4. Second, that as Henderson had no reward for keeping CH. 17. Bradish's money, he was answerable only for his, Henderson's Art, 12. negligence.

But, third, it appeared that Henderson one day, when Dutch John, a suspicious market-man, was on board, went and took this bag of money from the said place, took out a dollar or two, and returned it to its place, in the presence and view of this Dutchman, and that one night Henderson was out of his cabin &c., and left it exposed till near midnight. The court deemed both of these acts gross negligence, and such as made Henderson liable, and especially his so exposing the money. For the court said, the safety of the place of deposit, as far as there was any in it, consisting in its being a place in which probably no person would look for money, and when Henderson thus exposed it to view, and shewed where the money was, he rendered it as unsafe as any other open or unlocked place; that he also rendered the place unsafe by leaving it exposed, and being abroad all the forepart of the night. No default in refusing to deliver goods to A, the property of B, though A had the possession, and delivered them to the bailee. 5 Taun. R. 759, 765.

of Bailment 8, 9, 10, 16.

ART. 12. The bailee's care and diligence. The law requires Jones' Law an ordinary care, "that is, such as every person of common prudence, and capable of governing a family, takes of his own concerns," with some variation in particular cases, as the cases before mentioned shew. As if I leave a book with a careless man, I can require no more care of him than every absent, inattentive man of common sense applies to his own affairs; for I must know whom I trust; but if I lend my horse gratis, to one to use, I may require of him the care of a man very exact and attentive in preserving his own horse, and that he be not guilty of any slight neglect. The law here views my loss and his gain by the loan, and implies so much. When the bailment is mutually beneficial the medium is the rule; and ordinary care is implied, and the bailee is liable for ordinary negligence. Where beneficial to the bailor alone, the bailee is liable only for Pothier and his gross neglect and may be less careful as above, which neg- Civil Codelect is dolo proxima a want of good faith, and of the care Jus. D. 50, even careless inattentive men take of their property. This 17, 23, 10, 6, was the Roman law. This ordinary care and diligence ap- 5, 2.-D. 16. plies to equal contracts, as pledges, sales, partnerships, hirings, Jones 67. joint owners, to deposits, the bailee of his own head and officiously proposes, to such deposits as he is paid for keeping, or has in consequence of some lucrative bargain, or when the bailee has a benefit in the deposits.

The slight care and diligence applies to common deposits, to findings &c. The great care and diligence to borrowings, and things the bailee has gratis to his benefit.

the French

3, 1, 35.

Сн. 17.
Art. 15.

Dougl. 669.

Art. 4 above,

ART. 13. As to gross negligence. § 1. It is not to be understood, that when the law punishes only gross neglect, it admits ordinary or slight neglect; this would be absurd. But the truth is, the law requires only so much care, and when the bailee has this there is no neglect in the eye of the law. When one is at the trouble of keeping my goods for nothing, neither law nor reason requires of him even the ordinary care and diligence, as above defined.

§ 2. But in a contract, mutually beneficial, the above rule is questionable. I let my horse to B for a reasonable hire; I have my just dues in the bargain, so has he, but an injury is done to the horse; the loss happens, I or the bailee must bear it; if by pure accident and without the least fault or neglect in B, I must bear it. But when a loss thus happens, is to be borne by one of two persons necessarily; law and reason will inquire, if both be equally innocent and without fault, and if one be found to be wholly without any fault or neglect, and the other guilty of a fault and neglect, though a very slight one, yet the law must, and does in such a case, fix the loss where the fault or neglect is, however small; for if it do not, it must throw the loss on him who is wholly without fault or negligence in the case, since he must sustain it, if the other party do not, where there is no dividing it.

Lord Mansfield said, that "when there is equal equity the law must prevail," "and the equity is equal between persons who have been equally innocent and equally diligent."

ART. 14. The bailee's keeping the thing, after legally deand Jones on manded by the bailor, tender, &c. If the bailee keep the Bailments 19. thing after it is legally demanded of him by the bailor, the bailee must answer for casualties that happen after the demand, or after he should have restored it without a demand; for in such case, the detention is a wrong, and the bailee is a wrong doer, at least, guilty of negligence, and of course he never can excuse or justify himself, where his own wrong or negligence must be a part of his defence; and neither law or equity allows one to make a defence, a part of which is his own fraud, fault, or negligence.

ART. 15. Ordinary care, what. 1. One does not take ordinary care, when things are stolen from him by stealth; otherwise, if robbed by force and violence. This also was the Roman law, the hirer uses a horse with ordinary care, when he uses him, as a man of common discretion would use his own. So as to keeping, this ordinary care is what "every prudent man takes of his own property." One does not take it, 107, 109, 112. -2 Salk. 522. when he leaves his stable-doors open, or his bars down. According to the laws of France, one takes common or ordinary care, when he takes that care a good father of a family usually takes.

10 Hen. 6. c.

21.-Jones 61,

2. This appears to be as good a definition of ordinary care as can be given. After all, in applying the rule, much sound discretion and judgment are required; and what is the degree of care a good father of a family usually takes, is often a question.

ART. 16. When is one's property bailed or sold. § 1. If I deliver silver to a goldsmith to make me a cup, and it is intended that he make it of that identical silver, I bail the silver to him, the property in it remains mine; and if stolen without his fault, the loss is mine, for I delivered it to have him merely work it up, and to return it to me. But if I deliver the silver to him, and he is to make me a cup of this or any other silver, then I sell my silver, and it goes in part payment of the cup, for it is no part of the bargain, he works it up for me, and he may do it for another; and no part of the bargain that he return to me the same silver I deliver to him; therefore, if stolen, or consumed by fire, the loss is his. In the first case, if he be careless in the keeping, I have my action, not in the last.

СH. 17.

Art. 17.

the Civil

§ 2. The French law seems to be the same, and also by Book 3, title that law, if the thing sent be made worse (deterior,) by the 15, art. 11, sole effect of the use for which it was borrowed, and without Code of 1895. any fault of the borrower, he does not bear the deterioration.

Another article of this law provides, that if, during the loan, the borrower is obliged, for the preservation of the thing lent to be used, to be at any extraordinary, necessary and such expense as the lender could not have avoided, he must reimburse it; these are common law principles, and must be law when not enacted into statute law.

laws of

3. In these cases of bailment as in almost all others, rest- See Halhed's Gentoo Laws ing on the moral faculties of the mind, the law has ever chapter; been substantially the same in all civilized nations, because the Roman these, like the instinctive principles in the same race of be- laws; the ings, are the same. In many of these cases, the decision is France. made by our natural and innate notions of right and wrong; hence in these, common jurymen will generally decide as exactly as lawyers do. Hence we find the Hindoo law as to bailment, four thousand years ago, very exactly according with our present law on this subject; and, because arising mainly from men's intuitive perceptions of right and wrong, which are in the main every where as much the same as instinct, or the principles of animal life or of vegetation.

ART. 17. Roman and French laws on this subject. § 1. On examining the civil code of France, lately formed, it will be found, that it is only a revision of the old laws of France, and that these were, on the present subject, nearly a collection of the Roman or Civil law. The following articles from the French

CH. 17. Art. 17.

Book 3, title 16, art. 1 to 49.

laws, in substance from the Roman, appear to be a plain explanation of the general doctrine of bailments, as far as it respects deposits.

The deposit, properly so called, is a contract essentially gratuitous, and only respects revocable things. It is voluntary and necessary; the voluntary deposit is by the mutual consent of the depositer and depositary, and regularly can be made but by the owner of the thing deposited, or by his consent, expressed or implied, and it can be only between two persons Arts. 3 to 7. capable of contracting; yet if one, so capable, receive a deposit of one not so, he is held by all the ties of a depositary to restore the thing.

Art. 13, 14,

Art. 15, 16.

Art. 18.

Art. 19.

Art. 20, 21.

Art. 33, 34.

Art. 35, 36.

2. The depositary is bound to keep the thing deposited with the same care that he keeps his own. This rule is applied rigorously, 1. when he has offered himself to receive the deposit; 2. if he has stipulated for a reward to keep it; 3. if made solely for his interest; 4. if expressly agreed that he shall answer for every kind of fault, "de toute espèce de faute." §3. The depositary is not answerable in any case for accidents, by superior force, at least, if he has not been dilatory in restoring the thing deposited; nor can he use it without permission of the depositer, expressed or presumed.

§ 4. The depositary ought to restore the thing deposited, to the very person of whom he received it. So deposits of sums of money ought to be restored in the same species in which it was received, either in case of increase or decrease in value

§ 5. The depositary is held to restore the thing deposited, only in the state it is in at the time of restoring it, the deteriorations not come by his act, are at the depositer's charge.

§ 6. A depositary, from whom a thing deposited is taken by a superior force, and who has received a price or something in its place, ought to restore the thing received in exchange; the heir of the depositary, who, bonâ fide, has sold the thing deposited, not knowing it was a deposit, is only held to render the price he received, or to cede his right of action against the purchaser, if the price has not been paid. If the property of the thing deposited pass to another, it must be delivered to him, as if a woman deposit, and then marry, the thing must be delivered to her husband.

§ 7. The depositer is bound to reimburse to the depositary the expenses he has been at to preserve the deposit, and to indemnify him from all the losses this may have occasioned, and he may retain it till paid all that is due to him by reason of it.

8. The necessary deposit is that, one is forced by accident, such as fire, shipwreck, &c. to take; this may be proved by witnesses, and generally is governed by the above rule.

9. Innkeepers &c. are responsible as depositaries, for the CH. 17. effects brought and lodged with them by the traveller, and Art. 18. ought to be kept as necessary deposits; they are answerable

for them if taken away or damaged, whether the taking or Art. 38, 39, damage has been done by the innkeeper's servants or domes- 40. tics, or by strangers coming or going in the inn; but they are not answerable for a theft, or taking by an armed or superior force.

§ 10. Du sequestre is of several kinds. Is by agreement or Art. 41, 42, judicial. Is by agreement or conventional, when the deposit is 43, 46, 46, 47. made by one or more persons of a thing in dispute, in the hands of a third person, who, after the dispute is ended, is obliged to render it to the person adjudged to have it. It may not be gratuitous; when it is gratuitous, it is subject to the rules of a deposit, properly so called, saving these differences following:-the "sequestre" may have for its object not only things moveable, but immoveable; the depositary charged "du sequestre" cannot be discharged before the contest is ended, but by the consent of all parties interested, or for causes judged lawful. "Du sequestre ou depôt judiciaire," the law may order it, 1. of the moveables of a debtor seized; 2. of an immoveable or moveable thing, the right or possession of which is disputed by two or more; 3. of things the debtor offers for his liberation. This code also establishes a very useful rule, perhaps positive, rather than common law; it is this: If A deposit goods in my hands, and there be reason to think B is the owner of them, I may give notice to B, and appoint a reasonable time for him to claim them; and if he do not, I may deliver them to A, and with him only shall B contest the right, and not with me. This rule seems to be entirely reasonable, for if the owner having due notice, will not in a reasonable time claim the deposit of the depositary, it is right and fit he shall be compelled to contest it only with the depositer, to whom the thing deposited may have been redelivered, and who best knows his title to it. Roman or Civil law consisted of the Institutes or rudiments; 2. Digest, or Pandects; 3. the Code; 4. the Novels or imperial decrees.

ART. 18. 1. Reasons for bringing into one view the essential principles of bailments &c., in assumpsit. 1. It is almost universally best to treat of the essential principles of law, on any one subject, in one view and together. 2. Though other actions, as detinue, trover, &c., depend often on these principles of bailment, yet they are of more essential use and importance in assumpsit than in any other form of action, 3. In assumpsit, in personal actions, there is a wider field, and more occasion for considering principles of law, than in any other form of personal actions. As the action of assumpsit, like