CHAPTER II. NEGLIGENT CONDUCT OF THE BAILEES OF § With the different kinds of bailments we have already dealt (ante, p. 81). It remains to consider the different degrees of care, which the three different classes of bailees are bound to exercise. More care is required of some than others. § It is a question for the jury to decide, taking into consideration the circumstances of each case, and subject to the following general rules, whether due care has been exercised by the particular bailee, whose conduct is brought before them.(b) 1. GRATUITOUS BAILEES [that is, bailees in the cases of depositum and mandatum] are bound to exercise, Slight diligence [levissima diligentia], and are liable only for the converse, which is Gross negligence [lata culpa], viz. the absence of that ordinary diligence, which men of common prudence generally exercise about their own affairs, and such skill as a man actually has.(c) 2. BAILEES FOR REWARD [that is, bailees in the cases of vadium, locatio rei, and locatio operis faciendi] are bound to exercise, Ordinary diligence [diligentia], and are liable for its converse, which is (b) Doorman v. Jenkins, 2 Ad. & E. 256. (c) Per Ld. CHELMSFORD in Giblin v. McMullen, L. R. 2 P. C. 337; and per POLLOCK, C. B., in Beal v. South Devon Railway Company, 5 H. & N. 881 ; Vaughan v. Menlove, 3 Bing. N. C. 475; Story on Bailments, 8th edit., $11, 16-18. Ordinary negligence [culpa levis], viz.: the absence of such skill as a person ought to have in the business which he undertakes; and the absence of such care and diligence as are ordinarily exercised in the proper course of such business. (a) 3. BORROWERS [bailees in the case of commodatum] who are bound to exercise, The utmost care [exactissima diligentia], and are liable for the converse, which is The least negligence [levissima culpa], viz.: any negligence short of pure accident [casus].(b) [NOTE. Contributory negligence is also a defence to an action for a breach of the duties referred to in this chapter; and the remarks on contributory negligence in the last chapter apply equally to this one.] (a) Per POLLOCK, C. B., in Beal v. South Devon Railway Company, 5 H. & N. 881; Story on Bailments, 8th edit., §§ 11, 16—18. (b) Campbell on Negligence, p. 15; Story on Bailments, 8th edit., §§ 11, 6-18. PART V. OF THE INFRINGEMENT OF THE RIGHTS OF THE PERSON. CHAPTER I. BATTERY AND ASSAULT. § A BATTERY is the unlawful laying of hands on another without his consent. [This includes striking him with a missile.] § AN ASSAULT is an attempt at a battery. THEY ARE JUSTIFIABLE ONLY, WHEN COMMITTED 1. In self-defence, or the defence of a wife, or a ser vant.(c) 2. In ejecting a trespasser. (d) 3. In defence of a house, or of goods. (e) 4. In resisting a forcible entry by a landlord.(ƒ) 5. In obedience to some legal warrant.(g) 6. Through inevitable accident without negligence.(h) Provided so much force only is used as is necessary for (c) Seward v. Baseley, 1 Salk. 407. (h) Gibbons v. Pepper, 2 Salk. 637. (i) Fitzgerald v. Northcote, 4 F. & F. 656; Penn v. Ward, 2 C. M. & R. 33S ; Gardner v. Bygrave, Times Rep. vi, 23. CHAPTER II. OF FALSE IMPRISONMENT. § FALSE IMPRISONMENT is the unlawful arrest or detainer of another without legal authority. 1. By private persons. 2. By officers of justice. (i) Without a warrant. (ii) By an illegal warrant. (iii) By a legal warrant at an unlawful time. [NOTE. A person will be liable to an action for false imprisonment if he authorizes, or subsequently ratifies, the wrongful act of his agent.] § ARREST AND DETAINER IS JUSTIFIABLE. I. By private persons. 1. Where a FELONY has been committed by some person, (and there was reasonable cause to suspect the person arrested of having committed it. (a) [NOTE. Arrest is unjustifiable where there is only a suspicion that the person arrested has committed a misdemeanor.(b)] 2. Where any person is found committing, (i) Any offence under the "Prevention of Crimes Act, 1851."(c) (ii) Any offence under the "Larceny Act, 1861" (except angling in the daytime). (d) (a) Allen v. Wright, 8 C. & P. 526. (c) 14 & 15 Vict. c. 19, s. 11. (iii) Any offence under the "Malicious Injuries Act, 1861." (e) [So long as the person making the arrest is the owner of the property injured, or some one acting with his authority.] (iv) Any offence under sect. 4 of the "Vagrant Act, 1824."(f) (v) Any offence under the "Metropolitan Police Act." (g) [So long as the person making the arrest is the owner of the property in respect of which the offence is committed, or some one acting with his authority.] (vi) Any coinage offence. (h) 3. Where any person to whom property is offered to be sold, pawned, or delivered has reasonable cause to suspect that an offence under the "Larceny Act, 1861," (¿) has been committed, he may arrest the person so offering it.(¿) 4. Where there is an actual breach of the peace being committed, the affrayers may be arrested at the moment of the affray.(k) 5. Persons making a disturbance in a church, chapel, or burial ground may be arrested hy the churchwardens.(?) 6. Where persons on board a passenger steamer, their names being unknown, have committed certain specified offences under the " Merchant Shipping Act, 1862," they may be arrested by any of the ship's officers, and persons called to their assistance.(m) (e) 24 & 25 Vict. c. 97, s. 61. (ƒ)5 Geo. 4, c. 83, s. 4. (h) 24 & 25 Vict. c. 99, s. 31. (i). 24 & 25 Vict. c. 96, s. 103. |