriage of things ; (5) Excepted and special cases. Of each of these we shall treat in its order. ART. I. HIRE OE THIKGS. [§ 383. Obligations and Rights jof the Letter} in cases of Hire of Things. 884, 384 o. Delivery of the Thing. 385. Obstruction to Use. 386. fDepriving the Hirer of the Thing.} 387. Warranty of Title. 388. Repair of thing hired. 389. Extraordinary Expenses. 390. 390 a. Warranty against Defects. 391. 391 a. Other Obligations jon the part of the Letter ; disclosing Faults, &c. 391 6. The price of thing hired, how ascertained. 391 c. Who is to pay extraordinary expenses incurred. 392. The Common Law on this subject. ^ 393. Hirer to maintain Animals hired. 394. Rights and Duties of Hirer. - 395. Right to Use. 396. Tortious Use. 397. Duties, in general. 398. What Degree of Diligence required of Hirer. 399. j Hirer responsible for ordinary Negligence.} 400. Hirer responsible for Negligence of his Servants. 401. The rule of the Civil Law more lax. 402. Hu-ernot responsible for wilful Acts of his Servants. 403. Nor for Acts of Servants not in his Employ. 403 a. Who are to be deemed the Employers, in cases of coaches hired. 404. In what cases the Servants also are responsible. 405. Duty of Hirer in respect to Animals hired. 406. Whether Theft is presumptive of Negligence. 407. Theft by Servants of Hirer. 408. Hirer not responsible for Losses not occasioned by Negligence. 409. Distinction between Cause and Occasion of Loss. 410. Burden of Proof in cases of Hire of Things. 411. By the Civil and Foreign Law. 412. Losses by Robbery. 413. Duty of Hirer in the Use of the thing hired. 336 HIEE OF THINGS. [CH. VI. § 413 a-413 d. Effect of Misconduct or Negligence of Hirer. 414, 415 Restitution of thing hired. 415 a. Cases of Irregular Hire. Duties of Hirer. 416, {Recompense) to tlie Letter. 417, 417 a. When Part only of Hire due. Rule of Foreign Law. 418, 419. How Contract of Hire of Things is dissolved. 420. The Common Law on the same subject.] § 383. First. In cases of Locatio Rei, or the hiring of a thing. What are the rights and duties of the letter to hire (locator rei}. According to the foreign and Roman law, the letter, in virtue of the contract, impliedly engages to allow to the hirer the full use and enjoyment of the thing hired, and to fulfil all his own engagements and trusts in respect to it, according to the original intention of the parties : " Prsestare, frui licere, uti licere." ^ This implies an obligation 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 to 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. These are the main obligations deduced by Pothier from the nature of the contract ; and they seem generally founded in unexceptionable reasoning.^ § 384. (1) The delivery of the thing, being essential to the bailment, must be made to the hirer, unless otherwise agreed. It should be with its proper accompaniments ; as, if a horse is let to ride, it should also be with a suitable saddle and bridle ; and the delivery should be at the expense of the letter, and at the place where the thing is, and at the time specified.^ However, these things are generally regulated by 1 Po>!t, § 387; Pothier, Contrat de Louage, n. 53, 54. 2 Pothier, Contrat de Louage, n. .53 ; Id. u. 277; 1 Domat, B. 1, tit. 4, § 3, art. 1; Pothier, Pand. Lib. 19, tit. 2, p. 2, n. 42 to 73; Code Civil of France, art. 1718; Heinec. Pand. Lib. 19, tit. 2, § 324; 1 Bell, Comm. p. 452, 5th edit. ; 1 Bell, Comm. § 385 to 389, 4th edit. ; 1 Stair, Inst. B. 1, tit. 15, § 6. 2 Pothier, Contrat de Louage, n. 54 to 58. CH. VI.] HIRE OP THINGS. 337 the customs and usages of business at the place where the hiring takes effect, which are thus silently adopted into the contract. " In contractibus tacite veniunt ea, quse sunt moris et consuetudinis." ^ § 384 a. In cases of non-delivery of the thing by the letter, whether it arises from his mere refusal, or from his subsequent sale or transfer thereof to another person, or from his having stipulated for the delivery of a thing, of which he is not the owner, and over which he has not any control, a right of ac- tion accrues to the hirer.^ But by the French law, if the non- delivery is prevented by inevitable casualty, or superior force, as if it perishes, no such action lies ; for in that law the rule is : " Impossibiliutn nulla obligatio est." ^ But in all these cases the hirer may, if he chooses, treat the contract as re- scinded ; and if he has paid any consideration therefor, he may recover it back.* On the other hand, if the letter offers to deliver the thing in an injured or broken or altered state, from what it was at the time of the hiring, the hirer is not bound to receive it ; but he is entitled to insist upon rescind- ing the contract.^ And in such a case, it will make no differ- ence whether the injury or deterioration was by inevitable accident, or by any other cause.® § 385. (2) The refraining from every obstruction of the hirer in the use of the thing, or in performing his own engage- ments respecting it. This results from the first principles of justice.'' The only point of a practical nature worth consid- eration is, what amounts to an obstruction. If a chattel is let, the resumption of the possession by the letter is a clear case of violation of duty. But whenever the letter is impliedly bound to keep it in repair during the time of the bailment, he may for a temporary purpose of this sort, if necessary, resume 1 Pothier, Contrat de Louage, n. 57, 58; 1 Domat, B. 1, tit. 4, § 3, art. 1; Dig. Lib. 19, tit. 2, 1. 15, § 1; Code Civil of France, art. 1720. 2 Pothier, Contrat de Louage, n. 64, 65, 66, 71. 8 Pothier, Contrat de Louage, n. 65, 73. * Pothier, Contrat de Louage, n. 67, 73, 74. 6 Pothier, Contrat de Louage, n. 74. 6 Ibid. ' Pothier, Contrat de Louage, n. 75 to 105; 2 Kent, Comm. Leot. 40, p. 586, 4th edit. 22 338 HIKE OF THIKGS. [CH. TI. the possession. Thus, if a coach is let for a month, and it requires repairs, the owner may take possession of it for such a time as is necessary to complete the repairs ; but he must then return it.^ § 386. (3) The like remark applies to the doing of any act, which will deprive the hirer of the thing. As, if the letter sells the thing bailed, or suffers it to be rightfully at- tached, so that the hirer is thereby deprived of the use of it. In such cases, there is a clear violation of his implied obli- gation. ^ § 387. (4) The implied warranty of the title and right of possession to the hirer. The rule here is : " Ut praestet con- ductori frui licere, uti licere." ^ This of course applies only against the legal claims of third persons to disturb the en- joyment and use of the thing ; for tortious acts on their part furnish no just foundation in our law for a remedy over against the letter; much less do torts occasioned by the default of the hirer himself. For the wrongful acts of a third person, the hirer has a remedy against him ; * and, of course, for his own wrongful acts he ought to have no remedy whatsoever.^ § 388. (5) The obligation of the letter to keep the thing in suitable order and repair for the purposes of the bailment.^ This is considered by Pothier as an obligation arising by operation of law from the fact, that the enjoyment or use, 1 Pothier, Contrat de Louage, n. 77, 106; Dig. Lib. 19, tit. 2, n. 15, 25; 1 Domat, B. 1, tit. 4, § 3, art. 1, 7; Code Ciyil of France, art. 1719, 1725. 2 Pothier, Contrat de Louage, n. 86, 87; 1 Domat, B. 1, tit. 4, § 3, art. 4; Dig. Lib. 19, tit. 2, 1. 25; 1 Bell, Comm. p. 452, 5th edit.; 1 Bell, Comm. § 385 to 389, 4th edit. {See Erwin v. Arthur, 61 Mo. 386.} • Ante, § 383; Pothier, Contrat de Louage, n. 53, 54, 83. « Pothier, Contrat de Louage, n. 81 to 89; 1 Domat, B. 1, tit. 4, § 3, art. 2; Dig. Lib. 19, tit. 2, 1. 9; Code Civil of France, art. 1719, 1725, 1726, 1727. s Ante, § 94, 150, 152, 280, 352; post, § 394. « Pothier, Contrat de Louage, n. 129, 130; 1 Domat, B. 1, tit. 4, § 4, art. 1, 6, 7 ; Pothier, Pand. Lib. 17, tit. 2; 1 Bell, Comm. § 388, 4th edit. ; 1 Bell, Comm. p. 453, 5th edit. ; 2 Kent, Comm. Lect. 40, p. 586, 4th edit. Code Civil of France, art. 1719, 17i20, is to the same effect; and so is the Code of Louisiana of 1825, art. 2662-2664 ; [Harrington v. Snyder, 3 Barb. 380.] CH. VI.J HIRE OF THINGS. 339 contemplated by the contract, cannot otherwise be obtained. Thus, if a loom is let to hire for a number of years, the letter is bound to keep it in suitable repair during the whole period, tinless the necessity of repairs arises from the fault of the hirer.i But however correct this may be as a general princi- ple, it is affected by all the contrary implications which may arise from the usages of trade, and the customs of the place, as well as from any positive compact between the parties.^ Thus, says Pothier, when a horse is let to one on hire, to be kept by him for a certain period, the hirer is understood to be bound, according to the common usage, to pay for his shoeing during that time.^ But it is otherwise, if a person lets his coach and horses to another for a journey, to be driven by the servants of the letter ; for, in such a case, the horses are under the care of the servants, and the letter is to pay for their shoeing.* Pothier's language, even in the former case, ought probably to be understood with this qualification, that the horse was sufficiently well shod for the journey at the commencement thereof; and that, by accident or unexpected circumstances, the shoes become insufficient, or are lost or knocked ofP in the course of the journey. § 389. In respect, however, to extraordinary expenses necessarily incurred upon the thing, the foreign law obliges the letter to pay them to the hirer." Thus, if a hired horse is taken sick on the journey agreed on, without the fault of the hirer, the expenses which are bond fide incurred for his medi- cines, nourishment, and cure, during his sickness, are to be borne by the letter, whether the horse recovers or dies with the malady.^ But the letter is never liable for expenses which are not necessarily incurred, although they may be 1 Pothier, Contrat de Louage, n. 106, 129, 130, 219, 325 ;-l Domat, B. 1, tit. 4, § 3, art. 1, 7; Id. § 2, art. 9, 14; Dig. Lib. 19, tit. 2, 1. 25, § 2; Code Civil of France, art. 1719, 1724, 1725. 2 Pothier, Contrat de Louage, n. 107, 132. 8 Pothier, Contrat de Louage, n. 107. * Pothier, Contrat de Louage, n. 107, 129, 196 ; post, § 403. 6 2 Kent, Comm. Lect. 40, p. 586, 4th edit. See Readings. Menham, 1 Mood. & Rob. 234. 6 Pothier, Contrat de Louage, n. 129; 1 Stair, Inst. B. 1, tit. 15, § 6. S40 HIRE OP THINGS. [CH. VI. useful.! Mr. Bell says, that in the Scottish law, to ground a claim for expenses, it is necessary to show, (1) that the occa- sion of the expense was not ascribable to the hirer ; (2) that the expense was indispensably necessary ; (3) that the letter had due notice of the facts from the hirer, as soon as circum- stances permitted.^ Pothier considers that notice, though ordinarily proper, will not, if omitted to be given, exclude the hirer from the right to recover his expenses, if the disease was certain, and continued, and was without the fault of the hirer, and if the expenses were indispensable.^ § 390. (6) The obligation of warranty by the letter against faults and defects, which prevent the due enjoyment or use of the thing. In respect to this point, the rule of the foreign law is, that the warranty extends to all faults and defects, which go to the total prevention of the use or enjoyment of the thing ; but not to those which render the use or enjoy- ment less convenient.* Thus, if a horse is let, which is wholly unfit to perform the journey, from his vices or defects, as from disease or blindness, it goes to the very foundation of the bailment, and the warranty attaches upon it.^ It will be otherwise, if he has some slight vices or defects only, such as being a little restive, or being a little inclined to start, or being not quite sure-footed ; these vices and defects do not ordinarily come within the reach of the warranty.^ However, if these vices and defects are of a much higher degree, as if the horse be very restive, or very apt to start, or to run away, or be constantly stumbling, so that the owner knows that there is great danger and risk in riding him, and the owner conceals 1 Pothier, Coutrat de Louage, n. 131. 2 1 Bell, Comm. p. 453, Sth edit. ; 1 Bell, Comm. § 388, 4th edit. ; Ersk. Inst. B. 3, tit. 1, § 23. ' Pothier, Contrat de Louage, n. 129. * Pothier, Contrat de Louage, n. 110; Code Civil of France, art. 1721; Code of Louisiana (182.5), art. 2665. ' Pothier, Contrat de Louage, n. 110, 114; Code Civil of France, art. 1721. [See Hadley v. Cross, 34 Vt. 586;] {Fowler v. Lock, L. R. 7 C. P. 272; Home v. Meakin, 115 Mass. 326; Jones v. Page, 15 L. T. n. s. 619, Ex.} 6 Pothier, Contrat de Louage, n. 110, 114; Dig. Lib. 19, tit. 2, 1. 19, 45; Code Civil of France, art. 1721. CH. VI. j HIRE OF THINGS. 341 them from the hirer, he will, as we shall presently see, be responsible for all injuries to the hirer, either on account of his warranty, or of his fraud.i The warranty extends not only to vices and defects which are known to the letter, but also to those which are unknown ; to those which exist at the time of the contract, and to those which supervene afterwards ; to those which exist in the accessory, as well as to those which exist in the principal.^ Where the vice or defect is known to the letter, he is liable for all damages on account of the deceit. But where it is unknown to him, it goes simply in discharge of the contract, so that he is not entitled to the hire.^ § 390 a. Pothier, under this head, puts the case of an artisan, who lets things to hire in the course of his trade or business ; and in respect to which he holds him bound to be informed of all the defects of the things let, and therefore responsible for those defects, whether in point of fact he knew them or not. Thus, says he, if I have hired of a cooper vessels to put my wine in at the vintage, and the vessels are made of bad wood, the cooper will be liable to all losses sustained by me by the defects of those vessels ; and his ignorance of the defects will furnish no excuse ; for his trade required him to examine into the wood which he used, and to use that which was of good quality. In short, he warrants reasonable skill. " Imperitia culpas annumeratur." * Such also is the Roman law. " Si quis dolia vitiosa ignarus locaveret, deinde vinum effluxerit, tenebitur in id, quod interest ; nee ignorantia ejus erit excu- sata." ^ So, Pothier holds that if he was not a cooper, but a mere letter, or dealer, or trader in such articles, he would in like manner be responsible for all such losses, because he ought to understand the nature and qualities of the things in which he deals, and which he lets to hire, and he has no business to intermeddle with what he does not understand.^ 1 Post, § 391 a; Pothier, Contrat de Louage, n. 110, 114, 122. 2 Pothier, Contrat de Louage, n. Ill, 112, 113, 115 ; Code Civil of France, art. 1719, 1721. 3 Pothier, Contrat de Louage, n. 118-120; 1 Domat, B. 1, tit. 4, § 3, art. 8, 10. * Pothier, Contrat de Louage, n. 119. 6 Dig. Lib. 19, tit. 2, 1. 19, § 1; Pothier, Pand. Lib. 19, tit. 2, ii. 63 ; Id. n. 35. ° Pothier, Contrat de Louage, n. 119; Id. 110. 342 HIRE OP THINGS. [CH. VI. § 391. Besides these, there are other implied obligations in the Roman law. Such are the duties of disclosing the faults of the thing hired, and practising no artful concealment ; of charging only a reasonable price therefor; and of indemnifying the hirer for all expenses, which are properly payable by the letter.i These, although enlarged upon by Pothier, seem to require but a brief notice, as they are almost self-evident. § 391 a. In the first place, as to the disclosure of the faults of the thing hired. This obligation supposes that the non- disclosure or concealment of the faults tends materially to diminish the proper use of the thing hired, or to expose the hirer to uncommon perils, by which he may be essentially injured. Thus, for example, if I hire a horse of the owner, which he knows is very skittish and timid, and very apt to start or run away, so that it is very dangerous to ride him, and he does not inform me of these defects, but studiously conceals them, and I am thereby thrown from the horse, and injured, the owner will be responsible to me for the damages.^ It is not, indeed, perhaps, quite clear, whether Pothier main- tains this duty to be a legal duty in all cases, or only in foro conscientice ; ^ but it seems clear upon general principles, that the owner would be responsible at law for all the damages. § 391 I. In the next place, as to the price. If no fixed price is agreed on, then a reasonable price is to be allowed for the hire, which reasonable price is usually ascertained by the cus- tomary price at the place where the contract takes effect. If there is a fixed price agreed on, that is the price which the 1 Pothier, Contrat de Louage, ii. 106, 109, 121, 129, 130 ; 1 Domat, B. 1, tit 4, § 4, art. 1, 6, 7, 10; Dig. Lib. 19, tit. 2, 1. 15, § 1; Id. 1. 55, § 1 ; Pothier, Pand. Lib. 17, tit. 2, n. 42, 61. 2 Pothier, Contrat de Louage, n. 122, 124. [See Hadley v. Cross, 31 Vt. 586.] {The geueral rule of the common law appears to be that those ■who let horses and carriages warrant, by implication, that the horses and carriages are reasonably fit for the purpose of the contract ; but that for injuries caused by a hidden defect, which could not upon careful examina- tion be discovered, they are not answerable. See Fowler o. Look, L. R. 7 C. P. 272, with English authorities cited /)a.ssimy Home v. Meakin, 115 Mass. 326; Jones v. Page, 15 L. T. n. s. 619, Ex. ; Hadley v. Cross, 34 Vt. 586.} 3 Pothier, Contrat de Louage, n. 122; Id. 110, 114. CH. TI.J HIRE OP THINGS. 343 hirer ought to pay, unless it be of such an extortionate char- acter, that it properly gives rise to the imputation of fraud, or imposition, or gross and unconscionable advantage taken of ■the hirer's situation. The most that, in common Justice, or inforo eonscienttce, can be demanded, is apex justi pretii, as Pothier terms it ; but the law requires other circumstances to justify a reduction, such as fraud or imposition, or gross and unconscionable advantage taken of the party .^ § 391 c. In the next place, as to the duty of the letter to reimburse all the necessary and extraordinary expenses in- curred by the borrower about the thing hired. This point has been already sufficiently considered.^ It seems hardly neces- sary to say, that, if these expenses are properly chargeable to the letter, his duty to pay them is complete and perfect at law. § 392. Such are some of the more important obligations recognized in the Roman and foreign law on the part of the letter. It is difficult to say (reasonable as they are in a gen- eral sense), what is the exact extent to which they are recog- nized in the common law. In some respects the common law certainly differs, and in others it probably agrees. The Roman law, and the foreign law, treat leases of real estate as bail- ments on hire, and, indeed, emphatically as such bailments ; ^ and the owner or lessor, and not the tenant, is, in the absence of all other stipulations or customs to the contrary, bound to keep the estate in repair.* The common law is different in such cases ; for the landlord, without an express agreement, is not bound to repair ; and the tenant may and ought to make 1 Pothier, Contrat de Louage, n. 125-127 ; 1 Story on Eq. Jurisp. § 244- 246. 2 Ante, § 388, 389; 1 Domat, B. 1, tit. 4, § 4, art. 1, 6, 7; Pothier- Contrat de Louage, n. 106, 129, 130, 202; 1 Bell, Comm. § 3S8, 4th edit. , 1 Bell, Comm. p. 453, 5th edit. ; 2 Kent, Comm. Lect. 40, p. 586, 4th edit. ' Jones on Bailm. 90. 4 Pothier, Contrat de Louage, n. 106, 129, 130, 133, 219; 1 Domat, B. 1, tit. 4, § 4, art. 1, 6, 7; Code Civil of France, art. 1720 to 1740; Code of Louisiana (1825), art. 2664 to 2680. There are certain slight repairs (legeres reparations) , which in Prance are to he borne hy the hirer. They are called Locatives. Pothier, Contrat de Louage, n. 106, 129, 130, 219, 220. 344 HIEB OF THINGS. [CH. VI. the necessary repairs at his own expense.^ Lord Mansfield,^ on one occasion, said, that by the common law he who has the use of a thing ought to repair it. It is true, that the remark was applied to the case of a grant of a way which was out of repair ; but the remark was general. Lord Hale is also re- ported to have said, that if plate is let, and it is worn out in the service, the hirer is not liable to any action, unless he has been guilty of some default.^ It has also been decided, that ten- ants are bound to repair fences during their occupancy.* In the absence of any direct authority upon the other points above stated from the foreign law, they must be propounded as still open to controversy in our law. Cases may easily be put of a practical nature, and of frequent recurrence. Sup- pose a coach is hired for a journe}^ and it is injured, and re- quires repairs, without any fault of the hirer, during the journey ; who is to bear the expense of these repairs ? If the repairs are very great, and are permanently beneficial to the owner, are they to be borne exclusively by the owner, or by the hirer, or jointly by both in proportion to the benefit received by each ? A tenant is not obliged to make any per- manent or general repairs.^ Is a like rule applicable to chat- tels ? Suppose a ship, let to hire for a voyage, shall from accidents require repairs, and the contract contains no clause relative to repairs ; are they to be paid for ultimately by the hirer, or by the owner ? Is there a difference between tem- porary and permanent repairs ; between slight and beneficial repairs ; between such as merely make good the old work, and such as increase the value of the ship ? These questions are put; but they cannot be satisfactorily answered, until they shall have undergone a judicial determination.^ 1 Pomfreti). Rioroft, 1 Saund. 321, 322, Williams's note ; Id. 323, n. 7 ; Countess of Shrewsbury's case, 5 Rep. li ; Ferguson v. , 2 Esp. 590 ; Horsefall v. Mather, Holt, N. P. 7; Walton v. AVaterhouse, 2 Saund. 422, Williams's note, 2 ; Fowler v. Bott, 6 Mass. 63. 2 Taylor v. Whitehead, 2 Doug. 745, 748. = Pomfret v. Rioroft, 1 Saund. 321, 323 and n. 7. * Cheetham v. Hampson, 4 Term R. 318. 6 Ferguson v. , 2 Esp. 590; Horsefall v. Mather, Holt, N. P. 7. « See 2 Kent, Comm. Leot. 40, p. 586, 4th edit. ; Reading v. Menham, 1 Mood. & Rob. 234. CH. VI.J HIRE OF THIKGS. 345 § 393. In respect to animals hired, the common understand- ing is, that the hirer is bound to provide them with suitable food during the time of such hiring, unless there is some agreement to the contrary.^ This also is the rule of the French law ; ^ and probably also of the other nations which derive their jurisprudence from the Roman law. § 394. As to the rights and duties of the hirer. First. As to his rights. By the Roman law the hirer acquired the right of possession only of the thing for the particular period or purpose stipulated; but he acquired no property in the thing. " Non solet locatio dominium mu tare," says Ulpian, in the Digest.^ This also is the rule of the Scottish law ; and prob- ably also of the Continental nations of Europe, who derive their jurisprudence from the Roman law.* By the common law, in virtue of the bailment, the hirer acquires a special property in the thing during the continuance of the contract, and for the purposes expressed or implied by it.^ Hence he may maintain an action for any tortious dispossession of it, or any injury to it, during the existence of his right.^ But since, in such case, the owner has also a general property, unless he has, by virtue of his agreement, parted with it for a term, 1 Handford v. Palmer, 2 Brod. & Bing. 359; s. c. 5 Moore, 74; ante, § 388, 389 ; post, 399. 2 Pothier, Contrat de Louage, n. 107, 129. 8 Dig. Lib. 19, tit. 2, 1. 39 ; Pothier, Pand. Lib. 19, tit. 2, n. 10. * 1 Bell, Comm. § 198, 4th edit. ; 1 Bell, Comm. p. 255, 5th edit, and note. Ibid.; Bynk. Obs. Jurisp. Rom. Lib. 8, Cap. 4, and Cujaccii Oper. Lib. 8, Obs. Cap. 39. See Code Civil of France, art. 1709; Code of Louisiana (1825), art. 2644; Pothier, Contrat de Louage, n. 3, 4, 5, 22. * Jones on Bailm. 85, 86 ; Bac. Abr. Bailment, C. ; Lee ». Atkinson, Yelv. 172 ; 2 Black. Comm. 395, 396 ; 2 Kent, Comm. Lect. 40, p. 586, 4th edit. ; 2 Saund. 47, and note by Williams ; Eaton v. Lynde, 15 Mass. 242; post, § 422 a. « Croft V. Alison, 4 Barn. & Aid. 590; 2 Saund. 47; Id. 48 e; Bac. Abr. Trespass, C. ; Id. Trover, C; Ludden v. Leavitt, 9 Mass. 104; Warren v. Leland, Id. 265 ; Hall v. Pickard, 3 Camp. 187 ; ante, § 93 to 95, 150, 152, 280; NicoUs v. Bastard, 2 Cromp., Mees. & Rose. 659, 660. [And on the same principle an auctioneer who, as agent of the owner, sells and delivers goods on a condition which is not complied with, may maintain replevin therefor against the purchaser. Tyler v. Freeman, 3 Cush. 261.] 346 HIRE OF THINGS. [CH. VI. he also ma}' maintain a like suit against the stranger.^ But in such a case, a recovery by either, it seems, will bar, or at least may bar, the action of the other.^ § 395. The hirer also acquires the right, and the exclusive right, to the use of the thing during the time of the bailment ; and the owner has no right to disturb him in the lawful en- joyment of it during the time of the user.^ And if, during that time, the thing is redelivered to the owner for a tempo- ' Bae. Abridg. Trespass, C; Id. Trover, C. ; 2 Black. Comm. 396; Gordon v. Harper, 7 Term R. 9; Pain v. Whittaker, 1 R. & Mood. 99; 2 Saund. 47, notes by Williams, &c.; 2 Black. Comm. 396; ante, § 9i, 95, 150, 152, 280; [Lacoste v. Pipkin, 13 Sm. & Marsh. 589;] Nicolls v. Bas- tard, 2 Cromp., Mees. & Rose. 659. ' Bac. Abr. Trespass, C. ; Id. Trover, C; Flewellin «. Rave, 1 Bulst. 69; Rooth v. Wilson, 1 Barn. & Aid. 59; 2 Saund. 47 and note; ante, § 94, 280; Nicolls v. Bastard, 2 Cromp., Mees. & Rose. 659, 660. {The right of a hirer in possession under an unexpired term to sue third parties in his own name for taking the chattel away, or for damages suffered in respect of right to enjoy its use, has been frequently recognized. See Bliss V. Schaub, 48 Barb. 339 ; Woodman v. Nottingham, 49 N. li. 387; Rindge V. Colerain, 11 Gray, 158 ; Hare v. Fuller, 7 Ala. 717; McGill v. Monette, 37 Ala. 49 ; Hopper v. Miller, 76 N. C. 402. The same right has been recognized in admiralty in cases of collision. The Minna, L. R. 2 Ad. & Ec. 97. And unless the bailee has done something inconsistent with the hire, so as to justify the bailor in treating the bailment as ended at once, it would appear that the letter cannot interpose by suing the injuring party himself. See Upham, J. , in Drake u. Redington, 9 N. H. 246 ; Clarke v. Poozer, 2 M'MuU. 434 ; Swift v. Moseley, 10 Vt. 208; Mears u. London, &c. R. R. Co., 11 C. B. n. s. 850, 854. But as to a permanent injury to the thing, see Mears v. London, &c. R. R. Co., 11 C. B. n. s. 850. Damages as to the hirer, perhaps, might be mitigated with re- spect to the permanent right of an owner in cases of this sort. Eldridge V. Adams, 54 Barb. 417. And wherever the bailment has ended, or the bailor has an immediate right to terminate it and resume his chattel, he may sue a stranger by virtue of such termination. Drake v. Redington, 9 N. H. 243; Hurd v. West, 7 Cow. 752; Halyard v. Dechelman, 29 Mo. 459 ; Howard r. Farr, 18 N. H. 457 ; Clarke v. Poozer, 2 M'MuU. 434 ; Swift V. Moseley, 10 Vt. 208. ) 8 Pothier, Contrat de Louage, n. 75, 77, 106; [Hickok u. Buck, 22 Vt. 149. Nor can a creditor of the bailor, (while the term of hire con- tinues, ) attach the property and take it from the custody of the bailee. Hartford v. Jackson, 11 N. H. 145.] CH. YI.J HIRE OP THINGS. 347 raiy purpose only, he is bound to deliver it back afterwards to the hirer.^ § 396. But the question may be asked, whether the hirer acquires such a right to the use of the thing, during the time of the bailment, that the owner is bound to abstain from in- terfering with his enjoyment of it during that time, although the hirer should misuse it, or abuse or injure it, or otherwise violate his own obligations. As to this, it seems that the owner cannot justify a seizure of the thing by force from the personal possession of the hirer, whatever may be his right to retake it, if he can peaceably, wherever he can find it, under other circumstances. Thus, for example, if a horse is let to hire for two days for a stipulated journey, and the hirer during that period should wrongfully use the horse for another jour- ney, and should be found on such improper journey, the owner cannot justify seizing the horse and dragging the hirer off from the horse, while he is riding him.^ The reason assigned is, that, for the two days, the hirer has a special property against all the world ; and at all events, the wrong is to be punished by an action on the case, and not by a reseizure by force and violence from the person of the hirer.^ But such a misuser would seem to amount to a virtual determination of the bailment, and thus to destroy the hirer's special property therein ; so that there would not seem to be any sound objec- tion to the owner's retaking the horse, if he could peaceably, and without any personal violence.* At all events, it is clear (as we shall presently see) that in such a case the owner may maintain trover against the hirer therefor.^ 1 Roberts v. Wyatt, 2 Taunt. 268. See Pothier, Contrat de Louage, n. 59, 60, 61, 64 to 74; ante, § 373 a. " Lee V. Atkinson, Yelv. 172; s. c. 1 Brownl. & G. 217. See Pothier, Contrat de Louage, n. 66 to 70. 8 Ibid. * [See Trotter v. McCall, 26 Miss. 413.] 5 Willsinson v. King, 2 Camp. 335; Loeschman v. Machin, 2 Stark. 311; [McLauchlin v. Lomas, 3 Strobh. 85;] Paley on Agency, 78-80, by Lloyd, and Powell v. Sadler, cited Id. 80, note (e) ; Youl v. Harbottle, Peake, 49 ; 2 Saund. 47 f , and notes of Williams and Patterson. See also Anon., 2 Salk. 655; ante, § 232, 233, 241 ; post, § 413; Rotch v. Hawes, 12 Pick. 136; Homer v. Thwing, 3 Pick. 492 ; [Cooper v. Willomatt, 1 C. B. 672; Lucas v. Trumbull, 15 Gray, 306.] As to what acts of misconduct 348 HIRE OF THINGS. [CH. VI. § 397. In respect to the duties of the hirer. These are very succinctly stated by Domat. The engagements, says he, of the person who takes any thing to hire, 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 restore it at the time appointed ; to pay the price or hire ; and, in general, to observe whatever is pre- scribed by the contract, or by law, or by custom.^ § 398. In the first place, let us consider what is the degree of care or diligence to be employed by the hirer of the thing generally ; for the exceptions to the rule will require a sepa- rate consideration. And here the degree of care exacted by the Roman law has been matter of some disputation. The language of the Digest is : " Contractus quidam dolum malum duntaxat recipiunt ; quidam et dolum et culpam ; dolum tan- tum, depositum et precarium ; dolum et culpam mandatum, commodatum, venditum, pignori acceptum, locatum, item dotis datio, tutela, negotia gesta ; in his quidem et diligentiam." ^ And again : " Sed ubi utriusque utilitas vertitur, ut in empto, ut in locato, ut in dote, ut in pignore, ut in societate, et dolus et culpa prsestatur." ^ These passages point only to the rule, that the hirer is liable, not only for fraud, but for negligence. The degree of negligence is not stated. In the Institutes,* it is said : " Ab eo (the hirer) custodia talis desideratur, qualem diligentissimus paterfamilias suis rebus adhibet." The ques tion is, in what sense the word diligentissimus is here used. by a bailee will amount to a conversion or not of the property bailed, see the case of Fouldes v. Willoughby, 8 Mees. & Welsh. 540. {See also Setzar v. Butler, 5 Ired. 212 ; Dunham v. Lee, 24 Vt. 432. The inclinar tion of late cases appears to be to make the bailee liable to the bailor in damages for whatever injury may have been occasioned to the thing hired, in case he departs from the purpose of the bailment. Lucas v. Trumbull, 15 Gray, 306 ; Fisher «. Kyle, 27 Mich. 454 ; Cullen v. Lord, 39 Iowa, 802 ; Wentworth v. McDuffle, 48 N. H. 402; Stewart u. Davis, 31 Ark. 318; Laneu. Cameron, 38 Wis. 603; Buchanan u. Smith, 17 N. Y. Supr. 474. j 1 1 Domat, B. 1, tit. 4, § 2, art. 1 ; Pothier, Contrat de Louage, n. 133, 188 to 200 ; Pothier, Pand. Lib. 19, tit. 2, n. 38. 2 Dig. Lib. 50, tit. 17, 1. 23. 8 Dig. Lib. 13, tit. 6, 1. 5, § 2; Cod. Lib. 4, tit. 65, 1. 28; Pothier, Pand. Lib. 13, tit. 6, n. 12. * Just. Inst. Lib. 3, tit. 25, § 5. CH. VI.] HIRE OF THINGS. 349 Does it signify a diligent father of a family, or a very diligent father of a family ; or, in other words, does it import ordi- nary, or extraordinarj', diligen^^.? ^eineccius seems to con- sider the hirer liable, not only for^fraud, but for ordinary negligence, as well as for gross negligence : " Culpam latam et levem " is his language.^ Sir William Jones maintains, with great force and ability, that the word diligentisdmus, in the text, imports no more than ordinarily diligent.^ Pothier adopts the same interpretation.^ Lord Holt, obviously found- , , ing himself upon Bracton,* supposed that it imports very dili- gent. And, accordingly, he held, that, " at the common law, a hirer was bound to very great diligence." " If," said he, " goods are let out for a reward, the hirer is bound to the utmost diligence ; such as the most diligent father of a family uses." ^ And in Buller's Nisi Prius,^ it is laid down, that the hirer is to take all imaginable care. Sir William Jones, on the contrary, contends, that the case, being one of mutual benefit, the hirer is bound only for ordinary diligence, and of course is responsible only for ordinary negligence.'^ And his opinion appears to be now settled, upon principle, to be the true exposition of the common law.^ The rule laid down by Pothier is in exact conformity to that of the common law. He holds, that the hirer is bound only for ordinary diligence, and is liable only for ordinary negligence Qfaute leg ere). ^ He ought, therefore, to use the thing, and to take the same care in the preservation of it which a good and prudent father of 1 Heinec. Pand. Lib. 19, tit. 2, § 324; 1 Domat, B. 1, tit. 4, § 2, art. 4. 2 Jones on Bailm. 87, 88 ; Vinn. ad Inst. Lib. 3, tit. 15, 1. 2, Comm. § 13; 2 Kent, Comm. Lect. 40, p. 587, note (d), 4th edit. ^ Pothier, Contrat de Louage, n. 192. * Bracton, 62 b. 6 Coggs V. Bernard, 2 Ld. Raym. 909, 916. ^ BuUer, Nisi Prius, p. 72. ' Jones on Bailm. 86, 87, 120 ; 2 Kent, Comm. Lect. 40, p. 586, 587, 4th edit. 8 1 Dane, Abridg. ch. 17, art. 3, 12 ; 2 Kent, Comm. Lect. 40, p. 586, 587, 4th edit, and note (d), Ibid. ; Dean v. Keate, 3 Camp. 4; Millon v. Salisbury, 13 Johns. 211 ; Handford v. Palmer, 2 Brod. & Bing. 359 ; Piatt V. Hibbard, 7 Cow. 497; Reeves u. The Ship Constitution, Gilp. 579, 585, 586. » Ante, § 65, note 6; post, § 467, note. 350 HIKE OF THINGS. [CH. VI. a family would take of hm own? The law of Louisiana adopts the same expositML^iThis ' also is the rule of the Scottish law: " Prses^^HBHr levem." ^ § 399. Hence the ■HJPKthe thing, being responsible only for that degree of diligence which all prudent men use, that is, which the generality of mankind use, in keeping their own goods of the same kind,* it is very clear, that he can be liable only for such injuries as are shown to come from an omission of that diligence ; or, in other words, for ordinary negligence." If a man hires a horse, he is bound to ride it moderatelj', and to treat it as carefully as any man of common discretion would 1 Pothier, Contrat de Louage, n. 190, 192, 429; 1 Domat, B. 1, tit. 4, § 2, art. 4; Cod. Lib. 4, tit. 65, 1. 28; Code Civil of France, art. 1728; Ayliffe, Pand. B. 4, tit. 7, p. 463; Ersk. Inst. B. 3, tit. 3, § 14, 15. Pothier has examined this whole subject of responsibility for diligence ■with great ability, in some general observations on the Treatise of Mon- sieur Le Brun, to which Sir William Jones has referred in his essay (p. 30, note (t)), as printed " at the end of his Treatise on the Marriage Con- tract." It was so originally printed. But it is printed, in the later edi- tions of Pothier's works, at the end of his Treatise on Obligations, although (strangely enough) it is altogether omitted in Sir William D. Evans's Translation of that work, to which it is properly an appendage. See Pothier on Obligations, 4to edition, 1781, printed at Orleans, Vol. I. p. 455 to 459 ; and the edition by Dupin of Pothier's works, printed at Paris, 1824, 8vo, Vol. I. p. 542 to 549; ante, § 17, note 2. See also Pothier, Pand. Lib. 50, tit. 17, De Regulis Juris, § 981. 2 NichoUs V. Roland, 11 Mart. 190, 192. « 1 Bell, Comm. p. 453, 455, 5th edit. ; 1 Bell, Comm. § 389, 4th edit. ; Ersk. Inst. B. 3, tit. 3, § 15; 1 Stair, Inst. B. 1, tit. 15, § 5. ' Jones on Bailm. 88; Handford v. Palmer, 2 Brod. & Bing. 359; Batson v. Donovan, 4 Barn. & Aid. 21 ; Reeves v. The Ship Constitution, Gilp. 579, 585, 586; 2 Kent, Comm. Lect. 40, p. 586,587,4th edit.; [Maynard v. Buck, 100 Mass. 40.] 6 Post, § 408; Reeves v. The Ship Constitution, Gilp. 579, 585, 586; [Sullivan w. Scripture, 3 Allen, 564; Eastman v. Sanborn, 3 Allen, 594;] Whalley v. Wray, 3 Esp. 74; [Ames v. Belden, 17 Barb. 513;] {Row- land V. Jones, 73 N. C. 52 ; Buis v. Cook, 60 Mo. 391 ; Conwell v. Smith, 8 Ind. 530; Collins v. Bennett, 46 N. Y. 490.} In Salter v. Hurst, 5 La. (Miller) 7, 9, the Court said, that in all cases of hii'ing for use, if the thing hired perishes when no fraud or gross negligence is chargea- ble on the hirer, the loss must be borne by the owner, upon the maxim. Res peril domino. But, qucere, if this is not incorrect in principle; for ordinary negligence (not fraud or gross negligence) will make the hirer liable for the loss. CH. VI.] HIKE OP THINGS. 351 his own, and to supply it with suitable food.^ And if he does so, and the horse in such reasonable use is lamed or injured, he is not responsible for any damages.^ If two persons jointly hire a horse and chaise on joint account, both are answerable for any misconduct or negligence of either in driving, and for any other want of proper care.^ But it would be otherwise where one is the sole hirer, and the other is merely invited to ride ; for, in such a case, the hirer alone will be responsible.* § 400. The hirer is not only liable for his own personal default and negligence, but for the default and negligence of his children, servants, and domestics, about the thing hired.^ If, therefore, a hired horse is ridden by the servant of the hirer so immoderately that he is injured or killed thereby, the hirer is personally responsible.^ So, if the servant of the hirer carelessly and improperly leaves open the stable-door of the hirer, and the hired horse is stolen by thieves, the hirer is responsible therefor.' So, if ready furnished lodgings are hired, and the hirer's servants, children, guests, or boarders negligently injure or deface the fui'niture, the hirer is re- sponsible therefor.^ So, if the injury is done by sub-agents, employed by the hirer, the same responsibility for the negli- 1 Jones on Bailm. 88, 89; Pothier, Contrat de Louage, n. 190; [Ed- wards V. Carr, 13 Gray, 234.] 2 Millon V. Salisbury, 13 Johns. 211 ; 1 Bell, Comm. p. 453, 454, 5th edit.; 1 Bell, Comm. § 389, 4th edit. ; Story on Agency, § 452 to 461; Reeves v. The Ship Constitution, Gilp. 579, 591 ; [Harrington v. Snyder, 3 Barb. 381. j » Davy V. Chamberlain, 4 Esp. 229. * Ibid. {And see O'Brien v. Bound, 2 Speers, 495.} ^ Pothier, Contrat de Louage, n. 193, 428; 2 Kent, Comm. Lect. 40, p. 586, 587, 4th edit. ; Pothier, Pand. Lib. 19, tit. 2, n. 31. Pothier holds the hirer responsible for the default or negligence of his boarders, guests, and under-tenants. Pothier, Contrat de Louage, n. 193 ; 1 Domat, B. 1, tit. 4, § 2, art. 6. See also 1 Bell, Comm. § 389, 4th edit.; 1 Bell, Gomm. p. 454, 455, 5th edit. 6 Jones on Bailm. 89; 1 Black. Comm. 430, 431; 1 Domat, B. 1, tit. 4, § 2, art. 5 ; 1 Bell, Comm. p. 455, 5th edit. ; 1 Bell, Comm. § 389, 4th edit. ' Jones on Bailm. 89; Coggs v. Bernard, 2 Ld. Raym. 909, 910 ; Salem Bank v. Gloucester Bank, 17 Mass. 1. [See Dansey v. Richardson, 25 Eug. Law & Eq. 90 ; 3 El. & Bl. 722.] 8 Jones on Bailm. 89; Pothier, Contrat de Louage, n. 198. 352 HIEB OP THINGS. [CH. VI. gent acts of the former, about the thing bailed, is incurred by the latter.^ § 401. The Roman law seems to have been relaxed a little from this severe, but important rule ; for it made the master responsible only when he was culpably negligent in admitting careless guests, or boarders, or servants into his house. " Mihi ita placet (says Ulpian in the Digest), ut culpam etiam eorum, quos induxit (his servants, guests, or boarders) prsestet suo nomine, etsi nihil convenit ; si tamen culpam in inducendis admittit, quod tales habuerit, vel suos, vel hospites." ^ It has been observed by Pothier^ and Sir William Jones,* that this distinction, whether the hirer was culpably negligent or not, that is, whether he ought or ought not to have known of the bad habits or carelessness of his guests, servants, or domestics, who caused the damage, must have been sufficiently perplexing in practice. The rule of the common law, which is like that of the foreign law in modern times, is not only more safe, convenient, and uniform in its application, but it imposes upon the hirer a salutary diligence and caution in regard to those who are admitted into his house, or kept in his service.^ The letter can otherwise have no other sufficient security against losses from the misconduct of guests, or boarders, or servants. § 402. But the master is not universally liable for the mis- deeds of his servants ; and, therefore, we are to distinguish whether the act complained of has been done in the service of the master, or in obedience to his orders, or not ; for in the former cases only is the master resjDonsible. The master is not responsible for any wilful or malicious injury done by his servant, without his knowledge or consent ; but only for 1 Story on Agency, § 308, 311, 452, 457 ; Randleson v. Murray, 3 Nev. & Per. 239; s. c. 8 Adolph. & Ellis, 109; Bush v. Steinmau, 1 Bos. & Pull. 409 ; Laugher v. Pointer, 5 Bam. & Cress. 547, 553, 554 ; Boson V. Sandford, 2 Salk. 440; Milligan v. Wedge, 12 Adolph. & Ellis, 737; Quarman v. Burnett, 6 Mees. & Welsh. 499. {See Smith, Master and Servant, 151, 152; Schouler, Dom. Rel. 637, 638.} 2 Dig. Lih. 19, tit. 2, 1. 11; Dig. Lib. 9, tit. 2, 1. 27, § 11; Pothier, Contrat de Louage, n. 193. ^ Pothier, Contrat de Louage, u. 193 ; 1 Domat, B. 1, tit. 4, § 2, art. 5. * Jones on Bailm. 89, 90. ' Pothier, Contrat de Louage, n. 193. CH. VI.] HIBB OF THINGS. 353 injuries which are done by the servant in the master's service in the course of his employment.^ Thus, if a servant, in 1 Story on Agency, § 308, 310, 311, 452 to 457. [If the acts are done by the servant in course of his employment, the master is liable, although the acts are in disobedience to the master's orders. Philadelphia & Reading R. R. Co. v. Derby, 14 How. (U. S.) 468. In this case, Mr. Jus- tice Grier said: " The second instruction involves the question of the lia- bility of the master where the servant is in the course of his employment, but, in the matter complained of, has acted contrary to the express com- mand of his master. " The rule of ' respondeat superior,' or that the master shall be civilly liable for the tortious acts of his servants, is of universal application, whether the act be one of omission or commission, whether negligent, fraudulent, or deceitful. If it be done in the course of his employment, the master is liable; and it makes no diiference that the master did not authorize, or even know of, the servant's act or neglect, or even if he dis- approved or forbade it, he is equally liable, if the act be done in the course of his servant's employment. See Story on Agency, § 452; Smith on Master and Servant, 152. " There may be found, in some of the numerous cases reported on this subject, dicta which, when severed from the context, might seem to countenance the doctrine that the master is not liable if the act of his servant was in disobedience of his orders. But a more careful examina- tion will show that they depended oft the question, whether the servant, at the time he did the act complained of, was acting in the course of his employment, or, in other words, whether he was or was not at the time in the relation of servant to the defendant. " The case of Sleath v. Wilson, 9 Carr. & Payne, 607, states the law in such cases distinctly and correctly. " In that case a servant, having his master's carriage and horses in his possession and control, was directed to take them to a certain place; but instead of doing so he went in another direction to deliver a parcel of his own, and, returning, drove against an old woman and injured her. Here the master was held liable for the act of the servant, though at the time he committed the offence he was acting in disregard of his master's orders ; because the master had intrusted the carriage to his control and care, and in driving it he was acting in the course of his employment. Mr. Justice Erskine remarks, in this case: ' It is quite clear that if a servant, without his master's knowledge, takes his master's carriage out of the coach-house, and with it commits an injury, the master is not answerable, and on this ground, that the master has not intrusted the servant with the carriage ; but whenever the master has intrusted the servant with the control of the carriage, it is no answer, that the servant acted improperly in the management of it. If it were, it might be con- tended that if a master directs his servant to drive slowly, and the servant 23 354 HIKE OF THINGS. [CH. VI. driving his master's coach, by his negligence, runs against and injures another coach, his master is responsible for the injury to the owner of the injured coach. ^ But it is other- wise, if the servant wilfully and wantonly drives against the other coach, and thus does the injury without the connivance or consent of his master.^ So, if the servant of a blacksmith, disobeys his orders, and drives fast, and through his negligence occasions an injury, the master will not be liable. But that is not the law; the master, in such a case, will be liable, and the ground is that he has put it in the servant's power to mismanage the carriage, by intrusting him with it.' " Although, among the numerous cases on this subjeet, some may be found (such as the case of Lamb v. Palk, 9 C. & P. 629) in which the Court have made some distinctions which are rather subtile and astute, as to when the servant may be said to be acting in the employ of his master ; yet we find no case which asserts the doctrine that a master is not liable for the acts of a servant in his employment, when the particular act caus- ing the injury was done in disregard of the general orders or special command of the master. Such a qualification of the maxim of respon- deat superior would, in a measure, nullify it. A large proportion of the accidents on railroads are caused by the negligence of the servants or agents of the company. Nothing but the most stringent enforcement of discipline, and the most exact and perfect obedience to every rule and order emanating from a superior, can insure safety to life and property. The intrusting such a powerful and dangerous engine as a locomotive to one who will not submit to control, and render implicit obedience to orders, is itself an act of negligence, the ' causa causann ' of the mis- chief; while the proximate cause, or the ipsa negligentia which produces it, may truly be said, in most cases, to be the disobedience of orders by the servant so intrusted. If such disobedience could be set up by a rail- road company as a defence, when charged with negligence, the remedy of the injured party would in most cases be illusive, discipline would be relaxed, and the danger to the life and limb of the traveller greatly en- hanced. Any relaxation of the stringent policy and principles of the law affecting such cases would he highly detrimental to the public safety."] 1 Ante, §400,401; McManus u. Crickett, 1 East, 106; Croft u. Alison, 4 Barn. & Aid. 590; Brucker i>. Fromont, 6 Term R. 659; 8 Term R. 188; Story on Agency, § 452 to 456 ; Laugher v. Pointer, 5 Barn. & Cressw. 547, 553, 554. ■^ Ibid. I The distinctions which our law makes with reference to a master's or principal's liabiUty for the acts of his servant or agent are finely drawn, and cannot be appropriately set out at length in a work on Bailments. In general, it -may be said that two old maxims apply: one is, qui facit per aliumfacit per se ; the other, respondeat superior. On the whole, CH. VI.] HIRE OF THINGS. 355 in shoeing a horse, negligently injures him, the master is responsible.^ But it will be otherwise, if he maliciously drives a nail into a horse's foot in order to lame him.^ § 403. The hirer is not responsible for any injury by the negligence of servants, who are not actually in his employ. If a person hires a coach and horses of a stable-keeper for a journey, and the horses are driven by the servant of the latter, he (it seems), and not the hirer, is responsible for any injury done by the negligence of the servant in the course of the journey ; for the servant, under such circumstances, is properly to be deemed in the employment of the stable-keeper, and not of the hirer.3 For the like reason, if a person hires a carriage and horses, and the owner sends a postilion or coachman with them to drive them, the hirer is discharged from all attention to the carriage and horses ; and he remains liable only to take the principle which best reconciles the decisions under this head appears to be to ascertain the true scope of the servant's employment; though, in application to particular facts, it may often be hard to say what was that scope. The general rule is, that for any act of negUgence, fraud, or deceit committed by a servant which occasions an injury, so long as the act was done in the course and scope of his employment, his master may be held responsible in damages to the sufferer. See Sch. Dom. Rel. 637. Each case must depend much, however, upon its own circumstances. Hence, where one's driver injudiciously, recklessly, or even intentionally, but not wantonly, turns or races his employer's horse so as to inflict damage, we may expect to find the employer held liable. Sch. Dom. Rel. 638; McDonald v. Snelling, 14 Allen, 290. On the other hand, a servant can have no implied authority to do a positively unlawful act; hence a servant's wanton and malicious acts must be deemed his own. See Poulton v. South-western R. R. Co., L. R. 2 Q. B. 534; Sch. Dom. Rel. 639. And where the servant clearly goes beyond the scope of his employment, as if a person specially intrusted in a single instance with a wagon to go to a certain place for a special business should deliberately turn off to do some other piece of business of his own, his special em- ployer ought not to be held liable for the injuries he may have committed while thus deviating from the course of his employment. See Storey v. Ashton, L. R. 4 Q. B. 476 ; Sch. Dom. Rel. 639. ( 1 1 Black. Comm. 431 ; Story on Agency, § 310, 453. 2 Boson V. Sandford, 2 Salk. 440 ; Story on Agency, § 310, 453 ; {Smith, Master and Servant, 151, 152; Sch. Dom. Rel. 637.} 3 Sammel o. Wright, 5 Esp. 263 ; Dean v. Branthwaite, 5 Esp. 85 ; Pothier, Contrat de Louage, n. 196. 856 HIRE OF THINGS. [CH. TI. ordinary care of the glasses and inside of the carriage, while he sits in it.^ The like rule governs in the French law ; and the reason given is, that in such a case the coachman is the servant of the owner, and is intrusted with the care of the carriage and horses.^ § 403 a. But very nice questions have sometimes arisen, as to the person who is to be properly deemed the employer or principal, under particular circumstances.^ Thus, for example, although it seems admitted, that where a coach and horses are hired for a day, or for a journey, and are driven by a person who is furnished and hired by the stable-keeper, the driver is to be deemed, at least under ordinary circumstances, to be the servant of the stable-keeper, and not of the hirer, so that, if any injury arises from his negligence in driving, the stable- keeper will be responsible therefor;* yet if the coach belongs to the hirer, and the horses and driver only are furnished by the stable-keeper, there has been a diversity of opinion, whether the driver was not to be deemed the servant of the hirer, and in his employment, so that the hirer would be responsible for any injury arising from his negligence in driv- ing.^ But the doctrine seems now settled, that in this last case, as well as in the former, the hirer is not responsible for the acts of negligence of the driver ; but that he is to be deemed the servant of the owner of the horses, and in his 1 Jones on Bailm. 88, 89; Pothier, Contrat de Louage, n. 196 2 Pothier, Contrat de Louage, n. 196; Id. 107, 129; ante, § 388. 8 See 10 Amer. Jurist, p. 256-258 ; Milligan v. Wedge, 12 Adolph. & Ellis, 737. * Ante, § 403; Laugher v. Pointer, 5 Barn. & Cressw. 547; Story on Agency, § 453, and note (5) ; Hughes v. Boyer, 9 Watts, 556 ; Quarman V. Burnett, 6 Mees. & Welsh. 499. * See Laugher y. Pointer, 5 Barn. & Cressw. 547. In this case the sub- ject was discussed at large, and all the leading authorities cited. It turned upon similar circumstances to those stated in the text. Littledale, J. , and Abbott, C . J. , thought that the driver was in the employment of the stable- keeper, and the latter was responsible for his negligence; and Holroyd, J., and Bailey, J., thought that the hirer was responsible, and the driver was his servant. See also Dean u. Branthwaite, 5 Esp. 35; Bush ». Steinman, 1 Bos. & Pull. 4U4 ; MiUigan v. Wedge, 12 Adolph. & Ellis, 737 ; Randleson v. Murray, 8 Adolph. & Ellis, 109 ; Quarman v. Burnett, 6 Mees. & Welsh. 499. {See Woodward v. Cutter, 33 Vt. 49. j CH. VI.] HIRE OF THINGS. 357 employ, and that the owner is liable for such acts of negli- gence.^ 1 Quarman v. Burnett, 6 Mees. & Welsb. 499. Mr. Baron Parke, in delivering the opinion of the Court, said: " On the argument, in the course of -which the principal authorities were referred to, we intimated our opinion, that we should be called upon to decide the point which arose in the case of Laugher v. Pointer, and upon which not only the Court of King's Bench, but the twelve judges, differed ; as the special circumstances above mentioned did not seem to us to make any difference; and we are still of opinion that they did not. It is undoubtedly true, that there may be special circumstances which may render the hirer of job- horses and servants responsible for the neglect of a servant, though not Uable by virtue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual management of the horses, or ordering the servant to drive in a particular manner, which occasions the damage complained of, or to absent himself at one particular moment, and the like. As to the supposed choice of a particular servant, my brother Maule thought there was some evidence to go to the jury of the horses being under the defendants' care, in respect of their choosing this particular coachman. We feel a difficulty in saying, that there was any evidence of choice, for the servant was the only regular coachman of the job-mistress's yard ; when he was not at home, the defendants had occasionally been driven by another man, and it did not appear that, at any time since they had their own carriage, the regular coachman was engaged, and they had refused to be driven by another ; and the circum- stance of their having a livery, for which he was measured, is at once explained by the fact, that he was the only servant of Miss Mortlock ever likely to drive them. Without, however, pronouncing any opinion upon a point of so much nicety, and so little defined, as the question whether there is some evidence to go to a jury of any fact, it seems to us, that if the defendants had asked for this particular servant, amongst many, and refused to be driven by any other, they would not have been responsible for his acts and neglects. If the driver be the servant of a job-master, we do not think he ceases to be so by reason of the owner of the carriage preferring to be driven by that particular servant, where there is a choice amongst more, any more than a hack post-boy ceases to be the servant of an inn-keeper, where a traveller has a particular prefer- ence of one over the rest, on account of his sobriety and carefulness. If, indeed, the defendants had insisted upon the horses being driven, not by one of the regular servants, but by a stranger to the job-master, ap- pointed by themselves, it would have made all the difference. Nor do we think that there is any distinction in this case, occasioned by the fact, that the coachman went into the house to leave his hat, and might there- foi'e be considered as acting by their directions, and in their service. There is no evidence of any special order, in this case, or of any general 358 HIEE OF THINGS. [CH. VI, § 404. But, although the master is responsible for the mis- feasances and negligent acts of his servants, it does not follow, order to do so at all times without leaving any one at the horses^ heads. If there had been any evidence of that kind, the defendants might have been ■well considered as having taken the care of the horses upon themselves in the mean time. Besides these two circumstances, the fact of the coachman wearing the defendants' Uvery with their consent, whereby they were the means of inducing third persons to believe that he was their servant, was mentioned in the course of the argument as a ground of liability, but cannot affect our decision. If the defendants had told the plaintiff, that he might sell goods to their livery servant, and had induced him to contract with the coachman on the footing of his really being such ser- vant, they would have been liable on such contract; but this representa- tion can only conclude the defendants with respect to those who have altered their condition on the faith of its being true. In the present case, it is a matter of evidence only of the man being their servant, which the fact at once answers. We are therefore compelled to decide upon the question, left unsettled by the case of Laugher v. Pointer, in which the able judg- ments on both sides have, as is observed by Mr. Justice Story in his book on Agency, § 4.53, note, p. 468, ' exhausted the whole learning of the subject, and should on that account attentively be studied.' We have con- sidered them fully, and we think the weight of authority and legal prin- ciple is in favor of the view taken by Lord Tenterden and Mr. Justice Littledale. The immediate cause of the injury is the personal neglect of the coachman in leaving the horses, which vvere at the time in his imme- diate care. The question of law is, whether any one but the coachman is Uable to the party injured; for the coachman certainly is. Upon the principle, that qui facit per alium facil per se, the master is responsible for the acts of his servant; 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 diifer- ence. But the hability by vu-tue of the principle of relation of master and servant must cease where the relation itself ceases to exist; and no other person than the master of such servant can be liable, on the simple ground that the servant is the servant of another, and his act the act of another; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable; and to make such person liable, recourse must be had to a different and more extended principle, namely, that a person is liable not only for the acts of his own servant, but for any injury which arises by the act of another person, in carrying into execution that CH. VI.] HIRE OP THINGS. 359 that the servant is not himself, in many cases, also responsible to the bailor. The distinction furnished by the authorities is this : that the servants of the bailee are responsible to the bailor for their misfeasances, but not for their nonfeasances ; ■which that other person has contracted to do for his benefit. That, how- ever, is too large a position, as Lord Chief Justice Eyi-e says, in the case of Bush V. Steinman (1 Bos. & Pull. 404), and cannot be maintained to its full extent, without overturning some decisions, and producing conse- quences which would, as Lord Tenterden observes, ' shock the common sense of all men.' Not merely would the hirer of a post-chaise, hackney- coach, or wherry on the Thames, be liable for the acts of the owners of those vehicles, if they had the management of them, or their servants, if they were managed by servants, but the purchaser of an article at a shop, which he had ordered the shopman to bring home for him, might be made responsible for an injury committed by the shopman's carelessness while passing along the street. It is true, that there are cases — for in- stance, that of Bush v. Steinman, Sly v. Edgely (6 Esp. 6), and others, and perhaps amongst them may be classed the recent case of Randleson d. Murray — in which the occupiers of land or buildings have been held responsible for acts of others than their servants, done upon, or near, or in respect of their property. But these cases are well distinguished by my brother Littledale, in his very able judgment in Laugher v. Pointer. The rule of law may be, that, where a man is in possession of fixed prop- erty, he must take care that his property is so used or managed, that other persons are not injured ; and that whether his property be managed by his own immediate servants, or by contractors with them, or their servants. Such injuries are in the nature of nuisances ; but the .same principle, which applies to the personal occupation of land or houses by a man or his family, does not apply to personal movable chattels, which, in the ordinary conduct of the affairs of life, are intrusted to the care and management of othei's, who are not the servants of the owners, but who exercise employments on their own account, with respect to the care and management of goods for any persons who choose to intrust them with them. It is unnecessary to repeat at length the reasons given by my brother Littledale for this distinction, which appears to us to be quite satisfactory; and the general proposition above referred to, upon which only can the defendants be liable for the acts of persons who are not their servants, seems to us to be untenable. We are therefore of opin- ion, that the defendants were not liable in this case, and the rule must be made absolute to enter a verdict for the defendants on the second issue." See also Rapson u. Cubitt, 9 Mees. &Wels. 710; Milligan w. Wedge, 12 Adolph. & Ellis, 737; Winterbottom v. Wright, 10 Mees. & Wels. 109, 111; [Reedie v. London & North-western Railway Co., 4 Exch. 244;] {Fowler v. Lock, L. K. 10 C. P. 90.} 360 HIEB OF THINGS. [CH. VI. and that, in the latter cases, the remedy of the bailor is solely against the master.^ § 405. "What is the true extent of the duty and diligence required of the hirer, in the care and custody of the thing hired, must essentially depend upon the nature and character of that thing, and its liability to loss or injury .^ A single illustration will sufficiently explain this doctrine in one of the most common cases of hire. It is the duty of the hirer of a horse to supply him with suitable food during the time of the hiring ; and, therefore, any neglect on his part, in this partic- ular, will make him responsible to the owner for the damage sustained thereby.^ If a hired horse is exhausted, and refuses its feed, the hirer is bound to abstain from using the horse ; and if he pursues his journey with the horse, he is liable for all the injury occasioned thereby.* If a horse falls sick during a journey, the hirer ought to procure the aid of a farrier, if one can be obtained within a reasonable time or distance ; and if he does procure such aid, he is not responsible for any 1 Lane v. Cotton, 12 Mod. 488; Perkins v. Smith, Sayer, 41; Cameron V. Reynolds, Cowp. 403 ; Rowning v. Goodchild, 3 Wilson, 454 ; 5 Burr. 27"21; Morse v. Slue, 1 Vent. 238. This subject is examined at large in Story on Agency, § 309 to 320, and the principal authorities are there col- lected. There are some exceptions to the general rule, which are also there stated. The examination of the doctrine more properly belongs to the subject of Agency, than to that of Bailments, and therefore is omitted in this place. {See Smith, Master and Servant, 213 et seq.; Soh. Dom. Rel. 629, 630.} 2 ^n/e, § 12 to 15. 8 Handford v. Palmer, 2 Brod. & Bing. 359; s. c. 5 Moore, 74. * Brayy. Mayne, 1 Gow, 1; [Thompson w. Harlow, 31 Ga. 348 ;] 1 Bell, Comm. p. 455, 5th edit.; 1 Bell, Comm. § 389, 4th edit. [See Eastman V. Sanborn, 3 Allen, 594 ; Edwards v. Carr, 13 Gray, 2.34.] {See further, as to the proper use of a hired horse, Rowland v. Jones, 73 N. C. 52; M'Neills V. Brooks, 1 Yerg. 73; Banfield v. Whipple, 10 Allen, 27; Graves v. Moses, 13 Minn. 335; Buis v. Cook, 60 Mo. 391; Vaughan ». Webster, 5 Harring. 256; Jackson v. Robinson, 18 B. Monr. 1; Collins v. Bennett, 46 N. Y. 490. Something may depend upon the manifest capacity of the hirer to drive and manage the horse; but it would ajipear that, in general, one who hires at a livery stable in effect agrees to use reasonable care and skill; and unless he is manifestly incapable of using such care and skill the letter of the animal may hold him responsible. Mooers v. Larry, 15 Gray, 451.} CH. VI. J HIRE OF THINGS. 861 mistakes of the farrier in the treatment of the horse. But if, instead of procuring the aid of a farrier, Avhen he reasonably may, he himself prescribes unskilfully for the horse, and thus causes his death, he will be- responsible for the damages, although he acts bond fide.^ § 406. What shall, and what shall not, be deemed negli- gence on the part of a hirer, is sometimes a matter of consid- erable nicety. The care and diligence must rise in proportion to the demand for it ; and things which may be easily dete- riorated require an increase of care and diligence in the use of them. Negligence is a relative term ; and the value and liabilitj'- to injury of the article, and the means of security possessed by the hirer, are material circumstances in estimat- ing the degree of care and diligence which are required of him.^ It has been already stated, that Pothier, and after him Sir William Jones, holds, that a loss by theft is primd facie evidence of negligence;^ and reasons have been also offered to establish the position, that no such rule exists in the com- mon law, however it may exist in the Roman law, or in the foreign law.* But even if there be such a rule, it is but a bare presumption, and capable of being rebutted by proof, that the theft was by no negligence of the hirer.® 1 Dean ». Keate, 3 Camp. 4; 1 Bell, Comm. p. 455, 5th edit. ; 1 Bell, Comm. § 389, 4th edit. 2 2 Kent, Comm. Leot. 49, p. 587, 4th edit. ; Batson v. Donovan, 4 Barn. & Aid. 21 ; [ante, § 399.} s Jones on Bailm. 43, 44, 76, 78, 98, 110; ante, § 38, 39, 88, 239, 333 to 338; Pothier, Prfit k Usage, n. 53; Pothier, Contrat de Louage, n. 429; Pothier, Pand. Lib. 19, tit. 2, n. 28; Vere v. Smith, 1 Vent. 121. « Pothier, Contrat de Louage, n. 429 ; ante, § 38, 39, 88, 239, 333 to 338; post, § 410, 454; Pothier, Pand. Lib. 19, tit. 2, n. 28. » Jones on Bailm. 96, 98; Coggs v. Bernard, 2 Ld. Raym. 909, 918; ante, § 38, 39, 88, 239, 333 to 338. We have already had occasion to express a doubt, whether, in the Roman law, a loss by theft was presump- tive evidence of negligence. See ante, § 834, note (2). The following case, put in the Digest, seems to fortify that doubt. Si capras latrones citra tuam fraudem abegisse, probari potest, judicio locati casum prsestare non cogeris ; atque temporis, quod insecutum est, mercedes ut indebitas recuperabis. Dig. Lib. 19, tit. 2, 1. 9, § 4; Pothier, Pand. Lib. 19, tit. 2, n. 28. Certainly, in the Roman law, theft was not a conclusive pre- sumption of negligence; but it might be repelled by proofs. 362 HIKE OF THINGS. [CH. VI. § 407. In respect to thefts by the servants of a hirer, he is not, generally speaking, liable therefor, unless there are some circumstances which impute to him a want of due diligence.^ Thus, if a trunk is deposited with an upholsterer for a reward, the contents of which are stolen by his servants, notwithstand- ing all reasonable care in the custody of it by him, he will not be responsible for the loss.^ But if he uses greater precau- tion in respect to the like property of his own, that might afford presumptive evidence of neglect ; and he might, under such circumstances, be held liable for the loss.^ So, if a watch is deposited with a watchmaker for repairs, and it is left in his shop in a less secure repository than that in which he keeps his own, and it is stolen by his servants, he will be responsible for the loss.* So, if an agistor of cattle for a reward leaves open the gates of his field, or allows the fences to be defective, so that the cattle escape, he is liable for the loss.^ In like manner, the proprietors of a dry dock are responsible for any injury to a vessel undergoing repairs there, occasioned by the bursting of the dock gates, if by reasonable care the bursting might have been prevented.^ § 408. But if the thing hired is lost or injured by inevita- ble casualty, or by superior force, and without any fault of the hirer, he is exonerated from all risk.' So, if the loss is not strictly inevitable, but there has been no omission of reasonable diligence on the part of the hirer.^ Thus, a warehouseman 1 A7ite, § 38, 39, 67, 88, 239, 333 to 338. 2 Fiuucane v. Small, 1 Esp. 315. See also Brind v. Dale, 8 Can-. & Payne, 207; s. c. 2 Mood. & Rob. 80; [Butt v. Great Western Railway Co., 7 Eng. Law & Eq. 443; 11 C. B. 140; Great Western Railway Co. V. Rimell, 6 C. B. n. s. 917 (Am. ed.) ; 18 C. B. 575.] s Ante, § 337. * Clarke v. Earnshaw, 1 Gow, 30. 5 Broadwater i>. Blot, Holt, N. P. 547; Jones on Bailm. 91, 92; 1 Bell, Comm. p. 458, 5th edit. ; 1 Bell, Comm. § 394, 4th edit. ; ante, § 67. [See Dansey v. Richardson, 25 Eng. Law & Eq. 90; 3 El. & Bl. 722.] ^ Leek V. Maestaer, 1 Camp. 138. ' Menotone v. Athawes, 3 Burr. 1592; Longman v. Galini, Abbott on Shipp. P. 4, ch. 6, p. 389, note (d), 7th edit. ; 1 Bell, Comm. p. 453, 455, 458, 5th edit. ; 1 Bell, Comm. § 394, 4th edit. ; Reeves t.. The Ship Con- stitution, Gilp. 579; [Ames v. Belden, 17 Barb. 513;] ante, § 399. ' Menotone v. Athawes, 3 Burr. 1592; Longman v. Galini, Abbott on Shipp. P. 4, ch. 6, p. 389, note (d), 7th edit. ; 1 Bell, Comm. p. 453, CH. VI.] HIKE OF THINGS. 363 is not responsible for the destruction of goods, deposited there for hire, by rats or mice, if he has used the ordinary precau- tions to guard against the loss.^ So, if the owner of slaves lets them to the master of a vessel for a voyage, and they run away in a foreign port, the master is not responsible therefor, if he has acted in good faith and with reasonable care, although he might, perhaps, have exercised a higher power of restraint or coniinement over them.^ So, if a horse is let to hire for a journey, and without any negligence or default of the hirer he escapes, and is lost, or stolen, the hirer will not be responsible therefor. § 409. Pothier puts the case (which he deems clear), in proof of the position, that the hirer may be responsible for a loss, where his misconduct is not the cause, but the occasion of the loss.^ If the bailee is prohibited by the terms of the bailment from keeping combustible materials in the place where the thing is kept, and he keeps such combustibles there, and the thing is destroyed by fire, even through mere casualty, Pothier holds him responsible therefor ; because it is a breach of his engagement.* Such also is the rule of the Roman law: 455, 458, 5th edit. ; 1 Bell, Comm. § 394, 4th edit. ; Reeves v. The Ship Constitution, Gilp. 579; ante, § 399. {Inevitable accident and superior force, causing injury or destruction, will sufficiently excuse the hirer from returning the chattel as it came to him. Field v. Brackett, 56 Me. 121; Watkins v. Roberts, 28 Ind. 167; Hyland v. Paul, 33 Barb. 241. And so would be the natural deterioration of the thing from causes which ordi- nary care would not have prevented. Ibid. In order to render a hirer liable in cases like these, an express undertaking should be strictly proved. Field V. Brackett and Hyland v. Paul, supra. See further as to the loss of the chattel, not strictly inevitable, but so as to impute no want of ordinary care, ante, § 405 and note (3).} 1 CailifE V. Danvers, Peake, 114; Moore v. Mourgue, Cowp. 479; Mil- Ion V. Salisbury, 18 Johns. 211; Abbott on Shipp. P. 3, ch. 3, § 9, p. 244, 5th edit. But the rule of the Roman law seems to have been different in this case. The Digest says: Si fuUo vestimenta polienda acceperit, eaque, mures roserint, ex locato tenetur. Dig. Lib. 19, tit. 2, 1. 13, § 6; Pothier, Pand. Lib. 19, tit. 2, n. 29 ; post, § 432. 2 Beverly v. Brooke, 2 Wheat. 100. s Ante, § 242. * Pothier, Contrat de Louage, n. 195. See also 1 Bell, Comm. p. 458, 5th edit.; 1 Bell, Comm. § 394, 4th edit. ; ante, § 242. 364 HIRE OP THINGS. [CH. VI. " Si hoc in locatione convenit, ignem ne habeto, et habuit, tenebitur, etiamsi fortuitus casus admisit incendium, quia non debet ignem habere." ^ Pothier puts another case to illustrate the distinction between the cause and the occasion of a loss. If, says he, the hirer of a horse for a journey is attacked by robbers on the road, and the liorse is killed by them, so that it may properly be deemed a loss by the vis major, yet if the hirer has, by his own fault, been the occasion of the loss, as by riding at improper hours, or by having quitted the highway and taken a shorter route, which is less safe, he will be re- sponsible for the loss.2 It seems, that, by the Roman law, the hirer is also made liable for all losses and injuries to the thing hired, occasioned by the private enmity of persons hostile to the hirer, if by his own fault he has provoked that enmity. " Culpae autem ipsius et illud adnumeratur, si propter inimi- citias ejus vicinus arbores exciderit."^ But Pothier justly doubts whether this rule ought to be followed in practice.* § 410. The question may here arise, as in many other cases of bailments, on whom lies the burden of proof of negligence, or of repelling it.^ With certain exceptions, which will here- after be taken notice of, as to innkeepers and common carri- ers,^ it would seem that the burden of proof of negligence is . on the bailor ; and proof merely of the loss is not sufficient to put the bailee on his defence.' This has been ruled in a case against a depositary for hire, where the goods bailed were 1 Dig. Lib. 19, tit. 2, 1. 11, § 1 ; Pothier, Pand. Lib. 19, tit. 2, n. 33. 2 Ante, § 67, 200, 241, 242 ; post, § 412; Pothier, Contrat de Louage, n. 195; Pothier, Pret k Usage, n. 57; Id. n. 55; Jones on Bailm. 67, 68, 70, 71 ; Story on Agency, § 217-219. 8 Dig. Lib. 10, tit. 2, 1. 25, § 4 ; Pothier, Pand. Lib. 19, tit. 2, n. 34. ^ Pothier, Contrat de Louage, n. 195; 1 Domat, B. 1, tit. 4, § 2, art. 6; Dig. Lib. 19, tit. 2, 1. 25, § 4 ; Pothier, Pand. Lib. 19, tit. 2, n. 34. * Ante, § 212, 213, 278, 339. « 5 Term R. 276; Jones on Bailm. 96. ' 1 Bell, Comm. § 889, 4th edit.; 1 Bell, Comm. p. 454, 5th edit.; 2 Kent, Comm. Lect. 40, p. 587, 4th edit. See Adams v. Carlisle, 21 Pick. 146; Carsley v. White, 21 Pick. 254, 255; Brind u. Dale, 8 Carr. & Payne, 207, 212; s. c. 2 Mood. & Rob. 80; [Footer. Storrs, 2 Barb. 326, overruling Piatt u. Hibbard, 7 Cow. 497. See also Harrington ». Snyder, 3 Barb. 380; Brown v. Johnson, 29 Texas, 43;] post, § 454, 529. CH. VI.] HIRE OP THINGS. 365 Stolen by his servants ; ^ and also in the case of a horse hired and injured during the term of the bailment, where positive proof was required on the part of the owner to sustain his action.2 There seem, however, to be some discrepancies in the authorities on this subject, which may properly invite the attention of the learned reader.^ 1 Finucane v. Small, 1 Esp. 315. [And see Butt v. Great Western Railway Co., 7 Eng. Law & Eq. 443; 11 C. B. 140.] 2 Cooper V. Barton, 3 Camp. 5, note; Newton v. Pope, 1 Cow. 109; 1 Bell, Comm. § 389, 4th edit. ; 1 Bell, Comm. p. 454, 5th edit. 8 Piatt V. Hibbard, 7 Cow. 497, 500, note (a) ; Harris v. Packwood, 3 Taunt. 264; Marsh v. Home, 5 Barn. & Cressw. 322; Anon. , 2 Salk. 654 ; Schmidt v. Blood, 9 Wend. 268; Beardslee v. Richardson, 11 Wend. 25; Tompkins u. Saltmarsh, 14 Serg. & Rawle, 275; Beckman v. Shouse, 5 Rawle, 179; Clark v. Spence, 10 Watts, 335; ante, § 212, 213, 278, 339; post, § 454, 529; 2 Kent, Comm. Lect. 40, p. 587, 4th edit. [Perhaps the discrepancy in the authorities cited in the precediug section, and many others decided since, may be in part reconciled by the fact that the phrase " burden of proof " is often used in a vague and inaccurate sense. Properly understood, it seems to be clear that the burden of proof must always be upon the plaintiff to make out all the facts upon which his case rests; and as negligence is the foundation of the action between bailor and bailee, that the duty of proving such negligence is on the former rather than that of disproving it on the latter. That the burden is on the plaintiff in other cases founded on negligence is now quite gen- erally agreed. Tourtellot v. Rosebrook, 11 Met. 460; Robinson v. Fitch- burg & Worcester Railroad, 7 Gray, 92 ; Tobin v. Murison, 9 Jur. 907 ; 5 Moore, P. C. 110; Hammack v. White, 11 C. B. n. s. 588; Cox V. Burridge, 13 Id. 430; Welfare u. London & Brighton Railway Co., Law Rep. 4 Q. B. 693. And does not the same rule apply to actions between bailor and bailee? Negligence is the gist of such actions, and without it no cause of action exists. Negligence is no more to be pre- sumed in such cases than in any other. Tobin v. Murison, 9 Jur. 907. Still farther, mere proof of loss or injury to goods while in the hands of a bailee does not, per se, prove negligence in him. It may do so, or may not, according to the attending circumstances; but it is the circumstances which show the negligence, not the mere loss or absence of the property. Evidence, therefore, that the goods are missing, that they are not on hand when called for, does not, in and of itself, establish negligence in the bailee. See Gilbart v. Dale, 5 Ad. & El. 543; Midland Railway Co. V. Bromley, 33 Eng. Law & Eq. 235 ; 17 C. B. 372. The bailor must show that fact affirmatively, that the bailee has done something or omitted to do something which he ought not to have done or omitted. The question in such cases properly is, whether the acts of the bailee, 366 HIRE OF THINGS. [CH. VI. § 411. According to the French law, as laid down by Pothier, in every case of loss the hirer is bound to prove, that either of omission or commission, improperly led to, or furnished an opportunity for the loss of, or injury to the goods hailed; the simple naked fact of the loss of the property does not itself, except as explained in the light of the surrounding circumstances, create any presumption of negligence, or even make out a. prima facie case against the bailee, calling upon him to explain how the loss occurred, and to show affirmatively on his part that he was not in fault. Various dicta of judges may be found which seem to militate with this view, but most of them may be explained by remembering the confusion which exists in the use of the term. The best considered modern authorities, in which the question has been most directly discussed and decided, support the view above expressed. See Lamb v. Western Railroad, 7 Allen, 98 ; Runyan v. Caldwell, 7 Humph. 134; Brown v. Johnson, 29 Texas, 40; Cross u. Brown, 41 N. H. 283; Am. Law Review, Jan., 1S71. But see Brown v. Waterman, 10 Cush. 117; Lichtenhein v. Boston & Prov. Railroad, 11 Cush. 70; McDaniels v. Robinson, 26 Vt. 310.] i Notwithstanding the views of Judge Bennett, so ably expressed both in the foregoing note and the American Law Review, it appears as if the present state of the authorities would not justify so broad a statement. Passing by the more general illustrations of negligence, and coming to the case in hand, it may be admitted that the decisions in England and in some of the United States favor putting the burden of proof on the bailor throughout, to prove negligence in his bailee. See, in addition to cases cited supra, Smith v. First Nat. Bank, 99 Mass. 605, 611. But it should be added that, on the other hand, the supreme tribunals of several lead- ing States justify, in recent decisions, and with good reason, the state- ment that where property placed in a bailee's hands in good condition is returned by him badly damaged, or not returned at all, the burden is upon himself of showing that such diligence was exercised as the bailment required ; and this more especially if the loss could not ordinarily have occurred without negligence on his part. Logan v. Mathews, 6 Penn. St. 417; Funkhouser u. Wagner, 62 111. 59; Goodfellow v. Meegan, 32 Mo. 280; Wiser v. Chesley, 53 Mo. 547; Boies v. Hartford, &c. R. R. Co., 37 Conn. 272; Collins v. Bennett, 46 N. Y. 40; McDaniels ». Robinson, 26 Vt. 316. Such, too, is the rule expressly affirmed in Louisiana, in Ford V. Simmons, 13 La. Ann. 397, notwithstanding the Code, as referred to in § 411, by Judge Story. Most of these decisions concern the bailment of hire; and Brown v. Waterman, 10 Cush. 117, is also a Massachusetts authority in point. Thus, in Collins v. Bennett, 46 N. Y. 490, where a hired horse was returned foundered to the letter, the court put the burden of proof on the hirer ; and Peckham, J., in a carefully expressed opinion, used (p. 494) this language: " Here, it will be observed, this horse was in the exclusive CH. VI. J HIRE OF THINGS. 867 the loss was without any default on his own part ; for the law not only makes no presumption in his favor, but presumes it to be by his fault, unless he establishes the contrary.^ Thus, if a person hires a horse for a journey, he cannot excuse him- self from the obligation to return the horse, by saying, that he died by accident during the journey. It will be necessary for him to prove such accident by the testimony of farriers, or other persons, who had seen the horse when he became sick.^ Pothier also seems to think, that, in case of a loss by fire, if the fire is in the house of the hirer, that circumstance alone raises a presumption of negligence.^ The Code of France * throws the burden of proof upon the hirer of leased property to show that the loss has not been by his default; and it makes him responsible for losses by fire, unless he proves that possession of the defendant. He had charge and care of him for hire. During that charge he is injured in a way that ordinarily does not occur ■without negligence ; usually not without the horse has been used and then been neglected. This may be safely said on the evidence and upon human experience. In such case, the burden rests with the custodian to show how the injury occurred, and that he was not guilty of the negli- gence that caused it. This rests upon the defendant for two reasons : First. Because the facts are within the defendant's peculiar knowledge, and he should, therefore, prove them. Second. Such an injury does not usually occur, without negligence on the part of the custodian of the animal." And, as to depositaries for hire, Park, J. well stated the exist- ing conflict of authorities, in Boies v. Hartford, &c. R E. Co. , 37 Conn. 272, 277, as follows: " The authorities are not uniform in respect to de- positaries for hire where goods are lost, whether the onus probandi of negligence is on the plaintiff or of exculpation on the defendant. In Eng- land, the burden is thrown upon the plaintiff ; but in some of the American cases the defendant is required to exonerate himself from negligence." On the whole, it would appear that courts incline to strain the rule, according to the nature and circumstances of the transaction, to such an extent that the question, on whom shall the burden of proof of negli- gence rest under some particular bailment, cannot fairly be determined by reference to decisions under the general head of negligence. The onus so shifts from one party to another, according to the circumstances presented, that it is unsafe to lay down any rule for general application to bailments. Cf . § 213, 278, supra. } I Pothier, Contrat de Louage, n. 199, 200 ; Id. n. 194. ' Pothier, Contrat de Louage, n. 199. s Pothier, Contrat de Louage, n. 194, 199, 200. * Code Civil of France, art. 1732-1734. 868 HIRE OF THINGS. [CH. VI. the fire happened by inevitable casualty, or, by means of su- perior force, it was communicated from a neighboring house. By the Scottish law, if any specific injury has occurred, not manifestly accidentally, the oiius proiandi lies on the hirer to justify himself by proving the accident.^ The Code of Louisi- ana seems to follow the rule of the common law, and requires proof that the loss was by the default or negligence of the hirer, or others acting under him.^ § 412. In cases of robbery, the hirer is not chargeable, unless it has been occasioned by his own fault or negligence; for robbery is deemed an accident by superior force (^vis major}.^ If, however, the hirer travels by roads known to be dangerous by reason of their being infested by robbers, or at an unseasonable hour of the night, or if, in any other manner, by his own negligence, he exposes the property to an undue risk of robbery, and a loss happens thereby, he will, as we have already seen, be bound to make good the loss.* But if he takes another road, because the common highway is im- practicable or dangerous, and other travellers are accustomed to do the same, he will be justified in so doing ; and if a loss takes place by robbery on the road in consequence, he will not be responsible therefor.^ § 418. As to the use of the thing hired. There is, on the part of the hirer, an implied obligation, not only to use the thing with due care and moderation, but also not to apply it to any other use than that for which it is hired.^ Thus, if a horse is hired as a saddle horse, the hirer has no right to use the horse in a cart, or to carry loads, or as a beast of burden.^ 1 1 Bell, Comin. 45i, 5th edit. ; 1 Bell, Comm. § 389, 4th edit. 2 Code of Louisiana (1825), art. 2691-2B93. [But see Ford v. Sim- mons, 13 La. Ann. o!)7, contra.l 8 Ante, § 26, 239; Jones on Bailm. 44, 78, 79, 88, 98, 103, 122; Coggs V. Bernard, 2 Ld. Raym. 909, 916 ; Id. 918 ; Id. 1087 ; Pothier, Contrat de Louage, n. 195. < Ante, § 200, 241, 396, 409; Jones on Bailm. 81, 88, 98, 103; Pothier, Contrat de Louage, n. 195; Coggs v. Bernard, 2 Ld. Raym. 909, 917. 6 Pothier, Contrat de Louage, n. 195; ante, § 241, 409. 8 Pothier, Contrat de Louage, n. 189, 190; ante, § 232, 233, 241, 396; Pothier, Pand. Lib. 19, tit. 2, n. 28, 29. ' Pothier, Contrat de Louage, n. 189, 190; 1 Domat, B. 1, tit. 4, § 2, CH. VI.J HIRE OF THINGS. 369 So, if a carriage and horses are hired for a journey to Boston, the hirer has no right to go with them on a journey to New York.i So, if horses are hired for a week, the hirer has no right to use them for a month.^ And it may be generally stated, that if the thing is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss afterwards occurs, although by inevitable casualty, he will generally be responsible therefor.^ In short, such misuser is deemed at the common law a con- version of the property,* for which the hirer is generally held art. 2, 3; Jones on Bailm. 68; Id. 88; 2 Saund. 47 g and note; 1 Bell, Comm. 454; Lookwood v. Bull, 1 Cow. 322. { See M'Neills v. Brooks, 1 Yerg. 73.} 1 Jones on Bailm. 68 ; Coggs v. Bernard, 2 Ld. Eaym. 915 ; ante, § 188, 232, 233, 241, 373 a, 396; Pothier, Pr6t k Usage, n. 55-60; Kotch V. Hawes, 12 Pick. 136; Homer v. Thwing, 3 Pick. 492; Wheelock V. Wheelwright, 5 Mass. 104. " Jones on Bailm. 68; Coggs u. Bernard, 2 Ld. Eaym. 915; Wheelock V. Wheelwright, 5 Mass. 104. [So, in the absence of any agreement as to the number of persons who are to ride in a hired carriage, the hirer is authorized to carry such number only as the vehicle was made for, not exceeding, of course, the ordinary load adapted to the team drawing the same. Harrington v. Snyder, 3 Barb. 380.] s De Tollenere v. Fuller, 1 Const. Ct. (S. C.) 121; Jones on Bailm. 68, 69, 121; 2 Ld. Eaym. 909, 917; Dig. Lib. 19, tit. 2, 1. 11, § 4; Id. 1. 12; Pothier, Pand. Lib. 19, tit. 2, n. 38; ante, § 122, 188, 232, 233, 241, 269, 396, 409 ; post, § 509. [This rule was applied where ahorse met with an injury through his own fault, while in the hands of the bailee when he was misusing it. Lucas v. Trumbull, 15 Gray, 306.] ^ [See the very instructive opinion of Moncure, J., in Harvey v. Epes, 12 Gratt. 176 (1855), where, after a critical examination of this subject, he says : ' ' Upon the whole, I am of opinion that in the case of a bailment upon hire for a certain term (whatever may be the law in regard to a deposit, mandate, or other gratuitous bailment, or any bailment during the mere pleasure of the bailor), the use of the property by the hirer dur- ing the term for a different purpose or in a different manner from that which was intended by the parties will not amount to a conversion for which trover will lie, unless the destruction of the property be thereby occasioned; or, at least, unless the act be done with intent to convert the property, and thus destroy or defeat the interest of the bailor therein."] {But see Wentworth v. McDuffie, 48 N. H. 402; supra, § 396 and notes. } 24 870 HIRE OF THINGS. [CH. TI. responsible to the letter, to the full extent of his loss.^ So, if a bailee for hire of a thing for a limited period should sell the thing, the bailment would be ended, and a suit might be maintained against him by the bailor for a tortious conversion thereof.^ § 413 a. But, although this is the general rule, a question may arise, how far the misconduct or negligence or deviation from duty of the hirer will affect him with responsibility for a loss, which would and must have occurred even if he had not been guilty of any such misconduct, negligence, or deviation from duty. As, for example, suppose a cargo of lime is put on board of a vessel on freight, to be carried from A. to B., and the master should unnecessarily deviate from the voyage, and afterwards a storm should arise and the lime should be wetted, and the vessel should thereby take fire and the whole be lost ; according to the general rule, the loss must be borne ' Bac. Abridg. Bailment, C; Id. Trover, C, D., E.; 2 Saund. 47 g; Isaac V. Clarke, 2 Bulst. 306, 309 ; ante, § 232, 233, 241, 373 a, 396; Wil- kinson V. King, 2 Camp. 335; Loeschman v. Machin, 2 Stark. 311; Youl V. Harbottle, Peake, 49 ; 2 Saaud. 47 f, note by Williams & Patteson ; Powell V. Sadler, cited in Paley on Agency, by Lloyd, 79, 80, note (e) ; Rotch V. Hawes, 12 Pick. 136; Homer u. Thwing, 3 Pick. 492 ; Wheelock V. Wbeelwright, 5 Mass. 104. {See also Fisher ». Kyle, 27 Mich. 454; Cullen V. Lord, 39 Iowa, 302; Lane v. Cameron, 38 Wis. 603; Edwards V. Carr, 13 Gray, 234; Wentworth v. McDuffie, 48 N. H. 402.} 2 Sargent v. Gile, 8 N. H. 325; [Lovejoy o. Jones, 10 Fost. 165; Swift!;. Moseley, 10 Vt. 208; Bryant v. Wardell, 2 Exch. 478 (1848); Fenn v. Bittleston, 8 Eng. Law & Eq. 483 (1851) ; {7 Ex. 152 ;{ Sanborn V. Colman, 6 N. H. 14. But see Harvey v. Epes, 12 Gratt. 168 (1855).] {The attempt to sell, pawn, or otherwise transfer the hired chattel ■without the letter's permission is a gross breach of fidelity; and, as a general rule, no sale by a bailee will avail even a bona fide purchaser for value as against the bailor or rightful owner, who may at once pursue the chattel as his own, and sue in trover for its repossession. Cases supra ; Rodgers v. Grothe, 58 Penn. St. 414; Cooper v. Willomatt, 1 C. B. 672; Johnson v. AVilley, 40 N. H. 75; Marner v. Bankes, 16 W. R. 62, C. P. Yet it would appear that to a certain extent such a bailment may, expressly or by implication, give the bailee a right to assign his interest. Bailey v. Colby, 34 N. H. 29. Nor is the general right of an owner to pursue and retake his chattel from a bona fide third person who has purchased without its limitations. See 2 Sch. Pers. Prop. 21-24.} CH. VI.] HIRE OF THINGS. 371 by the owner of the vessel ; for, although the tempest might properly in one view be deemed the proximate cause of the loss, yet, according to the doctrine of Pothier, the deviation would be the occasion of the loss ; ' and at the common law, the loss would be held sufficiently proximate to the wrongful act of deviation, and to be properly attributable to it, so as to support an action by the shipper.^ But suppose the deviation, although voluntary, were for so short a time, or under such circumstances, as that the vessel must have been overtaken by the same tempest, and the same accident must have occurred ; the question would then arise, whether the owner would be liable for the loss.^ § 413 b. Other cases may easily be put to illustrate the same point. Suppose a ship, on board of which goods are shipped on freight for the voyage, should deviate from the port of destination, and proceed to another port of the same country, which, after the commencement of the voyage, be- comes an enemy country ; and on arrival at the port the ship is captured, the capture being equally inevitable, if she had arrived at the original port of destination ; the question would then arise, whether, the loss being in each case inevitable, the shipper could recover for the loss of his goods on account of the deviation. Suppose a case, where goods are shipped on board of a ship on freight for the voyage, to be carried under deck, and by the misconduct of the master the goods are stowed on deck ; there, if the goods are lost by reason of such wrongful stowage on deck, as by a sea, which sweeps the deck, there can be no doubt that the owner of the ship is responsible for the loss. But suppose the ship should by inevitable casualty founder at sea in a heavy gale, and the whole cargo, under deck, as well as on deck, should thus be lost, the loss being in no degree attributable to the stowage ; » Ante, § 67, 200, 241, 409, 412; Pothier, Contrat de Louage, n. 195. 2 Davis V. Garrett, 6 Bing. 716; 3 Kent, Comm. Lect. 47, p. 210, 4th edit. ; Bell v. Reed, 4 Bina. 127 ; post, § 515. 8 See Lord Chief Justice Tiadal's opinion in Davis v, Garrett, 6 Bing. 716; post, ^ 413 d, note (4). 372 HIKE OP THINGS. [CH. VI. there the question would arise, whether the owner of the ship is responsible for the loss.^ § 413 c. We have already seen, that the Roman law seems to have adopted a distinction on this subject, and to have held the bailee, who is in mord, liable for all losses by accident after his default, unless they are such as must have occurred to the thing bailed independently of the default.^ Pothier supports the same doctrine.^ Sir William Jones in the passage already cited manifestly maintains it; for he there says, that in every species of bailment, where the bailee is in mord, he must an- swer for anj casualty which happens after the demand, unless in cases where it may be strongly presumed that the same accident would have befallen the thing bailed, even if it had been restored at the proper time.* § 413 d. There are certainly intimations in various common- law authorities, which lead to a similar conclusion. Thus, for example, it has been said, that, if goods are improperly stowed on the deck of a ship, and they are washed away by the vio- lence of a storm, the owner of the ship will be liable for the loss, although caused by the perils of the sea, unless the dan- gers were such as would equally have occasioned the loss, if the goods had been safely stowed under deck.^ So it has been held, that if there is negligence and a violation of duty by a common carrier, as by not carrying the goods in the proper position required for them ; yet if the loss is not a consequence thereof, but is caused solely by the perils of the seas, or by some other unavoidable casualty, the carrier will not be liable for the loss.^ So, if the ship be not seaworthy, 1 See story on Agency, § 218, 219; 3 Kent, Comm. Lect. 47, p. 206, 4th edit.; post, § 413 c, 413 d; Jones on Bailm. 70, 71. 2 Dig. Lib. 19, tit. 3, 1. 12, § 3; Id. 1. 14, § 1; Id. 13, tit. 6, 1. 18; Id. 30, tit. 1, 1. 47, § 6; Id. 6, tit. 1, 1. 15, § 3; Id. 10, tit. 4, 1. 12, § 4; ante, § 122, 189, 259, 413; Pothier, Pand. Lib. 16, tit. 3, n. 33; Id. Lib. 13, tit. 6, n. 17-19; Id. Lib. 13, tit. 7, n. 17. 8 Pothier, Pr^t -k Usage, n. 55-58; Pothier on ObUg. n. 143, 627, 628 (n. 663, 664, of the French editions). * Ante, § 259 ; Jones on Bailm. 70, 71. 6 Crane v. The Rebecca, cited 6 Amer. Jurist, 1, 15 ; Ware, 188 ; 3 Kent, Comm. Lect. 47, p. 206, 4th edit. 6 Hastings v. Pepper, 11 Pick. 41, 43, 44 ; The Paragon, Ware, 322 , 324. CH. VI.] HIRE OP THINGS. 373 but the loss is caused by some peril of the sea or other casu- alty wholly disconnected with the want of seaworthiness, the carrier will not be liable for the loss ; ^ although he certainly would be liable, if the loss happened from that defect.^ And in the case of the lime, before put,^ which actually occurred in judgment, it was thought susceptible of doubt, whether, if the loss must have happened, even if there had been no de- viation from the voyage, the owner of the ship would have been liable therefor. But the Court held, that, as there was no proof that the loss Would have happened if the deviation had not taken place, the owner of the ship was liable there- for ; and the other point was left undecided.* The question, 1 [Collier i>. Valentine, 11 Mo. 299; Hart v. Allen, 2 Watts, 114.] 2 Bell V. Reed, 4 Binn. 127, 138; HoUingworth u. Brodrick, 7 Adolph. & Ellis, 40 ; The Paragon, Ware, 322, 324. » Ante, § 413 a. * Davis V. Garrett, 6 Bing. 716. On this occasion Lord Chief Justice Tindal said: " There are two points for the determination of the Court upon this rule : first, whether the damage sustained by the plaintiff was so approximate to the wrongful act of the defendant as to form the sub- ject of an action ; and, secondly, whether the declaration is sufficient to support the judgment of the Court for the plaintiff. As to the first point, it appeared upon the evidence that the master of the defendant's barge had deviated from the usual and customary course of the voyage mentioned in the declaration, without any justifiable cause; and that afterwards, and whilst such barge was out of her course, in consequence of stormy and tempestuous weather, the sea communicated with the lime, which thereby became heated, and the barge caught fire, and the master was compelled, for the preservation of himself and the crew, to run the barge on shore, where both the lime and the barge were entirely lost. Now, the first objection on the part of the defendant is not rested, as indeed it could not be rested, on the particular cil-cumstances which accompanied the destruction of the barge; for it is obvious, that the legal consequences must be the same, whether the loss was immediately by the sinking of the barge at once by a heavy sea, when she was out of her direct and usual course, or whether it happened at the same place, not in consequence of an immediate death's wound, but by a connected chain of causes produc- ing the same ultimate event. It is only a variation in the precise mode by which the vessel was destroyed, which variation will iiecessarily occur in each individual case. But the objection taken is, that there is no natural or necessary connection between the wrong of the master in taking the barge out of its proper course, and the loss itself; for that the same loss might have been occasioned by the very same tempest, if the barge had 374 HIRE OF THINGS. [CH. VI. therefore, in the present state of the authorities, must still be deemed open to controversy. Whenever it is discussed, it will deserve consideration, whether there is, or ought to be, any difference between cases where the misconduct of the hirer amounts to a technical or an actual conversion of the property to his own use, and cases where there is merely some negligence or omission or violation of duty in regard to it, not conducing to or connected with the loss.^ § 414. Another implied obligation of the hirer is, to restore the thing hired, when the bailment is determined.^ He is proceeded in her direct course. But if this argument were to prevail, the deviation of the master, which is undoubtedly a ground of action against the owner, would never, or only under very peculiar circumstances, entitle the plaintiff to recover. For if a ship is captured in the course of deviation, no one can be certain that she might not have been captured if in her proper course. And yet, in Parker v. James, 4 Campb. 112, where the ship was captured whilst in the act of deviation, no such ground of defence was even suggested. Or, again, if the ship strikes against a rock, or perishes by storm in the one course, no one can predicate that she might not equally have struck upon another rock, or met with the same or another storm, if pursuing her right and ordinary voyage. The same answer might be attempted to an action against a defendant, who had, by mistake, forwarded a parcel by the wrong conveyance, and a loss had thereby ensued ; and yet the defendant in that case would undoubtedly be liable. But we think the real answer to the objection is, that no wrong-doer can be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened, whilst his wrongful act was in opera- tion and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss, if his wrongful act had never been done. It might admit of a different con- struction, if he could show, not only that the same loss might have hap- pened, but that it must have happened, if the act complained of had not been done; but there is no evidence to that extent in the present case." In the English edition the same passage occurs in p. 722 to 724. 1 See ante, § 122, 188, 232, 233, 241, 259, 269, 380, 396, iOd; post, § 509. See also "Wheelock v. Wheelwright, 5 Mass. 104; Homer v. Thwing, 3 Pick. 492; Rotch v. Hawes, 12 Pick. 136; Hollingworth v. Brodrick, 7 Ad. & El. 40 ; Da-s-is v. Garrett, 6 Bing. 716 ; The Paragon, Ware, 322, 324 ; 1 Domat, B. 1, tit. 16, § 2, art. 4. See Powers v. Mitchell, 3 Hill, 545. 2 Syeds v. Hay, 4 Term R. 264, per Buller, J. ; Pothier, Contrat de Louage, n. 197; Pothier, Pand. Lib. 19, tit. 2, n. 27-29 ; [Benje v. Creagh, 21 Ala. 151.] {As to the measure of damages for failing to return the thing when the term of hire expired, see Negus v. Simpson, 99 Mass. 888. And see, as to what acts on the letter's part amount to a waiver of dam- CH. VI.] HIRE OF THINGS. 375 bound to restore it to the owner ; and if by any negligence or wrongful act it is delivered to some other person, and thereby is lost to the owner, he will be responsible therefor. If it is delivered to another person, it amounts to a conversion.i So, the hirer is to restore it in as good condition as he received it, unless it has been injured by some internal decay, or by acci- dent, or by some other means, wholly without his default.^ If it has sustained any injury by his neglect, he is liable for all the damages, notwithstanding the owner has received it back.^ If the hirer, instead of delivering back the thing, pays its full value to the owner, on account of the injury sustained by his own negligence, he becomes henceforth the proprietor of the thing ; and the letter has no longer any title to it. So the bailee is liable for an injury to the goods caused by his negligence while in his possession, notwithstanding a subse- quent like loss by inevitable accident or irresistible force.* § 415. The time, and the place, and the mode of restitution of the thing hired, and the person to whom it is to be re- stored, are governed by the circumstances of each particular ages, Austin v. Miller, 74 N. C. 274; Bigbee ». Coombs, 64 Mo. 529. Harrington v. Snyder, 3 Barb. 380, recognizes the hirer's right to recoup his just expenses incurred. } 1 Stephenson v. Hart, 4 Bing. 476; Stephens v. Elwall, 4 Maule & Selw. 259 ; Youl v. Harbottle, Peake, 49 ; Devereux v. Barclay, 2 Barn. 6 Aid. 702; [Willard v. Bridge, 4 Barb. 361; Esmay v. Fanning, 9 Barb. 176. And see Hall v. Boston & Worcester Railroad Co., 14 Allen, 443; Lichtenhein u. Boston & Providence Railroad, 11 Gush. 70; Coy- kendall v. Eaton, 55 Barb. 193; Claflin v. Boston & Lowell Railroad Co., 7 Allen, 341. But this is to be understood as meaning a delivery to a third person, whom the bailee knew or had reasonable cause to know was not the true owner. Thus, if A., a warehouseman, transfers his busi- ness to B. as his successor, informing him that certain goods in storage belong to C, when in fact they belong to D., a delivery of them to C. in good faith by B., and without any intimation of D.'s interest in them, is no conversion by B., nor does it render him liable to D. for the goods. Parker v. Lombard, 100 Mass. 405, a discriminating case on this subject.] 2 Pothier, Contrat deLouage, n. 197, 198, 200; Pothier, Pand. Lib. 19, tit. 2, n. 27-29; 1 Domat, B. 1, tit. 4, § 2, n. 11; Cooper v. Barton, 3 Camp. 5, n.; Millon v. SaUsbury, 13 Johns. 211. 8 Reynolds v. Shuler, 5 Cow. 323 ; ante, § 269. * Pothier, Contrat de Louage, n. 198; Id. n. 431, 432; ante, § 276; Pothier, Pand. Lib. 19, tit. 2, n. 36; Powers v. Mitchell, 3 Hill, 545. 376 HIEE OP THINGS. [CH. VI. case, and depend upon the same rules of presumption of the intention of the parties and the same general principles of law, as are applicable in other cases of bailment. ^ § 416 a. The remarks which have been already made, as to the restitution of the thing hired, apply, of course, only to regular contracts of hire, and not to irregular contracts of hire, the nature of which has been already explained.^ In the latter cases, as the identical thing is not to be returned, but only something of a similar nature ; as if an ingot of sil- ver is delivered to a smith to be melted and wrought into an urn, the proprietary interest in the silver passes to the hirer {{•psa nummorum corpora), and no return is contemplated. The silver is, of course, at the sole risk of the hirer, who must respond for the thing which is to be returned, although the silver shall have been lost by inevitable accident or irresistible violence.* This, however, is to be received with the qualifi- cation, that it is the intention of the parties, that the propri- etary interest should so pass to the hirer under the contract. For it would without doubt be otherwise, if the same silver, on account of its peculiar fineness, or any uncommon metal, according to the whim of the owner, were to be specifically redelivered to him in the form of a cup or a standish.* 1 Ante, § 102 to 110, 117, 118, 120, 257, 261, 265, 266, 291. [If no time for restitution be fixed by the contract, or by usage, or by the fulfilment of the declared purpose of the bailment, it seems that restitution should be made after a reasonable time from a demand or request for a return made by the bailor. Cobb v. Wallace, 5 Coldw. 539.] jAs to demand, the hirer's right to sue for detention, and adjustment of damages, see In re Ware, 5 Ch. D. 866 (1877); Roberts v. Yarboro, 41 Texas, 449; Negus V. Simpson, 99 i\Iass. 388 ; Vaughan v. Webster, 5 Harring. 256. Where there is any uncertainty as to the limit of the period of hire, the bailor who seeks to resume the chattel ought to make a demand ; but it appears to be otherwise where no such uncertainty exists or the demand would be nugatory. See Halyard v. Dechelman, 29 Mo. 459 ; Bailey v. Colby, 34 N. H. 29; Spencer v. Morgan, 5 Ind. 146; Morse v. Crawford, 17 Vt. 499 ; Ross v. Clark, 27 Mo. 549 ; Clapp v. Nelson, 12 Texas, 370; Cobb V. AVallace, 5 Coldw. 539.} 2 Ante, § 370 a; Pothier, Traite de Depot, n. 82. 8 Pothier, Contrat de Louage, n. 394 ; Pothier, Trait6 de Dep6t, n. 82 ; Jones on Bailm. 102, 103; 2 Kent, Comm. Lect. 40, p. 588, 589, 4th edit. ; ante, § 370; poHt, § 438, 439. < Jones on Bailm. 102, 103. CH. VI.] HIRE OF THINGS. 377 § 416. Another implied obligation on the part of the hirer is, to pay the stipulated hire or recompense to the letter.^ This is a natural result from the contract of hire, and requires no reasoning to support it. Pothier, however, has thought it worthy of a separate discussion, principally with reference to leases of real estates on rent, in respect to which there are many points entitled to grave consideration, which cannot properly find a place in the more limited view of bailments at the common law ; which, as we have seen, respect personal or movable property only.^ § 417. According to the general principles of the foreign law, and especially of the French law, the entire hire is not due, unless the hirer has had the use and enjoyment of the thing hired for the whole time, and in the manner contem- plated by the parties.^ If he has not had, and could not have, any use or enjoyment whatsoever of the thing hired, he is not bound to pay any thing.* If he has had the use or enjoyment for a part of the time only, or it has been from unforeseen circumstances greatly diminished in mode or extent, he ought not to be required to pay more than a pro- portionate hire, pro tanto? If various things are hired, and the use and enjoyment of a part of them only have been real- ized, the hirer ought, in like manner, to be liable only fro tanto? But, in all these cases, it is to be understood, that the deficiency in the use and enjoyment has not been occa- sioned by the default of the hirer, but has arisen from acci- dent, or from the default of the letter ; '' and that the obligation to pay the entire hire is not either expressly or impliedly stipulated for by the contract, notwithstanding any deficiency in the use or enjoyment.^ 1 Pothier, Contrat de Louage, n. 134; 1 Domat, B. 1, tit. 4, § 2, art. 11; Code Civil of France, art. 1728. 2 Pothier, Contrat de Louage, n. 134 to 164; ante, § 51, 223, 286, 373, 392. ' Pothier, Contrat de Louage, n. 139. * Pothier, Contrat de Louage, n. 138, 139, 142, 143. 5 Pothier, Contrat de Louage, n. 139, 140, 143, 144; Ersk. Inst. B. 3, tit. 3, § 15 ; 1 Bell, Comm. 452, 453, 5th edit. 6 Pothier, Contrat de Louage, n. 140, 141. ' Pothier, Contrat de Louage, n. 141-143. 8 Pothier, Contrat de Louage, n. 141 to 144; Id. n. 165, 168; Id. n. 178. {See Austin v. MiUer, 74 N. C. 274; Bigbee u. Coombs, 64 Mo. 529.} 378 HIKE OF THINGS. [CH. VI. § 417 a. Whether the like principles are fully adopted in the common law, cannot, in the absence of direct adjudica- tions, be positively affirmed. That these principles are in a high degree equitable cannot be doubted. Where there has not been any use or enjoyment of the thing hired, without the default of the hirer, whether it has been occasioned by accident, or by the default of the letter, no hire whatsoever will, by the common law, become due ; for that law generally insists upon the contract being fully and strictly performed, to entitle the letter to any recompense.^ By the common law, also, the apportionment of contracts is generally dis- countenanced ; and a partial performance on either side will not entitle either party to insist upon a compensation or claim fro tanto.^ Courts of equity have, in this respect, followed closely in the footsteps of the law, and have declined, unless iinder very special circumstances, to adopt the more liberal and expansive doctrine, dictated by the general principles of reciprocal justice.^ But wherever, from the nature and ob- jects of the contract, or from general usage, an apportionment of the contract can be inferred to be according to the real intention of the parties, if there be but a partial performance on the one side, or a partial enjoyment on the other side, without any default by either party, courts of law, as well as courts of equity, will allow a recompense pro tanto^ § 418. The next consideration is, as to the manner in which the contract of hire may be dissolved or extinguished. According to the general principles of the Roman and foreign law, the contract may be dissolved or extinguished in respect to future liabilities in various ways. (1) By the mere efflux of the time, or the accomplishment of the object, for which the thing is hired ; (2) By the loss or destruction of the thing by any inevitable casualty ; (3) By a voluntary dissolution of 1 1 Story on Eq. Jurisp. § 471 to 482 ; Cutter v. Powell, 6 Term E. 320; Appleby v. Dods, 8 East, 300. 2 Ibid. ; Viner, Abridg. Apportionment, A. to F. 8 Story on Eq. Jurisp. § 471 to 474, 480. « Story on Eq. Jurisp. § 471 to 482; Vin. Abridg. A. pi. 8, 9, which cites the case of Worth v. Viner; Id. B. pi. 10, &c.; Id. F. pi. 18; Ed- wards V. Child, 2 Vern. 727 ; Cutter v. Powell, 6 Term R. 320. CH. VI.] HIRE OP THINGS. 379 the contract by the parties ; and (4) By operation of law, as where the hirer becomes proprietor by purchase or otherwise of the thing hired.^ Of course, it is to be understood, that the mere efflux of time, or the other circumstances above stated, do not absolve the parties from antecedent liabilities and obligations contracted by the hiring, so far as they are not completely fulfilled ; but only as to liabilities and obliga- tions to be incurred in futuro? § 418 a. But here again it may be important to state that it cannot be positively affirmed, that the common law, although in most respects it agrees with the rules of the Roman and foreign law on these points, follows them throughout. The hiring is of course terminated by the efflux of the time for which the thing is hired, or the accomplishment of the object for which the thing is hired, so that the hirer can no longer insist upon any further use, or the letter upon any further hiring, or recompense. In general, too, if the thing hired perishes by accident, and without any default of either party during the time of the hire, the contract is dissolved. But then, in such a case (as we have seen), the result generally is, that the letter can claim no recompense for the hire fro tanto, by way of apportionment ; and, on the other hand, the hirer cannot ordinarily insist upon damages for any loss he may sustain thereby. The particular contract of the parties may, however, vary these results. So, if there is a voluntary dissolution of the contract by the parties, what will be the effect thereof upon their rights will depend upon the par- ticular stipulations which produce it ; for here the maxim applies : " Modus et conventio vincunt legem." The other case, that of a dissolution by operation of law, by becoming the owner of the thing hired, seems founded upon a principle 1 Pothier, Contrat de Louage, n. 308-310 ; Code Civil of France, art. 1741. This article declares, that the contract of hire is dissolved by the destruction of the thing hired, and by the default of the letter and hirer respectively, in fulfilling their engagements. The Code of Louisiana seems to adopt similar provisions. Code of Louisiana of 1825, art. 2698-2700. See also Ersk. Inst. B. 3, tit. 3, § 15 ; 1 Bell, Comm. p. 453, 5th edit. ; 1 Bell, Comm. § 388, 4th edit. 2 Pothier, Contrat de Louage, n. 30. 380 HIEE OP THINGS. [CH. VI. equally applicable to all : that a party cannot be a debtor to, or contractor with, himself. § 419. Whether the contract is dissolved by the death of either party must depend upon the particular intention of the parties, and the general rules of law applicable to contracts of this sort. By the Roman and French law, the contract of hiring is not ordinarily dissolved by the death of either party; and the obligations and rights of each, in such a case, pass to their respective personal representatives. There are, however, some exceptions ; as, for example, if the letter had a limited title to a thing for his life only, there the contract would ordi- narily cease with his life.^ So, if the hiring is to be for no fixed time, but merely during the pleasure of both parties, or of one of them, there the death of that party will operate a dissolution of the contract. In such a case, it is treated as a mere precarious contract : " Locatio, precariive rogatio, ita facta, quoad is, qui eam locasset, dedissetve, vellet, morte ejus, qui locavit, tollitur." ^ On the other hand, if the hiring is to be for a fixed period, there it generally remains in full force during that period, notwithstanding the death of one or of both of the parties.^ § 420. The principles stated in the last section are derived altogether from the Roman and foreign law. How far they are to be deemed satisfactorily established in our jurisprudence is a matter for future inquiry, since the common law does not furnish any direct recognitions of them. But it may be safely affirmed, that they are so consonant with general justice, and with the nature of the contract, that, in the absence of any controlling authority, they may be used as fit guides to assist our general reasoning.* 1 PotWer, Contrat de Louage, n. 317. 2 Dig. Lib. 19, tit. 2, 1. 4; Pothier, Contrat de Louage, n. 317. 8 Pothier, Contrat de Louage, n. 817; 1 Bell, Comm. p. 452, 453, 5th edit. ^ See Story on Agency, § 462 to 500. CH. VI.] HIEE OF LABOR AND SERVICES. 381 AKT. n. HIRE OF LABOR AND SERVICES. [§ 421. Locatio Opens, Division of. 422. Hire of Labor and Services, Division of. 422 a. Special Property jof the Bailee.} 423. Distinction, when Worisman furnishes Materials. 424. In Locatio Operis, the Letter is to pay the Recompense. Essence of the Contract. 424 a. Impossible Undertakings. 425. Obligations and Duties of the Employer. 426-426 c. On whom Accidental Loss Falls. Foreign Law. 427. jAs to Compensation in such Case.} 427 a. When the Loss falls on the Workman. 428. Obligations and Duties of the Workman. 428 a. The same subject. Inherent Defect in the thmg bailed. 429. Degree of Care, for which the Workman is liable. 430. Presumption in cases of Theft. 431. In what Cases the Workman is responsible for Skill as well as Care. 432. 433. Degree of SkiU. Ordinary Skill. 434. Doctrine of Sir William Jones criticised. 435. Cases where Workman does not profess Skill. 436. Workman Hable for Nonfeasance as well as for Misfeasance. 437. Loss by Casualty or Superior Force. 438. Loss, when to be borne by Workman. 439. Distinction between Mutuum and Hire of Things. 440. Further Duties of Workman. Lien. 441-441 d. Effect of Part Fulfilment only of Contract.] § 421. We are next led to the consideration of the rights, duties, and obligations of the parties in the second class of Bailments for Hire, Locatio opeeis, or the Hiring of Labor and Services. This (as has been already observed) ^ is divis- ible into two branches : (1) Locatio operis faciendi ; (2) Locatio operis mercium vehendarum.^ Each of these will be treated separately, as each is of very extensive use and influence in the business of civil life ; ^ and each in some respects involves, or may involve, distinct principles and considerations. § 422. And first, as to Locatio operis faciendi. This may, again, be divided into two kinds : (1) The Hire of Labor and Services, or Locatio operis faciendi, strictly so 1 Ante, § 370; Jones on Bailm. 90. 2 Ante, § 370; Jones on Bailm. 90. 8 Jones on Bailm. 90; 2 Kent, Comm. Lect. 40, p. 586, 4tli edit.; Merlin, Repert. art. Louage. 382 HIKE OF LABOR AND SBKVICBS. [CH. VI. called ; such as the hire of tailors to make clothes, of jewel- lers to set gems, and of watchmakers to repair watches ; ^ (2) Locatio custodioe, or the receiving of goods on deposit for a reward for the custody thereof, which is properly the hire of care and attention about the goods.^ The bailee in the latter case may well enough be called locator operce, since the care and attention which he lets out for pay are in truth principally a mental operation, although the custody generally includes some physical labor.^ To this last class belong ware- housemen and wharfingers, and other depositaries for hire.* And as these differ from mere depositaries principally in receiving a compensation for their services ; ^ so another class of hirers, namely, agents, factors, commission-merchants, bailiffs,^ and other persons acting for a compensation, differ from mandataries, principally in the same circumstances.'^ The undertaking of the latter class lies in feasance ; that of the former in custody.^ Innkeepers seem to partake of the character of both ; but they will be reserved for a separate consideration.^ § 422 a. Bailees for hire of labor and services, like bailees for hire of things, have, or at least may have, a special prop- erty in the thing about which the labor and services are to be performed.^" Hence, where a bailee of yarn was to procure it to be made into cloth for a commission, it was held that he had a special property in the yarn, and that he might maintain an action against any one who should wrongfully take it from his own possession, or from that of his servant, to whom he had delivered it to be woven.^^ § 423. In the Roman and foreign law all agencies for hire, 1 Jones on Bailm. 90, 91; 1 Bell, Comm. § 390, 4th edit.; Id. p. 455, 5th edit. 2 jones on Bailm. 96. " Jones on Bailm. 90, 96, 97; Merlin, Repert. art. Louage. * Garside v. Trent Navigation Company, 4 Term R. 581 ; post, § 444, 451; Jones on Bailm. 96; [White u. Humphery, 11 Q. B. 45.] s Jones on Bailm. 49, 98. 6 2 Ld. Raym. 909, 918; Jones on Bailm. 97, 98; post, § 455. ' Jones on Bailm. 98; post, § 455; Eaton v. Lynde, 15 Mass. 242. 8 Jones on Bailm. 98. « Jones on Bailm. 49, 92, 93, 94; post, § 464 to 487. '» Eaton V. Lynde, 15 Mass. 242 ; ante, § 394. 11 Eaton V. Lynde, 15 Mass. 242. See Barker v. Roberts, 8 Greenl. CH. VI.] HIRE OP LABOR AND SERVICES. 383 and all sorts of labor and services, are sometimes treated of under the head of bailments for hire, although such agencies as are strictly of a personal nature, or for personal acts, are more frequently treated of under the head of mandates; especially when they are said to he in feasance, and not sim- ply in custody, or are altogether disconnected from custody.^ In the common law, such agencies and labor and services only are included under the head of bailments, as are employed about personal property intrusted by the owner to the bailee. But, in strictness, all these systems of law concur in the same general doctrine. Where the workman is not onlj'- to do the work but is also to furnish the materials, it is deemed in the Roman and foreign law rather a case of sale than a case of locatio oferis? In the common law, it is treated as a case of bailment only when the stock or materials belong to the employer. Where the principal materials belong to the employer, the case is still treated as a mere bailment, although the workman may furnish some accessorial ma- terials or ornaments.^ Thus, if A. sends cloth to a tailor to 101. So a factor or consignee may maintain trover for the goods against a wrong-doer. Evans v. Nichol, 4 Scott, N. R. 43. {See also Shaw v. Kaler, 106 Mass. 448 ; Burdict v. Murray, 3 Vt. 302. But this special property is held not to extend so far as to enable the bailee who has fin- ished his work and delivered the thing to a common carrier for the general owner to sue the carrier for loss of the goods. Morse v. Andros- coggin K. R. Co., 39 Me. 285. Here no question appears to have been raised as to whether the bailee meant to part with his lien on the goods for services when he delivered them to the carrier. See Trent, &c. Co., irare, L. R. 4 Ch. 112.} 1 1 Domat, B. 1, tit. 4, § 7, art. 2-4; Pothier, Contrat de Louage, n. 392. In the modern Code of France (art. 1984 to 2010), and in that of Louisiana (1825, art. 2954 to 3003), personal agencies are treated of under the head of mandates ; and hiring of labor and services about things, under the distinct head of hire. See Code of France, art. 1779 to 1797 ; Code of Louisiana of 1825, art. 2717 to 2748. See Story on Agency, § 4; 1 Bell, Comm. § 389, 390, 4th edit.; 1 Bell, Comm. p. 452, 453, 455, 456, 5th edit. ; ante, § 423 ; post, § 455. 2 Pothier, Contrat de Louage, n. 392, 394; Id. n. 4; 1 Domat, B. 1, tit. 4, § 7, art. 1 to 4; Dig. Lib. 19, tit. 2, 1. 2, § 1; Inst. Lib. 4, tit. 25, § 4; Merlin, Repert. art. Louage; 1 Bell, Comm. p. 455, 5th edit.; 1 Bell, Comm. § 392, 4th edit. 8 Pothier, Contrat de Louage, n. 394; 1 Bell, Comm. p. 455, 5th edit. ; 1 Bell, Comm. § 390, 4th edit. 384 HIRE OP LABOK AND SEKVICES. [CH. VI. be made into a garment, and the tailor furnishes buttons and twist to complete it, it is a mere case of locatio operis faciendi?- § 424. In cases of the hire of things, the bailee is to pay the hire ; but in cases of the hire of work, the bailor is to pay it. In the former case, Res utenda datur ; in the latter. Res facienda datur. "^ In many other respects, these contracts involve the like or corresponding obligations between the parties.^ According to the systematical mode of treating them in the foreign law, both contracts may be said to arise from natural law ; to be founded in consent ; and to involve reciprocal engagements.* In contracts for work, it is of the essence of the contract, (1) That there should be work to be done ; (2) That it should be to be done for a price or reward ; and (8) That there should be a lawful contract between parties capable and intending to contract.^ § 424 a. Of course, if, at the time when the work is under- taken, it is physically impossible to be done, the contract is treated as a nullity. For here the maxim applies : Impossihilia nulla oUigatio est.^ Pothier has given, under this head, a some- what dubious illustration. Thus, says he, if I have made a bargain with one to remove a house from one place to another without demolishing it, or taking it down, this is the bargain of a fool, and is utterly without any obligation ; for it is im- possible.^ He doubtless intended to speak of a building which was physically incapable of being so removed. But, in some parts of America, a wooden dwelling-house might be the just subject of such a bargain; and, indeed, it has not unfrequently been executed. However, if the thing is pos- sible to be done, although not possible to be done by the un- 1 Pothier, Trait6 de Dep6t, n. 82. [And it has been held to be so, although the labor and materials used in the repairs greatly exceeded the value of the article when left to be repaired. Gregory v. Stryker, 2 Denio, 629.] See as to oases of regular and of irregular hiring, ante, § 370 a, 415 a; post, § 438, 439; see also ante, § 84. ' Pothier, Contrat de Louage, n. 393. » Ibid. 4 itid. 6 Pothier, Contrat de Louage, n. 395 to 401, 403; ante, § 371, 372. « Pothier, Contrat de Louage, n. 395; Dig. Lib. 50, tit. 17, 1. 185. ' Pothier, Contrat de Louage, n. 395. CH. VI.] HIRE OF LABOR AND SERVICES. 385 dertaker, Pothier holds the latter responsible in damages upon his undertaking ; because it was his duty, before he made the bargain, to have consulted his own ability and means, and not to have surpassed them.^ The other considerations, ap- plicable to the price, or reward, the legality of the contract, and the capacity of the contracting parties, have been already sufficiently considered.^ § 425. The obligations or duties on the part of the em- ployer, as deduced in the foreign law, are principally these : (1) To pay the price or compensation ; (2) To pay for all proper new and accessorial materials ; (3) To do every thing on his part to enable the workman to execute his engage- ment ; (4) And, finally, to accept the thing when it is fin- ished. But care is to be taken that the materials are not extravagant, and that the claims are not beyond the fair scope of the engagement.^ Besides these duties, the employer is bound to good faith and honesty in his conduct. He must not conceal defects, or practise fraud upon the other party ; and he must conform to all the special stipulations contained in his contract.* These duties are formally treated of by Pothier ; ^ and they seem so clear, upon principles of general justice, that the common law could hardly be deemed a ra- tional science if it did not recognize them. § 426. If, while the work is doing on a thing belonging to the employer, or after it is finished, but before it is delivered to the employer, the thing perishes by internal defect, by in- evitable accident, or by irresistible force, without any default of the workman, Pothier holds that the latter is entitled to compensation to the extent of the value of the labor actually performed on it, unless his contract import a different obliga- tion ; for the maxim is, Mes perit domino.^ Pothier farther ^ Pothier, Contrat de Louage, n. 396. 2 Ante, § 372 to 381 ; Pothier, Contrat de Louage, n. 397 to 403. 8 Pothier, Contrat de Louage, n. 405, 406, 407 to 410,436, 437; 1 Do- mat, B. 1, tit. 4, § 9, art. 1 to 8. * Pothier, Contrat de Louage, n. 411 to 417. 6 Pothier, Contrat de Louage, n. 405 to 417. 6 Pothier, Contrat de Louage, n. 433 ; Dig. Lib. 19, tit. 2, \. 59 ; 1 Do- mat, B. 1, tit. 4, § 9, art. 4, 8, 9 ; Menetone v. Athawes, 3 Burr. 1592 ; 25 386 HIKE OF LABOE AND SERVICES. [CH. VI. insists, that, if the workman has employed his own materials, as accessorial to those of the employer, he is in like manner entitled to be paid for them, if the thing perishes before it is completed.^ The same doctrine seems to have been promul- gated in the Roman law, and was applied to the case of a house accidentally thrown down by an earthquake, while in building ; and the loss was held to fall wholly on the owner. "Marcus domum faciendam a Flacco conduxerat; deinde operis parte effecta terras motu concussum erat sedificium. ]\Iassurius Sabinus, si vi naturali, veluti terrse motu, hoc acciderit, Flacci esse periculum." ^ Mr. Bell has deduced the following as the true rules on the subject : (1) If the work is independent of any materials or property of the emploj'er, the manufacturer has the risk, and the unfinished work per- ishes to him ; (2) If he is employed in working up the mate- rials, or adding his labor to the property of the employer, the risk is with the owner of the thing with which the labor is in- corporated ; (8) If the work has been performed in such a way as to afford a defence to the employer against a demand for the price, if the accident had not happened (as if it was defectively or improperly done), the same defence will be equally availa- ble to him after the loss.^ In this last point, Pothier also agrees with him ; and he seems supported by the Roman law.^ § 426 a. These principles seem also well founded in the common law, and will probably receive the like adjudication in each of these cases, whenever it shall arise directly in judgment.^ It is very clear, at the common law, that if the thing of the employer, on which the work is done, and for which materials are furnished, is by accident, and without any fault of the workman, destroyed or lost before the work Gillett V. Mawman, 1 Taunt. 137; 1 Bell, Comm. § 392, 394, 4th edit.; 1 Bell, Comm. p. 45S, 458, 5th edit. ; post, § 437 ; 2 Kent, Comm. Lect. 40, p. 589, 590, 4th edit. 1 Pothier, Contrat de Louage, n. 433; 1 Bell, Comm. § 392, 4th edit. ; 1 Bell, Comm. p. 456, 5th edit.; 1 Domat, B. 1, tit. 4, § 8, art. 9. 2 Dig. Lib. 19, tit. 2, 1. 59 ; Pothier, Pand. Lib. 19, tit. 2, n. 68. = 1 Bell, Comm. p. 456, 5th edit. 4 Pothier, Contrat de Louage, n. 434; Dig. Lib. 19, tit. 2, 1. 37; Pothier, Pand. Lib. 19, tit. 2, n. 68. 6 Post, § 437. CH, VI.] HIRE OF LABOR AND SERVICES. 387 is completed, or the thing is delivered back, the loss must be borne by the employer, and he must pay the workman a full compensation for the work and labor already done, and mate- rials found, although he has derived no benefit therefrom.^ Thus, where a ship was accidentally destroyed by fire, while she was in the dock of a shipwright, undergoing repairs, it was held that the shipwright was entitled to full compensa- tion for all his work and labor done, and materials found and applied thereto, before the loss.^ However, the general rule may be controlled by a special agreement of the parties or by the general usage and custom of the trade.^ § 426 h. The foregoing doctrine proceeds upon grounds applicable to the general contract of hire. But suppose there is a contract to do work on a thing by the job (as, for exam- ple, repairs on a ship), for a stipulated price for the whole work, and the thing should accidentally perish, or be de- stroyed, without any default on either side, before the job is completed, the question would then arise, whether the work- man would be entitled to compensation pro tanto for his work and labor done, and materials applied, up to the time of the loss or destruction.* It would seem, that, by the common law, in such a case (independent of any usage of trade) the workman would not be entitled to any compensation; and that the rule would apply, that the thing should perish to the employer, and the work to the mechanic ;^ for the contract by the job would be treated as an entirety, and should be com- pleted, before the stipulated compensation would be due. If, indeed, the job was completed before the accident or loss, although the thing was not delivered, it would or might be otherwise ; for then the mechanic would or might be entitled to his full compensation.^ This seems also to be the rule of the Roman law, where the work was taken by the job, and was not completed when the accident occurred. " Opus, 1 Menetone v. Athawes, 3 Burr. 1592 ; Gillett v. Mawman, 1 Taunt. 137; 2 Kent, Comm. Leot. 40, p. 590, 4th edit. ' Menetone v. Athawes, 3 Burr. 1592. 8 Gillett V. Mawman, 1 Taunt. 137. * {See Appleby v. Myers, L. R. 2 C. P. 651, 656; Brumby v. Smith, 3 Ala. 123.} 6 Post, § 427 a; 1 Bell, Comm. p. 456, 5th edit. « Ante, § 426. 888 HIRE OF LABOR AND SERVICES. [CH. VI. quod aversione locatum est, donee approbetur, conductoris periculum est." ^ If the job, however, was completed, al- though not approved, it was otherwise, and the loss was to be borne by the employer.^ Pothier seems, however, to hold a different opinion ; and to insist, that, in the case of hiring by the job for a specified price, if the thing perishes by acci- dent, and without any default of the workman, before it is completed, he is entitled to a compensation pro tanto for his work and labor already done, and materials found.^ § 426 c. By the Roman law also, if the workman has been at any charge in securing or preserving the thing on which the work is done, beyond what by his undertaking is to be borne by himself, he is entitled to a compensation therefor.* The common law, in a case of clear necessity, would proba- bly adopt the like rule, as a fair presumption of the intention of the parties. Thus, if the thing were carried away by an inundation, the expenses of recovering it would be deemed a fair charge on the bailor.^ § 427. But although, upon the general principles of law applicable to the contract of hire, if the thing perishes while it is yet in the hands of the workman, and before the work is completed, without any default on his part, he is entitled (as we have seen) to compensation for his labor ; yet it must be admitted that the rule has not obtained universal favor.^ On the contrary, it has been maintained by very able writers, that wherever the subject-matter perishes by accident before the same is completed, or before it is delivered to the em- ployer, it will perish to the workman and employer respec- tively, so that neither can recover any thing from the other.^ The modern Code of France declares, that in such a case 1 Dig. Lib. 19, tit. 2, 1. 36 ; Pothier, Pand. Lib. 19, tit. 2, n. 68 ; Id. n. 23. 2 Dig. Lib. 19, tit. 2, 1. 36; Pothier, Pand. Lib. 19, tit. 2, I 68. * Pothier, Contrat de Louage, n. 433. * 1 Doinat, B. 1, tit. -1, § 9, art. 8; Dig. Lib. 19, tit. 2, 1. 55, § 1. « Story on Agency, § 142, 335, 336, 337. « See 1 Bell, Comm. § 3(J2, 4th edit. ; 1 Bell, Comm. p. 456, 5tli edit. ' 1 Bell, Comm. p. 456, 5th edit. ; 1 Bell, Comm. § 392, 4th edit. ; 2 Kent, Comm. Lect. 40, p. 590, 591, 4th edit. CH. VI.] HIRE OP LABOR AND SERVICES. 389 there shall be no compensation to the workman ; but that the thing perishes to the loss of the employer and the workman respectively,^ unless the thing has perished through the fault of the material.^ The Code of Louisiana adopts the same rule.^ § 427 a. On the other hand, where the workman is to furnish the materials, as well as the work, if the thing hap- pen to perish before it is completed and delivered to the employer, in whatever manner the loss may be, whether it be by inevitable accident, or irresistible violence, or otherwise than by the default of the employer himself, the loss is to be borne by the workman ; for in such a case he is deemed the owner of the thing ; and res perit domino.* However, all these doctrines prevail only in the absence of any contrary stipulations of the parties, who may by their contract vary and control the ordinary results of the law.^ § 428. The obligations or duties on the part of the work- man or undertaker are thus summed up in the foreign law : to do the work ; to do it at the time agreed on ; to do it well ; to employ the materials furnished by the employer in a proper manner ; and, lastly, to exercise the proper degree of care and diligence about the work.^ Upon most of these particulars a few words will suffice. In regard to the obligation to do the work, it may be generally stated, that it will be sufficient, if the undertaker does the work by the means of other persons, or sub-agents, if the work be such as may ordinarily be done 1 Code Civil of France, art. 1790; 2 Pardes. Droit Comm. P. 2, tit. 7, ch. 2, art. 526; 1 Bell, Comm. 456, 5th edit.; 1 Bell, Comm. § 390, 4th edit. ; 2 Kent, Comm. Lect. 40, p. 591, 4th edit. 2 Code Civil of France, art. 1790. 8 Code of Louisiana of 1825, art. 2730, 2731. See also 1 Bell, Comm. § 392, 4th edit.; 1 Bell, Comm. p. 456, 5th edit. * Code Civil of France, art. 1788 ; Code of Louisiana, art. 2729; Po- thier, Contrat de Louage, n. 394; {McConihe v. New York, &c. R. K. Co., 20 N. Y. 495; Appleby v. Myers, L. R. 2 C. P. 651.} 6 Pothier, Coutrat de Louage, n. 428, 429 ; Dig. Lib. 19, tit. 2, 1. 13, § 5; 1 Bell, Comm. p. 458, 5th edit.; 1 Domat, B. 1, tit. 4, § 7, art. 3; Id. § 8, art. 10; Pothier, Pand. Lib. 19, tit. 2, n. 33, 35. 6 Pothier, Contrat de Louage, n. 419 to 433; 2 Pardes. Droit Commer. P. 2, art. 523 to 525, and 528. 390 HIRE OF LABOR AND SERVICES. [CH. VI. by others in an equally satisfactory manner. But where the work is one of art, in the execution of which the genius, talent, and skill of the particular artist may fairly be presumed to be contracted for, such, for example, as with a painter to paint a ceiling or a portrait, he is not allowed to substitute another person, without the consent of the employer.^ In respect to the time when the work is to be finished, the duty is in general imperative ; and if not finished within the time, the employer is entitled to recover his damages for the non-execution.^ And the time need not in all cases be expressly stipulated ; it is sufiicient, if it may be reasonably inferred from the nature of the contract.^ Thus, if the contract is to build a hut or stall for an approaching fair, the work is necessarily understood to be finished in season for the fair.* In respect to the manner of doing the work, it is obvious, that, if it be badly or unskil- fully done, or with improper materials, the undertaker ought to be liable for all damages. For he undertakes for reasonable skill in planning and in execution. " Spondet peritiam artis. Imperitia culpae adnumeratur." ^ And in such a case it is wholly immaterial whether the defects in the execution of the work have arisen from the fault of the undertaker himself, or from the fault of the persons employed by him ; or whether the materials have been unskilfully used, or have been spoiled, so as to be unfit for the use intended.^ § 428 a. On the other hand, if the loss or bad execution is not properly attributable to the fault or unskilfulness of the undertaker, or of those employed by him, but arises from the inherent defect of the thing itself, in such a case the loss is to 1 Pothier, Contrat de Louage, n. 420, 421. 2 Pothier, Contrat de Louage, n. 423, 424. ^ Pothier, Contrat de Louage, n. 424. ' Ibid. 6 Potliier, Contrat de Louage, n. 425, 427, 428; Dig. Lib. 50, tit. 17, L 132; 2 Kent, Comm. Lect. 40, p. 588, 589, 4th edit.; 1 Domat, B. 1, tit. 4, § 8, art. 1; ■post, § 431. " Pothier, Contrat de Louage, n. 428; 1 Domat, B. 1, tit. 4, § 8, art. 1, 2, 3, 7; Duncan v. Blundell, 3 Stark. 6; 1 Bell, Comm. p. 458, 5th edit. ; 1 Bell, Comm. § 394, 4th edit.; Dig. Lib. 50, tit. 17, 1. 132; Dig. Lib. 19, tit. 2, 1. 25, § 7; Pothier, Pand. Lib. 19, tit. 2, n. 32; {Baird«. Daly, 57 N. Y. 236.1 CH. VI.J HIRE OP LABOR AND SERVICES. 391 be borne by the employer, unless there is some agreement, by which the risk is taken by the undertaker.^ The Roman law fully recognized the same doctrine, and applied it to the case, where a gem in being set or engraved was broken from some intrinsic defect. " Si gemma includenda aut insculpenda data sit, eaque fracta sit ; si quidem vitio materiee factum sit, non erit ex locato actio ; si imperitia facientis, erit. Huic sententise addendum est, nisi periculum quoque in se artifex receperat ; tunc enim, etsi vitio materise id evenit, erit ex locato actio." ^ It does not seem necessary further to enlarge on these heads ; and we shall therefore proceed to the consideration of the degree of care and- diligence required of the undertaker. § 429. What, then, is the degree of care or diligence for which bailees of work for hire are responsible ? The general rule is (as has been often observed), that where the contract is of mutual benefit, there ordinary diligence only is required.^ And this is the degree of diligence, therefore, which applies to contracts of this sort, as well by the common law as by the Roman and foreign law.* Thus, a watchmaker, having a watch left with him for repairs, is obliged to use ordinary diligence in keeping it ; and if he omits it, and the watch is lost, he is liable for the value in damages.^ So, a workman is bound, not only to guard the thing bailed against ordinary hazards, but also to exert himself to preserve it from any unexpected danger to which it may be exposed.^ It has been already observed, that different things may require very 1 Pothier, Contrat de Louage, n. 428 ; 2 Kent, Comm. Lect. 40, p. 588, 589, 4th edit. 2 Dig. Lib. 19, tit. 2, 1. 13, § 5; Pothier, Pand. Lib. 19, tit. 2, n. 35 ; Pothier, Contrat de Louage, n. 428 ; 2 Kent, Comm. Lect. 40, p. 587-589, 4th^edit. ; 1 Domat, B. 1, tit. 4, § 8, art. 4, 8, 9 ; post, § 432. 3 Ante, § 23. * Ante, § 398; Jones on Bailm. 91, 94 ; Pothier, Contrat de Louage, n. 429 ; 1 Domat, B. 1, tit. 4, § 8, art. 3; 2 Kent, Comm. Lect. 40, p. 457, 458, 4th edit. ; 1 Bell, Comm. 453, 455, 5th edit. ; Id. § 389, 390, 4th edit. ; {Fiussell V. Koehler, 66 111. 459 ; Baird v. Daly, 57 N. Y. 236; Smith v. Meegan, 22 Mo. 150 ; Gamber v. Wolaver, 1 W. & S. 60 ; Searle v. Laverick, L. R. 9 Q. B. 122. } 5 Clarke v. Earnshaw, 1 Gow, 30 ; [Halyard v. Deohelman, 29 Mo. 459.] ^ Leek V. Maestaer, 1 Camp. 138. 392 HIKE OF LABOR AND SEE VICES. [CH. VI. different care.^ The care required in building a common door-way is quite different from that required in raising a marble pillar, although both might come under the description of ordinary care.^ § 430. Pothier maintains, that, in cases of theft, the bailee of work is liable to his employer for the loss of the thing. It is probable, that he holds this doctrine upon the general ground of the Roman law, that it is presumptive evidence of ordinary negligence.^ It has been already seen, that at the common law the rule is different ; for whether the bailee will in such a case be liable or not, for the loss, will depend, not upon the mere fact of theft, but upon the question whether the loss has been occasioned by the want of ordinary care, that is to say, by the ordinary negligence of the bailee.* § 431. Where skill, as well as care, is required in perform- ing the undertaking, there, if the party purports to have skill in the business, and he undertakes for hire, he is bound, not only to ordinary care and diligence in securing and preserving the thing, but also to the exercise of due and ordinary skill in the employment of his art or business about it ; or, in other words, he undertakes to perform it in a workmanlike manner.^ '^n cases of this sort he must be understood to have engaged to use a degree of diligence and attention and skill, adequate to the due performance of his undertaking.^.^ And if he has not the proper skill, or if, having it, he omits to use it, or if he omits in other respects the proper degree of diligence and attention required for the work, he will be responsible for 1 Ante, § 15. 2 1 Bell, Comm. p. 458, 5th edit.; 1 Bell, Comm. § 394, 4th edit. 8 Pothier, Cont^at de Louage, n. 429-431; ante, § 38, 39, 333 to 339 ; 1 Domat, B. 1, tit. 4, § 8, art. 3. 4 Ante, § 38,39, 333 to 339. 5 Jones on Bailm. 91 ; 2 Kent, Comm. Lect. 40, p. 586-588, 4th edit.; 1 Bell, Comm. 459; [Kuehn v. Wilson, 13 Wis. 104;] {Gamber v. Wol- aver, 1 W. & S. 60 ; Smith v. Meegan, 22 Mo. 150 ; Spaugler v. Eicholtz, 25 111. 297. See also, as to the unskilfulness of the bailee's own work- man, Baird v. Daly, 57 N. Y. 236.} 8 Jones on Bailm. 22, 53, 62, 97, 98, 120, 121 ; Coggs v. Bernard, 2 Ld. Kaym. 909, 918 ; jMoneypenny v. Hartland, 1 Carr. & Payne, 352; s. c. 2 Carr. & Payne, 378; 1 Domat, B. l,tit. 4, § 8, art. 1 ; Pothier, Contrat de Louage, n. 425. CH. VI.] HIRE OP LABOR AND SERVICES. 393 the damages sustained thereby by his employer.^ The general maxim is : " Spondet peritiam artis.^ Imperitia culpse adnu- meratur."3 /It is the party's own fault, if he undertakes without h5(fving sufficient skill, or if he applies less than the occasion requires. '^'And it has been well observed, that, where a person is employed in a work of skill, the employer buys both his labor and his judgment. He ought not to undertake the work, if he cannot succeed ; and he should know whether he can or not.* Thus, if a farrier undertakes the cure of a diseased or lame horse, he is bound to apply a reasonable exercise of skill to the cure ; and if through his ignorance or bad management the horse dies, he will be liable for the loss.^ So, if a ship-carpenter undertakes to build a ship, he engages for the exercise of reasonable skill, as well as proper care in building it ; and he will be liable for any loss or injury sustained by his employer by his negligence or want of skill.^ So, if a person employs a proper mechanic or artisan to erect a stove in a shop, and lay a tube under the floor for the purpose of carry- ing oif the smoke, and the plan should fail, the workman will not be entitled to any compensation ; and if damages are sus- tained, he will be liable therefor.^ Of course, this doctrine is subject to the exception, that the undertaker is permitted to act upon his own judgment; for if his employer chooses to supersede the judgment of the undertaker, and requires his 1 1 Bell, Comm. p. 456, 5th edit. ; 1 Bell, Comm. § 393, 4th edit. 2 Jones on Bailm. 23, note (m); Id. 98, note (1); Pothier, Contrat de Louage, n. 425 to 428; Pardes. Droit Comm. P. 2, art. 528 ; Ayliffe, Pand. B. 4, tit. 7, p. 466 ; Ersk. Inst. B. 3, tit. 3, § 16; 1 Bell, Comm. p. 459, 5th edit. ; 1 Bell, Comm. § 394, 4th edit. 8 Dig. Lib. 50, tit. 17, 1. 132 ; ante, § 428 ; Dig. Lib. 4, tit. 9,1.5; Dig. Lib. 19, tit. 2, 1. 9, § 5; Pothier, Pand. Lib. 19, tit. 2, n. 29; 2 Kent, Comm. Lect. 40, p. 588, 4th edit.; Pothier, Contrat de Louage, n. 425; Jones on Bailm. p. 98 ; 1 Domat, B. 1, tit. 16, § 204. ^ * Duncan v. Blundell, 3 Stark. 6 ; Moneypenny v. Hartland, 1 Carr. & Payne, 352; s. c. 2 Carr. & Payne, 378. 6 Jones on Bailm. 62, 99, 100 ; 1 Roll. Abr. 10; 1 Bell, Comm. p. 459, 461, 5th edit. ; 1 Bell, Comm. § 394, 4th edit. 6 Pothier, Pand. Lib. 19, tit. 2, n. 29. ' Duncan v. Blundell, 3 Stark. 6; Famsworth v. Garrard, 1 Camp. 39; Moneypenny «. Hartland, 1 Carr. & Payne, 352; 2 Carr. & Payne, 378. 394 HIRE OF LABOE AND SEBVICES. [CH. VI. own to be followed, he must not only bear the loss, but pay the full compensation.^ The Roman law states the general doctrine as to the exercise of due skill in the following broad terms: "Si quis vitulos pascendos, vel sarciendum quid, poli- endumve conduxit, culpam earn praestare debere ; et quod imperitia peccavit, culpam esse, quippe ut artifex conduxit."^ § 432. The degree of skill and diligence which is required rises also in proportion to the value, the delicacy, and the difficulty of the operation.^ Thus, an artisan, employed to repair a very delicate mathematical instrument, is expected to exert more care and more skill than he would about com- mon instruments. The case put by Gaius is of this nature. The removal or raising of a fine pillar of granite or porphyry, without injuring the shaft or the capital, requires peculiar care and skill ; and the law exacts, therefore, more than ordinary diligence and skill in the undertaker of such a work for a stipulated compensation, that is, more diligence and skill than are required of workmen in removing ordinary things of the same material.* But, if all things are done by the un- dertaker, which a very diligent and skilful workman would observe, and there is no negligence, he will be exonerated, although the column should be fractured.^ The language of Gaius is : " Qui columnam transportandam conduxit, si ea dum tollitur, aut portatur, aut reponitur, fracta sit, ita id periculum prsestat, si qu& ipsius eorumque, quorum opera uteretur, culpa acciderit. Culpa autem abest, si omnia facta sunt, qu£6 diligentissimus quisque observaturus fuisset."^ So (as we have seen),^ if a gem is delivered to a jeweller to be 1 Duncan v. Blundell, 3 Stark. 6. 2 Dig. Lib. 19, tit. 2, 1. 9, § 5; Pothier, Pand. Lib. 19, tit. 2, n. 29. ' Ante, § 1.5; Jones on Bailm. p. 38, 39. ■i Jones on Bailm. 98 ; Dig. Lib. 19, tit. 2, 1. 25, § 7; 2 Kent, Comm. Leot. 40, p. 587, 4th edit. 6 Jones on Bailm. 98; Dig. Lib. 19, tit. 2, 1. 25, § 7 ; Id. L 15, § 5; ante, § 428 a; Ayliffe, Pand. B. 4, tit. 7, p. 463. Mr. Bell, in his Com- mentaries, has laid down some rules on the subject of professional skill, which may assist the learned inquirer in his efforts to arrive at a just criterion. 1 Bell, Comm. § 894, 4th edit. ; 1 Bell, Comm. p. 459, 460, 5th edit. « Dig. Lib. 19, tit. 2, 1. 25, § 7. ' Ante, § 428. CH. VI.] HIKE OF LABOR AND SERVICES. 395 set or engraved, and it is broken ; if this arises solely from the defect of the material, the jeweller is not responsible. But it is otherwise, if it arises from the unskilfulness, or negligence, or rashness of the artisan.^ So, if clothes are delivered to a fuller to be dressed, and he suffers them to be eaten by mice, he will be responsible, if it is by his negligence. The Roman law imputed negligence to him in such a case. " Si f ullo vestimenta polienda acceperit, eaque mures roserint, ex locato tenetur ; quia debuit ab hac re cavere." ^ § 433. But in all these cases, where skill is required, it is to be understood, that it means ordinary skill in the particu- lar business or employment which the bailee undertakes or in which he is engaged. For he is not presumed to engage for extraordinary skill, which may belong to a few men only in his business or employment, or for extraordinary personal endowments or acquirements. Reasonable skill constitutes the measure of the engagement of the workman in regard to the thing undertaken.^ § 484. Sir William Jones, however, while he admits the general rule, seems to intimate in one place a more stringent doctrine. " When," says he, " a person, who, if he were wholly uninterested, would be a mandatary, undertakes for a reward to perform any work, he must be considered as bound still more strongly to use a degree of diligence adequate to the performance of it. His obligation must be rigorously construed ; and he would perhaps be answerable for slight neglect, where no more would be required of a mandatary than ordinary exertions." * And he adds : " This is the case of commissioners, factors, and bailiffs, when their undertak- ing lies in feasance, and not simply in custody." ^ Now, this • Dig. Lib. 19, tit. 2, 1. 13, § 5 ; Pothier, Contrat de Louage, n. 428. 2 Dig. Lib. 19, tit. 2, 1. 13, § 6 ; Potliier, Pand. Lib. 19, tit. 2, n. 29 ; Dig. Lib. 4, tit. 9, 1. 5 ; Jones on Bailm. 105; 2 Kent, Comm. Lect. 40, p. 587-589, 4th edit. ; 1 Domat, B. 1, tit. 4, § 8, art. 3. We have already seen, that our law is or may be different ; for if ordinary precautions are used, and the clothes are eaten by mice, the bailee would not be respon- sible. Ante, § 408. 3 Moore v. Morgue, Cowp. 479 ; Jones on Bailm. 94 ; 1 Bell, Comm. p. 458, 459, 5th edit. ; 1 Bell, Comm. § 394, 4th edit. * Jones on Bailm. 98. ' Ibid. 396 HIEE OF LABOR AND SERVICES. [CH. VI. seems inconsistent with the general principles applicable to bailments to hire. In such cases the bailee is liable only for ordinary neglect, and not for slight neglect ; for ordinary neglect of skill, and not for slight neglect of skill. In short, as a workman, he undertakes for the ordinary diligence of a workman in business of that sort ; and he is responsible only for the omission of it.^ The verj' case put by Sir William Jones, of commission merchants, factors, and bailiffs, when their undertaking lies in feasance,^ shows his mistake ; for it is clear, that they are responsible only for ordinary diligence and skill. 3 Sir William Jones may have been misled by considering, that, as the rule of the Roman law, as well as that of the common law, makes the bailee answerable for a skill in his business adequate to the undertaking, he is an- swerable at all events, if there is the slightest negligence in applying that skill. Whereas, in truth, he is only answer- able if he is guilty of ordinary negligence in applying it. Domat seems to have adopted a similar mode of reasoning ; and Pothier probably means to assert the same doctrine.* § 435. But even where the particular business or employ- ment requires skill, if the bailee is known not to possess it, or he does not exercise the particular art or employment to which it belongs, and he makes no pretension to skill in it ; there, if the bailor, with full notice, trusts him with the un- dertaking, the bailee is bound only for a reasonable exercise of the skill which he possesses, or of the judgment which he can employ ; and if any loss ensues from his want of due skill, he is not chargeable.^ Thus (to put a case borrowed from the Mahometan law), if a person will knowingly employ a common mat-maker to weave or embroider a fine carpet, he 1 2 Kent, Comm. Lect. 40, p. 586-589, 4th edit. ; 1 Bell, Comm. p. 459-461, 5th edit. ; 1 Bell, Comm. § 394, 4tli edit. 2 Jones on Bailm. 98. 8 Russel V. Palmer, 2 Wils. 325; Denew v. Daverell, 8 Camp. 451; Shiells V. Blackburne, 1 H. Black. 159; Seare v. Prentice, 8 East, 348. 1 1 Domat, B. 1, tit. 4, § 8, art. 3 ; Pothier, Contrat de Louage, n. 425 to 428. 6 Jones on Bailm. 63, 98, 99, 100; Coggs v. Bernard, 2 Ld. Kaym. 909, 914, 915 ; 1 Bell, Comm. p. 459, 5th edit. ; 1 Bell, Comm. § 394, 4th edit. CH. VI.] HIRE OP LABOR AND SERVICES. 397 must impute the bad workmanship to his own folly.' So, if a man who has a disorder in his eyes, should employ a farrier to cure the disease, and he should lose his sight by using the remedies prescribed in such cases for horses, he would cer- tainly have no legal ground of complaint.^ Indeed, in all such cases, the employer ought properly to attribute the loss or injury to his own rashness, or folly, or supine negligence ; and the rule of the Roman law may justly be applied : " Qui negligenti amico rem custodiendam, committat de se queri debet ; ^ non ei, sed suse facilitati, id imputare debet." * § 436. In cases of the hire of work, the hirer is liable, not only for misfeasance, but also for nonfeasance ; and in this respect the contract differs from that of a mere gratuitous mandatary.^ The reason is, that in case of hire there is a mutuality of consideration to support the contract; and therefore the party is bound to a positive fulfilment of all its terms ; whereas in cases of a gratuitous mandate, the man- datary cannot be compelled to execute his undertaking, if he has not already entered upon the execution of it.® § 437. From what has been before said, it follows, that a workman is not chargeable, if the thing perishes while in his custody, without his default, either by inevitable casualty, or by internal defect, or by superior force, or by robbery, or by any other peril, not to be guarded against by ordinary dili- gence ; ^ unless, indeed, he has taken such risks upon himself by a special contract.^ 1 Jones ou Bailm. 99, 100. ^ Jones on Baaloi. 99, 100; ante, § 2, sub Jinem, note (2) ; ante, § 169 to 172 ; Beauchamp «. Powley, 1 Mood. & Rob. 38. s Dig. Lib. 44, tit. 7, 1. 1, § 5. * Just. Inst. Lib. 3, tit. 15, § 3; ante, § 63. ^ Jones on Bailm. 101; 3 Bl. Comm. 157; Elsee v. Gatward, 5 Term R. 143 ; Thome v. Deas, 4 Johns. 84. i ' Ante, § 2, sub finem, note (2) ; ante, § 164 to 172; Beauchamp v. Powley, 1 Mood. & Rob. 38; Callendar v. Oelricks, 1 Arnold, 401, 404. ^ Jones on Bailm. 88, 98, 119, 120 ; Pothier, Contrat de Louage, n. 428 ; Id. n. 434; Pard. Droit Comm. P. 2, art. 526; 1 Domat, B. 1, tit. 4, § 8, art. 4, 9 ; Code Civil of France, art. 1789, 1792. 8 Ante, § 426-428; Pothier, Contrat de Louage, n. 428; {Russell ». Koehler, 66 111. 459; Waller v. Parker, 5 Coldw. 476. Otherwise, where the fault is his own, as if one in possession of a boat for repairs should 398 HIRE OF LABOR AND SERVICES. [CH. TI. § 438. And here it may not be unimportant again to take notice of the distinction, already alluded to,^ between cases where the workman is to make a thing out of materials owned by his employer, and cases where he is to make it out of his own materials. In the former cases, if the thing perishes without his default, before it is completed or delivered to his employer, he is, or he may be, entitled (as we have seen) to a compensation to the extent of his work actually done.^ But in the latter cases the whole loss is his own, if the thing perishes before a delivery of it to his employer, and he is en- titled to no recompense.^ In each case, however, the same rule of law applies : Res perit domino. The only difference is, that in the one case the employer is the owner ; and in the other, the workman. In the first case, it is a mere bail- ment ; in the last, it is the sale of a thing in future^ § 439. The distinction, too, between cases of mutuum and cases of bailment on hire, deserves mention in this place, although much of what would probably apply here has been already suggested under the preceding remarks, as well as under the head of gratuitous loans. ^ The distinction between the obligation to restore the specific things, and the obliga- tion to return other things of the like kind, and equal in value, holds in cases of hiring as well as in cases of deposits and gratuitous loans .^ In the former cases, it is a regular bailment ; in the latter, it becomes a debt or innominate con- tract.^ Thus, according to the famous law of Alfenus, in the Digest (already incidentally referred to),^ if an ingot of sil- ver is delivered to a silversmith to make an, urn, the whole property is transferred, and the employer is only a creditor launch her when danger from ice might easily have been foreseen. Smith V. Meegan, 22 Mo. 150.} . ' Ante, § 427 a. = Ante, § 426, 427 a; 1 Domat, B. 1, tit. 4, § 8, art. 4, 9; Pothier, Contrat de Louage, n. 434; 1 Bell, Comm. p. 458, 5th edit.; 1 Bell, Comm. § 394, 4th edit. s Ante, § 427 a. i 1 Domat, B. 1, tit. 4, § 7, art. 3 ; Id. § 8, art. 10; ante, § 427, 427 a. s Ante, § 47, 228, 28-3, 370 a, 415 a. ^ Pothier, Traite de Depdt, n. 82 ; Jones on Bailm. 82 ; ante, § 370 a. ' Jones on Bailm. 102; ante, § 228, 283, 370 a. 8 Ante, § 370 a, 415 a. CH. VI.J HIKE OF LABOR AND SERVICES. 399 of metal equally valuable, which the workman engages to pay in a certain shape, unless it is agreed that the specific silver, and none other, shall be wrought up into the urn.^ So, where A. delivered to B. some cotton yarn, on a contract to manufacture the same into cotton plaids, and B. was to find the filling, and was to weave so many yards of plaids, at eighteen cents per yard, as was equal to the value of the yarn at sixty-five cents per pound, it was held to be a sale of the yarn, and that by the delivery of it to B. it became his property, and he was responsible for the delivery of the plaids, notwithstanding the loss of the yarn by an accidental fire.^ But if A. and B. had agreed to have the particular yarn, with filling to be found by B., made into plaids on joint account, and the plaids, when woven, were to be divided ac- cording to their respective interests in the value of the mate- rials, and the plaids, before the division, had been burnt by an accidental fire, the loss would have been (it should seem) mutual, each losing the materials furnished by himself.^ § 440. There are some other obligations implied on behalf of the bailee of work on the thing. Among these, is the duty of observing good faith, and practising no fraud, deceit, or imposition on his employer, either as to the quality, or quantity, or nature of his services.* He is also bound to conform to all the special stipulations, which constitute a part of the contract.^ When the work is done, he is bound to return the thing in good order to his employer. But this 1 Ante, § 370 a, 415 a; Jones on Bailm. 102 ; Id. 64; Dig. Lib. 19, tit. 2, 1. 31 ; Ersk. Inst. B. 3, tit. 1, § 18; 1 Domat, B. 1, tit. 4, § 1, art. 4; 2 Kent, Comm. Lect. 40, p. 588, 589, 4th edit. [See Chase v. Washburn, 1 Ohio St. 249;] {Brown v. Hitchcock, 28 Vt. 452; Foster v. Pettibone, 7 N. Y. 433; McKay v. Hamblin, 40 Miss. 472; 2 Sch. Pers. Prop. 38, 39, 704, 705.} 2 BulEum V. Merry, 3 Mason, 478. ' Ibid. See also Pierce b. Schenck, 3 Hill, 28; Barker v. Roberts, 8 Greenl. 101 ; ante, § 228, 283. * Pothier, Contrat de Louage, n. 432. {A bailee who •wrongfully sells or pawns the thing forfeits his lien. Rodgers v. Grothe, 58 Penn. St. 414 ; Davis v. Bigler, 62 Penn. St. 242.} * Pothier, Contrat de Louage, n. 433 ; Pothier, Fand. Lib. 19, tit. 2, n. 35. 400 HIKE OF LABOR AND SERVICES. [CH. VI. duty of returning the thing requires some qualification. For every bailee for hire has a lien on the thing for the amount of his compensation ; and therefore he is not, unless it is specially otherwise agreed, bound to restore the thing bailed until that compensation is paid.^ Thus a tailor, who has made a suit of garments out of the cloth delivered to him, is not bound to deliver the suit to his employer, until he is paid for his ser- vices. Neither is a ship-carpenter bound to restore the ship which he has repaired ; nor a jeweller the gem which he has set, or the seal which he has engraved ; nor an agistor, the horse which he has taken on hire, — until their respective compensations are paid.^ But this lien of a workman belongs strictly to the person contracting to do the work or services, and not to the persons employed under him.^ The lien, too, in case of a sale of the thing by the owner, attaches only to the amount of the debt existing in favor of the party at the time when he has notice of the sale, and not for any after- accruing debt.* § 441. Questions of a very embarrassing nature sometimes arise upon contracts of hire at the common law ; as, for in- stance, how far a workman is entitled to receive compensa- tion, when his work has been left unfinished and incomplete ; or he has done it improperly ; or he has deviated from the directions of his employer. The question may arise under a general contract of hire, or under a special contract. It may arise where the contract is yet executory and open, or where 1 Mclutyre v. Carver, 2 Watts & Serg. 392; [Gregory v. Stryker, 2 Denio, 628 ; Morgan v. Congdon, 4 Comst. 551; Nevan v. Roup, 8 Iowa, 211; Wilson v. Martin, 40 N. H. 88; Lovett v. Brown, Id. 511; Farring- ton V. Meek, 30 Mo. 578.] {This lieu is lost by the bailee's voluntary relinquishment of his possession ; nor can it exist where credit is given for his dues. Tucker v. Taylor, 53 Ind. 93; Nevan v. Roup, 8 Iowa, 207. But there remains the usual remedy by action against the party indebted. Garrard v. Moody, 48 Ga. 96. See further Rodgers o. Grothe, 58 Penn. St. 414; Hazard v. Manning, 15 N. Y. Supr. 613; 1 Sch. Pers. Prop. 484-500. } 2 2 Roll. Abridg. 92, M. 1; Blake v. Nicholson, 3 Maule & Selw. 167 ; Chase v. Westmore, 5 Maule & Selw. 180; Ex parte Deese, I Atk. 228. {But as to an agistor, see post, § 443.} 8 Holhngsworth v. Dow, 19 Pick. 228. * Barry v. Longmore, 4 Perry & Dav. 344. CH. VI.] HIRE OF LABOR AND SERVICES. 401 the work has been finished, and the contract executed. Where the work is done under a general contract of hire, if it is badly and improperly done, the workman will be entitled to recover nothing in case it totally fails of being of any use or value, or is wholly inadequate to the purpose for which it was designed. But if it has some use or value, although imperfectly or inartificially done, the workman is entitled to recover as much as the labor, services, and materials are rea- sonably worth, under all the circumstances.^ Where the work is left unfinished and incomplete, by the wilful neg- lect or wanton refusal of the workman to complete it, if it has been undertaken to be done by the job, and so the con- tract is entire, he cannot recover any thing.^ And if he works by the day, he is at most entitled to no compensation beyond what remains after deducting all damages which the employer may have suffered by his omission or refusal. If the work is prevented from being completed by inevitable accident, the workman will be entitled to receive compensa- tion |jro tanto, as we have already seen.^ If he is prevented from completing it by the act or negligence of the employer, he will be entitled to a full compensation.* § 441 a. On the other hand, if the work has been done under a special contract, according to the general rule of the common law, no compensation can be recovered under that contract, unless all the terras and stipulations thereof have been exactly complied with and fulfilled.^ Thus, if a car- penter has undertaken to erect a house according to a partic- ' Farnsworth v. Garrard, 1 Camp. 38; Basten v. Butter, 7 East, 479 ; Cutler b. Close, 5 Carr. & Payne, 337; Thornton v. Place, 1 Mood. & Kob. 218; Grant u. Button, 14 Johns. 377. {See Hillyard u. Crabtree, 11 Texas, 264. } 2 Sinclair v. Bowles, 9 Barn. & Cressw. 92 ; Faxon v. Mansfield, 2 Mass. 147. 8 Ante, § 426, 437. ^ Post, § 441 a; Dubois v. Del. & Hudson Canal Co., 4 Wend. 285; 1 Bell, Comm. p. 456, 5th edit. ; 1 Bell, Comm. § 391, 393, 4th edit. s Ellis w. Hamlen, 3 Taunt. 52; Jennings u. Camp, 13 Johns. 94; Mc- Millan V. Vanderlip, 12 Johns. 165; Cutter v. Powell, 6 Term R. 320; Thornton i'. Place, 1 Mood. & Rob. 218 ; Cooke v. Munstone, 4 Bos. & Pull. 335; 1 Bell, Comm. p. 456, 5th edit. ; Id. § 391, 393, 4th edit. 26 402 HIRE OF LABOE AND SERVICES. [CH. VI. ular plan, and for a specified price, and by his own default he does not complete the work ; or if he deviates from the plan, or he does the work unfaithfully, unskilfully, or improp- eY]y, he cannot recover under the special contract.^ If the work is not completed, he is not entitled to recover any thing ; because the special contract is j'et open and unexecuted, and he cannot avail himself of his own default or misconduct to rescind it.^ If he has deviated from the plan or contract, or he has done the work unskilfully or improperly, he cannot recover ; because such a deviation or misconduct in the work is not a fulfilment, but is a violation of the contract, entitling the employer to damages. § 441 b. And formerly it seems to have been thought that, under any of these circumstances, the workman was not en- titled to recover any compensation whatsoever in any other form of action, or upon a quantum meruit.^ But the doc- trines and distinctions now maintained by the better author- ities are these. If the special contract still remains open, and is unexecuted by the misconduct or default of the work- man, he cannot recover any thing for his work and labor and materials employed in part fulfilment of the contract.* If the contract has been rescinded by the parties, or the work has not been completed from inevitable accident, and is inca- pable of being completed, or if the emploj^er has prevented or dispensed with the due execution thereof, the workman is entitled, in the former case, to a compensation pro tanto for the work done, unless there is something in his contract which prevents it ; ^ and in the latter case, to a full compen- 1 Ellis V. Hamlen, 3 Taunt. 52; Cousins c. Paddon, 2 Cromp., Mees. & Rose. 547 ; Burn r. Miller, 4 Taunt. 745, 747; Taft v. Montague, 14 Mass. 2S2; Jewell v. Scliroeppel, 4 Cow. 564; Sickels v. Pattison, 14 Wend. 2.37. ^ Jennings v. Camp, 13 Johns. 94. s Ellis V. Hamlen, 3 Taunt. 53. ■* Sinclair v. Bowles, 9 Barn. & Cressw. 92; Clarke d. Smith, 14 Johns. 326; Raymond v. Bearnard, 12 Johns. 274; Jennings v. Camp, 13 Johns. 94; Faxon v. Mansfield, 2 Mass. 147; McMillan v. Vanderlip, 12 Johns. 165 ; Champlin «. Butler, 18 Johns. 169. 5 Ante, § 426, 437; Robson v. Godfrey, 1 Starkie, 275; Raymond v. Bearnard, 12 Johns. 274; Dubois v. Del. & Hudson Canal Co., 4 Wend. 285. CH. VI.] HIEE OF LABOR AND SERVICES. 403 sation on account of the default on the other side.^ If the work has been done, and fully completed, but not accordmg to the terms of the special contract, as if there has been a deviation from the plan or contiact, or a bad and improper execution thereof, or the work has not been completed within the stipulated time, there the workman will be entitled to recover compensation, or not, according to circumstances. If the work has been so improperly and unskilfully done, that it is of no use, benefit, or value to the employer, or does not in any manner whatsoever answer the intended purpose, no compensation whatsoever is recoverable.^ But if the work, although improperly or unskilfully done, is still of some use, benefit, and value to the employer, the workman will be en- titled to recover so much as the work is reasonably worth to the employer, under all the circumstances, making him all due and reasonable deductions and allowances.^ If the work has been well and properly done, but not within the stipu- lated time, the workman will, in like manner, be entitled to the compensation stipulated in the contract, making to the employer all due deductions and allowances for any damage or loss occasioned by the delay.* § 441 c. In cases where there has been a deviation from the terms of the contract, by doing any extraordinary work, or by using materials of a superior quality or value, not contem- plated by the contract, the undertaker will not be entitled to any compensation therefor, even if such extraordinary work or superior materials have greatly enhanced the value of the 1 See Koon v. Greenman, 7 Wend. 121; Dubois v. Del. & Hudson Canal Co., 4 Wend. 285. 2 Buller, Nisi Prius, 139; Farnsworth ». Garrard, 1 Camp. 38; Dun- can V. Blundell, 3 Starkie, 6; Batten v. Butter, 7 East, 479; Linningdale V. Livingston, 10 Johns. 36; Jennings v. Camp, 13 Johns. 94, 97; Grant V. Button, 14 Johns. 377; Jewell ». Schroeppel, 4 Cow. 564; Chapel i>. Hickes, 2 Cromp. & Mees. 214; s. c. 4 Tyrw. 43; Cutler v. Close, 5 Carr. & Payne, 337; Thornton v. Place, 1 Mood. & Rob. 218; Taftw. Montague, 14 Mass. 282; Feeter v. Heath, 11 Wend. 477. 2 Ibid. { For damages where the mechanic injures or wastes the mate- rials furnished, see Hillyard v. Crabtree, 11 Texas, 264.} * Jewell V. Schroeppel, 4 Cow. 564. See Littler v. Holland, 3 Term R. 590; Philips v. Rose, 8 Johns. 392; Dubois v. Del. & Hudson Canal Co., 4 Wend. 285; {Trent, &c. Co., in re, L. R. 4 Ch. 112.} 404 HIRE OF LABOE AND SERVICES. [CH. VI. thing, and are for the benefit of the employer, unless they have been so done and used with his consent, or by his ap- proval or acquiescence.^ But if, in either case, the deviation from the contract was with the assent or the acquiescence of the employer, then the undertaker will be entitled to recover upon the original contract, so far as it can be traced, and has been followed, in the execution of the contract, and on a quantum meruit for the residue of his services.^ If the work has, with the express assent or the acquiescence of the em- ployer, been left incomplete, or the latter has knowingly dispensed with a perfect and skilful performance of it, in like manner a full compensation can be recovered by the under- taker.^ Where work has been done on the property of the employer, it is sometimes difficult to deduce any just inference of such assent, or acquiescence, or dispensation with the terms of the original contract ; because he is often compelled to use the thing as it is, with all its imperfections, especially if the work is done on a thing of an immovable nature.* But where the thing is of a movable nature, and may be rejected, if unsatisfactory, as, for example, a bureau, made out of a log of mahogany belonging to the employer, or a silver urn, made out of old silver furnished by the employer, there the receipt of the article without any objection may, in many cases, perhaps, furnish a just ground to presume a waiver of all objections, notwithstanding the unskilfulness or incomplete- ness of the workmanship. § 441 d. These doctrines of the common law do not seem essentially to differ from those promulgated on the same sub- ject in the Roman law and in the foreign law. By the Roman 1 1 Bell, Comm. p. 455, 456, 5th edit.; 1 Bell, Comm. § 391, 393, 4th edit. ; Wilmot v. Smith, 3 Carr. & Payne, 453 ; Lovelock v. King, 1 Mood. & Rob. 60; Burn v. Miller, 4 Taunt. 745, 749. 2 1 Bell, Comm. p. 455, 456, 5th edit.; 1 Bell, Comm. § 391, 393, 4th edit.; Bank of Columbia v. Patterson, 7 Cranch, 299; s. c. 2 Peters, Cond. 501; Robson v. Godfrey, 1 Stark. 275; s. c. 1 Holt, 236; Pepper V. Burland, Peake, 103. * Linningdale v. Livingston, 10 Johns. 36; Burnt). Miller, 4 Taunt. 745, 749; Dubois v. Del. & Hudson Canal Co., 4 Wend. 285; HoUinshead V. Mactier, 13 Wend. 276. * 1 Bell, Comm. 456, 5th edit. CH. VI.] HIRE OF CUSTODY. 405 law, where the work was improperly done, or not done accord- ing to the contract in point of time, or otherwise, the emplo3'er was entitled to damages, or to a deduction fro tanto from the compensation.^ Where the work was left undone or incom- plete on account of some inevitable accident, which rendered the completion of the work impossible, the workman was held entitled to no compensation, and was excused from all dam- ages for the non-performance.^ We have already had occasion incidentally to notice the French law on this subject.^ In Scotland, in all cases of unauthorized deviation from the con- tract, or of imperfect and improper execution of the work, the rule seems to be, that balancing the inconvenience and damage arising from the imperfect or faulty performance against the benefit actually derived from the work, the workman is entitled to demand, or bound to make up, the difference.* AKT. in. HIRE OF CUSTODY. [§ 442. Hire of Custody, Nature of. 443. Agistors of Cattle, Rights and Responsibility of. 444. Warehouse-Men, Rights and Responsibility of. 445. Wlien the Responsibility of Warehouse-men begins and ends. 446-449. Cases where a person is a Warehouse-man and Carrier. Forward- ing merchants. 450. Effect of Misdelivery. 450 a. Responsibility for injury by negligence, when the goods are afterwards lost. 451. Wharfingeks, Rights and Responsibility of. 452. The same subject. Whether distinguished from Warehouse-men. 453. When Responsibility of, begins and ends. 454. Onus Probandi, on whom, in cases of Hire of Custody. 455. Factors and other Bailiffs, Rights and Responsibility of. 456. The same subject. Obligation to Insure.] § 442. We are next led to the consideration of bailments of LocATio CusTODiiE, or Deposits for Hire. A contract of this ■ Dig. Lib. 19, tit. 2, 1. 51, 58, 60; Pothier, Pand. Lib. 19, tit. 2, n. 24-26. 2 Dig. Lib. 19, tit. 2, 1. 15, § 6; iPothier, Pand. Lib. 19, tit 2, n. 2.3, 68. 8 Ante, § 426, 427, 437, 438; Pothier, Contrat de Louage, n. 433; Code Civil of France, art. 1789, 1790; Code of Louisiana of 1825, art. 2730, 2731. * 1 Bell, Comm. p. 455, 456, 5th edit. 406 HIRE OP CUSTODY. [CH. VI. sort may be properly deemed, as has been already stated, a hiring of care and attention.^ St. Germain seems not to make any distinction, at least not in one part of his work, between a gratuitous depositary and a depositary for hire, as to the degree of diligence exacted of him.^ But Sir William Jones, with great propriety, insists, that there is a wide difference between them ; and that bailees of this sort, like other bailees upon a contract of mutual interest, are bound to ordinary diligence, and of course are responsible for losses by ordinary negligence.^ To this class belong Agistors of Cattle, Ware- house-men, Forwarding Merchants, and Wharfingers, whose obligations would, therefore, seem to fall within the general rule.* § 443. (1) As to Agistors of Cattle, it has been decided, that they are within the general rule.^ They do not insure the safety of the cattle agisted, but they are merely responsible for ordinary negligence.^ It will, however, be such negligence for an agistor or his servants to leave open the gates of his field ; and if, in consequence of such neglect, the cattle stray away, and are stolen, he will be responsible for the loss.'' They have also, in virtue of their custody, such a possession and title, that they may maintain trespass or trover against a wrong-doer for any injury to their possession, or any conversion of the property.^ By the Roman law the agistor was made ' Jones on Bailm. 96, 97 ; 1 Bell, Comm. p. 458, 5th edit. ; 1 Bell, Comin. § 394, 4th edit. ; ante, § 370, 422. 2 Doct. and Stud. Dial. 2, ch. 38. 5 Jones on Bailm. 87; 1 Bell, Comm. p. 458, 5th edit. ; 1 Bell, Comm. § 394, 4th edit. * Ante, § 91, 92; post, § 443, 444, 451. ^ Jones on Bailm. 91, 92. « Jones on Bailm. 91, 92; Broadwater v. Blot, Holt, 547; 1 Bell, Comm. p. 458, 5th edit.; 1 Bell, Comm. § 394, 4th edit. ; [McCarthy v. Wolfe, 40 Mo. 520;] |Halty w. Markel, 44 111. 225; Eastman i. Patterson, 38 Vt. 146 ; Maynard v. Buck, 100 Mass. 40 ; Smith v. Cook, 1 Q. B. D. 79; Searle v. Laverick, L. R. 9 Q. B. 122.} ' Jones on Bailm. 92 ; 1 Bell, Comm. p. 458, 5th edit. ; 1 Bell, Comm. § 394, 4th edit. {And see Swann v. Brown, 6 Jones, L. 150. } 8 2 Roll. Abridg. 551; Sutton v. Buck, 2 Taunt. 309, per Chambre, J.; 8. p. stated arguendo by counsel in Rooth v. Wilson, 1 Barn. & Aid. 59; CH. VI.J HIKE OP CUSTODY. 407 responsible, not only for reasonable diligence, but for reason- able skill in his business, which, indeed, is also true in the common law ; and ignorance of his proper duty is treated as negligence. " Si quis vitulos pascendos conduxit, culpam earn preestare debere ; et quod imperitiS, peccavit, culpam esse ; quippe, ut artifex conduxit." ^ The same rule prevails in the modern foreign law.^ § 444. (2) As to Warehotjse-mbn, it is also clear that they come within the general rule, and are bound only to take common and reasonable care of the commodity intrusted to their charge.^ If, therefore, the commodity is injured or 21 Hen. 7, 14 (b); Burton v. Hughes, 2 Bing. 173; 2 Black. Coram, p. 452, 453 ; 2 Saund. 47 e, note by Williams. Quasre, whether an agis- tor has a lien for his keep. Grinnell o. Cook, 3 Hill, N. Y. 485. {See post, § 453 a. } It seems that a livery-stable keeper has not. Jackson v. Cummins, 5 Mees. & Wels. 350, 351. [An agistor of cattle has no hen for their keeping, except by special agreement. Goodrich v. Willard, 7 Gray, 183; Miller v. Marston, 35 Me. 155; Grinnell v. Cook, supra. Nor has a livery-stable keeper in this respect. Miller v. Marston, 35 Me. 154; Parsons v. Gingell, 4 Com. B. 545; Smith v. Dearlove, 6 Com. B. 132 ; Hickman v. Thomas, 16 Ala. 666. But a trainer of race- horses has a lien for his labor and skill. Forth v. Simpson, 13 Q. B. 680; Bevan v. Waters, 3 Carr. & P. 520.] {A lien for the agistment of cattle is in some States given by statute. Allen v. Ham, 63 Me. 532. As to special contracts for reimbursing the expense of keeping animals, see Whitlock V. Heard, 13 Ala. 776 ; McCoy v. Hock, 37 Iowa, 436. See further, Leavy u. Kinsella, 39 Conn. 50. } 1 Dig. Lib. 19, tit. 2, 1. 9, § 5; Pothier, Pand. Lib. 19, tit. 2, n. 29. 2 1 Bell, Comm. § 394, 4th edit. ; 1 Bell, Comm. p. 458, 459, 5th edit. 8 Califi V. Danvers, Peake, 114; Finucane v. Small, 1 Esp. 315; Jones on Bailm. 49, 96, 97; Knapp v. Curtis, 9 Wend. 60; [Foote v. Storrs, 2 Barb. 326; Cowles v. Pointer, 26 Miss. 253; Cass v. Boston & Lowell Railroad Co., 14 Allen, 448; Lamb v. Western Railroad, 7 Allen, 98; Titsworth o. Winnegar, 51 Barb. 148 ; Dimmick v. Milwaukee Railroad, 18 Wis. 471 ; Brown v. Hitchcock, 28 Vt. 452; Neal v. Wilmington Rail- road, 8 Jones (N. C), 482;] {Moulton v. Phillips, 10 R. I. 218; Batut v. Hartley, L. R. 7 Q. B. 594 ; Vincent v. Rather, 31 Texas, 77 ; Spangler v. Eicholtz, 25 111. 297. For instances in which a warehouse-man was held not to have stored with ordinary care, see Chenowith v. Dickinson, 8 B. Monr. 166; Morehead v. Brown, 6 Jones, L. 367. As to what constitutes a warehouse contract in writing, see Marks v. Cass County Mill, &c. Co., 43 Iowa, 146.} 408 HIRE OP CUSTODY. [CH. VI. destroyed by rats, while in the custody of a warehouse-man, he is not responsible, if he has exercised ordinary care in pre- serving it.i So, warehouse-men are not liable for thefts, unless occasioned by their want of proper care, and their care is not to be governed by that required of common carriers.^ FoE- WAKDiNG Meechants are a class of persons well known in America, and usually combine in their business "the double character of warehouse-men and agents, for a compensation, to ship and forward goods to their destination. This class of persons is especially employed upon our canals and railroads, and in our coasting navigation by steam-vessels and other packets.^ Their liability is like that of warehouse-men and common agents, and is governed by the general rule ; and of course they are responsible for ordinary care, and skill, and diligence.* Hence it is, that a person who receives goods in 1 Califf V. Danv'ers, Peake, 114. See ante, § 408; post, § 513 ; jTaylor V. Secrist, 2 Disney (Ohio), 299. } [See White v. Huraphery , 11 Q. B. 43. A warehouse-man, who is also a common carrier, and receives and stores goods in his warehouse for thirteen months, under an agreement to for- ward them upon order of the owner, at the customary rate of freiglit, and that in the mean time they should be kept without charge, is not a gratuitous bailee. Ibid.] 2 Ibid.; Schmidti'. Blood, 9 Wend. 268; an^e, § 38, .39, 334 and note (2), § 410; post, § 454. J Warehouse-men are not in general liable where the goods are destroyed or taken by inevitable casualty or superior force. Abraham v. Nunn, 42 Ala. 51 ; Yale v. Oliver, 21 La. Ann. 454 ; Smith I'. Frost, 51 Geo. 336; McCullom v. Porter, 17 La. Ann. 89. Certain kinds of warehouse-keeping would seem to exact peculiar skill; as in the case of one who keeps a " floating warehouse." Hamilton u. Elstner, 24 La. Ann. 455. And see Wallace v. Canaday, 4 Sneed, 364, as to a "public miller." As to United States bonded warehouses, see In re Clifford, 2 Sawyer, 428 ; Schwerin v. McKie, 51 N. Y. 180 ; Maoklin v. Frazier, 9 Bush, 3. One who stores goods for a common carrier may be bound to collect the carrier's charges before delivering them over to the consignee. Compton v. Shaw, 3 Thomp. & C. 761.} 8 2 Kent, Comm. Lect. 40, p. 591, 592, 4th edit. ■1 2 Kent, Comm. Lect. 40, p. 591, 592, 4th edit. ; Piatt v. Hibbard, 7 Cow. 497 ; Streeter v. Horlock, 1 Bing. 34 ; Brown v. Denison, 2 Wend. 593; [Forsythe v. Walker, 9 Penn. St. 148; Bush v. Miller, 13 Barb. 488;] Forward v. Pittard, 1 Term R. 27; post, § 446; Hyde v. Trent Navigation Company, 5 Term R. 389. See Quiggin v. Duif, 1 Mees. & Wels. 174; Powers v. Mitchell, 3 Hill, 545. CH. VI.] HIRE OF CUSTODY. 409 his own store, standing upon his own wharf, for the purpose of forwarding them, is deemed but a mere warehouse-man, and responsible for ordinary dihgence only, even although he holds himself out to the public as ready and willing to take goods for persons generally, on storage, and to forward them to their destination.^ And if, in such a case, his warehouse is broken (Jpen, and the goods stored are stolen therefrom by thieves, without any default on his part, or any want of ordinary care, he will not be responsible for the loss.^ § 445. The most important practical question , which arises in respect to warehouse-men, is to ascertain when their lia- bility, as such, begins and ends ; or, in other words, when their duty of custody commences and finishes. It has been decided, that as soon as the goods arrive, and the crane of the warehouse is applied to raise them into the warehouse, the liability of the warehouse-man commences ; and it is no de- fence, that they are afterwards injured by falling into the street from, the breaking of the tackle, even if the carman who brought them has refused the offer of slings for further security.^ § 446. But suppose (which is not an uncommon case) that a person acts both as a common carrier and as a warehouse- man ; it may then, under some circumstances, become a mat- ter of great nicety to decide in which character he is or may be chargeable for a loss which occurs ; for, as the responsi- bilities of the two characters are very different, he may, in the character of carrier, be liable for a loss, from which he would be exempt in the other. A common carrier (as we shall presently see) is liable for losses by fire not occasioned by 1 Piatt V. Hibbard, 7 Cow. 497 ; Roberts v. Turner, 12 Johns. 232 ; Brown v. Denison, 2 Wend. 593. 2 Piatt V. Hibbard, 7 Cow. 497. See Pothier, Pand. Lib. 19, tit. 2, n. 30. {See also Hutchison v. Commonwealth, 82 Penn. St. 472.} « Thomas v. Day, 4 Esp. 262 ; De Mott v. Laraway, 14 Wend. 225 ; Randleson v. Murray, 8 Adolph. & Ellis, 109. [And see Merritt v. Old Colony & Newport Railway Co., 11 Allen, 83.] {Where wheat is dis- charged into a vessel through the pipe, it is held that the warehouse-man's duty ends with the discharge into the pipe. The R. G. Winslow, 4 Biss. (D. S.) 13.} 410 HIKE OF CUSTODr. [CH. VI. inevitable casualty ; ^ whereas a warehouse-man is not liable for any losses by fire, unless he has been guilty of ordinary negligence. An example to illustrate the distinction may be drawn from a case, which has actually passed into judgment. A common carrier from Stourpoint to Manchester, in England, undertook to carry goods from the former place to the latter, and to forward them from thence to Stockport. Upon arrival at Manchester, the goods were deposited in his warehouse, to await an opportunity of sending them on to Stockport by the Stockport carrier, there being none there at that time, by whom they could be sent on. Before the original carrier had an opportunity of forwarding them, they were destroyed by an accidental fire. And the question was, whether he was liable for the loss or not. It was held, that he was not liable ; because his duty as carrier had terminated, and his duty as warehouse-man had commenced before the loss. It was not thought to make any difference in the case, that he received no distinct compensation as warehouse-man, but that there was an entire compensation for the whole services.^ § 447. On the other hand, if the carrier's duty has not 1 Post, § 528, 536; Forward w. Pittard, 1 Term R. 27; 1 Bell, Comm. p. 464, 5th edit. 2 Garside v. Trent and Mersey Navigation Company, 4 Term R. 581 ; 1 Bell, Comm. p. 464, 465, 5th edit. [So, in our own country, proprie- tors of a railroad who transport goods over their road, and deposit them in their warehouse without charge, until the owner or consignee has a reasonable time to take them away, have been held not liable as common carriers, for the loss of the goods from the warehouse, but only as depos- itaries, liable for want of ordinary care merely. Thomas v. Boston & Providence Railroad Co., 10 Met. 472; Smith u. Nashua & Lowell Rail- road, 7 Post. 91; Richards v. Michigan Southern Railroad, 20 III. 404. See also Sessions v. Western Railway Co., 16 Gray, 132; [Neal v. Wil- mington Railroad, 8 Jones (N. C), 482.} The like rule has been laid down although the goods be destroyed by an accidental fire in the ware- house, before the owner or consignee has reasonable time to take them away. Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263; Prancis v. Dubuque, &c. Railroad Co., 25 Iowa, 60, where the leading cases on this subject are examined; Hall v. Boston & Worcester Railroad Co., 14 Allen, 444. But some authorities hold the carrier liable who deposits thus in his warehouse, until the consignee has had a reasonable time to remove the goods. See Price v. Powell, 3 Comst. 322; Mich. CH. VI.] HIRE OF CUSTODY. 411 been completed at the time of the loss, he will be responsible therefor, if the loss be such as he would be responsible for as a mere carrier, notwithstanding he acts also as a warehouse- man in the same transaction. Thus, if the deposit in the warehouse of the carrier be at some intermediate place in the course of his own route ; ^ or if, after the arrival at the place of destination, he is still bound as a carrier to deliver the goods to the owner ; and before such delivery he has put them into his own warehouse for safe custody, where they are con- sumed by fire ; he will, nevertheless, be liable for the loss.^ In these and other like cases, which may easily be put, his proper duty as carrier not being ended, he is still considered as acting in the character of carrier, although he may make a distinct charge for warehouse room, and also for cartage of the goods, after their arrival at the place of destination, from the warehouse to the owner's house. And in such cases it will make no difference whether the warehouse rent and cartage are paid by the carrier to a third person, or are paid to the carrier himself for his personal account and profit ; so, always, that the delivery of the goods to the owner, by the usage of the place, is a part of the proper duty of the carrier.^ § 448. But when the goods have arrived at the place of their fixed destination, and are there deposited in the carrier's Central Railroad Co. v. Ward, 2 Mich. 538; Moses v. Boston & Maine Railroad, 32 N. H. 523. See Michigan Central Railroad Co. v. Hale, 6 Mich. 244.] {See further, Rice v. Hart, 118 Mass. 201; Shepherd v. Bristol R. Co., L. R. 8 Ex. 189; Jackson v. Sacramento Valley R. R. Co., 23 Cal. 268 ; Bansemer v. Toledo, &c. R. R. Co., 25 Ind. 434. These and other authorities confirm the rule which renders the carrier liable in the above instances only as warehouse-man. But some States require that the consignee first have reasonable time to take the goods away. See Graves v. Hartford, &c. Steamboat Co., 38 Conn. 143; Parker v. Mil- waukee, &c. R. R. Co., 30 Wis. 689; Blumenthal v. Brainerd, 38 Vt. 402 ; Angell on Carriers, 5th edit. § 303, note. } 1 Forward v. Pittard, 1 Term R. 27; post, § 536. 2 Hyde v. Trent Navigation Co., 5 Term R. 389; 1 Bell, Comm. 464, 465; [White v. Humphery, 11 Q. B. 45;] {Hemphill v. Chenie, 6 W. &S. 62.} 8 Hyde v. Trent Navigation Co., 5 Term R. 389. 412 HIRE OF CUSTODY. [CH. VI. warehouse, to await the owner's convenience in sending for them, or for the purpose of being forwarded by some other carrier to another place ; there his duty as carrier ends on the arrival of the goods at his (the carrier's) warehouse, and his duty as warehouse-man commences.^ So, if the carrier under- takes to forward the goods beyond the line of his own carriage, and, on their arrival at the termination of his own route, he puts them into a proper vehicle for such further conveyance, having no interest therein, or hire therefor, his duty is com- pletely discharged as carrier, and he is not responsible for any subsequent loss of the goods.^ § 449. For the like reason, if a person is at the same time a wharfinger, a warehouse-man, a forwarding merchant, and a carrier, and he receives goods into his warehouse, which is on his own wharf, to be forwarded to another place, and the goods are lost or destroyed, without any neglect or default on his part, before they are put upon their further transportation, he will not be liable for such loss ; for his character and duty as a warehouse-man have not yet ceased, although, if his character as carrier had commenced, he might have been liable for the same loss ; as, for example, if the goods had been stolen by thieves, who broke open the warehouse, or they had been destroyed by a fire wilfully kindled by them.^ § 450. Warehouse-men are not only responsible for losses ' In re Webb, 8 Taunt. 443; s. C. 2 J. B. Moore, 500; 2 Kent, Coram. 469 ; 1 Bell, Comm. p. 464, 465, 5th edit. [See also Thomas v. Boston & Providence Railroad Co., 10 Met. 472; Smith v. Nashua & Lowell Railroad, 7 Fost. 91; Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263. Cattle which should have arrived at 7 a.m. Sunday, did not arrive until 11, at which time it was contrary to police regulations to drive them through the streets, and they were placed by the carriers' ser- vants, with the assistance and consent of the owner, in the carriers' pens, free of charge. During Sunday night two of them were killed. Held, that the liability of the defendants " as carriers," ceased when the cattle were placed in the pens. Shepherd v. Bristol & Exeter Railway Co., Law Rep. 3 Ex. 189. And see Wise v. Great Western Railway Co., 1 H. & N. 63;] {Mitchell v. Lancashire R., L. R. 10 Q. B. 256.} » Ackley v. Kellogg, 8 Cow. 223; post, § 536 to 539. 8 Piatt w. Hibbard, 7 Cow. 497; Roberts v. Turner, 12 Johns. 232; Roskell V. Waterhouse, 2 Stark. 461; 1 Bell, Comm. p. 454, 5th edit.; [Goold V. Chapin, 10 Barb. 616.] CH. VI.] HIKE OF CUSTODY. 413 which arise by their negligence, but also for losses occasioned by the innocent mistake of themselves and of their servants, in making a delivery of the goods to a person not entitled to them.i For it is a part of their duty to retain the goods until they are demanded by the true owner ; and if by mistake they deliver the goods to a wrong person, they will be responsible for the loss as upon a wrongful conversion.^ The Roman law inculcated a like duty and responsibility, and illustrated it by the case of a garment delivered to a fuller to dress, which he exchanged by mistake, or delivered to a wrong person, and held him in such a case liable for the loss. " Et si pallium fullo permutaverit, et alii alterius dederit, ex locato actione tenebitur, etiamsi ignarus fecerit." ^ It was formerly held, that a warehouse-man, who has received goods from a con- signee to be kept for his use, is not bound, under all circum- stances, to deliver them to the consignee, but may lawfully refuse to redeliver them, if they are the property of another person, and the latter prohibits the redelivery.* But this doctrine seems now to be treated as untenable ; for it is said that in general an agent has no right to set up an adverse title against that of his principal, and the bailee is bound to deliver the goods back to the person by whom he has been intrusted with the custody of them.^ And, indeed, it seems 1 Post, § 536, 537; [Willard v. Bridge, 4 Barb. 361;] {Jeffersonville K. R. Co. V. White, 6 Bush, 251; Dufour v. Mepham, 31 Mo. 577; Ala- bama, &c. E. R. Co. V. Kidd, 35 Ala. 209. } 2 Lubbock V. Inglis, 1 Stark. 104; ante, § 414; post, § 561, 570. [But this is to be understood as limited to a delivery to a wrong person when the warehouse-man knows or has the means of knowing the real owner. For if a warehouse-man receives the goods from A. , supposing him to be the owner, and in good faith delivers them to him, he would not be liable to the real owner, who after such delivery claimed them. See Parker v. Lombard, 100 Mass. 405.] 8 Dig. Lib. 19, tit. 2, 1. 13, § 6; Pothier, Pand. Lib. 19, tit. 2, n. 29. * Ogle V. Atkinson, 5 Taunt. 759. [See also Bates v. Stanton, 1 Duer, 79; Pitt V. Albritton, 12 Ired. 77.] * Gosling V. Birnie, 7 Bing. 339; Kieran v. Sandars, 6 Adolph. & Ellis, 515; Holl V. Griffin, 10 Bing. 246 ; Story on Agency, § 217; 2 Story on Eq. Jurisp. § 814 to 816; post, § 582. [The more recent authorities seem to be that the bailee may show that the bailor is not the owner, and that he has been forbidden by the' true owner to deliver them to the bailor. See 414 HIRE OP CUSTODY. [CH. VI. now established, that, whichever way he acts in such a case, either in making or refusing a delivery, after notice, it is at his own peril. 1 § 450 a. If by the negligence of a warehouse-man the goods are injured while in his possession, he will be responsible therefor, notwithstanding the goods are subsequently wholly lost or destroyed while in his possession, without his fault, as by a flood, or fire, or other inevitable accident.^ Thome v. Tilbury, 3 H. & N. 534; Butler v. Kenner, 14 Mart. 274; Wallace v. Matthews, 39 Ga. 617. And some hold this latter fact abso- lutely essential ; and others consider that it is only when the property has been taken from the possession of the bailee that he can set up this defence. See Biddle v. Bond, 34 Law J. Q. B. 137 (1868). But if the goods are taken out of the possession of the bailee by legal process against the bailor, this is a defence to the bailee in a suit for the goods by the bailor. Burton v. Wilkinson, 18 Vt. 186. And see Welles v. Thornton, 45 Barb. 390; Stiles v. Davis, 1 Black (U. S.), 106.] 1 Post, § 582. Jin Rogers v. Weir, 34 N. Y. 463, it is said that a bailee who sets up the title of another as an excuse for not delivering goods to a claimant, makes himself a party to the controversy, and must stand or fall by his title; whereas he might have remained neutral, and suffered the claimant to act on his own responsibility; in which case the law would protect him. Warehouse-men, it may be added, fall within the general principle elsewhere noticed, that a bailee cannot, under any pretence, dis- pute his bailor's title; though he may, to a reasonable extent, as by inter- pleading claimants, protect himself from loss, when adverse claims of ownership are brought to his knowledge, and it is doubtful to whom he ought to make delivery. Ball «. Liney, 48 N. Y. 6; Maxwell v. Houston, 67 N. C. 305. See also, as to a warehouse-man's general obligation to restore to the bailor, Peebles v. Farrar, 73 N. C. 312; Britton v. Aymar, 23 Lft. Ann. 63; Stephenson v. Price, 30 Texas, 715; Foltzo. Stevens, 54 111. 180 ; Cook V. Holt, 48 N. Y. 275. The modern use of warehouse re- ceipts, and the frequency with which parlies who store make transfer of their property to another, increases greatly the delicacy of a warehouse- man's position. See Patten v. Baggs, 43 Ga. 167; 2 Sch. Pers. Prop. 583-585; Benjamin on Sales, B. 5, Pt. 1, ch. 4.} 2 Powers i;. Mitchell, 3 Hill (N. Y.), 545. j And see McGinn o. Butler, 31 Iowa, 160. j [So, if by the negligence of the servant of the warehouse- man the goods are not delivered when called for by the consignee, and the goods be destroyed by an accidental fire, the warehouse-mau is responsi- ble. Stevens v. Boston & Maine Railroad, 1 Gray, 277. But warehouse- men are not responsible for the neglect of their servants to rescue goods from destruction by an accidental burning of the warehouse in the night- time, at which such servants are casually and voluntarily present, and CH. VI.] HIRE OP CUSTODY. 415 § 451. (3) As to Whaepingees. Upon principle, their case is not distinguishable from that of other depositaries for hire ; and therefore they are responsible only for ordinary diligence.! An attempt, however, has been made to extend their liability, and to make it coextensive with that of common carriers, founded upon some general expressions of Lord Mansfield and Lord Ellenborough, which, however, upon close examination, will be found not to justify the conclusion. Lord Mansfield, in one case, said : " It is impossible to make a distinction between a wharfinger and a common carrier. They both receive goods upon a contract. Every case against a carrier is like the same case against a wharfinger." ^ Now, it is most material to consider, that the sole point before the Court was whether trover would lie against a carrier, when the goods had been lost or stolen by his negligence, and not converted by him ; and at the argument a case was cited pf a wharfinger, in which it was held, that an action on the case, not then in the employment of the defendants. Such persons are not then servants, in the meaning of the law, but only individuals, neighbors, citizens. Aldrich v. Boston & Worcester Kailroad Co., 100 Mass. 31.] { As to the place as well as the method of storage, the bailee intrusted with the goods is bound to exercise ordinary care. See Moulton v. Phil- lips, 10 R. I. 218; Hatohett v. Gibson, 13 Ala. 587; Jones ». Hatchett, 14 Ala. 743; Cowles v. Pointer, 26 Miss. 253. His undertaking may have bound him to furnish a building fireproof or otherwise specially suitable. Vincent v. Rather, 31 Texas, 77; Hamilton v. Elstner, 24 La. Ann. 453. But the bailor, if he knows how and where the bailee will keep the goods, is chargeable with such knowledge, and must estimate ordinary care accordingly, and not by any absolute standard. Ibid. See Shaw, C. J., in Whitney w. Lee, 8 Met. 91; Knowlesu. Atlantic, &c. R. R. Co., 38 Me. 55; Searle v. Laverick, L. R. 9 Q. B. 122; Brown v. Hitch- cock, 28 Vt. 452. In Searle v. Laverick, supra, the building for storage was unfinished when the bailment contract was made; but, though there afterwards proved to be a defect in construction, it was held not imputa- ble to the bailee for negligence, since he had exercised ordinary care in employing the builder. } 1 Jones on Bailm. 49, 96, 97. See Piatt v. Hibbard, 7 Cow. 497, 502, note (b); [Foote v. Storrs, 2 Barb. 326;] Story on Agency, § 217; 2 Story on Eq. Jurisp. § 814 to 816; {Rogers v. Stophel, 32 Penn. St. 11 .} Ross V. Johnson, 5 Burr. 2827. 416 HIRE OF CUSTODY. [CH. VI. and not trover, under such circumstances, was the proper action. In view of the argument. Lord Mansfield's language was most accurate and appropriate ; for under such circum- stances, there could be no difference between a wharfinger and a carrier, as to the form of the action.^ In another case,'^ which was an action against the defendants, who were wharf- ingers and lightermen, for not safely keeping a quantity of goods intrusted to them in London, to be shipped to the Ven- dees of the plaintiff at Newcastle, it appeared that the goods had been accidentally destroyed by fire while on the defend- ants' premises ; and the question was, whether the defendants, whose dutjj^ it was to convey the goods from the wharf in their own lighter to the vessel in the river, were liable for the loss. Lord Ellenborough is reported to have said, that the liability of a wharfinger, while he has possession of the goods, was, similar to that of a carrier. Now, it does not appear at what time the goods were destroyed by fire ; whether when they were in the warehouse, or on the wharf of the defendants in their progress to be put on board of the lighter. If the goods were on the wharf in their transit to go on board of the lighter, the remark of Lord Ellenborough, though not quite accurate in expression, would, in substance, have been justifi- able in the particular case ; for the duty as lighterman would then have commenced. But if his lordship meant to say (according to the dictum in Starkie's Reports), that the lia- bility of a wharfinger and carrier was universally the same, he was certainly incorrect. The doctrine might perhaps be ex- plicable upon another ground, that Lord Ellenborough treated the goods as being in the hands of the defendants, as lighter- men (who are deemed common carriers), in transitu for car- riage, and not as mere wharfingers. The only point worthy of consideration in the case is, whether, as the defendants united both characters, they were, in point of fact, acting in the one character or the other at the time of the loss by the fire. In another report of the same case,^ the action is said to have been brought against the defendants " as wharfingers ; " 1 1 Bell, Comm. p. 467, and note (6), 5th edit.; Packard v. Getman, 6 Cow. 757. 2 Having v. Todd, 1 Stark. 72. 8 4. Camp. 225. CH. VI.] HIRE OF CUSTODY. 417 and that the goods were burnt while on the wharf, before an opportunity of shipping them. But in this report no notice is taken of the above dictum of Lord Ellenborough ; which may, therefore, justly raise some doubt as to the accuracy of the other report. § 452. The case of a wharfinger does not, indeed, seem in any respect distinguishable from that of a warehouse-man ; and it has not, in fact, been distinguished from it in any solemn adjudication-.! On the other hand, the case of a carrier has always been treated as an excepted case, turning upon pecul- iar principles of public policy. In fact, the case before Lord Ellenborough was decided in favor of the defendants on another point, that of a special contract, excluding losses by fire ; and, therefore, it never called for any revision. If it is to be understood as containing any general proposition, not qualified by the particular circumstances of the ease, it is opposed by other and better considered opinions.^ § 453. At what time the responsibility of a wharfinger begins and ends,^ depends upon the question, when he acquires and when he ceases to have the custody of the goods in that capacity. This is generally governed by the usages of the particular trade or business. Where goods are in the wharf- inger's possession to be sent on board of a vessel for a voyage, as soon as he delivers the possession and care of them to the proper officers of the vessel, although they are not actually removed, he is, by the usages of trade, deemed exonerated from any further responsibility ; and the goods are deemed to 1 Sidaways v. Todd, 2 Stark. 400 ; 1 Bell, Comm. p. 467, and note (6), 5th edit. {As to what constitutes a wharfinger, see Rogers v. Stophel, 32 Penn. St. 111.} 2 Garside v. Trent Nav. Co., 4 Term R. 581 ; Hyde v. Trent Nav. Co. , 5 Term R. 389; In re Webb, 8 Taunt. 443; Piatt v. Hibbard, 7 Cow. 497, 502, the Reporter's note; Roberts v. Turner, 12 Johns. 232; Brown v. Denison, 2 Wend. 593; Coggs v. Bernard, 2 Ld. Raym. 909, 918; Sida- ways V. Todd, 2 Stark. 400. 8 [A wharfinger who at first refuses, but afterwards consents, to deliver goods in his possession to the lawful owner, is not liable for their destruction by fire while in his possession without his fault, occurring after the owner has had a reasonable time to remove them. Carnes v. Nichols, 10 Gray, 369.] 27 418 HIRE OF CUSTODY. [CH. VI. be in the constructive possession of the officers of the ship.^ On the other hand, a mere delivery of goods at a wharf is not necessarily a delivery of them to the wharfinger ; but there must be some act or assent on his part, or on that of his ser- vants or agents, to the custody thereof, before he will be deemed to have assumed the character of custodee.^ A wharf- inger, like other depositaries for hire, has a lien on the goods for his wharfage.^ But in case of a sale of the thing by the owner, the lien attaches only to the amount of the debt exist- ing at the time when he has notice of the sale, and not for any after-accruing debt.* § 453 a. Whether the class of persons which we are now considering, that is hirers of custody, have a lien on the thing for their hire, labor, and services, is a matter upon which the authorities do not seem agreed, or at least do not present rules to guide us. Upon general principles, it would seem that they ought to have a specific lien on the thing for such hire, labor, and services, like artisans. The question, whether they have a general lien for a balance of account, is quite a dif- ferent question, and depends upon different principles. In respect to a specific lien, it has been laid down as a general rule, that, where a bailee spends labor and skill in the improve- ment of the chattel bailed, he has a lien on it.* But it has 1 Cobban v. Downe, 5 Esp. 41 ; Dig. Lib. 4, tit. 9, 1. 3. [And see Merritt v. Old Colony & Newport Railway Co., 11 Allen, 83; Gass v. New York, Providence & Boston Railroad Co., 99 Mass. 227.] " Buckman v. Levi, 3 Camp. 414; Gibson v. IngKs, 4 Camp. 72; Pack- ard V. Getman, 6 Cow. 757. ^ Johnston v. The Schooner Macdonough, Gilpin, 101; [Ex parte Lewis, 2 Gall. 483. And see Naylor w. Mangles, 1 Esp. 109 ; Spears ». Hartly, 3 Esp. 81 ; Holderness u. CoUinson, 7 B. & C. 212. Leuckhart V. Cooper, 3 Bing. N. C. 99, turns upon the invalidity of a custom to extend the lien of a wharfinger to all claims he may have against the bailor, other than for mere wharfage. Dresser v. Bosanquet, 4 Best & Smith, 460, involves the question of the construction and eilect of certain statutes claimed to give a lien.] j See, as to the jurisdiction of State and Federal courts over a lien for wharfage, Brookman v. Hamill, 43 N. Y. 5.34.} * Barry v. Longmore, 4 Perr. & Dav. 344. [Probably a wharfinger has a lien for his advances for freight on the goods. Sage v. Gittner, 11 Barb. 120.] " Bevan v. Waters, 1 Mood. & Malk. 235; [s. c. 3 C. &P. 520; Forth V. Simpson, 13 Q. B. 680.] CH. VI.] HIEE OF CUSTODY. 419 been added, that his lien is confined to cases where additional value has been conferred by him on the chattel, either directly, by the exercise of personal labor and skill, or indirectly, by the intervention of any instrument over which he has a con- trol.^ Upon this latter ground, it has been held in England, that an agistor of cattle has no lien on the cattle for the pas- turage consumed. This doctrine has not as yet been recognized in America ; 2 and certainly it is not without its difficulties. It may be admitted to be regularly correct in its application to livery-stable keepers, because there would seem to be an implied contract to deliver the animal at the mere pleasure of the owner. But the case is not so clear as to an agistor of cattle, whose principal remedy would seem to be, in rela- tion to mere strangers, such as drovers, like that of an inn- keeper. Be this as it may, it has been recently held in America, that warehouse-men have a specific lien, although they cer- tainly cannot be said by their care and skill to have improved the thing bailed.^ The same would seem to belong to a wharfinger.* § 454. In respect to depositaries for hire, there seem to be some discrepancies in the authorities, whether the onui pro- handi of negligence lies on the plaintiff, or of exculpation on the defendant, in a suit brought for the loss. In England the former rule is maintained.^ In America, an inclination of ' Scarfe v. Morgan, 4 Mees. & Wels. 270; Jackson v. Cummins, 5 Mees. & Wels. 342. ^ [But see Grinnell ». Cook, 3 Hill (N. Y.), 485,] {and other cases ante, § 443 and notes. { 8 Steinman v. Wilkins, 7 Watts & Serg. 466; {Low ». Martin, 18 111. 286 ; Bass v. Upton, 1 Minn. 408. See ante, § 440 and notes. This lien may be lost by intentionally parting possession of the thing, and giving credit. Robinson v. Larrabee, 63 Me. 116. And see Board of Trade v. Buckingham, 65 111. 72 ; Blackman ». Pierce, 23 Cal. 508. See Powers v. Sixty Tons of Marble, 21 La. Ann. 402. See further, as to liens, 1 Sch. Pers. Prop. 484-500. } * Ibid. ; Rex v. Humphery, 1 McLel. & Younge, 194, 195 ; {ante, § 453.} 5 Finucane v. Small, 1 Esp. 316; Harris v. Packwood, 3 Taunt. 267; Marsh v. Home, 5 Barn. & Cressw. 322, 327 ; ante, § 278, 339, 410 ; post, § 529. [But see Mackenzie v. Cox, 9 Carr. & P. 632, contra. In Cass v. Boston & Lowell Railroad Co., 14 Allen, 448, it was held that in an 420 HIRE OF CUSTODY. [CH. VI. opinion has sometimes been expressed the other way ; yet perhaps the weight of authority coincides with the EngHsh rule.^ In the case of the loss of goods by the theft or em- action of contract against warehouse-men for a failure to deliver goods upon demand, the burden of proof is on them to show that the goods have been lost without their fault. Chief Justice Bigelow, however, dis- sented in a very able judgment, holding that in actions on the contract, as well as in actions in tort, the burden of proof is always on the plain- tiff to offer some evidence of negligence before he makes out a prima facie case.] {This subject has been fairly discussed, ante, § 410 and notes, which show a conflict of English and American authorities. And see Boies V. Hartford, &c. R. R. Co., 37 Conn. 272.} 1 Piatt I). Hibbard, 7 Cow. 497, 500. See also Beardslee v. Richard- son, 11 Wend. 25; Schmidt v. Blood, 9 Wend. 268 ; ante, § 410; Tomp- kins V. Saltmarsh, 14 Serg. & Rawle, 275; ante, § 213, 278, 339; post, § 529; [McCarthy v. Wolfe, 40 Mo. 520;] Beckman v. Shouse, 5 Rawle, 179; Clark v. Spence, 10 Watts, 335. In this last case, Rogers, J., in delivering the opinion of the Court, said: "In Piatt v. Hibbard, 7 Cow. 501, it is ruled, that, where property intrusted to a warehouse-man, wharfinger, or storing or forwarding merchant, in the ordinary course of business, is lost, injured, or destroyed, the weight of proof is with the bailee, to show a want of fault or negligence on his part, or, in other words, to show the injury did not happen in consequence of his neglect to use all that care and diligence, on his part, that a prudent and careful man would exercise in relation to his own property. It is to be regretted, that this is not the rule, but it seems to be contrary to the current of authority, as has been clearly shown by the cases cited at the bar. The rule is, that when a loss has been proved, or when goods are injured, the law will not intend negligence. The bailee is presumed to have acted according to his trust, until the contrary is shown. But to throw the proofs of negligence on the bailors, it is necessary to show, by clear and satisfactory proof, that the goods were lost, and the manner they were lost. All the bailor has to do, in the first instance, is to prove the con- tract and the delivery of the goods, and this throws the burden of proof that they were lost, and the manner they were lost, on the bailee, of which we have a right to require very plain proofs." It seems, that in cases of this sort the bailor, although the plaintiff, is a competent witness to prove the contents of the package lost. Ibid. [See also Oppenheimer V. Edney,.9 Humph. 385. But the case of Piatt v. Hibbard, referred to above, has been disapproved in Foote v. Storrs, 2 Barb. 326. In a later case, it was said that the bailee must give some account of the property, before he could call upon the plaintiif to prove negligence. Bush i'. Mil- ler, 13 Barb. 482.] {See also Collins v. Bennett, 46 N. Y. 490. See further, as to the burden of proof. Gay v. Bates, 99 Mass. 263 ; Barron v. Eldredge, 100 Mass. 460. } CH. VI.] HIRE OF CUSTODY. 421 bezzlement of the storekeeper or servants of a warehouse- man, it has been expressly decided, that the burden of proof to establish negligence lies upon the owner of the goods.^ We have already seen, that the Roman law is supposed in all cases of theft to throw the burden of proof on the bailee to repel the presumption of negligence.^ By the French law, where a loss or injury happens to the thing deposited for hire, the burden of proof is in like manner thrown on the hirer to repel the presumption.^ § 455. (4) Factors and other Bailiees to manage for hire. These agents are generally held liable only for a rea- sonable exercise of skill, and for ordinary care and diligence in their vocation.* They are, consequently, not liable for any loss by theft, robbery, fire, or other accident, unless it is connected with their own negligence.^ Factors have, gen- erally, a right to sell goods ; but they have no right to pawn them.® They are at liberty to act according to the general usages of trade, and to give credit on sales, wherever that is customary.^ They are bound, however, in all cases, to follow the lawful instructions of their principals.^ If they act with reasonable diligence and good faith, they are protected. In cases of unforeseen emergency and necessity, they may even act contrary to the general tenor of the instructions of their principal, if those instructions are manifestly applicable to ordinary circumstances only.^ But good faith alone is not sufficient. There must be reasonable skill, and a careful obe- dience to orders on their part. If there is any loss occasioned by their negligence, or mistake, or inadvertence, which might • Schmidt v. Blood, 9 Wend. 268. 2 Ante, § 38, 39, 334, note (2), § 410, note, § 444; Jones on Bailm. 15, 16. See Dig. Lib. 19, tit. 2, 1. 9, § 4; Pothier, Pand. Lib. 19, tit. 2, n. 28. a Pothier, Contrat de Louage, n. 194, 199, 200; ante, § 334, note (2), § 411. * Jones on Bailm. 98; Story on Agency, § 182 to 186. 6 Jones on Bailm. 98 ; Vera v. Smith, 1 Vent. 121 ; Coggs v. Bernard, 2 Ld. Raym. 909, 918. 6 Ante, § 305, 306; Story on Agency, § 78, 113, 225. ' Story on Agency, § 60, 110, 209 ; Id. 199. 8 Streeter v. Horlock, 1 Bing. 34 ; Story on Agency, § 192, 193, 198. » Story on Agency, § 85, 118, 141, 193. 422 HIKE OF CAEEIAGB OF GOODS. [OH. VT. fairly have been guarded against by ordinary diligence, they will be held responsible therefor ; and a fortiori they will be held responsible where they are guilty of any misfeasance.^ The rights, duties, and responsibilities of factors, however, more properly belong to a Treatise on Agency ; and there- fore it is sufficient to make these brief remarks in this place.^ § 456. Although factors and other depositaries for hire are thus bound to ordinary diligence, they are not under any ob- ligation to suggest to their principals wise precautions against inevitable accident.^ They are, therefore, not bound to advise insurance against fire ; much less are they bound to procure insurance upon the thing bailed, without some authority, ■express or implied, from their employer.* It is quite a differ- ent question, whether they may not insure the thing bailed, not only on their own account, but also for the benefit of their bailors. It has been held, that factors may procure insurance not only for the benefit of themselves, but also of their prin- cipals, even when they are not obliged to do so.^ But whether naked consignees of goods, or mere depositaries for hire, may so do, is a question which seems not as yet to have been directly adjudicated.^ AKT. IV. HIRE OP CAEEIAGE OP GOODS. [§ 457, Contract of Carriage of Goods, general Nature of. 458. The Civil Law as to Carriers and others. 459. The Common Law differs from the Civil Law.] § 457. The next class of bailments for hire, which is enti- tled to attention, is that of the Looatio mercium vehendarum, 1 Ulmer v. Ulmer, 2 Nott & McCord, 489; Story on Agency, § 182, 183, 184, 185, 188. 2 See Livermore on Agency, and Paley on Agency; Com. Dig. Mer- chant, B.; Bac. Abr.il/ercAani and Merchandise ; Story on Agency, pas- sim, and especially § 33, 110 to 113. 8 Ante, § 188; Jones on Bailm. 101, 102. * Jones on Bailm. 102. ^ Story on Agency, § 111; Deforest v. Fulton Insurance Company, 1 Hall, 84, 106, 107, 134, 135; Lucena v. Craufurd, 1 Taunt. 325. « Ibid. CH. VI.] HIRE OF CAERIAGB OF GOODS. 423 or the carriage of goods for hire. In respect to contracts of this sort entered into by private persons, who do not exercise the business of common carriers, there does not seem to be any material distinction, varying the rights, obligations, and duties of the' parties from those of other bailees for hire.^ Every such private person is bound to ordinary diligence, and to a reasonable exercise of skill ; and of course he is not responsible for any losses, not occasioned by the ordinary negligence of himself or of his servants.^ He will not, there- fore, be liable for any loss by thieves, or for any taking from him or them by force, or where the owner accompanies the goods to take care of them, and is himself guilty of neg- ligence.^ This is the general rule ; and it of course applies to all cases where he has not assumed the character of a com- mon carrier, unless, indeed, he has expressly, by the terms of his contract, taken upon himself any such risk.* Thus, a private person, who has undertaken the carriage of goods for hire, and warranted that they shall go safe, will be held liable upon his undertaking for any loss within the scope of his contract, although not as a common carrier.^ But even an express undertaking by a private person to carry goods safely and securely, is but an undertaking to carry them safely and securely, free from any negligence of himself or his servants ; and it does not insure the safety of the goods against losses by thieves, or any taking by force.^ 1 Post, § 495, 496. See Gordon v. Hutchinson, 1 Watts & Serg. 285. 2 Coggsw. Bernard, 2 Ld. Raym. 909, 917, 918; Hodgson v. Fullar- ton, 4 Taunt. 787; Hatchwell ». Cooke, 6 Taunt. 577; 2 Marsh. 293; Jones on Bailm. 10-3, 106, 121; 1 Bell, Comm. p. 461, 463, 467, 5th edit. ; 1 Bell, Comm.. § 396 to 404, 4th edit. ; 2 Kent, Comm. Lect. 40, p. 597, 598, 4th edit.; Satterlee v. Groat, 1 Wend. 272; Beckman v. Shouse, 5 Rawle, 179; HoUister v. Nowlan, 19 Wend. 234, 239. 3 Brind v. Dale, 8 Carr. & Payne, 207, 209, 211 ; s. c. 2 Mood. & Eob. 80; post, § 533; [White v. Winnisimmet Co., 7 Cush. 159.] * Ibid. 5 Robinson v. Dunmore, 2 Bos. & Pull. 417; Brind v. Dale, 8 Carr. & Payne, 207, 209, 211; s. c. 2 Mood. & Eob. 80; Jones on Bailm. 98; ante, § 33, 34, 35, 68 to 72, 444 to 450; post, § 495, 496; [Fish v. Chap- man, 2 Kelly, 349.] 6 Brind v. Dale, 8 Carr. & Payne, 207, 209, 211; s. c. 2 Mood. & Rob. 424 HIRE OF CAEEIAGE OF GOODS. [CH. VI. § 458. In respect to carriers for hire generally, it would not seem that they were originally by the Roman law put under any peculiar obligations, which did not belong to other bailees for hire.^ A special Edict, however, was passed by the Prffitor, by which ship-masters, innkeepers, and stable- keepers were put under a peculiar responsibility, and made liable for all losses not arising from inevitable casualty, or overwhelming force .^ " Ait Prsetor ; Nautee, caupones, stab- ularii, quod cujusque salvum fore receperint, nisi restituent, in eos judicium dabo." ^ Upon which Ulpian remarks : "Max- ima utilitas est hujus Edicti ; quia necesse est plerumque eorum fidem sequi, et res custodise eorum committere.* At hoc edicto omni modo, qui recepit tenetur, etiamsi sine culpa ejus res periit, vel damnum datum est, nisi si quid damno fatali contingit. Inde Labeo scribit ; Si quid nau- fragio, aut per vim piratarum perierit, non esse iniquum, exceptionem ei dari." ^ The modern nations of Conti- nental Europe seem to have incorporated the same general obligations into their jurisprudence, with exceptions of a like 80; Robinson v. Dunmore, 2 Bos. & Pull. 417; Jones on Bailm. 97, 98. But see 1 Bell, Coram, p. 463, 464, 5th edit. ; 1 Bell, Coram. § 387, 4th edit. In cases of the carriage of goods for hire, by persons who are not coramon carriers, the onus probandi is on the plaintiff to show that the loss has been by the negligence of the carrier or his servants, as it is in other cases of ordinary hire. Ibid.; Brind u. Dale, 8 Carr. & Payne, 212; ante, § 410, 454. The doctrine in the text applies solely to persons who are private carriers (not being common carriers) for hire. If they are gratuitous carriers, they are not liable, except for their own fraud or gross negligence, like all other gratuitous mandataries. Jones on Bailra. 62, 63; Beauchamp v. Powley, 1 Mood. & Kob. 38; [Fay v. Steamer New World, 1 Cal. 348;] {Michigan Central R. v. Carrow, 73 111. 348; Gray v. Missouri River Packet Co., 64 Mo. 47.} 1 1 Domat, B. 1, tit. 4, § 8, art. 5; 1 Bell, Coram, p. 463-465, 5th edit. ; 1 Bell, Coram. § 396 to 403, 4th edit. "- 1 Bell, Coram, p. 46.>, 466, 5th edit. ; 1 Bell, Comra. § 393, 402, 403, 4th edit.; Pothier, Pand. Lib. 4, tit. 9, n. 1, 7; Ersk. Inst. B. 3, tit. 1, § 28; Dig. Lib. 4, tit. 9, 1. 1, 5; 1 Domat, B. 1, tit. 16, § 1, art. 4; Id. § 2, art. 1 to 4. 8 Dig. Lib. 4, tit. 9, 1. 1; Pothier, Pand. Lib. 4,, tit. 9, n. 1. " Dig. Lib. 4, tit. 9, 1. 1, § 1; Pothier, Pand. Lib. 4, tit. 9, n. 1. 6 Dig. Lib. 4, tit. 9, 1. 3, § 1; Pothier, Pand. Lib. 4, tit. 9, n. 7, 8; Jones on Bailra. 96. CH. VI.] EXCEPTED CASES. 425 nature.^ The Roman Edict, it will be at once perceived, did not extend in terms to carriers on land. But in most, if not in all, modern countries, the rule which it prescribes has been practically expounded so as to include them.^ § 459. The common law, however, has extended the lia- bility of all carriers, who are common carriers for hire, beyond that which is supposed to exist in the Roman law. The Roman law, as has been already suggested (and as we shall hereafter more fully see), did not make the carrier liable for losses occasioned by irresistible force, vis major, or by inevi- table accident. And it accounted robbery among the cases of irresistible force, or fatal damage. But the common law allows no excuse in cases of robbery, unless the robbery be by public enemies.^ As this subject is of great importance and interest, it will be extensively examined under the suc- ceeding heads of inquiry. ART. V. EXCEPTED CASES. § 460. We come, then, in the next place, to the considera- tion of those cases of hire which constitute exceptions from the general rule, as to the rights, the duties, and the respon- sibilities of the parties, in bailments of this nature. These are the cases of Postmasters, Innkeepers, and Common Carriers. Each of these exceptions stands upon the ground of some peculiar public policy, and therefore requires a sep- arate examination. 1 Pardessus, Droit Comm. Part 2, art. 516, 542, 545, 553 ; Code Civil of France, art. 1732 to 1736; 1 Domat, B. 1, tit. 16, § 1, 2 ; Merlin, Repert. art. Voiiurier; Ersk. Inst. B. 3, tit. 1, § 28, tit. 3, § 15, 16; Moreau & Carlton's Partidas, Part 5, tit. 8, 1. 26 ; Code of Louisiana of 1825, art. 2938, 2939; Id. 2722, 2725. 2 Ersk. Inst. B. 3, tit. 1, § 28 and note; 1 Domat, B. 1, tit. 16, § 1; Id. § 2, per totum ; 1 Bell, Comm. p. 467, 5th edit. ; 1 Bell, Comm. § 398, 399, 402, 403, 4th edit.; post, § 488. 8 Post, § 464, 465, 489 ; Jones on Bailm. 96. 426 POSTMASTERS. [CH. VI. ART. VI. POSTMASTERS. [§ 461. Origin of Post-Office Establishment. 462. Postmaster-General, how far responsible. 462, n. Mail Contractors, how far responsible. 463. Deputy Postmasters, how far responsible.] § 461. And first as to Postmasters. When the mail was carried for hire by private persons, from town to town, on their own account, their case was not, at the common law, different, in point of right and responsibility, from that of other common carriers ; for there does not seem any sound distinction between the carriage of letters and the carriage of other goods or packages.^ In the reign of Charles the Second,^ in pursuance of the policy of the government during the time of the Commonwealth, a general post-office was established under the authority of Parliament, and a postmaster-general and subordinate post-officers and post- masters were created, with appropriate salaries and compen- sation ; and by these and by later acts, the carrying of letters by private persons has been prohibited.^ § 462. In the year 1699, an action was brought against the postmaster-general for the loss of a letter, containing exchequer bills, by the negligence of his servants and deputies ; and three judges, against the opinion of Lord Holt, then held, that the plaintiff was not entitled to recover.* The ground of the opinion of the three judges appears to have been, that the post-office establishment is a branch of the public police, cre- ated bj' statute for purposes of revenue, as well as for public convenience ; and that the government have the management and control of the whole concern. It is, in short, a govern- ment instrument, established for its own great purposes. The postmasters enter into no conti-act with individuals, and receive no hire, like common carriers, in proportion to the 1 Jones on Bailm. 109, 110; Whitfield v. Despeucer, Cowp. 754, 765; Lane v. Cotton, 1 Ld. Raym. 646. 2 Stat. 12 Charles 2, ch. 35. » Jones on Bailm. 109; 1 Bell, Comm. p. 468, 5th edit.; 1 Bell, Comm. § 400, 401, 4th edit. « Laue V. Cotton, 1 Ld. Raym. 646; s. c. 12 Mod. 482. CH. VI.] POSTMASTERS. 427 risk and value of the letters under their charge, but only a general compensation from the government itself.^ The same question was again still more elaborately discussed in another case, in the time of Lord Mansfield, brought against the post- master-general to recover the amount of a bank-note, stolen out of a letter by one of the sorters of letters, when the Court adhered to the doctrine of the three judges against the opin- ion of Lord Holt.2 Upon that occasion, Lord Mansfield said : " The ground of Lord Holt's opinion in that case is founded upon comparing the situation of the postmaster to that of a common carrier, or the master of a ship taking goods on board for freight. Now, with all deference to so great an opinion, the comparison between a postmaster and a carrier, or the master of a ship, seems to me to hold in no particular what- ever. The postmaster has no hire, enters into no contract, carries on no merchandise or commerce. But the post-ofBce is a branch of revenue and a branch of police, created by act of Parliament. As a branch of revenue, there are great receipts ; but there is likewise a great surplus of benefit and advantage to the public arising from the fund. As a branch of police, it puts the whole correspondence of the country (for the exceptions are very trifling) under government, and intrusts the management and direction of it to the crown, and the officers appointed by the crown. There is no analogy, therefore, between the case of the postmaster and a common carrier." ^ In truth, in England and in America the post- masters are mere public officers, appointed by, and responsible to, the government ; and the contracts made by them officially are public contracts, and not private contracts, and are binding on the government, and not on themselves personall3%* 1 2 Kent, Coram. Lect. 40, p. 610, 611, 4th edit. ; 1 Black. Coram. 323. 2 Whitfield V. Despencer, Cowp. 754. » n,i(i_ * Dunlap V. Munroe, 7 Cranch, 242; 2 Kent, Comm. Lect. 40, p. 610, 4th edit. ; Story on Agency, § 302 to 307; { Gray, J., in Keenan v. South- worth, 110 Mass. 474.} [The same rule has been thought to apply to mail contractors ; and they have been held not liable for money lost through the carelessness of their agents who carry the mail. Conwell v. Voorhees, 13 Ohio, 523 ; Hutchins »rBrackett, 2 Fost. 252. But the decisions are not uniform on this interesting question. See a 428 POSTMASTERS. [CH. VI. § 463. But although the postmaster-general is not liable as a common carrier, or for any negligence or delinquency of the deputy postmasters, or clerks, or other servants in office under him, it does not follow that these deputies and servants are not liable for losses occasioned by their own negligence and delinquency. On the contrary, it is clear that they are per- sonally liable for all losses and injuries occasioned by their own respective defaults in office.' Whether a deputy post- master is liable for the neglect of the clerks and servants in office under hiui has been several times mooted in the Ameri- can courts.^ In one case it was held, that, if it is intended in any action to charge any postmaster for the default of his clerk or servant, the declaration should state the case accord- ing to the fact ; and that, upon a general charge of negligence of the postmaster himself, it is not competent to give evidence of the negligence of his clerk or servant.^ If an action should be properly framed for the purpose of charging the deputy very able opinion to the contrary in Sawyer u. Corse, 17Gratt. 230.] {While the preceding cases are criticised in Sawyer v. Corse, the decision itself rests upon the distinct ground that the contractor's agent had not been duly sworn according to statute.} 1 Rowning v. Goodchild, 3 Wilson, 443; Whitfield v. Despencer, Cowp. 754; 2 Kent, Coram. Lect. 40, p. 610, 611, 4th edit.; Stock «. Harris, 5 Burr. 2709; 1 Bell, Comra. p. 468, 5th edit. ; [Christy v. Smith, 23 Vt. 663; Maxwell v. M'llvoy, 2 Bibb, 211; Bolanu. Williamson, 2 Bay, 651;] jKeenan v. Southworth, 110 Mass. 474. Where a letter containing money is delivered at a local post-office to be mailed as a registered letter, and the clerk receiving it finds afterwards that he was mistaken in supposing it could be registered to the place requested, he holds the letter as a bailee without compensation; and if by direction of his superior officer he forwards the letter by mail unregistered, and the letter is lost, both are liable for the loss. Fitzgerald v. Burrill, 106 Mass. 446. j 2 1 Bell, Coram, p. 468, 469, 5th edit.; 1 Bell, Comm. § 400, 401, 4th edit.; Dunlap v. Munroe, 7 Craneh, 242, 269; 2 Kent, Comm. Lect. 40, p. 610, 611, 4th edit. [In one case, a deputy postmaster who employed an assistant without having him sworn to the faithful discharge of his duties, as required by law, was held liable for such assistant's negligence in refus- ing to deliver a letter. Bishop v. Williamson, 2 Fairf. 495. And see Ford V. Parker, 4 Ohio St. 576.] 3 Dunlap V. Munroe, 7 Craneh, 242, 269 ; s. c. 2 Peters, Cond. 484. This position seems irreconcilable with the general doctrine in Brucker v. Fromont, 6 Term R. 659. See Campbell v. Phelps, 17 Mass. 244. CH. VI.] INNKEEPERS. 429 » postmaster with the default of the clerks or servants in office under him, it seems that his liability in such an action will depend upon the question, whether he has in fact been guilty of any negligence, in not properly superintending them in the discharge of their duties in his office.^ For it has been held, that a deputy postmaster is responsible only for the neglect of ordinary diligence in the duties of his office, which consists in the want of proper attention to his duties in person, or by his assistants, if he has any, or in the want of that care which a man of common prudence would take of bis own affairs.^ He is not, therefore, responsible for any losses occasioned by the negligence, or delinquencies, or embezzlements of his official assistants, if he exercises a due and reasonable super- intendence over their official conduct, and he has no reason to suspect them guilty of any negligence or malconduct.^ In short, such assistants are not treated as strictly his private servants ; but, in some sort, as public officers, although appointed by him.* ART. Vn. INNKEBPEES. [§ 46 i. Reasons for the peculiar Liability of Innkeepers in the Civil Law. 465. Extent of their Responsibility by the Civil Law. 466. Innkeepers {at the Civil Law, how far[ responsible for their Servants. 466a. The same subject. Theft by Guests. 467. The modern Jurisprudence of Continental Europe the same. 468. Results of the Civil Law Doctrine on this subject. 468 a. The Responsibility of Innkeepers at Civil Law for Theft. 468 6. The modern Doctrine in France. 469. The Common Law derived from the Civil Law. 470. What the Common Lavf is as to Innkeepers. 471. Responsibility of Innkeepers generally. 1 Dunlap V. Munroe, 7 Craneh, 242, 269 ; 2 Kent, Comm. Lect. 40, p. 610, 611, 4th edit. ^ Schroyer ». Lynch, 8 Watts, 453; [Wiggins v. Hathaway, 6 Barb. 632.] 8 Ibid. * Ibid. 430 INNKEEPERS. [CH. VI. r f § 472. Innkeepers {whether} responsible to the same extent as Common Car- riers. 473. Robbery by the Serrants of the Guest. 474. General Divisions of the Rights and Duties of Innkeepers. 475. Who are deemed Innkeepers. 476. n. Rights and Duties of Boarding-House Keepers. 476, 476a. Rights and Duties of Innkeepers; their Liens. 477. Who are deemed Guests. 478-480. LiabiUty of Innkeepers. 481. {What Chattels are embraced. No Responsibility for a Servant's Torts, j 482. What will excuse an Innkeeper. 483. The same subject. Exclusive Possession by Guest. 484. Effect of Choice of Place of Deposit by Guest. 485. Statute Regulations in America respecting Inns. 486. Case of a Gratuitous Guest. 487. When Innkeeper is liable only as a Common Bailee.] § 464. (2) As to Innkeepers ; that is to say, the keepers of common inns for the accommodation of travellers in gen- eral. ^ The soundness of the public policy of subjecting, particular classes of persons to extraordinary responsibility, in cases where an extraordinary confidence is necessarily reposed in them, and there is an extraordinary temptation to fraud, or danger of plunder, can hardly admit of question ; and a rule to this effect has accordingly been recognized in the jurisprudence of many countries.^ Hence arose the Prae- tor's Edict in the Roman law, already alluded to, which declared that, if shipmasters, innkeepers, and stable-keep- ers did not restore what they had received to keep safe, he would give judgment against them. " Nautse, caupones, stabularii, quod cujusque salvum fore receperint, nisi restitu- ent, in eos judicium dabo."^ The reason assigned by Ulpian for this Edict is, that it is necessary to place confidence in such persons, and to commit the custody of things to them ; that no person ought to complain of the severity of the rule ; for it is in his own choice to receive the goods of other persons or not ; and unless the rule was thus established, 1 Post, § 475. 2 1 Bell, Comm. p. 465 to 476, 5th edit.; 1 Bell, Coram. § 395 to 406, 4th edit.; 2 Kent, Comm. Lect. 40, p. 597 to 611, 4th edit. 8 Ante, § 457; Dig. Lib. 5, tit. 9, 1. 1; Pothier, Pand. Lib. 4, tit. 9, n. 1; 1 Domat, B. 1, tit. 16, § 1, 2; Heinec. Pand. Lib. 4, tit. 8, § 544- 547. CH. VI.] ' INNKEEPERS. 431 an opportunity would be afforded to them to combine with thieves against those who trusted them ; whereas they now have an inducement to abstain from such combinations.^ " Ne quisquam putet, graviter hoc adversus eos constitutum ; nam est in ipsorum arbitrio, ne quem recipiant ; et nisi hoc esset statutum, materia daretur cum furibus adversus eos, quos recipiunt, coeundi ; cum ne nunc quidem abstineant hujusmodi fraudibus." ^ Gains has observed, that, although neither shipmasters, nor innkeepers, nor stable-keepers receive a compensation for mere custody ; but shipmasters for the carriage of goods, and innkeepers for the accommodation and entertainment of their guests, and stable-keepers for the stable room and keeping of cattle ; yet they are bound for custody of the thing, in like manner as a fuller and a mender of clothes are bound for custody of the thing; and they are answerable ex locato for ordinary negligence, although they receive their compensation not strictly for custody, but for the exercise of their art. " Nam et fullo, et sarcinator, non pro custodiS, sed pro arte, mercedem accipiunt ; et tamen custodise, nomine ex locato tenetur." ^ § 465. The construction put upon this Edict was, that the bailees were liable in every case of loss or damage, although happening without any default on their part, unless it happened by what was called a fatal damage. " At hoc Edicto omnimodo, qui recepit, tenetur, etiamsi sine culpS, ejus res periit, vel dam- num datum est ; nisi si quid damno fatali contingit ; " ^ and among fatal damages were included losses by shipwreck, by lightning, or other casualty, by pirates, and by superior force. " Inde Labeo scribit ; Si quid naufragio, aut per vim piratarum perierit, non esse iniquum, exceptionem ei dari. Idem erit dicendum, et si in stabulo, aut in cauponi, vis major coatige- 1 Dig. Lib. 4, tit. 9, 1. 1, § 1; Pothier, Pand. Lib. 4, tit. 9, n. 1; Heinec. Pand. Lib. 4, tit. 8, § 545. " Dig. Lib. 4, tit. 9, 1. 1, § 1; Pothier, Pand. Lib. 4, tit. 9, n. 1. ' Dig. Lib. 4, tit. 9, I. 5; Pothier, Pand. Lib. 4, tit. 9, n. 4; Jones on Bailm. 94; Pothier, Trait6 de D6p6t, n. 79 ; 2 Kent, Comm. Lect. 40, p. 592, 4th edit. * Dig. Lib. 4, tit. 9, 1. 3, § 1; 1 Domat, B. 1, tit. 16, § 1, art. 4, 5; Heinec. Pand. Lib. 4, tit. 8, § 551; Pothier, Pand. Lib. 4, tit. 9, n. 7. 432 INNKEEPERS. [CH. VI. lit." 1 Losses by fire, burglary, and robbery seem also to have been deemed losses by fatal damage.^ Mr. Bell, indeed, seems to think that the latter ought to be so deemed ; but he admits that the opinion of many jurists is against hira.^ But theft was not numbered among such casualties.^ And the bailees were liable, not only for themselves, but for their servants and other persons employed in their service and under their protection and authority. Thus, shipmasters were liable for the acts of their under-officers, and other persons emploj'ed in their service ; innkeepers for the acts of their servants and boarders ; and stable-keepers for the acts of servants and other persons in their service.^ § 466. But the responsibility of innkeepers, for the acts and misdeeds of persons in their service, was not an unlimited responsibility. It was not sufBcient to create the responsi- bility that the guest had brought his goods or baggage to the view or the knowledge of the innkeeper ; but they must have been delivered into his charge.® The guest or traveller was bound to deliver his baggage into the custody of the proper persons ; and if he chose to trust his goods or baggage to one not employed in such a service, as if he gave a bag of money to a child or to a scullion, the innkeeper was not responsible for the loss thereof.^ So the innkeeper was responsible only for the acts of his servants done in his own house ; and not for their acts done elsewhere ; such as for a theft in another place.^ § 466 a. The responsibility of innkeepers, although it thus extended to the acts and misconduct of their servants and boarders, did not, by the Roman law, as it should seem, ordi- 1 Ibid. 2 Ersk. Inst. B. 3, tit. 1, § 28; 1 Voet adPand. 301. ' 1 Bell, Comm. p. 469, 470, and note, ibid. 5th edit. ; 1 Bell, Comm. § 398, 399, 403, 4th edit. ■• Dig. Lib. 4, tit. 9, 1. 5, § 1; Pothier, Pand. Lib. 4, tit. 9, § 8. 6 Dig. Lib. 4, tit. 9, 1. ],§ 8,1. 2,3; IDomat, B. 1, tit. 16, § 1, art. 3; Id. § 2, art. 2; Heinec. Pand. Lib. 4, tit. 8, § 546, 551, 552; 1 Bell, Comm. p. 469, 471, 5th edit. ; 1 Bell, Comm. § 398, 399, 403, 4th edit. 6 Pothier, Traite de Depot, n. 79, 80. ' 1 Domat, B. 1, tit. 16, § 1, art. 3, 4; Sneider v. Geiss, 1 Yeates, 34. See Dig. Lib. 47, tit. 5, 1. 1, § 2, 4, 6; Pothier, Trait6 de Depot, n. 80. 8 1 Domat, ibid. n. 7. CH. VI.] INNKEEPERS. 433 narily extend to the acts or misconduct of other travellers, or guests, or persons coming or going to the inn. Hence, if a theft was committed or a damage done by such travellers, guests, or other transient persons, without the connivance of the innkeeper, he was not, unless under special circumstances, held responsible therefor.^ The reason assigned for the dis- tinction is, that the innkeeper has no right of choice as to the persons who may come to his inn as travellers, but he is bound to receive them ; whereas his servants and his boarders are admitted and selected by his own choice. " Caupo praestat factum eorum, quia in eS. cauponS, ejus cauponse exercendae causi ibi sunt; item eorum, qui habitandi causS. ibi sunt. Viatorum autem factum non praestat ; namque viatorem sibi eligere caupo vel stabularius non videtur, nee repellere potest iter agentes. Inhabitatores vero perpetuos ipse quodammodo elegit, qui non rejecit, quorum factum oportet eum praestare. In navi quoque vectorum factum non praestatur." ^ It is not, perhaps, very easy to reconcile this language with that used in another title of the Digest. " (Nauta) factum non solum nautarum praestare debere, sed et vectorum. Sicut et caupo viatorum." ^ Pothier reconciles the passages, however, by supposing that in the latter case there is an express deposit of the goods with the innkeeper, and in the former not.* § 467. The doctrines thus asserted in the Roman law, in respect to innkeepers, seem to have been generally incorporated into the jurisprudence of Continental Europe.* They will be found in the law of Spain,^ of France,'^ of Scotland,^ and 1 Post, § 468. 2 Dig. Lib. 47, tit. 6, 1. 1, § 6 ; Pothier, Trait6 de D6pot, n. 79. 8 Dig. Lib. 4, tit. 9, \. 1, § 8; Id. L 2; Pothier, Pand. Lib. 4, tit. 9, n. 8. « Pothier, Trait* de D^p6t, n. 78, 79; post, § 468. « Post, § 488. « Moreau & Carlton, Partid. 5, tit. 8, L 26. ' Pothier, Traite de D^pot, n. 77 to 81 ; Merlin, Repert. art. Hotelier, n. 4; Code Civil of France, art. 1952-1954; Pardessus, Droit Comm. P. 2, tit. 6, ch. 3, art. 516 ; Code of Louisiana (1825), art. 2722, 2725, 2938, 2939. » Ersk. Inst. B. 2, tit. 1, § 28 ; 1 Bell, Comm. p. 465 to 472, 5th edit. ; 1 Bell, Comm. § 398 to 402, 4th edit. 28 434 INNKEEPERS. [CH. VI. Louisiana,^ and probably in that of every other nation, whose jurisprudence had its origin in the Roman law. § 468. Pothier^ has deduced from the text of the Roman law the doctrine, that the innkeeper is not only bound for good faith, as in the case of ordinary deposits, but also for exact care {un soin exact) ; and that, consequently, he is responsible for slight neglect, or, at least, for ordinary neglect (^de lafaute leg ere)? He therefore holds him liable for losses by the theft of his domestics and boarders, and of his other guests, and of persons coming and going to and from the inn, when the goods are expressly delivered into the custody and charge of the innkeeper ; for the theft is imputed to his negligence, if the goods are put into his custody,* unless he can clearly establish that the loss has been by irresistible force (accident deforce majeure').^ The same rule is applied where the goods of a guest are damaged while they are in the custody of the innkeeper. " Qusecunque de furto diximus, eadem et de damno debent intelligi ; non enim dubitari oportet, quin is, qui salvum fore recipit, non solum a furto, sed etiam a damno recedere videatur." ^ § 468 a. But if the goods are not so expressly put into the charge and custody of the innkeeper, he is responsible only in case the theft is proved to have been by his domestics or boarders, or by other persons in his service, and not where it has been by other guests or travellers, or by other persons unknown.'' And the burden of proof, in such a case, is on the 1 Code of Louisiana (1825), art. 2936 to 2939. {Under the Louisiana Code the innkeeper's responsibility extends to the loss of the guest's effects by stealing, if they were not taken by force or iciih exterior breaking of doors or other extraordinary violence. Woodworth v. Morse, 18 La. Ann. 156,} 2 Pothier, Traits de Depot, n. 75 to 81. But see ante, § 466 a. ' Pothier, Traite de Depot, n. 96. Pothier, generally, when he uses the terms, de la faute legere, means ordinary neglect. Ante, § 65, note (6) . But in this place the sense may be what we call slight neglect. Ante, § 18. Sed (jucere. * Pothier, Traite de Depot, n. 78-80 ; ante, § 466 a. s Pothier, Traits de Depot, n. 78. ' Dig. Lib. 4, tit. 9, 1. 5, § 1 ; Pothier, Pand. Lib. 4, tit. 9, n. 8; Po- thier, Traite de Depot, n. 78. ' Pothier, Traite de D^p6t, n. 79; Dig. Lib. 47, tit. 5, 1. 1, § 6; ante, § 466 a. CH. VI.] INKKEEPEES. 435 guest whose goods are stolen. ^ If the guest chooses to keep the goods in his own custody, or if he confides them to another person, not authorized by the innkeeper to receive them, the latter is discharged from all responsibility .^ " Cseterum, si qui oper& mediastini fungitur, non continetur ; utputa, atriarii et focarii, et his similes." * In this class of deposits with inn- keepers, parol evidence of the contract by witnesses is, ac- cording to Pothier, admissible, contrary to the general rule of the French law, which requires a written contract where the value of the thing deposited exceeds one hundred livres.* § 468 b. The modern Code of France has, for the most part, followed the doctrines of Pothier. Innkeepers and masters of hotels are thereby held responsible, as depositaries, for the effects brought by travellers, who lodge with them ; the deposit of such effects being treated as a deposit of necessity. And this responsibility extends, not only to the theft or dam- age of such effects, caused by the servants and domestics of the innkeeper, but also to that of strangers, coming into and going from the inn.^ The Code of Louisiana is to the same effect.^ By this latter code, also, the innkeeper is not respon- sible for what is stolen by force and arms, or by exterior breaking open of the doors, or by any other extraordinary violence ; in other words, he is not responsible for losses by robbery or burglary.^ The French Code, by making the inn- keeper liable only as a depositary from necessity, has either directly or silently adopted the same rule.^ § 469. The general principles of the Roman and foreign law upon this subject have been stated somewhat more at large, because they form a proper introduction to the doctrines of the common law upon this subject, in which the responsibility of innkeepers is said to be founded on the custom of the realm. ' Pothier, Traits de Depot, n. 79. « Pothier, Traite de Depot, n. 80. 8 Dig. Lib. 4, tit. 9, 1. 1, § 5; Pothier, Pand. Lib. 4, tit. 9, n. 2. * Pothier, Traits de D^pot, ii. 81. See also the Code Civil of France, art. 1950, 1952, and the Code of Louisiana of 1825, art. 2940, where a similar rule is adopted. 5 Code Civil of France, art. 1952, 1953. 6 Code of Louisiana of 1825, art. 2936, 2938. 7 Id. art. 2939. ' Code Civil of France, art. 1951, 1954. 436 INNKEEPERS. [CH. VI. In point of fact, the origin of the latter may be clearly traced up to the Roman law, from which the common law, without any adequate acknowledgments, has from time to time bor- rowed many of the important principles which regulatie the subjects of contracts. § 470. By the common law innkeepers are bound to take, not merely ordinary care, but uncommon care, of the goods, money, and baggage of their guests ; and they are responsible for the acts of their servants and domestics, as well as for the acts of other guests.^ It has been remarked by Lord Holt that, in the case of an innkeeper, a passenger pays nothing for the keeping of his goods in the inn,, but pays only for his victuals and lodgings ; and the reward which he pays for his victuals and lodgings entitles him to an action for the loss of his goods.^ This, however, if it were the sole foundation on which the doctrine of the common law on this subject rests, would lead us to the conclusion that the innkeeper was liable only for ordinarj' negligence, like other persons letting out their labor and services, and bestowing their custody on things for a reward.'* But the common law adopts a different rule.* The Registrum Brevium states, by way of recital, the respon- sibility of innkeepers substantially in the following terms: That by the custom of the realm innkeepers are obliged to keep the goods and chattels of their guests, which are within their inns, without subtraction or loss, day and night, so that no damage in any manner shall thereby come to their guests, from the negligence of the innkeeper or his servants.^ Al- though an innkeeper is not paid in money for securing a ' Jones on Bailm. 94 ; Com. Dig. Action on the Case for Negligence, B. ; Kent V. Shuckarrl, 2 Barn. & Adolph. 803; Calye's case, 8 Co. 32; 2 Kent, Comm. Lect. 40, p. 592, 593, 4th edit. ; post, § 481. There is a curious statement of the state of Inns, and the law respecting them and their keepers, in Holinshed's Chronicles of England, Vol. I. ; Description of England, Book 3, ch. 16, p. 444, London edit. 4to, 1807. [See Cashill v. Wright, 6 El. & Bl. 893; and the very elaborate and interesting opinion of Daly, J., in Cromwell v. Stephens, 2 Daly, 15.] 2 Lane v. Cotton, 12 Mod. 483, 487; 2 Kent, Comm. Lect. 40, p. 592, 4th edit. 8 Jones on Bailm. 94. * Ibid. 5 Calye's case, 8 Co." 32. CH. VI.] INNKKEPBES. 437 traveller's trunk, yet the gnestf aeit, ut facial, and alights at the inn, not solely for his own refreshment, but also that his goods may be safe.^ Indeed, the custody of the goods may be considered as accessory to the principal contract ; and the money paid for the apartments, as extending to the care of his box, or portmanteau, or baggage.^ If, therefore, the goods or baggage of the guest are damaged in the inn, or are stolen from it by the servants or domestics, or by another stranger guest, the innkeeper is bound to make restitution.^ And the innkeeper cannot exonerate himself from this responsibility by a refusal to take any care of the goods, because there are suspected persons in his house, for whose conduct he cannot be answerable ; for the law will not permit him thus to escape from his own proper duty.* It might, indeed, be otherwise, if he refused admittance to a traveller, because he really had no room for him, and the traveller, nevertheless, should insist upon entering and placing his baggage in a chamber without the innkeeper's consent.^ But, by the common law (which in this respect differs from the Roman law),^ an innkeeper is not, if he has suitable room, at liberty to refuse to receive a guest who is ready and able to pay him a suitable compensa- tion.^ On the contrary, he is bound* to receive him, and if upon false pretences he refuses, he is liable to an action.* 1 Jones on Bailm. 94; ante, § 464; 2 Kent, Comm. Lect. 40, p. 592, 4th edit.; Mason ». Thompson, 9 Pick. 280; Orange County Bank v. Brown, 9 Wend. 85, 114, 115. 2 Jones on Bailm. 94; Lane v. Cotton, 12 Mod. 487; ante, § 464. » Jones on Bailm. 94, 95; 1 Black. Comm. 430; 2 Kent, Comm. Lect. 40, p. 592, 4th edit.; Com. Dig. Action on the Case for Negligence, B. 1, 2, 3; Calye's case, 8 Co. 32; {cases cited post, § 471, 472.} * Jones on Bailm. 94 ; Moore, 78. 6 Jones on Bailm. 94; Dyer, 158 b; 1 Anders. 29. « Dig. Lib. 4, tit. 9, 1. 1, § 1; ante, § 464, 486 a. ' 1 Roll. Abridg. 3, F.; Bac. Abridg Inns Sj- Innkeepers, C; Bennett V. Mellor, 5 Term R. 274; Thompson v. Lacy, 3 B. & Aid. 285; 3 Black. Comm. 166; Newton ». Twigg, 1 Shower, 270; Rex v. Kilderby, 1 Saund. 312 c; 1 Bell, Comm. p. 472, 5th edit.; 1 Bell, Comm. § 403, 404, 4th edit. ; [Hawthorn v. Hammond, 1 C. & K. 404;] 2 Kent, Comm. Lect. 40, p. 592-594; Com. Dig. Action on the Case for Negligence, B. 1, 2. 8 Ibid.; [Rex v. Ivens, 7 Carr. & P. 213. See Fell v. Knight, 8 M. & W. 269; Watson v. Cross, 2 Duvall (Ky.), 147. But it may be ques- 438 INNKEEPERS. [CH. VI. § 471. It is not necessary to prove that the goods have been lost by the negligence of the innkeeper ; for it is his duty to provide honest servants and keep honest inmates, and to ex- ercise an exact vigilance over all persons coming into his house, as guests or otherwise.^ Nor is it necessary that the goods should be in his special keeping ; but it is generally sufficient, that they are in the inn under his implied care.^ It has been observed by Sir William Jones : " Rigorous as this rule may seem, and hard as it maj' actually be in one or two particular instances, it is founded on the great principle of public utility, to which all private considerations ought to yield. For trav- ellers, who must be numerous in a rich and commercial coun- try, 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 Avith ruffians and pilferers, while the injured guest would seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them."^ This is the very reasoning of the Roman law on the same subject, founded on motives of public policy.* § 472. But innkeepers are not responsible to the same ex- tent as common carriers.^ The loss of the goods of a guest, tioned whether an innkeeper may not keep an inn for a certain class of persons only, as for those who travel without carriages; in which case he ought not to be liable for refusing to receive those of a contrary char- acter. Such is now the undoubted rule as to carriers, and the like principle has been thought to extend to innkeepers. See Johnson v. Midland Railway Co., 4 Exch. 367; per Parke, B., 371.] ^ Jones on Bailm. p. 95; Com. Dig. Action on the Case for Negligence, B. 1, 2 ; Bennett v. Mellor, 5 Term R., 276. ^ Jones on Bailm. 95; Bennett v. Mellor, 5 Term R. 276; 1 Black. Comm. 450; 2 Kent, Comm. Lect. 40, p. 593, 594, 4th edit.; Calye's case, 8 Co. 32; [Epps v. Hinds, 27 Miss. 658;] Burgess v. Clements, 4Maule & Selw. 306, 310; [Packard v. Northcraft, 2 Met. (Ky.) 439; Read v. Amidon, 41 Yt. 15; Kellogg v. Sweeney, 1 Lans. 397.] {See post, §483.} 8 Jones on Bailm. 95, 96; 2 Kent, Comm. Lect. 40, p. 592-594, 4th edit. ; Mason v. Thompson, 9 Pick. 280. * Ante, § 464. ' The old form of the declaration stated the custom of the realm to be, that the innkeeper was bound to keep the goods and chattels of his CH. VI.] INNKEEPERS. 439 while at an inn, will be presumptive evidence of negligence on the part of the innkeeper or of his domestics.^ But he may, if he can, repel this presumption, by showing that there has been no negligence whatsoever,^ or that the loss is attrilD- utable to the personal negligence of the guest himself; or that it has been occasioned by inevitable casualty or by supe- rior force.^ Thus, although a common carrier is liable for all losses occasioned by an armed mob (not being public enemies), an innkeeper is not (as it should seem) liable for such a loss.* Neither is he liable (it should seem) for a loss by robbery and burglary by persons from without the inn.* This doctrine, however, seems to have been thought open to some doubts, guests withouft^Bsabtraction or loss by day and by night; so that, by reason of the default of the innkeeper or his servants, a damage should not happen in, any-iuanner to their guests. Calye's case, 8 Co. 32 ; ante, § 470. 1 Jones'bn Bailm. 9^; Bennett v. Mellor, 5 Term R. 276; post, § 482. ^ Dawson v. Chamney, 5 Q. B. 164. [In a recent English case it is said : " Il.iS true the expression in the forms in tort is that the loss was 'propter defectum,' of the innkeeper; but we think the cases show that there is a defect in the innkeeper, wherever there is a loss not arising from the plaintiff's negligence, the act of God, or the Queen's enemies. The only case that points the other way is Dawson v. Chamney, as re- ported 5 Q. B. 164. According to the report, however, of that case in 7 Jurist, 10-37, ' there was no evidence of the manner in which the horse received the injury for which the action was brought.' This may be the explanation of that case; for though damage happening to the horse from what occun-ed in the stable might be evidence of defectus or neg- lect, still, if it was not shown how the damage arose, it was not even shown that it arose from what occurred in the stable. This would recon- cile that case to the general current of authorities." Pollock, C. B., in Morgan v. Ravey, 6 H. & N. 277. Some American cases seem to hold that the innkeeper may exonerate himself by positive proof that he was not in any way negligent. See Metcalf v. Hess, 14 111. 129 ; Johnson V. Richardson, 17 111. 302; Merritt v. Claghorn, 23 Vt. 177; Kisten v. Hildebrand, 9 B.Monr. 72; Howth v. Franklin, 20 Texas, 798; McDaniels V. Robinson, 26 Vt. 816; Laird t. Eichold, 10 Ind. 212.] ' Jones on Bailm. 96; Burgess v. Clements, 4 Maule & Selw. 306 Calye's case, 8 Co. 32; Dawson v. Chamney, 5 Q,. B. 164. ■> Morse v. Slue, 1 Vent. 190, 238 ; Rich v. Kneeland, Cro. Jac. 330 s. P. Hob. 17; Lane v. Cotton, 12 Mod. 480; Jones on Bailm. 109. * Jones on Bailm. 96; Burgess v. Clements, 4 Maule & Selw. 306 Lane v. Cotton, 12 Mod. 487 ; Calye's case, 8 Co. 32, 33; 2 Kent, Comm. Lect. 40, p. 592, 593, 4th edit. 440 rNNKEEPEKS. [CH. VI. after the remarks of Mr. Justice Bayley, who is reported to have said : " It appears to me that the innkeeper's liability very closely resembles that of a carrier. He is primd facie liable for any loss not occasioned by the act of God or the king's enemies; although he may be exonerated where the guest chooses to have his goods under his own care."^ From which language it may, perhaps, be inferred, that the learned judge would hold him responsible in cases of burglary and robbery. It may be, however, that he intended no more than that the presumption of liability would prevail until expressly disproved by evidence, which should repel every imputation of negligence.^ The case, liowever, did not call for the dic- tum, and it has since been overturned by a solemn decision, if it meant to suggest so unqualified a proposition, as that the liability of innkeepers and common carriers is of the same extent, and subject only to the like exceptions.^ In a still more recent case it has been laid down, in Massachusetts, that innkeepers, as well as common carriers, are regarded as insurers of the property committed to their care, and are bound to make restitution for any injury or loss, not caused by the act of God, or the common enemy, or the neglect or fault of the owner of the property.* This doctrine will clearly 1 Richmond r. Smith, 8 Barn. & Cressw. 9. 2 See what was said by the same learned judge in Burgess v. Clements, 4 Maule & Selw. 306, 314. * Dawson v. Chamney, 5 Q. B. 164. Lord Denman on this occasion said: "The doubt expressed by Bayley, J., in Richmond k. Smith, ap- plies to another branch of the doctrine, namely, the exception from the rule which arises where the guest chooses to take the chattels entirely under his own care." In truth, however, Mr. Justice Bayley's dictum was not so qualified. He treated the responsibility of the innkeeper as like that of a carrier, to be for all losses not occasioned by the act of God or the king's enemies, adding another exception, that where the party took his goods into his own custody. * Mason u. Thompson, 9 Pick. 280, 284. [And this seems to be the doctrine of the modern English, and the better considered of the Ameri- can cases. Morgan v. Ravey, 6 H. & N. 265; Day v. Bather, 2 H. & C. 14; Holder v. Soulby, 8 C. B. n. s. 254; Hulett v. Swift, 33 N. Y. 571; Norcross v. Norcross, 53 Me. 16o; Gile v. Libby, 36 Barb. 70; Shaw V. Berry, 31 Me. 478; Mateer y. Brown, 1 Cal. 221; Thickstun V. Howard, 8 Blackf. 535; Pinkerton d. Woodward, 33 Cal. 557; Sibley V. Aldrich, 33 N. H. 553; Washburn v. Jones, 14 Barb. 193.] CH. VI.] INNKEEPERS. 441 make innkeepers liable for losses by robbery or burglary by persons from without, and also for losses occasioned by rioters and mobs.^ 1 { The rule as stated in the foregoing section may be thought confus- ing. It is true that in many of the best considered modern cases, both of England and America, the general rule is laid down as in Mason v. Thompson, 9 Pick. 280, 284, so as to pronounce the innkeeper an insurer of the property committed to his care, like a common carrier, and liable wherever the loss is not occasioned by act of God, or the public enemy, or the negligence of the guest or his servants. Morgan v. Ravey, 6 H. & N. 265, and other cases cited ante, p. 440, note (4) ; Shoecraft v. Bailey, 25 Iowa, 553; Manning v. Wells, 9 Humph. 748. But in other cases the language used is such as to imply that the innkeeper may repel the pre- sumption of negligence when a loss occurs, and exonerate himself by showing that he was not in fact negligent. Dawson v. Charaney, 5 Q. B. 164, and other eases cited ante, p. 439, note (2) ; Howe Machine Co. v. Pease, 49 Vt. 477; Sasseen v. Clark, 37 Ga. 242. Dawson v. Chamney has suffered much from later judicial criticism. See Bennett, J., in Mateer V. Brown, 1 Cal. 221; Pollock, C. B., in Morgan v. Ravey, 6 H. & N. 277. The more cautious statement sometimes made is to the effect that an inn- keeper is bound to take extraordinary care ; that his responsibility is nearly commensurate with that of common carriers, approximating to insurance whenever the thing is confided expressly or by implication to his care; and that the common law is more strict than the civil law in this respect. Weisenger v. Taylor, 1 Bush, 275. But, as a matter of fact, the precedents are very few upon which to predicate the innkeeper's full responsibility at the common law as an insurer of his guest's property. However the general rule may have been stated, the reported cases almost invariably show a loss by theft : the theft, it may be, of the innkeeper's servant, or a fellow-guest, or some one else about the inn. For burglary from without, unaccompanied by vio- lence and force, it would appear that the innkeeper is likewise responsible at common law ; but here nothing is settled by authority. See Mateer v. Brown, 1 Cal. 221; McDaniels v. Robinson, 26 Vt. 317. And see Wood- worth V. Morse, 18 La. Ann. 156. The case of forcible robbery or loss by riot has been seldom, if ever, passed upon. See the valuable critical opinion of Bennett, J., in Mateer v. Brown, 1 Cal. 221, passim. As to losses of the guest's property caused by accidental fire, the few decisions appear to be conflicting: Hulett v. Swift, 33 N. Y. 571, favoring the harsh rule that the innkeeper is liable as insurer; while Merritt v. Claghorn, 23 Vt. 177, and the recent cases of Cutler v. Bonney, 30 Mich. 259, and Vance v. Throckmorton, 5 Bush, 41, seek to limit his liability to damage by a fire which his own negligence or that of his servants occasioned. See Fau- cett V. Nichols, 64 N. Y. 377. Where his guest's horse escapes, or is stolen, or perishes from want of proper food, an innkeeper can hardly escape lia- 442 INNKEEPERS. [CH. VI. § 473. The innkeeper will also be exonerated by showing that the guest has been robbed by his own servant, or by one who came to the inn as the companion of the guest.^ But it will be no excuse for the innkeeper, in case of a loss by theft, that he was sick, or insane, or absent from home at the time; for he is bound, in such cases, to provide faithful domestics and agents.^ § 474. Having thus seen what is the general responsibility imposed upon innkeepers by the common law, it may be proper to consider : (1) who ,are deemed innkeepers in the sense of that law ; (2) what are their general rights and duties ; (3) who are properly to be deemed guests ; (4) in respect to what goods, and under what circumstances, the liability of innkeepers attaches ; (5) and lastljs under what circumstances they are exonerated by operation of law, or by the acts of the parties. § 475. (1) Who are deemed innkeepers. An innkeeper may be defined to be the keeper of a common inn for the lodging and entertainment of travellers and passengers, their horses and attendants, for a reasonable compensation.^ It must be a common inn, or diversorium, that is, an inn kept for travel- bility ; but he has been allowed to exonerate himself by showing that the animal died a natural death. Hill v. Owen, 5 Blackf. 323; Metoalf v. Hess, 14 111. 129. See Howth v. Franklin, 20 Texas, 798; Clary v. Wi\- ley, 49 Vt. 55. It would perhaps be less confusing, were the innkeeper's responsibility regarded as quite distinct from that of a carrier, and the rule stated ac- cordingly. Public policy is presented under different aspects in these two classes. So, too, are the circumstances attending the bailment quite dif- ferent, particularly in regard to a certain sort of control and superintend- ence which the bailor of goods to an innkeeper still exercises over his own property while the bailor to a carrier must usually part custody entirely. There are peculiar qualifications to an innkeeper's common-law responsi- bihty, as will presently appear. Post, § 478-484. So is the tendency of legislation at the present day to make his liability less than that of an insurer of goods. &ee post, § 481; Faucett v. Nichols, 64 N. Y. 377. ( 1 Calye's case, 8 Co. 32; Bac. Abridg. Inns ^~ Innkeepers, C. 4; Com. Dig. Action on the Case for Negligence, B. 2. {See Gile w. Libby, 36 Barb. 70. j ^ Calye"s case, 8 Co. 32; Com. Dig. Action on the Case for Negligence, B. 2; i Rockwell v. Proctor, 39 Ga. 105.} ' Bac. Abridg. Inns If Innkeepers, C. CH. VI.] IKNKEEPEES. 448 lers generally and not merely for a short season of the year, and for select persons, who are lodgers.^ The language of the Registrum Brevium in describing innkeepers is : " Hospitatores, qui hospitia communia tenent ad hospitandos homines, per partes, ubi hujusmodi hospitia existunt transeuntes." ^ But it is not necessary that the party should put up a sign as keeper of an inn. It is sufficient if in fact he keeps an inn.^ In a recent case it was said : " The true definition of an inn is a house where the traveller is furnished with every thing which he has occasion for whilst on his way." * Therefore, where a house of entertainment was kept in London, in which the keeper provided lodgings and entertainment for travellers and others, it was held to be an inn, although it had no stables, and no stage-coaches or wagons stopped there.^ But the keeper of a mere coffee-house is not deemed an innkeeper.^ 1 Calye's case, 8 Co. 32; Parkhurst v. Foster, Carth. 417; s. c. 5 Mod. 427; s. c. 1 Salk. 387; [Lyon v. Smith, 1 Morris, 184; State v. Mathews, 2 Dev. & Bat. 424; Bonner v. Welborn, 7 Ga. 296;] Bac. Abridg. Inns §• Innkeepers, B.; 1 Bell, Comm. 469 to 472, 5th edit.; 1 Bell, Comm. § 403, 404, 4th edit.; {Southwood v. Myers, 3 Bush, 681.} 2 Calye's case, 8 Co. 32; Plowd. 9 b ; Fitz. Nat. Brev. 94 a. ' Bac. Abridg. Inns If Innkeepers, B. {The " innkeeper" may be a corporation, so that the company and not its manager should be held re- sponsible. Dixon ». Birch, L. R. 8 Ex. 135. } * Thompson v. Lacy, 3 Barn. & Aid. 283 ; 2 Kent, Comm. Lect. 40, p. 594, 595, 4th edit.; JDickerson v. Rogers, 4 Humph. 179.} ["Inn" has been defined in several late cases as " a public house of entertain- ment for all who choose to visit it." Wintermute v. Clark, 5 Sandf. 247;] {People v. Jones, 54 Barb. 311; Walling v. Potter, 35 Conn. 183; Pinkerton v. Woodward, 33 Cal. 557. } ' Thompson v. Lacy, 3 Barn. & Aid. 283. { As to " hotel " or " inn " under bankruptcy acts, see Smith v. Scott, 2 Moo. & Sc. 35; In re Jones, 3 Ch. D. 457. A hotel kept on the " European plan " may be an "inn," if all comers are registered and lodged in furnished rooms, though meals be not furnished. Krohn v. Sweeny, 2 Daly, 200. See Kisten v. Hildebrand, 9 B. Monr. 72; Clary u. Willey, 49 Vt. 55; Taylor v. Monnot^ 4 Duer, 116.} 8 Doe V. Laming, 4 Camp. 77. Quaere, whether the keeper of a hotel, not being described as an innkeeper, is to be deemed an innkeeper. See Jones V. Osborn, 2 Chitty, 484; 1 Bell, Comm. p. 469, 5th edit.; 2 Kent, Comm. Lect. 40, p. 595, 596, 4th edit. {The keeper of a restaurant is not an innkeeper. Carpenter v. Taylor, 1 Hilton, 193; Queen v. Rymer, 2 Q. B. D. 136; Walling w. Potter, 35 Conn. 183. Nor is the owner of a sleeping-car. Pullman Palace Car Co. v. Smith, 73 111. 360. } 444 INNKEEPERS. [CH. VI. And a person who keeps a mere private boarding-house or lodging-house is in no just sense an innkeeper.' § 476. (2) As to the rights and duties of innkeepers. An innkeeper is bound (as has been already said) to take in all travellers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation ; and he must guard their goods with proper diligence.^ But he is not bound by law to furnish his guests with rooms to show their goods, but only with convenient lodging-rooms and lodging.^ If an innkeeper improperly refuses to receive or provide for a guest, he is liable to be indicted therefor.* But 1 1 Bell, Comm. p. 469, 5th edit. ; 1 Bell, Comm. § 402, 403, 4th edit. ; [Parkhurst v. Foster, 1 Salk. 387. And see, as to the distinction between a boarding-house and an inn, Willard v. Keinhart, 2 E. D. Smith, 148 ; Daly, J. , in Cromwell v. Stephens, 2 Daly, 15. The liabilities of a boarding-house keeper were much discussed in Dansey v. Richardson, 25 Eng. L. & Eq. 76, 3 El. & Bl. 144, where it was held that such a person should at least take such care of the house and the things of guests in it as every prudent householder would. And it is now held, that the law imposes no obligation upon a lodging-house keeper to take care of the goods of his lodgers ; and, accordingly, he is not responsible for a theft of them by a stranger who came in to view the rooms, which were about to be vacated by the plaintiff, although the plaintiff was then absent, and the stranger was allowed to look at the rooms by the defendant himself. Holder v. Soulby, 8 C. B. n. 8. 254.] { The foregoing decisions do not seem to leave the question of a board- ing-house keeper's liability for the guest's things quite clear. And see Johnson u. Reynolds, 3 Kan. 257; Wiser v. Chesley, 53 Mo. 547. Whether in the character of bailee or otherwise, he should be held at least liable for gross negligence. In Dansey v. Richardson, supra, the court were equally divided on the question whether a boarding-house keeper is answerable for his servant's negligence beyond taking requisite care to employ and keep none but trustworthy servants. Boarding-house keepers in this country have, by recent statutes in many States, a lien on the guest's effects similar to that of an innkeeper. See Jones v. Mor- rill, 42 Barb. 623; Nichols v. Holliday, 27 Wis. 406; Cross v. Wilkins, 43 N. H. 332; Bay ley v. Merrill, 10 Allen, 360. See also Cady v. Mc- Dowell, 1 Lans. 484.} 2 Thompson v. Lacy, 3 Barn. & Aid. 283; 1 Bell, Comm. p. 472, 5th edit.; 1 Bell, Comm. § 402-404, 4th edit.; Grinnell v. Cook, 3 Hill, 485. 8 Burgess v. Clements, 4 Maule & Selw. 306; s. c. 1 Stark. 251, n. See Fell v. Knight, 8 Mees. & Wels. 269. ^ Rex V. Ivens, 7 Carr. & Payne, 213. CH. VI.] INNKEEPERS. 445 he may not only refuse to receive a guest, who conducts him- self in a disorderly and noisy manner, but he may compel him under such circumstances to leave the inn, even after he has been received as a guest.^ The law invests an innkeeper with some peculiar privileges ; for he has a lien upon the goods of his guest, for his board and lodging and the liquors supplied him.2 And he is not bound to examine into the nature and extent of the articles ordered by his guest, or the propriety of supplying them with reference to his just wants, provided his guest be possessed of his reason, and he is not a minor, and the innkeeper is not guilty of any fraud or imposition. ^ If the horses of a traveller be left with an innkeeper at his inn, the innkeeper has a lien on the horses for their keep,* even although the owner or traveller put up at a different place ; for it is not essential to such right, or to the traveller's 1 Howell V. Jackson, 6 Carr. & Payne, 742 ; Rex v. Ivens, 7 Carr. & Payne, 213 ; [Moriarty v. Brooks, 6 Carr. & Payne, 684. See Markham V. Brown, 8 N. H. 523;] {Queen v. Rymer, 2 Q. B. D. 136; Common- wealth V. Mitchel, 1 Phil. (Pa.) 63. } 2 Thompson p. Lacy, 3 Barn. & Aid. 287; Proctor v. Nicholson, 7 Carr. & Payne, 67; Jones v. Thurloe, 8 Mod. 172; pout, § 604; Grinuell v. Cook, 3 Hill, 485; [Dunlap v. Thome, 1 Rich. 213.] {The innkeeper's lien upon baggage and effects extends to all goods which the guest has brought with him, even though they belong, in fact, to a third person. Manning v. Hollenbeck, 27 Wis. 202; Turrill v. Crawley, 13 Q. B. 197; Suead v. Watkins, 1 C. B. n. s. 267; Threfall v. Borwick, L. R. 10 Q. B. 210. Even the guest's hired piano may be thus included. Threfall v. Borwick, supra. But if the innkeeper knew when the goods were brought that they were not the guest's, he acted in bad faith if he gave credit upon them ; and he cannot detain them. Broadwood o. Granara, 10 Ex. 417 ; 28 Eng. Law & Eq. 443, and Bennett's note. The innkeep- er's right in such cases may be a matter of statute construction. Domes- tic Sewing Machine Co. v. Walters, 50 Ga. 573. See further, Case v. Fogg, 46 Mo. 44; Alvord v. Davenport, 43 Vt. 30. For the landlord's right to recoup as against an action by the guest, see Classen v. Leopold, 2 Sweeny (N. Y.), 705.} * Proctor V. Nicholson, 7 Carr. & Payne, 67. {But see, as to the lien for entertaining a minor, Watson v. Cross, 2 Duv. 147. } * [Allen V. Smith, 12 C. B. n. s. 638. And such lien would not be lost merely because the innkeeper allows the owner to drive the horses from day to day, animo reverlendi. Ibid.] {And see Fox v. McGregor, 11 Barb. 41.} 446 INNKEEPERS. [CH. VI. being liable for such keep, that he should be a guest at the inn.i Travellers are also entitled to reasonable accommoda- tion at the inn ; but they are not entitled to select a particular apartment, or insist upon using a bedchamber for other pur- poses than that for which it is designed ; as, for instance, to sit up therein all night, if the innkeeper is willing and offers to furnish them with a proper apartment for the purposes desired by the travellers.^ It has been said, that the horse of a guest can be detained only for his own meals, and not for the meals and expenses of the guest.* The reason is said to be, that chattels are in the custody of the law for the debt which arises from the thing itself, and not for any other debt due from the same party ; for the law is open to all such debts, and doth not admit private persons to make reprisal. This may be correct as to all other debts than the debt contracted by the party as a guest. But there seems great reason to doubt, whether the lien of the innkeeper does not extend to all the goods which the guest has at the inn, for all his expenses there. The gen- eral rule seems in favor of such a lien, whether any expense has been incurred on the particular goods or not. The cases cited to support the opposite doctrine do not seem to jus- tify it.* 1 Peett). McGraw, 25 Wend. 654; Mason v. Thompson, 9 Pick. 280. [Although it is otherwise, if the horses be left " to stand at livery " with a livery-stable keeper, although he may keep an inn ; for the goods must have come into his possession in his character as innkeeper, and as belong- ing to his guest. Smith v. Dearlove, 6 C. B. 132. And see Hickman o. Thomas, 16 Ala. 666; Thickstun k. Howard, 8 Blackf. 535; Orchards. Kackstraw, 9 C. B, 698.] {It has been seen that a livery-stable keeper, as such, and independently of legislation, has no lien. Ante, § 443. See, as to the extension of such lien by statute, Young v. KimbaU, 28 Penn. St. 193 ; Colquitt v. Kirkman, 47 Ga. 555.} 2 Fell V. Knight, 8 Mees. & Wels. 269. ' Bac. Abridg. Inns §- Innkeepers, D., which cites Rosse v. Bramsteed, 2 Koll. 439, and 2 Roll. Abridg. 85. These cases certainly do not support the doctrine. ■■ Bac. Abridg. Inns If Innkeepers, D. ; 2 Roll. Abridg. 85; Rosse v. Bramsteed, 2 Roll. 439. See Thompson v. Lacy, 3 Barn. & Aid. 283 ; Sunbolf V. Alford, 1 Horn & Hurl. 13; s. c. 3 Mees. & Wels. 248; Proc- tor V. Nicholson, 7 Carr. & Payne, 67; Jones v. Thurloe, 8 Mod. 172. {For the rule of lien applicable to cases where several put up at an inn together, see Clayton v. Butterfield, 10 Rich. 300. j CH. VI.J INNKEEPERS. 447 § 476 a. It seems at one time to have been held, that an innkeeper had a lien upon the person of his guest, and the personal clothing then in wearing by him, for the amount due for the board, lodging, and other charges due to him.i But that doctrine is now entirely repudiated ; and it is held that the lien does not extend to his person or personal clothing in actual wear.2 This latter doctrine seems founded in all the just analogies of the law applicable to cases of distress.^ § 477. (3) Who are to be deemed guests. As inns are instituted for passengers and wayfaring men, a neighbor or friend, who is no traveller, but conies to the inn at the request of the innkeeper, and lodges there, is not deemed a guest.* But where a traveller comes to the inn, and is accepted, he becomes instantly a guest. ^ If a traveller leaves his horse at an inn, and lodges elsewhere, he will be deemed a guest.^ But he will not be deemed a guest in such a case, if he leaves goods for which the innkeeper receives no compensation.^ There- 1 Newton v. Trigg, 1 Shower, 270; Bac. Abridg. Inns S^ Innkeepers, D. 2 Sunbolf u. Alford, 1 Horn & Hurl. 13; s. c. 3 Mees. & Wels. 248; post, § 604. [And see McDaniels v. Robinson, 26 Vt. 335.] 8 Sunbolf V. Alford, 1 Horn & Hurl. 13; s. c. 3 Mees. & Wels. 248; post, § 604. * Calye's case, 8 Co. 32, 33 ; Bac. Abridg. Inns §■ Innkeepers, C. 5; Com. Dig. Action on the Case for Negligence, B. 2. ^ Calye's case, 8 Co. 32; Bac. Abridg. Inns §• Innkeepers, C. 5. {As to the liability of the innkeeper to one who is not at the inn in person but has his property there in charge of an agent, see Coykendall v. Eaton, 55 Barb. 188; Berkshire Woollen Co. v. Proctor, 7 Cush. 417; Mowers v. Fethers, 61 N. Y. 34.} " York V. Grindstone, 1 Salk. 388 ; s. c. 2 Ld. Raym. 866, by three judges against Lord Holt; Gelley o. Clarke, Cro. Jac. 188; Mason v. Thompson, 9 Pick. 280; Peet v. McGraw, 25 Wend. 653. See the case of Mason u. Thompson, 9 Pick. 280, on this point disapproved in Grin- nell B. Cook, 3 Hill, 485, [and in Ingallsbee v. Wood, 83 N. Y. 577; but in McDaniels v. Robinson, 26 Vt. 316, the subject is fully and ably ex- amined by Redfleld, C. J., and the rule of the text sustained. See fur- ther, Wintermute v. Clark, 5 Sandf. 242; Hickman v. Thomas, 16 Ala. 666; Thickstun v. Howard, 8 Blackf. 535; Smith v. Dearlove, 6 C. B. 132; Washburn v Jones, 14 Barb. 193.] ' York V. Grindstone, 1 Salk. 388 ; s. c. 2 Ld. Raym. 866 ; Gelley v. Clarke, Cro. Jac. 188; Com. Dig. Action on the Case for Negligence, B. 1. 2; Orange County Banks. Brown, 9 Wend. 114, 115; {McDaniels v. Robinson, 28 Vt. 387. } 448 INNKEEPERS. [CH. VI. fore, where a person came to an inn with a hamper of hats, and went away, and left them there for two days, and in his absence they were stolen, it was held that he was not to be deemed a guest ; and that the innkeeper was not liable for the loss thereof.' The length of time that a man is at an inn makes no difference ; whether he stays a week, or a month, or longer; so always that, although he is not strictly transiens, he retains his character as a traveller.^ But if a person comes upon a special contract to board, and sojourn at an inn, he is not, in the sense of the law, a guest ; but he is deemed a boarder.^ But if a person should come to an inn, and should leave his goods and horses there, and go to another town with intent to return to the inn, and afterwards he should return, and his goods or horses should in the mean time be stolen, the ' Gelley v. Clarke, Cro. Jao. 188 ; Bae. Abridg. Inns §• Innkeepers, C. 5. [In Carter v. Hobbs, 12 Mich. 52, an attendant at an evening ball given at an inn, having lost his overcoat and gloves, which had been deliv- ered to the clerk, was held not to be a guest.] (The responsibility of a landlord where property is deposited by persons who are not " guests " is that of an ordinary bailee, with or without compensation, according to the circumstances. Ibid. ; Ingallsbee v. Wood, 33 N. Y. 577; Wiser v. Chesley, 53 Mo. 547. And see Queen u. Rymer, 2 Q. B. D. 136; Mateer V. Brown, 1 Cal. 221; Mowers v. Fethers, Gl N. Y. 34. But one might be a guest without caUing for a room. Read v. Amidon, 41 Vt. 5. So might a townsman or neighbor be a " traveller " sufficient to be consti- tuted a guest. Walling v. Potter, 35 Conn. 183.} ' Bac. Abridg. Inns §• Innkeepers, C. 5; Com. Dig. Action on the Case for Negligence, B. 1, 2. [And if he still is in reality a traveller, the making of a special agreement with the innkeeper for the price of his board by the week will not change his character as a guest, and make him a mere boarder. Berkshire Woollen Co. v. Proctor, 7 Cush. 417. And see Pinkerton v. Woodward, 33 Cal. 557; Norcross v. Norcross, 53 Me. 163; Hall v. Pike, 100 Mass. 495. The duration of the person's stay, the price paid, the amount of accommodation afforded, the transient or permanent character of the party's residence or occupation, his knowl- edge of any difference of accommodation afforded to, or price paid by, boarders and guests, are all to be regarded in deciding the question whether the person is a guest] {See also Jalie v. Cardinal, 35 Wis. 118 ; Shoecraft v. Bailey, 25 Iowa, 553.} 2 Bac. Abridg. Inns If Innkeepers, C. 5 ; [Chamberlain v. Masterson, 26 Ala. 371.] CH. VI.] INNKEEPERS. 449 innkeeper will be responsible therefor : for such person will be deemed during all the time to be a guest.^ § 478. (4) As to their liability. Innkeepers are liable only for the goods which are brought within the inn (infra hospi- tium.y If, therefore, an innkeeper at the request of his guest sends his horse to pasture, and the horse is stolen, the inn- keeper is not, as such, liable for the loss.^ The same rule would apply, if sheep should be put in a pasture by or under the direction of the guest, and they should be injured by eat- ing poisonous plants.* But if the guest does not request it, but the innkeeper does it of his own accord, he is liable for the loss.^ As he will also be, if the loss is occasioned by his own negligence or omission of duty.® However, it has been said that this rule requires some qualifications ; for if it is the common custom of the country (as it is, in the summer season, in the interior towns of America) to put horses in such a case to pasture, the implied consent of the owner may be fairly 1 Gelley v. Clarke, Cro. Jac. 188. See Grinnell v. Cook, 3 Hill, 485; [McDonald v. Edgertoii, 5 Barb. 560; Day v. Bather, 2 H. & C. 14.] {The innkeeper's liability may sometimes continue beyond the time when the guest has paid his bill; the question being, when, in fact, is the relation of innkeeper and guest mutually terminated. Seymour v. Cook, 53 Barb. 451 ; Adamsu. Clem, 41 Ga. 65. And see Murray k. Clarke, 2 Daly (N. Y.), 102.} [An innkeeper has no lien on his boarder's goods for his board. Ewart.u. Stark, 8 Rich. 423;] {Hursh v. Byers, 29 Mo. 469; Pollock v. Landis, 36 Iowa, 651. But see ante, p. 444, note (1) ; Smith v. Keyes, 2 Thomp. & C. (N. Y.) 650. It is not uncommon for one at this day to be both an inn- keeper and the keeper of boarders. As to the innkeeper's responsibility for a boarder's effects, see Vance v. Throckmorton, 5 Bush, 41 ; Man- ning V. Wells, 9 Humph. 746; Wiser u. Chesley, 53 Mo. 547; Lawrence V. Howard, 1 Utah, 142; Johnson v. Reynolds, 3 Kan. 257 ; Dansey v. Richardson and other cases, ante, p. 444, note (1).} 2 Calye's case, 8 Co. 32, 33 ; 2 Kent, Comm. Lect. 40, p. 592, 593, 4th edit. [Unless they also by their conduct assume the care of a traveller's goods before they reach the inn, as, where they furnish them a convey- ance from a railway station to their hotel. Dickinson v. Winchester, 4 Cush. 114.] 8 Ibid.; Calye's case, 8 Co. 32 ; Jones on Bailm. 91, 92, 94; 2 Kent, Comm. Lect. 40, p. 592, 4th edit. * Hawley v. Smith, 25 Wend. 642. 5 Ibid. ; Com. Dig. Action on the Case for Negligence, B. 1, 2; Hawley V. Smith, 25 Wend. 642. = Ibid. 29 450 INNKEEPERS. [CH. VI. presumed, if he knows the custom.^ And the common usage of the country must have great weight in all such cases. In the country towns in America, it is very common to leave chaises and carriages under open sheds all night at inns ; and also to leave the stable-doors open or unlocked. Under such circumstances, if a horse or chaise should be stolen, it would deserve consideration how far the innkeeper would be liable, as the traveller might be presumed to consent to the ordinary custom.^ § 479. A delivery of the goods into the custody of the inn- keeper is not necessary to charge him with them ; for although the guest doth not deliver them or acquaint the innkeeper with them, still the latter is bound to pay for them, if they are stolen or carried away ; even although the persons who stole them or carried them away are unknown.^ Thus, if a trav- eller directs his horse to be put into the stable, and says noth- ing about the gig in which the horse is harnessed, and the gig and harness are left in a place out of the inn yard, with other carriages, and is stolen, the innkeeper will be held liable for the loss ; for the gig will be deemed to be in his custodj'.* So, if goods are stolen from the chamber of the guest, and the guest gives no notice to the innkeeper that they are left there, he will be responsible for the loss, if they are stolen.^ Nor is it any excuse for the innkeeper, that he delivered to the guest the key of the chamber in which he is lodged, and that the guest left the chamber door open.^ But if the innkeeper 1 2 Kent, Comm. Lect. 40, p. 692, 4th edit. 2 Ibid. 8 Calye's case, b Co. 32 ; Quinton v. Courtney, Hayw. (N. C.) 41 ; Clute V. Wiggins, 14 Johns. 175; 1 Bell, Comm. p. 469, 5th edit.; 1 Bell, Comm. § 402, 403, 4th edit.; [McDonald v. Edgerton, 5 Barb. 560; Kellogg w. Sweeney, 1 Lans. 408;] jNorcross v. Norcross, 53 Me. 163; Jalie v. Cardinal, 35 Wis. 118; Weisenger v. Taylor, 1 Bush, 275. j < Jones V. Tyler, 3 Nev. & Mann. 576; s. c. 1 Adolph. & El. 522 ; 2 Kent, Comm. Lect. 40, p. 592, note (d), 4th edit. ; Mason v. Thompson, 9 Pick. 280; j Piper v. Manny, 21 Wend. 282.} 5 Kent V. Shuckard, 2 Barn. & Adolph, 803; ante, § 470; 2 Kent, Comm. Lect. 40, p. 592 to 595, 4th edit. ; Calye's case, 8 Co. 32, 33. ' Calye's case, a Co. 32; Com. Dig. Action on the Case for Negligence, B. 1, 2. { See Classen v. Leopold, 2 Sweeny (N. Y.), 705 ; Gile v. Libby, 36 Barb. 70 ; Oppenheim v. White Lion Co., L. R. 6 C. P. 515 ; post, §483.} CH. VI.] INNKEEPERS. 451 requires of his guest, that he should put his goods into a par- ticular chamber under lock and key, and that then he will warrant their safety, and otherwise not ; and the guest, not- withstanding, leaves them in an outer court where they are taken away, the innkeeper will be discharged.^ And although an innkeeper refuses to take charge of goods for a party until another day ; yet, if he admits him as a guest into his inn for temporary refreshments, and the goods are stolen while he is there, the innkeeper will be responsible for the loss.^ If, indeed, the innkeeper had received the goods, and the party had gone away, and afterwards the loss had occurred, the innkeeper would have been liable only as a common bailee or depositary ; ^ and if he had refused to receive the party as a guest, he would not have been liable at all.* § 480. Where the goods are delivered at the usual place for such goods at the inn, the innkeeper is chargeable with them, although not strictly within the inn. Thus, if wheat in a sleigh is put into the outer house, appurtenant to the inn and used for such purposes, and afterwards it is stolen, the inn- keeper is liable for the loss.^ So, if a horse is delivered to the ostler at the inn to be fed, and the ostler takes off the saddle ^ Calye's case, 8 Co. 32. [A usage, however, at a particular inn for the guests to leave their money or valuables at the bar, or in the hands of the clerk, without any express direction from the innkeeper, is not binding upon any guest, unless he be proved to have had actual knowledge thereof. Berkshire Woollen Co. v. Proctor, 7 Cush. 417 ;] | Sasseen ». Clark, 37 Ga. 242. See Fuller v. Coats, 18 Ohio St. 343.} 2 Bennett v. Mellor, 5 Term R. 273; [McDonald v. Edgerton, 5 Barb. 560.] " Post, § 487. * Clute V. Wiggins, 14 Johns. 175; 2 Kent, Comm. Lect. 40, p. 593- 595, 4th edit. 6 Bennett v. Mellor, 5 Term R. 273; Com. Dig. Action on the Case for Negligence, B. 1, 2 ; 1 Bell, Comm. p. 469, 5th edit.; 1 Bell, Comm. § 402- 404, 4th edit. But in Albin v. Presby, 8 N. H. 408, where a traveller, arriving at an inn, placed his loaded wagon under an open shed near the highway, and made no request to the innkeeper to take custody of it, and the 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. {As to the innkeeper's duty to provide accom- modations for the guest's horse and carriage, see Diokerson v. Rogers, 4 Humph. 179.} 452 INNKEEPERS. [CH. VI. and bridle, and deposits them in a barn belonging to the inn, and they are stolen, the innkeeper will be responsible for the loss.i So, if a horse and gig are driven to an inn, and the horse is put up into the stable, and the traveller is received into the inn, but the gig is placed among other carriages in the open street (it being the day of a fair), without the inn- yard, where on days of the fair the innkeeper is accustomed to put the carriages of his guests, and the gig is stolen, the innkeeper is liable for the loss, and the place will be deemed to be for such occasions infra hospitium? § 481. Although the general language of the Writ in the Register is, that the innkeeper is liable for the goods and chattels of the guest, which would seem not to extend to deeds, obligations, and choses in action; yet the latter are held movables within the custom to bind the innkeeper.^ So, the innkeeper will be liable for the loss of the money of his guest stolen from his room, as well as for his goods and chat- tels.* But the innkeeper is liable only for the safe custody ■ Hallenbake v. Fish, 8 Wend. 547. ^ Jones !). Tyler, 1 Adolph. & El. 522 ; s. c. 3 Nev. & Mann. 576 ; 2 Kent, Coram. Lect. 40, p. 592, 593, 4th edit. ; ante, § 479 ; (Piper v. Manny, 21 Wend. 282. j 8 Calye's case, 8 Co. 32; Com. Dig. Action on (he Case for Negligence, B. 1, 2. * Kent V. Shuckard, 5 Barn. & Adolph. 803 ; [Epps v. Hinds, 27 Miss. 658 ;] ante, § 470. [An innkeeper's liability extends to all the movable goods and money of the guest placed within the inn, and is not confined to such articles and suras only as are necessary and designed for ordinary travelling expenses of the guest. Berkshire Woollen Co. v. Proctor, 7 Cush. 417, per Fletcher, J. ;] {2 Kent, Coram. 592-594; Armistead v. White, 17 Q. B. 261 ; Kellogg v. Sweeney, 1 Lans. 397. } [Although sorae courts restrict his liability in this respect. See Pettigrew v. Barnum, 11 Md. 434 ; Giles v. Fauntleroy, 13 Id. 126; Treiber v. Burrows, 27 Id. 130;] {Sasseen v. Clark, 37 Ga. 242. The rule of the courts last I'ef erred to is to enforce the extraordinary liability of an innkeeper only so far as con- cerns a guest's "baggage," and such sum of money or other property as a traveller of the guest's condition in life would necessarily take upon his journey. Such, too, is the Louisiana rule. Simon v. Miller, 7 La. Ann. 360; Profllet v. Hall, 14 La. Ann. 524. So hazardous are found to be the risks an innkeeper incurs under the former rule, — whereby a guest might bring into the inn large sums of money, of which the landlord knew noth- ing, — without a corresponding equivalent, that statutes have been enacted CH. VI.] INNKEEPERS. 453 of the personal property of his guest. He is not responsible for any tort or injury done by his servants or others to the person of his guest, without his own co-operation or consent.'' § 482. (5) What circumstances will exonerate the inn- keeper. By the common law, as laid down in Calye's case,^ an innkeeper is not chargeable, unless there is some default in him, or in his servants, in the well and safe keeping and cus- tody of his guest's goods and chattels within his common inn ; but he is bound to keep them safe without any stealing or purloining. This doctrine, however, ought, perhaps, to be understood with this qualification, that the loss will be deemed primd facie evidence of negligence; and that the innkeeper cannot exonerate himself, but by positive proof that the loss was not by means of any person for whom he is responsible, or was not of such a nature, as that he by law ought to be held responsible therefor.^ § 483. The innkeeper, however, may be exonerated in divers other ways ; as, for example, by showing that the guest has taken upon himself exclusively the custody of his own in many States, whose object is to limit an innkeeper's responsibility for all valuables brought to the inn by his guests, unless given into his special custody to be placed in the safe he has provided; his duty being to post notices accordingly. Rosenplaenter v. Roessle, 54 N. Y. 262 ; Maltby v. Chapman, 25 Md. 310 ; Stewart v. Parsons, 24 Wis. 241 ; Woodworth o. Morse, 18 La. Ann. 158. See Bendetson w. French, 46 N. Y. 266; Bernstein w. Sweeny, 33 N. Y. Superior, 271. For valuables thus de- posited the innkeeper's liability continues as before. Pinkerton v. Woodward, 33 Cal. 557; Wilkins v. Earle, 44 N. Y. 172. See these statutes construed in Hyatt w. Taylor, 42 N. Y. 259; Ramaley v. Leland, 43 N. Y. 539 ; Stewart v. Parsons, 24 Wis. 241 ; Krohn v. Sweeney, 2 Daly, (N. Y.) 200 ; Maltby p. Chapman, 25 Md. 310. Similar legislation is to be found in England. Spice v. Bacon, 2 Ex. D. 463. See, as to personal notice by the innkeeper, Purvis v. Coleman, 21 N. Y. Ill; Bodwell v. Bragg, 29 Iowa, 232. } 1 Kent V. Shuckard, 2 Bam. & Ad. 803; ante, § 470. {But see Wade V. Thayer, 40 Cal. 578. The rule here applicable is the general one of master and servant. See Sch. Dom. Rel. 633, 636.} 2 8 Co. 32, 33. s Bennett v. Mellor, 5 Term R. 273; Burgess v. Clements, 4 Maule & Selw. 306 ; ante, § 472. But see Richmond v. Smith, 8 Barn. & Cressw. 9 ; Mason v. Thompson, 9 Pick. 280, 284. 454 INNKEEPERS. [CH. VI. goods, or has, by his own neglect, exposed them to the peril.^ Thus, where a traveller had some boxes of jewelry, and de- sired a room to himself for the purpose of opening and showing it to customers ; and he had the room assigned to him, and the key delivered to him, with directions about locking the door ; and he used the room accordingly, and unpacked his jewelry ; and he afterwards went away, and left the room for some hours, with the key in the lock on the outside of the door, and some of his boxes of jewelry were stolen : it was held, that the innkeeper was not liable, and that the guest, by accepting the key of the room, under the circumstances, had superseded the liability of the innkeeper to take care of the goods.^ So, where a guest at an inn deposits his goods in a room, and makes use of it as a warehouse for them, having the exclusive possession of it, he is understood to take upon himself the exclusive charge of his OM^n goods.^ The same principle will apply, where a guest at an inn, instead of con- 1 Calye's case, 8 Co. 32 ; 2 Kent, Coram. Lect. 40, p. 592-594, 4th edit.; Com. Dig. Action on the Case for Negligence, B. 1, 2. { Want of ordinary care on the part of the guest, in the caij or man- agement of the property, such as contributes to the loss, is in many of the later cases allowed to exonerate the innkeeper from liability. And ■where there are circumstances attending the loss, indicating that the guest did not use that ordinary care which a prudent man might reasona- bly be expected to have taken, the jury may weigh them, and decide in the innkeeper's favor. Oppenheim v. M'hite Lion Hotel Co., L. R. 6 C. P. 515; Cashill v. "Wright, 6 El. & Bl. 890; Armistead v. White, 17 Q. B. 261; Fowler v. Dorlon, 24 Barb. 384; Chamberlain v. Masterson, 26 Ala. 371; Hadley v. Upshaw, 27 Texas, 547 ; Read v. Amidon, 41 Vt. 15; Ful- ler V. Coats, 18 Ohio St. 343; Myers v. Cottrill, 5 Biss, (U. S.) 465; Purvis V. Coleman, 21 N. Y. Ill; Burrows v. Trieber, 21 Md. 320. As concerns exoneration on the ground that the guest took the things into his own custody, see Fuller v. Coats, 18 Ohio St. 343 ; Vance v. Throckmorton, 5 Bush, 41. Cases of this latter sort quite commonly involve the element of contributory negligence on the guest's part; for the innkeeper cannot readily exonerate himself from responsibility for goods brought infra hospitium, without at least some notice or positive direction to the guest where to keep them. See^o.s(, § 484. j 2 Burgess v. Clements, 4 Maule & Selw. 306; s. c. 1 Stark. 251, n. 8 Farnsworth v. Packwood, 1 Stark. 249 ; 2 Kent, Comm. Lect. 40, p. 592-594, 4th edit. ; {Myers v. Cottrill, 5 Biss. 465; Mowers v. Fethers, 61 N. Y. 34.} CH. VI.] INNKEEPERS. 455 fiding his goods to the innkeeper, (if choice commits them exclusively to the custody of another person, who is living at the inn.i § 484. But if the habit of the servants at an inn is to place the guests' goods in their bedrooms, and a guest should re- quest his to be carried into the common commercial room, to which travellers in general resort, and they are there stolen, the innkeeper will nevertheless be held responsible for the loss, unless he has given notice to the guest, that he will not be responsible, unless the goods are put into the bedroom. ^ The mere exercise of the choice of a room or other place by the guest, which is not objected to, although it is for his own personal convenience, will not discharge the innkeeper from his general responsibility, if the guest does not thereby acquire an exclusive possession of the room or place.^ § 485. In many of the States of America, inns and taverns are governed by special statute regulations, and no persons are permitted to assume the business of keeping them, unless by particular license from the public authorities.* The com- mon law, respecting the duties and liabilities of innkeepers, is understood, however, to prevail in all the United States, except Louisiana, in which State the civil law constitutes the basis of its jurisprudence ; and in so far as that law differs from the common law, it furnishes the rule for the government 1 Sneider v. Geiss, 1 Yeates, .34; Com. Dig. Action on the Case for Neg- ligence, B. 1, 2; {Houser v. TuUy, 62 Penn. St. 92.} 2 Richmond v. Smith, 8 Barn. & Cressw. 9. [In this case the innkeeper assented to the deposit of the pacliage in the common commercial room.] {See Packard v. Northcraft, 2 Met. (Ky.) 439.} [On the other hand, although it is the custom of travellers to leave their driving boxes in the commercial room, it may be such gross negligence in a traveller fre- quently to open his box and count his money in the presence of many persons in the room, and to leave his box so insecurely fastened as to open without a key, that the innkeeper will not be liable for a theft of the money. Ai:mistead v. White, 6 Eng. Law & Eq. 349; 17 Q. B. 261.] 2 See Simon v. Miller, 7 La. Ann. 360. [And generally the room assigned to a traveller, by an innkeeper, is a proper place of deposit for his baggage.] * 2 Kent, Comm. Lect. 40, p. 596, 4th edit. 456 INNKEEPERS. [CH. VI. of all questions arising therein, in all cases in which the civil code of the State does not prescribe one.^ § 486. There seems to be one peculiarity of the Roman law, which has no place in ours. If an innkeeper entertained a traveller gratuitously, he was still liable to him as a guest for all losses and damages, in the same manner as if he received a compensation. " Licet gratis navigaveris, vel in cauponS. gratis diverteris, non tamen in factum actiones tibi denega- buntur, si damnum injuria passus es." ^ But in our law, it is apprehended that he would not be so liable, unless he was to receive a compensation.^ § 487. The present head of inquiry may be closed by add- ing, that innkeepers are responsible for the loss of goods, only when they have been received by them in that character. If they have become bailees generally, they are then liable only according to the nature of the particular bailment or contract.* The same rule prevailed in the Roman law : " Eodem modo tenentur caupones et stabularii, quo exercentes negotium suum recipiunt ; sed si extra negotium receperint, non tene- buntur." ^ There is a decision in the Scottish law, quoted by Mr. Bell, which seems at variance with this doctrine. There, a parcel containing money was given to an innkeeper to be sent by a carrier or coach going from his house ; and it was subsequently missing, and the money stolen; and the inn- keeper was held responsible ; but upon what ground does not distinctly appear.^ It may also be added, that an inn- keeper is not liable to third persons for any washing of the clothing of his guests ; but it is a personal charge upon the guest.^ 1 Code of Louisiana of 1825, art. 31-33. { See Woodworth v. Morse, 18 La. Ann. 156.} 2 Dig. Lib. 4, tit. 9, 1. 6; Pothier, Pand. Lib. 4, tit. 9, n. 4. « Bac. Abridg. Ih7is, C. D.; Calye's case, 8 Co. 32; Thompson v. Lacy, 3 Barn. & Aid. 285; Com. Dig. Action on the Case for Negligence, B. 1, 2. 1 Dig. Lib. 4, tit. 9, 1. 3, § 2 ; Hyde «. Trent & Mersey Nav. Co., 5 Term R. 389; Com. Dig. Action on the Case for Negligence, B. 2; post, § 535. 5 Dig. Lib. 4, tit. 9, 1. 3, § 2 ; Pothier, Pand. Lib. 4, tit. 9, n. 3. « 1 Bell, Coram. 469, and note (5), 5th edit., citing Williamson v. White, 15 Fac. Decis. 712. ' Callard v. White, 1 Stark. 171. CH. VI.j COMMON CARRIERS. 457 ART. Vni. COMMON CARRIERS. [§ 488. Liability of Common Carriers by the CiTil Law. 489. Liability by the Common Law. 490, 491. Reasons for Extraordinary Liability. Comment on Eiley v. Home. 492. General Liability of Carriers. 492 a. 1 As to loss from ordinary wear and deterioration.} 493. Rule, Ihow far relaxed by Statute.} 494. Divisions of the subject. 495. Who are Common Carriers. 496. Common Carriers (1) by Land, (2) by Water. 497. j Whether Carriers by water and Carriers by land differ as to Liability.} 498,499. 1 Stage Proprietors and Railways, whether Common Carriers of goods.} 499, 500. {Their Liability for Baggage.} 501. Ship-owners, when deemed Common Carriers. 502. Forwarding Merchants not Common Carriers. 503. Nor Wharfingers. 504. Case of Dale v. Hall considered. 505. Specific Price of Hire not material. 506. Joint Carriers, Liability of ; Iconnecting lines of Railways.} 507. Carriers liable for the Acts of their Servants. 507 a. Carriers liable for Torts of Strangers. 608, 509. Duties and Obligations of Common Carriers. 1-510. Risks of Carriers at Common Law. 4,511. What are Losses by Act of God. 512, 512 a. What are Perils of the Sea. 513. Destruction by Rats. * 514. Collision of Ships at Sea. i 515. Proximate, not Remote, Cause of Loss looked to. 516. Losses by Perils of the Sea, when Carriers liable for. 517. Illustrative Case. 518. Comments on the same Case. 519. Case of Injury by Steam. Gross negligence. 519 a. Loss by Fraud at Sea. 520. Case of Loss by striking on the Bottom, whether a Peril of the Sea. 521. Loss by Press of Sail, when a Peril of the Sea. 522. Loss by Impressment of Seamen. 528. Loss by sudden Failure of Wind. 524. Seaworthiness of Vessel, what sufficient. 525. Jettison, a Peril of the Sea. 526. What are Losses by King's Enemies. 527. Jettison by Compulsion of an Enemy. ^ 528. In what cases Carriers are liable, though free from Negligence. 529. Onus Probandi, on whom. 530. In respect to Property carried. {Money and Bank Bills.} 530 a. Stowing Goods on Deck. 531. j Illustrative Case. Jettison of Goods.} 458 COMMON CAREIEES. [CH. VI. -y- § 532. Commencement of the Risk of Common Carriers. 533. Liability attaches from time of Acceptance of Goods. 534 Usage of Carriers {by Water, as to receiving Goods. [ 535, 530. Case where the Carrier is also a Warehouse-Man or Innkeeper. 537. Case where the Carrier is also a forwarding Merchant. -f 538-542. Termination of the Risk of Common Carriers. 543. Whether the Carrier is bound to make a Personal Delivery of Goods to the owner. 544. {English rule of personal delivery as to Carriers by Water. J 545. American Decisions in respect to {Carriers by Water.} 545 a. At what time goods to be delivered. 545 b. To whom delivery to be made. 546. Case where a person is at once a Carrier of Goods and an Agent or Fac- tor for the sale of them. 547. 548. Case of Kemp v. Coughtry (U Johns. 107) {considered.} 549. Effect of Special Contracts and Notices of Carriers. 549, n. {Modern Doctrine in England and America.} 550. Operation of a Bill of Lading. In England. In America. "j^ 551. Special Contracts are either Express, or more often Implied. 552. Bill of Lading does not cover Seizure for Violation of Revenue Laws, unless for Legal Cause of Forfeiture. r' 553, 554. Validity of Notices by Common Carriers. 554, n. English " Carriers' Act." -^ 555. {Further points for consideration under the head of Notices.} 556. (1) Nature and Effect of Notices. •f- 557. Notice, where brought home to the Parties, the Effect of. 558. (2) Upon whom Notices are obligatory. 559. Cases in which several Persons are Carriers, as Partners. 560. Notice a mere Nullity, where not brought home to the Owner of Goods carried. .561. (3) Rights and Duties of each Party, growing out of Notices. • 562. Carrier must employ Suitable Means of Conveyance. 563. Owner of Goods bound to put them in a fit Condition for transportation. 564. Conclusion of this Part of the Subject. 565. (4) Effect of Concealment or Fraud. 565 a. Effect of Concealment. Comments on Kenrig v. Eggleston. 566. Concealment of Value of Goods, whetlier of itself Fraudulent. 567. Where there is no notice. Owner of Goods not bound to disclose their value, unless asked. 568. Whether the same rule applies to cases of Notice. Mr. Justice Best's opinion. 569. Case where the Carrier knows the Goods are of Extraordinary Value, though not paid for as such. 570. (5) Degree o£ Carrier's Liability notwithstanding Notices. -^571. Whether Carrier is liable for Ordinary, as well as gross. Negligence. 571 a. When Carrier not exempted by Notices. 672. (6) What amounts to a Waiver of Notice. 673. Onus Probandi as to Negligence, on whom, in cases of Notice. 573 a. English Railway and Canal Traffic Act. 574-576. What will excuse a Non-delivery of Goods by a Common Carrier. CH. VI.] COMMON CARRIERS. 459 §576. {Transportation of Animals.} 577. Question in respect to the Carriage of Slaves. 577 a. Doctrine of the Roman Law as to Slave Passengers. 578. Non-delivery excused by act of Shipper discharging the Carrier. 579. Non-delivery excused by Illegal Act of Shipper. 580. 581. Effect of Stoppage in transitu. 582. Case where the Goods are demanded by a Person having a Superior Title. 582 a. Acceptance of Goods by Owner no bar to Action for Negligence. 583. Doctrine of Average and Contribution. 584. Land Carriers, when entitled to Compensation of {extraordinary} Ex- penses. 585. General Rights of Carriers. 586. Price of Carriage may be demanded before Goods are received. 587. Freight, what, and how earned. 588. When Carrier is entitled to Lien on the Goods. 589. When Shipper is bound to Carrier for Freight ; — when Consignee. 589, n. Who may bring action against Carriers.] § 488. (3) In the next place as to Common Carriers. It has been already stated, that the Roman law imposed by the Praetor's Edict the same responsibility upon innkeepers, ship- masters, and stable-keepers.i "Whatever, therefore, has been said under the preceding head, as to the rights, duties, and obligations of innkeepers by the Roman law, applies with equal force to the rights, duties, and obligations of carriers by water under the same law.^ In the modern countries governed by the Roman law the same rule is generally, if it is not invariably, adhered to. It may be clearly traced in the jurisprudence of France, Spain, Holland, Scotland, Louisiana, and the German States.^ The case of carriers by land, at least in modern times, seems not to have been distinguished from that of carriers by water.* So that the responsibility of common carriers under the foreign law may be summed up in 1 Ante, § 458. ' Dig. Lib. 4, tit. 9, L 1 to 7; Pothier, Pand. Lib. 4, tit. 9, n. 1 to 10; 1 Domat, B. 1, tit. 16, § 1 and 2 per tot. 8 Pardessus, Droit Comm. p. 2, tit. 7, ch. 5, art. 537 to 555; Code Civil of France, art. 1782, 1786, 1952 ; Moreau & Carlton, Partidas 5, tit. 8, 1. 26; Ersk. Inst. B. 3, tit. 1, § 28; 1 Bell, Comm. p. 465, 466, 5th edit. ; Abbott on Shipp. P. 3, ch. 3, § 3, note (1); 1 Voet ad Pand. Lib. 4, tit. 9; Code of Louisiana of 1825, art. 2722 to 2725; ante, § 467. * Ibid.; Merlin, Repertoire, Voilure, Voilurier ; 1 Bell, Comm. p. 467, 5th edit. ; 1 Bell, Comm. § 398 to 404, 4th edit. ; ante, § 458. 460 COMMON CAEEIEES. [OH. VI. the following brief statement : They are responsible for theft and damage caused by their servants, or by others in their employ and confidence, or under their protection ; but they are not responsible for thefts committed with armed force or other superior power ; and, of course, they are exempted from losses by mere accident, and inevitable casualty .^ § 489. By the common law, as understood in the reign of Henry the Eighth, a responsibility of the like extent and na- ture seems to have existed in England ; for it is said that at that time a common carrier was held chargeable in cases of a loss by robbery, only when he had travelled by roads danger- ous for robbery, or had driven by night, or at any inconvenient hour.^ However this may be, it is certain that in the com- mercial reign of Elizabeth a different rule prevailed ; ^ and the doctrine has for a great length of time been firmly established, that a common carrier is responsible for all losses, except those occasioned by the act of God, or of the king's enemies.* By the act of God, a phrase which, perhaps, habit has ren- dered too familiar to us, is meant inevitable accident or casualty ; ^ and by the king's enemies is meant public enemies, with whom the nation is at open war.^ § 490. The reason assigned by Lord Holt for this doctrine 1 Code Civil of France, art. 1782, 1784, 1952, 1953, 1954; Elliott v. Rossell, 10 Johns. 1. 2 Jones on Bailm. 103 ; Doctor and Student, Dial. 2, ch. 38; Abbott on Shipp. P. 3, ch. 3, § 3, note (1); Noy, Maxims, ch. 43, p. 93. 8 1 Inst. 89; Moore, 462; 2 Roll. Abridg. 2; Jones on Bailm. 103; Proprietors of Trent Navigation v. Wood, 3 Esp. 127. ■* [See Mershon v. Hobensack, 2 Zab. 372; Friend v. Woods, 6 Gratt. 189; Lewis v. Ludwick, 6 Coldw. 368.] 5 Jones on Bailm. 104, 105. [See Fish <;. Chapman, 2 Kelly, 349; Neal u. Saunderson, 2 Sm. & Mar. 572; Walpole v. Bridges, 5 Blaokf. 222.] {See further, post, § 511; Nugent v. Smith, 1 C. P. D. 19, 423.} [But some declare that there is a distinction between " act of God " and " inevitable accident," and that the former means a natural necessity, such as winds and storms, which arise solely from natural causes. See Trent & Mersey Navigation Co. v. Wood, 4 Dougl. 290; McArthur v. Sears, 21 Wend. 198; Hays v. Kennedy, 41 Penn. St. 378; Merritt v. Earle, 31 Barb. 38 ; s. c. 29 N. Y. 115 ; McHenry v. Philadelphia, &o. R. R. Co., 4 Harr. (Del.) 448.] « Abbott on Shipp. P. 3, ch. 4, § 3; ante, § 25. CH. VI.] COMMON CAKEIEES. 461 is as follows : " The law," says he, " charges this person (the carrier), thus intrusted to carry goods, against all events but acts of God and of the enemies of the king. For, though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs obliges them to trust these sorts of persons, that they may be safe in their dealings. For else these carriers might have an opportunity of undoing all persons, that had any dealings with them, by combining with thieves, &c. ; and yet doing it in such a clandestine manner, as would not be possible to be discov- ered. And this is the reason the law is founded upon in that point." 1 The ground of the resolution is (as Sir William Jones has justly observed) not the reward of the carrier (upon which Sir Edward Coke lays much stress), but the public employ- ment exercised by the carrier, and the danger of his combining with robbers to the infinite injury of commerce, and extreme inconvenience to society.^ He is treated as an insurer against all but the excepted perils,^ upon that distrust, which an ancient writer has called the sinew of wisdom.* In truth, the reason or policy of the rule is borrowed from the Roman law, where (as we have already seen) the rule is applied equally to car- riers by waters, to innkeepers, and to stable-ieepers ; ^ but it is applied with a stricter severity in the common law, than it was in that law.® § 491. The subject was discussed with great force and point in a modern case,'' where Mr. Chief Justice Best elaborately examined the policy and foundation of the rule in all its 1 Coggs V. Bernard, 2 Ld. Raym. 909, 918; The Maria & Vrow Johanna, 4 Rob. Adm. 348, 352. See Orange County Bank v. Brown, 9 Wend. 114, 115. 2 Jones on Bailm. 103, 104. * Forward v. Pittard, 1 Term R. 27. jNor is the carrier's liability afiected by the circumstance that the goods were insured. Burnside v. Union Steamboat Co., 10 Rich. 113.} 1 Jones on Bailm. 107 ; 1 Bell, Comm. pp. 461, 464, 466, 467, 5th edit. ; 1 Bell, Comm. § 398 to 404, 4th edit. 6 jinte, § 464. « 2 Kent, Comm. Lect. 40, p. 597, 598, 4th edit. ' Riley v. Home, 5 Bing. 217. 462 COMMON OAEEIEES. [CH. VI. bearings upon the commercial interests of the country. His language on that occasion was as follows : " When goods are delivered to a carrier, the}' are usually no longer under the eje of the owner ; he seldom follows, or sends any servants with them, to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them', or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His witnesses must be the carrier's servants ; and they, knowing that they could not be contradicted, would excuse their masters and tliemselves. To give due securitj^ to property, the law has added to that responsibility of a carrier which immediately arises out of his contract to carry for a reward, namely, that of taking all reasonable care of it, the responsibility of an insurer. From his liability as an insurer, the carrier is only to be relieved by two things, both so well known to all the country, when they happen, that no person would be so rash as to attempt to prove that they had hap- pened when they had not, namely, the act of God, and the king's enemies." § 492. In questions, therefore, as to the liability of a car- rier, the point ordinarily is not so much, whether he has been guilty of negligence or not, as whether the loss comes within either of the excepted cases. ^ Not but that, if the carrier is actually guilty of negligence, he will be liable for a loss, which otherwise might be deemed a loss by an inevitable casualty.^ Thus, if a barge-master should rashly shoot a bridge, when the bent of the weather is tempestuous, and a loss should ensue, he would be chargeable on account of his temerity and imprudence.^ But it would be otherwise, if, using all 1 Abbott on Shipp. P. 3, ch. 4, § 1 ; Gosling v. Higgins, 1 Camp. 451; McArthur v. Sears, 21 Wend. 190. 2 Ante, § 413 a to 413 d, 516 to 519; Abbott on Shipp. P. 3, ch. 4, § 1; Jones on Bailm, 122; Lyon u. Mells, 5 East, 428; Goff v. Clinck- hard, cited 1 Wils. 282; Elliott v. Rossell, 10 Johns. 1; 1 Bell, Comm. 463, 464, 469, 470, 5th edit.; 1 Bell, Comm. § .397 to 403, 4th edit. ; ante, § 122, 189, 259, 413, 413 a to 413 d; post, § 509. 8 Jones on Bailm. 107 ; Amies v. Stevens, 1 Str. 128. [See Clark v. Barnwell, 12 How. 272.] CH. VI.] COMMON CAEEIEES. 463 proper precautions, he should shoot a bridge at a proper time, and the barge should be driven by the force of the current or by the wind against a pier, and thereby the goods should be lost ; for then it would be esteemed a loss by mere casualty.* The consideration of questions of this sort, however, will find a more proper place hereafter.^ § 492 a. But althovigh the rule is thus laid down in general terms at the common law, that the carrier is responsible for all losses not occasioned by the act of God, or of the king's enemies ; yet it is to be understood in all cases that the rule does not cover any losses, not within the exception, which arise from the ordinary wear and tear and chafing of the goods in the course of their transportation, or from their ordinary loss, deterioration in quantity or quality in the course of the voyage, or from their inherent natural infirmity^ and tendency to damage, or which arise from the personal neglect, or wrong, or misconduct of the owner or shipper thereof.* Thus, for ex- ample, the carrier is not liable for any loss or damage from the ordinary decay or deterioration of oranges or other fruits in the course of the voyage, from their inherent infirmity or nature, or from the ordinary diminution or evaporation of liquids, or the ordinary leakage from the casks in which the liquors are put,^ in the course of the voyage, or from the spontaneous combustion of goods, or from their tendency to effervescence ^ or acidity, or from their not being properly put up and packed '^ ^ Ibid. [But see New Brunswick Steamboat Co. ». Tiers, 4 Zab. 697.] 2 Post, § 510 to 526. " j As to loss by injuries to animals, see post, § 576 and notes. J * 3 Kent, Comm. Lect. 48, p. 299-301, 4th edit. ; post, § 512 a, 516 to 520, 576; Hastings v. Pepper, 11 Pick. 41, 42 ; post, § 579. ^ [See Nelson v. Woodruff, 1 Black (U. S.), 156. Especially where the leakage arises from an imperfect bung in the cask. Hudson v. Bax- endale, 2 Hurl. & Norm. 575. See also Ship Howard v. Wissman, 18 How. 231 ; The Brig CoUenberg, 1 Black, 170.] 8 [See Powell v. Mills, 37 Miss. 691.] ' {Ross V. Troy & Boston R., 49 Vt. 364. For giving dangerous goods to a carrier, whose character does not appear on ordinary inspection, with- out some warning to him, the consignor is liable for damage occasioned to the carrier or to third parties. Brass v. Maitland, 6 E. & B. 470 ; Far- rant u. Barnes, 11 C. B. n. 8. 553; Boston & Albany R. v. Shanly, 107 Mass. 568; Nitro-Glycerine Case, 15 Wall. 524.} 464 COMMON CAEKIEES. [CH. VI. by the owner or shipper ,: for the carrier's implied obligations do not extend to such cases.^ § 493. The rigor of the common law as to carriers has in several cases been relaxed in England by statute, and espe- cially in the case of the owners of ships. ^ None of these statutes seem to have been generally adopted in America ; and, with the exception of some legislative provisions on the subject, in a few States, we are now left to the common law, as the only guide to regulate our inquiries and conclusions.' § 494. Let us then consider, (1) Who are deemed common carriers at the common law. ("2) What are their duties and obligations. (3) What are the risks for which they are liable at the common law. (4) The commencement and termination of their risks. (5) The effect of special contracts and notices. (6) What will excuse or justify a non-delivery of the goods. (7) The doctrine of average and contribution. (8) And lastly, the general rights of carriers. § 495. First. Who are deemed common carriers. It is not (as we have seen) every person who undertakes to carry goods for hire that is deemed a common carrier.* A private person may contract with another for the carriage of his goods, 1 3 Kent, Comm. Lect. 48, p. 299-301, 4th edit.; Abbott on Shipp. P. 3, ch. 3, § 9, 5th edit.; Id. P. 3, ch. 4, § 1 to 6; Whalley v. Wray, 3 Esp. 74 ; Briud v. Dale, 8 Carr. & Payne, 207, 211 ; Hastings i;. Pepper, 11 Pick. 41, 42; [Brown v. Clayton, 12 Ga. 566. See Warden v. Greer, 6 Watts, 424; Leech v. Baldwin, 5 AVatts, 446; Lamb v. Park- man, 1 Sprague, 343; Clark v. Barnwell, 12 How. 272. He is liable for an injury to flour, caused by the effluvium of spirits of turpentine, in the absence of any usage to carry such articles as part of the same cargo. The Bark Colonel Ledyard, 1 Sprague, 530; Gillespie v. Thompson, 6 El. & Bl. 478, note; Alston u. Herring, 11 Exch. 822.] {And see The Ship Invincible, 3 Sawyer (U. S. Circ), 176. j ^ 7 Geo. 2, ch. 15; 26 Geo. 3, ch. 86 ; 53 Geo. 3, ch. 159 ; 6 Geo. 4, ch. 125; 1 Will. 4, ch. 68; 1 Bell, Comm. p. 561, 562, 5th edit.; 2 Kent, Comm. Lect. 40, p. 605, 606, 608, 4th edit. {See post, § 554, note.} ■■' 2 Kent, Comm. Lect. 40, p. 605, 606, 4th edit. ; 3 Kent, Comm. Lect. 47, p. 217, 4th edit.; Stokes v. Saltonstall, 13 Peters, 181, 191. See Revised Statutes of Massachusetts, 1836, ch. 32, § 1 to 4. * Ante, § 457. See Gordon u. Hutchinson, 1 Watts & Serg. 285; [Shaw V. Davis, 7 Mich. 318. In this case a party who had contracted to raft and transport by water a quantity of lumber was held not a com- mon carrier, but only a bailee for hire.] CH. VI.] COMMON OAEEIEES. 465 and incur no responsibility beyond that of any ordinary bailee for hire, that is to say, the responsibility of ordinary diligence.^ To bring a person within the description of a common carrier, he must exercise it as a public employment ; he must under- take to carry goods for persons generally ; and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hao vice? A common carrier has, therefore, been defined to be one who undertakes for hire or reward^ to transport the goods of such as choose to employ him from place to place.* Although the ' Bao. Abridg. Carriers, A.; 2 Kent, Comm. Lect. 40, p. 597, 598, 4th edit.; Robinson v. Durimore, 2 Bos. & Pull. 417; Hodgson v. Fullar- ton, 4 Taunt. 787 ; Button v. Osborne, 1 Selw. N. P. 420, 11th edit. ; Jones on Bailm. 121; Satterlee v. Groat, 1 Wend. 272; Hatchwell u. Cooke, 6 Taunt. 577; ante, § 457. 2 Gisbourn v. Hurst, 1 Salk. 249; Satterlee v. Groat, 1 Wend. 272; 1 Bell, Comm. 467, 5th edit. ; 1 Bell, Comm. § 399, 4th edit. ; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 17. [See Fuller v. Bradley, 25 Penn. St. 120; Pennewill u. Cullen, 5 Harr. (Del.) 238. In Fish v. Chapman, 2 Kelly, 349, Nisbit, J., discusses at length what constitutes a person a common carrier.] {While a casual occupation does not make one liable as a common carrier, he is responsible, on his general under- taking to carry goods for hire as a business, on his first trip. Fuller ». Bradley, 25 Penn. St. 120. And this though but one trip be contemplated, Steele v. McTyer, 31 Ala. 687. Cf. Allen v. Sackrider, 37 N. Y. 341; Pit- lock V. Wells, 109 Mass. 452. Whether the business of common carrier be principal or subordinate, usual or only at periods, the law makes him who engages in it liable. See Chevallier v. Straham, 2 Texas, 115; Hannibal Railroad v. Swift, 12 Wall. 262. } 8 {It is necessary that the carriage be for hire and reward; for, if it be gratuitous, the carrier is not liable as a common carrier, but only under the ordinary rules of bailment. Fay v. Steamer New World, 1 Cal. 348; Blanchard u. Isaacs, 3 Barb. 388; Gray v. Missouri River Packet Co., 64 Mo. 47. But the carrier's liability does not depend upon the prepay- ment of his charges. Indianapolis R. u. Hemdon, 81 111. 143.} * [Alexander v. Green, 7 Hill, 544;] Sheldon w. Robinson, 7 N. H. 157, 163; [Elkins v. Boston & Maine R. R. Co., 3 Fost. 27o; Samms v. Stewart, 20 Ohio, 71; Tunnel v. Pettijohn, 2 Harr. (Del.) 48; Blanchard V. Isaacs, 3 Barb. 388;] D wight ». Brewster, 1 Pick. 50, 53; [Verner u. Sweitzer, 32 Penn. St. 212 ; Fuller v. Bradley, 25 Penn. St. 120 ;] Gis- bourne v. Hurst, 1 Salk. 249, 250; 2 Kent, Comm. Lect. 40, p. 598, 4th edit. It is not necessary that the " hire " should be for a fixed sum. It is sufficient, if the compensation be a quantum meruit, inuring to the ben- 30 466 COMMON CAERIERS. [CH. VI. expression used is, a common carrier of goods, yet this language is not to be understood in a strict sense ; for a common carrier may be of money as well as of goods, and he will be bound as such for the carriage of money as well as of goods, if such is his own practice, or the common usage of the business in which he is engaged.! § 496. Common carriers are generally of two descriptions : (1) Carriers by land ; (2~) Carriers by water. Of the former description are the proprietors of stage- wagons,^ stage-coaches, and railroad-cars,^ which ply between different places and carry goods for hire.* So are truckmen, wagoners, teamsters, efit of the owners. Nor is it necessary that the contract should be evi- denced by a writing. Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16. [Such transportation may be from a place within the realm to a place out of it. Benett v. Peninsular, &c. Steamboat Co., 6 C. B. 787 ; Crouch D. London & North Western R. Co., 25 Eng. Law & Eq. 287;] {Nugent V. Smith, 1 C. P. D. 19, 423. J 1 Kemp V. Coughtry, 11 Johns. 109; Tyly w. Morrice, Carth. 485; post, § 530; Allen v. Sewall, 2 Wend. 327; 8. c. 6 Wend. 335; {Russell v. Liv- ingston, 16 N. Y. 515. } See Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16, where the whole question is thoroughly commented upon by Mr. Justice Story. ^ [So as to omnibuses. Dibble v. Brown, 12 Ga. 217;] {Verner v. Sweitzer, 32 Penn. St. 208 ; Parmelee v. McNulty, 19 111. 556. } ^ {The responsibility attaches, in general, to those having possession, control, and authority in the business. The term " proprietor," as used above, might refer to an individual owner, partners, or a company. Thus, receivers running a railroad under an appointment from a court in chancery, or trustees of mortgage bonds in actual possession, and carrying on the business, might, in their representative capacity, be held liable as common carriers. Paige v. Smith, 99 Mass. 395 ; Blumenthal v. Brainerd, 38 Vt. 408; Morse v. Brainerd, 41 Vt. 550; Sprague v. Smith, 29 Vt. 421 ; Newell V. Smith, 49 Vt. 255; Nichols v. Smith, 115 Mass. 332. See, as to a leased railroad, Langley v. Boston & Maine R. Co., 10 Gray, 103. And see Peters v. Rylands, 20 Penn. St. 497. One railroad company which takes control of the cars of another to transport them may be liable for their safe conveyance as a common carrier. Vermont, &c. R. R. Co. v. Fitchburg R. R. Co., 14 Allen, 462; New Jersey R. v. Pennsylvania R., 3 Dutch. 100. Where an entire car has been chartered by one who loads for himself, it is held that for injury caused by bad loading the company is not liable as carrier. East Tennessee R. v. Whittle, 27 Ga. 535. And see Kimball v. Rutland R., 26 Vt. 247.} ■• Post, § 499; Coggs v. Bernard, 2 Ld. Raym. 909, 918; Jones on CH. VI.] COMMON CAREIEES. 467 cartmen, and porters, who undertake to carry goods for hire, as a common employment, from one town to another,^ or from one part of a town or city to another.^ Of the latter descrip- tion are the owners and masters of ships, whether they are regular packet-ships, or carrying-smacks, or coasting-ships, or other ships carrying on general freight.^ So are the owners and masters of steamboats engaged in the transportation of goods for persons generally for hire.* So are lightermen, Bailm. 104, 106; Garside v. Trent & Mersey Navigation Co., 4 Term R. 582; Hyde v. Trent & Mersey Navigation Co., 5 Term K. 389; For- ward ». Pittard, 1 Term R. 27 ; 2 Kent, Comm. Lect. 40, p. 598, 599, 4th edit. ; Gordon v. Litfle, 8 Serg. & Rawle, 533; Bac. Abridg. Carriers, A. ; 1 Bell, Comm. p. 467, 468, 5th edit. ; 1 Bell, Comm. § 399, 4th edit. ; Lovett V. Hobbs, 2 Shower, 128; Clarke v. Gray, 4 Esp. 177; s. c. 6 East, 564; D wight v. Brewster, 1 Pick. 50; Camden & Amboy Railroad Co. V. Burke, 13 Wend. 611; Beckman u. Shouse, 5 Rawle, 179; Palmer ». Grand Junction Railway Co., 4 Mees. & Wels. 749; Powell v. Myers, 26 Wend. 591; [Pennewill v. Cullen, 5 Harr. (Del.) 238; New Jersey Railway Co. v. Penn. Railway Co., 3 Dutch. 100;] {Chicago R. R. Co. V. Thompson, 19 111. 578; Peixotti v. McLaughlin, 1 Strobh. 468.} ' Gisbourne v. Hurst, 1 Salk. 249; Gordon v. Hutchinson, 1 Watts & Serg. 285. In this last case it was held that a wagoner who carries goods for hire thereby contracts the responsibility of a common carrier, whether transportation be his principal and direct business, or an occasional and incidental employment. 2 2 Kent, Comm. Lect. 40, p. 598, 599, 4th edit. ; [Robertson ». Ken- nedy, 2 Dana, 431.] {See Scaife v. Farrant, L. R. 10 Ex. 3.58; Richards V. Westcott, 2 Bosw. 589. } = 1 Bell, Comm. p. 467, 5th edit. ; 1 Bell, Comm. § 399, 4th edit. [This is to be understood of owners who have the control, employment, and management of the vessel; for the mere owner is not liable as a car- rier merely by virtue of his ownership, the criterion being employment, not ownership. Tuckerman v. Brown, 17 Barb. 191. See Peters v. Rylands, 20 Penn. St. 497.] {For vessels are sometimes chartered and sometimes kept under the owner's immediate control. Sproul v. Hem- mingway, 14Pick. 1; Nugentr. Smith, 1 C. P. D. 423; Claypool w. McAl- lister, 20 IlL 504; Lamb v. Parkman, 1 Sprague, 343; post, § 501. But semble, the owner of barges who lets them out to any customer who applies, each barge being let to one person only for the same voyage, is a common carrier. Liver Alkali Co. v. Johnson, L. R. 7 Ex. 267; s. c. L. R. 9 Ex. 338. And where the owners of a ship act as managers, and fail to bring notice to the shipper that others have chartered it, they may render them- selves liable as carriers. Sandeman v. Scurr, L. R. 2 Q. B. 86.} * 2 Kent, Comm. Lect. 40, p. 598, 599, 608, 4th edit.; Jones on Car- 468 COMMON CAEEIEES. [CH. VI. lioymen, barge-owners, ferryraen,^ canal-boatmen,2and others employed in the like manner.^ The owners of a steamboat riers, 1; [Bennett v. Filyaw, 1 Fla. 403;] Abbott on Shipp. Pt. 2, ch. 2, § 2-4; Jenoks v. Coleman, 2 Sumner, 221; Orange County Bank v. Brown, 9 Wend. 85; Crosby v. Fitch, 12 Conn. 410; Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611, 627, 628; Hastings !'. Pepper, 11 Pick. 41 ; Allen v. Sewall, 2 Wend. 327 ; s. o. 6 Wend. 335; Harrington v. Mo- Shane, 2 Watts, 443; Saltus v. Everett, 20 Wend. 267; Hall v. Connecti- cut River Steamboat Co, 13 Conn. 319. 1 [See Willoughby v. Horridge, 12 C. B. 742 ; White v. AVinnisimmet Co., 7 Cush. 156; Smith v. Seward, 3 Penn. St. 342; Wilsons v. Hamil- ton, 4 Ohio St. 722; Pomeroy v. Donaldson, 5 Mo. 36; Babcock v. Her- bert, 3 Ala. 392; Sanders v. Young, 1 Head,' 219; Slimmer v. Merry, 23 Iowa, 90;] {Lewis v. Smith, 107 Mass. 334; Powell v. Mills, 37 Miss. 691; Hall v. Renfro, 3 Met. (Ky.) 51. And see Ferris v. Union Ferry Co., 36 N. Y. 312.} 2 [See Beckwith v. Frisbie, 32 Vt. 559, that they may be private car- riers under special circumstances. But the company owning the canal, which they allow to be used on paying tolls, are not common carriers. Exch. Ins. Co. v. Delaware Canal Co., 10 Bosw. 180] JNor is the owner of a toll-bridge a common carrier. Grigsby v. Chappell, 5 Rich. 443.} 8 Jones on Bailm. 106-108; 2 Kent, Comm. Lect. 40, p. 598-600, 4th edit.; Bac. Abridg. Carriers, A.; Morse u. Slue, 1 Mod. 85; s. c. 1 Vent. 190, 238; s. c. T. Raym. 220 ; s. c. 2 Lev. 69; Rich v. Kneeland, Cro. Jac. 330 ; Lyon v. Mells, 5 East, 439 ; De Mott v. Laraway, 14 Wend. 225 ; Allen v. Sewall, 2 Wend. 327, 340; s. c, 6 Wend. 325; 1 Bell, Comm. p. 467, 5th edit. ; 1 Bell, Comm. § 399, 4th edit. ; 1 Roll. Abridg. Action sur Case, C, PI. 2. In Brind v. Dale, 8 Carr. & Payne, 207, s. c. 2 Mood. & Rob. 80, Lord Abinger seems to have held, that a town car- man, whose carts ply for hire near the wharves, and who also lets the same out by the hour, or day, or job, is not a common carrier. It is very difficult to distinguish between the case of a carman and that of a hoy- man, or lighterman, or bargeman, plying between different parts of the same town, or taking jobs by the hour or the day. And yet it does not seem to have been doubted, that such hoymen, lightermen, and bargemen are common carriers. See Lyon v. Mells, 5 East, 439. What substantial distinction is there in the case of parties, who ply for hire in the carriage of goods for all persons indifferently, whether the goods are carried from one town to another, or from one place to another within the same town? [That there is no such distinction, see Robertson v. Kennedy, 2 Dana, 430; Ingate v. Christie, 3 C. & K. 61.] Is there any substantial difference, whether the parties have fixed termini of their business or not, if they hold themselves out as ready and willing to carry goods for any persons whatsoever, to or from any places in the same town or in differ- CH. VI.] COMMON CARRIERS. 469 who undertake to tow freight-boats for hire, or undertake to tow vessels in or out of port for hire, are not common carriers ; but are responsible only for ordinary skill, care, and diligence in their undertaking.^ ent towns? Is a ship, engaged in general freighting business, or let out generally for hire for any voyage which the freighter may require, less a common carrier than a regular packet-ship, which plies between different ports? See Rich v. Kneeland, Cro. Jac. 330 ; 1 Roll. Abridg. Action sur Case, C, PI. 1-4; Wardell v. Mourillyan, 2 Esp. 693; 1 Bell, Comm. p. 407, 468, 5th edit; Whalley v. Wray, 3 Esp. 74; Harrington v. Lyles, 2 Nott & McCord, 88 ; Cohen v. Hume, 1 McCord, 444; Pardee v. Drew, 25 Wend. 459; Parsons v. Hardy, 14 Wend. 215; De Mott v. Laraway, 14 Wend. 225; Muddle v. Stride, 9 Carr. & Payne, 380; Gordon v. Hutchinson, 1 Watts & Serg. 285. {See Scaife v. Farrant, L. R. 10 Ex. 358 ; Liver Alkali Co. i;. Johnson, L. R. 9 Ex. 338. ] ^ Caton V. Rumney, 13 Wend. 387; [Wells v. Steam Navigation Co., 2 Comst. 204.] See 2 Kent, Comm. Lect. 40, p. 598, 599, 4th edit. ; [Leonard v. Hendrickson, 18 Penn. St. 40;] Alexander v. Greene, 3 Hill, 9; [s. c. 7 Hill, 533; Wooden w. Austin, 51 Barb. 9; Arctic Fire Ins. Co. »., Austin, 54 Barb. 559. But see Sproul v. Hemmingway, 14 Pick. 1 ; Smith V. Pierce, 1 La. 349; {Clapp v. Stanton, 20 La. Ann. 495. [ But if they contract to tow a boat ' ' at the risk of the masters and owners ' ' thereof, they are still liable for gross negligence. Wells v. Steam Navig. Co., 4 Selden, 375; Alexander v. Greene, 7 Hill, 544.] {See Hays v. Paul, 51 Penn. St. 134; The New Philadelphia, 1 Black, 62; Ashmore ». Penn. Steam Towing Co., 4 Dutch. 180.} [It has been thought that expressmen, i.e. persons who forward goods from place to place for hire, but in conveyances owned and managed by others, are not common carriers, although they carry for everybody who may employ them, Hersfield o. Adams, 19 Barb. 577; but the better opinion and the great weight of authority is otherwise, Baldwin v. American Express Co., 23 111. 197; Haslam v. Adams Express Co., 6 Bosw. 235 ; Newstadt v. Adams, 5 Duer, 43 ; Richards v. Westcott, 2 Bosw. 589 ; Belger v. Dinsmore, 51 Barb. 69 ; Buckland v. Adams Express Co., 97 Mass. 124; Lowell Wire Fence Co. u. Sargent, 8 Allen, 189; Southern Express Co. u. Newby, 36 Ga. 635; Sweet v. Barney, 23 N. Y. 335; Place v. Union Express Co., 2 Hilton, 19; Mercantile Ins. Co. V. Chase, 1 E. D. Smith, 115; Sherman v. Wells, 28 Barb. 403; Veraer v. Sweitzer, 32 Penn. St. 208. The carrier or proprietor of the steamboat, railroad, or other mode of transportation may also be liable to the owner of goods lost on their line, notwithstanding any agreement to the contrary between them and the expressmen, not known to the con- signor. See New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, a very important case ; Langworthy v. New York & Harlem Railroad, 2 E. D. Smith, 195.] {Express companies are clearly liable as common 470 COMMON CARRIERS. [CH. VI. § 497. The rule in respect to carriers by water, established in England, seems to be generally understood to be the rule in America. It has been recognized in an ample manner in several of the States. ^ In one case, indeed, in New York, it was adjudged, that the owners of a vessel bringing goods from New Orleans to New York for hire were not to be deemed common carriers. ^ But this decision is in direct repugnance to prior, as well as to subsequent, decisions made on the same point in the same State ; and the general rule of the common law is now fully established there.^ Au effort also has been made in Pennsylvania to relax the general rigor of the rule, and to take a distinction between carriers on inland waters and carriers on land ; but it does not seem as yet to be settled in that State.* In respect to carriers on land, the rule of the common law seems everywhere admitted in its full rigor,^ in carriers ; and this, notwithstanding such titles as " transportation com- pany," "forwarders," &c., be used to designate what in fact is the express business. Cases supra ; Mercantile Mut. Ins. Co. u. Chase, 1 E. D. Smith, 115; Bigelow, C. J., in Buckland v. Adams Express Co., 97 Mass. 124; American Express Co. v. Pinckney, 29 111. 392 ; Southern Express Co. v. McVeigh, 20 Gratt. 264 ; Southern Express Co. o. Hess, 53 Ala. 19; Bank of Kentucky v. Adams Express Co., 93 U. S. Supr. 174.} ^ Kichards v. Gilbert, o Day, 415; Boyce v. Anderson, 2 Peters, 150, 155; 2 Kent, Comm. Lect. 40, p. 600,608,609, 4th edit.; Clark v. Richards, 1 Conn. 54; Williams v. Grant, 1 Conn. 487; Bell v. Reed, 4Binn. 127; [Brown w. Clayton, 12 Ga. 564;] Emery «. Hersey, 4 Greenl. 407 ; McClures v. Hammond, 1 Bay, 99, 101 ; Harrington v. Lyles, 2 Nott & McCord, 88; HastinL'S v. Pepper, 11 Pick. 41; Dwight v. Brewster, 1 Pick. 50; De Mott v. Laraway, 14 Wend. 225. = Aymar e. Astor, 6 Cow. 266; Crosby v. Fitch, 12 Conn. 410. 8 2 Kent, Coram. Lect. 40, p. 600, 608, 609, and note (b) ; Elliott v. Rossell, 10 Johns. 1; Kemp v. Coughtry, 11 Johns. 107; Allen u. SewaU, 2 Wend. 327; s. o. 6 Wend. 335, * Gordon v. Little, 8 Serg. & Rawlo, 533; Bell v. Reed, 4 Binn. 127; Hand v. Baynes, 4 Whart. 204 ; Beckman v. Shouse, 5 Rawie, 179; post, § 499. {See Xugent v. Smith. 1 C. P. D. 19, 423, as to whether every ship owner or master who carries goods for hire shall be deemed subject, by implication, to the liability of insurer.) 5 2 Kent, Comm. Lect. 40, p. 599, 600, 608, 609, 4th edit.; Gordon v. Little, 8 Serg. & Rawle, 533; Dwight w. Brewster, 1 Pick. 50; Hastings v. Pepper, 11 Pick. 41; Hand v. Baynes, 4 Whart. 204; Beckman k. Shouse, 5 Rawle, 179. CH. VI.J COMMON OAERIEES. 471 the States governed by the jurisprudence of the common law. Louisiana in general has followed the doctrine of the Roman and French law in her own code.' § 498. But the proprietors of stage-coaches, whose employ- ment is solely to carry passengers (such as hackney-coachmen), are not deemed common carriers.^ Although as to the lug- gage or baggage of the passengers they may incur the same liability as common carriers.* They are not responsible for mere accidents happening to the persons of passengers, with- out any default whatsoever on their part. On the other hand, they are responsible for the exercise of the highest degree of care and diligence, or, as it has been expressed, for all diligence in the carriage of passengers, as far as human care and fore- sight will go.* If (as is ordinarily the case) they are also accustomed to carry the baggage of passengers, although they receive no specific compensation therefor, but simply receive their fare for the passage of the travellers ; yet, like common carriers, they are responsible for the safety of such baggage, and for proper care thereof; since it constitutes a part of the service for which the fare is paid, and the passengers are thereby induced to travel in the coach, and the custody of the baggage may be properly deemed, as in the case of an innkeeper, an accessory to the principal contract.* Upon the 1 Code of Louisiana of 1825, art. 2722 to 2728. 2 Bac. Abridg. Carriers, A. ; 2 Kent, Coram. Lect. 40, p. 600 to 602, 4th edit.; 1 Bell, Comm. p. 467, 468, 475, 5th edit. ; 1 Bell, Coram. § 400, 4th edit. ; Aston v. Heaven, 2 Esp. 533 ; White v. Boulton, Peake, 81 ; Christie V. Griggs, 2 Camp. 79 ; post, § 499, 590. ^ See post, § 555; Hollister o. Nowlen, 19 Wend. 234; Cole v. Good- win, 19 Wend. 251; Powell v. Myers, 26 Wend. 591, 594, 596; Camden & Araboy R. K. Co. v. Belknap, 21 Wend. 354; Pardee v. Drew, 25 Wend. 459; [Bomar v. Maxwell, 9 Huraph. 261. See Ross v. Hill, 2 C. B. 877;] {Peixotti u. McLaughlin, 1 Strobh. 468.} ^ Post, § 601; Stokes v. Saltonstall, 13 Peters, 181; Hall v. Connecti- cut River Steamboat Co., 13 Conn. 319; Camden & Amboy Railroad Co. V. Burke, 13 Wend. 615, 627, 628; Aston w. Heaven, 2 Esp. 533; Christie v. Griggs, 2 Camp. 79; Dudley v. Smith, 1 Camp. 167; White V. Boulton, Peake, 81 ; Robinson v. Dunniore, 2 Bos. & Pull. 417 ; 2 Kent, Comm. Lent. 40, p. 600, 601, 4th edit. ; Sharp v. Grey, 9 Bing. 457. ^ Lord Holt, in Lane v. Cotton, 12 Mod. 487; ante, § 470; Jones on Bailm. 94; Dig. Lib. 4, tit. 9, 1. 5; 2 Kent, Comm. Lect. 40, p. 600, 601, 472 COMMON CAEEIEES. [CH. VI. responsibility of the proprietors of stage-coaches, rail-cars, and steamboats, and other carriers of passengers, we shall have occasion hereafter to treat more at large. ^ § 499. It has been a matter of some controversy, in what character the proprietors of stage-coaches, and steamboats, and rail-cars, are to be regarded.^ In regard to the persons of passengers, it is now clear (as we shall presently see),^ that they are not to be deemed common carriers, so as to be liable for all injuries and damages, from which, as common carriers, they would not be excused. The more important question has been in regard to their liability for the baggage of passengers; whether it is that of common carriers, or only that of private persons engaging ordinarily for hire ; that is, for due and rea- sonable skill and diligence in their undertaking.* The general tendency of the authorities, however, has at all times been to the point, that, as to the baggage of the passengers, the pro- prietors are common carriers.^ And the doctrine seems now 4th edit. ; Middleton v. Fowler, 1 Salk 282 ; Upshare v. Aidee, 1 Comyns, 25; post, § 554; Wolf v. Summers, 2 Camp. 631; Powell v. Myers, 26 Wend. 591; Camden & Amboy R. R. Co. v. Belknap, 21 Wend. 354 Pardee v. Drew, 25 Wend. 459; Hollister v. Nowlen, 19 Wend. 234 [Bomar v. Maxwell, 9 Humph. 621 ; Hawkins v. Hoffman, 6 Hill, 586 Blanchard v. Isaacs, 3 Barb. 388.J But see Selw. N. P. 323, note (d) Orange County Bank u. Brown, 9 Wend. 85. 1 Post, § 590 to 604. 2 Ante, § 496. 8 Post, § 590 to 604; 2 Kent, Comm. Lect. 40, p. 600, 601, 4th edit. * Selw. N. P. 4th edit. p. 333, and note; Clarke ,j. Gray, 4 Esp. 177; Robinson v. Dunmore, 2 Bos. & Pull. 419, per Chambre, J.; 2 Kent, Comm. Lect. 40, p. 600 to 602, 4th edit. ; 5 Petersd. Abridg. Carriers, 59, note; Jeremy on Carriers, 12; {Angell on Carriers, § 107-5 ^ [And if the baggage is retained by the passenger under his exclusive possession and custody, the carrier is not liable. Cohen u. Frost, 2 Duer, 335. For this reason he is not liable for money stolen from the pocket of a passenger. Abbott v. Bradstreet, 55 Me. 530. Nor for wearing apparel, overcoats, canes, umbrellas, shawls, which the passenger under- takes to carry about with him, and does not deliver to the carrier or his servants. See Steamboat v. Vanderpool, 16 B. Monr. 302; Tower u. Utica, &c. R. R. Co., 7 Hill, 47. But the carrier may still be liable for baggage, notwithstanding the owner has attempted to take additional care of it himself. See Le Conteur v. London & South Western R. Co., 6B. & S. 961; IL. R. 1 Q. B. 54;} Fisher u. Clisbee, 12 111. 344 ; {Great Northern"R. Co. m. Shepherd, 8 Ex. 30. The distinction, as applied in CH. VI.] COMMON CAREIEES. 473 firmly established, both in England ^ and America, that the responsibility of coach proprietors carrying passengers with Talley v. Great Western R. Co., L. R. 6 C. P. 44, is, that -where the passenger takes the personal charge of his own baggage, he is bound to exercise ordinary care ; and his contributory negligence debars him from recovering for its loss. Quere, whether steamboat owners are responsi- ble to passengers for the loss of articles which they carry about their persons, and do not hand over as baggage for safe keeping. McKee v. Owen, 15 Mich. 115 ; Mudgett v. Bay State Steamboat Co., 1 Daly (N. Y.), 151; Gore v. Norwich, &c. Transportation Co., 2 Daly, 254. Contra, Clark t). Burns, 118 Mass. 275 ; Steamboat Crystal Palace v. Vanderpool, 16 B. Monr. 302. And see Gleason v. Goodrich Transportation Co., 32 Wis. 85 ; Abbott V. Bradstreet, 55 Me. 530. The owners of sleeping-cars are held not liable as innkeepers or carriers, in Pullman Palace Car Co. v. Smith, 73 111. 360. } And the baggage should he carried with them. The car- rier is not bound to carry it afterwards, and for the passenger's fare only, in the absence of any special contract or default on his part. Wilson v. Grand Trunk Railway, 56 Me. 60. But see Logan v. Pontchartrain Railroad, 11 Rob. (La.) 24. If A. takes with him the baggage of B., as and for his own, B. can maintain no action of contract against the carrier for its injury, whether A. could or could not under the circum- stances. There is no privity between B. and the carrier. Beeher v. Great Eastern Railway Co., 18 Weekly Rep. 627 (1870). A father may recover for his son's baggage which has been furnished by him to enable the son to travel upon the father's business. Grant v. Newton, 1 E. D. Smith, 95. And a servant may in his own name recover for the loss of his baggage, although the master pays for the transit. Marshall v. York & Newcastle Railway Co. ,11 C. B. 655. For it seems to be immaterial who pays the passenger's fare ; the liability does not arise merely upon the actual contract. See Van Horn v. Kermit, 4 E. D. Smith, 453.] 1 [Richard.s v. London, Brighton, & South Coast Railway Co., 7 C. B. 839. This was denied in a recent case, in which Pollock, C. B., says, " I am not convinced by that case. The attention of the court was not drawn to the distinction which exists. And although a passage has been cited from Story on Bailments, § 499, to the same effect, I retain the opinion that a carrier undertakes no responsibility in respect of the lug- gage of a passenger beyond that which he undertakes in respect of the passenger himself." Stewart v. London & North Western Railway Co., 3 H. & C. 139 (1864).] |But in the later case of Macrow v. Great Western R. Co., L. R. 6 Q. B. 612, 618 (1871), Cockburn, C. J., ob- serves: " The conveyance of the personal luggage of the passenger being obviously for his convenience, and, therefore, accessory, as it were, to his conveyance, it may be thought that the liability of the carrier in respect of the safe conveyance of passenger's luggage should have been coexten- sive only with the liability in respect of the safety of the passenger. The 474 COMMON CARRIERS. [CH. TI. their baggage, stands, as to their baggage, upon the ordinary footing of common carriers.^ Mr. Bell has deduced this as the true modern doctrine on the subject.^ But by baggage we are to understand such articles of necessity or personal convenience as are usually carried by passengers for their per- sonal use, and not merchandise or other valuables, although carried in the trunks of passengers, which are not designed for any such use, but for other purposes, such as a sale and the like.^ law, however, is now too firmly settled to admit of being shaken, that the liability of common carriers in respect of articles carried as passenger's luggage is that of carriers of goods as distinguished from that of carriers of passengers ; unless, indeed, where the passenger himself takes the personal charge of them, as in Talley v. Great Western E. Co., L. K. 6 C. P. 44, in which case other considerations arise." The rule of Great Britain is peculiarly affected by the English Carrier's Acts, noted post, § 554. } 1 Ante, p. 472, note (4) ; post, § 590; Brooke v. Pickwick, 4 Bing. 218, 222 ; Christie v. Griggs, 2 Camp. 80; Allen v. Sewall, 2 Wend. 327, 341 ; 8. c. 6 Wend. 335; Clarke v. Gray, 6 East, 564; Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611, 627, 628; Orange Co. Bank v. Brown, 9 Wend. 85, 114 to 119; HoUister v. Nowlen, 19 Wend. 234; Cole V. Goodwin, 19 Wend. 251; Camden & Amboy Railroad Co. v. Bel- knap, 21 Wend. 354; Powell v. Myers, 26 Wend. 591; 2 Kent, Comm. Lect. 40, p. 600, 601, 4th edit. ; Pardee v. Drew, 25 Wend. 459. But see Beckman v. Shouse, 5 Rawle, 179; ante, § 497. 2 1 Bell, Comm. p. 467, 468, 475, 5th edit.; 1 Bell, Comm. § 400, 4th edit. [See Cahill i>. London & North Western Railway Co., 10 C. B. N. s. 154; Smith u. Boston & Maine R., 44 N. H. 325 ; Merrill i>. Grinnell, 30 N. Y. 619 ; Minter v. Pacific Railroad, 41 Mo. 507. The liability for baggage commences after its delivery into the hands of the carrier or his agents for transportation, although it be some hours before the trunk is checked and transportation commences. See Hickox v. Kaugatuck R. Co., 31 Conn. 281. And a notice that the carrier will not be liable until the baggage is checked will not exonerate him. Freeman v. Newton, 3 E. D. Smith, 246. But a delivery is essential. Wright v. Caldwell, 3 Mich. 51;] {post, § 532. Concerning the time when the liability for baggage terminates, see post, § 538. As to how far carriers may by con- tract limit and regulate their liability for baggage, see Peninsular Steam Nav. Co. V. Shand, 3 Moore, n. S- 272 ; post, § 551, notes.} 8 Pardee v. Drew, 25 Wend. 459; [Parmelee v. Fischer, 22 111. 212; Hawkins v. Hoffman, 6 Hill, 586; Stimson v. Conn. River Railroad Co., 98 Mass. 83; Cahill v. London & North Western Railway Co., 10 C. B. N. s. 154, affirmed on error, 13 Id. 818; Belfast, &c. Railway Co. v. CH. VI.] COMMON CAEEIERS. 475 § 500. If the proprietors of a stage-coach for passengers carry goods also for hire, they are in respect to such goods Keys, 9 H. L. C. 558; Smith v. Boston & Maine Railroad, 44 N. H. 325. See Dibble v. Brown, 12 Ga. 217, per Nisbet, J.; {Michigan Central R. v. Carrow, 73 111. 348. } But it has been said that although pa^enger car- riers are not liable for merchandise when packed up with 'a traveller's haggage, if the baggage he lost, yet if the merchandile be so packed as to be obviously merchandise to the eye, and the carrier takes it without objection, he is liable for the lod^ Great Northern Railway Co. v. Shep- herd, 9 Eng. Law & Eq. 477 ; 8 Exch. 30. See also Minter v. Pacific Rail- road, 41 Mo. 503; Butleri;. Hudson River Railroad, 3 E. D. Smith. 571; Glasco V. New York, &o. Railroad .Co., 36 Barb. 557; {Belfast R. Co. V. Keys, 9 H. L. Cas. 556. See Michigan Central R. v. Carrow, 73 111. 348 ; post, § 565, note. { The term "baggage " has been thought to include personal jewelry. McGill 0. Rowand, 3 Penn. St. 451. And see Brooke v. Pickwick, 4 Bing. 218; McCormick v. Hudson River Railroad, 4 E. D. Smith, 181; Nevins V. Bay State Steamboat Co., 4 Bosw. 225. A watch in a trunk, valued at $94. Jones o. Voorhees, 10 Ohio, 145. But see Bomar v. Maxwell, 9 Humph. 621. A set of carpenters' tools, to a reasonable amount. Por- ter V. Hildebrand, 14 Penn. St. 129; Davis v. Cayuga Railroad, 10 How. Pr. 330. Manuscript books belonging to a student, and necessary for the prosecution of his studies. Hopkins v. Westcott, 6 Blatchf. 64. {The "price list" manuscript of a travelling agent. Gleason v. Goodrich Transportation Co., 32 Wis. 85. And even the surgical instruments of an army surgeon. Hannibal Railroad v. Swift, 12 Wall. 262. Personal use and convenience, according to the want of the particular class of trav- ellers on the journey, is to be considered. Ibid. } A pair of pistols. Woods V. Devin, 13 111. 746, per Treat, C. J. ; Davis v. Southern Michi- gan Railroad, 22 111. 281. But see Giles v. Fauntleroy, 13 Md. 126. Money in a trunk to a reasonable amount, bona fide intended for travelling expenses and personal use ; although on this point the decisions are not uniform. Jordan v. Fall River R. Co., 5 Cush. 69; Illinois Central Railroad v. Copeland, 24 111. 332. Contra, Grant v. New- ton, 1 E. D. Smith, 95. And see Bomar v. Maxwell, 9 Humph. 621. The sum of $439 was thought to be an unreasonable amount in Davis v. Michigan, &c. Railroad, 22 111. 278. And in Hickox v. Naugatuck Rail- road, 31 Conn. 281, the carrier was held not liable for $60 carried in a trunk, and intended for the purchase of clothing. {Bomar v. Maxwell, 9 Humph. 621, is fairly offset by Johnson v. Stone, 11 Humph. 419; and the decision of an inferior New York court, in Grant v. Newton, 1 E. D. Smith, 95, must be considered essentially of little authority in that State since Merrill v. Grinnell, 30 N. Y. 594. The remaining cases just cited support the principle that for money hona fide included in the passen- ger's baggage for travelling expenses and personal use, to an amount not 476 COMMON CAREIEES. [CH. VI. to be deemed common carriers, and responsible accordingly. i But in all such cases, it must be clear that the proprietors exceeding what is prudent, the carrier is liable; but not for money beyond that amount or intended for other purposes. See also Hutchings v. Western R. Co., 25 Ga. 61; Dufiy v. Thomp.son, 4 E. D. Smith, 178; Michigan Central R. v. Carrow, 73 111. 348. } But it is held that baggage does not include large suras of money, such as are carried merely for trans- portation, and not for convenience on the way. Orange County Bank v. Brown, 9 Wend. 85 ; Dunlap v. International Steamboat Co., 98 Mass. 371 ; Whitmore v. Steamboat Caroline, 20 Mo. 513 ; Merrill v. Griunell, 30 N. Y. 594 ; Bell v. Drew, 4 E. D. Smith, 59, 178 ; Johnson v. Stone, 11 Humph. 419 ; Doyle v. Riser, 6 Ind. 242. Especially where the money belongs to one passenger but is packed in the valise of another passenger, which the latter delivers as his own luggage, without giving the carrier any notice. Dunlap v. International Steamboat Co., 98 Mass. 371. Nor money to an amount of £65 carried by an attorney travelling to court, with which to meet the contingencies of his client's suit, nor the title- deeds of such client. Phelps v. London & North Western Railway Co., 19 C. B. N. 8. 321. Nor articles of merchandise not intended for per- sonal use ; such as " thirty-eight pairs of new shoes, sixty pairs of stock for boys' shoes, and two papers of shoe nails." Collins o. Boston & Maine Railroad, 10 Cush. 506. Nor silver ware or a box of jewelry, carried as and for merchandise. Richards v. Westcott, 2 Bosw. 589 ; Bell v. Drew, 4 E. D. Smith, 59. Nor a child's "spring horse," weighing seventy- eight pounds. Hudston i>. Midland Railway Co., Law Rep. 4 Q. B. 366. Nor several watches carried in a trunk. Miss., &c. Railway v. Kennedy, 41 Miss. 671 ; { Cincinnati, &c. Air Line Road v. Marcus, 38 111. 219. ) Some authorities hold it to be a question of fact for the jury in each case what articles are baggage. Ouimit v. Henshaw, 35 Vt. 604. {Bedding and bed clothing, taken with reference to the place of destination and not suitable for use on the journey, cannot be deemed " baggage." Macrow V. Great Western R. Co., L. R. 6 Q. B 612; Connolly v. Warren, 106 Mass. 146. Nor a sacque and muff and silver napkiu-rings. Sed qu. Chicago R. v. Boyce, 73 111. 510. } The authorities are not entirely harmonious upon the question how far, if at all, the plaintiff is a competent witness, at common law, to tes- tify to the contents of a trunk or other package lost or destroyed by a 1 Bac. Abridg. Carriers, A.; Lovett v. Hobbs, 2 Shower, 128; Mid- dleton c. Fowler, 1 Salk. 282; Upshare i>. Aidee, 1 Comyns, 25; Dwight V. Brewster, 1 Pick. 50; Allen v. Sewall, 2 Wend. 327, 341; s. c. 6 Wend. 335; Orange County Bank v. Brown, 9 Wend. 85, 114 to 119; Hastings V. Pepper, 11 Pick. 41; Camden & Amboy Railroad Co. u. Buvke, 13 Wend. 611, 627, 628; 2 Kent, Comm. Lect. 40, p. 598-600, 4th edit. CH. VI.] COMMON CAEEIEES. 477 hold themselves out as persons exercising a public employ- ment, and as being ready to carry goods for hire for persons in general. The mere fact that the drivers of their coaches are accustomed to carry packages of money or other things for hire, for their own personal emolument, will not make the proprietors responsible therefor, as common carriers.^ Neither will the drivers themselves, in such cases, be personally liable carrier. In one case he was admitted, where the captain of a vessel had broken open and plundered a trunk intrusted to him. Herman v. Drink- water, 1 Greenl. 27. But this probably was on the ground of the special circumstances of the case, and in odium spoliatoris. And see Oppenheimer u. Edney, 9 Humph. 385; Garvey ». Camden, &c. Railroad, 1 Hilton, 280. And the same rule applies to robbery by an innkeeper of a trunk of his guest. Sparr v. Wellman, 11 Mo. 230. But many cases have gone further, permitting the plaintiff, and in some instances his wife, to testify as to the contents and value of the articles in a trunk lost by the carrier, and where there was no imputation of fraud, or violence, but simply of negligence. Mad River Railroad Co. v. Fulton, 20 Ohio, 318; McGill V. Rowand, 3 Penn. St. 451; Johnson v. Stone, 11 Humph. 419; Whitesell v. Crane, 8 Watts & Serg. 369. And this on the ground of necessity ; the rule even in these cases being confined, however, to articles necessary and convenient for travelling. Bingham v. Rogers, 6 Watts & Serg. 495; Pudor v. Boston & Maine Railroad Co., 26 Me. 458; Adams Express Co. v. Haynes, 42 111. 89. Some cases require an absolute necessity to exist before such testimony is competent. Dibble v. Brown, 12 Ga. 217. And in one case it was held not to extend to money. David V. Moore, 2 Watts & Serg. 230. Although there are contradictory decisions on this point. Johnson v. Stone, 11 Humph. 419; Illinois Cen- tral Railroad v. Copelaud, 24 111. 332. On the other hand, in Massachu- setts, South Carolina, and some other States, the plaintiff is excluded altogether, in such cases. Wright v. Caldwell, 3 Mich. 51 ; Doyle v. Kiser, 6 Ind. 242; Snow v. Eastern Railroad Co , 12 Met. 44, per Hubbard, J.; Dills. South Carolina Railroad Co., 7 Rich. 158. And in some courts he is admitted to testify to the contents of his trunk, but not to their value. Illinois Central Railroad v. Taylor, 24 111. 323 ; Illinois Central Railroad V. Copeland, Id. 332.] {See 1 Greenleaf Evid. § 348.} 1 Middleton v. Fowler, 1 Salk. 282; Bean v. Sturtevant, 8 N. H. 146. But if the coach owners employ a driver under contract that he shall receive a certain sum of money per month, and the compensation which shall be paid for carrying small packages, that will make the car- riers personally liable for the loss of goods by the driver, which he is intrusted to carry, unless the proprietor of the goods knows the arrange- ment, and contracts with the driver solely as principal. Ibid. See Hosea V. McCrory, 12 Ala. 349. 478 COMMON. CAEEIERS. [CH. VI. as common carriers, if this is not their common employment, or if they do not hold themselves out to the public to carry generally for hire ; but they will be deemed mere ordinary bailees for hire.^ The like reasoning applies to packet-ships, and steamboats, and rail-cars, which ply between different ports or places, and are accustomed to carry merchandise, as well as passengers.^ § 501. When it is said that the owners and masters of ships are deemed common carriers, it is to be understood of such ships as are employed as general ships, or for the transporta- tion of merchandise for persons in general ; such as vessels employed in the coasting trade, or in foreign trade, or on general freighting business for all persons offering goods on freight for the port of destination.^ In such cases, it will make no difference, whether in fact the whole cargo belongs to one shipper, or to many shippers, so always that the ship retains her character and employment, as a general ship, or common carrier. But if the owner of a ship employs it on his own account generally, or if he lets the tonnage with a small ex- ception to a single person, and then, for the accommodation of a particular individual, he takes goods on board for freight (not receiving them for persons in general), he will not be ' Shelden v. Robinson, 7 N. H. 157 ; post, § 507. ^ Shelden v. Robinson, 7 N. H. 157; [Parker v. Great Western Rail- way Co., 7 Man. & Gr. 253; Thomas o. Boston & Providence Railroad Co., 10 Met. 472.] f Steam railroads usually have passenger trains and freight trains dis- tinct ; hence it might be questionable whether for a passenger train carrying freight on rare occasions the company would incur the risk of a common carrier of merchandise. See Murch v. Concord, &c. R. R. Co., 9 Fost. 9; Elkins V. Boston & Maine R. R. Co., 3 Fost. 275. But this is a matter of evidence; and whether the liability incurred was that of common carrier in a given case would depend upon circumstances. The practice one pursues may extend his responsibility beyond the usual scope. Even a horse-railroad company may be proved to be a common carrier of merchandise, though horse railroads are commonly occupied in trans- porting passengers without even baggage. See Levi v. Lynn, &c. Horse Railroad Co., 11 Allen, 300. See also Kimball v. Rutland R. R. Co., 26 Vt. 217; Powell v. Mills, 30 Miss. 231; Hannibal Railroad v. Swift, 12 Wall. 262; Dibble v. Brown, 12 Ga. 217.} 8 Abbott on Shipp. P. 3, ch. 2, § 1, 2, 5th edit. CH. VI.J COMMON CABEIEES. 479 deemed a common carrier, but a mere private carrier ; for he does not, under such circumstances, hold himself out as en- gaged in a public business or employment.^ If the whole ship is chartered by the owner to a single person for a particular voyage out and home, for a specified freight, under a charter- party, that charter-party will, of course, be held to regulate the rights, duties, and responsibilities of the parties, and may supersede, pro hac vice, the general rights, duties, and respon- sibilities of the ship-owner, as a common carrier.^ § 502. A person who receives and forwards goods (com- monly called a forwarding merchant), who takes upon himself the expenses of transportation, for which he receives a com- pensation from the owners, but who has no concern in the vessels or wagons by which they are transported, and no interest in the freight, is not deemed a common carrier ; but he is a mere warehouseman and agent.^ § 503. We have already had occasion to notice, that, not- withstanding wharfingers are sometimes asserted to be liable as common carriers, yet that, properly speaking, there is at present no sufficient authority on which to rest that doctrine.* 1 See, however, Walter v. Brewer, 11 Mass. 99 ; King v. Lenox, 19 Johns. 235; Reynolds!). Toppan, 15 Mass. 370; Allen u. Sewall, 2 Wend. 327, 342 ; Boucher v. Lawson, Cas. temp. Hard. 194. See Shackleford V. Wilcox, 9 La. 33, 84. '^ [And see Tuckerman v. Brown, 17 Barb. 191; Peters v. Rylands, 20 Penn. St. 497. See Campbell v. Perkins, 4 Selden, 430;] {ante, § 496 and notes. See also Lamb v. Parkman, 1 Sprague, 343 ; Alkali Co. v. John- son, L. R. 9 Ex. 338 ; Claypool v. McAllister, 20 111. 504 ; Nugent o. Smith, 1 C. P. D. 4:23; ante, p. 467, note (3) ; Gage v. Tirrell, 9 Allen, 299.} » Roberts v. Turner, 12 Johns. 232; Piatt v. Hibbard, 7 Cow. 497; 2 Kent, Comm. Lect. 40, p. 591, 4th edit. ; ante, § 444 to 450, 457, 495, 496 ; [Maybin v. South Carolina R. R. Co., 8 Rich. 240. But see Teall V. Sears, 9 Barb. 817, where Roberts v. Turner is distinguished. See Northern Railroad Co. v. Fitchburg Railroad Co., 6 Allen, 254.] {Ex- pressmen are not ''forwarding" merchants merely. Ante, p. 469, note (1). Nor does the use of the term " forward" exclude of necessity the idea of liability as carrier. Ibid. A forwarder directed to send by a particular line, should strictly follow his instructions. Johnson u. New York Central R. Co., 33 N. Y. 610; Stannard v. Prince, 64 N. Y. 300.} * Ante, § 451, 452. See also § 457, 495, 496; Schroyer v. Lynch, 8 Watts, 433; s. c. 2 Law Reporter, 229, 230. 480 COMMON CAEEIEES. [CH. VI. § 504. It seems to have been held, in one case, that a person who undertakes to carry goods by water is liable as a common carrier, notwithstanding the declaration does not allege him to be a common carrier, but is founded upon a special contract.^ That case was in fact against a common hoyman for the negligent loss of goods ; and the Court was of opinion, that, as he was a common hoyman, evidence to show that he was in fact guilty of no negligence was improp- erly admitted in his defence. It is difficult to perceive how, upon the actual frame of the declaration, any general respon- sibility as a common carrier could be inferred. And the case, if it proceeded upon the notion, that every carrier by water for hire was to be deemed a common cai'rier, and responsible as such, is inconsistent with later decisions.^ § 505. In order to charge a person as a common carrier, it is not necessary that a specific sum should be agreed on for the hire ; for if none is agreed on, he is entitled to a reasonable compensation, upon the same principles which govern in every other contract for hire.'^ § 506. Where several persons are engaged as partners in the business of common carriers on land, and by contract between themselves one finds horses and drivers for certain stages of the route, and the other supplies them for the remaining stages, they are, notwithstanding, to be treated as partners, and jointly responsible throughout the whole course of their route.* The same principle applies to different part- 1 Dale V. Hall, 1 AVils. 281. [See Mershon v. Hobensack, 2 Zab. 382.] 2 Hutton !'. Osborne, 1 Selw. N. P. 10th edit. p. 399, note (6); Robin- son V. Dunmore, 2 Bos. & Pull. 417 ; Satterlee .-. Groat, 1 Wend. 272 ; Boucher v. Lawson, Cas. temp. Hard. 19i ; ante, § 457. 8 Bastard v. Bastard, 2 Shower, 81 ; Lovett v. Hobbs, 2 Shower, 129; Coggs V. Bernard, 2 Ld. Raym. 909, 918; Allen v. Sewall, 2 Wend. 827; ante, § 374 to 377. [If by custom consignors of grain in bags are entitled to have their bags returned free, the carrying of such empty bags is not gratuitous, and the carrier is liable for their loss. Pierce v. Milwaukee & St. Paul Railroad Co., 23 Wis. 387.] * Weyland v. Elkins, Holt, N. P. 227; s. c. 1 Stark 272; Fairchild v. Slocum, 19 Wend. 329 ; [s. c. 7 Hill, 292 ;] Weed v. Sarat. & Schenec. Railroad Co., 19 Wend. 534; [Noyes v. Rutland & Burlington Railroad Co., 27 Vt. 110.] But see post, § 538. CH. VI.] COMMON CARRIERS. 481 ners in a coach-office, who are owners or partners in different coaches employed at the same office on the common business.^ Although they have not a common interest in each coach, yet all of them will be held responsible as partners upon any contract made by the keeper of the office for the carriage of any package, sent by either of the coaches in which the keeper is a partner, and of course for the loss thereof.^ ' Helsby «. Mears, 5 Bam. & Cressw. 506; Bostwick v. Champion, 11 Wend. 571. 2 Helsby v. Mears, 5 Barn. & Cressw. 504. [See Lacoste v. Sellick, 1 La. Ann. 336. The liability in cases of connecting lines continues throughout the entire route, for Baggage, whenever such liabiKty would exist for other goods. See ftlytton v. Midland Railway Co., 4 H. & N. 615; Gary v. Cleveland & Toledo Railroad, 29 Barb. 35; Hart v. Rensselaer, &c. Railroad, 4 Seld. 37. Thus, where three separate rail- road companies, owning distinct portions of a continuous railroad between two termini, run their carriages over the whole road, employing the same agents to sell passage tickets, and receive luggage to be carried over the entire road, an action may be maintained against one of them for the loss of luggage received at one terminus to be carried over the whole road. Hart V. Rensselaer & Saratoga Railroad Co., 4 Seld. 37.] {But when parts of a continuous line are owned by different carriers between whom no partnership connection is shown to exist, each carrier is liable, in the absence of a special contract, only for loss or injury occurring on his own portion of the line. Darling v. Boston & Worcester R. Co., 11 Allen, 295, and cases cited; Gass v. New York, &c. R. Co. , 99 Mass. 220 ; Wilson v. Harry, 32 Penn. St. 270; Montgomery, &c. R. Co. v. Moore, 51 Ala. 394; Brintnall v. Saratoga R. Co., 32 Vt. 665 ; Merrick v. Gordon, 20 N. Y. 93. The rule of agency may apply in certain cases so as to render a number of connecting carriers in a continuous line of transportation lia- ble as principals on the transportation contract made by one on behalf of all. Gill V. Manchester R. Co., L. R. 8 Q. B. 186; Hart v. Rensselaer, &e. R. Co., 4 Seld. 37. See Pratt v. Ogdensburg R. Co., 102 Mass. 557; Naugatack R. Co. v. Beardsley Scythe Co., 33 Conn. 218. On the other hand, a carrier may render himself liable by contract, express or implied, to carry beyond his own terminus. Railroad Co. v. Pratt, 22 Wall. 123; Baltimore Steamboat Co. v. Brown, 54 Penn. St. 77; Hill Manuf. Co. V. Boston & Lowell R. Co., 104 Mass. 122 ; Noyes v. Burlington R. Co., 27 Vt. 110. Here the carrier may be regarded as a principal who employs his own agents for transporting the goods to their final destination ; not as agent for the consignor in contracting vsrith the other carriers ; and hence, if goods are lost by one carrier in a line of several, the first to whom the owner delivered them, and who agreed to transport them through, will be liable to the owner. The owner need not sue the carrier 31 482 COMMON OAKEIBES. [CH. VI. § 507. Common carriers are not only responsible for their own acts, but also for the acts of their servants, and of other persons in their employment. ^ The same rule prevails in the Roman law.^ And any arrangement made between the carriers and their servants or agents, whereby the latter are exclusively to receive the compensation for the carriage of particular packages (such as money), will not exempt the carriers from responsibility for the loss of such packages, unless such arrangement is known to the owner thereof, so that he contracts exclusively with the servants and agents.^ § 607 a. Common carriers are also responsible for the wrongful acts of mere strangers, in regard to the property bailed to them for transportation, ncftwithstanding they are not personally, or by their servants, guilty of any negligence or omission of duty ; for the case is not within the exception •who lost the goods. Newell v. Smith, 49 Vt. 255; Chicago, &c. R. Co. v. Northern Line Packet Co., 70 111. 217; Bank of Kentucky v. Adams Ex- press Co., 93 U. S. Supr. 174 ; Crawford v. Southern R., 51 Miss. 222. The first carrier, however, may, on his own behalf, sue the carrier in de- fault, in such case, though only the delinquent one. Chicago, &c. R. Co. V. Northern Line Packet Co., 70 111. 217. And see Smith v. Foran, 43 Conn. 124. In general, a railroad company is not responsible for the car- riage of goods beyond its own line ; there must in such case be some con- tract, express or implied. Crawford 17. Southern R., 51 Miss. 222; Adams Express Co. D. Wilson, 81 111, 339; Sherman y. Hudson River R . , 64 N. Y. 254. See joosf, § 538 and notes, j 1 Cavenagh v. Such, 1 Price, 328; Williams v. Cranston, 2 Stark. 82; Middleton v. Fowler, 1 Salk. 282; 1 Bell, Comm. p. 455, 465, 471, 5th edit.; Plyde u. Trent & Mersey Navigation Co., 5 Term R. 397; Ellis V. Turner, 8 Term R. 531; Boyce v. Chapman, 2 Bing. New Cas. 222; ■post, § 550. See Story on Agency, § 452 to 461; {Minter d. Pacific R. Co., 41 Mo. 503.} "■ Pothier, Pand. Lib. 19, tit. 2, n. 31; Dig. Lib. 19, tit. 2, 1. 11. 8 Allen u. Sewall, 2 Wend. 327; s. c. 6 Wend. 335; 1 Bell, Comm. p. 464, 465, 5th edit. ; 1 Bell, Comm. § 397, 4th edit.; ante, § 500; [May- all V. Boston & Maine Railroad Co., 19 N. H. 122 ; Farmers' & Mech. Bank v. Champlain Trans. Co., 23 Vt. 186.] But see Middleton ». Fow- ler, 1 Salk. 282 ; Citizens' Bank v. Nantucket Steamboat Co. , 2 Story, 16 ; [King v. Lenox, 19 Johns. 235 ; Chouteau v. Steamboat St. Anthony, 16 Mo. 216. See Hosea v. McCrory, 12 Ala. 349. If the clerk of a steamboat carries letters or packages of money gratuitously , the proprie- tors of the boat do not thereby become liable as common carriers, but only for gross neglect. See Haynie «. Waring, 29 Ala. 263 ; Cincinnati Mail Line Co. v. Boal, 15 Ind. 315.] CH. YT.J COMMOK CAEKIEBS. 483 of the act of God, or of the public enemy ; and they have their remedy over against the wrong-doer for the damages they may sustain thereby.^ Thus, carriers are liable for a loss by an accidental fire or conflagration in a city, while the goods are in their custody .^ This is different from the rule of the Roman law, which in such a case exempted them from liability. " Ad eos, qui servandum aliquid conducunt, aut utendum ac- cipiunt, damnum injuria ab alio datum non pertinere, procul dubio est. Qu& enim curS. aut diligentiS. consequi possumus, ne aliquis damnum nobis injuria det ? " ^ § 508. Secondly. What are the duties and obligations of common carriers. One of the duties of a common carrier is to receive and carry all goods offered for transportation by any persons whatsoever upon receiving a suitable hire. This is the result of his public employment as a carrier ; and according to the custom of the realm, if he will not carry goods for a reasonable compensation, upon a tender of it, and a refusal of the goods, he will be liable to an action, unless there is a reasonable ground for the refusal.* And a tender is not necessary, if the party avers and proves his readiness and willingness to pay the money for the carriage.^ If a carrier refuses to take charge of goods because his coach is full ; or because the goods are of a nature which will at the time expose them to extraordinary danger, or to popular rage ; ^ or because the goods are not of a sort which he is 1 Ante, § 492; post, § 526, 528; Trent & Mersey Navigation Co. v. Wood, 3 Esp. 127; s. c. 4 Doug. 287; Abbott on SMpp. P. 3, cb. 3, § 9, 5th edit.; Id. oh. 4, § 1; Barclay v. CucuUay Gana, 3 Doug. 389. 2 Hyde v. Trent & Mersey Navig. Co., 5 Term R. 389; GatlifEe v. Bourne, 4 Bing. New Cas. 314, 332; 2 Kent, Comm. Lect. 40, p. 597, 598, 4th edit. ; post, § 511, 528. 8 Dig. Lib. 13, tit. 6, 1. 19 ; Pothier, Pand. Lib. 19, tit. 2, n. 30. ^ Bac. Abridg. Carriers, B. ; Boulston v. Sandiford, Skin. 279; Jack- son V. Rogers, 2 Shower, 327 ; Rex v. Kilderby, 1 Saund. 312 c, note (2) ; Riley v. Home, 5 Bing. 217, 224 ; Macklin v. Waterhouse, 5 Bing. 212 ; HoUister v. Nowlen, 19 Wend. 234, 239; Cole v. Goodwin, 19 Wend. 251 261, 271, 272. 5 Pickford v. Grand Junction Railway Co. , 9 Dowl. Practice Cases, 766 ; 12 M. & W. 766; {Galena Railroad v. Rae, 18 lU. 488.} ^ {A carrier cannot, in cases free from suspicion, refuse to carry pack- ages unless the owner will tell what they contain. Nitro-Glycerine Case, 15 484 COMMON CABRIBES. [OH. VI. accustomed to carry ; ' or because he has no convenient means of carrying such gpods with security ; or because they are brought at an unseasonable time : these will furnish reasonable grounds for his refusal ; and will, if true, be a sufficient legal defence to a suit for the non-carriage of the goods.^ A carrier is not obliged to receive goods, until he is ready to set out on his accustomed journey.'^ § 509. Another duty of carriers is, to take the utmost care of goods from the moment of receiving them ; to obey the Wall. 524; Crouch v. London & North Western R. Co. 14 C. B. 291. But he may inquire the value of a parcel, with a view to determining whether extra rates should be charged. Little v. Boston & Maine R., 66 Me. 239 ; post, § 567 ; Merchants' Despatch Trans. Co. v. BoUes, 80 111. 473.} 1 [Johnson v. Midland Railway Co., 4 Exch. 367.] 2 Jackson v. Rogers, 2 Shower, 327; Rex v. Kilderby, 1 Saund. 312, note; Lane v. Cotton, 1 Ld. Raym. 646; Batson v. Donovan, 4 Barn. & Aid. 32; Lovetti). Hobbs, 2 Shower, 128; Anon., 12 Mod. 8; Edwards v. Sherratt, 1 East, 604 ; [Porcher v. North Eastern Railroad Co., 14 Rich. 184.] 8 Lane v. Cotton, 1 Ld. Raym. 652; s. c. 1 Comyns, 105. [At common law a common carrier of goods is not under any obligation to treat all customers equally. He is bound to accept and carry for all, upon being paid a reasonable compensation. But the fact that he charges less for one than for another is only evidence to show that a particular charge is unreasonable; nothing more. There is nothing in the common law to hinder a carrier from carrying for favored individuals at an unreason- ably low rate, or even gratis. Fitchburg Railroad Co. v. Gage, 12 Gray, 393; Blackburn, J., in Great Western Railway Co. v. Sutton, Law Rep. 4H. L. C. 237; Byles, J.,inBaxendale «. Eastern Counties Railway Co., 4 C. B. N. 8. 78; Willes, J., in Branley v. South Eastern Railway Co., 12 C. B. N. s. 74. {And see Shipper v. Penn. R. Co., 47 Penn. St. 338; Lafaye v. Harris, 13 La. Ann. 553. j But this subject has been regulated by statute in England, 7 & 8 Vict, ch, 3, 8 & 9 Vict. ch. 20, {and 17 & 18 Vict. ch. 31, § 2; their object being to prohibit undue preference to persons or special kinds of traffic.} And many decisions have arisen upon their construction, which are cited in Great Western Railway Co. v. Sutton, Law Rep. 4 H. L. 226, in which very elaborate judgments are pronounced by several judges;] {Baxendale v. London, &c. R. Co., L. R. 1 Ex. 137 ; West v. London, &c. R, Co., L. R. 5 C. P. 622; In re Palmer, L. R. 6 C. P. 194; Evershed v. London, &c. R., 2 Q. B. D. 254. Statutes of a like purport are enacted in parts of this country. See Sargent v. Boston & Lowell R. Co., 115 Mass. 416 ; New England Express Co. v. Maine Central R. Co., 57 Me. 188; Sandford ti. Railroad, 24 Penn. St. 378. } CH. VI.] COMMON CARRIERS. 485 directions of the owner in respect to them;.i to carry them safely to the proper place of destination ; ^ and to make a right delivery of them there, according to the usage of trade, or the course of business.^ Or, to express the duty of carriers as implied by law in a more general form, it is safely and se- curely to carry the goods to their place of destination, and there to deliver them in a reasonable time,* and in a reasonable manner.^ It is not sufficient to carry the goods to the place of destination, and there place them on a wharf, but due notice should be given to the consignee of their arrival, and ^ Streeter v. Horlock, 1 Bing. 34; 8. c. 7 Moore, 283; [Dunseth v. Wade, 2 Scam. 285 ; Sager v. Portsmouth, &c. R R. Co., 31 Me. 238.] jPor the carrier's duty where the owner countermands or changes the original direction, see Scothorn v. South Staffordshire Railway Co., 18 Eng. Law & Eq. 553; 8 Ex. 341. } ^ Kemp V. Coughtry, 11 Johns. 107 ; Brind v. Dale, 8 Carr. & Payne, N. P. 207; 8. c. 2 Mood. & Rab. 80; De Mott v. Laraway, 14 Wend. 225. [He should carry by the usual and ordinary route. Tindal, C. J., in Davis v. Garrett, 6 Bing. 725 ; Powers v. Davenport, 7 Blackf. 497; Hales V. London & North Western Railway Co., 4 Best & Smith, 66.] 8 Selw. N. P. Carriers, p. 323; Streeter v. Horlock, 7 Moore, 283; s. c. 1 Bing. 34; Hyde v. Trent & Mersey Nav. Co., 5 Term R. 389; Forwards. Pittard, 1 Term R. 27; Ellis v. Turner, 8 Term R. 531; Davis V. Garrett, 6 Bing. 716 ; Brind v. Dale, 8 Carr. & Payne, 207; s. c. 2 Mood. & Rob. 80 ; De Mott v. Laraway, 14 Wend. 226. ■• { See post, § 545 a and notes. A carrier is not obliged to carry goods strictly in the order in which they were received. Peetu. Chicago, &c. R. Co., 20 Wis. 594.} <• Raphael v. Pickford, [5 Man. & Gr. 551 ; 6 Scott, N. R. 478. This delivery is to be not in any given time, but only within a reason- able time, looking at all the circumstances of the case. Taylor v. Great Northern Railway Co., Law Rep. 1 C. P. 385. See StoUard v. Great Western Railway Co., 2 Best & Smith, 419. And he is bound to deliver in a reasonable time, although he has made an express contract not to be responsible for the delivery at a certain specified time, or for any particular market. Mathews v. Dublin & Drogheda Railway Co., 17 Irish Com. Law Rep. 87. A contract to carry by a given train does not amount to a warranty that the train shall arrive at the usual time, although the company's servants knew the consignor desired the goods to arrive at that time for a market. Lord v. Midland Railway Co., Law Rep. 2 C. P. 339. A jury may find unreasonable delay, according to cir- cumstances. Donohoe v. London, &c. Railway Co., Msh Rep. 1 C. L. 304.] 486 COMMON CAEEIEES. [CH. VI. the goods placed, in a safe custody, so that he may upon such notice remove them in a reasonable time.^ They are also bound to provide suitable vehicles for the transportation, with all reasonable equipments, and servants to take care of them.^ And if any loss or damage happen from any defect in the vehicles, they will be responsible therefor.^ If the carriage is to be by water, they are bound to provide a ship, tight, stanch, and strong, and suitably equipped for the voyage, with proper officers and a proper crew ; * to proceed without deviation to the proper port ; to expose the goods to no improper hazards ; and to guard against all injuries incident to the property, by reasonable care in preserving the goods from the effects of storms, of bad air, of leakages, and of embezzlements.^ In short, every carrier is bound to use all the diligence which 1 Bourne v. Gatliff, 11 Clark & Fin. 45, 70; [Rome Railroad Co. v. Sullivan, 14 Ga. 277; Redmond v. Liverpool, &c. Steamship Co., J {46 N. Y. 578. As to the carrier's liability after arrival of the goods, see post, § 538, 543. The carrier may be bound in certain cases to deliver the goods over to the proper custody, to ensure their due transportation beyond his own terminus; not to store them. Rome R. Co. v. Cabot, 25 Ga. 228.} 2 Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611, 626 to 628; Abbott on Shipp. P. 3, ch. 3, § 2-5, 5th edit. ; Lyon v. Mells, 5 East, 428. ' Ibid. See Dig. Lib. 19, tit. 2, 1. 19, § 1; Pothier, Pand. Lib. tit. 2, n. 63 ; Bell v. Reed, 4 Binn. 127; Sharp v. Grey, 9 Bing. 457 ; Camden & Amboy Railroad Company M.Burke, 13 Wend. 611,627, 628; post, § 571 a, 592; [Great Western Railway Co. v. Hawkins, 18 Mich. 427. Bat a special contract might exonerate the carrier from such loss or damage. See Chippendale v. Lancashire & Yorkshire Railway Co., 7 Eng. Law & Eq. 395.] {Sedqu.} * Lyon u. Mells, 5 East, 428; Amies v. Stevens, 1 Str. 128; Belli). Reed, 4 Binn. 127; Abbott on Shipp. P. 3, ch. 3, § 2, 3, 5, 5th edit.; Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611, 627, 628; Sharp V. Grey, 9 Bing. 457; {The Northern Belle, 9 Wall. 526; Kopitofi v. Wil- son, 1 Q. B. D. 377. The vessel should be a sailing vessel or a steam vessel, strictly according to the mutual agreement. Merrick v. Webster, 3 Mich. 268; Eraser «. Telegraph Construction Co., L. R. 7 Q. B. 566. See Steel v. State Line Steamship Co., 1 App, D. (H. L. Sc.) 72.} ' Abbott on Shipp. P. 3, ch. 3, § 1 to 12, 5th edit. ; Lyon v. Mells, 5 East, 428; post, § 516. [See Notara v. Henderson, Law Rep. 5 Q. B. 346; Propeller Niagara v. Cordes, 21 How. 7; Rogers v. Murray, 3Bosw. 357.] CH. VI.J COMMON CAEBIERS. 487 prudent and cautious men, in the like business, usually employ for the safety and preservation of the property confided to their charge. If the carrier deviates from the voyage, he is responsible for all losses, even from inevitable casualty ; for under such circumstances the loss is traced back through all the intermediate causes to the first departure from duty.^ In these cases, however, the loss is supposed to be one vrhich might not have occurred, unless from the default, or miscon- duct, or deviation of the carrier ; for there is, or at least may be, an exception in cases where the same loss must certainly have occurred from the same cause, if there had been no such default, misconduct, or deviation.^ § 510. Thirdly. What are the risks for which common carriers are liable by the common law. These have been already stated to be the risks of all losses, except by the act of God, or of the king's enemies.^ But as it is a matter of some nicety to decide what cases fall within the exception, and as the point has undergone repeated adjudications, it is proposed here to collect the result of the principal authorities.* § 511. (1) What are, and what are not, losses by the act of God. The expression, act of God, denotes (as has been stated in another place) natural accidents, such as lightning, earthquakes, and tempests ; and not accidents arising from the negligence of man.^ Under this expression are said to be 1 Ante, § 413 a to 413 d ; post, § 515 ; Davis u. Garrett, 6 Bing. 716 ; Crosby v. Fitch, 12 Conn. 410; Hand v. Baynes, 4 Whart. 204; [Powers V. Davenport, 7 Blackf. 497; The Schooner Sarah, 2 Sprague, 31.] jIn case of necessity, much must be left to the discretion of the master of a ship as to deviation from the ordinary course. The Schooner Sarah, 2 Sprague, 31.} 2 See ante, § 413, 413 a to 413 d; post, §515; Crosby u. Fitch, 12 Conn. 410; Powers v. Mitchell, 3 Hill, 545. 8 Ante, § 489, 490; post, § 550; 1 Dane, Abr. ch. 17, art. 5; Mc Arthur V. Sears, 21 Wend. 190. * See Jones on Carriers, p. 15 to 20. [Whatever events may come within these terms, the law in regard to them does not apply until the bailment commences; and the falling of a river, before a carrier com- mences to transport the goods, will be no defence to his previous express contract to carry them in a reasonable time. Collier v. Swinney, 16 Mo. 484.J 6 Ante, § 25; Jones on Bailm. 103 to 107; Id. 122; Co. Litt. 89 (a); 488 COMMON CARRIERS. [CH. VI. comprehended all misfortunes and accidents arising from in- evitable necessity, which human prudence could not foresee or prevent.^ Lord Mansfield, in one case, said, that the act of God means something in opposition to the act of man ; for every thing is the act of God, that happens by his permission ; every thing by his knowledge.^ The freezing up of a river or canal, upon which the goods are to be transported, during their progress, is deemed an intervention of the vis major, or act of Coggs V. Bernard, 2 Ld. Raym. 909, 917; Lane v. Cotton, 12 Mod. 480; Forward v. Pittard, 1 Term R. 33 ; Abbott on Shipp. P. 3, ch. 4, § 1, 5th edit. ; Park on Insur. ch. 3 ; Phillips on Insur. ch. 13, § 7 ; [Parker v. Flagg, 26 Me. 181.] |In Nugent v. Smith, 1 C. P. D. 19, 34, it is said by Brett, J. : " Many definitions of this phrase (' act of God ') have been attempted. Many cases have decided what occurrences cannot in law be considered to come within it." " The best form of the definition seems to us to be, that the damage or loss in question must have been caused directly and exclusively by such a direct and violent and sudden and irresistible act of nature as the defendant could not by any amount of ability foresee would happen, or if he could foresee that it would happen could not by any amount of care and skill resist, so as to prevent its effect." But in s. c. on appeal, 1 C. P. D. 423, 438, Cookburn, J., dis- approves this definition. See ante, § 489.} ' Williams v. Grant, 1 Conn. 487. [Accordingly, an exception in a bill of lading by a common carrier by land, of " unavoidable dangers and accidents of the road," has been held to be no restriction of his general liability. Walpole v. Bridges, 5 Blackf. 222. And see Morrison v. Davis, 20 Penn. St. 171. In New York it is held that a carrier is liable for an injury to goods caused by inevitable accident, such as an extraordinary flood, if by his culpable negligence or unexcused and unreasonable delay in the trans- portation he unnecessarily exposes the goods to peril. Read u. Spauld- ing, 5 Bosw. 395; {30 N. Y. 630; Michaels u. New York R. Co., 30 N. Y. 564.) But see Denny v. N. Y. Railroad Co., 13 Gray, 481; Morrison v. Davis, 20 Penn. St. 171. J {Railroad Co. v. Reeves, 10 Wall. 176, holds the carrier exempt from liability on showing that the damage resulted from the immediate act of God, unless it can be proved that his negligence contributed to the loss. See Nugent v. Smith, 1 C. P. D. 19, 423. For the carrier's own negligence substantially causing the loss he is responsible. Thus he should use reasonable precautions against rain, wind, fii'e, and cold. Wolf v. Am. Express Co., 43 Mo. 422; Klau- ber V. Am. Express Co., 21 Wis. 21. See Swetland v. Boston & Albany R. Co,, 102 Mass. 276.} 2 Forward v. Pittard, 1 Term R. 33. CH. VI.J COMMON CAEEIERS. 489 Providence, which will excuse the delay ,^ and even the loss of the goods, if occasioned thereby ; unless, indeed, the carrier omits to exercise in all other respects due diligence, or to use due precautions to overcome or to avoid the obstruction.^ But a loss by fire, not arising from the act of God, as, for example, a loss arising from an accidental fire or conflagration in a city,^ without any default whatsoever on the part of the carrier, will furnish no excuse for the carrier, for it does not fall within the exception.* § 512. Many questions arising under this head have been discussed in cases of carriers by sea, where there has been a bill of lading containing the common exception of the " perils of the sea." ^ What is the precise import of this phrase is not, 1 [Worth V. Edmonds, 52 Barb. 40. So is a snow-storm. Ballentine V. North Missouri Railroad, 40 Mo. 491.] 2 Bowman v. Teall, 23 Wend. 306; Parsons v. Hardy, 14 Wend. 215; Harris u. Eand, 4 N. H. 259; [Lowe u. Moss, 12 111. 477;] post, § 545 a. [See West v. Steamboat Berlin, 3 Iowa, 532. Striking on an miknown snag {or rockj in the usual channel of a river has sometimes been thought an ' ' act of God, " and to excuse the carrier. Smyrl v. Niolon , 2 Bailey, 421. And see Williams v. Grant, 1 Conn. 487; Faulkner v. Wright, Rice (S. C), 107; Collier v. Valentine, 11 Mo. 299. Although this doctrine has not always been received with satisfaction. Friend v. Woods, 6 Gratt. 189, [the case of a sand-bar recently formed. See Dan- iel, J., in Friend v. Woods, ibid.} And running upon the mast of a sunken vessel has been held not an act of God. Merritt v. Earle, 29 N. Y. 115. And see Redpath v. Vaughan, 52 Barb. 498;] {New Brunswick Steamboat Co. v. Tiers, 4 Zab. 697. } ' [Or from the explosion of a steam boiler. McCall ». Brock, 5 Strobh. 119; Bulkley v. Naumkeag, &c. Co., 24 How. 386. See Caldwell u. N. J. Steamboat Co., 56 Barb. 426.] < Hyde v. Trent & Mersey Nav. Co., 5 Term R. 389 ; Gatliffe v. Bourne, 4 Bing. New Cas. 314, 322; [Parker v. Flagg, 26 Me. 181;] ante, § 507 a ; post, § 528 ; [Morewood v. Pollok, 1 El. & Bl. 743; 18 Eng. Law & Eq. 341; Graff v. Bloomer, 9 Penn. St. 114; Gilmore v. Carman, 1 Sm. & Marsh. 279; Singleton u. Hilliard, 1 Strobh. 203; Hale V. N. J. Steam Nav. Co., 15 Conn. 539; Miller v. Steam Navigation Co., 6 Seld. 431; Cox i>. Peterson, 30 Ala. 608; Moore v. Michigan Railroad, 3 Mich. 23.] {And see Bank of Kentucky v. Adams Express Co., 93 U. S. Supr. 291.} 6 See Abbott on Shipp. P. 3, ch. 4, § 1 to 6, 5th edit. ; Smith ». Shepherd, cited p. 383 (5th Am. ed.), note (f) ; [Redpath v. Vaughan, 490 COMMON OAREIBBS. [CH. VI. perhaps, very exactly settled.^ In a strict sense, the words " perils of the sea " denote the natural accidents peculiar to that element ; but, in more than one instance, these words have been held to extend to events not attributable to natural causes.^ Thus, they have been held to include captures by pirates on the high seas,^ and losses by collision of two ships, where no blame is imputable to either, or, at all events, where none is imputable to the injured ship.* It has been said, that 52 Barb. 489 ; Stephens Transp. Co. v. Tuckerman, 4 Vroom, 543 ;] {The Maggie Hammond, 9 Wall. 436.} 1 See Pothier, Traite de Depot, n. 32. 2 Abbott on Shipp. P. 3, ch. 4, § 1 to 6, 5th edit. ; Park, Insur. ch. 3 ; Marsh. Insur. B. 1, ch. 7, p. 214; Id. B. 1, ch. 12, § 1, p. 487 ; Id. B. 2, ch. 5, p. 753 ; 1 Bell, Comm. p. 559, 579, 5th edit. ; 1 Bell, Comm. § 501, 517, 518, 4th edit. Sir William Jones has remarked, that "the word ' peril,' like ' periculum,' from which it is derived, is in itself ambig- uous, and sometimes denotes the risk of inevitable mischance, and sometimes the danger arising from the want of due circumspection." Jones on Bailm. 98; Dig. Lib. 47, tit. 5, 1. 1, §4. Lord Mansfield, in Forward v. Pittard, 1 Term R. 33, said : " There is a nicety of distinc- tion between the act of God, and inevitable necessity." {See ante, § 489-1 ^ Abbott on Shipp. P. 3, ch. 4, § 1, 2, 5th edit. ; 1 Bell, Comm. p. 559, 5th edit. ; 1 Bell, Comm. § 501, 4th edit. The Roman law held a loss by pirates to be by inevitable casualty. Si quid naufragio, aut per vim pira- tarum perierit, non esse iniquum, exceptionem ei dari. Dig. Lib. 4, tit. 9, 1. 3, § 1; 3 Kent, Comm. Lect. 47, p. 216, 217, 4th edit.; Id. 299, 300; Pickering v. Barclay, 2 Roll. Abridg. 248, cited Abbott on Shipp. p. 385, 5th Am. edit.; Barton v. WoUiford, Comberb. 56; ante, § 37 and note; Pothier, Traite de Depot, n. 32; 1 Phillips on Insur. ch. 13, § 7, p. 249; post, § 526. [But loss by theft or robbery is a " peril of the seas ' ' only when it is a piracy on the high seas ; but not when it is com- mitted by persons on board the vessel, or persons coming to her, when she is not on the high seas. Neither is embezzlement a peril of the seas. King V. Shepherd, 3 Story, 349.] {See further, De Rothschild v. Royal Mail Steam Packet Co., 7 Ex. 734. The exemption of " thieves " in a bill of lading is generally interpreted to apply only to thieves external to the ves- sel. Taylor v. Liverpool Steam Co., L. R. 9 Q. B. 546 (1874.) See ibid, for construction of such phrases as " damage to goods which can be insured against."} ^ Ibid. ; Smith v. Scott, 4 Taunt. 126 ; [Whitesides v. Thurlkill, 12 Sm. & Marsh. 599. But see Plaisted v. Boston & Kennebec Steam Navi- gation Co., 27 Me. 132. In this case, although there was no exception of the " perils of the sea," the owners of a steamboat, being common car- CH. VI.] COMMON CAEEIEES. 491 by " perils of the sea " are properly meant no other than in- evitable perils or accidents upon that element ; and that by such perils or accidents common carriers are, primd fade, excused, whether there is a bill of lading containing an ex- press exception of " perils of the sea," or not.i If the law be so, then the decisions upon the exact meaning of these words become important in a practical view, in all cases of maritime and water carriage.^ § 512 a. The phrase, " perils of the sea," whether under- stood in its most limited sense, as importing a loss by natural accidents peculiar to that element, or whether understood in its more extended sense, as including inevitable accidents riers, were held liable for shipment on hoard of her, lost by collision with another vessel at sea, and without fault imputable to either. And see Mershon v. Hobensack, 2 Zab. 372. The contrary seems to have been held in Hays v. Kennedy, 41 Penn. St. 378 ; and in 3 Grant, 351, where, however, there was the exception of " unavoidable dangers of the river navigation," and the collision was through the negligence of the other party. But even this decision called out an able dissenting opinion from Thompson, J., to which the reader is referred.] 3 Kent, Comm. Lect. 47, p. 230, 231, 4th edit. ; Abbott on Shipp. P. 3, ch. 4, § 5, 5th edit.; Id. P. 3, ch. 8, § 12, 5th edit. ; Buller v. Fisher, 3 Esp. 67 ; 1 Bell, Comm. p. 579-581, 5th edit. ; 1 Bell, Comm. § 518 to 520, 4th edit.; post, § 514, 518. 1 Per Church, J., in Crosby v. Fitch, 12 Conn. 419; Williams v. Grant, 1 Conn. 487. But see Marsh. Insur., B. 1, ch. 7, p. 214. ^ [Plaisted v. Boston & Kennebec Steam Navigation Co., 27 Me. 132. Bills of lading sometimes contain exceptions of the " dangers of the seas, roads, and rivers." This clause, "dangers of the roads," is in such cases understood to mean dangers of roads where ships lie at anchor, or such dangers on land as more immediately occur on roads, such as the overturning of carriages and the like, but not a loss by thieves while the goods are in transit. De Rothschild v. Royal Mail Steam Packet Co., 7 Exch. 734; 14 Eng. Law & Eq. 331, and Bennett's note. But perhaps the phrase "dangers and accidents of the seas and navigation" has a broader meaning than "the perils of the seas." Thus, where a vessel laden with goods arrived at London, and was taken into the commercial dock to discharge, and for this purpose was fastened by tackle, on one side, to a loaded lighter outside of her, and on the other to a barge lying between her and the wharf ; and the tackle broke where she was fastened, and, in consequence, she canted over, and water got in through the port- holes, and damaged the goods: this was held within the exception of the dangers of the seas and navigation. Laurie v. Douglas, 15 Mees. & Wels. 746.] 492 COMMON CAEEIBES. [CH. VI. occurring upon that element, must still, in either sense, be understood to include such losses only to the goods on board as are of an extraordinary nature, or arise from some irresisti- ble force, or from inevitable accident, or from some over- whelming power, which cannot be guarded against by the ordinary exertions of human skill and prudence.^ Hence it is, that, if the loss occurs by a peril of the sea which might have been avoided by the exercise of any reasonable skill or diligence at the time when it occurred, it is not deemed to be, in the sense of the phrase, such a loss by the perils of the sea as will exempt the carrier from liability, but rather a loss by the gross negligence of the party .^ So a loss by ordinary wear and tear in the course of the voyage is not a loss by the perils of the sea.^ So a loss directly and immediately occa- sioned by the ignorance or inattention of the master and mar- iners is not deemed a loss by the perils of the sea.* But the 1 Abbott on SMpp. P. 3, ch. 4, § 1 to 8, 5th edit.; 3 Kent, Comm. Lect. 48, p. 299, 300, 3d edit. ; Id. Lect 47, p. 216, 217 ; The Schr. Ree- side, 2 Sumner, 567; Colt u. McMechen, 6 Johns. 160; Potter u. Suffolk Insurance Company, 2 Sumner, 197; HoUingworth v. Brodrick, 7 Adolph. & El. 40 ; Waters v. Merchants' Louisville Insurance Company, 11 Pet. 213; post, § 516 to 519. 2 Ibid.; 1 Bell, Comm. p. 559, 560, 5th edit.; 1 BeU, Comm. § 501, 4th edit. ; ante, § 414, 492 ; 3 Kent, Comm. Lect. 47, p. 216, 217, 3d edit. ; Id. 230, 231; Id. Lect. 48, p. 300, 301, 3d edit.; Rooeus de Navibus, 55, 56 ; Abbott on Shipp. P. 3, ch. 4, § 1 to 6, 5th edit. ; Crosby v. Fitch, 12 Conn. 410, 419 to 422 ; Fairohild v. Slocum, 19 Wend. 329 ; [Tucker- man V. Stephens Transp. Co., 3 Vroom, 320. And see Stephens Transp. Co. V. Tuckerman, 4 Vroom, 543;] | Converse v. Brainerd, 27 Conn. 607. A corresponding rule applies to perils excepted by bill of lading where the transportation is by lake or river. Transportation Co. v. Downer, 11 Wall. 129 ; Whitesides v. Russell, 8 Watts & Serg. 44. Culpable negli- gence in stowing the goods , whereby they are exposed to injury by the excepted peril, renders the carrier Hable. The Star of Hope, 17 Wall. 651. The underlying principle of these cases is a broad one. See Grill V. General Iron Screw Co., Law Rep. 1 C. P. 600; s. c. L. R. 3 C. P. 476.) 8 Ibid. ; Hazard v. New England Marine Insurance Co., 1 Sumner, 218; s. c. 8 Pet. 557; 3 Kent, Comm. Lect. 48, p. 299, 300, 4th edit. ; ante, § 492 a. ' 3 Kent, Comm. Lect. 48, p. 299, 300, 3d edit. ; 1 Bell, Comm. p. 559, 560, 5th edit. ; 1 Bell, Comm. § 501, 4th edit. ; Trent & Mersey Naviga- tion Co. !;. Wood, 3 Esp. 127 ; s. c. 4 Doug. 287. CH. VI.] COMMON CAEKIBES. 493 effect of storms and tempests in straining the ship, or causing her to spring a leak, or to ship a sea, whereby damage or injury- is done to the goods on board, are losses properly attributable to the perils of the sea, although in a mitigated sense they may be said to be ordinary accidents.^ § 513. It seems that a loss occasioned by a leakage, which is caused by rats gnawing a hole in the bottom of the vessel, is not in the English law deemed a loss by a peril of the sea, or by inevitable casualty.^ But if the master has used all reasonable precautions to prevent such a loss, as by having a cat on board, it is, by the general consent of the writers upon the foreign maritime law, held to be a loss by a peril of the sea, or inevitable accident.^ In conformity to this rule, 1 1 Bell, Comm. p. 560, 5th edit.; 1 Bell, Comm. § 501, 4tli edit; Abbott on Shipp. P. 3, oh. 3, § 9, 5th edit. [But it may be the carrier's duty, in some cases, to dry the goods which have been wet, if this can be done by any ordinary and reasonable exertions. Chouteaux v. Leech, 18 Penn. St. 224; Bird v. Cromwell, 1 Mo. 58; Notara v. Hender- son, Law Rep. 5 Q. B. 346; s. c. L. R. 7 Q. B. 225. But see Steam- boat Lynx V. King, 12 Mo. 272.] {What the law here exacts of the carrier is to lessen the injurious effects of the excepted peril by the exercise of prudence and good judgment. So, too, if his ship be dis- abled, it may sometimes be his duty to transship the goods to their destination. The Maggie Hammond, 9 Wall. 435. See Cox v. Foscue, 33 Ala. 713; Lemont v. Lord, 52 Me. 365. And where the goods are only partially destroyed by the excepted peril, the carrier should send the residue, if worth transporting, to their destination. Houston R. Co. v. Ham, 44 Texas, 628. } 2 Dale u. Hall, 1 Wils. 281; Hunter v. Potts, 4 Camp. 203. See Marsh. Insur. B. 1, ch. 7, § 4, p. 242. Sir Wm. Jones (Bailm. 105) says, that the true reason of this decision is not mentioned by the reporter, namely, that it was in fact at least ordinary negligence to let a rat do such mischief in the vessel, and the Rpman law had so decided in an analogous case. Dig. Lib. 19, tit. 2, 1. 13, § 6 ; ante, § 408, 432. But it is impossible to explain the case on this ground, since the defendant posi- tively proved that he had taken all possible care, and was guilty of no negligence ; and on this ground the jury gave a verdict in his favor. 2 Abbott on Shipp. P. 3, ch. 3, § 9, 5th edit. ; Roccus de Navibus, n- 58; Id. de Assecur. n. 49; 1 Emerig. Assecur. 377, 378; Marsh. Insur. B. 1, ch. 7, § 4, p. 592. But see 3 Kent, Comm. Lect. 48, p. 300, 301, and note (a), 4th edit. See a»««, § 408, 432. [The contrary was expressly held in a recent English case before the Court of Exchequer. Lave- 494 COMMON CAEBIEES. [OH. VI. the destruction of goods at sea by rats, has, in Pennsylvania, been held a loss by a peril of the sea, where there has been no default of the carrier.^ On the other hand, the destruction of a ship's bottom by worms, in the course of a voyage, has been deemed not to be a peril of the sea, both in Englaad and America, upon the ground (it seems) that it is a loss by ordi- nary wear and decay .^ § 514. We have already had occasion to notice, that losses by collision of ships at sea, without any negligence on the part of the injured or lost vessel, are deemed losses by a peril of the sea,^ or by inevitable casualty.^ § 615. The general rule in cases of insurance is, that the immediate and not the remote cause of the loss is to be con- ,sidered : " Causa proxima, non remota spectatur." ® This rule roni V. Drury, 8 Exch. 166. See criticism on the above text, by Pol- lock, C. B., ib. And the Exchequer Chamber held in a still later case that a loss by rats is not a loss within the exception, " all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever," contained in a bill of lading; and the carrier was held liable, although he had taken all possible precaution to prevent it. Kay v. Wheeler, Law Rep. 2 C. P. 302.] 1 Garrigues v. Coxe, 1 Binn. 592. But see Aymer v. Astor, 6 Cow. 266; and 3 Kent, Comm. Leot. 48, p. 300, 301, 4th edit. 2 Park, Insur. ch. 3 ; 3 Kent, Comm. Lect. 47, p. 230, 231, 4th edit.; Id. Lect, 48, p. 300, 4th edit. ; 1 PhilUps on Insur. ch. 13, § 7, p. 249, 250; Rohlw. Parr, 1 Esp. 444; Martin v. Salem Ins. Co., 2 Mass. 429; Hazard v. New England Ins. Co., 1 Sumner, 218; s. o. 8 Peters, 557. But see De Payster v. Columbian Ins. Co., 2 Cain. 85. {There is an im- plied warranty of seaworthiness in every transporting vessel. Kopitofi v. Wilson, 1 Q. B. D. 377; The Northern Belle, 9 Wall. 526; ante, § 509.} ^ [But see Plaisted v. Boston & Kennebec Steam Nav. Co., 27 Me. 132;] {ante, p. 490, note (4).} ^ Buller V. Fisher, 3 Esp. 67; Abbott on Shipp. P. 3, ch. 4, § 2, 5, 5th edit. ; Smith v. Scott, 4 Taunt. 126; ante, § 512; Mc Arthur v. Sears, 21 Wend. 190. ^ See Busk u. Royal Exchange Assurance Co., 2 Barn. & Aid. 73; Walker v. Maitland, 5 Barn. & Aid. 174; Patapsco Ins. Co. v. Coulter, 3 Pet. 222; Columbian Insurance Co. v. Lawrence, 10 Pet. 507; Waters V. Merchants' Louisville Insurance Co., 11 Pet. 213; Delano v. Bedford Insurance Co., 10 Mass. 351; jhaw u. Robberds, 6 Adolph. & El. 81; s. c. 1 Nev. & P. 279, 287; Bishop v. Pentland. 7 Barn. & Cressw. 219; post, § 517; Abbott on Shipp. P. 3, ch. 4, § 1, 5th edit. ; post, § 520 to 524. CH. VI.J COMMON CARRIERS. 495 may in many cases be applicable to carriers.^ Thus, for ex- ample, if a carrier-ship should be struck with lightning, and thereby her cargo should be totally destroyed, although there may have been some negligence or misconduct of the master and crew in the voyage, as if a part of it is improperly stowed on deck, there it seems that the whole loss will or may be attributed to the perils of the sea as causa jproxima, notwith- standing any such negligence or misconduct.^ So if a Car- rier-ship be not strictly seaworthy, yet if a loss of goods on board on freight is occasioned by a peril of the sea wholly unconnected with the want of seaworthiness, as by being stranded in a hurricane or captured by an enemy, the loss will not or may not be borne by the carrier, but will or may be deemed a loss by the perils of the sea, or by the capture, as causa proxima? 1 Abbott on Shipp. p. 383 (5th Am. ed.), and Smith v. Shepherd, there cited; post, § 517, 520, 526, 527. 2 See, on this point, ante, § 413 a to 413 d, where this subject is con- sidered at large. Post, § 518 to 519. The weight of authority, though the point is open to controversy, seems to be decidedly against the car- rier's liability. See Hastings v. Pepper, 11 Pick. 41; The Paragon, Ware, 322, 324; Davis v. Garrett, 6 Bing. 716; Hollingworth v. Brod- rick, 7 Adolph. & El. 40; [Parker v. Flagg, 26 Me. 181. See, for other illustrations of the above rule of causa proxima, Mor- rison V. Davis, 20 Penn. St. 171; Lipford v. Charlotte, &c. R. Co., 7 Rich. 409 ; Denny v. N. Y. Central R. Co., 13 Gray, 481 ;] {Railroad Co. V. Reeves, 10 Wall. 176; Nugent v. Smith, 1 C. P. D. 19, 423; Blower v. Great Western R. Co., L. R. 7 C. P. 655; Sneesby v. Lanca- shire Railway, L. R. 9 Q. B. 263 ; 1 Q. B. D. 42.} 8 Ante, § 413 a to 413 d; post, § 524; Hastings v. Pepper, 11 Pick. 41; [Collier V. Valentine, 11 Mo. 299 ; Hart v. Allen, 2 Watts, 114.] In Bell V. Reed, 4 Binn. 127, Mr. Justice Brackenridge seems to have held at the trial, that the carrier was liable for a loss by unseaworthiness, not occa- sioned by the unseaworthiness. But as the jury found a verdict for the carrier, that point was not material, upon the motion for a new trial. Mr. Chief Justice Tilghman, in deliveringTihe opinion against a new trial, said: " The man who undertakes to transport goods by water for hire, is bound to provide a vessel sufficient in all respects for the voyage, well manned, and furnished with sails, anchors, and all necessary furniture. If a loss happens through defect in any of these respects, the carrier must make it good." It is true, that the leafned judge remarked: " The law was laid down fairly, and the fact left to the jury." But as no complaint was or could be made by the only party (the defendant) , who had a right 496 COMMON CAEEIERS. [CH. VI. § 516. But it is not every loss proceeding directly from natural causes which is to be deemed as happening by a peril of the sea; and questions of this sort often turn upon very nice distinctions.^ Thus, if a carrier-ship should perish in consequence of striking against a rock or shallow, the circum- stances under which that event has taken place must be ascertained, in order to decide whether it happened by a peril of the sea, or by the fault of the owner, carrier, or master.^ If the situation of a rock or shallow is generally known, and the ship is not forced upon it by adverse winds or tempests, the loss is to be imputed to the fault of the master. And it matters not, in such a case, whether the loss arises from his own rashness in not taking a pUot, or from his own ignorance or unskilf ulness.^ On the other hand, if a ship is forced upon such a rock or shallow by adverse winds or tempests ; or if the shallow is occasioned by a sudden and recent collection of sand in a place where ships before could sail with safety; or if the rock or shallow is not generally known : in all these cases the loss is to be attributed to the act of God, and it is deemed a peril of the sea.* to complain of the ruling at the trial against him, he having a verdict in his favor, it may be doubted if the court meant at all to affirm the doc- trine beyond the point by the Chief Justice. See Hastings v. Pepper, 11 Pick. 41; The Paragon, Ware, 322, 324; Hollingworth v. Brodrick, 7 Adolph. & El. 40; Swan v. Union Ins. Co. of Maryland, 3 Wheat. 168. In this last case, the Supreme Court of the United States held, that the loss must be occasioned by one of the perils in the policy, to entitle the plain- tiff to recover, and that, if the actual loss be by the barratry of the owner, ■which is excepted from the policy, it is of no consequence that the master had, in a prior part of the voyage, been guilty of barratrous conduct, which did not produce any loss. See Powers v. Mitchell, 3 Hill, 545, that a subsequent total loss of goods by accident will not excuse the bailee for hire from responsibility for damage or injury sustained by his prior negligence. Ante, § 450 a. 1 Ante, § 492 a, 512 a; Abbott on Shipp. P. 3, ch. 4, § 6, 5th edit.; 1 Phillips on Insur. ch. 13, § 7, p. 249, &c. ^ Ibid. 8 Abbott on Shipp. P. 3, ch. 4, § 6, 5th edit ; Id. P. 3, ch. 3, § 9 ; The William, 6 Rob. Adm. 316; 3 Kent, Comm. Lect. 47, p. 217, 4th edit.; 1 Bell, Comm. p. 559, 5th edit. ; 1 Bell, Comm. § 501, 4th edit. ; Roccus de Navibus, n. 55, 56. * Abbott on Shipp. P. 3, ch. 4, § 6, 5th edit. ; Elliott u. Rossell, 10 Johns. 1 ; Kemp v. Coughtry, 11 Johns. 107 ; post, § 547. CH. VI.] COMMON CAEEIEES. 497 § 517. A remarkable case illustrative of this doctrine oc- curred. An action was brought against the master of a car- rier-vessel, navigating the river Ouse and Humber from Selby to Hull. At the trial, it appeared that at the entrance of the harbor of Hull there was a bank, on which vessels used to lie with safety, but of which a part had been swept away by a great flood some short time before the misfortune in question ; so that it had become perfectly steep, instead of shelving toward the river. A few days after this flood a vessel sunk by getting on the bank, and her mast, which was carried awaj', was suffered to float in the river, tied to some part of the ves- sel. The defendant's vessel, upon sailing into the harbor, struck against the mast, which, not giving way, forced the defendant's vessel toward the bank, where she struck, and would have remained safe, had the bank been in its former situation. But upon the tide's ebbing, her stern sunk into the water, and the goods were spoiled. Evidence was offered to show that there was no negligence ; but it was rejected. The judge who tried the cause ruled, that the act of God, which would excuse the carrier, must be immediate, and not remote ; and a verdict having been found for the defendant, on a motion for a new trial, the doctrine of the judge at the trial was confirmed.^ But if the mast, which was the imme- diate cause of the loss, had not been in the way ; but the bank had been suddenly removed by an earthquake, or the removal of the bank had been unknown, and the vessel had gone on the bank in the usual manner, the decision would have been otherwise.^ § 518. In the case above stated, it does not appear that a collision with the mast might not have been guarded against by extraordinary precautions, as it must have been visible on the approach of the vessel ; and the masters and owners are certainly responsible for every injury which might have been prevented by human foresight and care. Thus, where, in a voyage from Hull to Gainsborough, a carrier-vessel was sunk 1 Smith V. Shepherd, cited Abbott on Shipp. p. 383, note (f ), 5th Am. edit. ; Id. ch. 3, § 9, 5th edit. ; Hahnu. Corbett, 2 Bing. 205; [ante, § 511, notes; Merritt v. Earle, 29 N. Y. 115. } 2 Abbott on Shipp. P. 3, ch. 4, § 6, 5th edit. 82 498 COSIMON CAEEIEES. [CH. VI. by striking against the anchor of another vessel, which anchor lay under water, and without a buoy, whereby some goods were injured, the carriers were held, responsible for the loss.' The ground of this decision seems to have been, that both parties were guilty of negligence ; the one in leaving his an- chor without a buoy ; the other in not avoiding it, as, when he saw the vessel in the river, he must have known that there was an anchor near at hand.^ If, however, the anchor had been left by the vessel, and she had departed, and there were no means of distinguishing its situation, the result (it should seem) would have been otherwise. § 519. In a case against a carrier for an injury done to a cargo by steam, it appeared that the steam escaped through a crack in the steam-boiler, occasioned by the frost ; and the Court held, that, at the season of the year in which such in- juries by frost are likely to occur, it is gross negligence in the carrier to fill up his boiler with water over night,, without keeping up a suitable fire to prevent such accidents.^ § 519 a. A fortiori, it is not a loss by the perils of the sea, if the loss is caused by the fraud of the carrier, although otherwise it might be deemed a loss by a peril of the sea. Thus, if a master of a carrier-ship should fraudulently bore holes in the bottom of a ship in order to sink her ; or he should fraudulently run her on shore, or fraudulently cut her from her mooring, and she should drift upon rocks ; or he should fraudulently desert her at sea, whereby she should founder: in all these cases, if the cargo or freight is lost or damaged, the loss or damage must be borne by the owner of the ship ; for it is in no just sense a loss by the perils of the sea.* The same result would arise if the loss had been by the perils of the sea, after a voluntary deviation by the carrier, if it might not have occurred but for such deviation.^ 1 Trent & Mersey Navigation Co. t>. Wood, 3 Esp. 127; 3. c. 4 Doug. 287; Abbott on Shipp. P. 3, ch. 3, § 9, 5th edit. 2 Abbott on Shipp. P. 3, ch. 4, § 5, 5th edit. 8 Siordet v. Hall, 4 Bing. 607 ; Coggs v. Bernard, 2 Ld. Raym. 909, 911. < See Waters ». Merchants' Louisville Insurance Co., 11 Peters, 213. 6 Handy. Baynes, 4 Whart. 204; ante, § 413 a to 413 d; Crosby y. Fitch, 12 Conn. 410, 419, 420, 421. CH. VI.] COMMON CAKEIEBS. 499 § 520. If a carrier-ship is properly moored in a harbor hav- ing a hard, uneven bottom, and on the reflux of the tide, in consequence of a considerable swell, she strikes hard on the bottom, and her knees are injured, and thereby her cargo is damaged : such a loss is to be deemed a loss by the perils of the sea.i § 521. If a carrier-ship is taken in tow by a ship of war, and in order to keep up she is obliged to use an extraordinary press of sail in a gale of wind, and thereby her cargo is injured, it is a loss by the perils of the sea.^ § 522. If, in moving a ship from one part of a harbor to another, it becomes necessary to send some of the crew on shore to make fast a new line, and to cast off a rope, by which she is made fast, and these men are impressed immediately, before casting off the rope, and thereby the ship goes on shore, it is a loss by the perils of the sea.-^ § 523. And where a carrier-vessel is beating up a river against a light and variable wind, if, while changing her tack, the wind suddenly fails or changes, and she goes ashore, and her cargo is injured, this also is to be deemed a loss by the act of Grod, and will excuse the carrier.* The same rule will apply to the case where a carrier-vessel is obstructed or frozen up in the ice, in the course of her navigation ; and an injury is occasioned thereby." § 524. If the carrier-vessel is reasonably sufficient for the voyage, and is lost by a peril of the sea, the carrier will not be chargeable by its being shown that a stouter vessel would have outlived the storm. Nor if a hoy is sunk by being driven by a sudden gust against a pier, will the hoyman be made liable by its being shown that a stronger vessel would have sustained the injury without sinking.^ 1 Fletcher v. Inglis, 2 Barn. & Aid. 315; Kingsford v. Marshall, 8 Bing. 458; Potter v. Suffolk Insurance Co., 2 Sumner, 197. [See also Corcoran v. Gurney, 1 El. & Bl. 456 ; 16 Eng. Law & Eq. 215, and Ben- nett's note ; Lake o. Columbus Ins. Co. , 13 Ohio, 48.] ^ Hagedorn v. Whitmore, 1 Stark. 157. ' Hodgson V. Malcolm, 2 Bos. & Pull. N. E. 336. * Colt V. McMechen, 6 Johns. 160. 6 Bowman v. Teall, 23 Wend. 306 ; ante, § 511; post, § 545 a. « Amies v. Stevens, 1 Str. 128 ; Abbott on Shipp. P. 3, ch. 4, § 7, 5th 600 COMMON CAKKIEES. [CH. VI. § 525. The case of a jettison at sea, to save the vessel from foundering, and to preserve the lives of the crew, is (as we shall presently see) a loss by the act of God, although it is accomplished by the immediate agency of man.^ But it would be otherwise, if the jettison was occasioned by the vessel's being overloaded ; as, if a ferryman shoiild overload his boat, and the passenger's goods should on that account be thrown overboard.^ § 526. (2) What are, and what are not, losses by the king's enemies. By enemies is to be understood public enemies, with whom the nation itself is at open war ; ^ and not merely robbers, thieves, and other private depredators, however much they may be deemed in a moral sense at war with society.* Losses, therefore, which are occasioned by robbery on the highway, or by the depredations and violence of mobs, rioters, and insurgents, and other felons, are not deemed losses by enemies, within the meaning of the exception.^ But losses by pirates on the high seas are deemed within it ; for they are universally treated as the enemies of all mankind, and are edit. [But see Christie v. Trott, 25 Eng. Law & Eq. 262;] {ante, § 513 and notes. } 1 Bird V. Astcock, 2 Bulst. 280 ; Jones on Bailm. 108; Smith v. Wright, 1 Caines, 43; Barber v. Brace, 3 Conn. 9 ; post, § 531, 575. 2 Coggsu. Bernard, 2 Ld. Raym. 909, 911; post, § 531, 575; {The Portsmouth, 9 Wall. 682.} ' [Confederate troops have been held public enemies within the mean- ing of the law. Philadelphia R. R. Co. v. Harper, 29 Md. 330 ; Lewis u. Ludwiok, 6 Coldw. 368. But see Express Co. v. Kountze, 8 Wall. 342. It includes enemies of the sovereign of the carrier, whether that sovereign be a " king " or not. Russell v. Niemann, 17 C. B. n. s. 162.] {See further, McCranie v. Wood, 24 La. Ann. 406. But when goods are threatened by a public enemy, the carrier should use due dili- gence to prevent their seizure. Holladay v. Kennard, 12 Wall. 254.} « {Great Western R. Co. «. Rimell, 6 C. B. n. s. 917.} 5 iVIorse t.. Slue, 1 Vent. 190, 238; s. c. Th. Raym. 220; Trent & Mersey Navigation Co. v. Wood, 3 Esp. 127; s. c. 4 Doug. 287; Barclay V. Heygena, cited 1 Term R. 33; s. c. undername of Barclays. Cucullay Gana, 3 Doug. 389 ; Marsh, on Insur. B. 1, ch. 7, § 5, p. 242, &c.; Jones on Bailm. 103 to 107; Id. 122; Coggs v. Bernard, 2 Ld. Raym. 909, 918; Lane v. Cotton, 12 Mod. 480; Woodleife v. Curteis, 1 Roll. Abridg. Action sur Case, C. pi. 4; [Porcher v. North Eastern R. Co., 14 Rich. 184 ;] {Gage V. Tirrell, 9 Allen, 299, 310.} CH. Vi.] COMMON CARRIERS. 501 subjected to punishment accordingly.^ And here the ques- tion may often become material, whether we are to look to the immediate or to the remote cause of the loss; for in some instances (as under the common American bills of lading), the perils of the seas are excepted, and not the acts of the Idng's enemies. Suppose a carrier-ship should be driven by a storm on an enemy's coast, and she should there be captured by the enemy, before she should be stranded : is this a loss by perils of the sea, or by capture ? It seems that it is a loss by capture ; for that is the proximate cause.'' But suppose that she should be first stranded on the coast by the gale, and in consequence thereof should be afterwards captured by the inhabitants ? In that case, it seems that it would be deemed a loss, not by capture, but by the perils of the sea, upon the same principle ; for the gale is the proximate cause of the stranding.^ § 527. The case of a loss by jettison, made by compulsion of an enemy to gratify his revenge, or from an apprehension (well or ill founded) of danger, would, it is presumed, be deemed an act of the enemy, although done by the immediate agency of the ship's crew or officers.* § 528. In all cases where the common carrier cannot make out a defence upon some one of the grounds already stated, ■which form exceptions to his liability, he must pay the loss, although there has been no negligence whatsoever on his part.^ Hence (as we have seen), he is liable for all thefts, robberies, and embezzlements by any of the crew, or by any other per- sons, although he may have exercised every possible vigilance to prevent the loss.^ In like manner, he is liable for a loss 1 Ante, § 25, 512. " Green v. Elmslie, Peake, 212; ante, § 515, and cases there cited. ' Hahn v. Corbett, 2 Bing. 205; ante, § 515. See also, on this point of proximate and remote cause, Waters v. Merchants' Louisville Insurance Co., 11 Peters, 213, and the cases there cited, and those cited ante, § 515, 517. * Ante, § 515, and cases there cited. 6 Ante, § 492, 507 a; McArthur v. Sears, 21 Wend. 190. « Abbott on Shipp. P. 3, ch. 3, § 3, 5th edit. ; Jones on Bailm. 107, 109, 122 ; [King v. Shepherd, 3 Story, 349;] Trent & Mersey Navig. Co. V. Wood, 3 Esp. 127; a. c. 4 Doug. 287; Barclay d. CucuUay Gana, 3Doug. 389 ; SchiefEelin v. Harvey, 6 Johns. 170; Watkiuson v. Laughton, 8 Johns. 502 COMMON CAEEIEES. [CH. VI. occasioned by an accidental fire, wholly without any negli- gence on his part ; ^ and by an accident arising from any unseen nuisance in the course of his navigation.^ § 529. In all cases of loss it seems that the onus prohandi is on the carrier to exempt himself from liability ; for, primd facie, the law imposes the obligation of safety upon him.^ It will, therefore, be sufficient primd facie evidence of loss by 213; Gibbon v. Paynton, 4 Burr. 2298 ; ante, § 507 a. {And see Taylor V. Liverpool Steam Co., L. R. 9 Q. B. 546; M'Queen v. Great "Western R. Co., L. R. 10 Q. B. 569,} ' Forward v. Pittard, 1 Term R. 33 ; Hyde v. Trent & Mersey Navig. Co., 5 Term R. 889; Gatlifle v. Bourne, 4 Bing. New Cas. 314, 332; ante, § 507 a to 511 ; Hollister v. Kowlen, 19 Wend. 234, 246, 248. [See Ameri- can Transportation Co. t>. Moore, 5 Mich. 368;] |Bank of Kentucky!). Adams Express Co., 93 U. S. Supr. 174.} 2 Trent & Mersey Navig. Co. v. Wood, 3 Esp. 127 ; s. c. 4 Doug. 287; ante, § 517, 518. 8 Forward v. Pittard, 1 Term R. 27, 33; Murphy v. Staton, 3 Munf. 239; Bell v. Reed, 4 Biun. 127; Coltu. McMechen, 6 Johns. 160; [Hall v. Cheney, 36 N. H. 26.] See Whalley v. Wray, 3 Esp. 74; Riley «. Home, 5 Bing. 217, 226; Piatt v. Hibbard, 7 Cow. 500, and note (a); [The Schooner Emma Johnson, 1 Spragiie, 527;] Hastings v. Pepper, 11 Pick. 41, 43; 2 Kent, Comm. Lect. 40, p. 602, 4th edit.; ante, § 410; 1 Bell, Comm. p. 463, 464, 5th edit.; 1 Bell, Comm. § 397, 4th edit.; Beokman V. Shouse, 5 Rawle, 179; Shackleford v. Wilcox, 9 La. 38; [Whitesides V. Russell, 8 Watts & Serg. 44; The Huntress, Daveis, C. C. 82; King v. Shepherd, 3 Story, 356; Davidson v. Graham, 2 Ohio St. 131; Van Win- kle V. South Carolina R. Co., 38 Ga. 32.] See Lane v. Cotton, 1 Salk. 143; ante, ^ ii^; post, § 573. But see Muddle v. Stride, 9 Carr. & P. N. P. 380. {Whether the goods be delivered at the end of the transit in a damaged condition, or not delivered at all, the onus is in general on the carrier. Montgomery R. Co. v. Moore, 51 Ala. 394 ; Michaels v. New York Central R. Co., 30 N. Y. 564. But see Vail o. Pacific R., 63 Mo. 230. Where immunity is claimed on the ground of special contract, the burden appears to be on the carrier to prove that he performed so far as he had engaged. Union Express Co. c. Graham, 26 Ohio St. 595; Puncheon v. Harvey, 119 Mass. 469. He should at least show how the loss occurred. American Express Co. v. Sands, 55 Penn. St. 140. But iu many cases where the carrier hmits by special contract, the burden of proof as to negligence is fairly thrown back upon the owner ; the carrier having first so far accounted for the loss as not to stand implicated for such misconduct as renders every carrier hable. Farnham v. Camden & Amboy R., 55 Penn. St. 53; Transportation Co. v. Downer, 11 Wall. 129. And see Southern Express Co. v. Hess, 53 Ala. 19.} CH. VI.] COMMON CAREIEES. 503 negligence, that the goods have never been delivered to the bailor or his agent, or to the consignee.^ And it seems that the breaking down or overturning of a stage-coach is primd fade evidence of negligence on the part of the proprietor and his servants.^ § 530. In respect to the property carried, it matters not whether it be money, or goods, or other movable merchan- dise.^ The carrier is equally responsible for each.* But this supposes that the carrier is accustomed to carry money as well as goods on hire, or that it is the known usage of the trade or business to take both ; or that the owner has know- ingly taken money on hire in the particular case.^ If it is known that he does not carry money, but goods only, then he will not be liable for money, which is carried without his consent or sanction, and is lost. And if the master or other agent of a carrier-ship or steamboat is prohibited from carry- ing money for hire on account of the owner, but is allowed to carry it on his own account, or if that is the course of the trade or employment, then the owner will not be responsible for the loss of any money so taken by the master for hire.® Therefore, where it is the usage of the owners of steamboats on a particular line not to carry money or bank-bills for hire, 1 Gilbart ». Dale, 5 Adolph. k El. 540; Griffiths v. Lee, 1 Carr. & P. 110; [Cameron v. Rich, 4 Strobh. 168; Alden v. Pearson, 3 Gray, 342; Clark V. Barnwell, 12 How. 272. Bat see Stimson v. Conn. River Rail- road, 98 Mass. 83. But the burden of proving such non-delivery is on the plaintiff. Woodbury v. Frink, 14 111. 279; Ringgold v. Haven, 1 Cal. 108. And see Midland Railway Co. v. Bromley, 17 C. B. 376. And if the contract be to deliver to A. or B., proof of non-delivery to A. merely is not sufficient. The Falcon (Nelson, J.), 3 Blatchf. 64.] {See ante, § 410, notes. } 2 Christie v. Griggs, 2 Camp. 79; Stokes v. Saltonstall, 13 Peters, 181 ; ante, § 507 a, 511. See Hall v. Conn. R. Steamboat Co., 13 Conn. 319; [Stockton V. Frey, 4 Gill, 408.] ' Kemp V. Coughtry, 14 Johns. 107; Tyly v. Morrice, Carth. 485; Allen V. Sewall, 2 Wend. 327; s. c. 6 Wend. 335 ; ante, § 495. 4 Ibid. { See Thompson v. Fargo, 63 N. Y. 479. } 6 Allen V. Sewall, 2 Wend. 327; s. c. 6 Wend. 335; [Cincinnati Mail Line Co. v. Boal, 15 Ind. 345.] « Ibid.; [Chouteau v. Steamboat St. Anthony, 16 Mo. 217; s. c. 20 Mo. 519 ; Whitmore v. Steamboat Caroline, 20 Mo. 513.] 604 COMMON CAEEIEES. [CH. VI. if either money or bills are intrusted to the master of one of his boats by persons acquainted with the usage, the owners of the boat will not be liable for any loss thereof.^ But if the shippers are unacquainted with the usage, it should seem that the owners will be liable for the loss, as the masters are the general agents of the owners.^ § 530 a. In respect to goods in a carrier-vessel, which are shipped to be stowed on deck, as they are, from their situa- tion, peculiarly liable to be thrown overboard to lighten the vessel in cases of distress, if they are necessarily so thrown overboard, the carrier is exonerated, and the owner of the goods must bear the loss, unless so far as he may be entitled to contribution, as in case of a general average.^ But if such goods are, without the consent of the owner, or a general custom binding him, stowed on deck, and on that account ejected in tempestuous weather, the carrier will be chargeable with the loss.^ § 531. The case of Barcroft, as cited by Lord Chief Justice RoUe, would seem to imply a responsibility of the carrier even in cases of jettison. It is stated thus: "A box of jewels had been delivered to a ferry-man, who knew not what it contained, and a sudden storm arising in the passage, he threw the box into the sea. Yet it was resolved that he should 1 Allen V. Sewall, 2 Wend. 327; 8. c. 6 Wend. 335; s. p. in the case of Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16. 2 [Chouteau v. Steamboat St. Anthony, 12 Mo. 389; s. c. 16 Mo. 216; 8. c. 20 Mo. 519;] Allen o. Sewall, 2 Wend. 327. The judgment was reversed in error, but under very special circumstances. 2 Kent, Comm. Lect. 40, p. 598, 599, 4th edit. 8 Smith V. Wright, 1 Caines, 43 ; [Dodge v. Bartol, 5 Greenl. 286 (Bennett's ed. p. 245); Cram o. Aiken, 13 Me. 229; Hampton v. Brig Thaddeus, 4 Mart. (La.) 582 ;] Lenox v. Unrted Insurance Co., 3 Johns. Cas. 178 ; Abbott on Shipp. P. 3, ch. 8, § 13, 5th edit. ; 3 Kent, Comm. Lect. 47, p. 206, 240, 4th edit. See Gould v. Oliver, 4 Bing. New Cas. 134; Crosby v. Fitch, 12 Conn. 410, 419, 420. ^ Barber v. Brace, 3 Conn. 9 ; Smith v. Wright, 1 Caines, 43, 45; Lenox v. United Insurance Co., 3 Johns. Cas. 178 ; 3 Kent, Comm. Lect. 47, p. 208, 4th edit. ; Crane v. The Rebecca, Ware, 188, 209, 210 ; s. c. 6 American Jurist, 1. See ante, § 413 to 413 d ; Shackleford v. Wilcox, 9 La. 33, 39. {Stowage should, in general, be under deck. The Dela- ware, 14 Wall. 579.} CH. VI.] COMMON CAEEIEES. 605 answer for it." ^ Sir William Jones suspects that there must have been some proof of culpable negligence in the case, and that probably the casket was both small and light enough to have been kept longer on board than other goods.^ Even then the case would be sufficiently hard; as the ferry-man did not know the contents, and might have acted for the best. But if the doctrine of the case be, that jettison will not, in a clear case of necessity, discharge the carrier, it is not law ; for it was expressly decided in Lord Coke's time, in the case of a barge-man, that where goods were thrown overboard in a great storm to save the lives of the passengers by lightening the barge, the barge-man was exonerated ; for the storm was the act of God, and the occasion of throwing them overboard.3 § 5-32. Fourthly. As to the commencement and termination of the risk of common carriers. (1) The commencement of the risk. To render a carrier responsible, there must be an actual delivery to him, or to his servants, or to some other person authorized to act in his behalf ; * and as soon as such delivery is complete, the responsibility of the carrier as such commences.^ But it is often a matter of grfeat nicety to decide, '^ Cited in Kenrig v. Eggleston, Aleyn, 93; Jones on Bailm. 107, 108; ante, § 525; post, § 575. " Jones on Bailm. 107, 108. . ' Cited by Lord Coke in Bird v. Astcock, 2 Bulst. 280; Jones on Bailm. 108. [See also Gillett v. Ellis, 11 111. 579; Johnston v. Crane, 1 Kerr (ST. B.), 356; Lawrence v. Minturn, 17 How. 100.] {Jettison, rendered necessary by the carrier's fault, will not exonerate him. The Portsmouth, 9 Wall. 682.} * [See Cronkite v. Wells, 32 N. Y. 247, that a delivery to a clerk out- side of the oflBce of the company is not sufficient. Delivery to a mere deck-hand on a steamboat was held not sufficient in Trowbridge ». Cha- pin, 23 Conn. 595, {and Ford v. Mitchell, 21 Ind. 54.} See Wells v. Wilmington Railroad, 6 Jones (N. C), 47.] {Actual delivery, or a con- structive delivery, with actual or constructive acceptance, are essential. But merely placing goods where the carrier could easily have taken them, and without calling his attention to them, will not suffice. O'Bannon v. Southern Express Co., 51 Ala. 481; Grosvenor v. N. Y. Central R. Co., 39 N. Y. 34; Gleason v. Goodrich Transportation Co., 32 Wis. 85.} 6 1 Bell, Coram, p. 464, 5th edit. ; 1 Bell, Comm. § 397, 4th edit. ; Kandleson v. Murray, 8 Adolph. & El. 109; ante, § 445; [Burrell v. North, 506 COMMON CAERIEKS. [CH. VI. upon the circumstances of the case, whether there has been such a delivery or not.^ Thus, where goods were left in the yard of an inn, where the carrier and other carriers put up, but no actual delivery to the carrier or his servant was proved, it was deemed not a complete delivery to the carrier, so as to charge him with the custody .^ So where goods were delivered at a wharf to an unknown person there, and no knowledge of the fact was brought home to the wharfinger or his agents, this was held not to be a sufficient delivery to charge him, either as a wharfinger, or as a carrier, with the custody of the goods.^ And where, by the usage of the business, a delivery of goods on the dock near the carrier-boat (as in the case of a carrier canal-boat) is a good delivery, so as to charge the carrier, it must be understood with this qualification, that due notice is given to him of the fact ; for otherwise he will not be chargeable, since, until he has knowledge that the goods are on the dock for the purpose of being carried, he has no right to assume any custody of them.^ 2 Carr. & K. 680 ; Blanchard v. Isaacs, 3 Barb. 388; Tower v. Utica E. Co., 7 Hill, 47; The Huntress, Daveis, 82 ;] 2 Kent, Comm. Lect. 40, p. 604, 4th edit. 1 [See Merritt v. Old Colony Railway Co., 11 Allen, 80; Illinois Cen- tral Railroad v. Srayser, 88 111. 354. Delivery to the carrier's servants alongside of their vessel, or on a lighter to be taken to the vessel, is equivalent to a delivery on board. The Bark Edwin, 1 Sprague, 477; s. c. 24 How. 386; British Columbia Co. v. Nettleship, Law Rep. 3 C. P. 499. And see Gattorno v. Adams, 12 C. B. n. s. 560. Especially if he has receipted for the goods. Greenwood v. Cooper, 10 La. Ann. 796.] ' Selway v. Holloway, 1 Ld. Raym. 46; 1 Bell, Comm. p. 464, 5th edit. ; 1 Bell, Compi. § 397, 4th edit. ' Buckman v. Levi, 3 Camp. 414 ; [Trowbridge v. Chapin, 23 Conn. 595 ;] 1 Bell, Comm. p. 464, 5th edit; 1 Bell, Comm. 397, 4th edit. * Packard v. Getman, 6 Cow. 757 ; 2 Kent, Comm. Lect. 40, p. 604, 4th edit. [And see "Wright v. Caldwell, 3 Mich. 51; Tower v. Utica Railroad [Co., 7 Hill, 47; Grosvenor v. N. Y. Central Railroad Co., 39 N. Y. 34; Maybin v. South Carolina Railway, 8 Rich. 240. But if it be the constant usage and practice for a carrier to receive and carry property left at a particular place, without any special notice of such deposit, a delivery at such place will be a sufficient delivery to charge the carrier, although no express notice was given to him or to his agent of such deposit. Merriam v. Hartford & N. H. R. R. Co., 20 CH. VI.] COMMON CAEEIBES. 507 § 533. The liabilitj' of carriers attaches from the time of their acceptance of the goods, whether that acceptance is in a special manner, or according to the usage of their business.^ But an acceptance in some way, either actual or constructive, is indispensable.^ And where goods are actually put into the wagon or barge of a carrier, he will not be chargeable, if it appears that there is no intention to trust him with the custody ; as if the owner is uniformly in the habit of placing his own servant on board as a guard, who exclusively takes upon him- self the management and custody of them.^ But the mere fact, that the owner or his servant goes with the goods, if the other circumstances of the case do not exclude the custody of the carrier, will not of itself exempt him from responsi- bility.* § 534. It is in many cases the usage of the masters and owners of ships to receive goods on the quay, or beach, or in their boats, or at the wharf, or the warehouse of the shipper or his agent ; or to take them, at other special places, into the custody of the mate or other proper officer of the ship. In all such cases their liability as carriers commences at the instant of such acceptance of the goods.^ Conn. 354. See remarks of Storrs, .J., ibid.] {A carrier may be bound by his own usage to receive goods in a certain manner. Galena R. Co. V. Rae, 18 111. 488; Gleason v. Goodrich Trans. Co., 32 Wis. 85.} 1 Dale V. Hall, 4 Wils. 281; Boehm v. Combe, 2 Maule & Selw. 172; 2 Kent, Comm. Lect. 40, p. 604,4th edit.; [Lakeman v. Grinnell, 5 Bosw. 625.] " Abbott on Shipp. P. 3, ch. 3, § 2, 5th edit.; ante, § 445 to 449, 451 to 453; Packard v. Getman, 6 Cow. 757; 1 Bell, Comm. 464, 5th edit.; 1 Bell, Comm. § 397, 4th edit.; [Grosvenor v. New York Central Rail- road Co., 39 N. Y. 34. See Blanchard v. Isaacs, 3 Barb. 388 ; Ford v. Mitchell, 21 Ind. 54;] \anle, § 532.} ^ East India Company v. Pullen, 2 Str. 690; Robinson v. Dunmore, 2 Bos. & Pull. 419 ; Schiefeelin v. Harvey, 6 Johns. 170; Marshall, Insur- ance, B. 1, ch. 6, § 5, p. 252, &c. ; Rucker v. London Assurance Co., ibid. ; post, § 578. [See White v. Winnisimmet Co., 7 Cush. 155; Miles V. Cattle, 6 Bing. 743.] ^ Abbott on Shipp. P. 3, ch. 3, § 3, 5th edit.; Cobban v. Doune, 5 Esp. 41 ; Marshall, Insurance, B. 1, ch. 7, § 5, p. 252, &c. ; 1 Bell, Comm. p. 464, 5th edit. ; 1 Bell, Comm. § 397, 4th edit. See Brind v. Dale, 2 Mees. & Wels. 775; HoUister v. Nowlen, 19 Wend. 234; post, § 578. 6 Robinson v. Dunmore, 2 Bos. & Pull. 419; Marshall, Insurance, B. 1, 608 COMMON CAEEIEES. [CH. VI. § 535. It sometimes happens, that a party is at once a warehouse-man or an innkeeper, and a carrier, and that after a receipt of the goods, and before their being put in itinere, they are lost or destroyed. In such cases the question often arises, whether the receiver is liable in the one capacity or another ; for the responsibility of each (as we have seen) is not, or at least may not be, coextensive.^ In a case which has been already under notice in another place,^ where goods were received by a wharfinger for the purpose of being shipped from London to Newcastle, and the wharfinger was at the same time a lighterman, whose duty it was to convey the goods from the wharf in his own lighter to the vessel in the river, and the goods, while on the premises, were accidentally destroyed by fire. Lord Ellenborough is reported to have held, that, while the wharfinger was in possession of these goods, his liability was similar to that of a carrier.^ The case, however, went off upon another ground; and in another report of the same case* the dictum is not even alluded to. The doctrine at all events seems to be utterly untenable upon principle.^ § 536. In all such cases the material point upon which the controversy hinges, is, whether the one character or the other predominates in the particular stage of the transaction.^ If a common carrier receives goods into his own warehouse for the accommodation of himself and his customers, so that the deposit there is a mere accessory to the carriage, and for the purpose of facilitating it, his liability as a carrier begins with the receipt of the goods. ^ So, if an innkeeper is at the same ch. 1, § 5, p. 252, &c.; Abbott on Shipp. P. 3, ch. 3, § 3, 5th edit.; ante, §414 to 449, 451 to 453; [Fitchburg Railroad v. Hanna, 6 Gray, 539.] {Where goods are put on board a ship without the knowledge of the car- rier or his agents, and no bill of lading is taken, the carrier is not liable. The Keokuk, 9 Wall. 517. } 1 1 Bell, Comm. p. 469, 5th edit.; 1 Bell, Comm. § 403, 4th edit.; ante, § 444, 446 to 449, 487, 528; post, § 538. 2 Ante, §451. a Having o. Todd, 1 Stark. 72. * Having v. Todd, 4 Camp. 225 ; ante, § 451. ' Ante, § 451, 452. « Ante, § 444 to 449 ; [Barron v. Eldredge, 100 Mass. 455.] ' Forward o. Pittard, 1 Term R. 27; ante, § 446; [Hoses v. Boston & CH. VI.] COMMON CAEEIEES. 509 time a carrier, and goods are sent to his inn, and received by him for transportation, he is liable, as a carrier, for any loss, before they are put upon their transit.^ § 537. On the other hand, if a person is at the same time a common carrier and a forwarding merchant, and he receives goods into his warehouse to be forwarded, according to the future orders of the owners ; if the goods are lost by fire before such orders are received, or the goods are put in transit, he is not chargeable as a common carrier, but only as a warehouse-man.'' § 538. (2) The termination of the carrier's risk. As soon as the goods have arrived at their proper place of destination, and are deposited there, and no further duty ^ remains to be Maine Railroad Co., 4 Post. 71; Clark v. Needles, 25 Penn. St. 338; Blossom V. Griffin, 3 Kernan, 569, And see Ladue v. Griifith, 25 N. Y. 26i; Hickox v. Naugatuck Eailroad, 31 Conn. 281.] ' Buller, J., in Hyde v. Trent & Mersey Navigation Co., 5 Term R. 389; 1 Bell, Comm. p. 469, 5th edit.; 1 Bell, Comm. § 408, 4th edit.; ante, § 4'44, 446 to 449, 451 to 453. See Cairns v. Rohins, 8 Mees. & Wels. 258. 2 Piatt V. Hibbard, 7 Cow. 497; Roskell v. Waterhouse, 2 Stark. 461; Ackley v. Kellogg, 8 Cow. 223 ; ante, § 444 to 449, 451 to 453 ; [Maybin v. South Carolina Eailroad Co., 8 Rich. 240;] 1 Bell, Comm. p. 469, 5th edit. ; 1 Bell, Comm. § 403, 4th edit. [See Barron v. Eldredge, 100 Mass. 455; Northern Railroad Co. v. Fitohburg Railroad Co., 6 Allen, 254; Spade v. Hudson River Railroad, 16 Barb. 383; Mich. Southern Railroad v. Shurtz, 7 Mich. '515 ; Moses v. Boston & Maine Railroad, 4 Post. 71; Chase u. Washburn, 1 Ohio St. 244;] jSt. Louis R. ». Montgomery, 39 111. 335; Watts v. Boston & Lowell R. Co., 106 Mass. 466. Cf. Judson v. Western Railroad, 4 Allen, 520, and Michaels v. New York Central R. Co., 30 N. Y. 564. And see Nichols v. Smith, 115 Mass. 332. } 8 [In a recent case it was held to be a carrier's duty, if the consignee refuses to pay the carriage, to retain the goods at his place of destination for a reasonable time, and during that time to await any directions from the consignor, and if not received to communicate with him ; and if re- turned to the consignor before a reasonable time, and they are lost, the consignor may maintain trover for the goods. Crouch v. Great Western Railway Co., 2 Hurl. & Norm. 491; affirmed on appeal, 3 Hurl. & Norm. 183. But in another case it was said not to be an absolute rule of law, that the carrier should always give a consignor notice that the goods were refused by the consignee ; he is bound to do only what is reasonable, to be determined by the jury upon the circumstances of each particular 510 COMMON CAEBIEES. [CH. VI. done by the carrier, his responsibility, as such, ceases.^ We have already had occasion to consider some cases illustrative of this doctrine under another head.^ If a carrier between A. and B. receives goods to be carried from A. to B., and thence to be forwarded by a distinct conveyance to C. ; as case. Hudsonu. Baxendale, 2Hurl. &Norm. 575.] {See American Mer- chants' Ex. Co. V. Wolf, 79 111. 430; Kremer v. Southern Express Co., 6 Coldw. 356.} ' Ante, § 445 to 458; post, § 546-548 ; 2 Kent, Comm. Lect. 40, p. 604, 605, 4th edit. {The carrier's liability, as such, has in certain States been held to continue until the consignee has had a reasonable time after their arrival to remove the goods. The rule applies more especially to railways. Price v. Powell, 3 Comst. 322 ; Young v. Smith, 3 Dana, 91; Ouimit V. Henshaw, 35 Vt. 605 ; Moses v. Boston & Maine Railroad, 32 N. H. 523; Parker v. Milwaukee R. Co., 30 Wis. 689; Mobile R. Co. v. Prewitt, 46 Ala. 67. But many cases hold that the carrier's liability, after the goods arrive, is only that of a warehouseman. Norway Plains Co. V. Boston & Maine R. Co., 1 Gray, 263; McCarty v. N. Y. & Erie R., 30 Penn. St. 247 ; Rice v. Hart, 118 Mass. 201 ; Francis v. Dubuque R. Co., 25 Iowa, 60; Jackson v. Sacramento Valley R. Co., 23 Cal. 268; Neal V. Wilmington R. , 8 Jones, 482. The adjudged cases are quite in conflict. See Buckley v. Great Western R. Co., 18 Mich. 121; McMillan V. Michigan R. Co., 16 Mich. 79; Graves v. Hartford Steamboat Co., 38 Conn. 145; Rice v. Hart, 118 Mass. 201. At all events, the carrier's liability is not changed to that of warehouseman until he has unladen the goods and put them in a place reasonably safe and suitable. Chicago, &c. R. Co. V. Scott, 42 111. 132, per Breese, J. ; Norway Plains Co. v. Boston & Maine R. Co., supra; Rice v. Boston & Worcester R. Co., 98 Mass. 212. And see Mitchell v. Lancashire R. Co., L. R. 10 Q. B. 256. See post, § 543 and notes. For a passenger's baggage the carrier's responsibiUty usually continues till the owner has had a reasonable opportunity to take it away after it reached its destination. If not called for within a reasonable time, the carrier may store and hold it as warehouseman. Chicago R. Co. o. Boyce, 73 111. 510; Young v. Smith, 3 Dana, 91; Roth v. Buffalo R., 34 N. Y. 548; Ouimit v. Henshaw, 35 Vt. 605. The passenger cannot ex- tend this liability for his baggage by procuring for his own convenience a stop-over ticket and delaying his own journey. Chicago R. !'. Boyce, 73 111. 510. But a railroad company, by employing porters, may incur lia- bility for the safety of a passenger's baggage while it is being carried from the cars elsewhere. Richards v. London R., 7 C. B. 839; Midland R. V. Bromley, 17 C. B. 372 ; post, § 538; Fisher v. Geddes, 15 La. Ann. 14; Kent v. Midland R., L. R. 10 Q. B. l.j " Ante, § 445 to 449, 451 to 453 ; {Hathom v. Ely, 28 N. Y. 78.] CH. VI.] COMMON CAEEIERS. 611 soon as he arrives with the goods at B., and deposits them in his warehouse there, his responsibility as carrier ceases ; for that is the terminus of his duty as such. He then becomes, as to the goods, a mere warehouse-man, undertaking for their further transportation.^ But if a common carrier between A. and B. receives goods at A., directed to a place beyond B., as, for example, to a place called C, without limiting his responsibility to the mere carriage .from A. to B., so that it may be fairly inferred from the circumstances that he under- takes to deliver them at C, he will be liable for any loss thereof between B. and C, even when carried by the usual mode of transportation ; unless, indeed, by the known usage of the trade, the responsibility as carrier is limited to the arrival of the goods at B., and the usage is known to the bailor.^ 1 Garside v. Trent & Mersey Navigation Company, 4 Term R. 581 ; Ackley v. Kellogg, 8 Cow. 223; ante, § 446-449, 451 to 453; post, § 546- 548. See St. John <;. Van Santvoord, 25 Wend. 660; post, § 542. [Whore a carrier receives goods to be delivered to a subsequent carrier for transportation, and the latter, upon request, refuses or neglects to receive them, for an unreasonable time, the first carrier still remains lia- ble as an insurer ; and in order to exonerate himself, he should store the goods in a warehouse, when there is opportunity to do so, or should in some way clearly indicate his renunciation of the relation of a carrier. Goold V. Chapin, 20 N. Y. 259. And see Miller v. Steam Navigation Co., 6 Selden, 431.] ^ St. John V. Van Santvoord, 25 Wend. 660. [But this case was after- wards reversed, 6 Hill, 157;] s. p. Muschamp v. Lancaster R. Co., 8 Mees. & W. 421. [The English decisions sanction the doctrine of the text, especially where the first company receives payment for the whole route. See Bristol & Exeter Railway Co. v. Collins, 7 H. L. C. 194; McCourt V. London & North Western Railway Co., 8 Irish Law Rep. C. L. 107; Webber v. Great Western Railway Co., 3 H. & C. 771, affirmed in 4 Id. 582 ; Watson v. Ambergate, &c. Railway Co. , 3 Eng. Law & Eq. 497; Scothorn v. South Staffordshire Railway Co., 8 Exch. 341; Wilby V. West Cornwall Railway Co., 2 Hurl. & Norm. 703. Some American courts incline to follow the above rule, in favor of the liability of the carrier. See Mosher v. Southern Express Co. , 38 Ga. 37 ; Southern Express Co. v. Shea, Id. 519 ; Illinois Central R. Co. v. Copeland, 24 111. 332. But the general American rule probably is, that if the carrier receiving the goods has no connection in business with another line, and receives pay for transportation only on his own road, he is not liable, in the 512 COMMON CABEIEES. [CH. VI. § 539. The like result will follow, if the goods are destined to B. only, if it is not, by the custom of the business, the absence of any special contract, for a loss beyond his own line. Nutting V. Conn. River Railroad Co., 1 Gray, 502, per Metcalf, J.; Quimby u. Vanderbilt, 17 N. Y. 306. And the simple receipt of goods directed to a place beyond the carrier's own line does not, prima facie, create a con- tract to carry such goods to their final destination. See Fleming v. Mills, 5 Mich. 420; Elmore v. Naugatuck Railway, 23 Conn. 457; Naugatuck Railroad Co. v. Waterbury Button Co. , 24 Conn. 468 ; Converse v. Nor- wich Transportation Co., 33 Conn. 166. See also Schneider v. Evans, 25 Wis. 241; McMillan v. Mich. Southern Railroad Co., 16 Mich. 119; Brintnall v. Saratoga & Whitehall Railroad, 32 Vt. 665; Perkins v. Port- land, Saco, &c. Railroad, 47 Me. 573; Burroughs v. Norwich & Worces- ter Railroad, 100 Mass. 26; Jenneson v. Camden & Amboy Railroad Co., in the District Court of Philadelphia, 4 Am. Law Reg. 234 (February, 1856) ; Angle v. Mississippi Railway, 9 Iowa, 487. Nor render the last company liable for an injury caused to the goods before it received them. Darling v. Boston & Worcester Railroad Co., 11 Allen, 295. In this last case the arrangement was that each company should receive the goods brought over another line, pay the latter the amount then due for carriage, transport the goods to the next line, and there collect all then due, and the last hne should pay all the charges of its predecessors. It was held that this arrangement did not make the last company liable for the neglects or defaults of the former companies. The authorities on this question were here thoroughly reviewed by Chapman, J., and the case was subsequently approved and followed in Gass v. New York, Provi- dence, & Boston Railroad Co., 99 Mass. 220. {And see Schneider u. Evans, 25 Wis. 241.} Champion v. Bostwick, 18 Wend. 176, may he explained on the ground that there was a general agreement between the successive carriers by which they were to share the proceeds of the whole business on all the lines ; and in Fitchburg & Worcester Railroad Co. v. Hanna, 6 Gray, 539, one carrier sued for and claimed an interest in the entire freight. The learned reader is referred to the excellent judgment of Gray, J., in Burroughs v. Norwich & Worcester Railroad Co., 100 Mass. 26; {Crawford v. Southern R., 51 Miss. 222 ; Sherman v. Hudson River R., 64 N. Y. 254.) Perhaps the apparent discrepancy between the English and American decisions is mostly as to what facts con.stitute an implied contract on the part of a carrier to carry goods to their ultimate destination, although beyond his own route. See Wilby v. West Cornwall Railway, 2 Hurl. & Norm. 703. That a contract to carry through the entire route may be implied from circumstances, and without any express stipulation to that effect, is well settled even in those States which do not fully approve the decision in Muscbamp v. Lancaster & Preston Railway Co., 8 M. & W. 421. See Najao v. Boston & Lowell Railroad Co. , 7 Allen, 329 ; Morse v. CH. VI.] COMMON CARRIERS. 613 carrier's duty to deliver the goods to the consignees there, but simply to deposit them in his warehouse.^ But if it is Brainerd, 41 Vt. 550; Ciitts v. Brainard, 42 Vt. 566. {By special con- tract a carrier may undoubtedly assume to transport beyond his own limits. Hill Man. Co. v. Boston & Lowell R. Co., 104 Mass. 122; Kail- road Co. V. Pratt, 22 Wall. 123; Railroad Co. v. Androscoggin Mills, 22 Wall. 594; Bait. Steamboat Co. u. Brown, 54 Penn. St. 77; Noyesi). Rut- land R. Co., 27 Vt. 110 ; Gill v. Manchester R. Co., L. R. 8 Q. B. 186.} In a leading English case, the plaintiff delivered at the station of the Great Western Railway Company, at Bath, a van-load of furniture to be conveyed to Torquay. He signed a receipt note headed "Bath Station, To the Great Western Railway Company. Receive the undermentioned goods on the condition stated on the other side, to be sent to Torquay station and delivered to the plaintiff or his agent." One of the said con- ditions was that the company would not be responsible for loss or damage to his goods beyond the limits of their railway; another was, that the company would not be answerable for loss by fire. The van was placed on a truck and conveyed to Bristol, where the Great Western line ends, and the Bristol and Exeter line begins, which itself terminates at Exeter, where it is joined by the line of the South Devon Company, which runs to Torquay, where the goods were to be sent. The van and furniture arrived safely at Exeter, but while in the station there, belonging to the Bristol and Exeter Railway, they were accidentally destroyed by fire. It was held in the Exchequer Chamber, reversing the judgment in the Court of Exchequer, that the Great Western Railway Company received the goods to be carried on their line, subject to the stipulation against loss by fire, and that they discharged themselves by forwarding the goods to be carried by the Bristol and Exeter Railway Company; and there being no evidence as to the terms on which the latter received them, they must be deemed to have received them as common carriers, and were con- sequently liable for their loss. Collins v. Bristol & Exeter Railway Co., 1 Hurl. & Norm. 517, reversing the same case in 11 Exch. 790. But this decision was reversed in the House of Lords, on the ground that the con- tract was an entire one with the Great Western Company, through the whole route, and for this reason that the Bristol and Exeter Railway Company were not liable. Bristol & Exeter Railway Co. v. Collins, 7 House of Lords Cases, 194; 5 Hurl. & Norm. 969. And the principle that the first carrier is responsible for a loss throughout the entire route, although beyond its own line, will, in some cases at least, exonerate the company on whose particular line the loss occurred. Mytton v. Mid- land Railway Co., 4 Hurl. & Norm. 615. See also Coxon v. Great Western Railway Co., 5 Hurl. & Norm. 274. J 1 In re Webb, 8 Taunt. 443; s. c. 2 Moore, 500 ; 2 Kent, Comm. Lect. 40, p. 604, 605, 4th edit. ; Cairns w. Robins, 8 Mees.&Wels. 258; ante,% 446 to 449, 453 ; [Thomas v. Boston & Providence Railroad Co., 10 Met. 472.] 33 514 COMMON CARRIERS. [CH. VI. his duty to deliver the goods to the consignees at B., then his liability as carrier does not cease by such a deposit ; but he is chargeable for any loss wliich occurs, until an actual deliverj'' to the party.i So, he is chargeable, in like manner, for any loss during a deposit in any warehouse at an intermediate state of the journey between A. and B.^ § 540. And if, notwithstanding any custom to the contrary, the carrier specially undertakes to deliver the goods to the owner, he is chargeable for any loss before such delivery, although, in all respects, he has followed the general custom of the place.^ § 541. On the other hand, however universal the custom may be, to deliver the goods to the owner at the place of destination, still the parties may, by their contract, waive it ; and if they do, the carrier is discharged.* As, if the owner, 1 Hyde v. Trent & Mersey Nav. Co. 5 Term R. .389 ; Golding v. Man- ning, 3 Wils. 429 ; 8. c. 2 Black. 916; Catley o. Wintringham, Peake, 150 ; 2 Kent, Coram. Lect. 40, p. 604, 605, 4th edit. ; ante, § 446 to 449; [Bourne v. Gatlifee, 11 CI. & Fin. 45; Whitesides v. Russell, 8 Watts & Serg. 44. See Butterworth v. Brownlow, 19 C. B. n, s. 409.] 2 Ibid.; ante, § 446 to 449, 453. [And see Miller v. Steam Naviga- tion Co., 6 Seld. 431 ; Goold v. Chapin, 20 N. Y. 259. A stipulation in the bill of lading, that, in case of low-water, he may transship the goods in other craft than his own, does not discharge him from any liability incident to his contract, until they are delivered at the destined port. Whitesides o. Russell, 8 Watts & Serg. 44.] f And it is held that, ■where there are several intermediate carriers, one carrier is in general liable as such until he has delivered over to the next. Railroad Co. v. Man. Co., 16 Wall. 318; McDonald v. Western R., 34 N. Y. 497 ; Mills c. Michigan Central R., 45 N. Y. 626 ; Coukey v. Milwaukee R. Co., 31 Wis. 619; Merchants' Despatch Co. v. Bolles, 80 111. 473. But ^m. whether this is an invariable rule with railway carriers. See Rice v. Hart, 118 Mass. 208. See further, Rome R. Co. v. Cabot, 25 Ga. 228; Michi- gan R. V. Day, 20 111. 375 ; Frank i^. Memphis R. Co., 52 Miss. 570; Merchants' Co. v. Bolles, 80 111. 473. If a railroad company actually contracts to send through to a given point, it will not be released from liability by delivering to another connecting road. Toledo R. v. Lock- hart, 71 111. 540; Adams Express Co. v. Wilson, 81 111. 339.} 3 Wardell v. Mourillyan, 2 Esp. 693. * Strong i>. Natally, 1 Bos. & Pull. N. R. 16 ; Marshall, Insur. B. 1, ch. 7, § 5, p. 252, &c.; Sparrow v. Caruthers, 2 Str. 1236; Bowman v. Teall, 23 Wend. 306 ; [Stone i>. Waitt, 31 Me. 409.] CH. YI.] COMMON CAKEIEBS. 515 after the arrival of the goods, requests the carrier to let them remain in his warehouse, until the owner can conveniently send for them ; and they are there deposited, and are after- wards destroyed by fire ; the duty of the carrier being at an end, he is not responsible for the loss in that character.^ So, if a man, having no warehouse of his own, directs the carrier to leave his goods at the wagon-office, until he should find it convenient to remove or sell them, the carrier's responsibility will terminate with the deposit.^ But mere interference by the owner, in giving directions as to the care of his property, the transportation of which is interrupted by the closing of a river, is not an acceptance of the property, or a waiver of further responsibility of the carrier, although it may, under certain circumstances, be evidence thereof.^ 1 In re Webb, 8 Taunt. 443 ; s. c. 2 Moore, 500; ante, § 446 to 449, 453, 528, 532 to 540; post, § 578 ; Parsons v. Hardy, 14 Wend. 215. 2 Richardson v. Goss, 3 Bos. & Pull. 119; Scott v. Pettit, 3 Bos. & Pull. 472 ; Dixon ». Baldwin, 5 East, 181 ; Rowe v. Pickford, 8 Taunt. 83; s. c. 1 Moore, 526 ; Allan v. Gripper, 2 Cromp. & Jerv. 218 ; s. c. 2 Tyrw. 217; Abbott on Shipp. P. 3, eh. 9, § 12, 5th edit. ; ante, § 446 to 449, 453; post, § 578 ; [London & North Western Railroad Co. v. Bartlett, 7 H. & N. 400.J 8 Bowman v. Teall, 23 Wend. 306; Parsons v. Hardy, 14 Wend. 215; ante, § 269 ; Todd v. Figley, 7 Watts, 542. [The place and manner of delivery may always be varied, with the as- sent of the owner of the property ; and if he interferes to control or direct in the matter, he assumes the responsibility. See Butterworth v. Brown- low, 19 C. B. N. s. 409. Therefore, where the agent of a party, who owned a block of marble transported on a railroad, requested the agent of the company to permit the car which contained the marble to be hauled to the depot of a neighboring railroad company, and such agent assented thereto, and assisted in hauling the car to the depot, and the agent of the owner there requested and obtained leave of that company to use its machinery to remove the marble from the car: it was held that the com- pany that transported the marble was not answerable for the want of care or skill in the persons employed in removing it from the car, nor for the want of strength in the machinery used for this purpose, and could not be charged with any loss that might happen in the course of such delivery. Lewis V. Western Railroad Co., 11 Met. 509. {Any delivery which dis- charges the carrier as between himself and the consignee is good as against the consignor.} Sweet v. Barney, 23 N. Y. 335. See Marshall v. American Express Co., 7 Wis. 1; Butterworth o. Brownlow, 19 C. B. N. 8. 409 ; London & North Western Railway Co. v. Bartlett, 7 H. & N. 516 COMMON CAEEIEES. [CH. VI. § 542. In all cases of this sort, the material consideration is, whether the owner of the goods has taken any exclusive possession of them, or has terminated the custody of the car- rier by any act or direction, which does not flow from the duty of the carrier. ^ So long as the carrier retains the pos- session of the goods, or is to perform any farther duty, either by custom or contract, as carrier, he is responsible for their safety. But when the transit is ended, and the delivery is either com- pleted, or waived by the owner, then the responsibility of the carrier ceases.^ So, if the goods, after their arrival, are put on board of a lighter in the customary way, and the owner then takes an exclusive custody of them before they are landed, the carrier is discharged from any subsequent loss.^ § 543. A question often arises in practice, whether the carrier is bound to make personal delivery of the goods to the owner or not : for if he is, then his responsibility as such carrier continues, until the delivery is complete.* This may admit of different answers, according to circumstances.^ The 400.] {The requisite apparatus for delivery is sometimes furnished by the consignee. Loveland v. Burlie, 120 Mass. 139.} 1 Anle, § 444 to 449, 541; Bowman v. Teall, 23 Wend. 306. ■' Marsh, on Insur. B. 1, eh. 7, § 5, p. 2,52, &c. ; Abbott on Shipp. P. 3, ch. 3, § 12, 5th edit. ; ante, § 444, 446, 419, 453, 541. 8 Strong V. Natally, 1 Bos. & Pull. N. R. 16 ; Abbott on Shipp. P. 3, ch. 3, § 12, 5th edit ; ' [Stone v. Waitt, 31 Me. 409.] See St. John v. Van Santvoord, 25 Wend. 660; ante, § 538. 4 Gatliffe v. Bourne, 4 Bing. New Cas. 314, 330, 331, 332. ° [In cases of railroad carriers it has been distinctly held not a part of their duty to make a personal delivery, in the absence of any usage or special contract to the contrary. Michigan Central Railroad Co. v. Ward, 2 Mich. 538; Michigan Railroad v. Bivens, 13 Ind. 263; New Albany Railroad v. Campbell, 12 Ind. 55. See Michigan Central Railroad v. Hale, 6 Mich. 244; Norway Plains Co. v. Boston & Maine Railroad Co., 1 Gray, 263. But if the goods are not delivered, it is the duty of such carrier to unload them with due care, and deposit them in some place where they will be reasonably safe and free from injury. Rice v. Boston & Worcester Railroad Co., 98 Mass. 212. And see Thomas ti. Boston & Providence Railroad Co., 10 Met. 472; Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 272. In Rice v. Boston & Worcester Railroad Co., the carriers of a quantity of coal, of various assorted sizes, discharged it at the point of destination on the bare ground, so as to mingle the various sorts together and also with the soil, and without giving the con- CH. VI.] COMMOK CABKIEES. 517 manner of delivering the goods, and consequently the period at which the responsibility of the carrier will cease, may, in many instances, depend upon the custom of particular places, and the usage of particular trades, or upon a special contract between the parties. If there is any special contract be- tween the parties, or any local custom or usage of trade on the subject, that will govern ; ^ the former as an express, and the latter as an implied term in the contract,^ upon the plain reason of the maxim : " In contractibus tacite veniunt ea, quEe sunt moris et consuetudinis." ^ But in the absence of signee any notice of its arrival; and they were held liable for the expense to the consignee thereby caused.] {See also Chicago, &c. R. Co. v. Scott, 42 111. 138; Graves v. Hartford Steamboat Co., 38 Conn. 143; Railroad Co. V. Man. Co., 16 Wall. 318; Cahn u. Michigan Central R., 71 111. 96. But carriers by express are generally bound to make personal delivery, this being their common custom ; and if to the consignee at his place of business, the delivery should be during business hours, and with reason- able regard to the safety of the goods and the consignee's convenience. Merwin v. Butler, 17 Conn. 138; Marshall v. American Express Co., 7 Wis. 1; Sullivan v. Thompson, 99 Mass. 259; American Merchants' Union Ex. Co. v. Wolf, 79 111. 430; Haslam v. Adams Express Co., 6 Bosw. 235. See Packard v. Earle, 113 Mass. 280. If the goods are refused by the consignee, the carrier may deposit or hold them on deposit. Kremer V. Southern Express Co., 6 Coldw. 356. As to the carrier's duty on the consignee's refusal to receive and pay for goods consigned for collection on delivery, see American Merchants' Union Ex. Co. u. Wolf, 79 111. 430 ; Lyons v. Hill, 46 N. H. 49. And see Graff v. Bloomer, 9 Penn. St. 114; Russell v. Livingston, 16 N. Y. 515; Southern Ex. Co. v. Dickson, 94 U. S. Supr. 549.} 1 [A usage that the consignee must give a receipt for goods which are actually delivered to. him by the carrier, before they can be considered as legally delivered, is invalid, as tending to contravene a fixed rule of law. A usage cannot prescribe or determine that acts, which the law declares to be a delivery, shall not be sufficient to constitute it, though usage may regulate the manner of delivery, or the time when and place where it may be made. Reed v. Richardson, 98 Mass. 216.] 2 Hyde v. Trent & Mersey Navigation Co., 5 Term R. 389; Catley «. Wintringham, Peake, 150; Golden «. Manning, 8 Wils. 429; Wardell w. Mourillyan, 2 ESp. 693; In re Webb, 8 Taunt. 443; Abbott on Shipp. P. 3, ch. 3, § 12, 6th edit. ; Gatliffe v. Bourne, 4 Bing. NewCas. 314, 329; Cope V. Cordova, 1 Rawle, 203 ; 1 Valin, Comm. 636 ; Ostrander v. Brown, 15 Johns. 39; Gibson v. Culver, 17 Wend. 305, 311; [Huston v. Peters, 1 Met. (Ky.) 558.] s Ante, § 384; Pothier, Contrat de Louage, n. 57.J 518 COMMON CAEEIEES. [CH. VI. anj' special contract, or custom, or usage, probably no general rule can be laid down. There seems a strong inclination of opinion (although there has been some diversity of judicial opinion), to hold, that, in cases of transportation by land, the carrier is bound, generally, to make a personal delivery to the owner, unless there is some custom of trade, or some contract to the contrary.^ Lord Kenyon was strenuously the other way ; but the other three judges, on that occasion, dif- fered from him.^ On more recent occasions, the opinions of other distinguished judges have settled down in favor of the doctrine of the three judges against him.^ However this may be, it seems clear, that carriers are bound to give notice of the arrival of the goods to the persons to whom they are directed,* if they are known to them, and within a reason- 1 2 Kent, Comm. Lect. 40, p. 604, 605, 4tli edit. ; Gibson v. Culver, 17 Wend. 305, 306; {ante, p. 516, note (5).} ' Hyde v. Trent Navigation Co., 5 Term R. 389; 2 Kent, Comm. Lect. 40, p. 604, 605, 4th edit. 8 Duft V. Budd, 3 Brod. & Bing. 177 ; s. c. Moore, 469 ; Bodenham v. Bennett, 4 Price, 34; Birkett v. Willan, 2 Barn. & Aid. 356; Garnett v. Willan, 5 Barn. & Aid. 58; Storr v. Crowley, 1 McClel. & Younge, 129, 138 ; Stephenson v. Hart, 4 Bing. 476; 2 Kent, Comm. Lect. 40, p. 604, 605, 4th edit. * [But see Norway Plains Co. v. Boston & Maine Railroad, 1 Gray, 263, that this rule does not apply to carriers by railroad: " It was argued," said Shaw, C. J., " in the present case, that the railroad company are responsi- ble as common carriers of goods, until they have given notice to consignees of the arrival of goods. The court are strongly inclined to the opinion, that in regard to the transportation of goods by railroad, as the business is generally conducted in this country, this rule does not apply. The immediate and safe storage of the goods on arrival, in warehouses pro- vided by the railroad company, and without additional expense, seems to be a substitute better adapted to the convenience of both parties. The arrivals of goods, at the larger places to which goods are thus sent, are so numerous, frequent, and various in kind, that it would be nearly im- possible to send special notice to each consignee, of each parcel of goods or single ai-tiole forwarded by the trains." See also Morris Railroad Co. V. Ayres, 5 Butcher, 393; Shenk v. Phila. Steam Propeller Co., 60 Penn. St. 109; Ely v. New Haven Steamboat Co., 53 Barb, 207; McCarty v. N. Y. & Erie Railroad, 30 Penn. St. 217.] \Semble, however, that in those States which hold the railroad liable until the consignee has had a reasonable time to remove the goods, the carrier is bound to give notice of their arrival. See ante, p. 510, note (1); Price v. Powell, 3 Comst. 822; CH. VI.] COMMON CAREIEES. 519 able time,^ unless, indeed, there is a very clear and uniform usage or custom to leave them at a particular place of de- posit, where the carrier is accustomed to stop, at the risk of the owner of the goods, without giving him any notice ; and he is bound to apply for and receive them there.^ They must also take care, at their peril, that the goods are deliv- ered to the right person ; for otherwise, they will become re- sponsible.* Moses V. Boston & Maine R., 32 N. H. 523 ; Hedges v. Hudson River R., 6 Robertson, 127; Zinn v. New Jersey Steamboat Co., 49 N. Y. 442. And see Rome R. Co. v. Sullivan, 14 Ga. 277. For the rule as to carriers by water, see post, § 544, 545. And as to the effect of an expressman's delay in giving the consignor notice that the consignee refuses to receive the goods, see Kremer v. Southern Express Co., 6 Coldw. 356.} 1 Post, § 544 ; Gatlifee v. Bourne, 4 Bing. New Cas. 314, 330, 331 ; a. c. in error, 3 Man. & Gr. 642, 690. See Granger v. Dacre, 12 Mees. & Wels. 431; [Nettles v. South Carolina R. R. Co., 7 Rich. 190; Rome Railroad Co. «. Sullivan, 14 Ga. 277; Michigan Central Railroad Co. ii. Ward, 2 Mich. 538; Price v. Powell, 3 Corast. 322; Crawford v. Clark, 15 111. 561 ; Tanner v. Oil Creek Railroad, 53 Penn. St. 411. But in this last case there was a positive contract to give notice.] 2 Gibson v. Culver, 17 Wend. 305, 306. See Eagle v. White, 6 Whart. 505; [Thomas v. Boston & Providence Railroad Co., 10 Met. 472; ante, 446; Ely ». New Haven Steamboat Co., 53 Barb. 215. For such a usage, known to the consignor, has been held a sufficient excuse for non- delivery to the consignee. Farmers' &c. Bank v. Champlain Transpor- tation Co.,16Vt. 52. And the same court held in the same case, in 18 Vt. 131, that knowledge of such usage in the consignor was entirely imma- terial.] { Usage, long established, so as to justify a presumption that both parties knew it, becomes a part of the contract ; and the course of busi- ness at the place of destination may control. Farmers' &c. Bank y. Cham- plain Transportation Co., 23 Vt. 186; Cahn v. Michigan Central R., 71 111. 96; Loveland v. Burke, 120 Mass. 139. } » Golden v. Manning, 3 Wils. 429 ; Garnett v. Willan, 5 Bam. & Aid. 58; Storr v. Crowley, 1 McClel. & Younge, 129, 135, 137; post, § 545 b; [Shenk v. Philadelphia Steam Propeller Co., 60 Penn. St. 116. But where goods are safely conveyed to the place of destination, and the con- signee is dead or absent, or refuses to receive them, or is not known, and cannot after reasonable efforts be found, the carrier may discharge him- self from further responsibility, by placing them in store with some re- sponsible third person at that place, for and on account of. the owner, risk V. Newton, 1 Denio, 45. And see Smith v. Nashua & Lowell Rail- road, 7 Fost. 93; Clendaniel b. Tuckerman, 17 Barb. 184; Hamilton v. Nickerson, 11 Allen, 308; {Kremer v. Southern Ex. Co., 6 Coldw. 520 COMMON CAEEIEES. [CH. VI. § 544. It was said in one case by Mr. Justice Buller, that, when goods are brought into England from foreign countries, they are brought under a bill of lading, which is merely an undertaking to carry them from port to port. A ship, trading from one port to another, has not the means of carrying goods on land ; and therefore, according to the established course of trade, a delivery on the usual wharf is such a delivery as will discharge the carrier. ^ But this language must be un- derstood with the reasonable limitation and qualification, that due and reasonable notice thereof is given to the consignee.^ Where, however, the consignee of goods requires the goods to be delivered to himself on board of the ship, and directs them not to be landed on a wharf, it seems that the master must obey the request ; for the wharfinger has no right to insist upon the goods being landed at his wharf, although the vessel be moored against it.^ § 545. In America, the rule adopted in regard to foreign voyages, although it has been matter of some controversy, seems to be, that in such cases the carrier is not bound to make a pei-sonal delivery of the goods to the consignee ; but it will be sufficient that he lands them at the usual wharf or proper place of landing, and gives due and reasonable notice thereof to the consignee.* The latter is, under such circum- 356. Effort should be made to find the consignee, before the carrier can justify himself in warehousing the goods. Sherman v. Hudson River R. Co., 64 N. Y. 254; The Thames, 14 AA^all. 98.} And if the carrier's charges are all paid by such third person, he cannot afterwards reclaim the goods of such depositary, though the owner never calls for them; certainly not in the absence of any special facts to show that the deposi- tary received the goods as bailee or agent of the carrier, rather than of the owner or consignee. Hamilton v. Niokerson, 11 Allen, 308; s. c. 13 Allen, 351.] |And see Bickford v. MetropoUtan Steamship Co., 109 Mass. 15,1; American Express Co. v. Greenhalgh, 80 111. 68; Great Northern R. Co. v. Swaffield, L. R. 9 Ex. 132.] 1 Hyde v. Trent & Mersey Nav. Co., 5 Term R. 389 ; Abbott on Shipp. P. 3, ch. 3, § 12, 5th edit.; 2 Kent, Comm. Leot. 40, p. 604, 605, 4th edit. ; ante, § 446 to 449, 451 to 453, 535 to 537. 2 Gatliffe v. Bourne, 4 Bing. New Cas. 314, 330, 331. 8 Syeds v. Hay, 4 Term R. 260; Abbott on Shipp. P. 3, ch. 3, § 12, 5th edit. {See Petrocochino v. Bott, L. R. 9 C. P. 355; Wilson v. Lon- don Steam Nav. Co., L. R. 1 C. P. 61.; * 2 Kent, Comm. Lect. 40, p. 604, 605, and note (c), 4th edit. CH. VI.] COMMON CAEEIERS. 621 stances, after such notice, bound to provide suitable persons to take care of the same, and to carry them away.^ The general usage seems, also, to be in conformity to this rule. But it is of the very essence of the rule, that due and rea- sonable notice should be given to the consignee, before or at the time of the landing, and that he should have a fair oppor- tunity of providing suitable means to take care of the goods, and to carry them away.^ And the carrier does not, by sending the goods to the consignee by a carman, without the orders of the consignee, discharge himself from responsibility, even though it is a common practice.-^ If the consignee is unable or refuses to receive the goods, the carrier is not at liberty to leave them on the wharf; but it is his duty to take care of them for the owner.* § 545 a. In this connection, it may be proper to dispose of another point of great practical importance ; and that is, at what time the carrier is bound to make a delivery of the goods. The general answer is, that ^ he is bound to deliver the goods within a reasonable time ; ^ and that reasonable 1 Chickering v. Fowler, 4 Pick. 371 ; Cope v. Cordova, 1 Rawle, 203 ; Kohn V. Packard, 3 Miller (La.), 225. ^ Ostrander v. Brown, 15 Johns. 39; Kohn v. Packard, 3 Miller (La.), 225 ; Pickett v. Downer, 4 Vt. 21 ; Gatliffe v. Bourne, 4 Bing. New Gas. 314, 330, 331, 332; {Morgan v. Dibhle, 29 Texas, 107 ; The Eddy, 5 "Wall. 481. And see Graves ». Hartford Steamboat Co., 38 Conn. 143.} ' Ostrander v. Brown, 15 Johns. 39; 2 Kent, Comm. Lect. 40, p. 604, 605 and note, 4th edit.; [Dean v. Vaccaro, 2 Head, 488.] * Ibid.; Mayell v. Potter, 2 Johns. Cas. 371; Stephenson v. Hart, 4 Bing. 476; Chickering u. Fowler, 4Piok. 371; Copes. Cordova, IRawle, 203; [Crawford «. Clark, 15 111. 561 ;] (The Thames, 14 Wall. 98 ; Col- lins V. Bums, 63 N. Y. 1. Besides providing a place of deposit in such case, the carrier of imported goods should see that the duties are paid. Redmond v. Liverpool Steamboat Co., 46 N. Y. 578. For the excep- tional usage as to certain inland carriers by water, see HemphiU v. Chenie, 6 W. & S. 62; Sultana v. Chapman, 5 Wis. 454.) ^ [Unless exonerated by a special contract. Hughes v. Great Western R. Co., 25 Eng. Law & Eq. 347; 14 C. B. 637; York, &c. R. Co. v. Crisp, 25 Eng. Law & Eq. 396; 14 C. B. 527.] [See post, § 549.} ^ [If he unreasonably delays to transport and deliver the goods, and their value in market meanwhile falls, he is liable for the difference between their market value at the time and place when they ought to have been delivered, and their market value at such place when they were 622 COMMON CAERIEES. [CH. VI. time must depend upon the circumstances of each particular case. If goods are shipped for a voyage by sea, then the delivery is to be within a reasonable time after the arrival of the carrier-ship ; and there is an implied undertaking to speed the ship with reasonable diligence on the voyage.^ If goods are to be transported by land from one place to another, then the goods are to be put upon their transit, and forwarded within a reasonable time, and delivered in the usual time after their arrival. Hence it is, that if, by reason of any accident or mis- fortune, not amounting to an inevitable casualty, or the act of God, or the act of the public enemy, the goods are retarded or obstructed in their transportation, the carrier will not be responsible for damages occasioned by such delay, if he has in fact delivered; and the same rule applies ■whether there was or was not any special contract to deliver thein within any specified time, or whether the goods were or were not intended for any special purpose at any spe- cific time, and although the goods were in fact delivered in as good order as when received. Cutting v. Grand Trunk Railway Co., 13 Allen, 381, where the subject is very thoroughly examined by Gray, J. Although the carrier does not know that the owner intends to sell the goods in market, yet interest on their market value during the time of the delay would not give, or might not give, a just compensation for such delay. See also Sisson v. Cleveland & Toledo Railroad, 14 Mich. 489; Wilson V. Lancashire & Yorkshire Railway Co., 9 C. B. n. s. 632; CoUard v. South Eastern Railway, 7 H. & N. 79; Great Western Railway Co. v. Redmayne, Law Rep. 1 C. P. 329; j Sherman v. Hudson River R., 64 N. Y. 254; Illinois Central R. v. Cobb, 72 111. 148; Hackett v. Boston R., 35 N. H. 390; Peet v. Chicago R., 20 Wis. 594;} AVeston v. Grand Trunk Railway, 54 Me. 376 ; King v. AVoodbridge, 34 Vt. 566. Loss of profits, or expenses caused to the owner by the delay, cannot, as a general rule, be included as damages for the delay. See Woodger v. Great West- ern Railway Co., Law Rep. 2 C. P. 318; Hadley v. Baxendale, 9 Exch. 341; Thayer v. Burchard, 99 Mass. 521; Simmons v. South Eastern Rail- way Co., 7 H. & N. (Am. ed.) 1002; 7 Jur. n. s. 849; Spring v. Haskell, 4 Allen, 112. The case of Black v. Baxendale, 1 P^xch. 410, so far as it sanctions any different doctrine, does not seem to have been approved. {But for the allowance of special damages on the ground that notice of a special purpose was given the carrier, see Home v. Midland R., L. R. 8 C. P. 131; Simpson v. London R. Co., 1 Q. B. D. 274.} How far the damages are for the jury, see Adams v. Midland Railway Co., 31 Law J. Exch. 35; 7 H. & N. 1034 (Am. ed.).J 1 Hand v. Baynes, 4 Whart. 204, 210; Parsons v. Hardy, 14 Wend. 215; Bowman v. Teall, 23 Wend. 306. CH. VI.] COMMON CAEEIEES. 523 used due and reasonable diligence in the transportation.' If, for example, goods are to be transported by a canal from one place to another, and by reason of ice the canal-boat is retarded, or obstructed, or stopped altogether in her passage, the carrier will not be liable for any loss to the shipper occasioned thereby, if he has used reasonable diligence.^ Such an accident may, indeed, if unavoidable, properly be deemed to be the act of God.^ But suppose the canal-boat has been retarded or ob- structed by the giving way of some lock, or by the rupture and 1 Parsons o. Hardy, 14 Wend. 215; [Boner v. Merchants' Steamboat Co., 1 Jones (N. C), 217;] Abbott on Shipp. P. 3, ch. 3, § 1 to 11, 5th edit. ; GatlifEe v. Bourne, 4 Bing. New Cas. 314, .329, 330. See Hand v. Baynes, 4 Whart. 204; Bowman v. Teall, 23 Wend. 306; ante, §511. See also Eagle v. White, 6 Whart. 505. [It has been thought that, if there is no express agreement to trans- port the goods within a specified time, railways are not responsible for delays caused by an accident resulting solely from the negligence of another company which crossed their line. Taylor v. Great Northern Railway Co., Law Kep. 1 C. P. 385. Nor for delays arising from a snow-storm. Briddon v. Great Northern Railway Co., 4 H. & N. (Am. ed.) 847. But see Fenwick v. Schmalz, Law Rep. 3 C. P. 313. Nor for delays in the transportation occurring by an unusual amount of freight, more than sufficient for the capacity of the road to carry. Wibert v. New York & Erie Railroad Co., 2 Kernan, 245; Blackstock v. N. Y. & Erie R., 1 Bosw. 81; Galena Railroad Co. u. Rae, 18 111. 488; Thayer ». Burchard, 99 Mass. 521. See Donohoe v. London & N. W. R. Co., Irish Rep. 1 C. L. 304. Aliter, as to an accumulation of freight on the next line. McLaren v. Detroit, &o. R. Co., 23 Wis. 188. Mere delay in the trans- portation will not make the carrier guilty of a conversion, and so liable for the whole value of the goods, although he may be responssible for damages caused by the delay. Scovill u. Griffith, 2 Kernan, 509; Haw- kins V. Hoflman, 6 Hill, 586 ; ante, p. 521, note (6).] {For his unreason- able delay the carrier must respond in damages. See D'Arc v. London R. Co., L. K. 9 C. P. 324. Reasonable cause of delay will not justify the carrier in non-performance or negligent performance of his duty. Peck v. Weeks, 84 Conn. 145.} 2 Parsons v. Hardy, 14 Wend. 215; Hand v. Baynes, 4 Whart. 204, 210; Bowman v. Teall, 23 Wend. 806; ante, § 511. lAliter, if there was an express contract to deliver by a certain time. Harmony v. Bingham, 1 Duer, 209; s. c. 2 Kernan, 99.] {And see ibid., as to construction of the stipulation to deliver in good order, " the dangers of the railroad, fire, leakage, and all unavoidable accidents excepted." See also The Harri- man, 9 Wall. 161 ; Knowles v. Dabney, 105 Mass. 437. } 8 Ibid. {See Michigan Central R. v. Curtis, 80 111. 324.} 524 COMMON CAEEIEES. [CH. VI. ■ letting off of the water in some part of the canal, or by running against a scow, and being compelled to stop to make repairs, so that she has lost her usual trip, or the trip for the season ; in such a case, the cai-rier will not be liable for any damages or losses occasioned to the shippers thereby, if the goods finally arrive in safety, unless he is guilty of some negli- gence.^ Neither will he be obliged to send on the goods at his own expense by a land conveyance in such a case. In short, as to the time of delivery, common carriers stand upon the same ground as ordinary bailees for hire. They may ex- cuse delay in the delivery of goods by accident or misfor- tune, although not inevitable, or produced by the act of God. It is sufficient, if they exert due care and diligence to guard against delay, and the goods are finally delivered in safety.^ § 545 6. Care must also be taken to deliver the goods to the right person, as well as at the proper time, and at the proper place. For if the delivery be by the carrier to a wrong person, although it may have been made by his own innocent mistake, or by his being imposed upon, he will be liable to the true owner for the whole value of the goods so lost. Indeed, such a wrongful delivery is in the common law treated as a conversion of the propertJ^^ 1 Parsons v. Hardy, 14 Wend. 215; Hand v. Baynes, 4 Whart. 204, 210. ° Parsons v. Hardy, 14 Wend. 215. {The carrier should deliver ■within a reasonable time after the cause of detention is removed. Lowe ». Moss, 12 111. 477. What is a proper business day for making deliv- ery, and what are suitable hours, must depend largely upon local usage. See Richardson v. Goddard, 23 How. 28; Sleade v. Payne, 14 La. Ann. 453; Marshall v. Am. Express Co., 7 Wis. 1; Merwin v. Butler, 17 Conn. 138 ; Stollard v. Great Western R., 2 Best & S. 419. } 8 Stephenson b. Hart, 4 Bing. 476 ; Duff u. Budd, 3 Brod. & Bing. 177; Youl V. Harbottle, Peake, 149 ; Devereux v. Barclay, 2 Barn. & Aid. 702; [Claflin v. Boston & Lowell Railroad Co., 7 Allen, 341;] Stephens V. El wall, 4 Maule & Selw. 259; ante, § 450, 543; post, § 570; Powell v. Myers, 26 Wend. 591, 695; [The Huntress, Daveis, 82; Logan v. Pont- chartrain Railroad Co., 11 Robinson (La.), 24; Winslow u. Vt. & Mass. Railroad, 42 Vt. 700;] {The Thames, 14 Wall. 98; Collins v. Burns, 63 N. Y. 1 ; Southern Express Co. u. Dickson, 94 U. S. Supr. 549 ; Ala- CH. VI.] COMMON CAEEIEES. 525 § 546. Cases may often occur, where a person is at once a carrier of goods, and an agent or factor for the sale of them ; and the inquiry may present itself, when, under such circum- stances, his liability as carrier terminates.^ Suppose the owner of a ship is master, and also is consignee of the goods of shippers which are put on board for sale : when do his right and responsibility commence and terminate in each ca- pacity? It has been decided, that during the voyage he retains the character of owner and master ; and of course during the voyage he is responsible as carrier.^ But after his arrival at the port of destination, and the landing of the goods there, it would seem that his duty as carrier is at an end. Suppose a case in which the master is consignee, and not owner of the goods : is the owner of the ship, as carrier, responsible for the acts of the master after the landing of the goods at the port of destination, either before or after the sale ? If by the course of a particular trade, or the dealings between the particular parties, it is the usage for the master to take the consignment of the goods shipped, and to sell the same, and to receive, on behalf of the owner of the ship, a compensation for the whole service in the name of freight, which compensation is divisible between the owner and the master, according to their own private agreement : in such a case, the owner of the ship may be responsible for the acts of the master throughout ; because the latter, in such a case, acts as his agent ; although it might be other- wise, if the master acted as factor solely for the shipper, and received a distinct compensation from him. But in such a case, the owner of the ship would seem to be liable, not in bama R. v. Kidd, 35 Ala. 209; M'Kean v. M'lvor, L. R. 6 Ex. 36. As to misdescription of the true consignee in the bill of lading, see Dunbar V. Boston & Providence R., 110 Mass. 26; Odell v. Boston & Maine R., 109 Mass. 50. The indorsee under a bill of lading may be the rightful con.signee. Alderman v. Eastern R., 115 Mass. 233. Delivery on a forged order does not discharge the carrier. American Merchants' Ex. Co. V. Milk, 73 111. 224.} 1 See ante, § 446 to 449, 451 to 453, 535 to 537. 2 Kendrick v. Delafield, 2 Cain. 67; Cook v. Com. Ins. Co., 11 Johns. 40; Earle v. Rowcroft, 8 East, 126, 140; Crousillat v. Ball, 4 Dall. 294. 526 COMMON CAEEIEES. [CH. VI. the character of a common carrier, but merely as a factor ; and the responsibility of the one is (as we have seen) mate- rially different from that of the other.^ § 547. The case of Kemp v. Coughtry ^ may seem to coun- tenance a different doctrine. There the master of a coasting vessel was emploj'ed to carry goods from Albany to New York, and the usual course of the trade was, for the master to sell the goods at New York, without charging any thing more than the ordinary freight, and to account to the owner of the goods for the proceeds, and not to the owners of the vessel. The master, after receiving the goods, carried them to New York, and sold them there ; and brought the money (the proceeds of the sale) on board, and put it into his trunk ; and he and his crew having left the vessel a short time after, locking the cabin, upon his return the cabin and trunk were found broken open and the money stolen. It was resolved, upon this state of facts, that the owners (the master being one) were responsible for the loss. The Court appear to have treated the case as one arising against them solely in the character of common carriers. The reasoning was, that the money, when on board, was to be considered exactly the same as a return cargo, purchased with the proceeds of the goods ; and in such a case it would be clear, that the liability of common carriers would attach on the owners. § 548. But, upon the actual posture of the facts in that case, the very question was, whether the specific money on board was to be treated as cargo, or was to be carried back for hire ; and whether the master was bound to carry back the specific mone}^ received by him, or was only bound to pay over and account to the shipper for the amount and value of the proceeds in any money whatsoever. Now, it is certainly no part of the duty of a common carrier to sell goods, and to ' Emery v. Heraey, 4 Greenl. 407; Kemp v. Coughtry, 11 Johns. 107; Kendriok v. Delafield, 2 Cain. 67; Abbott on Shipp. P. 2, ch. 2, § 10, p. 98, n. (3), Amer. edit. 1829; Id. P. 2, ch. 4, § 3, p. 134, n. (1), Amer. edit. 1829; ante, § 444, 446 to 449, 451 to 453, 455, 535 to 537. {And see Labar v. Taber, 35 Barb. 305. } 2 11 Johns. 107. OH. VI.] COMMON CABEIEKS. 52T account for the proceeds. If he sells, it is not as a carrier, but as a factor. The owners of the vessel naay be liable for his acts as factors, if the course of trade makes him their agent in the business of selling. But when there is a right delivery of the goods at the place of destination, the duty of the carrier, as such, would seem to cease, and the duty of factor to com- mence. If the specific money received, or any other goods bought with it, are to be returned in the same vessel to the original port, and the freight paid contemplates that course of trade, then, as soon as the goods or money are put on board for the purpose of the return carriage, the liability of the car- rier certainly re-attaches. But the evidence in the case went to show, not that there was to be any such return of the par- ticular money or goods in the vessel, but merely that there was a liability of the master to account for the proceeds to the owners of the goods, and not to the owner of the vessel. Perhaps the application of the law to the facts, rather than the law itself, as laid down in the case, would deserve further consideration.! § 549. Fifthly. We come next to consider the efPect of special contracts and notices of carriers. It was formerly a question of much doubt, how far common carriers on land could by contract limit their responsibility, upon the ground, that, exercising a public employment, they are bound to carry for a reasonable compensation, and have no right to change their common-law rights and duties.^ And it was said, that, like innkeepers, they are bound to receive and accommodate all persons, as far as they may, and cannot insist upon special and qualified terms. The right, however, of making such qualified acceptances by common carriers seems to have been asserted in early times. Lord Coke declared it in a note to Southcote's case ; ^ and it was admitted in Morse v. Slue.* It is now fully recognized, and settled beyond any reasonable 1 See Allen v. Sewall, 2 Wend. 327; s. c. 6 Wend. 363. 2 2 Kent, Comm. Lect. 40, p. 605-607, 4th edit.; 1 Bell, Coram. 472, 473, 5th. edit.; 1 Bell, Comm. §404, 4th edit.; Beckman v. Shouse, 5 Rawle, 179, 189 ; post, § 554. 8 4 Co. Kep. 84. * 1 Vent. 238. 528 COMMON CAEBIERS. [CH. VI. doubt, in England.^ Still, however, it is to be understood, that common carriers cannot by any special agreement exempt themselves from all responsibility, so as to evade altogether the salutary policy of the common law. They cannot, there- fore, by any special notice, exempt themselves from responsi- bility in cases of gross negligence,^ or fraud ; or, by demanding an exorbitant price,^ compel the owner of the goods to yield to unjust and oppressive limitations and qualifications of his rights.^ The carrier will also be equally as liable in case of 1 [In Peek v. North Staffordshire Railway Co., 10 H. L. C. 494, Black- burn, J., said of the above passage : " So far I think this, according to the decisions subsequent to 1832, still remained law in 1854, when the Railway and Canal Traffic Act was passed." See Austin v. Manchester, &c. Railway Co., 10 C. B. 454;] Nicholson v. Willan, 5 East, 507; Clay V. Willan, 1 H. Bl. 298; Harris v. Packwood, 3 Taunt. 264; Evans w. Soule, 2 M. & Selw. 1; Smith v. Home, 8 Taunt. 146; Batson v. Dono- van, 4 Barn. & Aid. 89 ; Riley v. Home, 5 Bing. 217 ; Bodenham v. Ben- nett, 4 Price, 34; Down v. Fromont, 4 Camp. 41 ; post, § 554 ; [Peninsular Steam Navigation Co. v. Shand, 3 Moore, P. C. n. s. 272. And it is now the admitted doctrine in America, that it is competent for a car- rier, by an express contract, to limit in some degree his common-law lia- bility. York Co. V. Central Raih-oad Co., 3 Wall. 107; Judson v. Western Railroad Co. , 6 Allen, 486 ; Squire v. N. Y . Central Railroad Co., 98 Mass. 239; Parsons v. Monteath, 13 Barb. 358; Moore v. Evans, 14 Barb. 524; Dorr v. N. J. Steam Navigation Co., 1 Kernan, 485; Stod- dard u. Long Island Railroad Co., 5 Sandf. 180; Kimball v. Rutland & Burlington Railroad Co., 26 Vt. 247; Swindler v. Billiard, 2 Rich. 286; Davidson v. Graham, 2 Ohio St. 131. And on the same ground, if an owner of goods send them by an express messenger, and that express messenger make a special contract with the carrier, in its nature a valid one, the owner of the goods is bound by this special contract, or in other words, the obligations of the carrier are limited by this special contract, even in an action by the owner. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. (U. S.) 344.] 1 [Or want of skill. Graham v. Davis, 4 Ohio St. 362.] ^ [Crouch J). Great Northern Railway Co., 11 Exch.742; Piddington V. South Eastern Railway Co., 5 C. B. n. s. Ill; Baxendale v. Great Western Railway Co., 5 C. B. n. s. 309. See ante, § 508, note (3).] ' Jones on Bailm. 48; Doct. & Stud. Dial. 2, ch. 38; Noy, Maxims, ch. 43, p. 93; Lyon v. Mells, 5 East, 430, 438; Harris v. Packwood, 3 Taunt. 264, 272; Rex v. Kilderby, 1 Saund. 312 b, Williams's note (2); Batson v. Donovan, 4 Barn. & Aid. 21, 32; Hyde u. Trent, &c. Nav. Co., 1 Esp. 36; Maving v. Todd, 1 Stark. 72; Bodenham v. Bennett, 4 Price, 34; Brooke v. Pickwick, 4 Bing. 218. CH. VI.] COMMON CAEEIEES. 629 the fraud or misconduct of his servants, as he will be in case of his own personal fraud or misconduct.^ ' Ellis V. Turner, 8 Term R. 531; Garnett v. Willan, 5 Barn. & Aid. 57; ante, § 507. [In Peek v. North Stafiordshire Railway Co., 10 H. L. C. 473, 494, Blackburn, J., says : " In my opinion, the weight of author- ity was, in 1832, in favor of this view of the law ; but the cases decided in our courts between 1882 and 1854, estaljlished that this was not the law, and that a carrier might, by a special notice, make a contract limit- ing his re.sponsibility even in the cases here mentioned of gross negligence, misconduct, or fraud on the part of his servants; and as it seems to me, the reason why the legislature intervened in the Railway and Canal Traffic Act, 1854, was because they thought that the companies took advantage of those decisions (in Story's language) , ' to evade altogether the salutary policy of the common law.' " See farther on this point, Allday v. Great Westera Railway Co., 11 Jur. n. s. 12; McManus v. Lancashire & Yorkshire Railway Co., 4 H. & N. 327. I. Thb English Doctrine. — The modern English cases declared that it was competent for a carrier in England, even since the passage of the Carriers' Act, to make an actual special contract which should shield him from the consequences of his own " gross negligence." And if the con- signor sign a contract declaring that he " undertakes all risks of convey- ance whatsoever, and that the company will not be responsible for any injury or damage, howsoever caused, occurring to live-stock travelling on their railway," such a contract has been held to exonerate the carrier from a loss arising from gross negligence. Carr v. Lancashire & Yorkshire Railway Co., 14 Eng. Law & Eq. 340 ; s. c. 7 Exch. 707, a very strong case. See also McManus v. Lancashire & Yorkshire Rail- way Co., 2 Hurl. & Norm. 693. The Court of^ommon Pleas have adopted and acted upon the same principle. Austin *. Manchester, Sheffield, &c. Railway Co., 11 Eng. Law & Eq. 506; 8. c. 10 C. B. 454. And the Court of Queen's Bench on {nearly} the same day arrived at the same conclusion in another case. Morville v. Great Northern Rail- way Co., 10 Eng. Law & Eq. 366. Previous intimations of such an opinion may also be found in Owen v. Burnett, 2 Cr. & Mees. 353 ; 8. c. 4 Tyrwh. 133, as early as 1834; more fully adopted in 1842, in the case of Hinton v. Dibbin, 2 Q. B. 646, before the Queen's Bench. So far was this carried in England that it was even held, that, if it be proved that a notice exempting the carrier had been actually served on the con- signor, he would be bound by its terms, exempting the carrier from all liability, even if, at the time of forwarding the goods, he protested against the terms of such notice. Walker v. York & North Midland Railway Co., 2 El. & Bl. 750. But the most usual mode was to require the con- signor to sign a memorandum, or ticket, containing such stipulation. See instances in Shaw v. York & North Midland Railway Co., 13 Q. B. 347; Austin v. Manghester, Sheffield, & Lincolnshire Railway Co., 16 34 530 COMMON CAEKIEES. [CH. VI. § 550. In respect to carriers by water, and especially to carriers by sea on foreign voyages, there has prevailed from a Q. B. 600 ; Chippendale v. Lancashire & Yorkshire Railway Co., 21 Law J. Q. B. 22; Great Northern Railway Co. v. Morville, 21 Law J. Q. B. 319; Hughes v. Great Western Railway Co., 14 C. B. 637; Alex- ander V. Malcomson, Irish Rep. 2 C. L. 621 ; Rooth v. North Eastern Railway Co., Law Rep. 2 Exch. 173; Peek v. North Staffordshire Rail- way Co., 10 H. L. C. 473. These English decisions produced so much dissatisfaction as to lead to the passage, in 1854, of the Railway and Canal Traffic Act, 17 & 18 Vict. ch. 31, {§7,} which made {railroad and canal companies doing a carrier business} liable for the neglect or default of the company or its servants, notwithstanding any notice, condition, or declaration to the contrary ; but which allowed a company to make such conditions as to carrying and delivering goods as the court should judge to be " just and reasonable." But whether a valid contract can or can- not be made, in positive terms exempting a carrier from liability for his own negligence, it is clear that a mere stipulation that he " accepts no responsibility" for the goods does not protect him, if they are lost or misdelivered through his negligence. Martin v. Great Indian Peninsular Railway Co., Law Rep. 3 Ex. 9.] {Some of the latest cases seem to admit that the carrier, notwithstanding the above statute, may so stipu- late with the consignor of goods as to exempt himself from liabiUty for his own negligence. See McCawley v. Furness R. Co., L. R. 8 Q. B. 57; Gallin v. London R. Co., L. R. 10 Q. B. 212. And see Scaife e. Farrant, L. R. 10 Ex. 358. But those cases are not decisive on this point. On the other hand, the use of equivocal expressions — " at owner's sole risk," for instance — is held not to relieve the carrier abso- lutely; and it would appear, at least, that the clearest language must be used to exempt the carrier altogether. See D'Arc v. London, &c. R. Co., L. R. 9 C. P. 325; Mitchell v. Lancashire R. Co., L. R. 10 Q. B. 256; Taylor v. Liverpool Steam Co., L. R. 9 Q. B. 546; Martin v. Great Indian R., L. R. 3 Ex. 9; Steel v. State Line Steamship Co., 3 App. D. (H. L. So.) 72. Ssenpost, § ,573, notes.} [II. The American Doctrine. — The American courts have, with great unanimity, declared that carriers ought not to be allowed, by a special contract, to discharge themselves from loss by their own negli- gence or fraud. Reno v. Hogan, 12 B. Monr. 63; Swindler v. Hill- iard, 2 Rich. 2b0 ; Slocum v. Fairchild, 7 Hill, 292; New Jersey Steam Nav. Co. V. Merchants' Bank, 6 How. (U. S.) 344 ; Wells v. Steam Nav. Co., 4 Seld. 375; Squire v. N. Y. Central Railroad Co., 98 Mass. 239; Camden, &c. Railroad Co. v. Baldauf, 16 Penn. St. 67 ; Sager v. Ports- mouth Railroad Co., 31 Me. 228; Davidson v. Graham, 2 Ohio St. 131; 4 Ohio St. 362; Powell v. Pennsylvania Railroad, 32 Penn. St. 414; Welsh V. Pittsburgh Railroad, 10 Ohio St. 64, and many other oases.] {It is well settled in this country that carriers may stipulate for a less CH. TI.J COMMON CAERIEES. 581 very early period a practice of accompanying the shipment with a bill of lading, which specifies the risk from which the degree of responsibility than the common law imposes; and our courts differ only as to the extent to which, under such stipulations, public policy will allow the stringency of the ancient rule to be relaxed. A special contract whose effect is not to exempt the carrier from the conse- quences of his own fraud or negligence is everywhere held good, provided the assent of both carrier and consignor appear. York Co. ». Central K. Co., 3 Wall. 107; Hooper v. Wells, 27 Cal. 11; Camp v. Hartford Steam- boat Co., 43 Conn. 333; Field v. Chicago, &e. R., 71 111. 458; Rice v. Kansas Pacific R., 63 Mo. 314; Express Co. v. Caldwell, 21 Wall. 264. On the other hand, it has been repeatedly declared that the only effect of a special contract is to relieve the carrier from the liabilities imposed by the common law where he and his servants are free from negli- gence or misconduct. Reno v. Hogan and other cases supra; Union Express Co. v. Graham, 26 Ohio St. 595; Railroad Co. v. Lockwood, 17 Wall. 357; Snider ». Adams Express Co., 63 Mo. 376; Mann v. Birch- ard, 40 Vt. 326; post, § 570. Within such limits there is some variation in the decisions. The courts of some States appear to regard the car- rier's attempt to limit his responsibility with increasing favor. Kirkland V. Dinsmore, 62 N. Y. 171; Camp v. Hartford Steamboat Co., 43 Conn. 333. But in other parts of the country are intimations that the carrier has been sufficiently indulged, and that the ancient rule ought not to be relaxed farther for his convenience. Gaines v. Union Trans. Co. , 28 Ohio St. 418; Railroad Co. v. Manufacturing Co., 16 Wall. 318; Kansas Pacific R. V. Reynolds, 17 Kansas, 251; McDaniel v. Chicago R., 24 Iowa, 412. It is now generally agreed that a carrier may, by an actual special contract to that effect, clearly made, protect himself from a loss by fire, happening without his fault. York Co, v. Central Railway, 3 Wall. 107; Pemberton Co. v. N. Y. Central R., 104 Mass. 144. And see Grace v. Adams, 100 Mass. 505. But for fire occasioned by his negligence or misconduct he is held liable. Powell v. Penn. R., 32 Penn. St. 414 ; Erie Railway v. Lockwood, 28 Ohio St. 358; Bank of Kentucky v. Adams Express Co., 93 U. S. Supr. 174; Hibler w. McCartney, 31 Ala. 501.} [And in America it has been held that a contract by which a consignor of cattle agrees to take the risk of injuries to the animals "inconse- quence of heat, suffocation, or being crowded," is not invalid. Squire v. N. Y. Central R., 98 Mass. 230, where an excellent judgment was given by Gray, J.; Bissell v. N. Y. Central R., 25 N. Y. 442; Kimball v. Rut- land R., 26 Vt. 247.] { Such a contract will not exempt the carrier from injuries or loss to animals arising from his own gross negligence. See Illinois Central R. v. Adams, 42 111. 474; Clark v. St. Louis, &c. R., 64 Mo. 440 ; Kansas Pacific R. v. Reynolds, 17 Kansas, 251; Gill v. Manches- ter R., L. R. 8 Q. B. 186; Hawkins v. Great Western R., 17 Mich. 57. So a carrier cannot stipulate absolutely against " all damages that may 532 COMMON CAEEIBKS. [CH. VI. carrier is to be exempted. He engages, according to the old form of the bill of lading, to make a right delivery of the goods, " the dangers of the seas only excepted." It is observable, that the acts of the king's enemies are not included in the exception ; ^ and, therefore, a question has arisen, how far the express exception of the perils of the sea excludes the other exception of the common law, the acts of the king's enemies, upon the well-known maxim, " Expressio unius est exclusio alterius." ^ But the point has hitherto been left undecided in England.^ We have, however, seen that a loss by pirates is happen;'' against "breakage;" and the like. Reno v. Hogan, 12 B. Monr. 63; Sager v. Portsmouth R., 31 Me. 228. As to his right of thus hmiting absolutely the value for which he shall be accounta- ble to a certain amount, which, within reasonable limits, appears justi- fiable, see United States Express Co. v. Backman, 28 Ohio St. Hi; Hopkins v. Westcott, 6 Blatchf . 64 ; Squire v. N. Y. Central R. , 98 Mass. 239. See also Dunlap v. International Steamboat Co., 98 Mass. 371. As to putting special burdens upon the consignee in the time or method of claiming damages, see Rice o. Kansas Pacific R., 63 Mo. 314; Kan- sas Pacific R. V. Reynolds, 17 Kansas, 251 ; Adams Express Co. v. Reagan, 29 Ind. 21. A reasonable limit may be set. Express Co. v. Caldwell, 21 Wall. 264. But see Southern Ex. Co. v. Caperton, 44 Ala. 101. A receipt "in good order " does not bind as a contract, but is prima facie evidence of the condition of the goods. Tierney v. N. Y. Central R. , 17 N. Y. Supr. 569; JSTelsou v. Woodruff, 1 Black, 156. See Tarbox v. Eastern Steamboat Co., 50 Me. 339; Illinois Central R. v. Cobb, 72 111. 148. Qualifying exjiressions, such as " more or less," or " weight, value, and contents unknown," are often used. See Clark v. Barnwell, 12 How. 272; Shepherd v. Naylor, 5 Gray, 591; Kelley v. Bowker, 11 Gray, 428; Jessel V. Bath, L. R. 2 Ex. 267; Lebeau v. General Steam Nav. Co., L. R. 8 C. P. 88. A carrier's liabiUty for the negligence of his servants, notwithstanding a special contract, applies to another carrier who acts as his agent. Bank of Kentucky v. Adams Express Co., 93 U. S. Supr. 174. Cf. Merchants', &c. Co. v. BoUes, 80 111. 473.} 1 Abbott on Shipp. P. 3, ch. 2, § 3, 5th edit. 2 Bever v. Tomlinson, cited in Abbott on Shipp. p. 386, 5th Am. edit.; ante, § 3.5, 36, 510, 512, 526. 8 Ante, § 512. In Williams u. Grant, 1 Conn. 487, 492, Gould, J., held that common carriers were not liable for losses by perils of the seas, whether the bill of lading contained any exception or not. The same point was affirmed by the whole court in Crosby v. Fitch, 12 Conn. 410. [And carriers generally are not liable for loss by inevitable accident, whether that exception be, or be not, expressed in the bill of lading. CH. VI.] 'COMMON CAEEIEES. 533 deemed a peril of the seas ; and that furnishes one strong analogy in regard to captures by enemies.' In England the form of the bill of lading has latterly been changed, and the exception now is in the following terms : " The act of God, of the king's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, save risks of boats, as far as ships are liable thereto, excepted."^ In America it is believed that the old form of the bill of lading prevails to a great extent, although not universally in practice.^ § 551. In respect to special contracts, they may be divided into two classes : first, such as are express ; secondly, such as are implied.^ The latter class is the most frequent in cases Morrison v. Davis, 20 Penn. St. 171.] {And see Camp v. Hartford Steam- boat Co., 43 Conn. 333.} 1 Abbott on Shipp. P. 3, ch. 4, § 2-4, 5th edit. ; ante, § 512. 2 Abbott on Shipp. P. 3, ch. 2, § 3, 5th edit. ; Id. ch. 4, § 1, and note (f). It has been decided under this last form, that, if goods are lost by the perils of the sea, while going on shore in the ship's boat at the port of destination, the carrier is not liable for the loss, as the saving clause only extends to the same risks as if the goods were on board the ship. Johns- ton V. Benson, 1 Brod. & Bing. 454. {For construction of a bill of lad- ing which specially excepts from loss by " thieves," " barratry," and " damage to goods which can be insured against," see Taylor u. Liverpool Steam Co., L. R. 9 Q. B. 546; Grill u. General Steam Nav. Co., L. R. 1 C. P. 600. As to " restraint of princes," see Rodocanachi v. Elliott, L. R. 8 C. P. 649. } 2 {See ante, § 549, notes. It is the bill of lading delivered to the shipper, not that retained by the ship, that governs in case of discrepancy. The Thames, 14 Wall. 98. } [A stipulation in a bill of lading, that the ship-owner is " not accountable for leakage or breakage," does not exempt him from liability for a loss by these means, arising fromhis own gross negligence. Phillips v. Clark, 2 C. B. n. s. 156. See ante, § 549, notes; OhrloS v. Briscall, Law Rep. 1 P. C. 231 ; Czech v. General Steam Navigation Co., Law Rep. 3 C. P. 14; Peninsular Steam Navigation Co. V. Shand, 3 Moore, P. C. n. s. 272; Lloyd «. General Iron Screw Co., 3 H. & C. 284.] * { Mutual assent is a material element in all such contracts, whether of the one class or the other. Where the person sending the goods could not read, and he was induced to sign the special contract under the belief that his signature was of no consequence, but a mere matter of form, it was held that the special contract was invalid and that the carrier was still liable as at comipon law. Simons v. Great Western R. Co. , 2 C. B. 534 COMMON CAEEIEES. ' [CH. VI. of the carriage of goods on land. Special contracts sometimes arise from the particular dealing between the parties, either N. s. 620. The contract should not be expressed in an unknown lan- guage. Camden Railroad Co. v. Baldauf, 16 Penn. St. 67. And if the goods were delivered by the consignor's agent, it may be a question whether he had authority to bind his principal to a qualified contract. Fillebrown v. Grand Trunk K. Co., 55 Me. 462. Nor, after the contract has once been entered into, can the carrier by subsequent notice limit his responsibility ; for mutual assent alone can qualify the original agreement. See Buckland v. Adams Express Co., 97 Mass. 124; Gaines v. Union Trans. Co., 28 Ohio St. 418; Gott v. Dinsmore, 111 Mass. 45; Strohn v. Detroit R. Co., 21 Wis. 554. In other words, the fundamental law of contracts must operate. The chief difficulty arises from the prevalent use of printed or written receipts, bills of lading, tickets, and the like, which the carrier alone issues, requiring the consignor to sign nothing on his part, but leaving him to find from inspection that the carrier intends to perform the business with a qualified responsibility. Here the main question is whether, under all the circumstances, theconsignormust beheld to have understood the carrier's notice, and to have given his assent to the special terms of that notice. Receiving without objection, before the goods are sent, a bill of lading which contains stipulations for the carrier's qualified responsibility has been held sufficient to bind the consignor, even though he did not in fact read it. Grace v. Adams, 100 Mass. 505; Squire v. N. Y. Central R. Co., 98 Mass. 248; Kirkland v. Dinsmore, 62 N. Y. 171; Toledo R. V. Roberts, 71 111. 540. But see Strohn ». Detroit R. Co., 21 Wis. 554. Whether this holds equally true of express receipts as of railway bills of lading may be doubted. American Express Co. v. Schier, 55 111. 140; Southern Express Co. v. Newby, 36 Ga. 635; Belger V. Dinsmore, 51 Barb. 69; Adams Express Co. v. Haynes, 42 111. 89. But while such may be the usual course of business where a carrier receives goods for transportation, it is somewhat different with a passen- ger who buys a ticket and receives a check or receipt for his baggage. Mutual assent to a special contract qualifying the carrier's liability for baggage is not so readily inferred. Blossom v. Dodd, 43 N. Y. 264 ; Woodruff V. Sherrard, 16 N. Y. Supr. 322. Stipulations qualifying the carrier's responsibility cannot take effect if printed or written on the back of the bill of lading, receipt, or ticket; unless it appears affirmatively that the consignor's attention was in some way called to the same, so that his assent extended to both sides. Newell v. Smith, 49 Vt. 255; Brown v. Eastern R. Co., 11. Cush. 97; Malonei;. Boston & Worcester R., 12 Gray, 388 ; Railroad Co. v. Manufacturing Co., 16 Wall. 318. Such, too, appears to be the English rule. Henderson v. Stevenson, L. R. 2 H. L. Sc. 470; Parker v. South Eastern R., 1 C. P. D. 618; s. c. on appeal, 2 C. P. D. 416 (1877); Harris v. Great Western R. Co., 1 Q. B. D. 515. Qualifi- CH. VI.] COMMON CAREIEES. 535 generally, or in the given case ; sometimes from the general course of trade or business ; and sometimes, and most usually, from the public advertisements and notices given by carriers, stating the terms and limits of their responsibility.^ cations, to take effect, should in general be legibly expressed. Brittan v. Barnaby, 21 How. 527; Perry u. Thompson, 98 Mass. 249. All devices of carriers tending to impose upon consignors, such as printing the general objects of the transportation in large letters, and the restrictions in small, or inserting qualifications where they do not readily attract attention, are discouraged by the best decisions; and this more especially in the transpor- tation of baggage. See Verner v. Sweitzer, 32 Penn. St. 208 ; Nevins v. Bay State Steamboat Co., 4 Bosw. 225; Blossom v. Dodd, 43 N. Y. 264. In some States, indeed, legislation tends to sweep out printed restrictions altogether as to certain classes of carriers. See Brush v. S. A. & D. R. Co., 43 Iowa, 554. Public notices, it may be added, as by general advertisement or posters, are not favored in this country, so far as the carrier may thereby seek to limit his responsibility ; even a public notice brought to the knowledge of the owner of the goods has been in many cases treated as ineffectual ; and the rule is to require at all events evidence aliunde of the owner's assent to the qualified liability sought by the carrier under such public notice. Michi- gan Central R. Co. v. Hale, 6 Mich. 244; New Jersey Steam Nav. Co. V. Merchants' Bank, 6 How. 344; Moses v. Boston & Maine Railroad, 4 Fost. 71; Kimball v. Rutland & Burlington R., 26 Vt. 247, 256; Jones V. Voorhees, 10 Ohio, 145; Davidson v. Graham, 2 Ohio St. 131 ; Judson V. Western R. Co., 6 Allen, 492; Blossom v. Dodd, 48 N. Y. 264. In England, however, some of the common-law cases appear to relax the rule in this respect considerably farther. Van Toll v. South Eastern R. Co., 12 C. B. N. s. 75; Walker v. York & North Midland R., 2 El. & Bl. 750; Stewart v. London, &c. R. Co., 3 H. & C. 135; Phillips v. Edwards, 3H. &N. 813.} ' [Whether the facts proved or admitted to exist constitute a special contract or not, is a question of law, and not of fact for the jury. Kim- ball V. Rutland & Burlington Railroad Co., 26 Vt. 247. {But see Field v. Chicago R., 71 111. 458.} Wherever a special contract exists, changing the character of a carrier from a common to a private carrier, the latter cannot be declared against as a common carrier, but the action must be on a special contract, or for a breach of duty, arising out of such contract. Kimball v. Rutland & Burlington Railroad Co., 28 Vt. 247; Shawu. York & N. Midland Railway Co., 13 Q. B. 347; Austin v. Manchester, &c. Railway Co., 10 C. B. 454; Crouch v. London & North Western Railway Co., 7 Exch. 705. {But see Clark v. St. Louis R. Co., 64 Mo. 440.} And if the declaration in such case set forth only the general liability of the defendant as a common carrier, the variance is fatal. Davidson v. Gra- ham, 2 Ohio St. 131; Fowles v. Great Western Railway Co., 7 Exch. 699; B. c. 16 Eng. Law & Eq. 531.] 536 COMMON CAEEIERS. [CH. VI. § 552. Few questions have arisen upon the interpretation of express contracts entered into by parties for the transpor- tation of goods. The terms of the exception in the modern bill of lading in England (it has been remarked in Lord Ten- terden's Treatise on Shipping^), have given rise to but one judicial decision. In a contract by a bill of lading, however, it furnishes no excuse to the carrier, that the goods have been seized for a violation of the revenue laws, unless that seizure is in fact for a legal cause of forfeiture.^ § 558. Many of the questions which of late years have en- gaged the attention of courts of justice have been upon the validity, obligation, and effect of the notices given by com- mon carriers and others in the course of their business. Upon this subject it will be proper to bestow a particular examination. § 554. First, then, as to the validity of notices by com- mon carriers. Mr. Chief Justice Best, in the judgment already alluded to,^ expressed a strong opinion in favor of their validity, and of the reasonableness of giving them full effect. After adverting to the fact, that the common law makes them liable for every loss, except by the act of God and the king's enemies, he proceeded to say : " As the law makes the carrier an insurer, and as the goods he carries may be injured or destroyed by many accidents, against which no care on the part of the carrier can protect them, he is as much entitled to be paid a premium for his insurance of their deliv- ery at tlie place of their destination, as for the labor and expense of carrying them there. Indeed, besides the risk that he runs, his attention becomes more anxious, and his journey more expensive, in proportion to the value of his load. If he has things of great value contained in such small packages as to be objects of theft or embezzlement, a strong and more vigilant guard is required, than when he carries articles not easily removed, and which offer less temptation to dishonesty. He must take what is offered to him, to carry to the place to which he undertakes to convey goods, if he has room for it in 1 Abbott on Shipp. P. 3, ch. 4, § 1, 5th edit. - Gosling V. Higgins, 1 Camp. 451. 5 Riley v. Home, 5 Bing. 217; ante, § 491. CH. VI.] COMMON CAEEIEES. 637 his carriage. The loss of one single package might ruin him. By means of negotiable bills, immense value is now compressed into a very small compass. Parcels containing these bills are continually sent by common carriers. As the law compels carriers to undertake for the securitj' of what they carry, it would be most unjust, if it did not afford them the means of knowing the extent of their risk. Other insurers, whether they divide the risk, which they generally do, amongst several different persons, or one insurer undertakes for the insurance of the whole, always have the amount of what they are to answer for specified in the policy of insurance." ^ On the other hand, Mr. Bell in his Commentaries has presented an elaborate argument against the validity of these notices, and upon the inconveniences to which they give rise. His remarks will be found worthy of a perusal by every lawyer who desires to examine the subject with philosophical accu- racy.^ However, the validity of these notices seems now established in England beyond all controversy in the common law, although many learned judges have expressed some regret that they were ever recognized in Westminster Hall.^ 1 Riley v. Home, 5 Bing. 217, 220, 221. See also Lord Ellenborough's remarks in Leeson v. Holt, 1 Stark. 187. See also Smith on Merc. Law, B. 3, ch. 2, p. 233 to 238, 2d Lend. edit. 1838 ; [p. 284 to 291 , 5th Lond. ed. 1855.] 2 1 Bell, Comm. p. 473 to 475, 5th edit.; 1 Bell, Comm. § 404, 4th edit. See also The Schooner Reeside, 2 Sumner, 567, 575. ' Ante, § 549. In New York the question has received a most elabo- rate discussion; and it has been by a series of adjudications decided, that such notices, and even a special contract between the parties, cannot avail to change or vary the common-law responsibility of common carriers ; for all such notices and special contracts are against the policy of the law, and therefore are utterly void. The whole subject underwent a careful consideration in the recent cases of Hollister u. Nowlen, 19 Wend. 234, and Cole v. Goodwin, 19 Wend. 251, which deserve the most attentive consideration of the learned reader. Those were actions against stage- coach proprietors, as common carriers, for a loss of baggage; and the proprietors had given public notice by a printed notice, " Baggage of passengers at the risk of the owners." The court held, that coach pro- prietors are answerable as common carriers for the baggage of passen- gers, unless lost by inevitable accident, or through acts of the public enemies ; and that they cannot restrict their common-law liability by such a general notice, that the " baggage shall be at the risk of the owners," even although brought home to the knowledge of the passen- 538 COMMON CARMERS. [CH. VI. Parliament have at length interfered in England upon this subject ; and have by statute controlled in some measure the effect of these notices, and to some extent restored the opera- tion of the common law.^ gers. But they may, by notice brought home to the passenger, require the latter to state the nature and value of the property, or may for that purpose make a special acceptance. To the same effect are the more recent cases of Camden, &c. Transportation Company v. Belknap, 21 Wend. 354, and Clarke v Faxton, 21 Wend. 153 ; Pardee v. Drew, 25 Wend. 459. And in Gould u. Hill, 2 Hill (N. Y.) 628, it was expressly decided, as to common carriers generally, that they could not limit their common-law responsibility, either by notices or by a special contract. 8. p. Alexander v. Greene, 3 Hill, 9, 20. [See also Wells ». Steam Navi- gation Co., 2 Comst. 204. The decision in Gould v. Hill was expressly overruled by the Supreme Court of N. Y. in the subsequent case of Par- sons V. Monteath, 13 Barb. 359.] {Alexander v. Greene, supra, was re- versed on appeal, 7 Hill, 533. } The validity of notices of this sort, by coach proprietors, to bind the passengers, as to the carriage of baggage or of goods, seems incidentally admitted in Beokman v. Shouse, 5 Rawle, 179, 189; Dwight v. Brewster, 1 Pick. 50. See also 2 Kent, Comm. Leot. 40, p. 608, 607, 4th edit. ; Atwood v. Reliance Transportation Co., 9 Watts, 87. [Since the latter case, it has been expressly decided in Pennsylvania that a carrier may limit his liability, by notice to passengers that the baggage is at their own risk. Bingham v. Rogers, 6 'Watts & Serg. 495; Laing v. Colder, 8 Penn. St. 479.] I have left the text, as to the validity of these notices, in its original form; and the learned reader must decide for himself, how far in America they are, or will here- after be, held valid, in this conflict of opinion. It was decided in a prior case by the Supreme Court of New York, that a similar notice will not excuse the carrier, where the loss arises from a defect in the vehicle or machinery used. Camden & Amboy Railroad, &c. Co. v. Burke, 13 Wend. 611, 627, 628. {See ante, § 549, 551, notes.} ' See Stat. 11 Geo. 4; Stat. 1 Will. 4, ch. 68. There is an abridged statement of these statutes in Harrison's Digest, Vol. I. p. 551, tit. Carri- ers, 4th edit. 1837 ; also in HoUister v. Nowlen, 19 Wend. 243, 249 ; Smith on Mercantile Law, B. 3, ch. 2, p. 233 to 238, 2d Lond. edit. 1838. [The English statute on this subject, called " The Carriers' Act," was enacted in the year 1830, {11 Geo. 4, and 1 Will. 4, ch. 68,} and its great importance seems to justify its insertion here, in connection with a few notes referring to the decisions upon it. Section first enacts (omitting the preamble), that no mail contractor, stage-coach proprietor, or other common carrier by land, for hire, shall be liable for the loss of, or injury to, any article or articles, or property, of the descriptions following : (that is to say) , gold or silver coin of this CH. VI.] COMMON CABEIBES. 539 § 555. In further examining this subject it will be proper to consider, first, the nature and effect of these notices ; sec- realm or of any foreign State, or any gold or silver in a manufactured or unmanufactured state, or any precious stones, jewelry, watches, clocks, or timepieces of any description, trinkets, bills, notes of the governor and company of the banks of England, Scotland, and Ireland respectively, or of any other bank in Great Britain or Ireland, orders, notes, or securi- ties for payment of money, English or foreign stamps, maps, writings, title-deeds, paintings, engravings, pictures, gold or silver plate or plated articles, glass, china, silks, in a manufactured or unmanufactured state, and whether wrought up or not wrought up with any other materials, furs, or lace, or any of them, contained in any parcel or package which shall have been delivered, either to be carried for hire or to accompany the person of any passenger in any mail or stage-coach or other public conveyance, when the value of such article or articles or property afore- said contained in such parcel or package shall exceed the sum of ten pounds; unless at the time of the delivery thereof at the office, ware- house, or receiving-house of such mail contractor, stage-coach proprietor, or other common carrier, or to his, her, or their book-keeper, coachman, or other servant, for the purpose of being carried or of accompanying the person of any passenger as aforesaid, the value and nature of such article or articles, or property, shall have been declared by the person or persons sending or delivering the same, and such increased charge as hereinafter mentioned, or an engagement to pay the same, be accepted by the person receiving such parcel or package. § 2. Thatwhenanyparcelorpackagecontaininganyof thearticlesabove specified shall be so delivered, and its value and contents declared as aforesaid, and such value shall exceed the sum of ten pounds, it shall be lawful for such mail contractors, stage-coach proprietors, and other common carriers to demand and receive an increased rate of charge, to be notified by some notice affixed in legible characters in some public and conspicuous part of the office, warehouse, or other receiving-house where such parcels or packages are received by them for the purpose of convey- ance, stating the increased rates of charge required to be paid, over and above the ordinary rate of carriage, as a compensation for the greater risk and care to be taken for the safe conveyance of such valuable ai-ti- cles ; and all persons sending or delivering parcels or packages containing such valuable articles as aforesaid at such office shall be bound by such notice, without further proof of the same having come to their knowledge. § 3. Provided always, That when the value shall have been so declared, and the increased rate of charge paid, or an engagement to pay the same shall have been accepted as hereinbefore mentioned, the person receiving such increased rate of charge, or accepting such agreement, shall, if thereto required, sign a receipt for the package or parcel acknowledging the same to have been insured, which receipt shall not be liable to any 640 COMMON CAEKIEES. [CH. VI. ondly, upon whom they are obligatory ; thirdly, the rights and duties of each party in respect to them ; fourthly, the stamp duty; and if such receipt shall not be given when required, or such notice as aforesaid shall not have been affixed, the mail con- tractor, stage-coach proprietor, or other common carrier as aforesaid, shall not have or be entitled to any benefit under this act, but shall be liable and responsible as at common law, and be liable to refund the increased rate of charge. § 4. Provided always. That no public notice or declaration heretofore made, or hereafter to be made, shall be deemed or construed to limit or in any wise affect the liability at common law of any such mail contractor, stage-coach proprietor, or other public common carrier as aforesaid, for or in respect of any articles or goods to be carried and conveyed by them: but that all and every such mail contractors, stage-coach proprietors, and other common carriers as aforesaid shall be liable, as at the common law, to answer for the loss or any injury to any articles and goods in respect whereof they may not be entitled to the benefit of this act, any pubhc notice or declaration by them made and given contrary thereto, or in any wise limiting such liabiUty, notwithstanding. § 5. That for the purposes of this act every office, warehouse, or receiving-house which shall be used or appointed by any mail contractor, or stage-coach proprietor, or other such common carrier as aforesaid, for the receiving of parcels to be conveyed as aforesaid, shall be deemed and taken to be the receiving-house, warehouse, or office of such mail con- tractor, stage-coach proprietor, or other common carrier; and that any one or more of such mail contractors, stage-coach proprietors, or common carriers shall be liable to be sued by his, her, or their name or names only ; and that no action or suit commenced to recover damages for loss or injury to any parcel, package, or person, shall abate for the want of joining any co-proprietor or copartner in such mail, stage-coach, or other public conveyance by land, for hire as aforesaid. § 6. Provided always, That nothing in this act contained shall extend or be construed to annul or in any wise affect any special contract between such mail contractor, stage-coach proprietor, or common carrier, or any other parties for the conveyance of goods and merchandise. § 7. Provided also. That where any parcel or package shall have been delivered at any such office, and the value and contents declared as afore- said, and the increased rate of charges been paid, and such parcels or packages shall have been lost or damaged, the party entitled to recover damages in respect of such loss or damage shall also be entitled to recover back such increased charges so paid as aforesaid, in addition to the value of such parcel or package. § 8. Provided also. That nothing in this act shall be deemed to pro- tect any mail contractor, stage-coach proprietor, or other common carrier for hire from liability to answer for loss or injury to any goods or articles CH. Vr.] COMMON CAEKIEES. 541 effect of fraud and concealment in respect to the goods ; fifthly, the degree of liability imposed by law upon the car- whatsoever arising from the felonious acts of any coachman, guard, book- keeper, porter, or other servant in his or their employ, nor to protect any such coachman, guard, book-keeper, or other servant from liability for any loss or injury occasioned by his or their own personal neglect or misconduct. § 9. Provided also, That such mail contractors, stage-coach proprie- tors, or other common carriers for hire, shall not be concluded as to the value of any such parcel or package by the value so declared as aforesaid ; but that he or they shall in all cases be entitled to require, from the party suing in respect of any loss or injury, proof of the actual value of the contents by the ordinary legal evidence ; and that the mail contractors, stage-coach proprietors, or other common carriers as aforesaid, shall be liable to such damages only as shall be so proved as aforesaid , not exceed- ing the declared value, together with the increased charges as before mentioned. The remaining sections do not bear upon the question of liability.] {For annotated decisions on the foregoing sections, see Chitty on Con- tracts, 10th edit. (1876) 453-459; 1 Chitty 's Statutes, "Carriers;" Angell on Carriers, § 255-25'^ With regard to the general effect of this statute, it is thus observed (Chitty on Contracts, 10th edit. p. 457): " 1st. That it relates not only to carriers by land, but to cases where the contract is, to carry partly by land and partly by sea. Le Conteur w. London, &c. R., L. R. 1 Q. B. 54. 2d. That the fact of the goods hav- ing been received by the carrier under a special contract, does not deprive him of the protection of the act, unless the terms of the contract are inconsistent with his having received the goods in his capacity of a com- mon carrier. Baxendale v. Great Eastern R., L. R. 4 Q. B. 244. 3d. That the act extends to the particular articles enumerated, even although they do not come within the words of the preamble, as being articles ' of great value in small compass.' Owen v. Burnett, 2 C. & M. 353. But that a parcel containing such articles is within the act only where, at the time of their being delivered to the carrier, their aggregate value exceeds £10. See Stoessiger v. South Eastern R. Co., 3 E. & B. 549. 4th. That where the nature and value of the goods have been declared by the sender, the statute exempts the carrier from his common-law respon- sibility as to such goods, only where he has notified the increased rate of charge in the manner required by the act, and demanded such increased rate of charge; or where there is a special contract. See Baxendale v. Hart, 6 Ex. 769, 789; Behrens v. Great Northern R. Co., 6 H. & N. 366; 8. c. 7 H. & N. 950. 5th. That although no such notice be affixed, the carrier is not responsible for the loss of any goods of the description men- tioned, unless the value and nature thereof be in the first instance declared by the sender, — and that, whether the goods are delivered at 542 COMMON CAEEEEES. [CH. VI. rier, notwithstanding such notices ; and sixthly, what amounts to a waiver, or discharge, on either side, of the obligation of such notices. the office of the carrier, or at the sender's house, or on the road, or else- where. See Baxendale v. Hart, supra. Nor, where such notice is affixed, and the increased rate of charge demanded, unless the same be paid to, or an agreement to pay it be accepted by, the carrier. And on this branch of tlie statute it has been held, first, that to entitle a party to recover for the loss of, or for any injury to, such articles, he must give express notice to the carrier of the value and nature thereof. Baxendale V. Hart, supra; Boys v. Pink, 8 C. & P. 361. And, secondly, that in cases within the act, if the value of the goods be not declared, and the sender do not pay or engage to pay the increased charge, the carrier is not liable for their loss, although it happen by the gross negligence of his servants. Hinton v. Dibbin, 2 Q. B. 646. But if the carrier refuse, on demand, to give a receipt for the goods and extra charge, this will deprive him of the protection of the act. § 3. 6th. That the statute does not protect the carrier from any loss arising from the felonious act of any servant in his employ. § 8. Bradley v. Waterhouse, M. & M. 154 ; s. c. 3 C. & P. 318. And as to this it is held, first, that to render the carrier liable, some evidence must be gjven to show that the loss was occasioned by the felony of his servants. M'Queen v. Great Western R. Co., 44 L. J. Q. B. 130. Although it is not necessary to show a loss by the felony of any particular servant of the carrier. Vaughton v. London, &c. R. Co., L. R. 9 Ex. 93. Or a loss by felony through the negligence of the carrier. Per Jervis, C. J., and Willes, J., Great Western R. Co. V. Rimell, 18 C. B. 575, 585, 586, commenting on Butt v. Great AVestem R. Co., 11 C. B. 140, 153; Metcalfe v. London, &c. R. Co., 4 G. B. N. s. 307. Secondly, that where a common carrier enters into a sub-contract with other parties, with respect to the carriage of goods which he has undertaken to carry, the servants employed by the latter are ' servants in the employ ' of the carrier, within the true meaning of the statute. Machu y. London, &c. B. Co., 2 Ex. 415. 7th. That as to all goods not specifically mentioned in the act, and as to goods of the descriptions therein mentioned, when the value thereof is not above £10, the carrier's common-law liability remains ; even although such notice be given, or any public notice or declaration be made or given by the carrier, with the intention of limiting his liability with reference thereto. 8th. That the act does not preclude the parties from entering into a special contract, as to the conveyance of goods of any description or value. § 6. And see Baxendale v. Great Eastern R. Co., L. R. 4 Q.. B. 244, 255. 9th. It seems, that if the loss or injury be occasioned by the personal neglect or misconduct of the coachman, guard, book-keeper, or other servant of the carrier, in a case in which the carrier himself is not responsible, such coachman, &c., may be sued by the owner of the goods for the consequent CH. VI.] COMMON CAEEIEES. 543 § 556. First. The nature and effect of these notices. It is impossible to lay down any universal rule as to the con- struction of them, because they are not generally conceived in the same terms, and each must therefore be governed by its own peculiar language, and by the limitations which are in- grafted into it. The general tenor of these notices is to declare that the carrier will not be responsible for any loss of goods beyond a certain value, unless entered and paid for accord- ingly. In case there is not such an entry and payment, it will depend upon the true construction of the terms of the par- ticular notice, whether the carrier will be liable, even to the extent of the fixed value, in case of a loss of goods of greater value, and not paid for as such. Thus, in one case, where the terms of the contract were that " cash, plate, jewels, &c., would not be accounted for, if lost, of more than £5 value. damage. § 8. 10th. The wdrds of the statute being that, in the cases therein mentioned, the carrier shall not be liable ' for the loss of or injury to goods,' unless their value be declared, and an increased rate of charge paid, or agreed to be paid for the carriage thereof, — this does not pro- tect the carrier from loss or damage occasioned to the owner of the goods, by the delay of the former in forwarding them to their destination. Hearn u. London, &c. R. Co., 10 Ex. 793. Or if he omit to forward the goods. Gamett v. Willan, 5 B. & Aid. 53, 61. Or if he forward them by another conveyance than that agreed upon. Gamett v. Willan, supra; Sleat V. Fagg, 5 B. & Aid. 342. Or send them beyond their place of des- tination. Bodenham v. Bennett, 4 Price, 31. Or by an unusual route. See Davis v. Garrett, 6 Bing. 716. And so it would be if the goods were delivered to a wrong person. See Lyon v. Mells, 5 East, 428 ; Brooke v. Pickwick, i Bing. 218; Birkett v. Willan, 2 B. & Aid. 356; Langley ». Brown, 1 M. & P. 583 ; Stephenson v. Hart, 4 Bing. 476. Or, generally, in any case where the damage complained of is occasioned by the carrier's misfeasance. Hinton v. Dibbin, 2 Q. B. 646." Concerning felony by the carrier's servants, see further. Way v. Great Eastern R., 1 Q. B. D. 692; M'Queen v. Great Western R., L. R. 10 Q. B. 569. As to what constitutes " a parcel or package " under § 1, see Whaite i;. Lancashire R., L. R. 9 Ex. 67; Henderson v. London, &c. R., L. R. 5 Ex. 90; Treadwin v. Great Eastern R. Co., L. R. 3 C. P. 308. A carrier is not deprived of the protection of the carriers' act by the fact that the loss or injury happens after they have been negligently taken beyond their " point of destination." Morritt v. North Eastern R., 1 Q. B. D. 302, which in effect overrules some of the cases above cited in Chitty.} 544 COMMON CAEEIEES. [CH. VI. unless entered as such," and paid for, the Court were of opin- ion that the carrier was not liable for any loss whatever in case the goods exceeded the specified value, and no entry or payment of the increased value had been made.^ In another case, where the words were, that " no more than £5 will be accounted for, for goods," &c., unless the special terms of the notice were complied with, it was decided, that in case of a loss the carrier might still be held responsible to the value of £5.^ It is of great practical importance, therefore, to car- riers, to fix the terms of their notices in such a manner as to avoid all ambiguities of this sort ; as, in all cases of doubt, they will be construed unfavorably to the carrier.^ § 557. But the notice, in all cases where it is brought home to the parties, is, in the absence of all contravening circum- stances, deemed proof of the contract actually subsisting be- tween them ; and of course it varies, pro tanto, the general liabilities of the common law in respect to common carriers.* And neither party will, under such circumstances, be permitted to escape from the obligatory force of the terms of the notice. It is, then, to be construed like every other written contract ; and so far as the exceptions extend, they convert the general law into a qualified responsibility.^ Where a carrier gives notice that he will not be liable for goods lost beyond £5, unless paid for, such notice extends to goods of passengers 1 Clay V. Willan, 1 H. Black. 298; Izett v. Mountain, 4 East, 371 Nicholson v. Willan, 5 East, 507; Harris v. Packwood, 3 Taunt. 264 Marsh v. Home, 5 Barn. & Cressw. 322; 1 Bell, Comm. p. 475, 5th edit, [See Harrison v. London, Brighton, & South Coast Railway Co., 2 Best & Smith, 122. But a by-law that a company will not be responsible for baggage "unless booked and paid for" will not shield the company, unless they provide means for booking the same. Great Western Rail- way Co. V. Goodman, 12 C. B. 313. See Wilton v. Atlantic Royal Mail Steam Co., 10 C. B. n. 8. 460. J " Clarke v. Gray, 6 East, 564 ; Cobden v. Bolton, 2 Camp. 108. ^ Butler V. Hearue, 2 Camp. 415. * But see ante, § 554, note (3), and the cases there cited, and especially HoUister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251 ; [ante, p. 533, note (4). And see the " English Carriers' Act," ante, p. 538, note.} 6 Nicholson v. Willan, 5 East, 507; Having v. Todd, 1 Stark. 72; Harris v. Packwood, 3 Taunt. 271, 272. CH. VI.] COMMON OAREIEES. 545 going by the conveyance, as well as to goods sent alone by the same conveyance.^ § 558. Secondly. Upon whom such notices are obligatory. The mere advertisement by the carrier of the terms and limi- tations of his responsibility, however public it may be, will have no effect, except upon those to whom knowledge of it is directly or constructively brought home.^ Thus, it will not be sufficient that the notice has been publicly posted up in the carrier's office, in writing or in print, unless the party who is to be affected by it is proved to have read it ; or unless other circumstances are adduced which establish his knowl- edge of it.^ If the notice is published in a newspaper, it is not sufficient proof, unless accompanied by some evidence that the party is accustomed to read the newspaper, so as to lay a foundation for presuming knowledge.* If the carrier has pub- lished two different notices, each of which is before the public at the time of the carriage, that will bind him which is least beneficial to himself ; and if, at the time of the carriage, he delivers a written notice without any limitation of responsi- bilitj', that nullifies his prior notice, containing a limitation.* A notice known to the principal binds him in respect to all his agents who send goods by the same carrier ; and on the other hand, a notice known to the particular agent who sends goods binds the principal in respect to such goods, notwith- standing the principal is personally ignorant of the notice.^ 1 Clarke v. Gray, 4 Esp. 177; s. c. 6 East, 568. But see Brooke ». Pickwick, 4 Bing. 218 ; [Dunlap v. Interaational Steamboat Co., 98 Mass. 371.] 2 Davis V. Willan, 2 Stark. 279 ; Gibbon v. Paynton, 4 Burr. 2-302; Evans v. Soule, 2 M. & Selw. 1 ; Roskell v. Waterhouse, 2 Stark. 462 ; 1 Bell, Coinra. p. 475, 5th edit. 8 Kerr v. Willan, 2 Stark. 53 ; Davis v. Willan, 2 Stark. 279; Clayton V. Hunt, 3 Camp. 27; Butler v. Hearne, 2 Camp. 415; Evans v. Soule, 2 M. & Selw. 1; Gibbon v. Paynton, 4 Burr. 2302; [ante, p. 533, note (4).} * Leeson v. Holt, 1 Stark. 186 ; Kowley v. Home, 8 Bing. 2 ; Munn v. Baker, 2 Stark. 225. 6 Munn V. Baker, 2 Stark. 255 ; Cobden v. Bolton, 2 Camp. 108. [But see Phillips v. Edwards, 8 Hurl. & Norm. 813.] ° Mayhew v. Eames, 3 Barn. & Cressw. 601; s. c. 1 Carr. & Payne, 85 646 COMMON CAKEIEKS. [CH. TI. A notice suspended at the offices at the termini of the journey will not bind persons who deliver goods at intermediate places on the route, unless notice is brought home to them.i § 559. Where several persons are carriers, as partners, and publish a notice, and one of the partners afterwards under- takes, without any communication with, or knowledge of, the others, to carry packages for a particular person free from expense, it seems that such a contract is not binding on the partnership in derogation of their notice, if such act is not within the scope of his authority, or is done by connivance in fraud of their rights.^ § 560. In all cases where the notice cannot be brought home to the person interested in the goods, directly or con- structively, it is a mere nullity, and the carrier is responsible according to the general principles of the common law.^ § 561. Thirdly. The rights and duties of each party grow- ing out of notices. It may be stated generally, that a carrier who undertakes to carry goods is, like every other person, bound to perform his contract in the mode and to the extent involved in his contract. Wherever he undertakes to carry and deliver goods, he cannot exempt himself from responsi- bility by transferring the goods to another carrier, or by send- ing them by another conveyance. His contract is deemed a contract for personal care and diligence by himself or his own servants. If, therefore, the goods are sent by a different con- veyance from that implied b}^ the undertaking, or in a different manner, and they are lost, the carrier will be liable for the loss, although otherwise he might have been exonerated from 550; Having v. Todd, 1 Stark. 72; Clarke v. Hutchins, 14 East, 475. [See also Alexander v. Malcolmson, 3 Irish C. L. 578.] 1 Gouger v. Jolly, Holt, N. P. 317 ; Clayton v. Hunt, 3 Camp. 27. 2 Bignold V. Waterhouse, 1 M. & Selw. 255; Helsby v. Mears, 5 Barn. & Cressw. 504. 8 Brooke v. Pickwick, 4 Bing. 218, 222; ante, § 556-558; 1 Bell, Comm. 475, 5th edit.; [Walker v. York & North Midland Railway Co., 3 C, & K. 279, where notice to the plaintifi's cartman, not communi- cated to him, was held not sufficient. jSee s. c. 2 El. & Bl. 750.} See also Fillebrown v. Grand Trunk Railway, 55 Me. 462;] {ante, p. 533, note (4).} CH. VI.] COMMON CAKEIEKS. 547 it by the terms of a notice. ^ The carrier is in like manner responsible, if he carries the goods beyond the place of desti- nation, and they are lost, although otherwise his notice would protect him. 2 § 562. It is also (as has been already stated) a part of the implied contract of every carrier, to employ a vehicle suitable for the transportation ; and if by water, to employ a vessel reasonably stout, strong, and well equipped for the voyage.* And he is not at liberty to transport the goods in any other vessel in the course of the voyage, except from mere necessity, when his own ship becomes incapable by inevitable casualty from performing it. The existence of the common notice will not in any respect change this implied duty.* § 563. On the other hand, the owner of the goods is bound to observe good faith toward the carrier (of which more will be said hereafter), and to pack his goods, and put them in a fit condition for the journey ; and if he does not, he must bear any loss arising from his own neglect.^ But the carrier him- 1 Garnett v. Willan, 5 Bam. & Aid. 53 ; Sleat v. Fagg, 5 Barn. & Aid. 342; Nicholson v. Willan, 5 East, 507; Duff u. Budd, 3 Brod. & Bing. 177 ; Rolle, Abr. Action sur Case, C. pi. 3; Barnwell v. Hussey, 1 Const. Rep. (S. C.) 114; post, § 570. 2 Ellis V. Turner, 8 Term R. 531 ; ante, § 545 b; post, § 570; {ante, p. 543, note. } = Ante, § 509; post, § 571 a, 592. * Abbott on Shipp. P. 3, ch. 3, § 1, 8, 5th edit. ; Lyons v. Mells, 5 East, 428; Evans v. Soule, 2 Maule & Selw. 1 ; Marsh. Insurance, B. 1, ch. 7, § 5, p. 249, 2d edit.; [Sager v. Portsmouth, &c. Railroad Co., 31 Me. 238. Proof of a special contract with the consignor may in England exonerate a carrier from a loss through defective vehicles, if the terms of such contract be sufficiently broad. See Chippendale «. Lancashire & Yorkshire Railway Co., 7 Eng. Law & Eq. 395. See Shaw v. York & North Midland Railway Co., 13 Q. B. 347; [ante, p. 529, note.} But this is not uniformly admitted in this country. Welsh v. Pittsburg Railway Co., 10 Ohio St. 65;] {Smith v. New Haven R., 12 Allen, 531; post, § 576; Indianapolis R. v. Strain, 81 111. 504; Pratt u. Ogdensburg R., 102 Mass. 557; Railroad Co. v. Pratt, 22 Wall. 123. In this coun- try, as we have seen, a carrier cannot exempt himself from liability for negligence or misconduct. Ji»/e, p. 529, notes. A carrier by water must provide, in general, not only a seaworthy vessel, but a competent master and crew. Propeller Niagara v. Cordes, 21 How. 7; The Northern Belle, 9 Wall. 526; Kopitoff w. Wilson, 1 Q. B. D. 377; ante, § 509.} 5 Ante, § 492 a {and notes.} 648 COMMON CAEEIEES. [CH. VI. self may by implication dispense with an exact performance of any part of his duty, and assume upon himself the proper care of securing the property in a fit state for the journey. ■* § 564. Thus much may sufEce in this place, as to the gen- eral rights and duties of the parties under notices, as the subject will be resumed under the succeeding heads. § 665. Fourthly. The effect of concealment or fraud. It is the duty of every person sending goods bj' a carrier to make use of no fraud or artifice to deceive him, whereby his risk is increased, or his care and diligence may be lessened.^ And if there is any such fraud or unfair concealment, it will exempt the carrier from responsibility under the contract, or, more properly speaking, it will make the contract a nullity.^ Thus, where notes to the amount of £100 were packed in an old mail-bag, and stuffed with hay to give it a mean appearance, and in this state were delivered to a carrier, and the bag ar- rived safe, but the notes were stolen : this concealment was held to be such a fraud upon the carrier, as to discharge him from all responsibility for the loss.* In this case there was an artifice made use of in order to mislead the carrier. The doctrine is not confined to mere cases of concealment or sup- pression of facts for the purpose of misleading ; but it applies to all cases of false afiirmations, having the same object.* And wherever the owner represents the contents of the pack- age to be of a particular value, he will not be permitted, in case of a loss, to recover from the carrier any amount beyond that value.* 1 Beck V. Evans, 16 East, 245; Stuart v. Crawley, 2 Stark. 323. {See Union Express Co, v. Graham, '26 Ohio St. 695.} ' Edwards ;;. Sherratt, 1 East, 604; 2 Ivent, Comm. Leot. 40, p. 603, 604, 4th edit. [See Coxe v. Heisley, 19 Penn. St. 243.] ' Batson v. Donovan, 4 Barn. & Aid. 21; 2 Kent, Comm. Leot. 40, p. 603, 604, 4th edit. * Gibbon v. Payntou, 4 Burr. 2298; 2 Kent, Comm. Lect. 40, p. 603, 604, 4th edit ; Relf v. Rapp, 3 Watts & Serg. 21. ^ Titchburne v. White, 1 Str. 145. ^ Tyly V. Morrioe, Garth. 485 ; Batson v. Donovan, 4 Barn. & Aid. 21 ; Riley v. Home, 5 Bing. 217; 2 Kent, Comm. Lect. 40, p. 603, 604, 4th edit ; [Chicago & Aurora Railroad o. Thompson, 19 III. 578. It is on this ground of fraudulent concealment, probably, it has been held CH. VI.] COMMON CAEEIEES. 549 § 565 a. There is an old case -which turned on this doc- trine, which is briefly reported, and may, therefore, not unfitly be given at large in this place. It was an action on the case brought against a country carrier for not delivering a box Avith goods and money in it. The evidence was, that the plaintiff delivered the box to the carrier's porter, whom he appointed to receive goods for him, and told the porter that there was a book and tobacco in the box ; and in truth there was £100 in it besides. And it was agreed by the counsel and given in charge to the jury, that if a box with money in it be delivered to a carrier, he is bound to answer for it, if he be robbed, although it was not told him what was in it. But Lord Chief Justice Rolls directed the jury, that, although the plaintiff did tell him of some things in the box only, and not of the money, yet he must answer for it ; for he need not tell the carrier all the particulars in the box. But it must come on the carrier's part to make a special acceptance. B ut, in respect of the intended cheat to the carrier, he told the jury they might consider him in damages ; notwithstanding which the jury gave £97 against the carrier, for the money onlj-- (the other things being of no considerable value), abating £3 only for carriage. The Reporter adds : quod durum videbatur circum- stantibus} The remark of the Reporter seems well founded; and it is difficult to account for the verdict of the jury, unless upon the supposition, that they were of opinion that there was some fraud in the carrier. § 566. How far a bare concealment of the value of a pack- that if a passenger, knowing that the regulations of a company re- quire all merchandise to he paid for as such, and that it shall not he taken as personal haggage, does take merchandise with him in the car- riage as and for his personal luggage, and the same is lost, he cannot recover its value. Belfast & Ballymena Railway Co. v. Keys, 9 H. L. C. 556. See Ramsey v. North Eastern Railway Co., 14 C. B. n. s. 641;] {Smith V. Boston & Maine Railroad, 44 N. H. 325; Cahillw. London, &c. R., 10 C. B. N. s. 154; 13 Id. 881; Michigan Central R. Co. v. Carrow, 73 111. 348. But see ante, § 499. } 1 Kenrig v. Eggleston, Aleyn, 83. Lord Mansfield, speaking of the Reporter's note to this case, said upon one occasion: " Now, I own that I should have thought this a fraud, and I should have agreed in opinion with the circumstantibus." Gibbon v. Paynton, 4 Burr. 2301. 550 COMMON CAKEIEES. [CH. TI. age, without any other circumstances of a suspicious nature, ought to be deemed of itself an unfair or fraudulent conceal- ment in cases of carriage generally, or under notices of the nature we have been considering, has been much discussed ; and there has not been a perfect uniformity of judicial opinion upon the point.^ Indeed, a question of the same nature has engaged the attention of learned jurists and casuists in ancient as well as in modern times. In relation to contracts, it has been often mooted, how far one party may innocently be silent as to any matters which may form ingredients in directing the judgment of the other contracting party. We have already had occasion to notice a diversity of judgment among the Roman lawyers, on a case where a question of this sort was incidentally presented. ^ Cicero and Pothier contend for a liberal good faith and a frank disclosure, in all cases of this sort, and found themselves upon principles of a pure and sublime morality.^ Sir William Jones, although he gives no express opinion on the point, evidently maintains the necessity of a full disclosure of all the facts in the case of a deposit.* The question, however, has more commonlj' arisen in discus- sion upon contracts of sale ; and it is in those cases that Cicero and Pothier have spoken with so much zeal and persuasive force. ^ In the forum of conscience, the question might not perhaps admit of so many doubts. But law, as a practical science, is compelled to stop short of enforcing every moral duty ; and aims only at that justice, which in the business of 1 Post, § 567, 568. 2 Ante,%lb. s Pothier, de Vente, n. 233 to 241; Cic. de Officiis, Lib. 3, cap. 12 to 17; 2 Kent, Coram. Lect. 39, p. 491, 4th edit. * Jones on Bailm. 38, 39. ^ This subject was a good deal discussed in Laidlaw v. Organ, 2 Wheat. 178, 185; and Mr. Wheaton has, in his valuable report of that case, ap- pended a long note, containing the substance of Pothier's remarks on the subject. Pothier, de Vente, n. 233 to 241. Mr. Verplanck has thought the subject worthy of a particular examination in his able " Essay on the Doctrine of Contracts " (1825). Mr. Chancellor Kent has discussed the subject with his usual fulness of learning and accuracy of research, and has vindicated the present state of the law from any just reproach, as founded in practical sense and general convenience. 2 Kent, Comm. Lect. 39, p. 488 to 492, 4th edit. CH. VI.J COMMON CAERIEES. 551 human life has general convenience and certainty in its admin- istration. In relation to sales, the doctrine now generally- maintained is (as Pothier admits) that the vendor may inno- cently be silent as to any extrinsic circumstances equally open to both parties, which might influence the price of the commodity ; but at the same time he must take care not to do or say any thing which shall tend to mislead or impose upon the other party .^ § 567. In cases of common carriers, where there is no notice, the better opinion seems to be that the party who sends the goods is not bound to disclose their value, unless he is asked.^ But the carrier has a right to make the inquiry, and to have a true answer ; and if he is deceived, and a false answer is given, he will not be responsible for any loss.^ If 1 Laidlaw v. Organ, 2 Wheat, 178 ; 2 Kent, Comm. Lect. 39, p. 488, 491, 4th edit. See also Etting v. Bank of U. S., 11 Wheat. 59; Pidcock V. Bishop, 3 Barn. & Cressw. 605; Smith v. Bank of Scotland, 1 Dow, 272; Relf V. Eapp, 3 Watts & Serg. 21. 2 Jones on Bailm. 105; 2 Kent, Comm. Lect. 40, p. 603, 604, 4th edit.; Brooke v. Pickwick, 4 Bing. 218; Phillips v. Earle, 8 Pick. 182; Orange County Bank v. Brown, 9 Wend. 25, 115; HoUister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251; Kenrig v. Eggleston, Aleyn, 93. See Walker v. Jackson, 10 Mees. & Wels. 160, 168. In this case Parke, B., said: "I take it now to be perfectly well understood, according to the majority of opinions upon the subject, that, if any thing is delivered to a person to be carried, it is the duty of the person receiving it to ask such questions about it as may be necessary. If he ask no questions, and there be no fraud to give the case a false complexion, on the delivery of the parcel, he is bound to carry the parcel as it is." [See also Camden & Amboy Railroad Co. v. Baldauf , 16 Penn. St. 68 ; Richards v. West- cott, 2 Bosw. 605. In America a statute of the United States provides (St. 1851, ch. 43, § 2) that if any shipper of " gold," &c., shall lade the same on board of any vessel without giving the master a note in writing of the true value thereof, the latter shall not be liable as carrier therefor, in any form or manner. This provision has been held to apply only to gold shipped as merchandise, and not to gold taken by a passenger in his valise as part of his luggage; and the liability of the carrier for such money is to be determined on common-law principles. Dunlap v. International Steamboat Co., 98 Mass. 371.] 8 2 Kent, Comm. Lect. 40, p. 603, 604, 4th edit. {See Little v. Bos- ton & Maine R., 66 Me. 239; Merchants' Despatch Trans. Co. v. BoUes, 80 111. 478. The consignor's fraudulent understatement of the weight of the goods, even though brought to the consignee's knowledge, will not 552 COMMON CAEEIEES. [CH. VI. he makes no inquiry, and no artifice is made use of to mislead him, then he is responsible for any loss, however great the value may be.^ § 668. There has been some question, whether the same rule applies to cases of notices. Mr. Justice Best, in Batson V. Donovan,^ was of opinion that the same rule does not apply in cases of notices ; and to that opinion he has at all times strenuously adhered.^ On the contrary, the three other judges who sat in that case thought, that, in cases of notices, the party who sends the goods without payment for the extraordinary value holds them out, impliedly, as articles of ordinary value ; and consequently he perpetrates a fraud upon the earlier, who is thus induced not to bestow upon them the care and diligence which their extraordinary value would require ; and under such circumstances the contract itself becomes a nul- lity.* A distinction, however, has since been suggested by the Court in another and later case, namely, that the carrier will, notwithstanding, be liable for any malfeasance, or for a excuse the carrier's conversion of the goods. Wiggin v. Boston & Albany R,, 120 Mass. 201. See Lebeau v. General Steam Nav. Co., L. R. 8 C. P. 88. Nor can a carrier generally escape liability on the ground of mis- representation, unless the misrepresentation relates to matters latent in their character. New Jersey R. v. Pennsylvania R., 3 Dutch. 100.} ' Kenrig ti. Eggleston, Aleyn, 93; Morse v. Slue, 1 Vent. 238; Tyly v. Morrice, Carth. 485; Titchburne v. White, 1 Str. 145; Gibbon v. Paynton, 4 Burr. 2298; Riley v. Home, 5Bing. 217; Batson v. Donovan, 4 Barn. & Aid. 21 ; Brooke ». Pickwick, 4 Bing. 218; Phillips v. Earle, 8 Pick. 182. [And in a late case in England it was declared not true that a carrier has a right, in every case and under all circumstances, to know the contents of packages tendered him to be carried; and if he refuse to carry, merely because the consignor refuses to tell him the contents, he is liable. Crouch V. London & N. ^N. Railway Co., 14 C. B. 255; 25 Eng. Law & Eq. 287. See remarks of Maule, J., ibid.] {See also Nitro- Glycerine Case, 15 Wall. 524. But with articles requiring especial care, such as glass, or gunpowder, it may be different. See American Express Co. v. Perkins, 42 111. 458.} 2 4 Barn. & Aid. 27. 8 GarnettB. Willan, 5 Barn. & Aid. 53, 63; Riley v. Home, 5 Bing. 217; Brooke v. Pickwick, 4 Bing. 218; Sleat v. Fagg, 5 Barn. & Aid. 342 ; Bignold V. Waterhouse, 1 Maule & Selw. 261. ^ Batson !!. Donovan, 4 Barn. & Aid. 21. See also Orange County Bank v. Brown, 9 Wend. 85, 115. OH. VI.] COMMON CAEEIEES. 553 •wrong delivery, although he will not be liable for any negli- gence, however gross.^ In the latest case on the subject, in which a very elaborate judgment was pronounced by Lord Chief Justice Best, the inclination of the Court in the general reasoning seems to be, that the carrier is bound to make the inquiry, although there is a notice.^ The point, however, was not directly in judgment. In another case, the same Court has held, that a passenger in a coach is not bound to disclose the value of his baggage, notwithstanding the carrier has published a notice.^ § 569. However, then, the doctrine may be in cases of notices, as to the duty of inquiry on the one side, and of non- concealment on the other, all the authorities are agreed, that, if any deception is intentionally practised, the fraud avoids the contract.* But a case may exist, where the goods are of an extraordinary value, and not paid for as such ; and yet the circumstances may lead to the conclusion, that the carrier has either a direct or presumptive knowledge that they exceed the common value, and, therefore, that no fraud is in fact per- petrated upon him. Under such circumstances, the question may be presented, whether, the terms of the notice not being complied with, the carrier is answerable for their loss. The Court of King's Bench have held, that the carrier is not, under such circumstances, responsible for any loss by theft, the goods not having been exposed by him to more than the ordinary risk. On that occasion the Court said that there is no incongruity in a carrier's engaging to place goods in a course of conveyance, and declariog at the same time that he will not be answerable for the loss of them ; and upon the terms of the notice, if the carrier had delivered the goods in question, he would not have been entitled to more than the common compensation for the carriage of goods, exclusive of the risk of loss." There are antecedent cases, which seem to 1 Sleat V. Fagg, 5 Barn. & Aid. 342. See also Nicholson v. Willan, 5 East, 507; Dwight v. Brewster, 1 Pick. 50. 2 Riley v. Home, 5 Bing. 217. ' Brooke v. Pickwick, 4 Bing. 218. See Orange County Banks. Brown, 9 Wend. 85, 115. « Ante, § 567. 5 Marsh v. Home, 5 Barn. & Cressw. 322. See also Harris v. Packwood, 554 COMMON CARMEES. [CH. VI. look the other way.^ Whether those cases are now to be deemed wholly overruled, or not, may, perhaps, be thougbt to deserve further inquiry. The doctrine, however, clearly does not apply to any case where there has been a waiver of the notice. § 570. Fifthly. The degree of liability, which is imposed upon the carrier, notwithstanding such notices. In the first place, it is clear that such notices will not exempt the carrier from any losses by the malfeasance, misfeasance, or gross negligence of himself or his servants.^ If, therefore, he or they convert the goods to a wrong use ; ^ if he or they make a wrong delivery to a person not entitled to them ;* or if he or they are guilty of gross negligence in the carriage or care of them, the loss must be borne by the carrier, notwithstand- ing his notice ; for the terms are uniformly construed not to exempt him from such losses.^ What constitutes gross negli- gence, or whether there is in cases of this sort any real dis- tinction between negligence and gross negligence, has been a 3 Taunt. 264; Levi v. Waterhouse, 1 Price, 280; Thorogood v. Marsh, 1 Gow, 105; Alfred v. Home, 3 Stark. 136. ' Beck V. Evans, 16 East, 244; s. c. 3 Camp. 267; Down e. Fromont, 4 Camp. 40. But see Brooke v. Pickwick, 4 Bing. 218 ; 1 Bell, Comm. p. 475, 5th edit. | See Minter v. Pacific R. Co., 41 Mo. 503.} 2 2 Kent, Comm. Lect. 40, p. 606, 607, 4th edit.; Owen v. Burnett, 2 Cromp. & Mees. 353 ; Beckman v. Shouse, 5 Rawle, 179, 189, and the cases cited in the note below; Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251, 361; Smith on Merc. Law, B. 3, ch. 2, p. 233 to 238, 2d Lond. edit. 1838; Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611, 627, 628; ante, § 450, 545 b; Hinton v. Dibbin, 2 Q. B. 646, 659. [See an elaborate article on "Carriers' Notices," in 15 Boston Law Rep. (1852), p. 241 ; Mann i: Birchard, 40 Vt. 326.] 8 Ante, § 545 b; post, § 570. * Ibid. 6 Beck V. Evans, 16 East, 244; Smithy. Home, 8 Taunt. 144; Boden- ham V. Bennett, 4 Price, 31; Birkett v. Willan, 2 Barn. & Aid. 356; Gar- nett V. Willan, 5 Barn. & Aid. 53; Sleat v. Fagg, 5 Barn. & Aid. 342; Ellis V. Turner, 8 TermR. 531; Lyon v. Mells, 5 East, 439; Duff v. Budd, 3 Brod. & Bing. 177; Owen v. Burnett, 2 Cromp. & Mees. 353; s. c. 4 Tyrwh. 143; ante, § 450, 545 b, 561 ; 1 Bell, Comm. p. 472 to 475, 5th edit.; 1 Bell, Comm. §404,405,406,410. { The English and American doc- trines of the present day are fully set forth, ante, p. 529, note (1) ; p. 543. j CH. VI.] COMMON CAEEIERS. 555 matter of some judicial doubt and discussion, and perhaps the doctrine cannot now be stated with any absolute precision.^ ^ Lord Denman, in delivering the opinion of the court in Hinton v. Dibbin (2 Q. B. 646, 649), said: " In the first place, then, it had been decided by all the courts, that a carrier is liable for the loss of articles above the amount mentioned in the usual notice, though not paid for accordingly, where he is guilty of what, in so many cases, is called ' gross negligence.' This was the precise point decided in the Exchequer in the case of Bodenham v. Bennett, a case often cited and relied upon in sup- port of this doctrine. There the usual notice had been given, and the parcel lost was of much greater value than the sum mentioned in that notice. The like decision took place in the Court of Common Pleas, under similar circumstances, in the case of Smith v. Home, the Chief Justice reporting that the only question submitted to the jury was, whether the carrier had been guilty of gross negligence; and that direc- tion was sustained by the court. And in this court also, in the case of Birkett v. Willan, a new trial was granted expressly upon the ground that Lord Tenterden had omitted to inform the jury that the carrier would be liable for gross negligence, though in that case also the usual notice was proved, and the value of the goods lost much exceeded the amount therein specified. It is true that, in the case of Batson v. Dono- van, where a parcel of banker's notes of the value of £4,000 and upwards was delivered to a carrier, without any communication of its contents, the learned judge who tried the cause left two questions to the jury: the first being, whether the plaintiffs dealt fairly by the defendants in not apprising them that the box contained articles of value ; and the verdict found for the defendants upon that direction was supported. But the court was not unanimous in the decision; and the dissenting judge dif- fered, mainly, because he considered the leaving such preliminary question in favor of the carrier to be a novelty, and unwarranted by any authority. And in the cases already mentioned (there being many others to the same effect), no such point was made; but the only question was whether there was gross negligence in the carrier. In a subsequent case in this court, Sleat V. Fagg, the carrier was held liable for the loss of a parcel of great value, notwithstanding the usual notice by him, and want of notice to him. That case undoubtedly was decided chiefly upon the ground of ' misfea- sance,' as before explained. But, as it was impossible to impute to the carrier a wilful purpose of destroying or losing the parcel, it seems diffi- cult to distinguish the case in kind from others, where negligence, more or less in amount, has been the cause of the loss, and the carrier has been held liable accordingly. It surely bears no resemblance to the instance of ' misfeasance ' put by Mr. Baron Bayley in the case of Owen v. Burnett, which is dashing a package of glass against the ground. At all events, such a ease may well be supposed to have been in the contemplation of the 556 COMMON CAKEIEES. [CH. TI. § 571. But an inquiry maybe made whether the carrier will not be liable also for ordinary negligence, as well as for gross legislature when passing an act expressly for the purpose (as we shall see presently) of relieving carriers from responsibility. " Again, when we find ' gross negligence' made the criterion to deter- mine the liability of a carrier who has given the usual notice, it might per- haps have been reasonably expected that something like a definite meaning should have been given to the expression. It is believed, however, that in none of the numerous cases upon this subject is any such attempt made ; and it may well be doubted whether between ' gross negligence ' and negli- gence merely any intelligible distinction exists. But without negligence of some kind, it is not very easy to suppose how a loss for which the car- rier is liable can take place; and, if so, his protection from the notice, before the statute, was of a very precarious description. In the before- cited case of Owen V. Burnett, Bayley, B., thus expresses himself: 'As for the cases of what is called gross negligence, which throws upon the carrier the responsibility from which, but for that, he would have been exempt, I believe that in the greater number of them it will be found that the carrier was guilty of misfeasance. ' From this language of the learned judge, it is difficult to understand him otherwise than as not being satis- fied as to the meaning and import of the words, or the effect attributed to them to fix the carrier with liability. " The latest case bearing upon this part of the subject, the state of the law at the time of passing the act, is that of Wyld v. Pickford ; that act, it must be observed, not having been at all under the consideration of the court. In a prepared judgment, however, delivered by Parke, B., there are the following observations : ' Upon reviewing the cases on this subject ' (what circumstances may make a carrier responsible after the usual notice), ' the decisions and dicta will not be found altogether uniform, and som.e uncertainty still remains as to the ti'ue ground on which cases are taken out of the operation of these notices. In Bodenham v. Bennett, Mr. Baron Wood considers that these notices were introduced for the purpose of protecting carriers from extraordinary events, and not meant to exempt them from due and oi'dinary care. On the other hand, in some cases it has been said that the carrier is not by his notice protected from the consequences of misfeasance (Lord EUenborough, in Beck v. Evans) ; and that the true construction of the words " lost or damaged," in such a notice, is, that the carrier is protected from the consequences of negli- gence or misconduct in the carriage of goods, but not if he divests him- self wholly of the charge committed to his care, and of the character of carrier. In many other cases it is said he is still responsible for " gross negligence; " but in some of them that term has been defined in such a way as to mean ordinary negligence (Story on Bailments, § 11), that is, the want of such care as a prudent man would take of his own property. The weiyht of authority seems to be in favor of the doctrine, that, in order CH. VI.] COMMON CAERIEES. 657 negligence, notwithstanding such notices. That point does not appear until recently to have undergone any solemn and positive adjudication. There are dicta by various judges, indicating that the common rule of ordinary diligence, in the common cases of hire, is applicable to the case of carriers • under notices.^ On the other hand, there are declarations of the judges at nisi prius, as well as their opinions in bane, which seem to put it as a question of gross negligence, or not.^ The question may, however, be now considered at rest, by an adjudication entirely satisfactory in its reasoning, and turning upon the very point, in which it was held, that in cases of such notices, the carrier is liable for losses and injuries occa- sioned, not only by gross negligence, but by ordinary negli- gence ; or, in other words, the carrier is bound to ordinary diligence.^ to render a carrier liable after such u, notice, it is not necessary to prove a total abandonment of that character, or an act of wilful misconduct, but that it ia enough to prove an act of ordinary negligence — gross negligence, in the sense in which it has been understood in the last mentioned cases. ' " [See Austin v. Manchester R. Co., 10 C. B. 454, 474 ; anle, § 17 and note ;] jMorritt v. North Eastern R. Co., 1 Q. B. D. 302, 309.} ' Bodenham v. Bennett, 4 Price, 31 ; Smith v. Home, 8 Taunt. 144 ; Batson V. Donovan, 4 Barn. & Aid. 21, per Best, J. ; 1 Bell, Comm. p. 472 to 475, 5th edit. ; 1 Bell, Comm. § 404-406, 4th edit. ' Riley v. Home, 5 Bing. 217; Batson v. Donovan, 4 Bam. & Aid. 21; Brooke v. Pickwick, 4 Bing. 218; Lowe v. Booth, 13 Price, 329. See also the remarks of Mr. Baron Bayley, in Owen v. Burnett, 2 Cromp. & Mees. 353, 359, 360; s. c. 2 Tyrwh. 143. 8 Wyld V. Pickford, 8 Mees. & Wels. 461. Mr. Baron Parke, in deliv- ering the opinion of the court, said: " What circumstances may make the defendants responsible after such a notice, whether ordinary negli- gence, or gross negligence, or wilful misfeasance, is a question which need not have been determined on the demurrer to the third plea. But on that to the fifth it is necessary, for if any conversion by non-delivery, or a negligent conversion, would be a misfeasance, for which the defendants would be liable notwithstanding the notice, the plea would be bad; if a mere inadvertent conversion, it would not. " Upon reviewing the cases on this subject, the decisions and dicta will not be found altogether uniform, and some uncertainty still remains as to the true ground on which cases are taken out of the operation of these notices. In Bodenham v. Bennett (4 Price, 34), Mr. Baron Wood consid- ers that these notices were introduced for the purpose of protecting car- riers from extraordinary events, and not meant to exempt them from due 558 COMMON CAKEIEES. [CH. VI. § 571 a. But, at all events, such notices will not exempt the carrier from responsibility for losses occasioned by a de- fect in the vehicle or machinery used for the transportation ; for there is a breach of the implied warranty, in such cases, that the vehicle or machinery shall be in good order or con- dition, and fit for the business or employment ; and it will amount to negligence if they are not in such condition, and the carrier might, by the exercise of proper diligence, have and ordinary care. On the other hand, in some cases it has been said, that the carrier is not by his notice protected from the consequences of misfeasance, Lord Ellenborough, in Beck v. Evans (16 East, 247); and that the true construction of the words ' lost or damaged,' in such a no- tice, is, that the carrier is protected from the consequences of negligence or misconduct in the carriage of goods, but not if he divests himself wholly of the charge committed to his care, and of the character of car- rier. Bayley and Holroyd, Js., in Garnett v. Willan (5 Barn. & Aid. 57, 60). In many other cases it is said he is still responsible for ' gross negli- gence; ' but in some of them that term has been defined in such a way as to mean ordinary neghgence (Story on Bailments, § 11), that is, the want of such care as a prudent man would take of his own property. Best, J., in Batson v. Donovan (4 Barn. & Aid. 30), and Dallas, C. J., in DufE V. Budd (3 Brod. & B. 182). The weight of authority seems to be in favor of the doctrine, that, in order to render a carrier liable after such a notice, it is not necessary to prove a total abandonment of that character, or an act of wilful misconduct, but that it is enough to prove an act of ordinary negligence, — gross negligence, in the sense in which it lias been understood in the last-mentioned cases ; and that the effect of a notice, in the form stated in the plea, is, that the carrier will not, unless he is paid a premium, be responsible for all events (other than the act of God and the Queen's enemies) by which loss or damage to the owner may arise, against which events he is by common law a sort of insurer ; but still he undertakes to carry from one place to another, and for some re- ward in respect of the carriage, and is therefore bound to use ordinary care in the custody of the goods, and their conveyance to and delivery at their place of destination, and in providing proper vehicles for their car- riage; and after such a notice, it may be that the burden of proof of damage or loss by the want of such care would lie on the plaintifE. But a misdelivery of a parcel, although it is a conversion, according to the doctrine in Youl v. Harbottle (Peake, N. P. C. 49), because it is the giv- ing the dominion over the goods to another, is not necessarily a proof of want of ordinary care, still less of gross negligence, if that word is to be understood as meaning a greater want of care ; it may have been an act done by a careful person, who has been deceived by an artifice calculated to circumvent the most careful person." {See ante, p. 529, note (1).} CH. VI.] COMMON CAERIEES. 659 ascertained it.^ The doctrine has been pressed even farther ; and it has been held, that if the defect in the vehicle or ma- chinery is unknown to the carrier, and is not discoverable on inspection, and the loss happens without any culpable negli- gence or want of care of the carrier, or his agents, and there is a notice, that " all baggage is at the risk of the owner," the carrier will, notwithstanding, be liable- for any loss occa- sioned to the baggage by a defect of the vehicle or machin- ery .^ The ground of the decision seems to be, that the notice does not apply to this implied warranty of road- worthiness ; and that the general liability of carriers for all losses, not occasioned by the act of God or the public enemy, governs in such cases. ^ § 572. Sixthly. What amounts to a waiver of the notice. In some of the cases cited under a former head,* it seems to have been thought, that the mere receipt of goods, whose ap- parent value was beyond the sum in the notice, without any extra payment therefor, was a waiver of the notice." But the later doctrine seems to exclude any presumption founded merely upon the knowledge of that fact, and requires some auxiliary circumstance to support it.^ If, however, the car- rier is told what is the value of the goods, and he is directed to charge what he pleases, and he chooses to charge only the ordinary hire, it is a waiver of the notice as to the goods.' So, an express agreement to carry a package of extraordinary value for the common hire, will be a waiver of the notice, even if made by one partner only, if it be within the scope of his authority.^ ' Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611, 627, 628. See also Lyon v. Mells, 5 East, 428 ; Sharp v. Grey, 9 Bing. 457 ; ante, § 509, 562, {and note (4) to § 562;} post, § 592. 2 Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611, 627, 628. See also Lyon v. Mells, 5 East, 428 ; Sharp v. Grey, 9 Bing. 457 ; ante, § 509, 562; j9os(, § 592. 8 Ibid. * Ante, § 567-569. 6 Beck V. Evans, 16 East, 244; Down v. Fromont, 4 Camp. 40; Brooke V. Pickwick, 4 Bing. 218; ante, § 563, 567, 568, 569. 8 Marsh v. Home, 5 Barn. & Cressw. 322. ^ ' Evans v. Soule, 2 Maale & Selw. 1 ; Wilson v. Freeman, 3 Camp. 527. ' Helsby v. Mears, 5 Bam. & Cressw. 504. { See also Minter v. Pacific R. Co., 41 Mo. 503.} 560 COMMON CAEEIEES. [CH. VI. § 573. This head respecting notices may be concluded by- stating, that in cases of notice the burden of proof of negli- gence is on the party who sends the goods, and not of due diligence on the part of the carrier ; which is contrary to the general rule in cases of carriers where there is no notice.^ 1 Marsh v. Home, 5 Barn. & Cressw. 322, 327; Riley v. Home, 5 Bing. 217, 226; ante, § 529. See also ante, § 410, 454, 457; [5 Am. Law Rev. (1871) 205;] |Manii v. Birohard, 40 Vt. 326; Gaines v. Union Trans. Co., 28 Ohio St. 418; Czech v. General Steam Nav. Co., L. R. 3 C. P. 17; Richards v. Doe, 100 Mass. 524. } [The rights and duties of railway carriers have been much affected in England by recent statutory enactments, the most important of which, passed in 1854, called the "Railway and Canal TraflBc Act" (17 & 18 Vict. oh. 31), is here inserted, with references to some decisions upon it. § 1 merely defines the meaning of the phrases : " The Board of Trade," "Traffic," "Railway," "Canal," "Railway Company," " Canal Company," " Railway and Canal Company." § 2 provides, that every railway company, canal company, and rail- way and canal company, shall, according to their respective powers, afford all reasonable facilities for the receiving and forwarding and deliv- er! ng of traffic upon and from the several railways and canals, belonging to or worked by such companies respectively, and for the return of car- riages, trucks, boats, and other vehicles ; and no such company shall make or give any undue or unreasonable preference or advantage to or in favor of any particular person or company, or any particular description of traffic, in any respect whatsoever ; nor shall any such company subject any particular person or company, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage, in any respect whatsoever ; and every railway company, and canal company, and rail- way and canal company, having or working railways or canals, which form part of a continuous line of railway or canal or railway and canal communication, or which have the terminus, station, or wharf of the one near the terminus, station, or wharf of the other, shall afford all due and reasonable facilities for receiving and forwarding all the traffic arriving by one of such railways or canals, by the other, without any unreason- able delay, and without any such preference or advantage, or prejudice or disadvantage, as aforesaid; and so that no obstruction may be offered to the public desirous of using such railways or canals or railways and canals as a continuous line of communication, and so that all reasonable accommodation may, by means of the railways and canals of the several companies, be at all times afforded to the pubhc in that behalf. § 3 enacts, that it shall be lawful for any company or person, com- plaining against any such companies or company of any thing done, or of any omission made in violation or contravention of this act, to apply in a summary way, by motion or summons, in England to her Majesty's CH. VI.] COMMON CAEEIEES. 561 § 574. Seventhly. The next inquiry is, What will excuse or justify a non-delivery of the goods by a common carrier. Court of Common Pleas at Westminster, or in Ireland to any of her Majesty's superior courts in Dublin, or in Scotland to the Court of Ses- sion in Scotland, as the case may be, or to any judge of any such court; and upon the certificate to her Majesty's Attorney-General in England or Ireland, or her Majesty's Lord Advocate in Scotland, of the Board of Trade, alleging any such violation or contravention of this act, by any such companies or company, it shall also be lawful for the said Attorney- General or Lord Advocate, to apply in like manner to any such court or judge, and in either of such cases it shall be lawful for such court or judge to hear and determine the matter of such complaint; and for that purpose, if such court or judge shall think fit, to direct and prosecute, in such mode, and by such engineers, barristers, or other persons, as they shall think proper, all such inquiries as may be deemed necessary to enable such court or judge to form a just judgment on the matter of such complaint; and if it be made to appear to such court or judge on such hearing, or on the report of any such persons, that any thing has been done, or omission made, in violation or contravention of this act, by such company or companies, it shall be lawful for such court or judge to issue a writ of injunction or interdict, restraining such company or companies from further continuing such violation or contravention of the act, and enjoining obedience to the same; and in case of disobedience of any such ■writ of injunction or interdict, it is made lawful for such court or judge to order that a writ or writs of attachment, or any other process of such court incident or applicable to writs of injunction or interdict, shall issue against any one or more of the directors of any company, or against any owner, lessee, contractor, or other person failing to obey such writ of injunction or interdict ; and such court or judge is also empowered, if they or he shall think fit, to make an order directing the payment by any one or more of such companies of such sum of money as such court or judge shall determine, not exceeding for each company the sum of two hundred pounds for every day, after a day to be named in the order, that such company or companies shall fail to obey such injunction or interdict; and such moneys shall be payable as the court or judge may direct, either to the party complaining, or into court to abide the ultimate decision of the court, or to her Majesty; and payment thereof may, without prejudice to any other mode of recovering the same, be enforced by attachment or order in the nature of a writ of execution, in like manner as if the same had been recovered by decree or judgment in any superior court at West- minster or Dublin, in England or Ireland, and in Scotland by such dili- gence as is competent on an extracted decree of the Court of Session ; and in any such proceeding as aforesaid, such court or judge may order and determine, that all or any costs thereof, or thereon incurred, shall and may be paid by or to the one party or the other, as such court or 562 COMMON CAREIEES. [CH. VI. From what has been said, it is a sufficient excuse or justifica- tion for him to show that, without any negligence ou his part, judge shall think fit; and it shall be lawful for any such engineer, bar- rister, or other person, if directed so to do by such court or judge, to receive evidence on oath relating to the matter of any such inquiry, and to administer such oath. § 4 declares it shall be lawful for the said Court of Common Pleas at Westminster, or any three of the judges thereof, of whom the Chief Justice shall be one, and it shall be lawful for the said courts in Dublin, or any nine of the judges thereof, of whom the Lord Chancellor, the Master of the Rolls, the Lords Chief Justice of the Queen's Bench and Common Pleas, and the Lord Chief Baron of the Exchequer, shall be five, from time to time to make all such general rules and orders as to the forms of proceedings and process, and all other matters and things touching the practice and otherwise in carrying this act into execution before such courts and judges as they may think fit, in England or Ire- land; and in Scotland, it shall be lawful for the Court of Session to make such acts of Sederunt for the like purpose as they shall think fit. § 5. Upon the application of any party aggrieved by the order made upon any such motion or summons as aforesaid, it shall be lawful for the court or judge by whom such order was made, to direct, if they think fit so to do, such motion or application on summons to be reheard before such court or judge, and upon such rehearing to rescind or vary such order. § 6 provides that no proceeding shall be taken for any violation or contravention of the above enactment, except in the manner herein pro- vided; but nothing herein contained shall take away or diminish any rights, remedies, or privileges of any person or company against any railway or canal, or railway and canal company, under the existing law. § 7. Every such company as aforesaid shall be liable for the loss of, or for any injury done to, any horses, cattle, or other animals, or to any articles, goods, or things, in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its ser- vants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability; every such notice, condition, or declaration being hereby declared to be null and void: Provided always, that nothing herein con- tained shall be construed to prevent the said companies from making such conditions with respect to the receiving, forwarding, and delivering of any of the said animals, articles, goods, or things, as shall be adjudged by the court or judge before whom any question relating thereto shall be tried, to be just and reasonable: Provided always, that no greater dam- ages shall be recovered for the loss of, or for any injury done to any of such animals, beyond the sums hereinafter mentioned; (that is to say) for any horse, fifty pounds; for any neat-cattle, per head, fifteen pounds; CH. VI.] COMMON CARRIERS. 563 the goods have been lost by the act of God, or of the public enemy ; and in cases of special limitations of responsibility for any sheep or pigs, per head, two pounds; unless the person sending or delivering the same to such company shall, at the time of such deliv- ery, have declared them to be respectively of higher value than as above mentioned; in which case it shall be lavfful for such company to demand and receive, by way of compensation for the increased risk and care thereby occasioned, a reasonable percentage upon the excess of the value so declared above the respective sums so limited as aforesaid, and which shall be paid in addition to the ordinary rate of charge ; andsuch per- centage or increased rate of charge shall be notified in the manner pre- scribed in the statute 11 Geo. 4, and 1 Will. 4, ch. 68 {see ante, p. 538, n. (1)1, and shall be binding upon such company in the manner therein mentioned: Provided also, that the proof of the Value of such animals, articles, goods, and things, and the amount of the injury done thereto, shall in all cases lie upon the person claiming compensation for such loss or injury: Provided also, that no special contract between such company and any other parties respecting the receiving, forwarding, or delivering of any animals, articles, goods, or things as aforesaid, shall be binding upon or affect any such party, unless the same be signed by him or by the person delivering such animals, articles, goods, or things respectively for carriage: Provided also, that nothhig herein contained shall alter or affect the rights, privileges, or liabilities of any such company under the said act of 11 Geo. 4, and 1 Will. 4, ch. 68, with respect to articles of the descriptions mentioned -in the said act.] j For the decisions made upon this statute, see Fisher's Harr. Digest, " Carrier," p. 1466; 4 Chitty's Statutes (1885), " Railways," p. 65. By Act 31 & 32 Vict. ch. 119, § 16 (1868), the provisions of the Railway and Canal Traffic Act, so far as applicable, are extended to steam vessels. See Cohen v. South Eastern R., 1 Ex. D. 217. The provisions of § 2 of the Railway and Canal Traffic Act have already been incidentally considered. Ante, p. 484, note (3). This section was designed to afford a remedy against an undue preference or undue prejudice to a particular individual or class in respect of the carrier's traffic. Bennett v. Manchester R., 6 C. B. n. s. 707; Evershed v. Lon- don R., 2 Q. B. D. 254, 267. As to what is "undue preference," see Garton v. Bristol R., 6 C. B. n. s. 639; Baxendale v. London & South Western R., 12 C. B. n. s. 758. Injunction is a remedy granted at dis- cretion to restrain the company from acts of undue preference. Each case is decided according to its peculiar circumstances. Palmer v. London & South Western R., L. R. 1 C. P. 589. It should be noted that an action will lie to recover for overcharges made by way of undue prefer- ence. Evershed v. London R. , 2 Q. B. D. 254; Great Western R. v. Sutton, L. R. 4 H. L. 226. Under § 7 of this statute are numerous decisions. The words " other 564 COMMON CARRIERS. [CH. VI. by notices or otherwise, that the loss has been by other per- ils, against which he did not insure, or under circumstances which do not affect him with the imputation of undue negli- gence.i But it constitutes no excuse for him, that he has made a delivery to the wrong person in consequence of a forged order.2 Under the ordinary contract of common car- riers, the burden of proof of the excuse or justification lies on him ; ^ but in cases of notices (as has been already seen),* the burden of proof of negligence rests on the party who delivers the goods. § 575. But there are also cases, where the carrier's own agency is concerned in the loss, which, however, is by law deemed excusable. Thus, in cases of throwing goods over- board to lighten a ship or boat and preserve life, the carrier will be excused, if it has arisen from necessity.^ Thus, if a animals" include dogs. Harrison u. London, &c. E., 2 B. & S. 122. Among the " articles, goods, or things " which require reasonable condi- tions in order to limit the carrier's responsibility may be enumerated a passenger's luggage. Cohen v. South Eastern R., 1 Ex. D. 217. Contra, Stewart v. London R., 3 H. & C. 135. See Henderson v. Stevenson, L. R. 2 H. L. Sc. 470. A leading object of this section is pointed out, ante, p. 529, n. (1), together with some of the decisions. The question appears not yet to be decisively settled how far the carrier may specially stipulate against liability for his own negligence. Ibid. As to conditions " just and rea- sonable," see further, M'Manus v. Lancashire R., 4 H. & N. 349 ; Harrison V. London, &c. R., 2B. & S. 122; Peeks. North Staffordshire R., 10 H. L. Cas. 473; Rooth v. North Eastern R., L. R. 2 Ex. 173; Lord v. Midland R., L. R. 2 C. P. 339; D'Arc v. London, &c. R., L. R. 9 C. P. 325. The conditions spoken of in this section must not only be, in the opinion of the court or judge, just and reasonable, but must also be embodied in a special contract in writing, signed by the owner or sender of the goods. Peek V. North Staffordshire R., 10 II. L. Cas. 473; Doolan v. Midland R., 2 App. Cas. 792. j 1 See ante, § 573; Id. § 570, 571. 2 Powell V. Myers, 26 Wend. 591. See Devereux v. Barclay, 2 Barn. & Aid. 702; ante, § 545b, 570; {American Merchants' Ex. Co. v. Milk, 73 111. 224. } » Ante, § 529. But see Muddle v. Stride, 9 Carr. & Payne, 380. < Ante, § 573. 6 Abbott on Shipp. P. 3, ch. 8, § 2-4, 5th edit.; ante, § 525, 530 a, 531 ; 2 Kent, Comm. Lect. 40, p. 604, 4th edit. CH. VI.J COMMON OAERIEKS. 565 ferryman should, in a storm, throw overboard even a box of jewels, if it was done from absolute necessity to save life, he would stand excused.^ But if it was done without neces- sity, or rashly and imprudently, it would be otherwise.^ § 576. A carrier may also show in his defence, that the goods have perished by some internal defect, without any fault on his side ; for his warranty does not extend to such cases.3 And if, from the nature of the goods carried, they are liable to peculiar risks, and the carrier takes all reason- able care, and uses all proper precautions to prevent injuries, and if, notwithstanding, they are destroyed by such risks, he is excusable. Thus if horses or other animals are transported by water, and in consequence of a storm they break down the partitions between them, and by kicking each other some of them are killed, the carrier will be excused ; and it will be deemed a loss by perils of the sea.* ' Mouse's case, 12 Co. 63 ; Barcroft's case, cited in Kenrig v. Eggleston, Alcyn, 93 ; Smith v. Wright, 1 Cain. 43; 2 Kent, Coram. Lect. 40, p. 604, 4th edit.; antu, § 525, 531; Jones on Bailm. 107, 108. '^ Barcroft's case, cited in Kenrig v. Eggleston, Aleyn, 93; Jones on Bailm. 107, 108; Bird v. Astcock, 2 Bulst. 280; 2 Roll. Abridg. 567; ante, § 525, 531. » Ante, § 492 a. * Gabay v. Lloyd, 3 Barn. & Cressw. 793 ; Lawrence v. Aberdein, 5 Barn. & Aid. 107. [But see Porterfield v. Humphreys, 8 Humph. 497.] { The transportation of animals gives rise to peculiar rules of liability. The party transporting does not undertake to keep an animal alive to the journey's end, merely because the law treats his occupation as that of common carrier. For loss or injury caused by the viciousness or unruli- ness of the live-stock during transportation the carrier is not responsible. Hall V. Renfro, 3 Met. (Ky.) 51; Smith v. New Haven R., 12 Allen, 531 ; Conger v. Hudson River R., 6 Duer, 375; Clarke v. Rochester R., 4 Kern. 570; Blower v. Great Western R., L. R. 7 C. P. 655; Kendall v. London R. , L. R. 7 Ex. 373 ; Pratt v. Ogdensburg R. , 102 Mass. 557 ; Railroad Co. V. Pratt, 22 Wall. 123. Nor for the death of an animal from natural causes. See further, Nugent v. Smith, 1 C. P. D. 19, 423. But he is never- theless bound to use cars of sufficient strength ; and, though the animals be unruly and vicious, must answer for injuries caused by their breaking through defective cars. Ante, p. 547, n. (4); Smiths. New Haven, &c.R., 12 Allen, 531. He mustnot, by neglecting to feed or water them, endanger their lives. Toledo, &o. R. v. Thompson, 71 111. 434 ; Illinois Central R. V. Adams, 42 111. 474 ; Harris v. Northern Indiana R., 20 N. Y. 232. See 566 COMMON CAEEIERS. [CH. VI. § 577. In respect to the carriage of slaves, a question has been made, how far the carrier incurs the common-law re- sponsibility. A slave has volition and feelings, which cannot be entirely disregarded. These properties cannot be over- looked in conveying him from place to place. He cannot be stowed away like a common package. Not only does human- ity forbid this proceeding, but it might endanger his life and healtli. Consequently, this rigorous mode of proceeding can- not be safely adopted, unless stipulated for by express con- tract. The slave, being at liberty to escape, may escape. The carrier has not, and cannot have, the same absolute con- trol over him that he has over inanimate matter. In the na- ture of things, and in his character, he resembles a passenger, and not a package of goods. It would seem reasonable, therefore, that the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods. For these reasons, it has been held, that the doctrine of common carriers, as to goods, does not apply to the car- riage of slaves, and that the carrier is not liable for the loss of slaves, unless it has been caused by the negligence or Gorris v. Scott, L. R. 9 Ex. 125; Doolan v. Midland R., 2 App. Cas. 792. He is certainly liable for any injury ■which he could, by care and diligence, have prevented. And, since the occasion of his exemption from an insurer's liability where he transports animals may be thought analo- gous to the case where goods spoil or deteriorate from internal defects, the principle is often affirmed that one who transports animals is, in general, liable on the footing of a common carrier. White v. Winnisimmet Co., 7 Cush. 155 ; Clarke v. Rochester R. , 4 Kern. 570; Kansas Pacific R. v. Reynolds, 17 Kansas, 251. If the consi'jnor or his servant travels in charge of live-stock, as is not unfrequent, the carrier, it seems, is not answerable for loss caused by the negligence of the person having charge. Wilsons v. Hamilton, 4 Ohio St. 722. And see Evans v. Fitchburg R. , 111 Ma.ss. 142. But he certainly is for damage caused by his own negligence. Sneesby v. Lancashire R. Co. , L. R. 9 Q. B. 263; s. c. 1 Q. B. D. 42; Gill v. Manchester R., L. R. 8 Q. B. 186. As to the proper method of securing a dog or other animal for transportation, see Richardson v. North Eastern R., L. R. 7 C. P. 75 ; distinguishing Stuart v. Crawley, 2 Stark. 323. See further, Powell v. Penn. R., 82 Penn. St. 414; Evans v. Dunbar, 117 Mass. 516; East Tennessee R. v. Whittle, 27 Ga. 535; ante, § 492 a.} CH. VI.] COMMON CAKRIEES. 567 unskilfiilness of himself, or of his agents.^ Therefore, where certain slaves in the yawl of a steamboat carrier were upset and drowned, it was decided that the carrier was not respon- sible for the loss, unless it was caused by the negligence or unskilfulness of himself or his agents.^ § 577 a. In the Roman law, the case of the wounding or killing of a slave, by the overturning of a passenger-coach through the carelessness or misconduct of the coachman, is treated as a clear case of liability on the part of the owner of the coach, as imputable to negligence. " Quseritur, si cisia- rius, id est carucarius, dum cseteros transire contendit, cisium evertit, et servum quassavit, vel occidit. Puto (says Ulpian) ex locato esse in eum actionem ; temperare enim debuit. Sed et utilis Aquilia ei dabitur." * § 578. A non-delivery will also be excused by any act of the shipper which discharges the carrier from any further re- sponsibility.* As if, with the consent of the shipper, he delivers them over to another carrier ; or he deposits them at ^ Boyce v. Anderson, 2 Peters, 150 ; Stokes v. Saltonstall, 13 Peters, 181; ante, § 216, 217. [See also Swigert o. Graham, 7 B. Monr. 661; McCleuaghani;. Brock, 5 Rich. 17 ;] (Mitchell v. Western R , 30 Ga. 22. j ^ Boyce b. Anderson, 2 Peters, 150. It has been sometimes supposed (and so it was stated in the first edition of the present work), that the Court in this case laid down the rule, that the carrier of slaves was not responsible for any loss of the slaves in the course of the voyage or journey, unless the carrier was guilty of ordinary negligence. But, although there is some suggestion to this effect made arguendo, in the reasoning of Mr. Chief Justice Marshall, in delivering the opinion of the Court, yet it will be found, upon a careful examination of ttie result, as stated in the close of the opinion, that the Court did not intend so to state the doctrine. " We think," is the language, " that, in the case stated for the instruction of the Circuit Court, the defendants were responsible only in the event of its (the loss of the slaves) being caused by the negligence or the unskil- fulness of the defendants or their agents." Id. p. 156. See also Stokes V. Saltonstall, 13 Peters, 181, 192. Perhaps the rule as thus laid down does not essentially differ from what is applicable to other passengers. Williams v. Taylor, 4 Porter, 234, 288; Clark v. McDonald, 4 McCord, 223. S,Qapost, § 601, 602. » Dig. Lib. 19, tit. 2, 1. 13 [prcem-l ; Pothier, Pand. Lib. 19, tit. 2, n. 29; ante, § 400, 401. * Boyce v. Anderson, 2 Peters, 150 ; Gregson v. Gilbert, Park, Insur. ch. 3, § 4, note. 568 COMMON CAEEIEES. [CH. VI. an intermediate place, to await the future orders of the ship- per ; or if the shipper takes them into the exclusive custody of himself or his own servants.^ But it will be otherwise, if he merely accompanies them in their transit, not exercising any exclusive custody over them.^ § 679. In like manner, the carrier will be excused for a non-deliverj'-, if it has been occasioned by the illegal act of the shipper.^ Thus, if the goods have been forfeited by the illegal act of the shipper, and are seized for the forfeiture, the carrier is discharged.* But a mere seizure for a supposed forfeiture, if it is in fact without any justifiable cause, leaves the carrier still bound by his contract.^ § 580. But an excuse, which in a practical sense is much more important and extensive, is that resulting from the right of the shipper to stop the goods in the possession of the car- rier, while they are still in transit. This right is commonly called in the common law the right of stoppage in transitu. Whenever it arises, and is properly exercised, the carrier is completely discharged from all further responsibility. § 581. This is not the place for a full discussion of this sub- ject, as it belongs more appropriately to another branch of commercial and maritime jurisprudence.^ It maj', however, be useful to state some few particulars with respect to it. When goods are shipped on a credit by a seller or consignor, and the consignee or buyer becomes insolvent, or has failed before their arrival, the law, in order to prevent the loss which would otherwise happen to the seller or consignor, allows him, in many cases, to countermand the delivery, and at or 1 Ante, § 269,541, 542; Sparrow v. Caruthers, 2 Str. 1236; Hurry u. Royal Exch. Assur. Co., 2 Bos. & Pull. 430; Ruckerw. Lond. Assur. Co., Marsh. Insur. B. 1, ch. 7, § 5, p. 252, &c., 2d edit.; Barnwell v. Hussy, 1 Const. (S. C.) 114; East India Co. v. PuUen, 1 Str. 690; Sanderson u. Lamberton, 6 Binn. 129 ; Strong v. Natally, 1 Bos. & Pull. N. R. 16 ; Parsons v. Hardy, 14 Wend. 215; Bowman v. Teall, 23 Wend. 306; Todd V. Figley, 7 Watts, 542. 2 Robinson v. Duninore, 2 Bos. & Pull. 419; 1 Roll. Abridg. 2, C. PI. 3; Marsh. Insur. B. 1, ch. 7, § 5, p. 252, &c., 2d edit.; ante, § 533, 534. 8 Ante, § 492 a. * Gosling V. Higgins, 1 Camp. 451. ^ Ibid. 8 See Abbott on Shipp. P. 3, ch. 9, per tot. p. 364 to 396, 5th edit. CH. YI.] COMMON CARRIERS. 569 before the arrival of the goods at the place of destination, to cause them t^ be redelivered to himself, or to some other person, appointed to act for him.^ This is usually called a stoppage in transitu.^ In such a case, the delivery to the carrier is supposed to vest the title to the property in the buyer, subject only to this right of devestment or stoppage in transitu. This right, however (as will be at once perceived), is not an unlimited right. It exists only in cases where all the following circumstances concur : where the goods are sold on a credit ; where the consignee is insolvent ; where the goods are still in transit, and have not been delivered to the consignee ; and where the buyer has not yet parted with his ownership to any bond fide purchaser without notice un- der him. Each of these requisites is important enough to deserve a separate discussion in its proper place ; and espe- cially the question, under what circumstances the transit is or is not at an end, which is full of nice distinctions and curious learning. At present, no more is necessary in this place than to bestow this hasty glance upon them.^ § 582. Another excuse which may be asserted, under certain circumstances, is, when the goods are demanded or taken from the possession of the carrier by some person having a superior title to the property.* In general, the carrier is not permitted to dispute the title of the person who delivers the goods to him, or to set up an adverse title to defeat his right of action growing out of his contract.^ And this is emphati- cally the rule, when that adverse claim is not asserted by the superior claimant himself, but is merely asserted by the carrier 1 Abbott on Shipp. P. 3, ch. 9, § 1, p. 364, 5th edit. 2 Ibid. 5 The subject is considered at large in Lord Tenterden's Treatise on Shipping. See Abbott on Shipp. P. 3, ch. 9, per tot. p. 364 to 396, 5th edit. {And see 2 Sch. Pers. Prop. 586-599; Ex parte Barrow, 6 Ch. D. 783; Newhall v. Central Paciiio R., 51 Cal. 345.} * Ante, § 266 ; [Coombs v. Bristol & Exeter Railway, 3 Hurl. & Norm. 1 ; Bliven v. Hudson River Railroad, 35 Barb. 188; {36 N. Y. 403;} Bates V. Stanton, 1 Duer, 79.] ' Laclouch V. Towle, 3 Esp. 115. See also Kieran v. Sandars, 6 Ad. & El. 515; Nickolson v. Knowles, 5 Madd. 47; Story on Agency, § 217; 2 Story on Eq. Jurisp. § 814 to 817 ; ante, § 264, 450. 570 COMMON CARRIERS. [CH. VI. of his own mere motion.^ Formerly, it seems to have been thought, that if the adverse title was asserted by the superior claimant, and the carrier had due notice of it, and was forbid- den to deliver it to the bailor, he might protect himself from responsibilit}', and set up such title against the bailor. ^ But this doctrine, although perhaps maintainable in some cases under sjiecial circumstances, is now deemed to be generally untenable ; ^ and therefore the carrier may be placed in a position in which he cannot safely deliver the goods to either 1 See Story on Agency, § 217; 2 Story on Eq. Jurisp. § 816, 817; ante, §450. 2 Ogle V. Atkinson, 5 Taunt. 759; [Bales v. Stanton, 1 Duer, 79;] ante, §450. 8 Ante, § 266. [In Sheridan v. The New Quay Co., 4 C. B. n. s. 649, Willes, J., says : " The defendants were common carriers. The law would have protected them against the real owner, if they had dehvered the goods in pursuance of their employment, without notice of his claim. It ought equally to protect them against the pseudo owner, from whom they could not refuse to receive the goods, in the present event of the real owner claiming the goods, and their being given up to him. The com- pulsory character of the employment of a carrier furnishes ample ground for so holding; and we do not assent to the altered statement of the law in the later editions of Story on Bailments, § 266 and 582, the earlier editions of that valuable work having laid it down in accordance with our view." See the 2d edit, of Story on Bailments, § 582, published in 1839. The changes above referred to were made by the learned author of this work in his lifetime. See also, as to the right of a bailee to set up the jus terlii. King v. Richards, 6 Whart. 418; Bates v. Stanton, 1 Duer, 79; Beach v. Berdell, 2 Duer, 327; European Royal Mail Co. v. Royal Mail Steam Packet Co., 10 C. B. n. s. 860. It seems to be now well settled, that a bailee is estopped from disputing the title of his bailor, and setting up the /us terlii, unless the bailment has been determined by what is equivalent to an eviction by title paramount; and then he may. See Biddle v. Bond, 6 B. & S. 225, {and cases cited in opinion;} Thorne v. Tilbury, 3 H. & N. 537; Betteley v. Reed, 4 Q. B. 511; Wallace v. Matthews, 39 Ga. 617 ; Gerber v. Monie, 56 Barb. 652. See further, Wareham Bank v. Burt, 5 Allen, 113.] jAVhere goods are attached while in the hands of a common carrier for transportation, the carrier must not give them up to the consignee pending the proceeding in attachment. Stiles u. D-ivis, 1 Black (U. S ) , 101. But that the goods have been taken from the carrier by an improper at- tachment will not justify his failure to deliver them to the consignee. Kifi V. Old Colony R., 117 Mass. 591; Edwardsu. White Line Transit Co., 104 Mass. 159.1 CH. VI.] COMMON CARRIERS. 671 party. For where the adverse title is made known to the carrier, if he is forbidden to deliver the goods to any other person, he acts at his peril ; and if the adverse title is well founded, and he resists it, he is liable to an action for the recovery of the goods by the person setting up such adverse title.i § 582 a. Where a common carrier has been guilty of neg- ligence, whereby the owner of the goods has sustained an injury, the subsequent acceptance of the goods by the owner is no bar to an action for such injury ; for nothing short of a release or satisfaction constitutes such a bar. But it may be given in evidence, in mitigation of damages, so as to limit the amount to the actual loss sustained by the owner. ^ §583. Eighthly. Thedoctrineof average and contribution. This principally arises in cases of jettison, and other accidents in the transportation of goods by sea.^ In such cases, where goods are thrown overboard for the common benefit, or other positive sacrifices are made or expenses incurred for the same purpose, the law allows a compensation to those who have made the sacrifice, and have incurred the loss or expense ; and they may demand apro raid contribution from all other per- sons deriving a benefit therefrom according to their interest, toward the loss or expense. This, in cases of accidents at sea, is called a general average, or general contribution, in which ship, cargo, and freight are compelled to contribute, according to their value, to repay the common loss. It seems that, in this contribution to general average, there is no difference whether the goods belong to the government or to private shippers.* But the full discussion of this subject properly belongs to a treatise on the law of shipping.^ 1 Taylor v. Plumer, 3 M. & Selw. 562 ; Wilson v. Anderton, 1 Barn. & Aid. 450; 2 Story on Eq. Jurisp. § 816, 817; ante, § 266, 450; Story on Agency, § 217. 2 Bowman v. Teall, 23 Wend. 806 ; Baylis v. Usher, 4 Moore & Payne, 790; 8. c. under the name of Bayliss v. Fisher, 7 Bing. 153; Willoughby V. Backhouse, 2 Barn. & Cressw. 821. See Hand v. Baynes, 4 Whart. 204, that the value of the goods lost is the ordinary rule of damages. 8 See ante, § 525, 530, 575; Story on Agency, § 118. * United States v. AVilder, 3 Sumn. 308. * Abbott on Shipp. P. 3, oh. 8, 5th edit. ; Stevens on Average, Benecke 572 COMMON CARRIERS. [CH. VI. § 584. Carriers on land may also entitle themselves, if not to a common contribution in the nature of a general average, at least to a compensation for expenses necessarily incurred by them about the preservation of the goods from extraordinary perils, which do not properly belong to themselves as carriers.^ Thus, if a sudden flood or storm should do injury to the goods, and require some immediate expense for their preservation, the carrier will be bound to incur it, and will be entitled to a Teimbursemeiit.^ § 585. Ninthly. The general rights of carriers. In virtue of the delivery of the goods, they acquire a special property in them, and may maintain an action against any person who displaces that possession or does any injury to them.^ This right arises from their general interest in conveying the goods, and their responsibility for any loss or injury to them during their transit.* And, having once acquired the lawful posses- sion of the goods for the purpose of carriage, the carrier is not obliged to restore them to the owner again, even if the carriage is dispensed with, unless upon being paid his due remuneration ; for by the delivery he has already incurred certain risks.^ § 586. A carrier is in all cases entitled to demand the price or liire of carriage, before he receives the goods ; and if it is not paid, he may refuse to take charge of them. If, however, he takes charge of them without the hire being paid, he may afterwards recover it.^ on Insurance, Park on Insurance, and Marshall on Insurance, in their re- spective chapters on General Average. 1 Story on Agency, § 141 ; The Gratitudine, 3 Eob. Adm. 255 to 258; ante, § 389. 2 Ibid. {And see Kingston v. Wendt, 1 Q. B. D. 367.} ' Bac. Ahridg. Contract, C. ; Jones on Bailm. 80 ; Goodwin v. Richard- son, 1 Roll. Abridg. 5 ; Arnold v. JeSerson, 1 Ld. Raym. 275; Wilbra- ham V. Snow, 1 Vent. 52; s. c. 2 Saund. 47 b, 47 c, and note. * Ibid. {See Angell, Carriers, § 348-417.} ' Bradhurst v. Columbian Ins. Co., 9 Johns. 17; Herbert v. Hallett, 3 Johns. Cas. 93; Higgins v. Bretherton, 5 Carr. & Payne, 2. ° Wright V. Snell, 5 Barn. & Aid. 353; Jackson v. Rogers, 2 Show. 327 ; Morse v. Slue, 1 Vent. 238; Batson v. Donovan, 4 Barn. & Aid. 32; Rex V. Kilderby, 1 Saund. by Williams, 312 a. [Subject, however, to any CH. VI.] COMMON CAEEIEES. 573 § 587. The compensation, which becomes due for the car- riage of goods by sea, is commonly called freight ; and the circumstances, under which the whole or a part only of the freight is earned, form a head of great practical importance under the law of shipping. It will accordingly be found treated of at large in professed treatises on that subject.^ § 588. The carrier is also entitled to a lien on the goods for his hire,^ and is not compellable to deliver them until he receives it unless he has entered into some special contract, by which it is waived.^ His lien may also be defeated by deduction for damages to the goods through his fault. Fitchburg Rail- road V. Hanna, 6 Gray, 539; Bancroft v. Peters, 4 Mich. 619.] {That a legislature may fix the maximum compensation for railroads, see Chicago, &o. Railroad v. Ackley, 94 U. S. Supr. 179 ; Peik v. Chicago R., 94 U. S. Supr. 164.} 1 Abbott on Shipp. P. 3, ch. 7, 5th edit.; {Angell on Carriers, § 391- 417.} 2 [And for his advances to others for freight and storage. White v. Vann, 6 Humph. 70; Briggs v. Boston & Lowell Railroad Co., 6 Allen, 246.] 8 Skinner v. Upshaw, 2 Ld. Raym. 752 ; Sodergren v. Flight, 6 East, 622 ; Hutton v. Bragg, 2 Marsh. 345; Stevenson ». Blakelock, 1 Maule & Selw. 543; Chase v. AVestmore, 5 Maule & Selw. 186; Crawshayc. Hom- fray, 4 Barn. & Aid. 50; Rushforth v. Hadfield, 6 East, 522; 2 Kent, Comm. Lect. 40, p. 611 ; Id. Lect. 41, p. 634 to 642, 4th edit. ; [Hunt v. Haskell, 24 Me. 339 ; Gledstanes v. Allen, 22 Eng. Law & Eq. 382; s. c. 12 C. B. 202. See Paynter v. James, Law Rep. 2 C. P. 348 ; Foster v. Colby, 3 H. & N. 705; {The Kimball, 3 Wall. 37; The Bird of Para- dise, 5 Wall. 545. } His lien, however, does not authorize him to sell the goods without any legal proceedings. Sullivan v. Park, 33 Me. 438; Briggs V. Boston & Lowell Railroad Co., 6 Allen, 246; {IndianapoUs R. V. Herndon, 81 111. 143.} Nor has he a lien thereon for former freight unpaid, nor for other indebtedness. Adams v. Clark, 9 Cush. 215.] {Nor can he make the lien cover overcharges. Long k. Mobile R., 51 Ala. 512. Nor charges against the government. Briggs v. Light Boats, 11 Allen, 157 ; The Davis, 10 Wall. 15. As to cartage charges, see Cahn v. Michigan Central R., 71 111. 96. See further, Richardson v. Rich, 104 Mass. 156. But the carrier's lien is sometimes extended so as to cover extraordi- nary expenses incurred by him in preserving the property. Hingston v. Wendt, 1 Q. B. D. 367. There may be a general lien, by virtue of cus- tom or usage, or under a special contract. Angell, Carriers, § 358-362. } 674 COMMON CAEEIEES. [CH. VI. giving up the possession of the goods; and if it is once waived, it cannot afterwards be resumed. ^ § 589. The consignor or shipper is ordinarily bound to the carrier for the hire or freight of the goods.^ But wlienever the consignee engages to pay it, he also may become respon- sible.^ It is usual for bills of lading to state that the goods are to be delivered to the consignee or to his assigns, he or they paying freight ; in which case the consignee and his assigns, by accepting the goods, become by implication bound to pay the freight.* And the fact that the consignor is also liable to pay the freight, will not in such a case make any difference.^ 1 Kinloch v. Craig, 8 Term R. 119; Sweet v. Pym, 1 East, 4; Yates V. Railston, 8 Taunt. 293 ; 2 Kent, Comra. Lect. 40, p. 611 ; Id. Lect. 41, p. 634 to 642,4th edit.; Bowman r. Hilton, 11 Ohio, 303; [Sears w. Wills, 4 Allen, 212. {But see Bags of Linseed, 1 Black, 108, that such " giving up " should be unconditional. Concerning the effect of a partial delivery of the goods, see Fuller v. Bradley, 25 Penn. St. 120; Lane v. Old Colony R., 14 Gray, 143; Boggs v. Martin, 13 B. Monr. 239.} But this lien does not attach to goods wrongfully delivered to a car- rier by a person not the owner, although the carrier carry the goods innocently. Fitch v. Newberry, 1 Doug. (Mich.) 1; Waugh v. Den- ham, 16 Irish Law Rep. N. s. 405, an excellent case on this subject; Clark V. Lowell & Lawrence Railroad, 9 Gray, 231. See remarks of Fletcher, J., in Robinson v. Baker, 5 Cush. 137. Nor has a carrier who receives goods from a wrong-doer, a lien thereon for freight paid a previous car- rier, by whom the owner had directed them to be carried. Stevens v. Boston & ^Vorcester Railroad, 8 Gray, 262.] {And see Gilson v. Gwinn, 107 Mass. 126; Ames v. Palmer, 42 Me. 197.} 2 Moore v. AVilson, 1 Term R. 659; Abbott on Shipp. P. 3, ch. 2, §4, and note (1) to Amer. edit. 1829; Id. P. 3, ch. 7, § 4, and note (1) to Amer. edit. 1829; Barker v. Haven, 17 Johns. 237; Dougall v. Kemble, 3 Bing. 383 ; Moorsom v. Kymer, 2 Maule & Selw. 303 ; Christy f. Rowe, 1 Taunt. 300; Domett v. Beckford, 2 Nev. & Mann. 374 ; s. c. 5 Barn. & Adolph. 521 ; Shepard v. De Bernales, 13 East, 565. 8 Ibid. * Abbott on Shipp. P. 3, ch. 7, § 4, 5th edit. ; Dougal v. Kemble, 3 Bing. 383. ^ Abbott on Shipp. P. 3, ch. 7, § 4, 5th edit. ; Dougal v. Kemble, 3 Bing. 383; Moorsom v. Kymer, 2 Maule & Selw. 303 ; Darker v. Haven, 17 Johns. 237; Domett v. Beckford, 5 Barn. & Aid. 521; s. c. 2 Nev. & Mann. 374; Shepard v. De Bernales, 13 East, 565. [The consignor may maintain an action against the carrier, for injury CH. VI.J COMMON CAEEIERS. 575 to the goods, although he has no property, general or special, therein. Blanchard v. Page, 8 Gray, 281, where the subject is elaborately exam- ined by Shaw, C. J. The question often ai'ises. Who is the proper party to maintain an action against a carrier for goods lost or injured on the transit, — tlie con- signor or the consignee. Generally the action should be brought by the party who is at the very time of the loss or injury, the owner, general or special, of the goods. See Law o. Hatcher, 4 Blaekf. 364; Sanford v. Ilousatonic Railroad Co., 11 Cush. 155. The consignor, or consignee, merely as such, cannot sustain an action. See Coombs v. Bristol & Exe- ter Railway, 3 H. & N. 1. If by the particular circunistances under which the goods are sent the consignor still continues to be the owner, he may maintain the action. This is the case where goods are sent by the owner to be sold on commission. Sanford v. Housatonic Railroad Co., 11 Cush. 155. Or sent by any principal to his factor or agent. Price v. Powell, 3 Comst. 322; Wright v. Snell, 5 B. & Aid. 350; Sargent !•. Mor- ris, 3 B. & Aid. 277. Or of a conditional sale in case the goods are approved and accepted by the consignee after their receipt and examina- tion. Swain v. Shepherd, 1 Moo. & R. 223. And generally, wherever by reason of a non-compliance with the Statute of Frauds, or by reason of fraud in the vendee, or other circumstances, by which the property does not pass to the consignee, immediately upon delivery to the carrier, the consignor and original owner is the proper party to sue. Coats v. Chaplin, 3 Q. B. 483, a very important case on this point ; Stockdale v. Dunlop, 6 M. & W. 224; DufC v. Budd, 3 Br. & Bing. 177; 6 Moore, 469; Stephenson v. Hart, 1 Moore & Payne, 357 ; 4 Bing. 476. Such also has frequently been held to be the rule when goods ordered of the owner are sent by him through a general carrier, not designated by the purchaser, and who is also paid by the consignor. Goodwyn v. Douglas, 1 Cheves, 174; Coombs v. Bristol & Exeter Railway Co., 3 H. & N. 510, an elabo- rately considered case on this question. See W. & A. Railroad v. Kelly, 1 Head, 158. On the other hand, when under the circumstances the property vests in the consignee or vendee immediately upon delivery to the carrier, the goods are then at his risk, and he may maintain a suit for their loss. Dawes v. Peck, 8 Term R. 330, may be considered the leading authority on this subject, that if a vendor of goods deliver them to a particular car- rier, designated by the vendee, the former cannot sue the carrier for the loss although he pays the carrier. Dutton ». Solomonson, 3 B. & P. 582, went even further, holding that a delivery to any carrier, though not named by the vendee, was a sufficient delivery to place the property entirely at his risk of loss. But the only necessary point in judgment here was, whether the vendor could sue the vendee for goods sold and delivered; not necessarily whether the vendor might not sue the carrier for their loss. See on this point Potter v. Lansing, 1 Johns. 215; Green V. Clarke, 2 Kernan, 343; Arbuckle v. Thompson, 37 Penn. St. 170; 576 COMMON CAEEIERS. [CH. VI. Fragano v. Long, 4 B. & C. 219; Brown v. Hodgson, 2 Camp. 36; Everett v. Saltus, 15 Wend. 474; Price v. Powell, 3 Comst. 322; Ilsley w. Stubbs, 9 Mass. 65; White v. Vann, 6 Humph. 70; Vale v. Bayle, Cowp. 294; Bonner v. Marsh, 10 Sm. & Mar. .376; Dows v. Cobb, 12 Barb. 310; Ide V. Sadler, 18 Barb. 32; Canfield v. Northern Railroad, 18 Barb. 586; Cooke V. Ludlow, 5 B. & P. 119. There is still another class of cases, where ownership of property is not the controlling test of a right of action, and that is where the party bringing the action has himself made an actual contract with the carrier for the transit. In such cases it has been held that he may, by virtue of the privity of his contract, sue the carrier, although the complete title in the goods may not be in him, and although he may be answerable over to some other person having a larger interest in the goods. Mead v. South Western Railway Co., 18 Weekly Rep. 735 (1870), distinguishing Coombs u. Bristol & Exeter Railway Co., 3 H. & N. 510, on this very point. Indications of the same principle may be found in the language of Baron Parke in Freeman v. Birch, 1 Nev. & Man. 420; Davis v. James, 5 Burr. 2680; Moore v. Wilson, 1 Term R. 659; Robinson u. Dunmore, 2 B. & P. 416; Joseph v. Knox, 3 Camp. 320; Stephenson V. Hart, 1 Moore & Payne, 357. It is on this ground that a laundress who had returned the owner's linen to him by a carrier, whom she paid, has been allowed to recover of the carrier the full value of the property. Freeman v. Birch, 3 Q. B. 492; 1 Nev. & Man. 420. This result may be more obvious perhaps in cases where a regular bill of lading has been given, thus indicating in writing who are the contracting parties ; but the legal rights of the parties would seem to be the sanie in this respect, whether the contract be oral or written, if it be in the same terms. See Joseph ii. Knox, 3 Camp. 320; and the valuable opinions in Griffith*. Ingledew, 6 S. & R. 429; Hibbert v. Carter, 1 Term R. 745; Low v. De Wolf, 8 Pick. 101; Bonner v. Marsh, 10 Sm. & Mar. 376; Chandler v. Sprague, 5 Met. 306. Many of the adjudged cases may be reconciled upon the view that, in many instances, either party may bring the action, and a settlement with one would protect the carrier against a suit by the other, the party recovering in the first suit being responsible over to the other to the extent of his interest in the goods. But this consideration may not harmonize all the dicta, or even all the decisions on this vexed question.] {The subject of actions against carriers is treated at length in Angell, Carriers, § 418-520. On the principle of master and servant, the carrier may recover from a servant carelessly injuring the goods the amount for which he had to respond to the consignee. Smith v. Foran, 43 Conn. 124; Chicago R. v. Northern Line Packet, 70 111. 217.} CH. VI.] CAEEIEES OF PASSENGERS. 677 ART. IX. CARRIERS OP PASSENGERS. [§ 590. Passenger Carriers {in general j Nature of their Liability. 591. { Passenger Carriers by Land.} Their duties in the Commencement of the Journey. 591a. Obligation to Receive. (Subject to their reasonable Regulations.} 592. Hound to provide Suitable Vehicles. 693. Bound to provide Careful Drivers. 594. Bound not to overload the Coach. 595. Bound to take care of Luggage. 595. tu Bound to run their Trains as Advertised. 596. Bound for the Acts of their Servants and Agents. 597. Duties of Passenger Carriers on the Road. 598. The same subject. Precautions for the Safety of Passengers. 599. Rule of the Road in England. In America. When it may be disre- garded. 599 a. Rights of Foot-Passengers as to the Road. 600. Duties of Passenger Carriers at the Termination of the Journey. 601. Liabilities of Passenger Carriers. 601 a. Presumption of Negligence. 601 a, n. Liability beyond their own line. 602. Reasonable Skill and Diligence only required. 602. n. Liability in case of Death. 60.3. Right of Passenger Carriers |to their Compensation.} 603. n. Right to make j reasonable By-Laws and Regulations.} 604. Passenger Carrier's Lien. {Termination of Liability as to Baggage.} 605. Passenger Carriers by Water, — their Rights, Duties, and Liabilities. 606. New York Regulations for Canal-Boats. 607. Carrier- Vessels on the Ocean. Cases of Collision. 608-608 c. Four Varieties of Cases of Collision, according to Lord Stowell. 608 d. Limitation of Responsibility as to amount of Damage. 609. Case, where the Fault is inscrutable. 610. Loss by pure Accident, or by the Act of God, by whom to be borne. 611 . Essential Question in Cases of Collision. Rules of Law as to Precau- tion 611 a. Rules of Navigation in General. 611 6. Rules of Navigation by Steamers. 612. American Statute Regulations as to Passenger Ships.] § 590. Having considered the rights, duties, and obliga- tions of carriers of goods for hire, we may now pass to the consideration of those of Carriers op Passengers.^ It 1 [The liability of such carriers, for injury to their passengers, espe- cially where there is gross negligence, seems not to be dependent on the fact of compensation for the passage being paid to the carrier; for it has been expressly held in a leading case in the Supreme Court of the United 37 678 CARRIERS OF PASSENGERS. [CH. VI. has been already stated, that carriers of passengers merely for hire are subject to the same responsibility as carriers of States, that where a passenger was riding gratuitously at the invitation of the president of a railroad, and was injured by a collision, arising from the negligence of the defendants' servants, the company were liable for the injuries. Philadelphia & Reading Railroad Co. v. Derby, 14 How. (U. S.) 468 ; Nolton v. Western Railroad, 15 N. Y. 444; Steamboat New World V. King, 16 How. (U. S.) 469, and the editor's note to 1 Ameri- can Railway Cases, p. 129, by Smith & Bates ; CoUett v. London & North Western Railway Co., 6 Eng. Law & Eq. 305 ; 16 Q. B. 984; Todd V. Old Colony & Fall River Railroad Co., 3 Allen, 18. These cases clearly show that the obligation to carry safely arises out of a public duty, and not from any contract so to do. See also Tattan v. Great Western Railway Co., 2 El. & El. 848. The liability does notarise from contract, or consideration paid for the service ; it is a duty imposed by law ; and the promise to carry safely is implied from the duty; not the duty from the promise. In Great Northern Railway Co. u. Harrison, 10 Exch. 376, and 26 Eng. Law & Eq. 443, a newspaper reporter, travelling gratuitously, recovered damages for an injury received while on the defendants' road. See also Malone v. Boston & Worcester Rail- road, 12 Gray, 388. The same general doctrine is sustained by Great Western Railway Co. v. Braid, 1 Moore, P. C. n. s. 101 ; Austin v. Great Western Railway Co., Law Rep. 2 Q. B. 442 ; Penn. Railroad Co. V. Henderson, 51 Penn. St. 315; Ohio & Missi.ssippi R. v. Muhling, 30 III. 9. But if a contract of carriage is made wholly between a carrier and a ser- vant, the master cannot maintain an action against the company for loss of the services caused by the negligence of the carrier whereby the servant was injured. Alton v. Midland Railway Co., 19 C. B. N. s. 213, si very carefully considered case. And the same rule has been adopted recently in Pennsylvania.] jFairmount R. u. Stutler, 54 Penn. St. 375. But see Smith V. New York R., 19 N. Y. 127; Ames v. Union R., 117 Mass. 541. The public policy of holding a carrier to his general obligations so closely thai, he cannot be permitted to shield himself from the conse- quences of bis own gross negligence or misconduct, even by a special con- tract, is, as we have seen in the case of merchandise transportation, more strenuously asserted in America than England. Ante, p. 529 and notes. The same difference of policy appears in decisions which relate to the carriage of passengers. The rule, how ever, is not yet finally settled. Thus, the best-supported American doctrine with reference to " drovers' passes," or free tickets given to persons who travel in charge of cattle on cattle trains, is, that the railway company must use the high- est degree of care and diligence for one's transportation ; and that as to all passengers the standard of duty should be according to the conse- quences that might ensue from carelessness. Indianapolis R. v. Horst, CH. VI.] CAEBIEES OF PASSENGERS. 579 goods for hire, at the common law, so far as respects the bag- gage of the passengers.^ But as to the persons of the pas- sengers, a different rule prevails.^ Attempts have been made to extend their responsibility as to the persons of passengers to all losses and injuries, except those arising from the act of God, or from the public enemies. But the support of this doctrine has been uniformly resisted by the courts, although a strict responsibility as to the carriage of the persons of pas- sengers is imposed upon such carriers.^ It may be useful, 93 U. S. Supr. 291 ; Railroad Co. v. Lockwood, 17 Wall. 357, and cases cited; Pennsylvania R. v. Butler, 57 Penn. St. 335. And these cases seem to deny to the carrier of passengers the right to exonerate himself by special contract from all liabiUty. But in England the latest decisions treat a passenger who travels on a drover's pass, in charge of cattle, as traveUiug at his own risk ; this, on the ground that the carrier may, by special contract, divest himself of liability. McCawley v. Furness R., L. R. 8 Q. B. 57; Gallin v. London, &o. R., L. R. 10 Q. B. 212. This latter rule, however, has been followed in New York. Smith v. New York Central R., 24 N. Y. 222; Bissell v. N. Y. Central R., 25 N. Y. 442. And in some other States it is held that one may contract, in con- sideration of a free passage, to assume the risk of injuries to his person, even to the extent of exonerating the carrier from negligence. Kinney V. Central R. Co., 32 N. J. 407; Betts v. Farmers' Loan Co., 21 Wis. 80. At all events, in the absence of special stipulations to the contrary, one who is lawfully carried, even though riding free, and who is not a mere trespasser, is entitled to recover damages, if injured by the carrier's negligence. See ca.ses supra; Wilton v. Middlesex R., 107 Mass. 108; Packet Co. v. Clough, 20 Wall. 528; Nashville R. Co. v. Messino, 1 Sneed, 220; Robertson v. New York R., 22 Barb. 91; Blair v. Erie R., 66 N. Y. 313. And an ordinary passenger, who pays the regular fare without deduction, may not readily be assumed to have consented that the car- rier's liability shall be other than the law prescribes. But a passenger on a construction train, run by contractdrs who are building the road, cannot hold the contractors responsible as public car- riers. Shoemaker v. Kingsbury, 12 Wall. 369. Cf. Peters v. Rylands, 20 Penn. St. 497; Feital v. Middlesex R. Co., 109 Mass. 398. And sge Daniel v. Metropolitan R. Co., L. R. 5 II. L. 45.} 1 Avle, § 498, 499; Powell v. Myers, 26 Wend. 591, 594. 2 Anle, §498,499; 1 Bell, Coram, p. 468, 475, 5th edit.; 1 Bell, Comm. § 403 to 406, 4th edit. ; Camden & Amboy Railroad, &c. Co. v. Burke, 13 Wend. 611, 627, 628; HoUister v. Nowlen, 19 Wend. 234; Cole V. Goodwin, 19 Wend. 251; 2 Kent, Comm. Lect. 40, p. 600, 601, 4th edit. 8 Aston V. Heaven, 2 Esp. 533 ; [Parish v. Reigle, 11 Gratt. 697 ; Fair- 680 CAEKIEES OF PASSBNGEES. [CH. VI. however, to consider, somewhat more at large than has yet been done, tlieir duties, liabilities, and rights. And, first, of Passenger Caeeibes on Land. § 591. (1) Their duties in the commencement of the jour- ney. The first and most general obligation on their part is to carry passengers whenever they offer themselves, and are ready to pay for their transportation. ^ This results from their setting themselves up, like innkeepers, and common carriers of goods, for a common public employment on hire.^ They are no more at liberty to refuse a passenger, if they have sufficient room and accommodations, than an innkeeper is to refuse suitable room and accommodations to a guest.^ If several persons have contracted to go in company inside, the carriers have no right to separate them into different parts of the coach, outside and inside.* § 591 a. But although passenger carriers are thus bound to carry passengers, the duties of the former, as well as the rights of the latter, have certain prescribed limits and implied quali- fications. Thus, for example, the passengers are bound to submit to such reasonable regulations as the proprietors may adopt for the convenience and comfort of the other passen- gers, as well as for their own proper interests.^ The impor- child V. California Stage Co., 13 Cal. 602. The extent and nature of the liabihty of passenger carriers is very clearly stated by Gray, J., in Sim- mons V. New Bedford Steamboat Co., 97 Mass. 361. A railroad com- pany which receives upon its track the cars of another company, and places them under the control of its own agents and servants, and draws them by its own locomotive to their destination, assumes toward the passengers the relation of carriei-s, and all the liabilities incident to that relation. Schopman v. Boston & Worcester Railroad, 9 Gush. 24.J 1 Jencks v. Coleman, 2 Sumner, 221, 224. [And see Benett v. Pen- insular, &c. Co., 6 C. B. 775.] . 2 Ibid. 8 Bretherton v. Wood, 3 Brod. & Bing. 54; s. c. 9 Price, 408; 8. c. 6 Moore, 141; Ansell v. Waterhouse, 2 Chitty, 1 ; Massiter ». Cooper, 4 Esp. 260; [Tarbell v. Central Railroad Co., 34 Cal. 616;] 1 Bell, Comm. p. 462, 5th edit. [And upon an unconditional contract to carry, it seems they are bound to provide room for all. Hawcroft ». Great Northern Railway Co., 8 Eng. Law & Eq. 362.] * Long V. Home, 1 Carr. & Payne, 610. « [See Galena, &c. R. R. Co. v. Yarwood, 15 111. 472; Day v. Owen, CH. VI.] CAEEIEES OF PASSBNGBES. 681 tance of this doctrine is felt more strikingly in cases of steamboats and railroad cars. In a recent case of a steam- boat passenger, the question came directly before the Court ; and it was then said : " There is no doubt that this steam- boat is a common carrier of passengers for hire ; and, there- fore, the defendant, as commander, was bound to take the plaintiff as a' passenger on board, if he had suitable accom- modations, and there was no reasonable objection to the character or conduct of the plaintiff. The question, then, really resolves itself into the mere consideration, whether there was, in the present case, upon the facts, a reasonable ground for the refusal. The right of passengers to a passage on board of a steamboat is not an unlimited right. But it is subject to such i-easonable regulations as the proprietors may prescribe, for the due accommodation of passengers, and for the due arrangement of their business. The proprietors have not only this right, but the further right to consult and provide for their own interests in the management of such boats, as a common incident to their right of property. They are not bound to admit passengers on board, who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct ; or who make disturb- ances on board ; or whose characters are doubtful or dissolute or suspicious ; and, d fortiori, whose characters are unequiv- ocally bad. Nor are they bound to admit passengers on board whose object it is to interfere with the interests or patronage of the proprietors, so as to make the business less lucrative to them. While, therefore, I agree that steamboat proprietors, holding themselves out as common carriers, are bound to receive passengers on board, under ordinary circum- stances, I at the same time insist that they may refuse to receive them if there be a reasonable objection. And, as passengers are bound to obey the orders and regulations of ■5 Mich. 520;] {Decuir v. Benson, 27 La. Ann. 1; Jennings v. Great Northern R., L. R. 1 Q. B. 7; Maroney v. Old Colony R., 106 Mass. 153; West Chester R. v. Miles, 55 Penn. St. 209. Such regulations should not be unreasonable, nor unreasonably enforced. Ibid. They may be waived. Jennings v. Great Northern '&,., supra. See further, ^osJ, § 603, notes.} 582 CAERIEKS OF PASSKNGERS. [CH. VI. the proprietors, unless they are oppressive and grossly unrea- sonable, whoever goes on board, under ordinary circum- stances, impliedly contracts to obey such regulations ; and may justly be refused a passage, if he wilfully resists or violates them." ^ 1 Jencks v. Coleman, 2 Sumner, 224, 225. After these remarks, the Court proceeded to say: " Now, what are the circumstances of the present case? Jfncks (the plaintiff) was at the time the known agent of the Tremont hne of stage-coaches. The proprietors of the Benjamin Franklin (the steamboat) had, as he well knew, entered into a contract with the owners of another hne (the Citizens' Stage-coach Company) to bring passen- gers from Boston to Providence, and to carry passengers from Providence to Boston, in connection with and to meet the steamboats plying between New York and Providence, and belonging to the proprietors of The Frank- lin. Such a contract was important, if not indispensable, to secure uniform- ity, punctuality, and certainty in the carriage of passengers on both routes ; and might be material to the interests of the proprietors of those steamboats. Jencks had been in the habit of coming on board these steamboats at Provi- dence, and going therein to Newport ; and commonly of coming on board at Newport, and going to Providence, avowedly for the purpose of solicit- ing passengers for the Tremont Line, and thus interfering with the patron- age intended to be secured to the Citizens' Line by the arrangements made with the steamboat proprietors. He had the fullest notice , that the steam- boat proprietors had forbidden any person to come on board for such pur- poses, as incompatible with their interests. At the time when he came on board, as in the declaration mentioned, there was every reason to presume that he was on board for his ordinary purposes as agent. It has been said, that the proprietors had no right to inquire into his intent or motives. I cannot admit that point. I think that the proprietors had a right to inquire into such intent and motives, and to act upon the reasonable presumptions which arose in i-egard to them. Suppose a known or suspected thief were to come on board; would they not have a right to refuse him a passage? Might they not justly act upon the presumption that his object was unlaw- ful? Suppose a person were to come on board, who was habitually drunk, and gross in his behavior, and obscene in his language, so as to be a pub- lic annoyance ; might not the proprietors refuse to allow him a passage ? I think they might, upon the just presumption of what his conduct would be. It has been said by the learned counsel for the plaintiff, that Jencks was going from Providence to Newport, and not coming back ; and that in going down there would, from the very nature of the object, be no solicitation of passengers. That does not necessarily follow; for he might be engaged in making preliminary engagements for the return of some of them back again. But supposing there were no such solicitations, actual or intended, I do not think the case is essentially changed. I think that the proprietors of the steamboat were not bound to take a passenger CH. VI.] CARRIERS 0¥ PASSENGERS. 583 § 592. In the next place, they are bound to provide coaches reasonably strong and sufficient for the journey, with suitable harness, trappings, and equipments ; and to make a proper from Providence to Newport, whose object was, as a stationed agent of the Tremont Line, thereby to acquire facilities to enable him successfully to interfere with the interests of these proprietors, or to do them an in- jury in their business. Let us take the case of a ferryman. Is he bound to carry a passenger across a ferry, whose object is to commit a trespass upon his lands? A case, still more strongly in point, and which, in my judgment, completely meets the present, is that of an innkeeper. Sup- pose passengers are accustomed to breakfast, or dine, or sup at his house, and an agent is employed by a rival house, at a distance of a few miles, to decoy the passengers away the moment they arrive at the inn; is the innkeeper bound to entertain and lodge such an agent, aud thereby enable him to accomplish the very objects of his mission, to the injury or ruin of his own interests? I think not. It has been also said, that the steamboat proprietors are bound to carry passengers only between Provi- dence and New York, and not to transport them to Boston. Be it so, that they are not absolutely bound. Yet they have a right to make a contract for this latter purpose, if they choose ; and especially if it will facilitate the transportation of passengers, and increase the patronage of their steam- boats. I do not say that they have a right to act oppressively in such cases. But, certainly, they may in good faith make such contracts, to promote their own, as well as the public interests. The only real question, then, in the present case, is, whether the conduct of the steamboat pro- prietors has been reasonable and bonaf.de. They have entered into a con- tract with the Citizens' Line of coaches, to carry all their passengers to and from Boston. Is this contract reasonable in itself ; or is it designed to create an oppressive and mischievous monopoly? There is no pretence to say, that any passenger in the steamboat is bound to go to or from Boston in the Citizens' Line. He may act as he pleases. It has been said by the learned counsel for the plaintiff, that free competition is best for the public. But that is not the question here. Men may reasonably diifer from each other on that point. Neither is the question here, whether the contract with the Citizens' Line was indispensable, or abso- lutely necessary, in order to insure the carriage of the passengers to and from Boston. But the true question is, whether the contract is reason- able and proper in itself, and entered into with good faith, and not for the purpose of an oppressive monopoly. If the jury find the contract to be reasonable and proper in itself, and not oppressive, and they believe the purpose of Jencks in going on board was to accomplish the objects of his agency, and in violation of the reasonable regulations of the steam- boat proprietors, then their verdict ought to be for the defendant ; other- vpise, to be for the plaintiff." {See Barney k. Oyster Bay Steamboat Co., 67 N. Y. 301 (1876).} 584 CAEEIEBS OF PASSENGERS, [CH. VI. examination thereof previous to each journey.^ In other terms, they are bound to provide road-worthy vehicles, suit- able for the safe transportation of the passengers. If they fail in any of these particulars, and any damage or injury occurs to the passengers, they will be responsible to the full extent thereof.^ Hence, it has been held, that, if there is any defect in the original construction of a stage-coach, as, for example, in an axle-tree, although the defect be out of sight, and not discoverable upon a mere ordinary examina- tion, yet if the defect might be discovered by a more minute examination, and any damage is occasioned to a passenger thereby, the coach proprietors are answerable therefor.^ The ' Bremner D. Williams, 1 Carr. & Payne, 414; Crofts v. Waterhouse, 3 Bing. 321; Jones v. Boyce, 1 Stark. 493; Christie v. Griggs, 2 Camp. 80; 1 Bell, Coram. 462, 5th edit. ; Sharp v. Grey, 9 Bing. 457 ; Camden & Am- boy Railroad Co. v. Burke, 3 Wend. 611, 627, 628; anle, § 509, 562, 571 a. 2 Aston u. Heaven, 2 Esp. 533; 1 Bell, Comm. 462, 463, 5th edit; Sharp V. Grey, 9 Bing. 457; Camden & Amboy Railroad Co. p. Burke, 13 Wend. 611, 627, 628. [See Farish v. Reigle, 11 Gratt. 697; Derwort V. Loomer, 21 Conn. 246; Sullivan u. Philadelphia Railroad,. 30 Penn. St. 231; Nashville, &c. R. R. Co. v. Messino, 1 Sneed, 221 ; Edwards v. Lord, 49 Me. 279;] {Pittsburg R. Co. v. McClurg, 56 Penn. St. 294.} 8 Sharp w. Grey, 9 Bing. 457; Christie v. Griggs, 2 Camp. 80; [Hege- man v. Western R. R. Co., 16 Barb. 353, and 3 Kernan, 9; Frinkw. Pot- ter, 17 111. 406. But if, on the other hand, the injury arises from a hidden defect, which could not be discovered by tlie most careful and thorough examination, such as a small flaw in the interior of an iron axle- tree, which was entirely surrounded by sound iron, it has been held in a Massachusetts case that the coach proprietors are not liable. Ingalls v. Bills, 9 Met. 1. And such, upon full examination of the English and American cases, has been declared to be the true rule. Readhead v. Mid- land Railway Co., 20 Law T. Rep. 628; L. R. 2 Q. B. 412; affirmed in the Exchequer Chamber, {L. R. 4 Q. B. 379.} The decision in Alden v. N. Y. Central Railroad Co., 26 N. Y. 102, and the dicta in MePadden V. N. Y. Central Railroad Co., 47 Barb. 247, laying down an opposite rule, are not in harmony with the current of authorities. See an excellent article in 1 Albany Law Journ. (.Jan. 1870) p. 6. {Burns v. Cork R. Co., 13 Irish Com. Law Rep. 543, is explained in Readhead v. Midland R., L. R. 4 Q. B. 391. In laying down the English rule, the court below (L. R. 2 Q. B. 430) laid much stress upon the " very able judgment " of Hubbard, J., in Ingalls v. Bills, 9 Met. 1. See Richardson v. Great Eastern R., L. R. 10 C. P. 486 ; reversed on appeal, 1 C. P. D. 342 } The case of Sharp u. Grey seems to have been decided on the ground that the defect might have been discovered if a proper examination had CH. VI.] CAREIEKS OP PASSENGEES. 585 same rule will apply to any other latent defect, which might be discovered by more minute examination and more exact diligence, whereby the work is not road-worthy, and a dam- age thereby occurs to any passenger. In this respect, there does not seem to be any difference jDetween the case of a coach which is not road-worthy, and of a ship which is not seaworthy, as to the implied obligations of the owner.^ § 593. In the next place, they are bound to provide careful drivers, of reasonable skill and good habits,'' for the journey; and to employ horses which are steady, and not vicious, or likely to endanger the safety of the passenger.^ In the pithy language of an eminent judge, it may be said, that " the been made; and it was made a question of fact at the trial whether it ■would not have been prudent to have made such examination. Sharp v. Grey, 9 Bing. 457. So ferrymen, being common carriers of passengers, are bound to fur- nish reasonably safe and convenient means for the passage of teams from their boats, appropriate to the nature of their business; and to exercise the utmost skill in the provision and application of the means so employed; but they are not bomid to adopt and use a new and improved method, because safer or better than the methods employed by them, if it was not requisite to the reasonable safety or convenience of passengers, and if the expense is excessive. Le Barron v. East Boston Ferry Co., 11 Allen, 312, where it was held that a ferry company were not absolutely bound, as a matter of law, to provide a new and expensive " drop " to their boat, which would have prevented the accident; and although other companies in the vicinity used such drops. And see Warren v. Fitchburg Railroad, 8 Allen, 233] j See further, as to the duty of adopting new inventions and improvements, Hegeman v. Western li., 3 Kern. 9; Meier v. Pennsyl- vania R. Co., 64 Penn. St. 225.} 1 Sharp V. Grey, 9 Bing. 457. See also Dig. Lib. 19, tit. 2, 1. 19, § 1; Pothier, Pand. Lib. 19, tit. 2, n. 63. See Christie v. Griggs, 2 Camp. 80; Camden & Amboy Railroad Co. u. Burke, 13 Wend. 611, 627; Hol- lister V. Nowlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251. ^ [See Sawyer v. Dulany, 30 Texas, 479;] {Frink v. Coe, 4 Greene (Iowa), 555.} « Waland v. Elkins, 1 Stark. 272; Christie v. Griggs, 2 Camp. 79; Harris v. Costar, 1 Carr. & Payne, 636 ; Crofts v. Waterhouse, 3 Bing. 321; Stokes v. Saltonstall, 13 Peters, 181; Hall v. Connecticut R. Steam- boat Co., 13 Conn. 319; [Parish v. Reigle, 11 Gratt. 697; Stockton v. Frey, 4 Gill, 406; Derwortu. Looraer, 21 Conn. 246; Caldwell u. Murphy, 1 Duer, 233; Fairchild v. California Stage Co., 13 Cal. 603;] {Simson v. London Omnibus Co., L. R. 8 C. P. 390.} 586 CAEEIERS OF PASSENGEES. [CH. VI. coachman must have competent skill ; he must be well ac- quainted with the road he undertakes to drive ; he must be provided with steady horses, a coach and harness of sufficient strength and properly made, and also with lights by night. If there is the least failure in any of those things, the duty of the coach proprietors is not fulfilled, and they are respon- sible for any injury or damage that happens." ^ § 594. In the next place, they are bound not to overload the coacli either with passengers or with luggage ; and they are to take care that the weight is suitably adjusted, so that the coach is not top-heavy and made liable to overset.^ § 595. In the next place, they are bound to receive and to take care of the usual luggage or baggage,^ which it is cus- tomary to allow every passenger to carry for the journey.* The luggage or baggage is (as we have seen) at the risk of the proprietors of the coach, or steamboat, or rail-car, during the transportation, with the same exceptions only of losses by inevitable accident and by the public enemies, which apply to common carriers of goods on land." At the end of the journey, they are bound to make a right and true delivery of the luggage or baggage of the passengers ; and, indeed, this is a very easy duty, by the exercise of ordinary care in mark- ing the luggage or baggage, entering it on the way-bill, and delivering a check-ticket to the owner. ^ The mere fact, that the 1 Per Best, C. J., in Crofts v. Waterhouse, 3 Bing. 321; 1 Bell, Coram, p. 462, 5th edit.; [TuUeru. Talbot, 23 111. 357;] [Maguire v. Middlesex R., 115 Mass. 239; Ware v. Gay, 11 Pick. 106. See, as to the use of proper lights, Wilkie v. Bolster, 3 E. D. Smith, 327.! 2 Long V. Home, 1 Carr. & Payne, 612; Israel v. Clark, 4 Esp. 259; Aston V. Ueaven, 2 Esp. 533; Heard v. Mountain, 5 Petersd. Abr. Car- riers, p. 54; 1 Bell, Comm. p. 462, 5th edit.; [Parish «. Reigle, 11 Gratt. 697. A custom and usage of so overloading their coaches with freight, lugga-ge, or passengers, is no excuse for the act. Derwort v. Loomer, 21 Conn. 246.] 8 [Seean(e, §499; Munster i>. South Eastern R. Co., 4 C. B. n. 8. 676,] {as to the passenger's right to have his baggage carried at the carrier's risk instead of his own. } ^ Robinson «. Dunmore, 2 Bos. & Pull. 419; ante, § 499. 6 Ante, § 498, 499, {538.} « Cole V. Goodwin, 19 Wend. 251, 254, 255, 256. [As to the obliga- tion of the proprietors of a railroad, who receive passengers, and com- CH. VI.J CAEEIERS OF PASSENGERS. 587 coach or carrier steamboat has arrived at its proper place of des- tination, or the end of the journey, AA'ith the baggage in safety, will not discharge the carriers until it is delivered to the owner, even if he be not then ready or present to receive it ; for the carriers are bound to keep for a reasonable time, and until called for, although if not called for in a reasonable time, their liability as common carriers will cease, and that of ordinary bailees only may arise. ^ mence their carriage at the station of another road, to have a servant there to take charge of baggage, see Jordan v. Fall River R., 5 Cush. 69.] 1 Powels V. Myers, 26 Wend. 591. [In the next place, railway carriers are generally bound to run trains according to their advertised time-tables, as was adjudged in a modern case in the Queen's Bench. The facts were, that the plaintiff being in Lon- don in March, 1855, and having business at Peterborough on the 25th of March, 1855, and at Hull on the 26th, consulted the printed time-tables issued in the usual way by the defendants for that month. In these time-tables a train was advertised to leave London at 5 p.m., and reach Peterborough about 7 p.m., and thence to proceed, amongst other towns, to Hull, to arrive there about midnight. At the bottom of the time- tables was the following notice: " The companies make every exertion that the trains shall be punctual, but their arrival or departure at the times stated will not be guaranteed, nor will the companies hold them- selves responsible for delay or any consequences arising therefrom." The time-tables advertising this train were, till after the 26th of March, exhibited by the defendants at their stations, where the plaintiff had seen them, and were printed and circulated; and on the 25th of March the plaintiff had one in his possession. The plaintiff, having made his ar- rangements on the faith of these time-tables, went down to Peterborough by an earlj' train of the defendants, transacted his business at Peterbor- ough, and went to the defendants' station at Peterborough in due time to take a ticket to Hull by the evening train so advertised ; but there was no such train to Hull, nor had there been one during any part of the month of March. The explanation of this was, that the whole line of railway from Peterborough to Hull was not the property of the defend- ants, their line ending at Askerne, on the route from Peterborough to Hull. They had running powers over the line of the Lancashire & York- shire Railway Company from Askerne to Milford Junction, where the line of the North Eastern Railway Company joins that of the Lancashire & Yorkshire Railway Company. There had been, in February, an ar- rangement between the three companies by which passengers booked at the stations on the line of the Great Northern Railway Company were carried in the carriages of that company to Milford Junction, and thence ■were conveyed by the North Eastern Railway Company to Hull by a train 588 CAKKIERS OF PASSENGERS. [CH. VI. § 596. And in all these cases they are not only pei-sonally bound for their own acts, but for the acts of their servants and agents in their employ, and also, in cases of partnership, for the acts of their partners.^ § 597. (2) Their duties on the progress of the journey. departing a few minutes after the arrival of the train leaving Peterbor- ough about 7 P.M. Toward the end of February, prior to the publica- tion by the defendants of their time-tables, but after they had been prepared and printed, the North Eastern Railway Company gave notice to the defendants that after the first day of Jlarch, the train from Milford Junction to Hull would be discontinued. The defendants nevertheless made no alteration in their time-tables, which were published and issued for March. The plaintiff consulted them, and was misled as above stated. In consequence of the absence of this train, the plaintiff could not get to Hull in time for an appointment which he had made for the morning of the 26th of March, and sustained damage to the amount of £5 10s. It did not appear by the time-tables whether the train from Peterborough to Hull was or was not entirely under the control of the defendants. It was held, [on the ground that a misrepresentation had been made induc- ing the plaintifi's injury, } that the plaintiff was entitled to recover. Denton V. Great Northern Railway Co. , 34 Eng. Law & Eq. 154, and 5 El. & Bl. 860. The same doctrine has recently been declared in America; where it was also held that the company have an implied power to change the hours of starting their trains, upon giving reasonable notice thereof; which it seems ought to be as extensive as the original advertisement; and a usage on the part of the company to change their hours by giving a less exten- sive notice, if not known to the traveller, does not exonerate the company. Sears v. Eastern Railroad Co., 14 Allen, 433, a valuable case on this sub- ject. As to change of time on freight trains, see Bollands v. Manchester Railway Co., 15 Irish Com. Law Rep. 560; Wren v. Eastern Counties Railway Co., 1 Law Times, n. s. 5. But merely selling a ticket for a journey by a railway does not amount to a contract on the part of the company to have a train ready to start at the time at which the passenger is led, by the company's servants, to expect it; unless the time-tables of the company stipulate for such time. Hurst v. Great Western Railway Co., 19 C. B. N. s. 310. See further. Page v. N. Y. Central Railroad, 6 Duer, 523; Benson o. New Jersey Railway, 9 Bosw. 412; Hawcroft v. Great Northern Railway, 8 Eng. Law & Eq. 382; Prevost v. Great East- ern Railway, 13 Law Times R. n. s. 20. Nor does a mere statement by the company's agent that the ordinary time of the transit over a proposed route is a certain number of days amount to an agreement to carry through in that time. Strohn v. Detroit & Milwaukee Railroad, 23 Wis. 126.] 1 Waland v. Elkins, 1 Stark. 272 ; s. c. Weyland v. Elkins, Holt's N. P. 227; {Stockton v. Frey, 4 Gill, 406.} CH.VI.J CAEKIEES OF PASSENGEBS. 589 Passenger carriers are bound to stop at the usual places, and to allow the usual intervals for refreshment of the passengers ; and they cannot at their mere caprice vary or annul these accommodations ; for every passenger is understood to con- tract for the usual reasonable accommodations.^ § 598. They are bound to make use of all the ordinary precautions for the safety of passengers on the road.^ This involves a consideration of the duties of the coachman in driving on the road. If he is guilty of any rashness, negli- gence, or misconduct, or if he is unskilful, or deviates from the acknowledged custom of the road, the proprietors will be responsible for any injury resulting from his acts.^ Thus, if the coachman drives with reins so loose that he cannot gov- ern his horses, the proprietors of the coach will be answer- able.* So, if there is danger in any part of the road, or in a particular passage, and he omits to give due warning to the passengers.* So, if he takes the wrong side of the road, and an accident happens from want of proper room.^ So, if by 1 5 Petersd. Abr. Carriers, p. 48, note. [See Heirn v. McCaughan, 32 Miss. 17; New Orleans Railway Co. v. Hurst, 36 Id. 660. They are bound to stop at all way-stations a sufficient time for all passengers to alight to whom they have sold tickets for that station, and they are liable if a passenger is injured in consequence of the starting of the train pre- maturely. Penn. Railroad Co. v. Kilgore, 32 Penn. St. 292 ;] { Fuller v. Naugatuck R. Co., 21 Conn. 558; Memphis R. Co. v. Green, 52 Miss. 779. The carrier should convey by the route announced, and without un- reasonable delay. Hobbs v. London R., L. R. 10 Q. B. Ill; Le Blanche V. London R., L. R. 1 C. P. D. 286 ; Weed v. Panama R., 17 N. Y. 862; Hamlin v. Great Northern R., 1 H. & N. 408. Notice that a station is reached should be given; and changes of conveyance duly announced. Southern R. v. Kendrick, 40 Miss. 374 ; Barker v. New York Central R., 24 N. Y. 599. See posl, § 601, notes. } 2 1 Bell, Comm. p. 462, 5th edit. 8 Stokes V. Saltonstall, 13 Peters, 181; 2 Kent, Comm. Lect. 40, p. 601, 602, 4th edit. ; Hall v. Conn. River Steamboat Co., 13 Conn. 319 ; [Parish v. Reigle, 11 Gratt. 697. See also Kennard v. Burton, 25 Me. 39.] * Aston V. Heaven, 2 Esp. 533 ; Stokes v. Saltonstall, 13 Peters, 181, 191, 192. « Dudley v. Smith, 1 Camp. 167; 1 Bell, Comm. p. 463, and notes, 5th edit.; [Laing v. Colder, 8 Penn. St. 479.] ' Wordsworth v. Willan, 5 Esp. 273; Waland v. Elkins, 1 Stark. 272. 590 CAERIEES OF PASSENGERS. [OH. VI. any incaution he comes in collision with another carriage.^ So, if any accident happens from his racing against other coaches ; or from his driving so rapidly over the common road, as amounts to rashness, or, a fortiori, from his driving immoderately over a dark and dangerous road ; or from his taking too many passengers for the size and strength of his coach.2 In short, he must in all cases exercise a sound and reasonable discretion in travelling on the road, to avoid dan- gers and difficulties ; and, if he omits it, his principals are liable.^ The liabilit}'- of the coach proprietors will be the same, although the injury to the passenger is caused by his own act, as by leaping from the coach, if there is real dan- ger, and it arises from the want of due skill or from the care- less conduct of the coachman.* And it will not make any difference in the case, that, by such attempt to escape, the passenger has increased the peril, or even occasioned the coach to upset, and has thereby caused the injury to himself, if the want of proper skill or care in the coachman has placed the passengers in a state of peril, and there was rea- sonable ground for supposing that the coach would thereby be upset.^ ' Mayhew v. Boyce, 1 Stark. 423; Dudley v. Smith, 1 Camp. 167; 1 Bell, Coram, p. 402, and note, 5th edit. 2 1 Bell, Comm. p. 462, 463, and notes, 5th edit. ; Israel v. Clark, 4 Esp. 259; Stokes v. Saltonstall, 13 Peters, 181; {Nashville R. Co. ». Messiuo, 1 Sneed, 220.} 8 Jackson v. ToUett, 2 Stark. 37; Stokes v. Saltonstall, 13 Peters, 181, 192, 193; 2 Kent, Comm. Lect. 40, p. 601, 602, 4th edit. ; 1 Bell, Comm. p. 462, and note, 5th edit.; Hall v. Conn. River Steamboat Co., 13 Conn. 319. * Jones V. Boyce, 1 Stark. 493; [Ingalls v. Bills, 9 Met. 1; Eldridge v. Long Island Railroad Co., 1 Sandf. 89; Galena, &c. R. Co. v. Yarwood, 15 111.471; McKinney y. Neil, 1 McLean, 540;] Crofts i;. Waterhouse, 3 Bing. 321; Stokes v. Saltonstall, 13 Peters, 181, 191. 6 Stokes V. Saltonstall, 13 Peters, 181, 191, 192. [And see Caldwell V. Murphy, 1 Duer, 233; Frink v. Potter, 17 111.406; South Western Railroad v. Paulk, 24 Ga. 356; Delamatyr v. Milwaukee, &c. Railroad Co., 24 Wis. 578. A passenger leaping from a train after it has passed the usual stopping-place, to avoid being carried beyond, has no ground of action for his injuries. Daraont v. New Orleans Railway Co., 9 La. Ann. 441; {Railroad Co. v. Aspell, 23 Penn. St. 147.} And see Siner V. Great Western Railway, Law Rep. 3 Ex. 150;] {L. R. 4 Ex. 117.} CH. VI.] CAREIEES OP PASSENGERS. 591 § 599. There are in England three customary rules or di- rections for driving ; first, that, in meeting, each party shall bear or keep to the left. The rule in America is the reverse, that is to say, that each party shall bear or keep to the right.^ Secondly, that in passing, the foremost person bearing to the left, the other shall pass on the off side. Thirdly, that in crossing, the coachman shall bear to the left hand, and pass behind the other carriage.^ But the rule in England is not inflexible, that the coachman shall in all cases pass another carriage on the off side. He may, if the street or road is very broad, go on the near side.^ So, if there is no other carriage on the road, whose passage may be interrupted, the coachman is not bound to keep the left side of the road, ac- cording to the rule of the road. In such cases he may go on either side of the road, as he pleases.* These rules seem equally applicable to cases of persons on horseback, as well as to persons driving carriages.^ However, if the coachman deviates from the limits of the road, and thereby the coach is Upset, the proprietors of the coach wilt not be liable for any damage occasioned thereby, if in point of fact such deviation from his proper duty to keep the road was not owing to any want of skill, or diligence, or care on his part, but was im- putable to an unavoidable mistake, or sudden alteration of the guiding objects on the road.^ Such deviation will indeed ordinarily amount to a presumption of negligence or of a want of proper skill or knowledge ; but it is a presumption capable of being repelled by evidence, and therefore proper for the consideration of a jury.^ § 599 a. In respect to foot-passengers, it seems that they have a right to cross the highway ; and therefore persons driving carriages along the same road are bound to exercise all possible diligence to avoid driving against them ; and if 1 [See Kennard v. Burton, 25 Me. 39.] ^ Petersd. Abr. Carrier, p. 55, note; and see Wayde v. Carr, 2 Dowl. & Ryl. 225. 8 Petersd., &o.; Wordsworth v. Willan, 5 Esp. 273. * Aston 0. Heaven, 2 Esp 533 ; Mayhew v. Boyce, 1 Stark. 423. 6 Turley v. Thomas, 8 Carr. & Payne, 103. « Crofts V. Waterhouse, 3 Bing. 321. ' Ibid. 592 GAEEIEES OF PASSENGERS. [CH. VI. they do not, and any accident happens to the foot-passenger, they will be responsible therefor.^ Thus, if a person thus driving on the road cannot pull up, because his reins break, that will be no sufficient ground of defence for an injury done to a foot-passenger ; because he is bound to have proper tackle.^ It seems, also, that the rule, as to the proper side of the road, does not apply in respect to foot-passengers; but, as to foot-passengers, carriages may drive on either side of the road in order to avoid them.^ § 600. The termination of the journey. In all cases the coach proprietors are bound to carry the passengers to the end of the journey, and to put them down at the usual place of stopping ; and if that is an inn-yard, it is not sufficient to put them down on the outside of the gateway of the inn.* If they agree to take a passenger to a particular place, this also becomes obligatory on them.^ If the custom of the coach is to carry the passengers to their own houses or lodgings in a particular place, that must be conformed to. § 601. Next, as to the liability of passenger carriers. These naturally flow from their duties. As they are not, like com- mon carriers of goods, insurers against all injuries except by the act of God or by public enemies, the inquiry is naturally presented, what is the nature and extent of their responsi- bility.^ It is certain, that their undertaking is not an under- taking absolutely to convey safely. But although they do not warrant the safety of the passengers at all events, yet 1 Cotterill v. Starkey, 8 Carr. & Payne, 691. " Ibid. 8 Ibid. * Dudley v. Smith, 1 Camp. 167. (Reasonable arrangements should be made to enable the passenger to alight safely. Thus, railroads should have suitable platforms and keep their tracks clear. See Bridges v. North London R., L. R. 7 H. L. 213 ; Hobbs v. London R., L. R. 10 Q. B. Ill ; Foy V. London, &c. R., 18 C. B. jsr. s. 22.3; Weller v. London R., L. R. 9 C. P. 126; Lewis v. London R., L. R. 9 Q. B. 66; Robson v. North Eastern R., L. R. 10 Q. B. 271; Vicksburg R. Co. v. Howe, 52 Miss. 202; McLean v. Burbank, 11 Minn. 277. And the passenger, to be free from blame, should make use of arrangements so provided. Penn- sylvania R. Co. V. Zebe, 37 Penn. St. 420. } * Ker V. Mountain, 1 Esp. 27. ' Stokes V. Saltonstall, 13 Peters, 181, 191; Sharp v. Grey, 9 Bing. 457. CH. VI.J CAEEIEES OP PASSENGBKS. 593 their undertaking and liability go to this extent, that the}'' and their agents possess competent skill, and that they will use all due care and diligence in the performance of their duty.^ But in what manner are we to measure this due care and dili- gence ? Is it ordinary care and diligence, which will make them liable only for ordinary neglect ? Or is it extraordinary care and diligence, which will render them liable for slight neg- lect ? As they undertake for the carriage of human beings, whose lives and limbs and health are of great importance, as well to the public as to themselves, the ordinary principle in criminal cases, where persons are made liable for personal wrongs and injuries arising from slight neglect, would seem to furnish the true analogy and rule. It has been accordingly held, that passenger-carriers bind themselves to carry safely 1 Harris v. Costar, 1 Carr. & Payne, 636; Crofts v. Waterhouse, 3 Bing. 321; Stokes v. Saltonstall, 13 Peters, 181, 191. [See Galena, &c. R. Co. V. Yarwood, 15 111. 471; Hall v. Conn. River Steamboat Co., 13 Conn. 319; Fuller v. Naugatuck R. Co., 21 Conn. 558. They are bound to exercise the utmost vigilance and care in maintaining order, and guard- ing those they transport against violence from whatever source arising, which might be reasonably anticipated or naturally expected to occur, in view of all the circumstances, and of the number and character of the persons on board ; and under this rule the carrier is bound to protect one passenger from the violence of another. Flint v. Norwich & N. Y. Trans- portation Co., 34 Conn. 554, before Judge Shipman, of the U. S. Circuit Court; s. c. 6Blatchf. 158. In this interesting case the plaintiff, a pas- senger on the defendants' steamboat, was injured by the discharge of a m«sket dropped on the deck by a soldier engaged in a disorderly struggle with another soldier; and the carrier was held liable, notwithstand- ing he was compelled by the government to receive the soldiers on board, who were in the charge of their officers, the plaintiff having been subse4uently received on board without any notice of the enforced pres- ence of the soldiers. See also | Norwich Trans. Co. v. Flint, 13 Wall. 3;} Simmons v. New Bedford Steamboat Co., 97 Mass. 368. But cf. Mo- Clenaghan v. Brock, 5 Rich. 17. To this end they may remove a pas- senger who by reason of intoxication, there is good cause to believe, will become offensive or annoying to other passengers, although not yet become such. Vinton u. Middlesex Railroad Co., 11 Allen, 304.] jHow , far it is the duty of the carrier to protect passengers while travelling, from insult and annoyance, by putting off offensive persons, is considered at length in New Orleans R. Co. v. Burke, 53 Miss. 200. And see Pear- son V. Duane, 4 Wall. 605; Murphy v. Union Railway, 118 Mass. 228; Pittsburg R. Co. v. Hinds, 53 Penn. Stl 512. } 594 CAEBIEES OP PASSENGERS. [CH. VI. those whom they take into their coaches, as far as human care and foresight will go,^ that is, for the utmost care and diligence of very cautious persons ; and of course they are responsible for any, even the slightest neglect.^ 1 [In Bowen v. New York Central Railroad Co., 18 N. Y. 408, it was said that this rule is to be understood as requiring, not such particular precautions as, after the accident, it is apparent might have prevented the injury, but such as would be dictated by the utmost care and pru- dence of a very cautious person before the accident, and without knowl- edge that it was about to occur.] ^ Aston V. Heaven, 2 Esp. 533; Christie v. Griggs, 2 Camp. 79; White V. Boulton, Peake, 81 ; 1 Bell, Comm. p. 562, 5th edit. ; Stokes c Salton- stall, 13 Peters, 181, 191, 192, 193. This whole subject was thoroughly examined by the Supreme Court of the United States, in the case of Stokes V. Saltonstall ; and the opinion of the Court, delivered by Mr. Ju.s- tice Barbour, will be found to embrace and to exhaust the learning ap- plicable to it. See also Camden & Amboy Railroad Co. v. Burke, 13 Wend. 611, 627, 628. [See Peters v. Rylands, 20 Penn. St. 502; Parish V. Reigle, 11 Gratt. 697; Wilton o. Atlantic R. M. Steam Co., 10 C. B. N. s. 466; {McLean v. Burbank, 11 INIinu. 277.} Passenger-carriers by railroad are bound to the most exact care and diligence, not only in the management of their trains and cars, but also in the structure and care of their track, and in all the subsidiary arrange- ments necessary to the safety of the passengers. McElroy v. Nashua & Lowell Railroad Co., 4 Cush. 400, where the injury arose from the care- less management of a switch connecting the defendants' road with another road. JAnd see Knight v. Portland, &c. R. Co., 56 Me. 235; Tyrrell v. Eastern R., Ill Mass. 516; Great Western R. Co. v. Braid, 1 Moore, P. C. N. s. 101.) And if the carrier fails in his duty he is responsible for the consequences of his negligence, although the negligence or mis- conduct of a third party contributes to the injury. Eaton v. Boston & Lowell Railroad Co., 11 Allen, 500. He is as much bound to guard against the results of the acts of third parties as of any other cause, the operation of which he can reasonably anticipate. Gray, J., in Simmons V. New Bedford Steamboat Co., 97 Mass. 368. And see Pittsburg, &c. Railway Co. v. Plinds, 53 Penn. St. 512. But negligence of the passenger will prevent his recovery. Bancroft V. Boston & Worcester R. Co., 97 Mass. 275; Todd v. Old Colony R., 7 Allen, 207; Gavett v. Manchester & Lawrence R., 16 Gray, 501; Ilickey 0. Boston & Lowell R., 11 Allen, 429; Witherly v. Regent's Canal Co., 12 C. B. n. s. 2 ; Wyatt v. Great Western R., 6 B. & S. 709. (Due and reasonable care is exacted from the party claiming damages. This principle is of general application in cases of negligence causing injury. See further. Railroad Co. v. Aspell, 23 Penn. St. 147; Wheelock v. Boston & Albany R., 105 Mass. 203; Pittsburg R. Co. v. McClurg, 56 Penn. St. CH. VI.] CAEKIEES OF PASSENGEES. 595 § 601 a. Where any damage or injury happens to the pas- sengers by the breaking down or overturning of the coach, or by any other accident occurring on the road, the presump- tion primd fade is, that it occurred by the negligence of the coachflian ; and the onus probandi is on the proprietors of the coach, to establish that there has been no negligence whatso- ever; and that the damage or injury has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent.^ For the law will (as we have 294; Gee v. Metropolitan R., L. K. 8 Q. B. 161 ; Higgins v. Hannibal R., 36 Mo. 418. But due care on the passenger's part need not be expressly proved ; for the law -will infer it where there is no appearance of fault, either positive or negative, on his part, in the circumstances under which the injury was received. Mayo v. Boston & Maine R., 104 Mass. 137. But see Deyo v. New York Central R., 34 N. Y. 9. What the passenger may have received on an " accident insurance policy " cannot affect his claim upon the carrier. Bradburn v. Great Western R., L. R. 10 Ex. 1.} And when carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and safety require that they be held to the greatest possible care and diligence. The personal safety of the passengers should not he left to the sport of chance, or the negligence of careless agents. Any negligence in such cases may well deserve the epithet of " gross." Philadelphia & Reading Railroad Co. v. Derby, 14 How. (U. S.) 468; reaffirmed in Steamboat New World v. King, 16 How. (U. S.) 474.] ' Christie v. Griggs, 2 Camp. 79; Stokes v. Saltonstall, 13 Peters, 181, 192, 193 ; 1 Bell, Comm. p. 462, 463, 5th edit. ; Sharp v. Grey, 9 Bing. 457; Ware v. Gay, 11 Pick. 106, 112; [Carpue v. London & Brighton Railway Co., 5 Q. B. 747 ; Skinner v. London, &c. Railway Co., 2 Eng. Law&Eq. 360; s. c. 5 Exch. 787; Laing o. Colder, 8 Penn. St. 479; Bowen v. New York Central Railroad, 18 N. Y. 408; Sullivan v. Phil- adelphia Railroad Co., 30 Penn. St. 234; Fairchild v. California Stage Co., 13 Cal. 604; Hays v. Kennedy, 3 Grant, 351; Zeinp w. W. & M. Railroad Co., 9 Rich. 84; Yonge v. Kinney, 28 Ga. Ill; Louisville & Portland B. Co. v. Smith, 2 Duvall (Ky.), 556; McLean v. Burbank, 11 Minn. 277; McKinney v. Neil, 1 McLean, 540; Boyce v. California Stage Co., 25 Cal. 460 ; Ayles v. South Eastern Railway Co. , Law Rep. 3 Ex. 146 ; Great Western R. Co. v. Braid, 1 Moore, P. C. n. s. 101. In most of these cases the nature of the accident was such, or the attend- ing circumstances such, that proof of the accident alone raised a presump- tion of negligence, and the same evidence which proved the injury also proved the defendants' negligence, or developed circumstances from which it must be presumed. Thus in Carpue v. London & Brighton Railway, 5 Q. B. 747, the injury was caused lay a train running off the track 596 CARRIERS OF PASSENGERS. [CH. VI. seen), in tenderness to human life and human limbs, hold the proprietors liable for the slightest negligence, and will com- and overturning the carriage in which the plaintiff was a passenger. So in Stokes v. Saltonstall, 1.3 Pet. 181, the injury was caused by th£ over- turning of a stage-coach; and in Ware v. Gay, 11 Pick. 106, the accident was of a similar nature, occasioned by the running ofl of the wheel of the coach. In these and such like cases the nature of the accident may afford sufficient proof of the defendants' negligence, but the burden of proof, in the proper sense of that word, remains on the plaintiff. The true rule seems to have been reached in Curtis v. Rochester & Syra- cuse Railroad Co. , 18 N. Y. 534, where it was held in an elaborate deci- sion upon this very point, that no presumption of negligence on the part of the carrier arises in each and every case of an accident on a railway. Even if the occurrence of an accident was prima facie prooi of carelessness, it would not necessarily be carelessness in the company ; it might be evi- dence of negligence in the party injured, or in some third person ; depend- ing upon the nature of the accident. If the injury arose from some defect in the road, vehicle, or other apparatus used by the carrier, and over which he had complete control, or in the agents employed by him, it might well be that the presumption of negligence on their part would be a fair and reasonable inference, in the absence of any proof to the contrary; because it is their duty to use the highest degree of care to have all their arrange- ments safe and in good condition. The same distinction had been taken in Holbrook v. Utica & Schenec- tady Railroad Co., 2 Kernan, 236, viz., that no presumption of negligence arises from the mere fact of the accident, but that the circumstances at- tending it must be the criterion. Ruggles, J., said: "It generally hap- pens, however, in cases of this nature that the same evidence which proves the injury done, proves also the defendant's negligence; or shows circumstances from which strong presumptions of negligence arise, and which cast on the defendant the burden of disproving it." Le Barron v. East Boston Ferry Co., 11 Allen, 312, furnishes one of the best illustrations of this doctrine. It was an action against a ferry company, as carriers, for an injury received by a passenger in passing from the boat to the wharf, through the alleged negligence of the company in not providing a suitable drop over which to pass ; and it was distinctly held that proof of due care on the plaintiif 's part, and of the injury, would not raise a presumption of law that the defendants were neghgent, nor change the burden of proof, which always rests upon the plaintiff in such cases to prove negligence ; but that the facts attending the injury might be taken into consideration by the jury and allowed such weight as they might think reasonable. The opinion of Colt, J., in this case is able and discriminating, and well deserves the attention of the reader. Brehm v. Great AV'estern Railway Co., 34 Barb. 256, was similar, and recognizes the same distinction, that the presumption would or would CH. VI.] CAREIEES OP PASSENGEES. 597 pel them to repel, by satisfactory proofs, every imputation thereof.^ not arise according to the nature of the accident. There an embankment had been swept away, and the train plunged over into a gulf. So in Edgerton v. New York & Harlem Railroad Co., 35 Barb. 193. And in Illinois Central Railroad Co. v. Phillips, 49 111. 234, and Caldwell v. New Jersey Steamboat Co., 56 Barb. 426, the explosion of a steamboat boiler was held to create a presumptive case of negligence in the carrier, and that he ought to explain it ; but this is on the same ground as before noticed. In Daniel v. Metropolitan Railway Co., Law Rep. 3 C. P. 216, 222, Willes, J., said: " I agree entirely that it is not enough for the plaintiff to show that there has been an accident upon the defendants' line, and thence to argue that therefore the company are liable even prima facie. It is necessary for the plaintiff to establish by evidence, circumstances from which it may fairly be inferred that there is reasonable probability that the accident resulted from the want of some precaution which the defend- ants might and ought to have resorted to ; and I go further, and say that the plaintiff should also show with reasonable certainty what particu- lar precaution should have been taken. ' ' See 5 Am. Law Rev. (Jan. 1871) p. 205.] jIn Meier v. Pennsylvania R. Co., 64 Penn. St. 225, it is said by Agnew, J.: " Prima, facie, where a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it. This is the rule when the injury is caused by a defect in the road, cars, or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can and ought to control as a part of its duty to carry the passengers safely ; but this rule of evidence is not conclusive. The carrier may rebut the presumption and relieve himself from responsibility by showing that the injury arose from an accident which the utmost skill, foresight, and diligence could not prevent." And see Feitalu. Middlesex R., 109 Mass. 398; Bovill, C. J., in Simsonu. London Omnibus Co., L. R. 8 C. P. 390; Welfare v. London R., L. R. 4 Q. B. 693.} 1 Ibid.; an(e, §601; [Farish w. Reigle, 11 Gratt. 697; Stockton v. Frey, 4 Gill, 407; Hegeman v. Western Railroad Co., 16 Barb. 353; 3 Kernan, 9. And see Bird v. Great Northern R., 4 H. & N. 842 (Am. ed.) ; Burke V. Manchester, &c. R. Co., 18 W. R. 694; Mitchell v. Western R., 30 Ga. 22 ; Sawyer v. Hannibal R. Co., 37 Mo. 240. Passenger carriers, like carriers of goods, may be responsible for an injury to a passenger by the negligence of another company with which they connect, and over which they have given a through ticket and received the payment for the whole route. Great Western Railway Co. V. Blake, 7 H. & N. 986, in the Exchequer Chamber; Buxton v. North Eastern Railway Co., Law Rep. 3 Q. B. 549. See also McLean v. Bur- 598 CAEEIEES OF PASSBNGEES. [CH. VI. § 602. Bat passenger carriers, not being insurers, are not responsible for accidents, where all reasonable skill and dili- gence have been employed. ^ When every thing has been done ■which human prudence, care, and foresight can suggest, acci- dents may happen. The lights may in a dark night be ob- scured by fog ; the horses may be frightened ; the coachman may be deceived by the sudden alteration of objects on the road ; the coach may be upset accidentally by striking another vehicle, or by meeting with an unexpected obstruction ; or from the intense severity of the cold, the coachman, although possessed of all proper skill, and taking all due and reason- able care, may at the time become physically incapable of managing his horses, or of otherwise doing his duty ; ^ in all these, and the like cases, if there is no negligence whatso- ever, the coach proprietors are exonerated.^ bank, 11 Minn. 277; Ellsworth v. Tartt, 26 Ala. 73.3; Briggs v. Vander- bilt, 19 Barb. 222; Quimby u. Vanderbilt, 17 N. Y. 306; Northern Central Co. V. Scholl, 16 Md. 331; Carter «. Peck, 4 Sneed, 203; Thomas v. Rhym- ney Railway Co., 18 Weekly Rep. 668; {L. R. 5 Q. B. 226;} John «• Bacon, Id. 894, }L. R. 5 C. P. 437, j a very strong case. And a through ticket over several lines, consisting of a series of coupons attached together, imposes the same liability upon each company as if the tickets were purchased of each company separately. Knight v. Portland, &c. R. Co., 56 Mc. 234 ; Sprague v. Smith, 29 Vt. 421. In like manner aprovision in a contract between the owner of goods and the first carrier of a through line inures to the benefit of the succeeding carriers. Manhattan Oil Co. V. Camden & Amboy Railroad, 52 Barb. 72.] j See ante, § 506 and notes; Van Buskirk v. Roberts, 31 N. Y. 661 ; Railroad Co. v. Barron, 5 Wall. 90. There may be a unity in point of responsibility, even though the tickets are sold in coupons, and announce that " responsibility for safety of person or loss of baggage on each portion of the route is confined to the proprietors of that portion alone." Railroad Co. v. Harris, 12 Wall. 05.} 1 [That a carrier of passengers is not responsible for accident or mis- fortune any more than for the act of God, or the public enemy, is seldom better stated than by Judge Holmes, in Sawyer v. Hannibal & St. Joseph R. Co., 37 Mo. 240.] 2 Stokes V. Saltonstall, 13 Peters, 181, 191, 192, 198. 3 Crofts V. Waterhouse, 3 Bing. 319, 321; Christie v. Griggs, 2 Camp. 79; Aston v. Heaven, 2 Esp. 533. [Passenger carriers, it seems, are not liable at common law for causing the death of a person by their own negligence. The husband, wife, child, or personal representative of the deceased cannot maintain an action for CH. VI.] CARRIERS OF PASSENGERS. 599 § 603. Next, as to the rights of passenger carriers. As they are under an obligation to carry passengers, and cannot prop- erly refuse them, when they have suitable accommodations, so, on the other hand, they are entitled to be secure of their reward or compensation. They have, therefore, a right to demand and to receive their fare at the time when the pas- senger engages his seat ; and if he refuses to pay it, they may fill up the place with other passengers, who are ready to make the proper deposit.^ negligence producing death, although the deceased, if living, and only in- jured, could have done so under the same circumstances. See Carey v. Berkshire Railroad Co., 1 Cush. 475 ; Lucas v. N. Y. Central Railway, 21 Barb. 245; Worley v. Cincinnati, &c. R., 1 Handy, 481; Conn. Ins. Co. V. New York, &c. R. Co., 25 Conn. 265; Hubgh v. New Orleans, &c. Railroad Co., 6 La. Ann. 495; Eden v. Lexington, &c. R. Co., 14 B. Monr. 204; Palfrey v. Portland, &c. R. Co., 4 Allen, 56. But see James V. Christy, 18 Mo. 162 ; Ford v. Monroe, 20 Wend. 210; Cutting v. Sea- bury, 1 Sprague, 522; {Railroad Co. v. Barron, 5 Wall. 91; Bradshaw v. Lancashire R., L. R. 10 C. P. 189 ; Leggottu. Great Northern R., 1 Q. B. D. .599.} But statutes frequently give such right.] {See Read v. Great Eastern R., L. R. 3 Q. B. 555; Kearney v. Boston R., 9 Cush. 108; Ban- croft V. Boston, &c. R., 11 Allen, 34. And see Commonwealth v. Metro- politan R., 107 Mass. 236; McMahon v. New York, 33 N. Y. 642; Railway Co. v. Whitton, 13 Wall. 270 ; Chicago R. v. Morris, 26 111. 400.} 1 Kerv. Mountain, 1 Esp. 27. [Passenger carriers have a right to establish reasonable by-laws or regu- lations as to the fares of passengers, such as the following That tickets are "good for this trip only." Cheney v. Boston & Maine Railway, 11 Met. 121; State v. Overton, 4 Zab. 435; Cleveland Railway v. Bartram, 11 Ohio St. 457; Beebe v. Ayres, 28 Barb. 275; Johnson v. Concord Railway, 46 N. H. 213 ; Shedd v. Troy & Boston Railway, 40 Vt. 88 ; Boston & Lowell Railroad v. Proctor, 1 Allen, 267. See Pier v. Finch, 24 Barb. 514. { Or for a stated brief period, or so as not to permit the passenger to stop over at pleasure. State v. Campbell, 32 N. J. 309. } That a higher rate may be charged for a shorter distance than for one longer, discriminating between through fares and way fares. That the passenger shall surrender his ticket in exchange for a conductor's check. Northern Railroad v. Page, 22 Barb. 130; People v. Caryl, 3 Parker, C. R. 326. That passengers shall exhibit the same when called upon by the conductor. Hibbard v. New York & Erie Railway, 15 N. Y. 455; Balti- more & Ohio Railway v. Blooher, 27 Md. 277 ; Woodard v. Eastern Coun- ties Railway Co. ,1 B. & S. 977, Am. edit. That an additional rate may be charged if tickets are not purchased before taking the cars. Billiard v. 600 CAEKIERS OF PASSENGERS. [CH. VI. § 604. The passenger carrier also has a lien upon the lug- gage or baggage of the passenger for his fare or passage- Goold, 34 N. H. 230 ; State v. Goold, 53 Me. 279 ; Chicago & Burlington Railway v. Parks, 18 111. 460 ; Cleveland R. v. Bartram, H Ohio, n. s. 457 ; Stephen v. Smith, 29 Vt. 160. Where a by-law forbids a person to enter a train without a ticket, but a company sold and delivered to the plaintifi tick- ets for himself and his servants, and on the journey the two became sepa- rated by a division of the train, and the company refused to carry the servants because they had no tickets, it was held that the company were liable, since they had chosen to deliver all the tickets to the plaintiif. Jennings v. Great Northern Railway Co., Law Rep. 1 Q. B. 6. And a by-law imposing a penalty upon one for not producing and delivering up his ticket does not apply to one who has no ticket, but who has taken the train with no intention to avoid payment of his fare. Dear- den V. Townsend, Law Rep. 1 Q. B. 10. And see Barry i\ Midland Railway Co., Irish Rep. 1 C. L. 130; McCarthy v. Dublin Railway Co., 3 Id. 511. {Biit semble, the right to charge additional rates as above presupposes that reasonable opportunity to purchase tickets before taking the cars was afforded by the carrier. St. Louis & Alton R. v. South, 4:3 111. 176; Crocker v. New London R., 24 Conn. 249.} The principal hmitations and restrictions upon all such by-laws are that they shall not be contrary to the charter of the company, if a cor- poration, or the law of the land, or good morals and public policy. See Williams v. Great Western Railway, 10 Exch. 15; Dayw. Owen, 5 IMich. 520. They must also be reasonable in their nature, which is sometimes treated as a question of fact, and sometimes as a mixed question of law and fact. iNlorris & Essex Railway v. Ayres, 5 Dutch. 393. See State v. Thompson, 20 N. H. 250; Vedder v. Fellows, 20 N. Y. 126. Carriers h^e a right to eject from their cars passengers who violate their reasonable regulations, who refuse to pay their fare, or whose presence by reason of their intoxication or other misconduct causes general annoyance and discomfort to the other passengers. See Vinton v. Middlesex Rail- way, 11 Allen, 304; Ripley c. New Jersey Railway, 31 N. J. 388; Hagan V. Providence & Worcester Railroad Co., 3 R. I. 88. {But no more force should be used than is needful for ejecting such passenger; nor should ejection be such as to carelessly or wantonly endanger the passenger in life or limb. Coleman u. New York R., 108 Mass. 160; State v. Ross, 2 Dutch. 224; Sanford v. Eighth Avenue R., 23 N. Y. 343. And see Stephen v. Smith, 29 Vt. 160; Chicago R. v. Flagg, 43 111. 364; Uhnois Central R. v. Whittemore, 43 111. 420. j The company is liable, if its officers abuse their powers in this respect. See Jennings v. Great North- ern Railway, Law Rep. 1 Q. B. 7; Dearden v. Townsend, Id. 10; Hagan V. Providence & Worcester Railroad Co., 3 R. I. 88; {Stephen v. Smith, 29 Vt. 160; Nolan v. New York R., 41 N. Y. Superior, 541. } And on the same principle they have a right to make reasonable regulations as to the CH. VI.J PASSENGER CAEEIEES BY "WATEE. 601 money ; but not a lien on the person of the passenger, or the clothes he has on.^ Their duties as carriers, so far as respects the baggage of the passengers, do not terminate at the mo- ment of the termination of their journey, or, in case of steam- boats or railway-cars, at the arrival at the common depot. But they are bound for the safe delivery of their luggage to the passengers. However, their liability as common carriers will determine, as to the luggage, if it be not demanded within a reasonable time, and become that of mere ordinary bailees for hire.^ § 605. Secondly. The rights, duties, and liabilities of Pas- SENGEE CAEEIEES BY Watee. In the preceding remarks, our attention has been principally drawn to the conduct of passenger carriers on land. T3ut there are some rules of an analogous nature, which have been adopted for the regulation and government of Passengee and caeeiee vessels in inland navigation, as well as upon the ocean, which deserve notice, as they may furnish grounds of responsibility or ex- cuses for losses, which have arisen in the course of their voyages, from the accidents or collisions or rivalries of navi- gation.^ use of their stations and grounds, either by passengers or third persons. See Commonwealth v. Power, 7 Met. 596; Hall v. Power, 12 Met. 482; Barker v. Midland Railway Co., 18 C. B. 46; Caterham v. London & Brighton Railway Co., 1 C. B. n. s. 410.] {See also ante, § 591 a; Har- ris V. Stevens, 31 Vt. 79 ; McDonald v. Chicago, &c. R. , 26 Iowa, 124 ; Longmore v. Great Western R., 19 C. B. n. s. 185; Crafter v. Metropoli- tan R. Co. , L. R. 1 C. P. 300 ; Welfare v. London R. Co., L. R. 4Q. B. 693. } 1 Abbott on Shipp. P. 3, ch. 3, § 11, 5th edit. ; AVolf v. Summers, 2 Camp. 631 ; {ante, § 588. See Poulton v. London R., L. R. 2 Q. B. 534; Standish v. Narragansett Steamship Co., Ill Mass. 512.} 2 Powell V. Myers, 26 Wend. 591; Camden & Amboy Railroad Co. v. Belknap, 21 Wend. 354. jSee ante, § 499, 595.} 3 { What has been already said (ante, § 590-604) of the rights, duties, and general liabilities of passenger carriers by land applies with equal force to passenger carriers by water, with only such modifications as naturally result from the different means of transportation employed. Thus, the slightest negligence will render the carrier responsible in dam- ages. The passengers should be provided with proper means of coming on board and of disembarking. Packet Co. v. Clough, 20 Wall. 528 ; Julien V. Steamer Wade Hampton, 27 La. Ann. 377; The Oriflamme, 3 Sawyer (U. S. Circ), 397. As to the transportation and care of bag- 602 PASSENGER CARRIERS BY WATER. [CH. VI. § 606. Thus, in New York, various positive regulations have been adopted hj the legislature in regard to the con- duct of canal-boats ; and if the master of any boat deviates from them, and any injury occurs, he and the owners will not only be liable to the statute penalties, but they will also be bound to make good all losses and injuries sustained thereby.^ It seems to be a general regulation, that freight-boats sliall afford every facility to the passage of packet or passenger- boats, as well through the locks as everywhere else on the canal. Therefore, if a packet-boat arrives at a lock, while a freight-boat is waiting for it to be emptied, the freight-boat is bound to yield the first passage into the lock to the packet- boat. And if, by any undue resistance on the part of the freight-boat, an injury occurs, it must be borne by the master and owners of the latter.^ gage, the same rules apply; and so, too, where the carrier undertakes to limit his liability for person or property by special contract. See Hen- derson V. Stevenson, L. R. 2 H. L. Sc. 470. And see Porter u. Steamboat New England, 17 Mo. 290; Holmes n. Doane, 3 Gray, 328. Several of the leading cases cited in the foregoing sections are, in fact, cases of water transportation. See Steamboat New World v. King, 16 How. (U. S.) 469. The master, as well as the owners of a vessel, may be held responsible for negligence and misconduct. White v. McDonough, 3 Sawyer (U. S. Circ), 311. That vigilance and care should be used to maintain order and guard the passengers from violence, see ante, § 601 and notes. See, as to the transportation of soldiers discharged at sea, White v. McDonough, 3 Sawyer, 311. In water transportation, passengers are usually entitled to meals and accommodations for sleeping, unless the journey be very short. These accommodations may vary according to the rates paid ; but the carrier cannot, in general, exonerate himself from responsibility in these particu- lars. One who travels by night on a steamer may properly expect a berth. The Oriflamme, 3 Sawyer, 397. As to his meals and table, see EUis v. Narragansett Steamship Co., Ill Mass. 146. For the assaults and mis- behavior of table waiters, the carrier by water has been held responsible. Bryant v. Rich, 106 Mass. 180. If one vessel cannot perform the voyage, the carrier should, with dili- gence, procure another. Williams v. Vanderbilt, 28 N. Y. 217.} 1 See Act of New York of 13th of April, 1820, ch. 202, cited in Farns- worth V. Groot, 6 Cow. 699. 2 Farnsworth v. Groot, 6 Cow. 698. CH. VI.] PASSENGER OAERIEES BY WATER. 603 § 607. The conduct of carrier-vessels on the ocean has in several instances come under the examination of judicial tri- bunals ; and a law of the sea, as well as a law of the road, has been recognized, as to their rights and duties. The Court of Admiralty has a general jurisdiction in what are techni- cally called cases of collision, that is, cases where damages have been occasioned by the running foul or collision of two ves- sels on the high seas.^ And as the Court of Admiralty is the only tribunal sitting in countries under the jurisprudence of the common law, which can ordinarily administer a remedy in rem, and hold the offending vessel itself liable for the pay- ment of the damages, questions of this nature have been of more frequent occurrence in that court than elsewhere.^ The jurisdiction, also, is equally applicable in a proceeding in rem, whether the offending vessel be a domestic vessel or a foreign vessel, or whether both be foreign vessels or both be domestic vessels.^ § 608. According to Lord Stowell, there are four possibili- ties, under which an accident of this sort may occur.* In the first place, it may happen without blame being imputed to either party ; as where the loss is occasioned by a storm, or by any other irresistible force, constituting a case of the vis major. In such a case, the loss must be borne by the party on whom it happens to light ; the other not being responsible to him in any degree.^ This (as we shall see) was also the 1 The Thames, 5 Rob. Adm. 348; The Neptune, 1 Dod. 467; The Woodrop Sims, 2 Dod. 83; The Dundee, 1 Hagg. Adm. 109; Gale v. Laurie, 5 Barn. & Cressw. 156; The Public Opinion, 2 Hagg. Adm. 398; [Waring V. Clarke, 5 How. (U. S.) 441; The Moses Taylor, 4 Wall. 411.] ^ Ibid. ; [The Hine v. Trevor, 4 Wall. 565.] 8 The Johann Friedrich, 1 W. Rob. Adm. 35; s. c. 6 Monthly (Eng- lish) Law Magazine, part 2d, p. 89. * The Woodrop Sims, 2 Dod. 83, 85. Emerigon puts three cases only: (1) where collision happens by accident or inevitable casualty; (2) where it happens by the fault of one party ; (3) where it happens by some fault, but it is impossible to ascertain which is the party to blame. 1 Eraerig. Assur. ch. 12, § 14, p. 411. 6 The Woodrop Sims, 2 Dod. 83, 85; The Catharine of Dover, 2 Hagg. Adm. 145 ; 1 Bell, Comm. p. 580, 5th edit. ; Abbott on Shipp. P. 3, ch. 8, § 12, p. 354, 5th edit. ; 3 Kent, Comm. Lect. 47, p. 230, 231, 4th edit. ; 604 PASSENGER CARRIERS BY "WATER. [CH. VI. Roman law.^ But among modern maritime nations there is a great diversity of principle and practice ; some of them adhering to the Roman and English doctrine, and others ap- portioning the loss between the parties. § 608 a. Secondly, a misfortune of this kind may arise, where both parties are to blame, and where there has been a want of due diligence or skill on both sides. In such a case the rule of the maritime law is, that the loss must be appor- tioned between them, as having been occasioned by the fault of both of them.2 This also seems to be the general rule adopted by modern maritime nations ; and it has been inflex- ibly supported by the High Court of Admiralty of England.^ Emerigon has laid down the same rule, and has cited author- ities from different nations to support it.* The modern Code of France (following in this respect the interpretation given to the Ordinance of Louis XIV.), has adopted an equitable apportionment, declaring that the loss shall be divided in equal portions between the vessels.^ The law of Scotland has fully recognized the same rule ; and it has been directly applied by the House of Lords in a case brought there by appeal from the Courts of Scotland.® It has sometimes been The Shannon and The Placidia, Jurist (English), 1843, p. 380, 381; [s. c. 1 W. Rob. Adm. 463; The Morning Light, 2 Wall. 550; Union Steam- ship Co. V. New York Steamship Co., 24 How. (U. S.) 307; Stainback «. Rae, 14 How. (U. S.) 532 ; Steamboat Co. v. Whilldiu, 4 Harr. (Del.) 228.] 1 Post, § 610. 2 pggt^ § 610 and note. s The Woodrop Sims, 2 Dod. 83, 85; 3 Kent. Comm. Lect. 47, p. 231, 4th edit. [See also Vaux v. ShefEer, 8 Moore, P. C. 75; The Montreal, 24 Eng. Law & Eq. 580; jl7 Jur. 538;} The General CHuch, 21 How. (U. S.) 184;] {The Washington and The Gregory, 9 Wall. 513; The Gray Eagle, 9 Wall. 505; The Sapphire, 11 Wall. 164; The America, 92 U. S. Supr. 432. But see The Sapphire, 18 Wall. 51. } ^ 1 Emerigon, Assur. ch. 12, § 14, p. 417, 418; 2 Valin, Lib. 3, tit. 7, art. 11, p. 183. 5 Code de Commerce, art. 407 ; 2 Valin, Com. B. 3, -tit. 7, art. 11, p. 183. ^ Le Neve v. Edinburgh & London Shipping Company, decided in the House of Lords, on the 15th of June, 1S24. The decree there was, — " The Lords find, that both ships in this case were in fault; and that the whole damage sustained by the owners of the ship Wells, and of the cargo, which were sunk and lost, should be borne equally by the parties; and find. CH. VI.] PASSENGER CAERIEES BY WATER. 605 said, that this is a sort of rusticum judicium; but it seems certainly founded in the general principles of justice and equity.i § 608 b. Thirdly. It may happen by the misconduct of the suffering party only ; and then the rule is, that the suf- ferer must bear his own burden.^ The rule is so consonant to common justice, that it seems to be adopted as a general maxim of maritime jurisprudence in modern times. ^ § 608 a. Lastly, it may have been the fault of the ship which ran down the other ; and in this case the injured party will be entitled to an entire compensation from the other.* therefore, that the appellants are liable to the respondents in the sum of £1,535 16s., one-half of the value of The Wells and cargo, such half not exceeding the value of The Speightley and her freight." Cited 1 Bell, Comm. p. 581, 5th edit. ; 3 Kent, Comm. Lect. 47, p. 231, 232, 4th edit. In Kent v. Elstob, 3 East, 18, the Court of King's Bench held, that in a case of collision, where both parties were to blame, there could be no recov- ery of damages in any court of common law, or apportionment of damages between the parties. The same doctrine was held by Lord Tenterden in Vanderplank v. Miller, 1 Mood. & Malk. 170. The same doctrine was recognized in Lack». Seward, 4 Carr. &Payne, 106 ; in Vennall v. Garner, 1 Cromp. & Mees. 21 ; and in Luxford v. Large, 5 Carr. & Payne, 421. See also Woolf v. Beard, 8 Carr. & Payne, 373. The Court of Admiralty, notwithstanding, continues to act upon its rule as the sound doctrine of the maritime law. See De Vaux v. Salvador, 4 Adolph. & El. 420 ; The Mon- arch, 1 W. Rob. Adm. 21; The Oratava, May, 1839, 5 Monthly (English) Law Magazine, vol. 5, p. 45; The Earl Bathurst, Nov. 1838, Dr. Lushing- ton. Monthly (English) Law Magazine for December, 1838, vol. 3, p. 446, 447; The De Cock, July, 1839, Monthly Law Magazine, vol. 5, part 2d, p. 303. The rule of the Admiralty has been fully recognized by Judge Hopkinson, in Reeves v. The Ship Constitution, Gilpin, 579. See also The Richmond, January, 1838, Monthly (English) Law Magazine, vol. 3, p. 259. 1 See 3 Kent, Comm. Lect. 47, p. 231, 4th edit.; Cleirac, Us. et Cout. de la Mer, Jugemeus d'Oleron, art. 14, Comment. § 5, p. 34, edit. 1788. The editions of Cleirac vary in the paging. See 1 Bell, Comm. p. 581, 5th edit. 2 The Woodrop Sims, 2 Dod. 83, 85 ; The Catharine of Dover, 2 Hagg. Adm. 145; The Ligo, 2 Hagg. Adm. 356; Dig. Lib. 9, tit. 2, 1. 29, § 2; Pothier, Pand. Lib. 9, tit. 2, n. 16. 8 2 Valin, Comm. Liv. 3, tit. 3, art. 11, p. 183; Jacobsen, Sea Laws, B. 4, ch. 1, p. 325, 328, Prick's edit.; 1 Emerigon, Assur. ch. 12, § 14, p. 413. * I quote the very language of Lord Stowell, in The Woodrop Sims, 606 PASSBNGBB CAERIEES BY WATER. [CH. VI. The Ordinance of Louis XIV. lays down the rule in terms equally applicable to the present and to the precedent case, that whenever the collision is by the fault of one of the mas- ters of the vessels, the damage shall be borne by him who has caused it.' § 608 d. In cases of collision, where a loss is caused by the fault of one of the ships only, the general maritime law ex- acts a full compensation, to be paid out of all the property of the owners of the guilty ship, upon the common principle applied to persons who undertake the conveyance of goods, that they are answerable for the conduct of the agents whom they employ ; and the other parties, who suffer the damage, place no trust in these agents, and can exercise no sort of control over their acts. To this rule England for a long time conformed. But Holland having, for the protection of its own navigation, limited the remedy against the owner to the value of the ship, freight, apparel, and furniture, England has recently followed the example, and established by statute a like limitation.^ In America no positive enactment has been made ; and therefore the responsibility of the guilty ship and its owners stands upon the general maritime law.^ 2 Dod. 83, 85. See also 1 Bell, Coram, p. 579-581, 5th edit. {And see The Sisters, 1 P. D. 117.} [A lien is thereby created on the ship in fault, and follows the ship into -whosesoever hands it comes. The Bold Buccleugh (same case, Harmer v. Bell), 7 Moore, Priv. Coun- cil Cases, 267 ; s. c. 22 Eng. Law & Eq. 62. In this case the Court said: " But it is further said, that the damage confers no lien upon the ship, and a dictum of Dr. Lushington, in the case of The Volant, 1 W. Rob. 387, is cited as an authority for this proposition. By reference to a con- temporaneous report of the same case (1 Notes of Cases, 608), it seems doubtful whether the learned judge did use the expression attributed to him by Dr. W. Eobinson. If he did, the expression is certainly inaccu- rate, and being a dictum merely, not necessary for the decision of that case, cannot be taken as a binding authority. A maritime lien does not include or require possession."] ' 1 Valin, Comm. Liv. 3, tit. 7, art. 11, p. 183. See also Jacobsen's Sea Laws, B. 4, ch. 1, p. 324 to 342, Prick's edit. ^ See Stat. 53 Geo. 3, ch. 159; The Dundee, 1 Hagg. Adm. 109; Gale V. Laujie, 5 Barn. & Cressw. 158 ; The Catharine of Dover, 2 Hagg. Adm. 145 ; [Wilson v. Dickson, 2 B. & Aid. 2. J ^ [But since the original work was written. Congress has passed an CH. VI.] PASSENGER CAERIEES BY WATEE. 607 § 609. Another case has been put by a learned commenta- tor upon commercial law.^ It is, where there has been some fault or neglect ; but on which side the blame lies is inscru- table, or is left by the evidence in a state of uncertainty. In such a case, many of the maritime states of Continental Eu- rope have adopted the rule to apportion the loss between the two vessels.^ In the Scottish law this point seems left unde- termined ; although one of her early jurists has considered the rule to be the same as the rule of apportionment on the Continent.^ The English law, at the time when Mr. Bell pub- lished the last edition of his Commentaries, had not furnished any authority either for or against the rule.* If the question act on this subject limiting the liability of ship-owners to the extent of their interest in the ship and freight. See 9 U. S. Stat, at Large, p. 635 (1851); Walker u. Transportation Co., 3 Wall. 150. And such has been the law of Massachusetts since the year 1818, and it is now in force in that State. See Stat. 1818, ch. 122 ; Gen. Stats, ch. 52, § 18-21 ; Walker u. Boston Ins. Co., 14 Gray, 307; Allen d. Mackay, 1 Sprague, 219. And see Rev. Stats, of Maine, 1850, ch. 35 ; Rice v. Ontario Steamboat Co., 56 Barb. 384.] { See further, U. S. Rev. Stats. § 4281-4289 ; Knowl- ton V. Providence Steamship Co. , 53 N. Y. 76 ; Norwich Co. v. Wright, 13 Wall. 104. The opinion of Clifford, J., in The Atlas, 93 U. S. Supr. 302, shows that the present American doctrine is substantially like that of England, as announced in the text. } ' Mr. Bell, in 1 Bell, Comm. p. 579, 5th edit. ^ 1 Bell, Comm. p. 579 to 582, 5th edit., and the authorities there cited. ' Ibid. * Ibid. (edit. 1826). In a recent case of collision, however, Sir Chris- topher Robinson, in summing up the facts to the masters of Trinity House, whom he had called to his assistance, made the following remarks : " The result of the evidence will be one of three alternatives: either a conviction on your mind that the loss was occasioned by accident, in which case it must be sustained by the party on whom it has fallen; or a state of reasonable doubt as to the preponderance of evidence, which will have nearly the same effect; or third, a conviction that the party charged with being the cause of the accident is justly chargeable with the loss of this vessel, according to the rules of navigation, which ought to have governed them." The Catharine of Dover, 2 Hagg. 145, 154. It is not perhaps quite certain whether the learned judge had in his mind at the moment a case where there was a collision by some fault, but it was uncertain which party was in fault, when he speaks of "a state of reasonable doubt as to the preponderance of evidence," or whether he applied that language to a doubt whether it was a loss by accident or 608 PASSENGER CAKEIERS BY WATER. [CH. VI. be still open to controversy, there is great cogency in the reasoning of Mr. Bell in favor of adopting the rule of ap- portioning the loss between the parties.^ Many learned jurists not ; although the latter would seem to be the natural construction of the language in the actual connection in which it stands with reference to the points before the court, which were, whether the loss was by the wil- ful malice or by the gross negligence of the master of the vessel against which the suit in rem was brought. The Catharine of Dover, 2 Hagg. 147. If his language was meant to apply to a case of inscrutable fault or blame, then it would seem to affirm the rule in England to be, not to ap- portion the loss in a case of damage by inscrutable fault or blame. If it was meant to apply merely to the question of accident, then the rule would seem still to be open to controversy in England. 1 1 Bell, Comm. p. 581, 5th edit. As Mr. Bell's work is rare in this country, I take the liberty of adding here the whole passage, although it is long : " It is in the case which lies between these two extremes that the main difficulty is found, for the resolution of which rules so different have been resorted to. This is the case where both parties are to blame, or where there is some neglect or fault which is inscrutable. By the maritime law, this is a case of average loss or contribution, in which both ships are to be taken into the reckoning, so as to divide the loss. And although it may be said (according to Cleirac) , that this rule of division is a rustic sort of determination, and such as arbiters and amicable com- promisers of disputes commonly follow, where they cannot discover the motives of parties, or where they see faults on both sides — this im- peaches neither the justice nor the expediency of the rule. The rule of the Roman law appears to be against the determination of the maritime codes. But in the immature jurisprudence of Rome, relative to mari- time commerce, the more difficult case, which was forced on the attention of subsequent navigators, does not appear to have occurred. In distin- guishing more scrupulously the cases to which the doctrine is applicable, one case is where there is fault on both sides ; the other, where there is fault which cannot be fixed on either. As to the former. Lord Stowell, the greatest authority on a question of this nature, and under whose pe- culiar cognizance such questions fall in England, views the doctrine con- sistently with the rule of the maritime codes. ' A misfortune of this kind,' he says, ' may arise where both parties are to blame; where there has been a want of diligence or of skill on both sides ; in such a case, the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both of them.' In the other case, of in- scrutable fault, there seems not to have been any example in England requiring decision ; while the only authority on the point in the books of Scottish law is to be found in the book which goes under the name of President Balfour, where, as one of the Sea Laws, the rule of equity, as adopted in the maritime code, is laid down as the law of Scotland. It CH. VI.J PASSENGER CARKIEES BY WATER. 609 have supported the justice and equity of such a rule ; and it especially has the strong aid of Pothier, and Valin, and Emerigon.^ seems, therefore, to be a point still open to consideration, both in Eng- land and here. In legal arrangement, it belongs to the doctrine of aver- age or contribution ; and the point is, whether it be not consistent with equity and expediency, that the contribution of average of such a misfor-. tune, in the case of inscrutable fault, as well as in the case of obvious fault on both sides, shall comprehend both ships, to equalize the loss, as if all were embarked on the same bottom. In point of equity, much, undoubtedly, may be said on both sides ; in point of expediency, there appears to be no sufficient protection, without some such rule, for weak and small vessels against stronger and larger ships; the masters and crews of which will undoubtedly be more careless, when they know that there is little risk of detection, and none at all of direct damage to their vessel, by which a smaller ship may be run down without injury to the assailant. But, under the rule alluded to, the fear of loss will operate as strongly on the masters of large ships as of small, since the damage is to fall proportionally on both ; and if thus equal vigilance and tenderness can be secured on the part of large ships against small, as if they were themselves in danger of direct injury, this rule of maritime law is recom- mended by very strong reasons of expediency. It is very true, that the laws already quoted from the Consolato del Mare may be construed as not entirely consistent with that rule. But while the cases there stated are, at least, such as arise out of physical accident, all the Northern codes of maritime law accord with the doctrine. The laws of Olerou and those of Wisbuy, the Code of the Hanse Towns, the Ordonnance de la Marine of Louis XIV., and, last of all, the Code de Commerce, all divide the damage according to the same rule, which is laid down by Balfour in his Sea Laws, as already quoted. And the principle of the rule is ap- proved of by the most eminent commentators and jurists of the Conti- nent. Taking this, then, in these circumstances, as a question not yet settled by any judicial determination, and respecting which any decision to be given would probably be ruled by the maritime law, as grounded on strong reasons of expediency, and established by all the authorities quoted, the question of contribution would, on that footing, include two points: 1. Whether the ships are to contribute equally, or proportionally to their value. The laws of Wisbuy made a ratable contribution. The laws of Olerou made it a contribution in equal shares. So did the Hanseatic Code. And the chief authorities seem to favor this rule. Valin, in arguing this matter, after quoting the various authorities, states not only the law, but the principle, to be in favor of an equal division of 1 Pothier, Avaries, n. 155; 1 Emerig. Assur. ch. 12, § 14; 2 Valin, Lib. 3, tit. 7, art. 11, p. 183. 39 610 PASSENGER CAEEIEES BY WATER. [CH. VI. § 610. The Roman law, in cases where the collision arose from tlie fault or neglect of one party only, made that party responsible for the whole loss. But in cases of a loss by pure accident, or by the act of God, the same rule existed as in the common law, that the loss must be borne by the sufferer, according to the maxim, that it falls where it lights. ^ " Si navis tua, impacta in meam scapham, damnum mihi dedit, qusesitum est, quae actio mihi competeret. Et ait Proculus, si in potestate nautarum fuit, ne id acciderit, et culp§, eorum factum sit. Lege AquiliE cum nautis agendum. Quia parvi refert, navem immittendo, aut servaculum ad navem ducendo, an tu§, manu damnum dederis ; quia omnibus his modis per the loss, without regard to the value of the ships; as not only shorter and plainer, but as better fitted to operate on the minds of shipmasters, who might otherwise be careless of their course. It will be observed, that the responsibility of ship-owners is limited to the value of the ship and freight by the laws already taken notice of ; both by the general statute relative to liability for losses arising by perils of the sea, and also by the Pilotage Acts. It will also be observed, however, that the Pilotage Acts do not extend to Scotland. 2. The next question would be, whether the cargo of the ship is to suffer contribution, as well as the ships themselves. It ought always to be recollected in this question, that the owners of the cargo cannot possibly be in fault; and that the reason of expediency, on which mainly the rule of the maritime code rests, cannot, therefore, apply to them; while no case of proper average can arise, where there is not a voluntary sacrifice for the common safety. It is a different ques- tion, whether a cargo damaged in the collision should be deprived of the benefit of the contribution to be made by the other ship; for th^ is part of the daQiage which has been occasioned by the misfortune ; and if it were to be considered merely as a peril of the sea, as between the mer- chant and his own ship-owners, he, who may, perhaps, have suffered the most, would unjustly be left without a remedy. According to some authorities, the cargo ought, in such a case, to have the benefit of the contribution. Valin dissents, and lays it down as law, that the contribu- tion is only between the ships, to the total exclusion of the cargoes from the benefit, as well as from the burden. The former rule, however, seems to have been adopted by the House of Lords, in a case already referred to. In oases of damage by collision, it is no defence to the owners, that the ship in fault is under the direction of a pilot, and that the remedy lies against him. They are liable in the first place, and must seek their remedy against the pilot." 1 Big. Lib. 9, tit. 2, 1. 29, § 2, 4 ; 1 Bell, Comm. p. 580, 5th edit. ; mite, § 608. CH. VI.] PASSENGER CARRIERS BY WATER. 611 te damno adficior. Sed si fune rupto, aut cum a nuUo rege- retur, navis incurrisset, cum domino agendum non esse.^ Si navis alteram contra se venientem obruisset, aut in guberna- torem, aut in ducatorem, actionem competere damni injurise, Alfenus ait. Sed si tanta vis navi facta sit, quee temperari non potuit, nullam in dominum dandam actionem ; sin autem, culpS. nautarum id factum sit, puto Aquilise sufficere."^ Mr. Bell, in his text, says, that this is the rule of all the codes, maritime and municipal. And he inclines to the opinion, that the rule of apportionment, which is found in some of these codes, applies only to cases of mutual fault, or of in- scrutable fault.^ That the rule of the Roman law has been adopted into the maritime codes of many nations cannot admit of any doubt.* That it has been adopted into all, or that it now pervades all, is by no means clear. Mr. Abbott entertains a different opinion on this point from Mr. Bell, and says, that, by the law of most of the Continental nations of Europe, the injury done by one vessel to another, or to its cargo, without fault in the persons belonging to either ship, » Dig. Lib. 9, tit. 2, 1. 29, § 2 ; Pothier, Pand. Lib. 9, tit. 2, n. 16. 2 Dig. Lib. 9, tit. 2, 1. 29, § 4; Pothier, Pand. Lib. 9, tit. 2, u. 2L ° 1 Bell, Comm. p. 580, 581, and notes, 5th edit. * See 1 Bell, Comm. p. 580-582, and notes, 5th edit. Mr. Bell cites, as in favor of the rule, the Consolato del Mare, edit. Casaregis, cap. 197 to 200; Id. edit. Boucher, cap. 200 to 203; Jus Marit. Hanseat. tit. 10, art. 2, Kuricke, edit. Heineccii, p. 803. Emerigon also cites other au- thorities to the same effect. 1 Emerig. Assur. ch. 12, § 14, p. 411 to 414. On the other hand, the laws of Oleron (art. 14), and of Wisbuy (art. 26, 50, 67, 70), apportion the loss in such case between the parties. 1 Bell, Comm. p. 580, note (5), 5th edit. The Ordinance of Louis XIV. adopts the same rule of apportionment, 2 Valin, Comm. Liv. 3, tit. 7, § 10, p. 177; as does the law of Holland, of Denmark, and of Prussia. Jacob- sen's Sea Laws, B. 4, ch. 1, § 330, 331, Frick's edit.; Bynk. Quest. Jur. Priv. Lib. 4, ch. 18-20; Abbott on Shipp. P. 3, ch. 8, § 12 and note. The present Commercial Code of France has altered the old rule, and adopted that of an apportionment of the loss. Code de Commei-ce, art. 407. See also Jacobsen's Sea Laws, p. 325 to 342, Frick's edit. See also Cleirac, Jngemens d'Oleron, art. 14, and Comm. p. 68, old edit. ; Id. p. 33, 34, of edit. 1788. See also Peters ». Warren Insurance Co., [3 Sumn. 389 ; s. c. 1 Story, 463; s. c. on appeal, 14 Pet. 99. See also General Mutual Ins. Co. v. Sherwood, 14 How. (U. S.) 351.] 612 PASSENGER CAEElftES BY WATEK. [CH. VI. is to be equally borne by the owners of the two vessels ; ^ and Mr. Marshall expresses the same opinion.^ Mr. Bell, however, has the support of many learned jurists on his side.^ § 611. In all these cases of collision, the essential question is, whether proper measures of precaution are taken by the vessel which has unfortunately run down the other. This is partly a question of nautical usage, and partly a question of nautical skill. If all the usual and customary precautions are taken, then it is treated as an accident, and the vessel is exonerated. If otherwise, then the offending vessel and its owners are deemed responsible.* Some rules, however, which 1 Abbott on Shipp. P. 3, ch. 8, § 12, 5tli edit. ; Peters v. Warren Insurance Co., [3 Sumn. 3t;9; 1 Story, 463 ; 14 Pet. 99.] 2 Marshall on Insur. B. 1, ch. 12, § 2, 2d edit. s 1 Bell, Comm. p. 580, 581, and notes, ibid. 5th edit.; Pothier, Avaries, n. 155; 1 Emerig. Assur. ch. 12, § 14; 3 Kent, Comm. Lect. 47, p. 230, 231, 4th edit. * Lowry v. The Steamboat Portland, 1 Law Reporter, 318; [William- son w. Barrett, 13 How. (U. S.) 101; Steamboat Co. d. Whilldin, 4 Harr. (Del.) 228 ; Gen. Steam Nav. Co. v. Tonkin, 4 Moore, P. C. 314.J In the first case the learned District Judge (Davis) took the opinion in writ- ing of some distinguished nautical men under oath, who among other things returned this answer- "In our answers to former questions, we have stated the rule or usage to be, that when two vessels are approach- ing each other, both liaving the wind free, and consequently the power of readily controlling their movements, the vessel on the larboard tack shall give way, and thus each pass to the right. This rule should govern ves- sels, too, sailing on the wind, and approaching each other, when it is doubtful which is to windward. But if the vessel on the larboard tack is so far to windward, that, if both persist in their course, the other will strike her on the leeward side abaft the beam, or near the stem, in such case the vessel on the starboard tack must give way, as she can do so with greater facility, and less loss of time and distance, than the other. These rules are particularly intended to govern vessels approaching each other, under circumstances that prevent their course and movements being readily ascertained with accuracy ; for instance, in a dark night, or dense fog. At other times, circumstances may render it expedient and proper to depart from them ; for we consider them all subordinate to the rule prescribed by common sense, and applicable to all cases, under any cir- cumstances, which is, that every vessel shall keep clear of every other vessel when she has the power to do so, notwithstanding such other may have taken a course not conformable to established usage. We can scarcely imagine a case, in which it would be justifiable to persist in a CH. VI.] PASSENGER CAREIEES BY WATER. 613 probably had their origin in the customs of navigation, are now adopted as positive rules of law. Thus, the law imposes upon the vessel having the wind free the obligation of taking proper measures to get out of the way of a vessel which is close hauled, and of showing that it has done so ; otherwise the owners will be responsible for any loss which ensues.^ Therefore, a vessel sailing with the wind must give way to one sailing by the whid ; and the vessel sailing by the wind is not obliged to alter her course.^ Another rule is, that, when vessels are crossing each other in opposite directions, and there is the least doubt of their going clear, the vessel on the starboard tack is to persevere in her course, while that on the larboard tack is to bear up, or keep more away before the wind.^ Another rule is, that the master of a vessel en- tering a port or river, where other vessels are lying at anchor, is bound to make use of all proper checks to stop the head- way of his vessel, in order to prevent accidents ; .and if, from want of such precautions, a loss ensues, he and his owners will be responsible.* So, a light vessel with a free wind, meeting a laden vessel close hauled, is bound to give way, and the latter is to keep her course.^ § 611 a. Rules founded on the like usages and the general convenience of commerce have been recognized in the Amer- ican courts. Thus, it has been certified (as we have just seen),^ that when two vessels are approaching each other, course, after it had become evident that collision would ensue, if by changing such course the collision could be avoided." 1 The Woodrop Sims, 2 Dodson, 83; 3 Kent, Comm. Lect. 47, p. 230, 231, 4th edit.; The Thames, 5 Bob. Adm. 345; 1 Bell, Comm. p. 580, 5th edit. 2 The Juno and The Alert, Angell's Law Intelligencer, vol^ 1 (1829), p. 20; Handaysyde v. Wilson, 3 Carr. & Payne, 528; Jameson v. Drink- aid, 12 Moore, 148; The De Cock, July, 1839, Monthly (English) Law Magazine, vol. 5, p. 303. 8 The Shannon, 2 Hagg. Adm. 174. * The Neptune 2d, 1 Dodson, 467; 3 Kent, Comm. Lect. 47, p. 230, 231, 4th edit. See The Shannon and The Placidia, 1 W. Eob. Adm. 463 ; s. c. Jurist (English), 1843, p. 380. And as to steamships, see The Kose, Jurist (English), 1843, p. 381; s. c. 2 W. Rob. Adm. 1; [The Iron Duke, 2 W. Kob. Adm. 385.] 6 The Harriett, 1 W. Rob. Adm. 182. » Ante, § 611, note. 614 PASSENGER CAEEIEES BY "WATEE. [CH. VI. both having the wind free, and consequently the power of readily controlling their movements, the vessel on the lar- board is bound to give way, and thus to pass to the right. The same rule governs vessels sailing on the wind, and ap- proaching each other, when it is doubtful which is to wind- ward. But if the vessel on the larboard tack is so far to windward, that, if both persist in their course, the other will strike her on the lee side abaft the beam or near the stem, in suck a case the vessel on the starboard tack must give way, as she can do so with greater facility and less loss of time and distance than the other. i § 611 b. In respect to steamboats, as they do not receive their impetus from sails, but from steam, they are capable of being kept under better command ; and therefore, it seems, from their greater power, they ought always to give way in favor of vessels using sails only.^ Indeed, a steamer is gen- erally deemed as alwaj's sailing with a free and fair wind, and therefore is bound to do whatever a common vessel, going free or with a fair wind, would, under similar circumstances, be required to do in relation to any other vessels which it meets in the course of its navigation.^ So, where two steamers are sailing in opposite directions, and it is clear that, if they con- tinue their course, there is a reasonable probability of their coming in collision, it is held in England to be the true rule that each shall put its helm a-port so as always to pass on the larboard side of each other ; and the steamer which does not will, in case of damage by collision, be responsible.* 1 Lowry v. The Steamboat Portland, 1 Law Rep. 313 ; Handaysyde V. Wilson, 3 Carr. & Payne, 528; The Oratava, May, 1839, 5 Monthly (English) Law Magazine, part 2d, p. 45. ' Ibid.; Hawkins v. Duchess & Orange Steamboat Co., 2 Wend. 452; The Gazelle, The (English) Jurist, June 3, 1843, p. 497; [s. c. 1 W. Rob. Adm. 471.] ^ Lowry v. The Steamboat Portland, 1 Law Rep. 313; Hawkins v. Duchess & Orange Steamboat Co., 2 Wend. 452. | And see The Car. oil, 8 Wall. 302; The Free State, 91 U. S. Supr. 200; The Sea Gull, 23 Wall. 165; The Barker, L. R. 4 Ad. & Eec. 456; The City of Brooklyn, 1 P. D. 276. But see The Java, 14 Wall. 189; The Hasbrouck, 93 U. S. Supr. 405; The Sunnyside, 91 U. S. Supr. 208; Dowell v. Gen. Steam Nav. Co., 5E. & B. 195.} * The Duke of Sussex, 1 W. Rob. Adm. 274. {Collision is a subject CH. VI.] PASSENGER CAREIEES BY WATER. 615 There are some other rules laid down b}"- Emerigon and other foreign jurists ; but as thej' do not appear to be ex- pressly recognized in the common law, it may be questionable how far they constitute a part of the general law of the sea.^ It seems, that it will make no difference in the liability of the owner for the collision, that the vessel had a licensed pilot on board at the time of the accident, and that it was occa- sioned by his negligent or improper conduct.^ § 612. Some statute provisions have been made by the Congress of the United States for the regulation of passen- ger ships in voyages to or from foreign ports. They require of maritime law which may best he studied in general works on Admi- ralty and Shipping. The statutes which regulate the navigation of vessels as concerns the United States are chiefly those of 1864 and 1867, with subsequent additions and amendments. See 13 U. S. Stats. 58; 14 U. S. Stats. 411; U. S. Rev. Stats. § 4S33. In England, regulations have been from time to time promulgated, and statutes enacted ; and among the latter may be mentioned the statute of 25 & 26 Vict. ch. 63, passed in 1862, upon which, as modified by an order in Council, Jan. 9, 1863, our act of 1864 is based. The rules of navigation relate in part to lights, in part to fog-signals, and in part to the method of steering the vessel, and the pre- cautions proper to be used when approaching another vessel. See 1 Sch. Pers. Prop. 421; 1 Pars. Shipping, 548; Maude & Poll. Shipping, 3d edit. 449-465; The Bridgeport, 14 Wall. 116; The Galatea, 92 U. S. Supr. 439; The Clarita, 23 Wall. 1; The Pennsylvania, 19 Wall. 125; The Concordia, L. R. 1 Ad. §c Ecc. 93; The Peckforton Castle, 2 P. D. 222. Evidence of experts is admissible where the rules prescribed by law are silent. The City of Washington, 92 U. S. Supr. 31. We may add, that the conduct of the vessels while approaching each other is regarded, in determining which of the two is to blame; and not merely the moment before collision, when a slight mistake might, during the confusion, be made by the one without affecting the general liability properly imposed upon the other for its carelessness. For the question is, which vessel substantially caused the disaster. The Carroll, 8 Wall. 302; The Falcon, 19 Wall. 75.1 ' 1 Emerig. Assur. ch. 12, § 14. 2 The Transit, Monthly (English) Law Magazine, vol. 1, p. 582; The Neptune 2d, 1 Dodson, 467; The Gerolamo, Monthly (English) Law Magazine, vol. 3, p. 102, 103. (English statutes now qualify and limit the liability of ship-owners for collisions which occur without their fault or privity; as in case the pilot is solely to blame. The Velasquez, L. R. 1 P. C. 494; The Obey, L. R. 1 Ad. & Ecc. 102 ; The Zona, L. R. 1 P. C. 426. Cf. The China, 7 Wall. 58; The Merrimac, 14 Wall. 199.} 616 SPECIAL OE QUASI BAILEES EOR HIEB. [CH. VI. that the Bumber of passengers which shall be taken on board of any ship, bound to or from the United States to or from any foreign port, shall not exceed two for every five tons of the ship's custom-house measurement ; and that the quantity of water and provisions, which shall be taken on board, and se- cured under deck, by every ship bound from the United States to any port on the Continent of Europe, shall be sixty gallons of water, one hundred pounds of salted provisions, one gallon of vinegar, and one hundred pounds of wholesome ship-bread. It is also made necessary for the master to have a manifest or list on board of all the passengers taken on board at any foreign port. Tliese enactments are enforced by suitable penalties and forfeitures.^ Certain regulations also have been made by Congress respecting steamboats, which are also deserving of notice in this place, as they materially affect the responsibility of the proprietors thereof.^ ART. X. SPECIAL OE QUASI BAILEES FOE HIEB. [§ 613. Cases of Possession of Property by Captors, by Revenue OflRcers, by Prize Agents, by Officers of Courts, by Finders, and by Salvors. 614. Wlien Captors are bound for Losses. 615. To vifliat degree of Diligence Captors are bound. 616. The same subject. Lord Stowell's Opinion. 617. Case, where Goods have been unliveried by Decree of Prize Court. 618. Rules applicable to Goods seized by Revenue Officers. 619. As to Prize Agents, what Principles prevail. 620. Officers of Court, Degree of Diligence to which they are bound. 621. Rule as to Receivers appointed by the Court. 621 a. Finders of Goods, Responsibility of. 622. Salvors, who are regarded as such. 623. Salvors, how far responsible. 624. Loss of Salvage Property pending a Suit for Compensation, by whom to be borne. 625. Conclusion.] 1 Statute of March 2, 1819, ch. 48; [-3 Statutes at Large, 488 ;] 3 Story, U. S. Laws, 1722. {See U. S. Rev. Stats. § 4252-4289.} 2 j Henderson v. New York, 92 U. S. Siipr. 259, and Chy Lung v. Free- man, Id. 275, are to the point that States cannot impose oppressive and bur- densome charges upon passengers, under color of establishing sanitary regulations, j CH. VI.J SPECIAL OR QUASI BAILEES FOE HIRE. 617 § 613. There is a class of bailments not exactly falling under any of the heads already examined, which bears some anal- ogy to cases of deposits for hire, or Locatio custodice, and to judicial deposits under the French law.^ Such are cases of Possession of Property by Captors, by R"evenub Offi- cers, BY Prize Agents, by Officers of Courts, by Finders of Lost Property on Land, and by Salvors, who have preserved property at sea, and are entitled to sal- vage. All these seem quasi bailees, or depositaries for hire. § 614. First, in respect to Captors. If the capture is tortious, and without any reasonable cause in the exercise of belligerent rights, the captors are bound for all losses and damages whatsoever, whether by casualty or otherwise. If, on the other hand, the capture is originally justifiable, the captors are deemed possessors bond fide, and the law is clear, that bond fide possessors are not responsible for casualties. But captors may, by subsequent misconduct, forfeit the pro- tection of their fair title, and render themselves liable to be considered as trespassers from the beginning.^ But mere irregularities will not so charge the captors, unless they pro- duce an irreparable loss to the other party, or justly prevent a restitution of the property.^ If there has been any embez- zlement of the property, while it was in their custody, the captors must answer for that, whether it was done by them- selves, or by any persons acting under them.* § 615. The first question in all cases of capture is, what is the degree of care or diligence to which the captors are bound. An attempt has been made to charge them with the same degree of responsibility as innkeepers and common carriers ; but this doctrine has been constantly repudiated.^ On the other hand, an attempt has been made to bring down their responsibility to the same degree as that which the cap- tors take, or may be presumed to take, of their own property. > Pothier, Traits de Depot, n. 84 to 118. 2 The Betsey, 1 Rob. Adm. 93, 96. » Ibid. 93, 99, 100. * The Concordia, 2 Rob. Adm. 102; Der Mohr (Ship), 3 Rob. Adm. 129, 130. 6 The Maria and Vrow Johanna, 4 Rob. Adm. 348, 350 ; The Rends- berg, 6 Rob. Adm. 142, 146. 618 SPECIAL OE QUASI BAILEES FOE HIEB. [CH. VI. This doctrine has also been overruled.^ The true rule, dedu- cible from the nature of their rights and duties, seems to be, that they are bound to the same degree of diligence which prudent persons exercise in keeping their own property; that is, they are bound to ordinary diligence, and of course they are answerable for losses by ordinary negligence.^ § 616. The reasoning of Lord Stowell on this subject seems entirely convincing.^ When goods are taken justifiably /tere belli, the captors have a right to bring them in for adjudica- tion ; and if in so doing any accident happens, they will be 'excusable, except for want of due care on the part of them- selves or their agents. But however justifiable the original seizure may be, still the captors hold but an imperfect right. The property may turn out to belong to others ; and if the captors put it into an improper place, or keep it with too lit- tle attention, they are liable to the consequences, if the goods are not kept with the same caution with which a prudent person would keep his own property.* The position some- times taken, that captors are answerable only for the same care as they would take of their own property, is not a just criterion in a case of this sort. In cases of capture there is no confidence reposed, nor any voluntary election of the per- son in whose care the property is left. It is a compulsory act of justifiable force ; but still of such force as removes from the owner any responsibility for the imprudent or in- cautious conduct of the prize-master. It is not enough, therefore, that a person in that situation uses as much caution as he would use about his own affairs. The law requires that there should be no deficiency of due diligence.^ And if a loss occurs, the onus is on the captors to show that due dili- gence has been used, and that the loss was not from any fault or misconduct on the part of themselves or their agents.^ If 1 The William, 6 Rob. Adm. 316. 2 The Maria, &c., 4 Rob. Adm. 348, 350. [See The Anne, 3 Wheat. 435; The George, 1 Mason, 24 ; The Lively, 1 Gall. 315. | 8 The Maria, &c., 4 Rob. Adm. 348, 351, 352. * The Maria, &c., 4 Rob. Adm. 348, 351, 352; The Catharine and Anna, 4 Rob. Adm. 39. 6 The ^ViUiam, 6 Rob. Adm, 316, 318. « Ibid. CH. yi.] SPECIAL OR QUASI BAILEES FOE HIRE. 619 there has been any loss by the wilful negligence of the prize- master, by not taking a pilot at the proper place, or by not placing the vessel in a proper situation for quarantine, the captors will be responsible, as much as in cases of embezzle- ment.^ § 617. If the goods have been unliveried by a decree of the Prize Court, and placed under the joint locks of the offi- cers of the revenue and of the captors, in a warehouse, and are stolen from thence by burglars, without any want of due care by the bailees, the unlivery being under the direction of the court, and the possession of the captors being the posses- sion of the court, the captors are not liable for the loss.^ § 618. Secondly. The same rules which apply to captors would seem to apply to Revenue Officers and others, who seize property for supposed forfeitures. If the seizure is without a justifiable cause, they are responsible for all losses and damages. If the seizure is for a justifiable cause, they are responsible only for losses and damages occasioned by the want of ordinary diligence.^ § 619. Thirdly. As to Prize Agents, the same princi- ples, upon the like reasoning, would seem to prevail. In- deed, they do not seem essentially to differ from other agents, acting for hire, either as to duties or responsibilities.* § 620. Fourthly. As to Officers of Courts. In respect to property in the custody of the officers of a court, pending process and proceedings, such officers are undoubtedly respon- sible for good faith and reasonable diligence.^ If the prop- erty is lost or injured by any negligent or dishonest execution of the trust, they are liable in damages. But they are not liable, as of course, because there has been a loss by embez- zlement or theft. In order to charge them in such cases, the loss must have arisen from the culpable neglect or fraud, 1 Die Fire Darner, 5 Rob. Adm. 357; The Freya, 5 Rob. Adm. 75 ; The William, 6 Rob. Adm. 316. 2 The Maria, &c., 4 Rob. Adm. 348. 8 Burke v. Trevitt, 1 Mason, 96, 101. * The Rendsberg, 6 Rob. Adm. 142, 154 to 158; ante, § 422, 455; Story on Agency, § 182 to 186. « "See ante, § 124 to 185. 620 SPECIAL OR QUASI BAILEES FOE HIEE. [CH. VI. either of themselves, or of the agents or servants employed by and under them. And it seems, that the court places such confidence in its officers, that it will require some proof at least of negligence or fraud in them, or their subordinates or servants, before it will throw the burden of proof upon them to exonerate themselves from the charge.^ The degree of diligence which officers of the court are bound to exert, in the custody of the propertjs seems to be such ordinary diligence as belongs to a prudent and honest discharge of their duties, and such as is required of all persons who receive compensation for their services.^ This is the rule of the French law ; and it is founded upon the mutuality of interest and benefit in the respective parties.^ § 621. Generally speaking, the like rule applies to Receiv- ers and other depositaries appointed by the court.* Pothier, however, thinks that the general receiver of a court (^Receveur des consignations), who, in virtue of his office, receives the property brought into court, becomes bound to all possible diligence, and is liable for the slightest neglect.^ He founds his reasoning, however, upon circumstances peculiar to the French law, or at least upon circumstances not applicable to receivers in general, either in. England or America. § 621 a. Fifthly. In respect to Finders of lost property on land. We have already seen, that persons in this predic- ament are treated as quasi depositaries, and therefore, in gen- eral, they are, like other gratuitous depositaries, bound only to slight diligence, and are responsible only for gross negli- gence.^ We have already seen, that, although mere finders of lost property on land are not entitled to salvage, yet they 1 Burke v. Trevitt, 1 Mason, 96, 101; The Hoop, 4 Rob. Adm. 145; The Rendsberg, 6 Rob. Adm. Hi, 1.57; [Browning v. Hanford, 5 Hill (N. Y.), 592. See Trotter v. White, 26 Miss. 93.] 2 The Rendsberg, 6 Rob. Adm. 142, 154, 156, 169; Burke v. Trevitt, 1 Mason, 96, 100, 101; [Aurentz v. Porter, 56 Penn. St. 115;] jBlake V. Kimball, 106 Mass. 115 ; Cross v. Brown, 41 N. H. 283; ante, § 130.} s Pothier, Traits de D6p6t, n. 92, 96. * Knight 0. Plimouth, 3 Atk. 480 ; Beauchanap v. Silverlook, 2 Chanc. 9 ; Horsley v. Chaloner, 2 Ves. 85; Rowth v. Howell, 3 Ves. Jr. 566; Wren V. Kirton, 11 Ves. Jr. 377. 6 Pothier, Trait6 de Depot, n. 111. « Ante, § 84 to 88. CH. VI.] SALVOKS. 621 are entitled to receive full compensation for all reasonable and necessary expenses incurred about the things found and preserved by them.' The grounds upon which they are de- nied salvage seem scarcely capable of any solid vindication, either upon principles of natural justice and equity, or of sound public policy. But if the owner offers a specific re- ward to any finder who retains the property, the latter will be entitled to a lien for the reward.^ § 622. Sixthly. As to Salvoes, strictly so called. When- ever, upon the high seas, or on the sea-coast, or elsewhere, within the admiralty and maritime jurisdiction (which is or- dinarily limited to places within the ebb and flow of the tide), any services are rendered, by persons not composing the ship's crew, to ships in distress, by saving them or their cargoes from impending perils and losses, or by recovering them after they have been lost, or by bringing them, in and preserving them, when found derelict, in order to have them restored to the rightful owners, such persons are denominated Salvors ; and they are entitled to a com- pensation for their services, which is known by the name of Salvage.^ As soon as they take possession of the property for the purpose of preserving it ; as, for example, if they find a ship derelict at sea ; or if they recapture it ; or if they go on board a ship in distress, and take possession with the assent of the master or other persons then in possession ; in all such cases they are deemed bond fide possessors, and their possession cannot be lawfully displaced by any third persons.* 1 Ante, § 121 a. Lord Chief Justice Eyre has said all that can be said, to reconcile us to the doctrine of the common law on this subject. But it must be confessed, that his vindication is far from being satisfactory. Nicholson v. Chapman, 2 H. Black. 254, 257, 258, cited at large, ante, § 121a, note (6). See Salter d. Hurst, 5 Miller (La.), 7, as to salvage at the mouth of the River Mississippi; Wentworth v. Day, 3 Met. 352. 2 Wentworth v. Day, 3 Met. 352; [Cummings v. Gann, 52 Penn. St. 484. See Wilson o. Guyton, 8 Gill, 213;] {ante, § 121 a, note (6).} s Abbott on Shipp. P. 3, ch. 10, § 1, 2, 5th edit. ; 3 Kent, Comm. Lect. 47, p. 245, 4th edit. {See Cargo ex Schiller, 2 P. D. 145, a recent case, in which salvage was allowed out of specie lost from a wrecked steamer and recovered by divers. } * The Blenden-hall, 1 Dodson, 414. 622 SALVOES. [CH. VI. They have a lien on the property saved for their salvage, which the laws of all maritime countries will respect and enforce.^ § 623. Persons thus undertaking to act as salvors are re- sponsible not only for good faith, but for reasonable diligence in their custody of the salvage property. If they are guilty of gross negligence, or of embezzlement, or of fraud, they ordinarily forfeit all their title to salvage.^ But whether, besides a forfeiture of their claims for salvage, they may not also, in a case of gross negligence or fraud, be posi- tively responsible to the owners of the property for losses occasioned by such negligence, does not appear ever to have been the subject of any direct judicial determination.^ In- deed, it does not anywhere appear what is the degree of dili- gence to which they are bound ; whether, like a bailee for hire, they are bound to ordinar}' diligence, or, like a depos- itary in a case of miserabile depositum, to slight diligence.* It may be thought that a close analogy is furnished in the case of a mere finder of goods on land, who incurs (as has been seen^) the responsibility of a mere depositary without hire.® But a finder of goods on land is not (as we have also seen') entitled to receive any compensation as a salvor at sea is ; and this circumstance seems to furnish a fit ground for a distinction, whenever a case shall arise which shall call for a decision upon the point. Their rights, and duties, and re- sponsibilities, indeed, seem to approach most closely to those 1 Abbott on Shipp. P. 3, ch. 10, § 1 and 2; Id. § 11, 13, 5th edit. 2 Mason v. The Blaireau, 2 Cranch, 240; s. c. 1 Peters, Cond. 397. 5 I Salvors are not entitled to reward for saving property which they had by their own wrongful acts contributed to place in jeopardy. Cargo ex Capella, L. R. 1 Ad. & Ecc. 356 ; Cromwell t. The Island City, 1 Clife. 221; The Clarita, 23 Wall. 1. See, for the right of the salved vessel to claim damages for the salving vessel's negligence, while the lat- ter may still claim salvage. The Thetis, L. R. 2 Ad. & Ecc. 365; The Butler, L. R. 4 Ad. & Ecc. 178. j * Ante, § 44, 44 a. » Ante, § 84, 88, 121 a, 621 a; Doct. & Stud. ch. 38. « Abbott on Shipp. P. 3, ch. 10, § 1 and 2, 5th edit. ; 3 Kent, Comm. Lect. 47, p. 245, 4th edit. ' Ante, § 121 a, note (6) ; ante, § 621 a. CH. VI.J CONCLUSION. 623 of persons who let out their labor and services, as well as undertake the custody of things for hire. Under such cir- cumstances, the just rule applicable to them would seem to be, at least, that of ordinary diligence. § 624. Where salvage property has been brought into port, and, pending a suit for compensation, a part of it perishes by accident, as by fire, without any default on either side, if the property remains in the custody of the court, the loss is to be borne by the owners and salvors as a common loss. But if the property has been delivered to either party upon an appraisement, the loss is then to be borne exclusively by such party; for he then takes upon himself the exclusive risk.^ The consideration of the subject of salvage at large belongs more appropriately to the law of shipping ; and, therefore, it will not be further enlarged upon in this place .^ § 625. These Commentaries upon the Law of Bailments are now brought to a conclusion. Upon a review of the whole subject, it will at once occur to the reader, that a great variety of topics, discussed in the Roman and foreign law, remains wholly unsettled in the common law. He will also be struck with the many ingenious and subtile distinctions, singular cases, refined speculations, and theoretical inquiries, to which the free habit of the civilians conduct them in the course of their reasoning. Let it be remembered, however, that if some of these distinctions and speculations and inqui- ries seem remote from the practical doctrines of the common law, they may yet be of great utility in the investigation and illustration of elementary principles. They employed the genius and exhausted the learning of many of the greatest jurists of antiquity ; and they were thought worthy of being embodied in the texts of Justinian's immortal Codes. In 1 The Three Friends, 4 Rob. Adm. 268. ' See Abbott on Shipp. P. 3, ch. 10, § 1, 2, 11, 12, and notes to Amer. edit. 1829 ; 3 Kent, Comm. Lect. 47, p. 245 to 248, 4th edit. As to the apportionment of salvage, see The Henry Ewbank, 1 Sumner, 400, and The Louisa, Jurist, May 20, 1843, p. 429; [s. c. 2 W. Rob. Adm. 22.] {Want of diligence may be a ground for reducing the salvage compensa- tion. The Paint, 2 Ben. 174; Peisch v. Ware, 4 Cranch, 347; Brightly's Dig. Salvage, VII.} 624 CONCLUSION. [CH. VI. modern times, the noblest minds have thought, that a life of laborious diligence was well rewarded, by gathering together illustrative commentaries in aid of these texts. What, in- deed, was juridical wisdom in the best days of imperial Rome, what is yet deemed the highest juridical wisdom in the most enlightened and polished nations of Continental Europe, ought not to be, and cannot be, matter of indifference to any who study the law, not as a mere system of arbitrary rules, but as a rational science. The common law has silently bor- rowed many of its best principles and expositions of the law of contracts, and especially of commercial contracts, from the Continental jurisprudence. To America may yet be reserved the honor of still further assisting in its improvement, by a more intimate blending of the various lights of each system in her own administration of civil justice. INDEX. The References are to the Sections. A. Section. ACCEPTANCE OF PROPERTY, when a waiver of damages or not 269 when carriers discharged by 541, 578 ACCESSORIAL THINGS, in deposits 54, 99 in mandates 194 in gratuitous loans 238 a, 257, 260 in pledges 292, 339 ACCIDENT, inevitable, what is 25, 26 ACCOUNT, by depositary 97, 98, 120, 121 by mandatary 191-193 by borrower 228, 239, 261, 262 by pawnee 839-343 ACT OF GOD, distinguished from inevitable accident 489 what 26-30, 489, 490, 611 ACTION. by depositary 93-95, 105, 133 by depositor 94, 95, 102-106 against depositary 103-106 on joint deposits 114-117 by mandatary 151, 152 by borrower 271-274, 279, 280 by lender 271, 273, 279 by pawnee and pawnor 303, 309-323, 348-353 by hirer 394 (See Attachment ; Inteeplbadkr.) ADVERSE CLAIMANTS, in cases of bailments 110, 114 {See Inteeplbadbr.) AGENTS. (/See Factors.) 422,423,455 40 626 INDEX. SEOTioir. AGISTORS OF CATTLE, duties and responsibilities of 443 ANIMALS, transportation of, by carriers 673, n., 576 ANTICHRESIS 344 ATTACHMENT, by process, deposits on 130 effect of 125, 135 expenses of, by whom to be paid 131 rights of owner in cases of 124-135 by process, how dissolved 126 rights of bailee 132 rights of creditor 129 rights of officer 125-130 AUTHORITY, REVOCATION OF, by death 202-206 by marriage 205 by guardianship 207 by acts of parties 206-209 by operation of law 207 by bankruptcy 211 coupled with an interest 205, 209 AVERAGE, GENERAL, nature of 583 when due 583 what contribute to 583, 584 B. BAGGAGE, what is 499, 500 liability of carrier for 499, 500, 573, n., 595, 604 BAILMENT, definition of 2 different kinds of 3 distinction of, from sale 2 obligations, legal and moral 9, 10 BANK, special deposit in, effect of 41, n., 88 embezzlement by cashier of 88 common deposits in, effect of 88 BANKRUPTCY, effect of, in mandates 211 BILL OF LADING, by way of pledge 297, n. risks in common form of 660 BOARDING-HOUSE KEEPERS, rights and duties of 476, n., 477 INDEX. 627 Section. BORROWER IN CASES OF GRATUITOUS LOANS, rights of 231, 280 use of loan by 231 duties of 236 diligence and care by 237, 238 liability for losses 240, 244 liability where he saves his own goods 245-251 detention by, for debt 264 BURDEN OF PROOF, true meaning of 410 and n. in deposits 79 in mandates 212, 213 in gratuitous loans 278 in pawns 339 in cases of hire of things 410 and ra., 411, 454 of custody 454 of carriage of goods . . 410 and n., 629,573 in cases of notices by carriers 573 in cases of carriage of passengers 601 a in cases of officers of court 620 BURGLARY, whether included in vis major 28 c. CANAL-BOATMEN, are common carriers 496, 573, n., 606 CAPTORS, rights and duties, and responsibility of, in regard to prizes 614-617 CARMEN, are common carriers 496 CARRIER, gratuitous, how and when responsible 174, 175, 190 (See Mandate.) of goods, common carrier 457, 488-589 (See Hire of Cakriagb op Goods.) of passengers 590-612 (See Hire of Carriage of Passengers.) CASUALTY, inevitable, what 25-30 CAUSE AND OCCASION OF LOSS, distinction between 241, 242 COACHMEN. (See Hire of Carriage of Passengers.) . 403, 498, 690, 593, 598 COACH PROPRIETORS, when and how far common carriers 498-500 liabilities of 690-602 628 INDEX. Sectiok. COLLATERAL SECURITY. (See Security, Collateral.) . 288, n. COLLISIO]Sr, loss of ships by 514, 607-611 COMMENDATUM, what 43 COMMODATUM, what 6, 219-22ir283 COMMON CARRIERS. (See Hike of Carriage op Goods.) . 457, 488-589 CONCEALMENT, effect of, in deposits 75-78 in loans 275 in pawns 355, 856 in hire of things 391,391a in hire of services 425 of facts, when it avoids a bailment . . . 79, 665-667 CONDUCTIO, what 8, 368-370 CONFUSION OF PROPERTY 40 CONTRACT, what illegal 32, 168, 229, 291, 293, 379-881 special, construction of . . 31-37, 80-82, 182 a, 216, 252, 317 to keep safe, effect of 33-37, 68-72, 88 when it includes risk of casualties 33-38 CONVERSION OF THING BAILED, what amounts to .... 122, 188, 191, 241, 269, 394, 413 COUNTERMAND, when it may be by depositor 103, 104 by mandator 208-210 (See Revocation.) CREDITORS, privileged, who are 312, 313 CUSTODY, hire of, (See Hire op Custody) 442-456 CUSTOM AND USAGE, effect on bailments 11, 14 D. DAMAGES, in cases of common carriers 609, 671, 682 o in cases of loans 269 DAMNUM FATALE, in civil law, what 4G5 DEATH, effect of, in mandates 202-205 INDEX. 629 SECTION". DEATH— Continued. effect of, in gratuitous loans 277 in carriage of passengers 602, n. DECK GOODS, responsibility of carrier for 413 &, 413 d, 530 DELIVERY, by carrier, when and where 539-546 DEMAND, of deposit, when there should be 107, 120 DEPOSIT, definition of 4, 41-43 as to its gratuitous character 47, n. voluntary 44 involuntary 44 as, 83, 83 a, 121 a simple 45 sequestration 45 judicial 45, 46 regular and irregular 84, 370 a, 439 quasi (finding) 85-87 special 41, n., 88 on attachments 124-135 between what parties 50, 55 of what property 51 under what title 52 second deposit by bailee 52 by mistake 53 of accessorial things 54 essence of 66-60, 66 when complete 55 obligations of depositary 61-135 degree of care and diligence on 62-79, 97 exceptions under contract or officious oflfer 80-82 special contract to keep safe 33-37, 68-72 special deposits in banks 41, n., 88 concealment, in cases of 75-78 necessary and involuntary, obligation in 83, 83 a irregular, obligation in 84 in cases of finding, obligations 85-87 when depositary may use 89-92 of package sealed 92 property in, whether depositary has 93-95 restitution of 96-108,116-120 sale, effect of 100, 101 by servants 106 by guardian 109 by administrator 109 by trustee 109 630 INDEX. Section. DEPOSIT — Continued. conflicting claims to 110-113 (See Interpleader.) joint, effect of 114-116 account by depositary 97, 98, 120, 121 refusal to return, effect of 122, 123 detention for debt 121 whether to be kept as depositary keeps his own goods . 65-67 expenses of, by whom borne 121 DEPOSITARY, rights, duties, and responsibilities . . . 61, 79, 82, 83, 89, 92, 97, 102, 116-1.35 keeping goods as he keeps his own 63-71 DEVIATION from voyage or journey, effect of 413, 509 DILIGENCE, degrees of 11-16 ordinary, what 11 slight, what 16, 239 extraordinary, what 16 what required in different bailments 23 in deposits 62-80 in cases of finding 85 in mandates 173-187 in quasi mandates 189-190 in loans (gratuitous) 237-240 in pawns 332, 342 in cases of hire of things 398-400 of services 429 of custody .... 443, 444 of carriage of goods . . . 459 in innkeepers 464-473 in postmasters 462, 463 in common carriers .... 571, 601, 602, 605 in special or quasi bailments for hire . . 613-624 DISSOLUTION OF CONTRACT. (See Extinguishment.) of mandates 202, 203, 206, 207, 210, 211 of hire of things 418, 419 E. EBIBEZZLEMENT, not a peril of the sea 512 ENEMIES, public, who are deemed 25, 526 pirates are 25 EVIDENCE. (See Burden of Proof.) EXECUTION, pawns not liable to 363 INDEX. 631 Section. EXPENSES, by whom borne, in deposits 121, 121 a in mandates 154, 193, 196, 197 in gratuitous loans 266, 273, 274 in pawns 306, 367, 358 in cases of hire 388, 389, 391, 391 c in cases of carriers 684 EXPRESSMEN. {See Hire of Carriage of Goods.) are romraon carriers 496, n. EXTINGUISHMENT OF CONTRACT, in mandates 202, 203, 206, 207-211 in gratuitous loans 257, 268, 277 in pawns 306, 359-365 in cases of hire 418, 419 F. FACTORS, duties and responsibility of 422, 456, 456 FEMES COVERT, contracts by and with, deposits 50 mandates 162 gratuitous loans 229 pawns 302 hire 380 FERRYMEN, are common carriers 496 FINDER, has ordinarily no lien for expenses 121 a, 621 a but has for a reward offered by the owner 121 a rights, duties, and obligations of .... 85-87, 121 a, 621 a when guilty of larceny 86 FIRE, when carriers liable for losses by 507 a, 611, 528 when innkeepers not liable 472 when warehousemen are and are not responsible for losses by 460 a FORCE, irresistible, what is 26 FORWARDING MERCHANT, not a common carrier 502 FRAUD, whether gross negligence amounts to 19-23 contract for, illegal 32 in deposits 59, 77 in mandates 155 in gratuitous loans 243 632 INDEX. Section. FRAUD — Continued. in pawns 355, 356 in cases of hire 390,425,440 FUNGIBLES, what 284 G. GARNISHMENT, writ of, what, and when it lies Ill GRATUITOUS CARRIER. (See Mandate.) GRATUITOUS LOAN. (See Loan, Gratuitous.) . . . 219-285 GROSS NEGLIGENCE, what 17 whether equivalent to fraud 19-22, 549 GUARDIAN, deposit by, effect of 109 GUEST AT AN INN, who is deemed 477 H. HIRE, CONTRACT OF, definition of 8, 368 regular and irregular, what 370 a, 415 a, 439 general nature of 371 essence of 372-382 price or recompense 374-377 what illegal 378-382 mistake in, effect of 381 the subject classified 382 HIRE OF THINGS 383 rights and duties of the letter 384-393 fraud in 390 expenses by whom borne 888, 389, 391 rights and duties of hirer 394-417 special property in hirer 394 use by hirer 395, 396, 413 degree of diligence 398, 399 responsibility of hirer for acts of his servants .... 400-407 responsibility of hirer for losses 408-412 duty of hirer as to animals 405 effect of hirer's misconduct or negligence .... 413 a-413 d restitution of thing hired, how, and when 414, 415 payment of hire 374-377, 416 payment pro tanto in cases of part-performance . . . 417, 441 extingui^hnlent of contract for, what is 418-420 who is liable as principal for acts of servants in cases of hire of things 402, 403, 403 a INDEX. 633 Section. HIRE OF LABOR AND SERVICES, definition (;f . .• 421,422 nature of contract 423, 424 obligations and duties of employer 425 losses, by whom to be borne 426-438 obligations and duties of workmen 428, 431, 440 degree of diligence required 429, 431, 484 skill, when and what required 431-436 liability of workmen for nonfeasance 436 part-performance, effect of 441-441 d HIRE OF CUSTODY 442-456 agistors of cattle 442, 443 warehouse-men 442, 444-450 wharfingers 451-454 when responsibility of hirer begins and ends 445-454 Excepted Cases. in general 460 Innkeepers 464-487 who are 475 reason of extraordinary responsibility, — civil law . 464-467,486 edict, nautcE cmipones, &e 464 damnum fatale 465 responsibility not unlimited 466, 487 responsibility for theft by guests 466 a same doctrines adopted in continental jurisprudence . . . 467 faute Ugere 468 liability, by French law 468, 469 rights and liabilities at common law 470-487, 535 diligence required ; obligation to receive 470 negligence not to be proved by plaintiff 471 responsibility whether same as that of common carriers . . 472 robbery by guest's servant 473 rights and duties of boarding-house keepers 475, n. lien of innkeepers 476,476 a who are guests 477 boarders 475, «., 477 for what chattels liable 478, 481 delivery of goods 479, 487 what will exonerate 482-484 statutory regulations 485 Factors and other bailiffs, rights and duties 455, 456 HIRE OF CARRIAUE OF GOODS, in common cases 457 by private persons 457 Excepted Cases. in general 460 Postmasters 461-463 origin of the office 461 634 INDEX. HIRE OF CARRIAGE OF GOOT)S— Continued. postmaster-general not personally responsible 462 except for his own actions 463 rule as to mail contractors 462, n. liability of deputy postmaster for acts of clerks 463 Common Carriers 488-589 liability of, by the civil law 488 by the common law 33, 489-493 ■who are common carriers 495-499 who are not 496, 498, 499, 502-505 carriers by land 496 carriers by water 496, 501, 504 joint carriers 506 liability of carriers for acts of servants 507, 507 a duties and obligations of carriers 508 risks of, at common law 510 act of God, what 511 perils of the sea 512, 512 a loss by rats 613 collision of ships 512, 514,007-612 proximate cause of loss looked to 515 what losses by accidents carriers are liable for .... 516-526 what is sufficient seaworthiness 524 what are losses by the king's enemies 526 loss by jettison by compulsion of enemy 527 liability of carriers for thefts by crew 528 onus probandi, when on the carrier 529 carriage of money 530 loss of goods stowed on deck . . .530 a commencement of carrier's risk 532-534 carriers, who are also warehouse-men 535, 536 carriers, who are also forwarding merchants 537 termination of carrier's risk 538 delivery of goods 539-518 carriers, who are also factors 546-548 special contracts and notices of carriers 549 and n. bills of lading 550 notices, validity of 554 carriers' act 554, n. notices, nature and effect of 649, 555-557 who are bound by notices 558 who are not bound 559, 560 rights and duties growing out of notices 661-564 effect of concealment or fraud 565 concealment of the value of goods 566 rights of the carrier to inquire the value 567 concealment in cases of notices 568 effect of intentional deception 669 INDEX. 635 Section. HIRE OF CARRIAGE OF GOODS— Continued. goods of extraordinary value, not paid for as such .... 669 liability of carrier, notwithstanding notices 570, 571 waiver of the notice 572 burden of proof of negligence, when on the owner of goods, 673 English railway and canal traffic act 673, n. excuse for non-delivery of goods 674-676 carriage of slaves 677 acts of shipper excusing non-delivery 678, 579 stoppage of goods in transitu 680, 581 demand of goods by person having a superior title .... 682 acceptance not a bar to an action for injury 582 a average and contribution, when allowed 683 compensation of carriers by land for extraordinary expenses 684 general rights of carriers, — special property 585 advanced freight 586 freight, in cases of 687-589 lien 688 obligation of consignor to pay freight 689 actions against carriers 689, n. HIRE OF CARRIAGE OF PASSENGERS, passenger carriers in general, common carriers as to bag- gage 499, 500 what is baggage 499 passenger carriers by land 690 commencement of the journey, duties on the .... 591-596 progress of the journey, duties in the 597-599 coachman, duties of 598 rule of the road 599 foot-passengers, right to cross 599 a termination of the journey, duties on the 600 liability of passenger carriers by land 601, 602 their rights ; lien 603, 604 passenger carriers by water 605-612 passenger and carrier vessels in inland navigation .... 605 canal-boats 606 carrier vessels on the ocean 607 collision, four sorts of 608-608 c limitation as to amount of damage 608 d collision where the fault is inscrutable or uncertain .... 609 collision by pure accident, or by the act of God .... 610 precaution, rules of 611, 611a, 6116 passenger ships, statutory regulations of 612 HOYMEN, are common carriers 496 HYPOTHECATION, what is, in civil law 7, 288 636 INDEX. I. Section. ICE, when stoppage by, is an inevitable casualty .... 611,545 a ILLEGALITY, of contract 32 in mandates • 158, 159, 188 in loans 229 in pawns 291,293 in cases of hire 379-381 INCREMENT, and profits in cases of deposits 99 mandates 194 pledges 292, 339 INDEMNITY, by mandator 200 INEVITABLE ACCIDENT, distinguished from act of God 489 what is 25 INFANT, bailments by or to '. . 50,162,229,302,380 deposits 50 mandates 162, 189 loans 229 pawns 302 hire of things 880 INNKEEPER. (See Hire of CnsxoDY.) INTERPLEADER, what Ill, 281 in what cases it lies 110-113, 281 IRREGULAR DEPOSIT, what 84 IRRESISTIBLE FORCE, what 25-29 J. JETTISON, when contribution for 525, 627, 530, 581, 575, 583 JOINT CONTRACTS, effect of, in deposits 114-116 in mandates 195 in gratuitous loans 226 in hire of carriage 506 L. LARCENY, when finder of goods guilty of, or not 85 INDEX. 637 Section. LENDER, rights and obligations of 270-274 LEX COMMISSORIA, effect of 345 •what 845 LIEN, of depositary 121 borrower has not any, for prior debts 264 of workmen for labor and services 440 of pawnee 303, 304 - of innkeeper 476, 476 a of common carrier 688, 604 when waived 299 LIGHTER-MEN, are common carriers 496 LIMITATIONS, STATUTE OP, in cases of deposit 107 how and when it applies to pawns 346, 347 LOAN, GRATUITOUS, definition of 6, 219-222 essence of 223-225 expenses of 256 for joint benefit 226 bitween what parties 229 rights of borrower 231 use of the thing 232, 233 when use personal 234, 235, 254, 255 obligations of borrower 236 diligence, degree of, required 237-253 losses, when borrower responsible for 237-215 saving goods in case of fire 245-251 restitution of, how and when 257-269 precarious, what is 219, 220, 227, 258, 271 of accessorial things 238 a, 260 joint loan, effect of 267 obligations of lender 271-277 concealment of defects 275 revocation of loan 277 burden of proof, in cases of 278 property, whether borrower has any in cases of . . . 279, 280 interpleader in cases oi' loan 281 , 282 LOCATIO, definition of 8, 368-371, 421, 422 LOSS, what excuses a carrier 511-531 proximate cause of 515 LOST PROPERTY 85-87, 121 a, 621 a 638 INDEX. M. Seotiou. MAIL CONTRACTORS, how far responsible 462, n. MANDATARY, whether he has a special property 150 rights of action by 151, 152 obligations and duties of 158, 159, 17-1-196 whether liable for nonfeasance 164-171 when liable for misfeasance 164-171 MANDATE, CONTRACT OF, definition of 6, 137 distinction between it and deposit 140 subject-matter of 141 nature of 143 delivery to mandatary in person not always necessary . . 160 expenses of 154, 197 how connected with agency 146, 147 interest of mandator 151 fraud and mistake in 155-157 illegal, when 158, 159 conditional 161 special, ofRcious 215 who may be parties to 162 obligations of mandatary 163, 164-196 degree of diligence in cases of 173,186,187-191 to do work 175-181 to carry goods 175-181 officious offer, effect of 215 user and misuser of 188 indemnity to mandatary 200, 201 death of parties, effect of 202-205 dissolution of contract 202-211 by operation of law 202-208 by act of parties 206-211 expenses, by whoui borne 154, 197 MANDATOR, obligations of 196-201 to pay expenses 154, 197 to indemnify 198 action by 212, 213 MARRIAGE, effect of, in cases of bailment 206 MARRIED WOMEN. (See Femes Covert.) MINORS. (See Infants.) MISFEASANCE, liability for, in mandates 9, 167-171 INDEX. 639 Section. MISTAKE IN CONTRACT, effect of 69, 157, 381 MISUSER, by depositary 89-92 by mandatary 170, 188 by borrower 253-255 by pawnee 851 by hirer 396, 413 MIXTURE, of chattels 283 MORTGAGE, how it differs from a pawn 287, 288, /t. Welsh, what 344 MUTUUM, what 47, 228, 283, 284, 439 N. NAVIGATION, rules as to, of vessels in sailing 607-611 NECESSARY DEPOSITS, obligations in oases of 44, 83 NEGLIGENCE, degrees of 17, 18 {See Diligence.) ordinary, what 17 slight, what 17 gross, what 17 whether equivalent to fraud 19-22 what degree creates liability in deposits 62-66, 97 in cases of finding goods . . 85 in mandates 172, 186 in loans 237, 239 in pawns 330, 342 in hire 398-400 in excepted eases . . 460, 464, 468, 472, 601, 605 in special or quasi bailments for hire 613-624 NEGOTIABLE INSTRUMENTS, pawn of 296, 321 NEGOTIORUM GESTOR, who is 82, 189, 214 NONFEASANCE, in cases of mandate "> 164-171 in cases of hire of service ^36 640 INDEX. Section. NOTICES BY COMMON CARRIERS, effect of 649, 573 NUDUM PACTUM, what is 9 o. OFFICERS, PUBLIC, deposit by or with 124-132, 620, 621 in common cases 620 in cases of attachment 124-132 deposits in court 620, 621 (/See Revenue Officers.) OFFICIOUS OFFER, in cases of deposit, effect of 81, 82 in cases of mandate 215 ONUS PROBANDI. (See Burden of Proof.) ORDINARY DILIGENCE, definition of 11 (See Diligence.) ORDINARY NEGLIGENCE, definition of 17 (See Negligence.) OWNERSHIP, when bailee for labor and services on the thing becomes owner or not 423, 439 P. PART-ENJOYMENT, of thing hired 417, 441-441 d PART-PE KFOR M ANCE , of work, cff. ct of 417, 441-441 d PASSENGER CARRIERS, duties and liabilities of, by land 590-604 by water 605-612 (See Hire of Carriage of Passengers.) PAWN OR PLEDGE, definition of 7, 286 difference from a mortgage 287, 288 " collateral security," how applied 288, n. essence of 290-292 property, what in pledgor 291 in pledgee 307-310 accessorial things in cases of 292 what cannot be pawned 293 whether future interest can be pawned 294 title of pawnor, what sufficient 295 INDEX. 641 Section. PAWN OR PLEDGE — Continued. of negotiable instruments 296, 323 delivery of pawn 297, 298 redelivery to owner, effect of 299 waiver of pledge, what is 299 wrongful possession of by pawnor does not terminate a . . 299 for what debt or engagement it may be 300, 801 by and between what parties 302 rights of pawnee 303-312,314-321 retainer for another debt, when 304, 305, 314 expenses, by whom to be borne 306, 306 a, 357, 358 sale of pawn, when and how 308-321, 350 by factor of principal's goods wholly tortious . . . 325, 326 proceeds of sale of, how distributable 312, 313 transfer of pawn by pawnor 360 transfer of, by pawnee 311, 312, 322-328 use of pawn by pawnee 329-331 duties and obligations of pawnee 332 degree of care and diligence 332, 342 presumption in case of theft 333-339 restitution of pawn 339-341 refusal to restore, effect of 342 account of pawnee 343 rights of pawnor 345 redemption of pawn 345-349 prescription, or statute of limitations in case of pawns . 346, 347 sale of pawns before redemption 349 right of action by pawnor 351 by pawnee 303, 304, 314-318, 352 against stranger 303, 352 seizure of pawn on attachment 366 on execution 363 fraud and concealment in 856, 356 warranty of title to 354 extinguishment of contract of 359-365 PAWNEE, rights and duties of .'.... 803-358 detention for other debts 304, 305 actions by 303, 315, 316, 352 transfer of pawn by 322-328 cannot pawn for his own debt absolutely 324-326 duties of 324, 332, 842, 348 diligence and care, degree required 332 special property by 352 PAWNOR, rights and duties 845-368 expenses to be borne by 806, 306 a, 357, 358 actions by 352 41 642 INDEX. Sectios. FAWNOR— Continued. redemption by 345-349 transfer by 350 PERILS OF THE SEAS, what 512 PIGNUS, ■what in civil law 286, 298 PIRACY, is vis major 25 PIRATES, are enemies 25 PLACE OF RESTITUTION, in deposits 117 in mandates 194 in loans 2.57, 261 in pawns 339, 340 in hire of things 415 PLEDGE. (See Pawn.) 7, 286-367 POSTMASTERS, rights and liabilities of 462, 463 (See Hire of Carriage.) PRECARIOUS LOAN (precarium.-) .... 219, 220, 227, 258, 271 PRESCRIPTION, in cases of pawns 346, 347 (See Limitations, Statute of.) PRESUMPTION, of fraud from gross negligence 19-23 from theft 38, 39, 333-339 against innkeepers in cases of loss 472, 473 (See Burden of Proof.) PRICE OR COMPENSATION, in cases of hire 374-377 PRINCIPAL, who is to be deemed principal in cases of hire of things as to acts of servants 403, 404 PRIVILEGED CREDITORS 312, 313 PRIZE AGENTS, responsibility and duties of . . 619 ROOF. (See Burden of Proof.) PROPERTY, confusion, effect of 40 PROPERTY, SPECIAL, who has in bailments, whether depositary .... 93-96, 183 whetlier mandatary . . .... 150 whether borrower 279 pawnee has 307, 327, 352 hirer has 394, 422 common carrier has 585 INDEX. 643 Section. PROXIMATE CAUSE OF LOSS, when looked to 515 Q. QUASI DEPOSIT, what 85 mandate, what 189, 190 bailees for hire 612-625 R. RAILWAYS. (See Commok Carriers.) RATS, LOSS BY, when bailee liable for or not 408, 432, 444, 613 whether a peril of the sea ' 513 REDELIVERY OF PAWN TO PAWNOR, effect of 299 REDEMPTION OF PAWN, when and how 345-349 REGULAR AND IRREGULAR, deposit, what 84 contract of hire, what 370 a, 415 a, 439 REMEDY, by depositary 93-95 by depositor 94 by factor and consignee 422 a by mandator 92, 95, 140 by mandatary 162, 154 by borrower 271, 272, 280 by lender 269, 279 by pawnor and pawnee 303, 315, 349, 350, 352 RESTITUTION OF BAILMENTS, of deposit 97-120 of mandate 197 of loan 257-269 of pawn 339-341 of thing hired 414, 415, 415 a RETAINER FOR PRIOR DEBT, in deposits 121 in gratuitous loans 264 in cases of pawn 304, 305, 314 REVENUE OFFICERS, responsibility and duties of, on bailment by seizure . . . 618 REVOCATION. (See Authority.) in cases of deposit 109, 119 of mandate 202-211 of loan 277 by act of parties 202, 207, 210, 345, 418-420 6'±4 INDEX. Seotiok. REVOCATION — Continued. by operation of law 107-111, 202, 210, 418-420 by death 202-206, 419 by marriage 109, 206 by guardianship 109, 207 by bankruptcy 211 ROBBERY, definition of 26 is vis major 26, 27 when borrower liable for loss by 239 when hirer liable for loss by .... 412 at an inn 472, 473 of a common carrier 488, 489, 526 s. SALE, distinction between and bailment 2 of deposit without authority, effect of . 100, 101 of pawn must be at public auction 310 when pawnee may make 308-321, 350 before default a conversion .... . . 308 SALVAGE, what it is 622 allowed for services on the sea 622 not allowed for services on land 121a, w., 621 a SALVORS, duties and responsibility of, in respect to salvage property, 622-624 SEALED DEPOSITS 92 SEAWORTHINESS, what is sufficient in case of carriers 524 SECURITY, COLLATERAL, as applied to pawns and mortgages 288, n. SEQUESTRATIONS, what 45, 140, n. SERVANTS, ACT OF, when master liable for or not 400-404 when hirer of coach liable for 403, 404 innkeepers, when liable for 465, 466, 481-483 common carriers, when liable for 507 SHERIFFS, deposits by, on attachments, effect of 124-132 SHIP-OWNERS, when common carriers 496, 501 SHIPS, laws of the sea, to avoid collisions 607-611 SHIPWRECK, is deemed an inevitable accident 25, 29 INDEX. 645 Section. SIMPLE DEPOSIT, what 47 SKILL, when bailee responsible for want of . . . 173, 173 a, 431-435 in cases of mandate 173-183 ofhire of labor 431-435 SLAVE, when bailee liable for escape of 216, 217, 577 SLIGHT DILIGENCE. (See Diligence.) SLIGHT NEGLIGENCE. (See Negligence.) SNOW-STORM, common carriers whether liable for delays caused by . . . 611 SPECIAL CONTRACT. (See Contract.) SPECIAL PROPERTY. (See Property, Special.) SPONTANEOUS AND OFFICIOUS OFFER, effect of, in deposits 81, 82 in mandates 215 STAGE PROPRIETORS, liability of 498-500, 599-602 STATUTE OF LIMITATIONS. (See Limitations, Statute of.) STEAMBOAT PROPRIETORS, how far common carriers 496, 499, 500 STOCK, pledge of 822 STOPPAGE IN TRANSITU 580, 581 T. TEAMSTERS, are common carriers 496 THEFT, private, not vis major 27 when presumptive of negligence 38,39,88,333-339 by bank officers 73, 88 in cases of deposit 88 of loans 239 of pledge 338 of hire of things 406,407 from inns 470, 472 from carriers 488, 489, 528, 569 TORT, whether an action of, lies against a person who comes into possession of property by delivery of a wrong-doer . . . 39 a TORTS OF THIRD PERSONS, when bailee liable for ... . 387, 481, 490, 491, 507, 507 a TOW-BOATS, whether common carriers 496 TRANSFER OF TITLE, effect of, in things bailed 102, 103, 282 646 INDEX. Section. TRANSFER OF TITLE — Oontinued. by depositor 102, 103 by lender 282 by pawnor 350 by pawnee 309, 322-828 TRANSIT OF GOODS, when ended 538 TRANSITU, STOPPAGE IN 580, 581 TROVER, when it lies against bailee . . . 122, 191, 261, 262, 269, 894, 413 when it lies by bailee 422 a when against him. {See Conversion of Things Bailed.) TRUCKMEN, are common carriers 496 TRUST, bailments in violation of, when valid 159 u. USAGE AND CUSTOM, effect of, in bailments 11-15, 384 in regard to innkeepers 478 USE BY BAILEE, RIGHT OP, when and what, in deposit . 89-91 in mandates . 188 in loans 1>S2, 254, 255 in pawns 329-331 in hire of things 413 V. VALUATION OF THINGS BAILED, effect of 253, 253 a VALUE OF BAILMENT, effect of, as to diligence 15 VIS MAJOR, what is 25-29 VOLUNTARY DEPOSIT, what 44 VOLUNTARY BAILMENT (officious), effect of 21,81,82 w. WAGONERS, liability of, as common carriers . 496 WAIVER OF DAMAGES, in cases of loans, when an acceptance is 269 INDEX. 647 Section. WAIVER OF PLEDGE, what is 299 WAREHOUSE-MEN, rights, duties, and responsibility of . . . 444-460, 602, 635 degree of diligence of 444 ■when liability begins and ends 445-450 WARRANTY, in cases of hire, what implied 387 WHARFINGERS, rights, duties, and responsibility of 461-464 degree of diligence of 461, 503 , liability, when it begins and ends 463 WILL, deposited, — breach of trust to disclose contents .... 92 WITNESS, one suing a carrier for loss, how far a 499, n. Cambridge : Press of John Wilson Sc Son. \f Date Due MAY \ 76 KF 91^0 S88 1878 Author Story. Josep h Vol. q ments t^j- -t^o (^li uiic j.a,w ux uctii — Date Borrower's Name m V "^ tr^ -MttiL-^^ ^^'^^^W^^^^' i~^'m r. ^M'i^:&'^-d^I - — ' r