receives and in the present case 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 necessary that there should be a personal communication in order to make a special acceptance. The reason of a personal communication is that each party may know the other's mind; and therefore if they know each other's mind in any other manner, that is sufficient.-Gibbons v. Payton and another, E. 9 Geo. III. 4 Burr. 2298. 2 H. Bla. 299. As to Bailment.-If a common carrier be robbed, yet he is answerable; for nothing will excuse him but the act of God, or of the king's enemies ; [72] but he who has a particular employment (as a bailiff or factor) though he have a reward, yet he is not bound against all events, if he do to the best in his power.-Coggs v. Bernard, T. 1704. Raym. 909. And it is to be known that there are six sorts of bailments, which lay a care and obligation on the party to whom goods are bailed, and which consequently subject him to an action, if he misbehave in the trust reposed in him. Per Holt, C. J. in S. C. 1. A bare and naked bailment to keep for the use of the bailor, which is called depositum, and such bailee is not chargeable for a common neglect, but it must be gross one to make him liable.—Mytton v. Cock, 12 Geo. II. 2 Stra. 1099. S. P. (a). 2. A delivery of goods which are useful to keep, and they are to be returned again in specie, which is called accommodatum, which is a lending lenborough, C. J. "This is not the limits to which he confines it. Butler v. Heane, 2 Camp. 415. The notice in a carrier's office ought to be in such large characters that no persons delivering goods there can fail to read it without gross negligence; and if a carrier's servant receives goods at a distance from the office, the special terms on which he deals ought to be communicated through some other medium. Clayton v. Hunt, 3 Camp. 27. (a) If, therefore, a bailee receives goods to keep safely, and he is robbed, he shall answer for them in detinue. Sed secus if he undertake to keep them as his own goods, though in that case he would be answerable for damage arising from his own negligence. Kettle v. Bromsall, Willes, 121. gratis ; gratis; and in such case the borrower is strictly bound to keep them : for if he be guilty of the least neglect, he shall be answerable, but he shall not be charged where there is no default in him. (a) S. 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 so use he shall not be bound. (b) 4. A delivery by way of pledge, which is called vadium; and in such goods the pawnee has a special property; and if the goods will be the worse for using, the pawnee must 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 stolen, she shall not be charged; but if she go with them to a play and they are stolen, she shall be answerable. (c) So if the pawnee be at a charge in keeping them, he may use them for his reasonable charge; (d) and if notwithstanding all his diligence he lose the pledge, yet he shall recover the debt. (Manby v. Westbrooke, 19 Geo. 2. K. B.) (e) But if he lose it after the money tendered, he shall be chargeable, for he is a wrong-doer; after money paid (and tender and refusal is the same) it ceases to be a pledge, and therefore the pawnor may either bring an action of assumpsit, and declare that the defendant promised to return the goods upon request; or trover, the property being vested in him by the tender.-Ratcliffe v. Davies, T. 18 Jac. 1. Yelv. 178. 5. A delivery of goods to be carried for a reward, of which enough has been already said; 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 servant to be carried. (f) And if a price be alledged (a) As if a man lend another a horse to go westward, or for a month, and he goes northward, or stays more than a month, he shall be answerable. Bract. lib. iii. c. 2. 99, (b) But if the bailee had put this borrowed horse in his stable, and it was stolen, he shall not be answerable. Sed secus if he or his, servant had left the stable door open. bailee also shall not be liable in case of irresistible force. Ibid. A (b) Vide Bract. 62, (b); and the degree of diligence here required is such as the most discreet father of a family would use, but as no man can guard against robbery, no bailee shall be responsible for that. Buckmyr v. Darnall, 2 Raym. 1087. (d) As a horse or cow, which he may ride or milk. Bract. 99, (b) (e) Agreeable to this is 29 Assisar. 28; and so is Southcote's Ca. 4 Co. 83; though the reason given in Southcote's Case is, because the pawnee hath a special property in the pawn; but that is not the true reason, for the true reason is given in Lib. Assis. sup. viz. that the law requires nothing extraordinary of the pawnee, nor more than that he shall use ordinary care. (f) This point, however, is applicable to two sorts of persons, viz. those who are in public and those who are in private employ, the first of ledged in the declaration, it ought to be proved the usual price for such [ 78 ] a stage; and if the price be proved, * there need no proof, the defendant being a common carrier; but there need not be a proof of a price certain.-Per Holt, C. J. at Horsham, 13 W. 3. 6. A delivery of goods to do some act about them (as to carry) without a reward, which is called by Bracton, (lib. iii. 300.) mandatum, in English, an acting by commission; and though he be to have nothing for his pains, yet if there were any neglect in him, he will be answerable, for his having undertaken a trust is a sufficient consideration; but if the goods be misused by a third person in the way without any neglect of his, he would not be liable, being to have no reward. (a) of whom, namely, common carriers, are only considered in the text. But as to the second sort of persons, viz. bailees, factors, agents, and such like, though they have a reward for their management, they are only to do the best they can, and though they be robbed, it is a good account. Vere v. Smith, 1 Vent. 121. 2 Lev. 5. S. C. (a) That the obligation to restore a deposit flows from the nature and definition of the contract is clear, yet in Riches v. Brigges, Yelv. 4. Cro. Eliz. 883, where it was held that case lay against a man who had not performed his promise of re-delivering things bailed to him, the judgment was reversed; and soon after, in a similar case, judgment for the plaintiff was arrested. Vide Pickas v. Guile, Yelv. 128. The reversal, however, was said to be a bad resolution, and the contrary was afterwards solemnly adjudged in Wheatley v. Low, Cro. Jac. 667; and yet in that case there was no benefit to the defendant, nor any consideration but the having the money in his possession, and being trusted with it; that, however, was held to be a good consideration therefore a bare being trusted with another man's goods must be taken to be a sufficient consideration, if the bailee once enter upon the trust, and take the goods into his possession. Vide Morse v. Slue, 2 Lev. 69, in which case the arguments of the judges, in delivering judgment, are very elaborate and full of learning, well worthy the attention of the reader; and in that case it was laid down that a general bailment is not, nor can be taken to be a special undertaking to keep the goods bailed safely at all events; but if a man does undertake specially to keep goods safely, that is such a warranty as will oblige him to keep them safely against all perils, where he has his remedy over, but not against those where he has no such remedy. It is also to be observed, that in Morse v. Slue, the declaration was drawn by the ablest man in England, in which (as it always was in such cases) it was considered prudent to insert that a reward was to be paid for the carriage, and so it has been usual to put it in the writ where the suit is by original; and Lord Holt said thus much, that the law on this point should be settled, though he would not take upon himself to say he had so settled it. The learned Sir William Jones, in his Essay on the Law of Bailments, (p. 55) differs in some degree from the doctrine of Lord Holt, for he says that Lord Holt's division of bailments into six sorts is inaccurate, for in truth his fifth is only a branch of his third; and he might with equal reason have added a seventh, since the fifth is capable of a sub-division. Sir William Jones acknowledges but If the goods of a guest be stolen out of an inn, the innkeeper is answerable; but the plaintiff must prove that the defendant kept a common inn, and that he, his son, or servant, was a guest at the time, and that the goods were brought within the inn, and remained under the care of the defendant.-Beedle v. Morris, T. 1610. Cro. Jac. 221. Mo. 117. (a) If a man come to the inn with an horse, and leave the horse there for several days, and in his absence his horse be stolen, the owner is a sufficient guest to maintain an action; but it would be otherwise if he had left a trunk or other dead thing, by which the innkeeper would have no gain. (Gelley v. Clerk, M. 1608. Cro. Jac. 188.) If he desire the host to put his horse to grass, 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 hospitium. (Calye's Ca. E. 26 Eliz. 8 Co. 32.) So if the innkeeper refuse to receive him because his house is full, whereupon he says he will shift, and then is robbed, the host shall not be charged; but without such cause he cannot discharge himself by words only.- Bird v. Bird, 1 Anders. 29. Anon. M. 7 Eliz. Mo. 78. .five sorts, which he thus enume rates: 1. Depositum, which is a naked bailment (without reward) of goods to be kept for the bailor; and on this doctrine Benion's Ca. Mayn. Ed. II. 275. Fitzh. (Detinue) 59, is the earliest decision; but Sir IV. Jones says that case is wholly incomprehensible and then he proceeds to condemn the doctrine of Lord Coke, in Southcote's Ca. 4 Rep. 83, and afterwards introduced into 1 Inst. 89, that there is no difference between a special acceptance to keep safely, and a general one to keep, which Lord Holt equally reprobates in Coggs v. Barnard, after having examined all the antecedent authorities. 2. Mandatum, or commission, which is where the mandatory undertakes, without recompence, to do some act about the things bailed, or simply to carry them; and hence Sir H. Finch divides bailment into two sorts, to keep and to employ. 3. Commodatum, or loan for use, is where goods are bailed without pay, to be used for a certain time for the bailee; and this is one of the most useful and convenient species of bailment in society. 4. Pignori acceptum, which is where a thing is bailed by a debtor to his creditor in pledge to secure the debt. 5. Locatum, or hiring, which is always for a reward; and this is either locatio rei, by which the hirer gains the temporary use of the thing; or locatio operis faciendi, when work and labour, or care and pains, are to be done or bestowed on the thing delivered; or locatio operis mercium chendarum, when goods are bailed for the purpose of being car ried from place to place, either to a public carrier or to a private per son. (a) If a servant come into an inn, and ask to leave his master's goods till the next market-day, and the innkeeper refuses because his house is full of parcels, and the servant then sit down, and drink as a guest, and put the goods behind him, and they are lost, the innkeeper is liable to the master. Bennet v. Mollen, 5 T. R. 273. [74] In Yielding v. Fay, T. 1587. Cro. Eliz. 569, it was holden, that where by custom the parson 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 such an action, upon this distinction that it is a good plea to an action for a misfeasance, aliter to an action for non-feasance; for they are two negatives, which cannot make an issue any more than two affirmatives. And note, That in all cases where a damage accrues to another by the negligence, ignorance, or misbehavior of a person in the duty of his trade or calling, an action on the case will lie; as if a farrier kill my horse by bad medicines, or refuse to shoe him, or prick him in the shoeing, &c. &c. (Mulgrave v. Ogden, T. 1591. Cro. Eliz. 219.) (a) But it is otherwise where the law lays no duty upon him; as if a man find garments, and by negligent keeping they be spoiled. (b) (a) So if a surgeon injure his patient by his want of professional skill, this action lies. Seare v. Prentice, 8 East, 348. Et vide Slater v. Baker, 2 Wils. 359. S. P. If one who has hired a horse, instead of calling in a farrier to the horse when ill, undertakes to prescribe himself, and prescribes so improperly that the horse dies, he is guilty of a breach of the implied undertaking to exercise that degree of care which might be expected from a prudent man towards his own CHAPTER VII. OF CASE FOR CONSEQUENTIAL DAMAGES. AN action upon the case will likewise lie for consequential damages where the act itself is not an injury. As if a man who ought to inclose against my land, do not inclose, by which the cattle of his tenants enter into my land and do damage to me. (1 Rol. Abr. 105. c. 11.) (a) So, till 6 Ann. c. 31, (which enacts that no action shall be had against any person in whose house or chamber any fire shall accidentally begin, for any damage occasioned (a) In which case the action must be brought, not against the landlord, but the terre-tenant. Cheetham v. thereby, |