Keeney Bros. all the corn of good and merchantable quality at their storehouse, and to give them one hundred and ninetyfour pounds of first rate meal for every three bushels of

He also takes another agreement from the same parties, as follows: "We, Keeney Bros., agree to deliver to Wm. B. Willard, a thousand bushels of good merchantable corn, to be ground into meal. For every three bushels of corn we are to receive two hundred pounds of first rate Indian meal."

The first would generally be held by lawyers and courts to be a sale, although the decisions are not entirely uniform, some of the Southern courts having held that this would be a bailment.

The last is clearly a contract of bailment. Now it is exceedingly important that these parties should know their rights and liabilities in the quantity of corn, which is the subject-matter of both agreements.

If, in the first case, it be a sale, the title passes on delivery, and the property is at the risk of Mr. Willard, and in case of loss by fire, it is his loss, and he must still pay the agreed quantity of meal. While, in the last case, the title to the corn does not pass, and in case of its loss by theft or accidental destruction, without fault of the bailee, the loss would fall upon Messrs. Keeney Bros., the bailors.

A reasonably clear ground upon which to distinguish is this, where the property is to be kept separately, so as to be capable of identification, and returned, (the same property), in whole or in part, after the service is bestowed upon it or in relation to it, it is a case of bailment. Otherwise it is generally a case of sale. Now it will be readily seen how easily all question in the first contract could be avoided, and how surely it would be by one whose attention has been called to it, by changing the word, "take," to the word, "buy," so that the first agreement shall read, "I, Wm. B. Willard, agree to buy," &c.

There are several different species of bailment, as the "deposit," or a naked deposit without reward;-the "mandate," a gratuitous commission, where the bailee is (without

compensation) to do something upon, or in relation to, the thing bailed;" an accommodation," (technically called "commodatum"), a loan for use, without pay ;-a "pledge,” when a thing is bailed as security;-a hiring for use or letting to be used, for reward, including also a hiring of mechanical labor;—an innkeeper's special care of the goods of his guest; and the special care and service of common carriers, expressmen and telegraph operators.

SECTION 2.

Of "Deposits."

A deposit is a naked bailment without reward, being a simple delivery of goods, monies or securities, by the bailor to the bailee, to be kept by the latter without compensation, and to be returned when called for.

In this case, as the bailee derives no benefit from the bailment, he is only bound to a reasonable or ordinary, care; and, if there is no special undertaking or agreement on his part, is responsible only for gross negligence.

Ordinary diligence or care, is that care, which every man of common prudence bestows upon his own concerns.

Extraordinary care is that, which unusually thoughtful, skilful and prudent persons employ, about their own con

cerns.

Slight negligence, is the omission of extraordinary diligence.

Gross negligence is the omission of ordinary diligence or

care.

The degree of care and circumspection called for, and the neglect of which would render a bailee responsible in damages, will of course vary with the character of the property bailed. What would be ordinary care, or even extraordinary care of lead, or iron, in bulk, would be gross negligence if the property were diamonds or rubies. The question, whether the bailee has exercised due diligence, is always a question of fact for a jury, and is to be decided by them upon the evidence produced before them.

The keeper of a

deposit without reward, we have said, is responsible only for gross negligence; which is almost equivalent to a breach of good faith, being the want of that care, which every man of common sense would be expected to take of his own property under the circumstances.

The law implies (in the absence of an express agreement) a promise, in all cases, even in that of a bailee without reward, that the bailee will keep and deliver, safely and securely; which of course means due care in all cases, but the degree of care varies according to the nature of the bailment, and becomes stringent in cases of Carriers, Inn-keepers, and bailees for hire.

The care to be taken of a deposit may be varied by the terms of the acceptance; as, where it is made subject to its being kept in a particular place, as on the deck of a steamboat, or in a building the roof of which is somewhat open to the weather; and, when the depositor entrusts his goods, knowing where and how they are to be stored, he is held as assenting to that mode of keeping them, and cannot complain if they are injured or destroyed by the ordinary and naturally to be expected perils to which they would be thereby subjected.

The degree of care required of a bailee has sometimes been attempted to be limited and fixed by the care which he bestows upon his own property; and it has been said, that if the bailee be an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open, by reason whereof the goods deposited are stolen, together with his own, he shall not be charged, because it is the bailor's own folly to trust such an idle and worthless fellow.

Has a bailec on deposit a right to use the thing bailed? He has not without the assent of the depositor; but such assent need not, in all cases, be express. It may be, and often is implied; as, where the use would obviously benefit the thing, without exposing it to extraordinary peril.

For example: a horse may be moderately used, for this is for his health; he needs the exercise; and a cow may of course be milked, for this is a necessity, which it would be

destructive to omit. On the other hand, jewels deposited should not be worn, for, while they will not be thereby injured, they would be exposed to greater risk of loss.

The bailee is of course bound to return the thing bailed, whenever required to do so. This should be in the same condition in which it was received, unless where it changes by force of its own inherent character, as fruit, or fish, or meats.

When a deposit of a perishable nature is decaying and will be ruined, the bailee may, without express direction, make sale of it; and he will be excused from a return, where he can show that it has been destroyed by an accident, or where it decays and perishes by its own inherent defects and without the fault of the bailee.

A bailee is always responsible to the true owner when called upon for any thing in his care, and he cannot in such case shelter himself behind the fact that he has returned the goods to the person from whom he received them, if at the time he returned them he had been notified of the claim of the real owner. He can be in no better situation than he would be from whom he received the goods. But, if he have returned them in good faith and without knowledge of the claim of the true owner, he is thereby protected.

In this case the bailee, while not entitled to compensation, is entitled to re-imbursement of all necessary expenses; the request that he would take care of the property giving an implied authority to expend such monies as may be needed for its preservation. A very common example of this species of bailment is, the deposit by customers of a bank, and other persons who have friendly relations with its officers, of valuable securities, to be kept in the vault with those of similar character owned by the bank.

SECTION 3.

Of Gratuitous Commissions, where the bailee is, without compensation, to do something upon, or in relation to, the thing bailed.

The bailee, here is called a "mandatary." The leading distinction between this and the last species of bailment is,

that this consists in something to be done, while in the other there is to be mere custody and return.

Hence, a difference arises between the degree of care stipulated for, in the one case and in the other. A bailee of a deposit without reward is, as has been seen, scarcely liable for anything more than good faith, but he who (even without compensation) undertakes to execute a commission, impliedly stipulates to use a degree of diligence and attention, adequate to its performance.

Even good faith requires that every man should perform his actual engagements, and, therefore, this sort of bailee should be held bound to exert himself in proportion to the exigency of the affair he has attempted.

It was at one time seriously questioned, whether the neglect to perform the commission entrusted to a “mandatary” would subject him to legal liability, the objection being urged that it was merely a neglect to do that which a party had undertaken, without consideration.

This case arose: B. voluntarily undertakes to carry several hogsheads of brandy from one cellar and deposit them in another. He receives the hogsheads and enters upon his undertaking, but performs it so carelessly that, by his negligence, one of the casks is staved and the brandy lost.

This in its day was a famous case, and was most elaborately and ably argued by counsel, and discussed by the judges; but, although the undertaking was gratuitous and B. no common carrier, the court held that the plaintiff could recover, and it was said by the court that, "the owners trusting him with the goods is a sufficient consideration, to oblige him to a careful management."

If, in this case, B. had simply agreed to carry the brandies, and had not taken the goods into his possession, or entered upon performance of his agreement, no action would have lain; for it would then (before the goods were delivered and entrusted to him), have been a naked promise, without consideration to support it.

The difference here lies between the non-doing of a thing, the obligation to do which rests upon a promise without con