to aid them in winding up the concern and pay him, and allow his wife some furniture, etc., is not proof of fraud in the assignment, there being no evidence that these benefits were promised at the time of the assignment. 13 Cal. 242.

SEC. 63. Assignment of a Sheriff's Certificate of Sale as Security.-One who receives an assignment of a sheriff's certificate of sale of land as security against the liability for debts of the judgment debtor, with an agreement that he will cancel the same when the debts are paid, and his liability is discharged, ceases to have any interest in the certificate when the debts are paid; and if he afterwards obtains a sheriff's deed, neither he nor his assignee with notice acquire any title to the land. 30 Cal. 135.

CHAPTER VIII.

BAILMENT, CONTRACTS OF.

SECTION 1. A bailment is a delivery of a thing in trust to another, for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. Story on Bailments, 2. The one who delivers the thing is the bailor; the one who receives it the bailee.

SEC. 2. There are five classes of bailments:

1st. Deposit, where goods are delivered to another to be returned on demand, and without recompense. In such a case, no action will lie until after the demand of the property, by the bailor, or by some person for him, having authority to make the demand, and a refusal by the bailee to deliver it. 9 Johns. 361.

2d. Mandate, as where the bailee receives the goods with a promise that he will carry them to some place, or that he will perform some act to them without reward, as where one generously takes your trunk to carry to town and leaves it at some place there for you; or kindly receives of you a horse to break to the saddle or harness.

3d. A loan for use, as when one borrows my gun or my horse, to use without paying for the use.

4th. A pledge, is where goods are delivered to a creditor, to be retained by him until his debtor pays him. Actual delivery is necessary to make a pledge valid. Story on Bailm. 197.

5th. Letting to hire, is a bailment where compensation is to be given for the use of the thing bailed, or for labor or services about it. This species of bailment is of three kinds: 1. The hiring a thing for use, by which the bailer for a compensation acquires its temporary use, as where I hire my friend's horse to ride for a day. 2. The delivery of a thing to a bailee to have something done with it, as where I deliver clothes to a washerman to have them cleansed, or my horse to a horse-shoer to have him shod. 3. As where I deliver goods to be transported by the bailee for a reward. 7 Cow. 499.

SEC. 3. In determining the responsibility of bailees for the violation of the contract of bailment, a distinction is made between: 1st. Slight neglect. 2d. Ordinary neglect; and 3d. Gross neglect. Slight neglect, is the want of such diligence as very circumspect and cautious persons use in the care of their own goods, and which is called extraordinary care. Ordinary neglect, is the want of ordinary diligence, or the omission of the care which every man of common prudence takes of his own concerns, called ordinary care. Gross neglect, is the want of even slight diligence, or of such care as every man of common sense, however inattentive, takes of his own property, and is esteemed in lawviolation of good faith. Cow. Treatise, 63.

SEC. 4. A bailee who derives no benefit from the bailment, as in case of a deposit or mandate, is responsible only for gross neglect. One who alone receives benefit from the bailment, as in loans for use by the bailee, without compensation, is responsible for slight neglect. Where the bailment is beneficial to both parties, as in case of pledging or letting to hire, the bailee is answerable for ordinary neglect, unless where there is a special agreement in relation to it, which is permitted with some exceptions. All bailees are answerable for actual frauds, even though the contrary be stipulated. Cow. Treatise, 63.

SEC. 5. Bailees are not responsible for a loss occasioned by inevitable accident, or irresistible force, except it be provided for by special agreement. Cow. Treatise, 63.

SEC. 6. The following rules may be deduced from the principles laid down in the three last sections:

1st. A depository is responsible for gross neglect.

2d. If the character for care-taking of the bailee is known to the bailor, and he takes as good care of the bailor's goods as he does of his own, the bailee is not responsible.

3d. A mandatory to carry, is only responsible for gross neglect or a breach of good faith.

4th. A mandatory to perform a work is bound to use a degree of diligence, adequate to the performance of it. 3 Johns. 170; 4 Johns. 84.

5th. One cannot be compelled to perform a promise to receive a deposit or mandate, nor to pay damages for refusing to keep such a promise, because there is no consideration for the promise. But if the bailee has received the deposit or mandate, and neglects to perform the contract of bailment, he is liable. 5 Term, 143.

6th. A borrower for use, is liable for slight neglect.

7th. A pledgee or pawnee, is answerable for ordinary neglect.

8th. The hirer of a thing, is responsible for ordinary neglect.

9th. A workman for hire must answer for ordinary neglect of the goods bailed, and apply as much skill as the undertaking demands.

10th. One who hires his care and attention, is responsible for ordinary neglect.

11th. A carrier by land or water, is answerable for ordinary neglect.

SEC. 7. The following are exceptions to the rule laid down in the foregoing section:

1st. One who officially engages or voluntarily undertakes to do a thing, is responsible for ordinary neglect.

2d. If one is over persuaded to execute a mandate, and undertakes it against his will, an ordinary exertion of his ability only can be required of him.

3d. All bailees are responsible for losses or injuries to the thing bailed, after a demand is made for its return.

4th. A borrower and a hirer, are responsible at all events if they keep the thing longer than the time stipulated for, or use it otherwise than was agreed on at the time of receiving it. Cow. Treatise, 64.

5th. A pawnee, and depositary are responsible if they use the thing pawned or deposited, unless it be something that is a charge upon them, as a horse or a cow; in such a case he may milk the cow or use the horse, but if he receives any profit from their use over and above the costs of keeping, it must be applied to the pawnee's debt. Story on Bailm. 67-8.

6th. An innkeeper is chargeable for the goods of his guests, if delivered to him or his servant, or if they be deposited where it is usual to deposit such things, and which is designated by the innkeeper or his servant. 21 Wend. 282.

7th. A common carrier-by which term is meant, one who undertakes for hire, to transport from place to place the goods of such persons as choose to employ him; is responsible for loss or damage to the goods intrusted to him, unless occasioned by the act of God or the public enemies. The rule is the same whether the carriage is by land or water. Cow. Treatise, 65.

8th. A carrier of passengers and their baggage, is responsible for the baggage, if lost, although no distinct or separate price be agreed on for its transportation. The price of its transportation being, in contemplation of law, included in the fare. But the baggage must be necessary articles, and such as are convenient for travelers to carry. If it be money, it must be such an amount as travelers usually carry to defray expenses. The liability continues until the baggage is delivered to the owner. A delivery upon a forged order will not excuse the carrier. 25 Wend. 459; 26 Wend. 591.

The following sections contain the decisions of the supreme court of California on the subject of bailments:

SEC. 8. Bailment is the delivery of a thing in trust for some special object or purpose, upon a contract, express or implied, to conform to the object or purpose of the trust. 8 Cal. 43.

The objects of bailments may be as various as the transactions of men; they are made for the purpose of sale, hire, safe-keeping, etc. In a large majority of transactions, they are made for the purpose of a disposition or conversion of the property. As, for example, bailments by commission merchants or factors, in which a conversion is the very object of the trust. If in such cases, after a sale or conversion of the property, the agent or factor should lose or misapply the proceeds, an indictment would not lie against him, under the statute concerning bailees, although he might probably be indicted for embezzlement, if the legislature thought proper to make that a penal offense. 8 Cal. 43.

All conversions of money or property, by a bailee, are not ipso facto unlawful or felonious under our statute. The legislature intended to use the word in a limited sense, as designating bailees to keep, to transfer, or to deliver. The cases generally arise upon contracts, and the circumstances constituting the offense. 8 Cal. 43, 44.

SEC. 9. Where a redemptioner under the statute, pays to the sheriff an excess of money, under protest as to the excess, the payment is not compulsory. 14 Cal. 232.

In such case the sheriff is the bailee of the redemptioner as to the excess, who may recover it back on demand, the money not having been paid over to the redemptionee. 14 Cal. 232.

SEC. 10. A pledge is a bailment which is reciprocally beneficial to both parties. The law therefore requires of the pledgee the exercise of ordinary diligence in the care and custody of the goods pledged, and he is responsible for ordinary negligence. What will amount to ordinary negligence must depend on the circumstances of the transaction and the character of the pledge. In general, it may be defined to be the neglect to exercise that degree of care which an ordinarily prudent man usually bestows upon his own property of a like description. 6 Cal. 647. When bailors agree that goods shall be stored in a certain warehouse at their risk and expense, their removal by an agent of the bailees, though without their knowledge, charges them for the safe keeping of the goods after their removal,