THE Law of Bailment has received in modern times a more systematic arrangement than formerly, and a more profound and accurate investigation into its principles. But it was always, though not under the same name, a branch of the common law, and some of its principles are as ancient as any part of that law. Sir William Jones speaks of it as referred to in the books of Moses and as quite fully developed among the Greeks. But, in fact, much law on the topics which are now considered under the head of Bailment, must exist in all nations who make any approach to civilization. For there must always be something of borrowing, lending, hiring, and of keeping chattels, carrying or working upon them, for another; and all this is embraced within Bailment. The word is from the Norman-French bailler, to deliver. Whatever is delivered by the owner to another person, in any of the ways or for any of the purposes above mentioned, is bailed to him; and the law which determines the rights and duties of the parties, in relation to the property and to each other, is the law of Bailments.

Sir William Jones, in 1781, published his brief essay on the Law of Bailments. This work first gave to the subject systematic form. It was at that time eminently useful, and has always been celebrated. As a literary and philosophical production, manifesting much learning in the Roman civil law, it has great merit; but, as a law-book for present use, it now possesses less value.

In the 2 Anne, Lord Holt, in the case of Coggs v. Ber87 nard, (a) laid the foundations of this system of * law, build

(a) 2 Ld. Raym. 909. This celebrated case is referred to in the great majority of subsequent cases which relate to the responsibility of a bailee. In this case, that eminent judge, Sir John Holt, may be said to have laid the foundation of the Law of Bailment for England. He borrows most, perhaps all, of his principles from the civil law. And he gave at once a proof of the wisdom of that law, and of

his own sagacity in seizing those of its principles which had been adopted by or were applicable to the common law, and in stating them with great accuracy of definition, and with the modifications required to adapt them to the common law. So that they have passed through all subsequent adjudications with but little essential change.

ing it, however, on principles deducible from or harmonizing with existing English jurisprudence, although he used an arrangement and nomenclature borrowed from the civil law.

A bailee is always responsible for the property delivered to him; but the degree and measure of this responsibility vary from one extreme to another. He is bound to take care of the property; but the question always occurs, What care? It is obviously impossible to measure the requirement of care with exact precision. But, for their assistance in doing this, courts have established three kinds or degrees of care, as standards. There is, perhaps, no better definition of these, than that given by Sir William Jones. First, slight care, which is that degree of care which every man of common sense, though very absent and inattentive, applies to his own affairs; secondly, ordinary care, which is that degree of care which every person of common and ordinary prudence takes of his own concerns; thirdly, great care, which is the degree of care that a man remarkably exact and thoughtful gives to the securing of his own property. It is obvious that the degree of care required measures the degree of negligence which makes the bailee responsible for loss of or injury to the thing bailed. There are, therefore, three degrees of negligence. The absence of slight care constitutes gross negligence; the absence of ordinary care constitutes ordinary negligence; the absence of great care constitutes slight negligence. The general purpose of the Law of Bailment is to ascertain, whenever loss of or injury to a thing bailed occurs, to what degree of care the bailee was bound, and of what degree of negligence he has been guilty. (b) For this purpose bailees are sometimes distributed into three general classes, corresponding with the three degrees of care and negligence already referred to. The first of these is, where the bailment is for the benefit of the bailor alone. In this 88 class but slight care is required of the bailee, and he is respousible only for gross negligence. The second is, where the bailment is for the benefit of the bailee alone. In this class the greatest care is required of the bailee, and he is responsible for slight negligence. The third is, where the bailment is for the benefit both of bailor and bailee. In this class, ordinary care is required of the bailee, and he is responsible for ordinary negligence. We shall also see, presently, that there are bailees of whom the utmost possible care is required, and who are respon

(b) For an able criticism upon the definitions and classifications of negligence, see Steamer New World v. King, 16 How.

469. See also Blythe v. Waterworks, 36 E. L. & E. 506; s. c. 11 Exch. 781.

sible for the slightest possible negligence, and others who are responsible when guilty of no negligence whatever.

Courts and writers have sometimes spoken of gross negligence as the same thing as fraud; but this is inaccurate. (c) There are bailees who should not be held responsible but for the grossest negligence, and it is often difficult to distinguish between such cases and those where there is reasonable suspicion of fraud; for such negligence generally justifies such suspicion. But that the law makes this distinction is certain.

There have been many different classifications of the kinds of bailments; (d) but we prefer and shall use that of Sir William * Jones, which varies somewhat from Lord Holt's.

And we shall speak successively of

First, DEPOSITUM or deposit without compensation or reward. Second, MANDATUM, or gratuitous commission, wherein the mandatary agrees to do something with or about the thing bailed. Third, COMMODATUM, or loan, where the thing bailed is lent for use, without pay, and is to be itself returned.

Fourth, PIGNUS, or pledge, where the thing bailed is security for debt.

Fifth, LOCATIO, or hiring, for a reward or compensation.

SECTION I.

DEPOSITUM.

Where a thing is placed with a depositary, to be kept for a time, and returned when called for, the depositary to have

no

*

compensation, the benefit of the transaction is wholly 90 on the side of the bailor, and the bailee is liable only for gross negligence. (e) By the Roman law he was answerable only

ment into two sorts, to keep, and to employ. 3. COMMODATUM, or loan for use; when goods are bailed, without pay, to be used for a certain time by the bailee. 4. PIGNORI ACCEPTUM, when a thing is bailed by a debtor to his creditor in pledge, or as a security for the debt. 5. LOCATUM, or hiring, which is always for a reward; and this bailment is either, 1. Locatio rei, by which the hirer gains the temporary use of the thing; or, 2. Locatio operis faciendi, when work and labor, or care and pains, are to be performed or bestowed on the thing delivered; or, 3. Locatio operis mercium vehendarum, when goods are bailed for the purpose of being carried from place to place, either to a public carrier, or to a private person." See Jones on Bailm. 35.

(e) This has been the clearly established law ever since the case of Čoggs v.

Bernard. Lord Coke, however, in Southcote's case, 4 Rep. 83 b, and in Co. Lit. 89 a, laid down a different rule. He stated the law to be, that a gratuitous bailee must answer for the goods delivered to him at his peril, unless he has made a special agreement to take such care of them only as he takes of his own goods; "for to be kept and to be safely kept is all one in law." But the profes sion seem never to have been satisfied with Lord Coke's rule. For it was denied to be law in 33 Car. II. by Pemberton, C. J., in the case of Rex v. Hertford, 2 Show. 172, and again in 13 Wm. III. by Holt, C. J., in the case of Lane r. Cotton, 12 Mod. 472, 487; and finally it was expressly overruled by the whole Court of Queen's Bench, in 2 Anne, in the case of Coggs v. Bernard. And Holt, C. J., in the latter case, said, that the rule stated in the text

1 That national banks have the power to receive special deposits as incidental to their business, and when received gratuitously are liable for gross negligence, see Pattison v. Syracuse National Bank, 80 N. Y. 82, where the authorities on the liability of banks for special deposits are collated. To the same effect are Lyons Bank v. Ocean Bank, 60 N. Y. 278; National Bank v. Graham, 79 Pa. St. 106; Chattahoochee Bank v. Schley, 58 Ga. 369. See also Scott v. Chester Valley Bank, 72 Pa. St. 471. Contra, Whitney r. Brattleboro Bank, 50 Vt. 388; Wiley v. Same, 47 Vt. 546. See Shoemaker v. Hinze, 53 Wis. 116, where the defendant was held absolutely liable for a sum of money given him to take care of and stolen from him. — K.

VOL. II.

7

97

*91 for fraud; for if the bailor thus deposited goods with a negligent person, he took upon himself the risk of negli gence. So it seems to have been held by Bracton, (f) who copied from the Roman law. But by the English and American law, such bailee is, as we have seen, liable for gross negligence, although he may have been wholly innocent of any fraudulent intent. It is impossible to lay down any rule or principle, which will be in all cases a reliable test as to what constitutes gross negligence. The question must always depend upon several circumstances; such as the nature and quality of the goods bailed, and the character and customs of the place where the trust is to be executed. What would amount to more than ordinary diligence in the case of a chattel of great bulk and little value, might be very gross negligence in the case of a bag of gold coin, or a parcel of valuable papers. Again, what would be a sufficient degree of diligence in a thinly peopled country, might be very culpable negligence in a thickly inhabited city. (g) It has been commonly stated by writers, and is said in some cases, that a depositary is not liable, as for gross negligence, if he shows that

he has taken as much care of the goods of the bailor as he * 92 has of his own; but this is not law, (h) and although *it

had always been acted upon at Guildhall, contrary to the opinion of Lord Coke, particularly during all of Chief Justice Pemberton's time, and ever since. The whole matter of the liability of a depositary was much discussed in the case of Foster v. The Essex Bank, 17 Mass. 479. The facts in that case were, that the plaintiff's testator had deposited at the Essex Bank, for safe keeping, a chest containing a large quantity of gold. Some time after the deposit was made, the gold was taken from the chest and put in a cask, from whence the greater part of it was fraudulently and secretly taken by the cashier and chief clerk, who appropriated it to their own use, and afterwards absconded, having also defrauded the bank of the greater part of its capital. This was done without the knowledge of any of the directors, or members of the corporation. The deposit in question was kept in the vault, in the same manner, and with the same care, as other special deposits, and as the specie of the bank; and the cashier and the clerk sustained fair reputations, until the time of their absconding. The court held, that the bank was not liable. See Gulledge v. Howard, 23 Ark. 61; Green v. Birchard, 27 Ind. 483; Bronnenburg v. Charman, 80 Ind. 475; Schermer v. Neurath, 54 Md. 491; McKay v. Ham

blin, 40 Miss. 472; Eddy v. Livingston, 35 Mo. 487, l'atterson v. McIver, 90 N. C. 493; Whitney First Bank, 55 Vt. 154; Carrington v. Ficklin's Exec. 32 Gratt. 670.

(f) Lib. 3, c. 2, fol. 99 b.

(g) It was held, in the case of Doorman v. Jenkins, 2 A. & E. 256, after much consideration, that the question of gross negligence was rather a question of fact for the jury than of law for the court. But this does not remove all difficulty from the question, what constitutes gross negligence. For it is obvious that the jury should receive instructions from the court to guide them in forming their judgment.

(h) It seems very clear that this is not a reliable test. For we have already seen that a depositary is liable for gross negligence, though a jury may be satisfied that he is wholly innocent of any fraudulent intent; and it is obvious that persons even who usually exercise great care, may in some instances be guilty of very gross negligence in the management of their own affairs. It seems also to be equally clear upon the modern authorities that it is no defence for a depositary who has, by his negligence, lost the goods intrusted to him, that he has been equally negligent in regard to his own