354. Degree of Care.-This being a bailment for the benefit of both parties the bailee is required to exercise ordinary care and is liable for ordinary negligence.

355. The Debt.-From the definition of pledge it follows that in every case there must exist a debt or an obligation to perform some act for which the pledge be given. The pledge may be held until the debt, interest, and all necessary expenses incidental to its possession have been paid. Only by agreement can the pledge be made to cover obligations not yet incurred. The debt secured may be either absolute or conditional. It may be for the loan of money, or it may be for a conditional obligation, such as to indemnify the pledgee for becoming an indorser or surety for the pledgeor.

356. Delivery in Pledge.-Delivery of the pledged property to the bailee is absolutely essential to the establishment of the relation of pledgeor and pledgee, always having in mind such change of possession as the nature of the thing allows. As we have frequently remarked (sec. 169) advances are frequently made by way of pledge. upon the transfer of bills of lading and warehouse receipts. Stocks, bonds, notes, judgments, insurance policies, leases and mortgages may likewise be delivered as pledges by any means, that will put them in the control of the pledgee such as endorsement or power of attorney to endorse.

357. When Pledgee may use Property.-Whether the pledgee has the right to use the pledge or not depends on the nature of the pledge and the circumstances of the case. If a moderate use be essential to the preservation of the pledge, then such use would not only be justifiable but indispensable to a faithful discharge of the trust. But if its use would deteriorate the pledge then he should not use it.

358. Property of Pledgee in the Pledge. The pledgee has a special property in the pledge by virtue of the bailment, and may sue not only third persons, but the owner himself, for wrongfully interfering with his right of possession. Against third persons his measure of damages is the full value of the pledge, for he must account to the owner for that amount. The pledgee may in turn re-pledge his interest in the property to another.

359. Pledgeor's Right of Transfer.—While it is true the pledgeor has parted with his property for value, yet he has not parted with the

entire property in it, but still retains a right to redeem it by paying the debt for which his property is held. This right he can sell and assign to another, in which case the vendee will stand in the pledgeor's place.

360. Wrongful Pledge.-As the purchaser of personal property acquires no title as against the true owner who has not given his assent to the sale either expressly or by implication, so a pledgee who receives property from one not the true owner, acquires no title as against that owner. It is on this principle that stolen goods are often recovered by the owner from a pawnbroker, where they have been pledged by the thief.

361. Pledge Differs from Mortgage.-It has often been said that a pledge differs from a chattel mortgage in that when property is pledged the title remains still in the pledgeor; but when mortgaged it passes to the mortgagee, subject to a condition.

A clearer dis

tinction seems to be that in pledge the possession passes to the pledgee, while in a mortgage the possession usually remains with the mortgagor.

362. Remedies of Pledgee.-The pledgee has no remedies until the pledgeor is in default, after which, and while the debt remains. unpaid, he has the following: (1) To sue the pledgeor personally for his debt, without selling the pledge. (2) Electing to take his remedy upon the pledge, he can file a bill equity and obtain a decree of foreclosure. (3) He can give a reasonable notice to the debtor to redeem the pledge, and then at his option sell the pledge.

The sale must be open and public, and the actions of the pledgee free from fraud. The pledgee has no right to retain the pledge in satisfaction of his claim, for until disposed of in one of the regular ways mentioned above, he still holds it as a pledge, and must restore it upon being tendered the amount of the debt, interests and legal charges. It is said that he should not buy the pledge at his own sale, nor should he sell at private sale unless the conditions of the pledge permit it. If the proceeds do not pay his debt, he can sue for the deficit; and if the sale realizes more, he should account for the excess to the pledgeor. If the pledge consists of several chattels, one or more of which will satisfy his claim, he is not authorized to sell the remainder, but should hold them for the use of the owner. 58 So. W. Rep. 1068. 56 So. W. Rep. 1117.

363. Negotiable Paper an Exception.-It is held by the courts of many States1 that commercial paper, such as bonds, notes and mortgages, pledged as collateral security, cannot be sold in the absence of a special agreement, but must be held and collected as they become due. Where this is the case, the pledgee should secure the power of sale at the time of taking the pledge.

The business of Pawnbrokers is quite generally regulated by statute. They are often required to report daily to the police department what pledges they have taken for the day.

CHAPTER XXXI.

HIRE.

364. Introduction.-The fifth and last general class of bailment, that of hire, is without doubt the most important because the most comprehensive of all. It is a delivery of personal property to another to be used, or to have some labor or service performed upon it, and for a compensation. It is a case of hiring for a compensation the labor, care, or property of another.

365. Divisions.-The subject may be divided for convenience into four divisions or classes, viz.: (1) hire of things, (2) hire of services, (3) hire of custody, (4) hire of carriage. These will be separately treated.

HIRE OF THINGS.

366. Definition.-Hire of things is a contract whereby the bailee secures the use of the bailor's property for a consideration.

A is a liveryman. B hires from him a team and buggy to drive to a certain place. This is a case of hire of things.

367. Duty of the Letter. The letter should deliver the thing promptly and as agreed. If it has become broken or injured the hirer may refuse to accept it. It should be in a condition to be used as contemplated. The letter must not in any way interfere with the hirer's use of the thing, and he has no right to resume possession of

1 82 Ill. 548. 165 Mass. 402.

it during the period for which it was let.

Neither has he a right to give possession of it under a bill of sale, so that the hirer will be deprived of its use. The owner is bound to keep the thing in proper condition for use, but the hirer of an animal is bound for the expense of its keep.

368. Use of Thing Hired.-The hirer has a right to use the thing only in the manner and for the purpose for which it was hired. Should he use it for a different purpose he would become absolutely liable for any loss that might happen to it. This rule is not now so rigorously enforced as formerly.

A hired a horse for a certain journey, but unexpectedly meeting a friend turned aside to visit him, using all the while prudent care of the animal. The horse was injured by stumbling, and the hirer was held not liable.

Much latitude is now given the hirer in his proper enjoyment of the article, so long as it is used substantially for the purpose, and in the manner for which it was hired. But if pictures are hired for use in a dwelling, this would not authorize placing them on exhibition for hire. The hirer is entitled to the exclusive use of the thing hired but he must use it with care and moderation.

369. Degree of Care.-The hirer must use ordinary care and diligence and is responsible for ordinary negligence. He should restore the thing in as good condition as when received, ordinary wear and tear excepted, unless it has deteriorated through some cause beyond his control. If it be injured through no fault or neglect of his, and while he was making proper use of it, he will not be responsible, for the risk is the owner's.

A hired from B a horse and buggy to make a certain journey. While returning over the regular route A drove at a walk over a bridge which gave away and let the horse and buggy into the stream below. As a result the buggy was much damaged. A was not laible for the repairs to the buggy, for he was in no way to blame.

The hirer is not only responsible for his own default or negligence, but for that of his servants or children.

370. As to Animals.-It is the duty of the hirer of an animal to supply it with proper food, and should it become sick and unable to perform the service for which it was hired, the hirer should put it aside, and, if need be, secure another to complete his work or journey. The expense of this will devolve on the owner, for he has warranted by implication that the animal is capable of that for which it was hired.

371. Duties of the Hirer.-It is the duty of the hirer upon the termination of the bailment, to deliver the thing back to the letter, 'and to make recompense to him, if such recompense was not made in advance. He should deliver it back in proper condition.

HIRE OF SERVICES.

372. Definition. -Hire of services is a delivery of goods to another to have some work or service performed upon them for a compensation. It differs from commission, already treated, solely in the matter of compensation.

A watch is left with a watchmaker for repair. Paper is left with a printer on which he is to print certain matter. These are both cases of hire of services.

373. Duties of Workman.-A workman should do the work himself, unless from its nature or from the circumstances of the case it is understood that it is not a personal trust. If it be such work as is ordinarily done by proxy he may so do it, but unless the usages of trade sanction it, he should do it himself. The workman must use the materials furnished him, but if any are furnished by him they must be such as are proper for the use intended.

374. Skill Required.-A workman should do the work in a skillful and workmanlike manner, for the law presumes that every workman, who holds himself out as such, and thereby solicits the hire of his services, possesses the usual and ordinary degree of skill in that business. If any damage results from his lack of proper skill, though he may have done the best he could, he is liable, for he should not have undertaken it. The hirer had a right to presume by his acceptance of the trust that he possessed the usual skill. Of course it may have been expressly understood that he did not engage the usual skill and in that case the workman will not be liable.

When one employs a physician, who holds himself out as such, he has a right to expect that he brings to bear ordinary skill, that is, such skill as is usually possessed by the ordinary practicing physician, and if he does not, he will be liable for any damage which may result from his lack of such skill. The same is true of a practicing attorney. If he lose a case through his lack of proper skill he is liable to his client.

375. Care and Skill.-Care and skill are two entirely different things. The care to be used to free the bailee from liability is that