or unusual, the delivery may often be constructive and symbolical merely. A written transfer of the muniments of title is often deemed a sufficient transfer of the right of immediate possession, and the same is true of the delivery of a key to a warehouse.

The main question is the question of intent and of the right to the immediate possession, and the making it possible by the delivery of the written muniments, the key, the bill of lading, or the certificate, for the bailee to take the possession when he desires to do so. There must, of course, in all cases be an acceptance as well as an offer. Proof of this acceptance, however, as well as of the offer, may be derived from acts of the parties as well as from their words. So, too, it is essential to every bailment that there shall be an agreement to redeliver, and it has been said that the test of a bailment as opposed to a barter or to a sale, is the agreement, express or implied, to redeliver the article or thing bailed, either to the bailor or to some one to whom he may direct the delivery to be made. This contract to redeliver, however, does not necessarily involve a redelivery in the same form as that in which the goods were originally received. Logs, may, for instance, be agreed to be returned after having been manufactured into boards, or grain after having been converted into flour.

It has even been held that the relationship of bailor and bailee exists where grain is stored in an elevator and is by usage or agreement mixed with the common mass of grain there kept, and the return is to be made of grain of the same grade and quality, and, not necessarily of the same kernels, although the common-law rule is that where the goods of several persons are by consent so intermixed that the particular portion or goods of each can no longer be distinguished, the several proprietors will have a property in common, in the whole, according to their respective portions put in mass, and, since the property of each is incapable of identification, replevin will not lie for an undivided interest or share. Generally speaking, however, the bailment of an article presupposes a return of the same com

modity even though it be not in its original form, and a contract to redeliver anything else will be deemed generally to constitute a barter or sale, and not a bailment. It is only, indeed, "where the property, like grain in an elevator, is from its nature practically incapable of distinction and where the storage is generally understood to result in the commingling of the same, that a warehouse or other receipt can be satisfied by the delivery of other grain even though of the same grade, quality, and quantity as that stored, and no such rule prevails where the property stored is of a kind that it may be, and usually is, kept separate and by itself."

§ 2. Classification. Bailments may be divided into two general classes: (1) the ordinary; and (2) the extraordinary. The ordinary bailments may in turn be divided into three classes: (1) those which are for the sole benefit of the bailor; (2) those which are for the sole benefit of the bailee; and (3) those which are for the mutual benefit of both the bailor and the bailee. The extraordinary bailments may also be divided into two classes: (1) those which are quasi-public in their nature, as in the case of innkeepers, and common carriers; and (2) those which are public in their nature, as in the case of postmasters and similar governmental agencies.

§3. Roman Classification; Bailments for Sole Benefit of Bailor. The Depositum and Mandatum. Belonging to the first class of the ordinary bailments, or to those which are for the sole benefit of the bailor, are those which are called in the Roman or Civil Law, whose terms are still used, the depositum and the mandatum. The depositum (deposit) is a bare naked bailment of goods which are delivered by one man to another to be kept or stored for the use of the bailor, for which service the bailee receives no personal benefit or reward. Since in this bailment the benefit is the bailor's only, the obligations and the liabilities of the bailee are very light. As far as the safekeeping of the goods is concerned, the bailee will only be held liable in case of loss or damage which is directly traceable to his gross or willful

negligence. Ordinarily, and in the absence of a special agreement, the place and manner of redelivery will be that which is most advantageous to him. This place is ordinarily his own residence or place of business. He, and all other classes of bailees are held, however, to an absolute liability to redeliver to the right person, irrespective of negligence, unless the mistake is due to the acts or negligence of the bailor himself.

The mandatum (an order) is in all respects similar to the depositum, with the exception, that the obligation assumed by the bailee is to do something to, or on, or to carry, the article bailed gratis, and not merely to store or keep the same. The law of bailments, however, it will be remembered, deals rather with the implied contract of care and custody than the express one to carry or to work upon. For this contract to carry or to work upon, there is, of course, a consideration in the mere fact of the entrusting by the bailor of the possession of his goods to the bailee. The liability for gross negligence merely, does not apply to this expressed contractual obligation. According to the most liberal of authorities, the mandatary or bailee who undertakes, without reward, to take care of a bailed article, or perform any duty or labor thereon or therewith, is required to use in its performance such care as men of common sense and common prudence, however inattentive, ordinarily take in the transactions of their own affairs, and he will be liable only for bad faith or gross negligence, which is an omission of that degree of care. But if he undertakes to carry goods or money or to pay money or to transmit it, or to do any work or labor upon the goods which requires the exercise of skill and judgment, he is bound to perform his undertaking under the degree of care required, and subject to the responsibility attached to such an undertaking. He is, in short, ordinarily called upon, even if the bailment be gratuitous, to exercise the skill which he holds himself out to possess and which is generally possessed by his brother laborers, mechanics, carriers or practitioners in the locality. § 4. Bailment for Sole Benefit of Bailee. The Com

modatum. Belonging to the second class, or bailments for the sole benefit of the bailee, is the commodatum (accommodation) of the Roman law and which is a loan of goods or chattels to another gratis, to be used by him. Since in this case the benefit accrues to the bailee alone, his liability and his duty are great. He is liable for the slightest degree of negligence in so far as the care and custody of the goods are concerned. As with the other classes of bailees, his duty to redeliver to the right person is almost absolute.

§ 5. Mutual-Benefit Bailments. The Locatio Class. Belonging to the third class, or bailments for the mutual benefit of both the bailor and the bailee, are the pignus, vadium, or pledge, and the so-called locatio (hiring) bailments of the Roman law. The pignus, or pledge, as the name clearly indicates, is the bailment of an article as a security for a debt or undertaking. It is, of course, mutual in its benefits, for without the pledge there would be no loan nor any forbearance. The locatio bailments, so-called, are divided into four classes :-(1) the locatio Rei, or the hiring of a thing for the use of the bailee; (2) the locatio operis faciendi, or the bailment of an article in order that the bailee may perform work or labor thereon for reward; (3) the locatio custodia, or the bailment of an article for reward in order that the same may be properly cared for; and (4) the locatio operis mercium vehendarum, or the bailment of an article in order that it may be carried for hire from one place to another. Belonging also to the locatio bailments are the extraordinary or exceptional bailments of the innkeeper, the common carrier and the postmaster, but of these we will speak later on.

§ 6. Mutual Benefits, What Constitute. In order that a bailment may come within the mutual benefit or locatio et conductio (letting and hiring) classification, it is not necessary that any formal consideration or compensation should be expressed or agreed upon; nor in ordinary cases where compensation is usually insisted upon and presumed-as is usually the case where one not a near relative performs work or labor or services at the solicitation and request of

another-will one be allowed to escape liability for a loss occurring from a lack of ordinary care by claiming that, though nothing was said upon the question, he really intended to ask nothing for his services. So, too, in order that the bailment may be considered as belonging to the gratuitous and not to the mutual-benefit class, it is necessary that there shall be an entire absence of any actual or contemplated benefit, or advantage to the bailee. In what is, perhaps, the leading American case upon the subject, a storekeeper was held liable as a bailee for hire of express which he allowed to be left at his store to be called for by his customers, when the only possible benefit to him was in the making of his store, in which liquor was sold, a sort of headquarters to which men would come, and where they would possibly make purchases.1

§ 7. Parties-Consideration. The parties to a bailment are termed the bailor and the bailee. The bailor is he who has the general property or right of possession in the chattel and who entrusts it to another; that other is termed the bailee. Any person who is competent to make a contract is competent to become either a bailor or a bailee. The relationship is essentially contractual, and ordinarily it requires not only a consideration and a legal subject matter, but a meeting of the minds and persons able and competent to contract. This competency, however, is necessary rather to the enforcement of a contract for a bailment, and to the express contract of the carriage of, or work upon, an article, than to the duty of care and custody when the article is once accepted; and there are cases also of bailments where the consent of one at least of the parties is absolutely lacking. One may, for instance, unintentionally leave his property with another or may lose it, and the other may find it and pick it up. It does not by any means follow, therefore, that a liability in damages can always be avoided by a plea of legal incompetency or of lack of consideration. The liability created by the express or implied contract, indeed, may be avoided, but not the duty to refrain from negligently injur1 Newhall v. Paige et al., 10 Gray, 366.