duct, or those infected by contagion, or otherwise offensive in character, health, or habits, as to be unsuitable companions for other passengers.

By-laws or Statutes. It is incident to all corporations to enact by-laws or statutes for the control of their officers and agents, and to regulate the conduct of their business generally. In the case of railways this includes the reguiation of the conduct of passengers and others who are in any way connected with them in business; but such regulations must be reasonable and not against law. By-laws in violation of common right are void. By-laws are not required to be in any particular form, unless required by express provisions of the charter or laws of the State. Railways may lawfully discriminate between fare paid in the cars and at the stations. They cannot refuse to be responsible for baggage.k The by-laws or statutes operate upon the members of the corporation from their promulgation, and upon all others from the time of knowledge of the same. Regulations for the accommodation of passengers, during the passage, must yield to the right of others to be carried; this is the general practice in all modes of transportation in America.

66

By-laws of a company must be published."

As to Passengers. Passenger carriers may establish reasonable regulations in regard to the conduct of passengers, and discriminate between those who conform to their rules in regard to obtaining tickets, and those who do not-requiring more fare for the latter. Passengers may be required to go through on the same train or forfeit the remainder of their tickets.P Where one procures a railway ticket marked 'good for this trip only" with the view to go in the next through train, but is unexpectedly detained, he may lawfully claim to go upon the ticket on a subsequent day. Railway passengers, when required by the regulations of the company to surrender their tickets in exchange for the conductor's checks, are liable to be expelled from the cars for a refusal to comply with such regulation, or to pay fare again. A passenger is liable to be expelled from the cars for refusal to exhibit his ticket at the request of the conductor in compliance with the standing regulations of the company. Railway companies may exclude merchandise from their passenger trains. A company is not bound to carry a person daily upon his paying fare, when

j-34

f-2 Sumn. C. C. 221; 8 N. H. 523. g-6 Q. B. 383; 14 M. & W. 76; 2 Peere Wms. 207; Ang. & A. c. 10; 2 Kent Comm. 296; 1 Duv. 143; 5 Mich. 520; 5 Dutcher, 393; 6 Jur. (N. S.) 1113; S. C. 9 Id. 1081: S. C. 4 B. & S. 1059; S. C. 10; Ho. Lds. Cas. 404; 8 Jur. N. S. 640. h-5 Conn. 391; 17 Vesey, 315: 5 Coke, 64; 2 P. Wms. 207. i-Walford, 249; Hodges, 552, 553. N. H. 230; 29 Vt. 169: 18 Ill. 460; 53 Me. 279; 10 Ill. 353, 43 Ill. St. L. A. & T. H. R. R. vs South. K-10 Exch. 15; S. C. 28 Eng. L. & Eq. 439. 1-6 Jones Law, 558. m-5 Mich. 520. n-12 C. B. 313; S. C. 11 Eng. L. & Eq. 546; 5 Am. Law. Reg. 364; see also upon the subject of by-laws to passengers on railways, Redf. R'ys, 28 and notes. 0-18 l. 460; 34 N. H. 230; 29 Vt. 160; 7 Met. 2 (Mass.) 596; 12 Id. 482; 4 Zab. 435; 29 Eng. L. & Eq. 143: Redf. R'ys, 28 and notes; 24 Conn. 249. p- Met. (Mass.) 121; 1 Am. R'y Cas. 601. q-24 Barb. 514. r-22 Id. 130. S-15 N. Y. 455.

66

his trunk or trunks contain merchandise, money, and other valuable matter, known as express matter," where its by-laws exclude merchandise from passenger trains and confine its transportation to freight trains.t

An officer in fact may enforce the rules of the company," but is liable for an excess of force." A company cannot enforce a rule against a passenger where they are in fault."

As to Stations and Grounds. Railway companies may exclude persons without business, and regulate the conduct of others. The superintendent may exclude from the stations and grounds persons who persist in violating reasonable regulations prescribed for their conduct, and thereby annoy passengers and interrupt the officers and servants of the company in the discharge of their duty.

A railway freight station or freight warehouse is not exempt from search-warrant; and it is not necessary that such warrant should be executed during the usual business hours, or that the officer should consult the person who has charge of such station.

Damage-Rule of -For Injury of Passengers. The party injured must recover all his damages, present and prospective, in one action; but these should be obvious and not merely conjectural. New trials are allowed for excessive damages only in extreme cases. The plaintiff may show the value of his time lost. There is no well-defined rule for estimating damages, it generally rests very much in the discretion of the jury. In an action or loss of service, mental anguish cannot be included. A woman claiming damages for personal injury cannot prove the state of her family or death of her husband.§

The right to damages is a question of law; the amount, one of fact. Special damages cannot be recovered unless alleged and proved! A plaintiff who claims damages for loss of time and business, may prove the nature of the busi ness, and probable profits.j

W-18

Duty of connecting Companies to Passengers and others. A company is bound to keep its road safe; and they cannot excuse themselves from liabilities for injury to passengers carried over any part of their road because it was occasioned by the act of another company.1 Passenger carriers are bound to make their landing-places safe.m But those who ride upon freight trains by favor, can only require t-5 Law Reg. 364. U-34 N. H. 320; 2 Dutch. 224. V1 Law R 1 Q. B. 7; S. C. 12 Jur. (N. S.) 331. C. B. 46; S. C. 36 Eng. L. & Eq. 253; 7 Met. 596: S. C. 1 Am. R'y Cas. 389; 12 Met. 482. X-7 Met. 596; 8 N. H. 523; 12 Met. 482; S. C. 1 Am. R'y Cas. 410. y-41 Maine, 233. Z-11 Ad. & Ell. 301; 18 Vt. 252; 20 Barb. 282: 10 Id. 621; 10 La. An. 33. a-20 Barb. 282: 10 Id. 621 36 N. H. 9. b-12 Barb. 492: 19 Id. 461; 26 Id. 282; 18 Ill. 460. e-9 Johns. 45; 10 Id. 443. d23 Wend. 425. e-11 Grattan, 697. f-10 La. An. 33; 10 Am. R'y Times, No. 12; 6 Am. L. Reg. 355 -8 Gray, h-4 H. & C. 232; S. C. Law Rep. 1 Exch. 117: 12 Jur. (N. S.) 233. i-47 Maine, 419. j-55 Penn. St, 396; 16 Mich. 180: 37 N. Y. 287. k-1 Ad. & El. 223; Id. 230; Redf. R'ys, 145, pl. 7, 8, and note. 1-4 Cush. m-9 Foster, 9: 10 M. & W. 109; 27 Vt. 377; 19 N. Y. 127; 23 Ind. 534: 2 Seld. 397; 3 C. B. N. S. 346; 6 Id. 923; 8 El. & Bl. 1035; S. Č. 31; L. T. 12.

45.

400.

such security as is usual upon such trains.m Owners of all property are bound to keep it in such a state as not to expose others to injury, as the fencing off a hole or area adjoining a highway, and dangerous to passers-by ;" and this rule extends to railways, where persons are rightfully on them; and one who keeps open works is bound to keep them safe for use. Corporations are presumptively responsible to the same extent as natural persons in the same situation.

Resulting from the Sale of Through Passenger Tickets in the form of Coupons. The general duty of common carriers of pas'sengers is not the same as where goods and baggage are ticketed through. Through tickets in the form of coupons are to be regarded as distinct tickets for each road, sold by the first company as agents for the others, and may be used when the holder elects. The first company are to be regarded as agents for the others. If the business of the entire line is consolidated, it is different," but in general it is not regarded as a case of partnership. The companies being in different States and kingdoms makes no difference. The first com. pany were held liable for baggage not checked when demanded. So, also, for an injury occurring on another line over which they had sold tickets. A stage route intersected by a ferry hired to carry the coaches over, is responsible for the safety of passengers on the ferry."

The sale of through tickets for an entire route composed of several successive companies of carriers having no partnership connection, does not render each company liable for the injuries to passengers occurring on any part of the route.a

Free Pass. One who rides upon a free pass, or in the baggage-car, is not thereby deprived of his remedy against the company for injuries received through their want of due care, provided he was at the time a passenger and without fault on his own part.

Injuries-Wrongful Expulsion from Cars. Where a passenger is wrongfully expelled from cars, the company is not held liable for exemplary damages unless they ratified the expulsion, but upon principle the company should be liable for special damage. And in such cases they are trespassers if they refuse to deliver baggage. The company must keep strictly to the terms of any by-law regarding the production of tickets when called for.d Conductors are bound to exclude disorderly or offensive persons. One wrongfully expelled

e

m-9 Foster, 9: 10 M. & W. 109; 27 Vt. 377; 19 N. Y. 127; 23 Ind. 534: 2 Seld. 397; 3 C. B. N. S. 346; 6 Id. 923; 8 El. & Bl. 1035: S. C. 31; L. T. 12. n-2 Carr. & K. 661; 6 N. H. 147; 6 Johns. 90; 26 Vt. 602; 3 H. & N. 164: S. C. 31 L. T.; 11 Ad. & El. 223: 11 Exch. 257: 5 Duer 674 0-14 Penn. St. 141. p-3 H. & Norm. 164; 4 Jur. (N. S.) 636; 5 B. & A. 837. r-4 E. D. Smith, 181. S-29 Vt. 421; 22 Conn. 1; S. C. Id. 502; 26 Ala. 733: 2 E. D. Smith, 184: 15 Mich. 332. t-29 Vt. 421; 22 Conn. 1; S. C. Id. 502; 26 Ala. 733; 2 E. D. Smith, 184; 31 N.-Y. 661. 11 Wend. 572; S. C. 18 Id. 175: 4 Sneed, 203. V-26 Ala. 733; 19 Barb. 222; 16 Md. 331. w-29 Barb. 35: 17 N. Y. 306. x-7 Allen, 329. y-7 H. & N. 987; S. Č. 8 Jur. (N. S.) 1013. Z-11 Minn. 277. a-22 Conn. 502;

from the cars is not entitled to special damages, unless it occurs clearly without his fault." Where a ticket is lost, the person is liable to pay fare. One wrongfully put on shore, by a passenger boat, short of his destination, may show, to enhance damages, that it was done in an insulting manner.

Fault of the Party Injured. Where a passenger is injured on a railway, the prima facie presumption is that it resulted from the want of due care on the part of the company.1 But, nevertheless, it is competent to prove that the damage occurred without their fault.

m

From leaping from Carriages, etc. Passengers may recover if they have reasonable cause to leap from the carriage and sustain injury; but not where their own misconduct exposes them to peril. But where one incurs peril by attempting to escape danger, the author of the first motive is liable for all the necessary or natural consequences. But one leaps from cars because the train passes the station at his own risk, but may recover compensation for the inconvenience, loss of time, and labor of travelling back. If a person being safely seated is injured while leaving the cars, he cannot recover if he was guilty of negligence which contributed to his injury." The company are bound to stop their trains at all stations where they profess to leave passengers a sufficient time for them to alight. If they do not, and one is injured in consequence, while attempting to leave the cars, the company are liable. No recovery can be had when the passenger leaves on the wrong side.P

Married Woman. In a suit by the husband for injury to the wife, he may recover the expenses of the cure. But such expenses

cannot be recovered in a suit on behalf of the wife for her personal injuries.

Law of Place. Corporations can only act in conformity with the law of the State or sovereignty by which they are created; hence, they are liable as carriers only, to the extent, and in conformity to the law of the State or jurisdiction where the contract was made or duly undertaken; and it will make no difference whether the action is in form "upon contract" or "for tort (or wrong), this is in conformity to the general rule of law, upon the subject of contracts and torts."

Liability-What will excuse a Company from carrying Passengers. A company is not bound to carry where the carriages are full. 29 Vt. 421; 2 E. D. Smith, 184: 19 Barb. 222; 26 Ala. N. S. 733; Redf. R'y, 158, and cases cited. b-3 R. I. 88; 2 Redf. R'ys, 225 e-3 Gray, 328. d-Law Rep. Q. B. 7; S. C. 13 Law T. (N. S.) 231; Law Rep. 1 Q. B. 10: S. C. L. T. (N. S.) 323. e-11 Allen, 304; Id. 306. f-Law Rep. 3 Q. B. 25. h-8

-30 N. J. 388.

Jur. 875. i-Am. L. Reg. (N. S.) 715, 721; 36 Mo. 418; 14 How. (U. S.) 468; 7 Ind. 474: 5 Id. 340; 30 Ill. 9. j-9 Met. 1; 1 Sandf. 89; 13 Pet. (U. S.) 181; 17 I. 406; 24 Ga. 356: 1 Stark. 493. K-15 Ill. 468. 1-23 Penn. St. 147, 150; 1 McLean, 510, 550. m-1 Id. 510, 550; 9 La. An. 441: 40 Miss. 374. n-6 Gray, 64. 0-32 Penn. St. 292. P-33 Id. 318. q-3 Comst. 489; 20 Wend. 210; 14 B. Mon. 204. r-21 Conn. 571; 3 Comst. 489; 20 Wend. 210; 14 B. Mon. 204; 50 Barb. 628. 8-9 Jur(N. S.) 522; S. C. 1 H. & C. 219; 8 Jur. (N. S.) 568.

But it should undoubtedly be an extreme case to justify the absolute refusal of a passenger. They are not bound to carry disorderly persons or those otherwise offensive-as infected by contagion, or offensive in person or conduct." A carrier is liable in tort for breach of duty aside from any contract. The purchase of a ticket does not constitute the contract; the company has a right to impose reasonable regulations as to the carriage of passengers.*

But

of a Carrier where both parties are in fault. Railway companies are not liable as passenger carriers unless they are in fault, nor when the plaintiff's fault contributes directly to the injury; but where there is an intentional wrong on the part of the defendant, he is liable, notwithstanding negligence on the part of the plaintiff. The plaintiff may recover for gross neglect of the company, although in fault himself, but not where he knew his neglect would expose him to injury. And he may recover, though riding in the baggage car. the company does not owe such duty to wrongdoers. The plaintiff may recover, although out of his place on the train, but he must be lawfully in the place where injured. Passengers are bound to conform to the regulations of the company and directions of conductors.h Proof of the company's negligence is on the plaintiff, negligence on the plaintiff's part is not presumed; and after proof of presumptive negligence, the company must show that no reasonable precaution could prevent it. One crossing a railway track must look out for trains or he cannot recover. Rushing across a track when a train is approaching is foolhardy misconduct, and no recovery can be had for the injury. So for injury the result of heedlessness." Negligence to preclude recovery must directly tend to produce the injury.o Ordinarily, proof must be given of defendant's negligence, and that but for such negligence the injury would not have occurred. Passenger carriers must provide suitable accommodations for all passengers, then passengers must conform to the usages and rules of the company or fail to recover." Where a passenger is injured by the fault of carrier's employees, he may recover, but not if done by his own invi

tation."

t-16 Jur. 196; S. C. 8 Eng. L. & Eq. 362; 1 Redf. R'ys, 131; d. 26, n. 6. u-2 Sumner, 221; 8 N. H. 523; 19 Wend. 239; 10 N. H. 486; 15 Ill. 472; 3 Brod. & Bing. 54; S. C. 9 Price, 408. V-2 El. & El. 844; 19 C. B. (N. S.) 310; S. C. 11 Jur. (N. S.) 672. W-9 C. B. (N. S.) 310; S. C. 11 Jur. (N. S.) 730; 13 L. T. (N. S.) 20.

X-11 Ohio St. 457. y-22 Vt. 213; 11 East. 60; 6 Whart. 311: 19 Wend. 399; 21 Id. 188: Id. 615; 19 Conn. 507; 12 Barb. 492; 16 C. B. 175; 30 Eng. L. & Eq. 473; 11 Allen, 500; 5 Barb. 337; 8 Id. 368; 8 Rich. 120; 16 Ill. 548; 13 Cal. 599. Z-22 Vt. 213; 1 Ad. & El. (N. S.) 29; 1 Moo. & M. 169; 2 C. & P 421; Id. 601; 6 Cow. 189, 119; 3 M. & G. 59; 1 Q. B. 29; 19 Conn. 566; 23 Id. 437; 26 Id. 591; 10 M. & W. 546; 5 C. & P. 190; 24 Ga. 75: 26 Ill. 255. a-2 Hill (N. Y.) 282; 3 M. & W. 244; 18 Ga. 679, 686; 1 Dutcher, 556; 21 Barb. 339; 16 Id. 558; 17 Barb. 94; 27 Id. 528; 4 Zab. 268, 824: 10 Ga. 440. b-19 Conn. 507; 4 Bing. 628; 3 B. & Ald. 304; 8 C. & P. 691; 10 C. B. (N. S.) 470; 7 H. & N. 736; 3 B. & S. 244. C-Butterfield vs. Forrester, 10 East. 60. d-1 Duer, 571; 22 Barb. 91; 43

where one company uses the track of another. A railway company which receives the cars of another company upon its track, placing them under the control of its agents and servants, and drawing them by its locomotive power, assumes toward the passengers the common liability of passenger carriers; and it makes no difference in regard to the liability of the company to passengers passing over their road, whether they purchased tickets of them or of any other railway company or agent authorized to sell such tickets.t

Passenger carriers who run over other roads than their own are responsible for the entire route, and must take the risk of the negligence of the employees of the other companies."

where trains do not arrive on time. A company is liable for not delivering a passenger according to contract, but they may excuse themselves by special notice. They are liable for damages caused by the discontinuance of a train. Carriers not performing according to previous notice are liable to all injured, as for breach of duty, but are not liable for an injury caused by a stage company connecting with the railway. They will not be liable where passengers mistake the place of changing cars, and, by remaining in the same car, are carried out of their intended route, upon proper notice of the course of their trains and places of changing cars. In order to enable the plaintiff to recover special damages claimed to have been sustained by reason of the failure of a contract to carry him as a passenger, it must appear clearly and by affirmative proof that the damages were sustained without any fault on his part, and in spite of his utmost efforts to avoid them.a

Negligence-what is prima facie evidence of. Where a stage coach is overturned when laden with passengers, it is regarded as prima facie evidence of negligence in the proprietor or his servants.b And where any injury occurs to a passenger upon a railway, it has been considered prima facie evidence of the culpable neglect of the company.

с

Payment of money into court in actions against. Payment of money into court where the declaration in tort is general, only admits damages to the extent of the amount paid.

Maine, 501; 6 Duer, 382. e-8 Barb. 368; 4 Penn. St. 375. f-23 Id. 532. g-1 Duer, 571-2. h-8 Penn. St. 479; 21 Id. 203; 7 Porter (Ind.) 474; 9 Rich. 84. i7 Gray, 92. j-18 N. Y. 248; 27 Vt. 62; 37 Id. 501. k18 N. Y. 408. 1-18 Id. 422. m-24 Id. 430. D-4 H. & N. 781. 0-27 Conn. 393; 8 C. & B. (N. S.) 562; 7 Jur. (N. S.) 168. p-11 Ir. Com. L. 377; 1 C. B. (Ń. S.) 588; S. C. 8 Jur. (N. S.) 796; 2 H. & C. 722; 13 C. B. (N. S.) 430; S. C. 9 Jur. (N. S.) 970; 3 H. & Č. 596; 16 C. B. (N. S.) 399: 24 C. B. (N. S.) 54. 9-34 N. Y. 670. r-7 Allen, 207; 8 Id. 234; 37 N. Y. 287; 53 Penn. St. 460; 10 Allen, 387. -Law Rep. 3 C. P. 368, 374 & t-9 Cush. 24. u-5 Wall. 90; 3 Exch. 146. VHodges R'ys, 619: 19 L. Rep. 379. W-16 Jur. 196; S. C. 8 Eng. L. & Eq. 362; 5 El. & Bl. 860;] 1 H. & N. 408; S. C. 38 Eng. L. & Eq. 335: 13 Vt. 388; 1 Redf. R'ys, 131, n. 14. X-32 Miss. 17; 36 Iď. 660. V-22 Conn. 1. 2-6 Duer, 523. a-9 Bosworth, 412. Pet. 181. e-5 Q. B. 747: 8 Penn. St. 483: 25 Ill. 471;. 16 Barb. 113, 356; 20 Id. 282; Redf. R'ys, 149, n. 6,

n.

and cases cited.

b-13

But in cases of special contract it admits the contract and breach alleged.4

PRIVATE CARRIERS. Private carriers incur the responsibility of the exercise of ordinary diligence only like other bailees for hire.

- for compensation. Private carriers are bound to the same diligence and skill as prudent and careful men ordinarily exercise in similar employments. They must do everything, and omit nothing, which careful men are accustomed to do in similar business where they themselves are both the carriers and owners of the goods. Warehousemen and forwarders are responsible to the same extent as private carriers. So, also, tow-boat owners and wharfingers. Deputy postmasters are bound to care and diligence, but not as common carriers.1

A common carrier may become a private carrier. Where goods are injured while in the custody of a private carrier or warehousemen, the burden is upon him to show that it occurred from some other cause than his want of care, diligence, or skill.k

The recovery of judgment without satisfaction, against a private carrier, in an action of assumpsit, for not transporting and delivering the articles according to his contract, is no bar to an action against a third person who has purchased the property of the bailee.'

without compensation. A contract to convey without compensation is not binding until entered upon; then it must be faithfully performed; and if any damage befall the property in the course of transportation, through the fault of the carrier, he is responsible for it;m but his duty depends upon the nature of the property." It is his duty to carry according to his known custom and usage. If injury happen to the property while in the custody of the bailee, the interference of the bailor to remedy the evil will not release the bailee from the consequences of his default.P

A gratuitous bailee has such an interest in the property while in his custody, and is so far responsible for its security that he may maintain an action against a stranger for any injury to it. Warehousemen and wharfingers are not gratuitous bailees."

COMMISSION is an undertaking without reward to do something for another with respect to a thing bailed.s

h

i

d-17 Jur. 532; S. C. 20 Eng. Law & Eq. 258: 16 Vt. 286; 7 Cush. 581; 6 M. & W. 9; 3 Id. 486; 6 Exch. 123; S. C. 3 Eng. L. & Eq. 548. e-Story Bailm. ? 495: 13 Barb. 481; 1 Wend. 272: 1 Hayw. 14; 2 Dana, 430; 4 Taunt. 787; 6 Id. 577; 2 B. & S. 417; 2 C. B. 877; see ante, COMMON CARRIER. f-8 M. & W. 258; 1 Peake N. P. C. 114; 26 Miss. 253; 9 Wend. 268. 13 Wend. 387; 2 Barb. S. C. 326; 3 Hill, 545. Cowp. 182; 5 Burr, 2709; 4 Id. 2149; 3 Wils. 443. 2 Bay, 551; 8 Watts, 453. j-1 Wend. 272. k-9 C. & P. 632. 1-13 N. H. 494. m-2 Ld. Raym. 909; S. C. Com. 133: 3 Mason, 132: 1 Stark, 237; 1 Swan. St. 452. n-38 Me. 55: 18 Id. 74: 14 S. & R. 275; 28 Vt. 180; 1 Moore & P. 583. 0-38 Me. 55; Wright, 528; 20 Mo. 519. p-7 Watts, 542. q-1 B. & Ald. 59. r-11 Q. B. 43. -Rutherford Inst. 105. t-Jones Bailm. 36, 117; Mass. 470. A bailment of goods to be kept by the bailee without reward, and delivered according to the object or purposes of the original trust. Story Bailm. ¿ 41. A contract, by which one of the contracting par

DEPOSIT is a naked bailment of goods to be kept for the depositor with reward, and to be returned when he shall require it.'

An irregular deposit arises where one depos its money with another for safe keeping, in cases where the latter is to return, not the specific money deposited, but an equal sum.

A quasi deposit arises where one comes lawfully into possession of the goods of another by finding.

The rule of responsibility in deposits is, that the bailee must act in good faith, and in the manner as he conducts his own affairs ;" and special undertakings by the bailee are binding upon him to the extent understandingly made.

The degree of diligence to be exercised by the bailee depends upon circumstances; he is not responsible for theft or robbery without his fault.

A depository is bound to take only ordinary care of the deposit, which will, of course, vary with the character of the goods to be kept, and other circumstances. He has, in general, no right to use the thing deposited, unless in cases where permission has been given, or may from the nature of the case be implied. He is bound to return the identical deposit, and in the same state in which he received it; if it is lost, or injured, or spoiled, by his fraud or gross negligence, he is responsible to the extent of the loss or injury. He is bound to restore, not only the thing deposited, but any increase or profits which may have accrued from it; if an animal deposited bear young, the latter are to be delivered to the owner.b

In case of irregular deposits, as those with a banker, the relation of the banker to his customer is that of debtor or creditor, and does not partake at all of a fiduciary character. It ceases altogether to be the money of the depositor, and becomes the money of the banker. It is his to do what he pleases with it, and there is no trust created. The banker is not liable for interest unless expressly contracted for; and the deposit is subject to the statute of limitations.d

If the bailee puts the goods to a use not justified by the bailment, he is guilty of a conversion, and responsible for all losses.

In cases of a joint deposit, where there is a special undertaking to keep and restore to all jointly, the bailee cannot deliver to one.

ties gives a thing to another to keep, who is to do so gratuitously, and obliges himself to return it when he shall be requested. See EXECUTIONS; PRACTICE, post. u-2 Ld. Raym. 913; 1 Id. 646; Jones Bailm. 46; 2 Strange, 1099; S. C. 1 Corw. 100; 17 Mass. 179-514; 7 Cow. 278; 3 Dana, 205; 23 Pick. 330; 1 B. & Ald. 59. y-Willes, 119: 3 Petersdorff, 363. W-Wright, 411; 3 Kas. 257; 3 Petersdorff, 363. X-See 14 S. & R. 275; 17 Mass. 479; 3 Mas. C. C. 132; 2 Ad. & E. 256; 1 B. & Ald. 59. y-Bac. Abr. Bailm. D. Z-Story Bailm. 90; Jones Bailm. 80, 81; 1 Bouv. Inst. n. 1008. a-Jones Bailm. 36, 46, 120; 17 Mass. 479: Hawks, 145; 1 Dane Abr. c; 17 Art. 1 & 2. b-Story Bailm. 99. C17 Wend. 94; 1 Merriv. 568. The legal remedy is a suit at law for debt; the balance cannot be reached by a bill in equity, as there is no trust raised. 2 Ho. L. Cas. 39; 1 Younge & C. Ch. 464. d-1 Phill. 401, 405; 2 Ho. L. Cas. 39, 40; see Sewell, Banking, 4 Blackf. 495. e-13 East. 197: Jones Balm. 51; 7 El. & Bl. 234; S. C. 40 Eng. L. & Eq. 105.

1

A depository is not liable to an action for not restoring a thing, until after demand, unless he have put it to some use not justified by the bailment.

Whenever a person receiving the goods has an option to return the same thing, or another article of the same kind and value, the property passes to him as effectually as in an ordinary case of sale and exchange, and the risk is with the bailee, or person receiving the goods.

A mere deposit of money, or other thing, is always subject to recall at the election of the depositor.h

Money requires more watchful care than most other property.i

FORWARDING MERCHANTS are persons who receive and forward goods, taking upon themselves the expenses of transportation, for which they receive a compensation from the owners, but who have no concern in the vessels, cars, or wagons by which they are transported, and no interest in the freight. forwarding merchant is not deemed a common carrier, but a mere warehouseman or agent. He is required to use only ordinary diligence in sending the property by responsible persons.k

A

GRATIS undertakings are those without reward or compensation. When a bailee undertakes to perform some act or work gratis he is answerable for his gross negligence if any loss should be sustained in consequence of it; but a distinction exists between a misfeasance and a nonfeasance-between a total omission to do an act which one gratuitously promises to do and a culpable negligence in the execu tion of it-in the latter case he is responsible, while in the former he would not, in general, be bound to perform his contract.'

HIRE. Hire is a bailment in which com pensation is to be given for the use of a thing or for labor and services about it.m

There are three species of this contract:

1. The hire of labor and work to be done, or care and attention to be bestowed, or the goods let by the hirer for a compensation.

2. The hire of the carriage of goods from one place to another for a compensation."

3. The bailment of a thing to be used by the hirer for a compensation to be paid by him.

This contract arises from the principles of natural law; it is voluntary, and founded in consent; it involves mutual and reciprocal bligations; and it is for mutual benefit. In some respects it bears a strong resemblance to the contract of sale; the principal difference between them being that in cases of sale the

f-9 Johns 361: 2 Greenl. 308: Cox, 298: 3 Hill (S. C.) 284; 56 Penn St. 115; 38 II 289 g-1 Ohio St. 244 3 Iowa, 599. h-33 N. H. 171: 2 E D. Smith, 60. i-Wright, 410; 1 Sneed, 248: 35 Mo 487 j-12 Johns 232 7 Cow. 497. k-2 Cow. 593; see Story Bailm 4 Johns. 84: 5 T. R. 143: 2 Ld. Raym. 913. m-2 Kent Comm. 456: Story Bailm. 359. n-Jones Bailm. 85, 86, 99, 103, 118: Kent Comm. 456; see COMMON CARRIERS, COMMON CARRIERS OF PASSENGERS, PRIVATE CARRIERS, above. o-Vinnius lib. 3 tit. 25. in pr. Poth. Lonage, n. n. 2-4; Jones Bailm. 86; Story Bailm. 2371: Parsons, Story, Contr. 2 Kent Comm. 456. p Domat. 259 Bk. 1. tit. iv. ii art 1; 1 Const. 121; Wh Am.

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 and purpose. In a sale the thing itself is the subject of the contract; in hiring the use of the thing is the object.

HIRING THINGS. The engagements of a person who takes anything 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 rent or hire; and, in general, he ought to observe whatever is prescribed by the covenant, by law, and by custom ;P and he stipulates for requisite skill and diligence to accomplish the purpose of the bailment, prudently and safely.

In hiring horses, the hirer is bound to feed properly at his own expense, and treat the animals judiciously and prudently, unless where the owner retains control of the team by his driver."

A hirer may allow his servants to use the thing, he being responsible for their conduct. But he is not ordinarily responsible for the acts of the servants of the owner.t

The right of possession of the thing during bailment is in the bailee."

If the thing fails to answer the purpose, the hirer is not bound to pay the price; the same rule applies to letting of the use of things for a term of time at a fixed price. The price is only due to the extent of the service."

LETTING THINGS. The leading incidents of this class of bailments are as follows: 1. The thing bailed must be of a personal quality;

2. It must be tangible and under the power and control of the bailor, either as his own property, or under his own control, with the assent of the owner;

3. It must of course be a thing capable of being let;

4. There must be a price agreed between the parties, or at least it must be implied that a reasonable compensation is to be paid for the use in some way;

5. There must be a delivery of the thing to the bailee for a particular time, or for some particular use, and until that is accomplished. A hirer of things is bound to exercise watchfulness to keep them securely.*

In case of mere deposit of goods, or where there is only a payment for house room, and nothing for care and custody of the things bailed, the bailee is not responsible for the loss, unless upon proof of some particular default or neglect ; unless there was a total default in

Com 239 13 Johns. 211; 1 Cow. 322: 6 Ga. 213.

q

2 Ld Raym 909; 2 Fol. 62, b.; 3 Petersdorf Ab. 374; 1 Esp. N P. C. 314: 1 Gow. 30. r-2 Br. & B. 359: Story Bailm. 388-389: 3 Petersdorf Ab. 376, and note; 3 Camp. 4: 5 Esp. 35: Id. 263. S-1 Mod. 210; S. C. 3 Salk 271; Story Bailm 400. t-5 B. & C. 547: I Redf Railw. 503.129: 24 Barb. 355; 3 Gray, 349: 6 M & W. 499 -Yelv. 172 10 Vt. 208; 5 Mass. 104; 3 Pick 492; 12 Id. 139; 17 Vt. 499; 40 Ill 320: 46 N. H 75. 2 Camp 335 V-3 Barb. 380. W-1 Head. 258; 1 Met. (Ky.) 288, 3 Ala. 562, 21 Texas, 478. X-2 C. B. 877; S C. 10 Jur. 435. y-10 Cush. 117; 9 Wend

271.