Against a Workman for using Bad Materials and Workmanship.

The plaintiff has suffered damage by breach of contract by the defendant in not completing the roofing of a house in a good and workmanlike manner, and with materials of the best description and quality.

at

Particulars:

The contract was made [state how, e. g., by letters dated, &c.]. The workmanship was bad in the following respects [state same].

The materials were not according to contract in the following respects [state same].

The damage sustained was as follows [state same].

Against a Coachmaker employed to repair a Carriage, for not using reasonable Care and Skill in repairing it (b).

The plaintiff has suffered damage from breach of contract of the defendant, who carries on business as a coachmaker, to use reasonable care and skill in repairing the plaintiff's carriage. Particulars: :

The contract was made [state how, e.g., orally].

The want of care and skill consisted in [state what, e.g., using ironwork of inferior quality, and placing unseasoned wood in the body of the carriage].

The plaintiff incurred £- expense in having the said carriage repaired properly in accordance with the said contract by another coachmaker.

v. Vyse, 2 H. & C. 42; 32 L. J. Ex. 77; M'Intosh v. G. W. R. Co., 2 Mac. & G. 74; Stevenson v. Watson, 4 C. P. D. 148; 48 L. J. C. P. 318.)

(b) A person who carries on a particular trade requiring skill, impliedly contracts that he will use reasonable skill in the exercise of such trade when employed in such trade. (Harmer v. Cornelius, 5 C. B. N. S. 236; 28 L. J. C. P. 85; Jenkins v. Betham, 15 C. B. 189.) If the work is useless owing to the workman's improper execution of the work he contracted to do with reasonable skill and care, such workman can recover nothing in respect of it. (Farnsworth v. Garrard, 1 Camp. 38; Montriou v. Jefferys, R. & M. 317; Denew v. Daverell, 3 Camp. 451; Huntley v. Bulwer, 6 N. C. 111; Kannen v. McMullen, Peake, 59.)

For a Statement of Claim by a Client against his Solicitor for Negligence in his Conduct of Work undertaken on the Client's Retainer, see "Solicitors," ante, p. 353.

For a Statement of Claim by a Patient against his Medical Attendant for Negligence in the Course of his Employment, see "Medical Practitioners," post, p. 471.

CHAPTER VI.

STATEMENTS OF CLAIM IN ACTIONS FOR WRONGS.

BAILMENTS (a).

Against a Bailee for Negligence in Keeping Goods.

The plaintiff has suffered damage from the negligence of the defendant in not safely keeping and taking proper care of

66

(a) See "Bailments," ante, p. 112; Conversion," post, p. 385; Detention," post, p. 408.

The duty of a person who lets out carriages for hire appears to be to supply a carriage as fit for the purpose for which it is hired as care and skill can render it. He is bound to take the same care as railway companies, or carriers who provide carriages for the public to travel in. (Hyman v. Nye, 6 Q. B. D. 625; see “ Carriers," ante, p. 179.)

The hirer of a carriage is liable for an injury to it occasioned by the negligent driving of his servant, even if the servant is not at the time acting in the course of his authorized employment. (The Coupé Co. v. Maddick, (1891) 2 Q. B. 413; 60 L. J. Q. B. 676.)

Bankers are not gratuitous bailees of documents or securities deposited with them by their customers in the ordinary course of their business as bankers under circumstances which would create a lien on them for the customers' general banking accounts. (In re United Service Co., L. R. 6 Ch. 212; 39 L. J. Ch. 730.)

Upon the gratuitous bailment of a chattel, lent for use, the liabilities and duties of the borrower and the lender have been laid down as follows:-The borrower is not responsible for reasonable wear and tear; but he is for negligence, for misuse, for gross want of skill in the use, above all for anything that may be qualified as legal fraud. So, the lender must be responsible for defects in the chattel with reference to the use for which he knows the loan is accepted, of which he is aware, and owing to which directly the borrower is injured. By the necessarily implied purpose of the loan a duty is contracted towards the borrower not to conceal from him those defects which may make the loan perilous, or unprofitable, to him. (Blakemore, or Blackmore, v. Bristol and Exeter Ry. Co., 8 E. & B. 1057, per Coleridge, J.; 27 L. J. Q. B. 167; Moffatt v. Bateman, L. R. 3 P. C. 115; and see further Heaven v. Pender, 11 Q. B. D. 503.) Accordingly, it was held that a gratuitous lender of a scaffold was not liable for an injury sustained by the borrower, which was caused by the defective construction of the scaffold of which the lender was not

B.L.

BB

certain goods, viz. [state what the goods were], which were entrusted by the plaintiff to the defendant to be by the defendant safely kept and taken care of [for reward to the defendant in that behalf].

Particulars of damage :

[State same.]

By a gratuitous Bailee of a Horse for Injuries caused him.

1. The defendant lent the plaintiff a horse to ride which was, as the defendant then knew, vicious, and in consequence dangerous to ride.

2. The plaintiff did not know that the horse was vicious or dangerous to ride, and the defendant, though aware that this was unknown to the plaintiff, did not inform him thereof.

3. The plaintiff in consequence rode the horse and was by reason of its vice aforesaid thrown from it and severely injured. Particulars :

BANKRUPTCY (a).

aware; although the jury found that he had been guilty of negligence in the construction, and that the injury was caused by that negligence. (M'Carthy v. Young, 6 H. & N. 329; 30 L. J. Ex. 227.) So, in the case of a gratuitous deposit for safe custody, the bailee is only bound to take ordinary care of the thing deposited, and is only liable if his negligence is such that an ordinarily prudent man would not be guilty of with regard to his own property. (Gibbin v. McMullen, L. R. 2 P. Č. 317; 38 Ľ. J. P. C. 25.)

(a) See "Bankruptcy," ante, p. 118.

Causes of action for wrongs committed against the bankrupt previously to the bankruptcy, where such wrongs affect the bankrupt's property, pass, in general, to the trustee in the bankruptcy; but causes of action for wrongs which are personal to the bankrupt do not, in general, vest in the trustee, and can only be sued upon by the bankrupt. (See "Bankruptcy,” ante, p. 121.)

The statement of claim in an action by the trustee should state the facts in such a manner as to show that the right of action is one which has vested in him as trustee.

Where a bankrupt has acquired property after the adjudication without interference by the trustee in his bankruptcy, and a wrong has been committed in respect of such property, the bankrupt, though undischarged, may maintain an action in his own name against the tortfeasor, unless and until the trustee intervenes (see "Bankruptcy," ante, p. 120), and accordingly the defendant in such case could not validly plead the facts of the bankruptcy, &c., as a defence, unless he also added an allegation that the trustee

Statement of Claim by a Trustee in Bankruptcy to recover Damages for a Wrong committed before the Bankruptcy and affecting the Bankrupt's Estate.

Between [A. B.], the Trustee of the property of

C. D., a bankrupt

E. F..

plaintiff, defendant.

Statement of Claim.

The plaintiff, who is trustee of the property of C. D., a bankrupt, claims as such trustee against the defendant for damages suffered by the said C. D. before he became bankrupt by, &c. [here state the wrong complained of as having been committed against the bankrupt's property before the bankruptcy, adding particulars, where necessary, as for instance, by the defendant wrongfully depriving the said C. D. of two casks of oil by refusing to give them up on demand. (See "Conversion," post, p. 390.)].

CARRIERS (a).

had intervened (Ib.). An assignment for value of such right of action by the bankrupt to a person dealing bona fide, though with knowledge of the circumstances, if made before such intervention, is good against the trustee. (Ib.)

An action will lie for maliciously, and without reasonable or probable cause, presenting a bankruptcy petition against a person, and causing him to be adjudged bankrupt, provided that the adjudication has been reversed or annulled before action. (Johnson v. Emerson, L. R. 6 Ex. 329, 368; 40 L. J. Ex. 201, 222; Metropolitan Bank v. Pooley, 10 App. Cas. 210; Quartz Hill, &c. Co. v. Eyre, 11 Q. B. D. 674; 52 L. J. Q. B. 488; see Malicious Prosecution," post, p. 459.) The bankrupt himself might sue in such case for the annoyance and personal injury thereby occasioned to him, but it seems that the right to damages in respect of any injury thereby occasioned to his property would pass to the trustee. (Metropolitan Bank v. Pooley, supra.)

(a) As to the duties and liabilities of carriers of goods by land, see "Carriers," ante, p. 170.

A common carrier is not liable as an insurer after the carriage of the goods to their destination, though they are not accepted by their consignee; after completion of the carriage the carrier is liable only for negligence. (Garside v. Trent Nav., 4 T. R. 581; and see Bourne v. Gatliffe, 3 M. & G. 643; 7 M. & G. 850; 11 Cl. & F. 45; Crouch v. G. W. Ry. Co., 2 H. & N. 491; 27 L. J. Ex. 345; Shepherd v. Bristol Ry. Co., L. R. 3 Ex. 189; 37 L. J. Ex. 113; G. N. Ry. Co. v. Swaffield, L. R. 9