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receives: and in the present case there was a clear fraud committed by the plaintiffs. And per Yates, J. here is a full proof of a special acceptance, and a deceit on the part of the plaintiffs ; for it is not necessary that there should be a personal communication in order to make a special acceptance. The reason of a personal communication is that each party may know the other's mind; and therefore if they know each other's mind in any other manner, that is sufficient.--Gibbons v. Payton and another, E. 9 Geo. III. 4 Burr. 2298. 2 H. Bla. 299.

As to Bailment.--If a common carrier be robbed, yet he is answerable;

for nothing will excuse him but the act of God, or of the king's enemies ; [ *72 ) but he who has a particular employment (as a * bailiff or factor) though

he have a reward, yet he is not bound against all events, if he do to the best in his power.--Coggs v. Bernard, T. 1704. Raym. 909.

And it is to be known that there are six sorts of bailments, which lay a care and obligation on the party to whom goods are bailed, and which consequently subject him to an action, if he misbehave in the trust reposed in him. Per Holt, C. J. in S. C.

1. A bare and naked bailment to keep for the use of the bailor, which is called depositum, and such bailee is not chargeable for a common neglect, but it must be gross one to make him liable.-Mytton v. Cock, 12 Geo. II. 2 Stra. 1099. S.P.(a).

2. A delivery of goods which are useful to keep, and they are to be returned again in specie, wbich is called accommodatum, which is a lending

lenborough, C. J.

" This is not the limits to wbich he confines it. enough to limit the defendant's com- Butler v. Heane, 2 Camp. 415. The mon law liability; there is not suffi- notice in a carrier's office ought to be cient evidence of any special con- in such large characters that no pertract. The jury ought to believe sons delivering goods there can fail that, at the time of the delivery of to read it without gross negligence; the trunk at the waggon office, the and if a carrier's servant receives plaintiff or his agent saw, or had goods at a distance from the office, ample means of seeing, the terms on the special terms on which he deals which the plaintiff carried on his ought to be communicated through business. How can this be inferred some other medium. Clayton v. from the hand-bill nailed on the Hunt, 3 Camp. 27. door, which called the attention to (a) If, therefore, a bailce receives every thing that was attractive, and goods to keep safely, and he is robbed, concealed what was calculated to re- he shall answer for them in detinue. pel customers ?" His lordship added, Sed secus if he undertake to keep them if a common carrier is to be al

as his own goods, though in that case Jowed to limit his responsibility, he he would be answerable for damage must take care that every one who arising from his own negligence, deals with him is fully informed of Kettle v. Bromsall, Willes, 121.

gratis ;

gratis; and in such case the borrower is strictly bound to keep them : for if he be guilty of the least neglect, he shall be answerable, but he shall not be charged where there is no default in him. (a)

S. A delivery of goods for hire, which is called locatio or conductio, and the hirer is to take all imaginable care, and to restore them at the time; which care if he so use he shall not be bound. (b)

4. A delivery by way of pledge, which is called vadium; and in such goods the pawnee has a special property; and if the goods will be the worse for using, the pawnee must not use them; otherwise he may

use them at bis peril; as jewels pawned to a lady, if she keep them in a bag and they are stolen, she shall not be charged; but if she go with them to a play and they are stolen, she shall be answerable.(c) So if the pawnee be at a charge in keeping them, he may use them for his reasonable charge ; (d) and if notwithstanding all his diligence he lose the pledge, yet he shall recover the debt. (Manby v. M'estbrooke, 19 Geo. 2. K. B.) (e) But if he lose it after the money tendered, he shall be chargeable, for he is a wrong-doer; after money paid (and tender and refusal is the same) it ceases to be a pledge, and therefore the pawnor may either bring an action of assumpsit, and declare that the defendant promised to return the goods upon request; or trover, the property being vested in him by the tender.-Ratcliffe v. Davies, T. 18 Jac. 1. Yelv. 178.

5. A delivery of goods to be carried for a reward, of which enough has been already said; only I will here add, that the plaintiff ought to prove the defendant used to carry goods, and that the goods were delivered to him or his servant to be carried. (f) And if a price be al

ledged

(a) As if a man lend another a (c) And to this effect is Mores v. horse to go westward, or for a Corham, Ow, 123. month, and he goes northward, or (d) As a horse or cow, which he stays more than a month, he shall be may ride or milk. Bract. 99, (b) answerable. Bract. lib. iii. c. 2. (e) Agreeable to this is 29 Assisar. 99, (b) But if the bailee had put 28; and so is Southcote's Ca. 4 Co. this borrowed horse in his stable, and 83; tbough the reason given in Southit was stolen, he shall not be answer- cote's Case is, because the pawnec able. Sed secus if he or his, servant hath a special property in the pawn; had left the stable door open. A

but that is not the true reason, for bailee also shall not be liable in case the true reason is given in Lib. .Assis. of irresistible force. Ibid.

sup. riz. that the law requires no(6) Vide Bract. 62, (b); and the thing extraordinary of the pawnee, degree of diligence here required is nor more than that he shail use ordi. such as the most discreet father of a nary care. family would use, but as no man can (1) This point, however, is appliguard against robbery, no bailee shall cable to two sorts of persons, tiz. be responsible for that. Duckmyr v. those who are in public and those Durnall, 2 Raym. 1087.

who are in private employ, the first

of

ledged in the declaration, it ought to be proved the usual price for such [*78 ) a stage; and if the price be proved, * there need no proof, the defendant

being a common carrier; but there need not be a proof of a price certain.- Per Holt, C. J. at Horsham, 13 W. 3.

6. A delivery of goods to do some act about them (as to carry) without a reward, which is called by Bracton, (lib. iii. S00.) mandatum, in English, an acting by commission; and though he be to have nothing for his pains, yet if there were any neglect in him, he will be answerable, for his having undertaken a trust is a sufficient consideration ; but if the goods be misused by a third person in the way without any neglect of his, he would not be liable, being to have no reward.(a)

If

of wbom, namely, common carriers, arguments of the judges, in deliverare only considered in the text. But ing judgment, are very elaborate and as to the second sort of

persons, riz. full of learning, well worthy the atbailees, factors, agents, and such tention of the reader ; and in that like, though they have a reward for case it was laid down that a general their management, they are only to bailment is not, nor can be taken to do the best they can, and though be a special undertaking to keep the they be robbed, it is a good account. goods bailed safely at all events; but Vere v. Smith, i Vent. 121. 2 Lev. 5. if a man does undertake specially to S. C.

keep goods safely, that is such a war(a) That the obligation to restore ranty as will oblige him to keep them a deposit flows from the nature and safely against all perils, where he definition of the contract is clear, has his remedy over, but not against yetin Riches v. Brigges, Yelv. 4. Cro. those where he has no such remedy. Eliz. 883, where it was held that It is also to be observed, that in case lay against a man who had not Morse v. Slue, the declaration was performed his promise of re-deliver- drawn by the ablest man in England, ing things bailed to him, the judge in which (as it always was in such ment was reversed ; and soon after, cases) it was considered prudent to in a similar case, judgment for the insert that a reward was to be paid plaintiff was arrested. Vide Pickas for the carriage, and so it has been v. Guile, Yelv. 128. The reversal, usual to put it in the writ where the however, was said to be a bad reso- suit is by original; and Lord Holt lution, and the contrary was after- said thus much, that the law on this wards solemnly adjudged in IV heatley point should be settled, though he v. Luw, Cro. Jac. 667; and yet in would not take upon himself to say that case there was no benefit to the he had so settled it. defendant, nor any consideration but The Icarned Sir Jilliam Jones, in the having the money in his posses- his Essay on the Law of Bailments, sion, and being trusted with it; that, (p. 55) differs in some degree from however, was held to he a good con- the doctrine of Lord Holt, for he says sideration : therefore a bare being that Lord Holt's division of bailtrusted with another man's goods ments into six sorts is inaccurate, for must be taken to be a sufficient con- in truth his fifth is only a branch of sideration, if the bailee once enter his third ; and he might with equal upon the trust, and take the goods reason have added a seventh, since into his possession. Vide Morse v. the fifth is capable of a sub-division. Slue, 2 Liv. 69, in which case the Sir IVilliam Jones acknowledges but

If the goods of a guest be stolen out of an inn, the innkeeper is answerable; but the plaintiff must prove that the defendant kept a common inn, and that he, his son, or servant, was a guest at the time, and that the goods were brought within the inn, and remained under the care of the defendant.--Beedle v. Morris, T. 1610. Cro. Jac. 221. Mo, 117. (a)

If a man come to the inn with an horse, and leave the horse there for several days, and in his absence his horse be stolen, the owner is a sufficient guest to maintain an action ; but it would be otherwise if he had left a trunk or other dead thing, by which the innkeeper would have no gain. (Gelley v. Clerk, M. 1608. Cro. Jac. 188.) If he desire the -host to put his horse to grass, and the horse be stolen, the innkeeper is not liable; for by law he is only bound to answer for those things that are infra hospitium. (Calye's Ca. E. 26 Eliz. 8 Co. 32.) So if the innkeeper refuse to receive him because his house is full, whereupon he says he will shift, and then is robbed, the host shall not be charged; but without such cause he cannot discharge bimself by words only.— Bird v. Bird, 1 Anders. 29. Anon. M. 7 Eliz. Mo. 78.

.five sorts, which he thus enume- most useful and convenient species rates :

of bailment in society. 1. Deposit um, which is a naked 4. Pignori acceptum, which is bailment (without reward) of goods where a thing is bailed by a debtor to be kept for the bailor; and on this to his creditor in pledge to secure the doctrine Benion's Ca. Mayn. Ed. II. debt. 275. Fitzh. (Detinue) 59, is the 5. Locatum, or hiring, which is earliest decision; but Sir W. Jones always for a reward; and this is says that case is wholly incompre- either locatio rei, by which the hensible: and then he proceeds to hirer gains the temporary use of the condemn the doctrine of Lord Coke, thing; or locatio operis faciendi, when in Southcote's Ca. 4 Rep. 83, and af. work and labour, or care and pains, terwards introduced into 1 Inst. 89, are to be done or bestowed on the that there is no difference between a thing delivered; or locatio operis special acceptance to keep safely, and mercium vchendarum, when goods are a general one to keep, which Lord bailed for the purpose of being carHolt equally reprobates in Coggs v. ried from place to place, either to a Barnard, after having examined all public carrier or to a private perthe antecedent authorities.

son. 2. Mandatum, or commission, which ra) If a servant come into an inn, is where the mandatory undertakes, and ask to leave his master's goods till without recompence, to do some act the next market-day, and the innabout the things bailed, or simply keeper refuses because his house is to carry them; and hence Sir H. full of parcels, and the servant then Finch divides bailment into two sit down, and drink as a guest, and sorts, to keep and to employ.

put the goods behind him, and they 3. Commodatum, or loan for use, are lost, the innkerper is liable to is where goods are bailed without the master. Bennet v. Mollen, 5 T. R. pay, to be used for a certain time 273. for the bailee; and this is one of the

In Yielding v. Fay, T. 1587. Cro. Eliz. 569, it was holden, that where by custom the parson ought to keep a bull and a boar, every inhabitant who hath prejudice by his not keeping them may have an action, and that Not Guilty is no good plea to such an action, upon this distinction that it is a good plea to an action for a misfeasance, aliter to an action for non-feasance; for they are two negatives, which cannot make an issue any more than two affirmatives.

And note, That in all cases where a damage accrues to another by the negligence, ignorance, or misbehavior of a person in the duty of his trade or calling, an action on the case will lie; as if a farrier kill my horse by bad inedicines, or refuse to shoe him, or prick him in the shoeing, &c. 8c. (Mulgrave v. Ogden, T. 1591. Cro. Eliz. 219.) (a) But it is otherwise where the law lays no duty upon him; as if a man find garments, and by negligent keeping they be spoiled. (6)

ra) So if a surgeon injure his pa- horse. Deane v. Keate, Esq. S tient by his want of professional skill, Camp. 4. this action lies. Seare v. Prentice, (b) In assumpsit against a ware8 East, 348. Et vide Slater v. Baker, houseman for negligently keeping a 2 Wils. 359. S. P.

quantity of gentian, whereby it was If one who has hired a horse, in- spoiled. Defendant proved that he stead of calling in a farrier to the had taken all possible care of it; and horse when ill, undertakes to pre- Lord Kenyon held that he was not, scribe himself, and prescribes so im- like a common carrier, answerable properly that the horse dies, he is to all losses, and that having exerted guilty of a breach of the implied un- due and common diligence, he should dertaking to exercise that degree of not be liable to a damage he could care which might be expected from not prevent. Cailiff v. Danvers, P'eake a prudent man towards his own N. P. C. 114.

[ 74 ]

CHAPTER VII.

OF CASE FOR CONSEQUENTIAL DAMAGES.

AN action upon the case will likewise lie for consequential damages where the act itself is not an injury.

As if a man who ought to inclose against my land, do not inclose, by which the cattle of his tenants enter into my land and do damage to me. (1 Rol. Abr. 105. c. 11.)(a) So, till 6 Ann. c. 31, (which evacts that no action shall be had against any person in whose house or chamber any fire shall accidentally begin, for any damage occasioned

(a) In which case the action must but the terre-tenant. Cheetham k. be brought, not against the landlord, Hampson, 4 T. R. 318.

thereby,

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