CHAPTER V.

BAILMENTS.

&A BAILMENT is a delivering (bailler to deliver) of a chattel to another, for the purpose of its being dealt with in some way by that other, either gratuitously, or for reward. For instance. If Jones sends his horse to Smith to be shod, that is a bailment of the horse to Smith for the purpose of the horse having his shoes nailed on.

§ BAILMENTS are of different kinds and may be classed as follows: I. Those for the benefit of the bailor.

・ (i) Depositum. This is where the bailor deposits a chattel with the bailee to be kept by him, gratuitously, for the bailor.

For example. Where Jones, while he is on the continent, leaves his plate at his bankers, who make him no charge.

(ii) Mandatum. Where the bailor delivers a chattel to the bailee, who is to take some active step with regard to it, gratis.

For example. Where Jones hands his watch to Smith, for Smith to take it to a watchmaker for him, without charge.

II. Those for the benefit of the bailee.

(i) Commodatum. This is where the bailor, gratuitously, lends a chattel to the bailee, to be used by him and returned.

For example. Where Jones lends Smith a dog, or a gun, or a toasting fork, and Smith is to return to him the identical dog, or gun, or toasting fork. (ii) Mutuum. Where the bailor, gratuitously, lends the

bailee a chattel for consumption by him, and one
of like nature is to be returned to the bailor.
For example. Where Jones lends Smith a dozen of
champagne, which Smith is to consume, and
Smith is to return another dozen of a like des-
cription.

III. Those for the benefit of both bailor and bailee.
(i) Vadium. Where the bailor gives the bailee an
article in pawn.

This is the bailment of a chattel, as a collateral
security for the performance of an engagement,
with an implied promise of restoration of the
chattel, on the performance of the engagement.]
(ii) Locatio rei. Where the bailor lets a chattel for hire.
(iii) Locatio operis faciendi. Where the bailor delivers
a chattel to the bailee.

1. To be kept,

2. To be carried,

3. To have work performed upon it,

by the bailee for a reward to be paid to him.
For example. Where Jones sends materials

to

§ DUTIES AND

Smith, and Smith is, for a price, to make them into a coat for Jones.

LIABILITIES OF A BAILOR, AND A BAILEE IN THE

CASE OF

I. Depositum and Mandatum.

1. The chattel must not be used by the bailee for his own benefit, otherwise the contract becomes one of "commodatum."

2. The bailee has no lien on the chattel for any expenses he may have been put to in regard to it.

3. The bailee is bound to take such care of the chattel, as a reasonable man would take of his own; and is liable for gross negligence only. (See post, Book III. Part IV. Chap. II.)

4. The risk of loss, except from gross negligence, remains Iwith the bailor.

II. 1. Commodatum.

(i) The risk of loss, except from negligence, remains with the bailor.

(ii) The bailee is bound to take the utmost care of the chattel, and is liable for the least negligence. (See post, Book III. Part IV. Chap. II.)

2. Mutuum.

III. Vadium.

The risk of loss passes to the bailee.

1. The chattel may be used by the pledgee, if it is of such a character, as not to become the worse for wear; but this will be at the pledgee's risk in case loss should result.

2. There is an implied warranty of title on the part of the pledgor. (a)

3. There is an implied promise on the part of the pledgee to return the pledge as soon as the object of the pledging has been accomplished. (a)

4. The pledgee is bound to take such care of the chattel as a reasonable man would take of his own; and is only liable for ordinary negligence. [See post, Book III. Part IV. Chap. II.]

5. If the time for redemption is fixed, it cannot be curtailed by either party.

6. The chattel may be sold by the pledgee on default made by the pledgor, where the time for redemption is fixed; and where it is not fixed, at any time after notice to the pledgor. (b)

7. On the sale of the chattel, the pledgee must account to the pledgor for the balance, if any, beyond the amount for which the pledge was collateral security.

(a) Cheeseman v. Exall, 6 Ex. 344.

(b) Pigot v. Cubley, 15 C. B. N. S. 701,

8. The risk of loss, except from negligence, remains

with the pledgor.

[The law relating to pledges taken by pawnbrokers, where the amount advanced is £10 and under, is now governed by the Pawnbroker's Act, 1872. (c)]

IV. Locatio rei.

1. If the chattel is let for any particular purpose, the bailor warrants that it is reasonably fit for that purpose; but does not warrant against any latent defect undiscoverable by reasonable examination.

Illustration. Cockrell, and certain other gentle

men, were stewards of the Cheltenham steeplechases. He contracted with a competent builder to erect a stand, to which the public were to be admitted to see the races at 5s. per head. The builder constructed the stand improperly, not to Cockrell's knowledge, but, still, so that a competent surveyor would have discovered the defect. When the race meeting was held, the stand gave way, and Francis, who was upon it as a spectator, was injured. In an action by Francis, it was held, that Cockrell was liable, as the contract between him and the public was, that the stand was reasonably fit for the purpose for which it was built and that due care had been exercised in its construction. (d) 2. The bailee of a chattel, let to him for hire, is bound to use it in a proper and reasonable manner. 3. And to restore it within a reasonable time, in the same condition in which he received it, reasonable wear and tear being allowed for.

4. The bailee is bound to take such care of the chattel

(c) 35 & 36 Vict. c. 93.

(d) Francis v. Cockrell, L. R. 5 Q. B. 501.

as a reasonable man would of his own, and is only liable for ordinary negligence. (See post, Book III. Part IV. Chap. II.)

Illustration. Keate hired a pair of coachhorses from Deane. On one of them being taken slightly ill, he prescribed for, and treated it, himself. The horse, in consequence died. In an action by Deane for the value of the horse, it was held, that Keate was liable, as he had not exercised that degree of care, which might be expected from a prudent man towards his own horse. (a)

5. The risk of loss (except from negligence) remains

with the bailor.

V. Locatio operis faciendi

1. The bailee is bound to take such care of the chattel as a reasonable man would take of his own; and is only liable for ordinary negligence. (See post, Book III. Part IV. Chap. II.)

Illustration. Searle left two carriages in charge

of Laverick, a liverystable keeper, who put them into a recently erected shed. The shed, which had been built for him by a competent builder, was blown down, and the carriages injured. In an action by Searle for the damage done to the carriages, evidence that the shed had been unskilfully built was rejected, and the plaintiff was nonsuited. The Court held the nonsuit right, as the defendant was only bound to exercise such care in keeping the carriages as would be taken by an ordinarily careful man. (6)

2. The risk of loss (except in the case of negligence) remains with the bailor.

(a) Deane v. Keate, 3 Camp. 4.

(b) Searle v. Laverick, L. R. 9 Q. B. 122.