Note; That an affignment of prisoners by an under-fheriff Barnes 259. to the fucceeding high-fheriff, (though not by indenture) is a good affignment. If a man in execution escape, and return again, and after- 2 Lev. 109. ward be made over with other prifoners, and then make a fecond escape, the fecond fheriff fhall be chargeable. Ravenfcroft v. Eyles, 6 G. 3. C. B. In an action on the cafe against the warden of the Fleet, it appeared in evidence that the plaintiff knew of the efcape, yet proceeded in his action to judgment, but had not charged the defendant (who had returned to the gaol) in execution, and on a cafe made it was holden, that the plaintiff had not by fuch proceedings waved his right of action against the warden. If a writ come to the fheriff, and he make out his mandate Noy. 27. to the bailiff of a liberty, who takes the party, and afterwards fuffers him to escape; the action lies against the bailiff, and not against the sheriff. It will not be improper here to take notice, that if he who is in execution escape (though it be with the confent of the gaoler or fheriff), yet the plaintiff may retake him, and that after a twelvemonth, without a fci. fa. for he is in upon the first execution. And this even though he have brought an action against the gaoler or fheriff and recovered, if the fum recovered were less than the debt; as where the judgment was for 2000 l. and the damages recovered were only 1000 l. In the cafe in Thef. Brev. 282. the whole debt was recovered against the fheriff; but the defendant pleaded to the fei. fa; that the plaintiff had taken a lefs fum of the sheriffs in fatisfaction of the feveral fums of money and judgment aforesaid, and on demurrer, that plea was held to be bad. I fuppofe on the ftale ground that a lefs fum could not be a fatisfaction of a greater. This action being founded in maleficio, and given by the ftatute, is not within the ftatute of limitations. For misbehaviour in a truft or duty, an action on the cafe will likewise lie; for whosoever undertakes to do a thing for another ought to do it faithfully, elfe he is anfwerable for the damages arifing from his negligence or misbehaviour: therefore if a man deliver goods to a common carrier to carry, and the carrier lose them, an action on the cafe will lie against him; but if there appear to be no default in the defendant, the plaintiff fhall be nonfuited; as if an action were brought against a carrier for negligently driving his cart, fo that a pipe of wine burft and was loft, it would be good evidence for the defendant, that the wine was upon the ferment, and when the pipe burst he was driving gently. So where the defendant's hoy coming through bridge, by a fudden guft of wind was drove against the bridge and funk, F 3 Lenthal and 26 & 27 Car. 2. Collop and 31 Car. 2. K. B. Lev. 191. 1 1 Saund. 34. Sid. 305. Farrar v. 10 An. per Salk. MSS. Amies and Steven, Mic. 5 Gen. Pratt 1 Oct. Stra. 45. Stra. 128. Dale v. Hall E. I. Comp. v. Pullen. H. 12 G. 1. O&. Str. 132. Show, 327. Salk. 282. Rice v. Shute 10 G. 3. Drinkwater Quennel. Tr. 1 & 12 G. 2. C. B. Aleyn 93. fed vi. pott. Pratt Ch. Juft. held the defendant not liable; the damage If I fend my fervant with the goods on board the veffel, and they are loft, the carrier is not liable; for they are to be confidered not in the poffeffion of the carrier but of the fervant. If a carrier having convenience to carry goods, being offered his hire refufe to carry them, an action will lie against him. Note; all perfons carrying goods for hire, come under the denomination of common carriers: but if the driver of a ftage-coach, which only carries paffengers for hire, lofe the goods of his paffengers, the mafter is not liable; for no mafter is chargeable with the act of his fervant, but when he acts in execution of the authority given him by his master; and then the act of the fervant is the act of his master; and in fuch case the action may be brought againft either the mafter or the fervant; and as the action may be brought against either the mafter or the fervant, fo either may bring affumpfit for the money for the carriage. Note; In the cafe in Salk. it is holden, that if the action be brought against the mafters, it must be brought against them all; and if brought against one only, advantage may be taken of it on evidence. But according to later determinations, that matter can only be pleaded in abatement. If the carrier afk what is in the box, and is told filk; yet in truth if there be money, he fhall be anfwerable for it if lost, unless he made special acceptance; but this intended cheat upon the carrier will be a good reason for the jury to give lefs damages. 2 If a bag fealed be delivered to a carrier, and faid to contain Carth. 485. 2004 and the carrier give a receipt for fo much, when in fact it contains 400 l. if the carrier be robbed, he fhall be anfwerable only for 200 l. for his reward extends no further, and it is that makes him liable. An action was brought against the proprietors of a stage- Gibbons Paycoach, for not fafely carrying 100 l. delivered to their book-ton and another, Eaft, 9 G. 3. keeper in a bag, from B. to L, and on the trial it appeared that the money was put into a bag, and carried by the plaintiff's fervant to the defendant's house, and there delivered to their book-keeper who afked no queftions about the contents of the bag, but took it as a common parcel, and was paid for it as fuch by the fervant, who gave him no information about it; the money was lost ; and the servant, on his cross examination on the trial fwore that he received no particular inftructions from his mafter about the carriage, but only to deliver the parcel to the book-keeper, and pay what was demanded of him for the carriage: the defendants proved that an advertisement had been put into the country news-paper once every month for two years together, concerning the carriage of parcels by this stage-coach, with an N. B, at the bottom of it, that the proprietors would not be answerable for any money, plate, jewels, writings or other valuable goods, unless they were entered as fuch, and paid for accordingly; and that this paper was taken in at the house where the plaintiff lodged, who was frequently feen with it in his hand, and appeared to be reading it the court of K. B. held that the defendants were not liable to answer for this money for a carrier is only liable in refpect of the reward, which he receives and in the prefent cafe 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 neceffary that there fhould be a perfonal communication in order to make a special acceptance. The reafon of a perfonal communication is that each party may know the others mind; and therefore if they know each others mind in any other manner, that is fufficient. If a common carrier be robbed, yet he is anfwerable; for nothing will excuse him but the act of God, or of the king's enemies; but he who has a particular employment (as a F4 bailiff Coggs and Bernard, Rayma "י 2 Str. 1099. . Manby Yelv. 178. bailiff or factor) though he have a reward, yet he is not bound against all events, if he do to the best of his power. And it is to be known that there are fix forts of bailments which lay a care and obligation on the party to whom goods. are bailed, and which confequently fubject him to an action, if he misbehave in the truft reposed in him. 1. A bare and naked bailment to keep for the ufe of the bailor, which is called depofitum, and such bailee is not chargeable for a common neglect, but it must be a grofs one to make him liable. 2. A delivery of goods which are useful to keep, and they are to be returned again in fpecie, which is called accommodatum, which is a lending gratis; and in such case the borrower is strictly bound to keep them; for if he be guilty of the leaft neglect, he shall be answerable, but he fhall not be charged. where there is no default in him. 3. 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 fo ufe he fhall not be bound. 4. A delivery by way of pledge, which is called vadium; and in fuch goods the pawnee has a fpecial property; and if the goods will be the worse for ufing, the pawnee muft not use them; otherwise he may use them at his peril; as jewels pawned to a lady, if she keep them in a bag and they are ftolen, fhe fhall not be charged; but if the go with them to a play and they are ftolen, fhe fhall be answerable. So if the pawnee be at a charge in keeping them he may use them for his reasonable charge; and if notwithstanding all his diligence he lose the pledge, yet he fhall recover the debt. But if he lose it after the money tendered, he fhall be chargeable, for he is a wrong-doer : after money paid (and tender and refusal is the fame) it ceases to be a pledge, and therefore the pawnor may either bring an action of affumpfit, and declare that the defendant promised to return the goods upon request; or trover, the property being vefted in him by the tender. 5. A delivery of goods to be cared for a reward, of which enough has been already faid; 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 fervant to be carried. And if a price be alledged in the declaration it ought to be provW. 3. at Hored the ufual price for fuch a stage; and if the price be proved, Per Holt, 13 fham. there there need no proof, the defendant being a common carrier but there need not be a proof of a price certain. 6. A delivery of goods to do fome act about them (as to carry) without a reward, which is called by Bratton, mandatum, in Eaglish, an acting by commiffion; and though he be to have nothing for his pains, yet if there were any neglect in him, he will be anfwerable, for his having undertaken a truft is fufficient confideration; but if the goods be misused by a third perfon in the way without any neglect of his, he would not be liable, being to have no reward. If the goods of a guest be stolen out of an inn the inn- Cr. J. 224. keeper is answerable; but the plaintiff must prove that the defendant kept a common inn, and that he, his fon or fervant, was a guest at the time, and that the goods were brought within the inn, and remained under the care of the defendant. Salk. 388. Cr. J. 188. If a man come to the inn with an horfe, and leave the horfe there for several days, and in his abfence his horfe be ftolen, the owner is a fufficient gueft to maintain an action; but it would be otherwife if he had left a trunk or other dead thing, by which the innkeeper would have no gain. If he s Co. 32. defire the hoft to put his horfe to grafs, 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 hofpitium: So if the innkeeper refufe to receive him because his houfe is full, where Moor 78. he fays he will fhift, and then is robbed, the hoft shall not be charged; but without fuch cause he cannot discharge himself by words only. In Yielding v. Fay, Cr. El. 569. It was holden, that where by cuftom the parfon 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 fuch an action, upon this distinction that is a good plea to an action for a misfeafance, aliter to an action for non-fea❤ fance; for they are two negatives, which cannot make an iffue any more than two affirmatives. 1 And. 29. And note, That in all cafes where a damage accrues to another by the negligence, ignorance or misbehaviour of a perfon in the duty of his trade or calling, an action on the cafe will lie; as if a farrier kill my horfe by bad medicines, or refuse to shoe him, or prick him in the shoeing, &c. &c. But it is otherwife where the law lays no duty upon him; as if a Cr. El. 219. man find garments, and by negligent keeping they be spoiled. CHAP |