CH. XIV. s. 2. and so, if the goods are taken away from the bailee by a third party General Rules. who claimed by title paramount, this will excuse the bailee from redelivering; but a mere adverse claim is not sufficient; for a bailee cannot set up jus tertii against his bailor (b), unless he be defending an action upon the right and title of such third person (c); but he may institute interpleader proceedings (d). Different degrees of negligence. Effect of fraud, or ment. Secondly: Ordinary neglect has been defined to be, the omission of that care which every man of common prudence, and capable of governing a family, takes of his own concerns; gross neglect, to be the want of that care which every man of common sense, how inattentive soever, takes of his own property; and slight neglect, to be the omission of that diligence which very circumspect and thoughtful persons use, in securing their own goods and chattels (e). Thirdly Where actual fraud exists, the bailee is liable, whatever special agree may be the nature of his trust, even though the contrary be stipulated (ƒ);—a special agreement by any bailee, to use more or less than the exact degree of care the law would have required from him, is in general valid (g);-and where particular orders are given and assented to, they form the contract between the parties, and the law implies a promise by the bailee to perform such orders (h). Loss by violence, or act of God. Fourthly Although robbery by force is considered to be irresistible, a loss by private stealth is said to be presumptive evidence of ordinary neglect (i). Where a bailee seeks to excuse himself, on the ground that the loss arose from the act of God, it must appear that the loss was the immediate result of such act (j). (b) Ex parte Davies (1881), 19 Ch. D. 86, C. A., distinguishing Biddle v. Bond (1865), 6 B. & S. 225. And see Ross v. Edwards (1895), 73 L. T. 100. (c) Biddle v. Bond (1865), 6 B. & S. 225, approved in Rogers v. Lambert, [1891] 1 Q. B. 318, C. A. (d) Rogers v. Lambert, supra, per Lindley, L. J.; and see Robinson v. Jenkins (1890), 24 Q. B. D. 275, C. A. (e) Jones on Bailm. 118; and see per Lord Chelmsford, delivering judgment in Giblin v. M'Mullen (1868), L. R., 2 P. C. 317, 336. (f) Jones on Bailm. 119, s. 5, and SECT. 3.-Bailments without Reward. (a) For Custody. CH. XIV. s. 3. Reward (for Where there is a naked bailment without reward, of goods to be Gratuitous bailee only kept by the bailee, as where in the course of business bankers liable for receive, for safe custody in their strong-room, plate or scrip gross neglibelonging to their customers; such bailee is prima facie liable only for gross neglect, the burden of proof being upon those who attempt to charge the bailee (k). gence. articles. So where articles are sent unsolicited, as bottles of wine by an Unsolicited enterprising tradesman, in the hope of orders; or literary matter to a journal by an unknown contributor; or, as in Howard v. Harris (1), a manuscript play to a theatrical manager; the recipient bailee will only be liable as a finder for wilful negligence as beyond mere loss from carelessness (m). But his duty will be enlarged, and he will become responsible for ordinary neglect, if he spontaneously and officiously propose to keep the goods (n); or if he change his character as bailee, by taking charge of the goods in consequence of any reward or lucrative contract (o). And it must be borne in mind that, to exempt a gratuitous bailee from liability, it is not sufficient merely to show that he has kept goods deposited with him, in the same manner as he kept his own; although this degree of care will, generally, repel the presumption of gross negligence (p). And where valuables or scrip are so deposited with bankers in locked boxes or sealed parcels for safe custody, the bailee has no right to open the box or parcel, and the contents of such box are not subject to any lien for previous or subsequent debts of the customer; such having been deposited for custody and not by way of security (q). (k) Giblin v. M'Mullen (1868), L. R., 2 P. C. 317, 339; Doorman v. Jenkins (1834), 2 A. & E. 256; Jones on Bailm. 45, 46; Coggs v. Bernard (1704), 2 Ld. Raym. 909. And see Trefftz v. Canelli (1872), L. R., 4 P. C. 277; In re United Service Co., Johnston's Claim (1871), L. R., 6 Ch. 212. As to the duty of excise officers, to take care of goods seized after the penalty has been paid, see Hutchings v. Morris (1827), 6 B. & C. 464. (1) Howard v Harris (1884), C. & E. 253. (m) See Beven on Negligence, pp. 907, 908, where Howard v. Harris, ubi sup., is explained and commented on, and the correctness of the reported ruling of Watkin Williams, J., that as the plaintiff had chosen voluntarily to send to the defendant what the defendant had never (n) Jones on Bailm. 48; see Nelson v. (0) Jones on Bailm. 49. (p) Giblin v. M'Mullen (1868), L. R., 2 P. C. 317, 339; Rooth v. Wilson (1817), 1 B. & Al. 59; Doorman v. Jenkins (1834), 2 A. & E. 256; Coggs v. Bernard (1704), 2 Ld. Raym. 914, 915; In re United Service Co., Johnstons Claim (1871), L. R., 6 Ch. 212. (1) Leese v. Martin (1873), L. R., 17 Eq. 224, following the opinion of the House of Lords in Brandao v. Barnett (1846), 12 Cl. & F. 787. No lien on such deposits. CH. XIV. s. 3. without But where goods have been sent to an exhibition for display, even a loan collection of pictures, this is not a gratuitous bailment, Reward (for for the owner gains by reason that the value of his property may be Custody). enhanced by the exhibition (r). Loan for exhibition not gratuitous. Gratuitous mandatory negligence. (b) To do some Act about the Thing bailed. Here, as in the last case, the bailor derives an advantage from liable for gross the gratuitous exertions of the bailee; and, consequently, the latter is bound only to ordinary diligence, and is not liable unless gross negligence be proved against him (s). Thus, a stage-coachman is not liable for the loss of a parcel, which was intrusted to him to carry without reward, unless there has been great carelessness in his conduct with reference thereto (t). Rule where his profession implies skill. Riding horse to display for sale. Carrier ware housing before carriage. If the situation or profession of a gratuitous mandatory be such as to imply skill, an omission to use that skill is imputable to him as gross negligence (u). Thus if A., a general merchant, undertake voluntarily and without reward, to enter at the custom-house for exportation a parcel of goods of B., together with a parcel of his own of the same sort, but he makes the entry under a wrong denomination, whereby both parcels are seized; A.,—having bonâ fide taken the same care of the goods of B. as of his own, not having received any reward, and not being of a profession or employment which necessarily implied skill in what he had undertaken, is not liable for the loss occasioned to B. (x). But if in this case a ship-broker, or a clerk in the custom-house, had undertaken to enter the goods, a wrong entry would have been gross negligence in him; because his situation and employment necessarily imply a competent degree of knowledge in making such entries. So a person who rides a horse gratuitously, at the owner's request, for the purpose of showing him for sale, is bound in so doing to use such skill as he actually possesses and if he be proved to be a person conversant with and skilled in horses, he is as much liable as a borrower would be, for an injury done to the horse whilst being ridden by him (y). So a carrier who receives goods into his warehouse, for the purpose of their being carried for hire when orders to that effect shall be given, is not, whilst the goods are in his care as a ware (r) Beven on Negligence, vol. 2, p. 920, citing Vigo Agricultural Society v. Brimfel, 52 Am. R. 657. (s) 1 Smith, L. C.: Jones on Bailm. 120, 123; Shiells v. Blackburne (1789), 1 H. Bl. 159; 2 R. R. 750; Mytton v. Cock (1739), 2 Str. 1099. (t) Beauchamp v. Powley (1831), 1 Moo. & R. 38. (u) Wilson v. Brett (1843), 11 M. & W. 113. (x) Shiells v. Blackburne (1789), 1 H. Bl. 159; 2 R. R. 750. (y) Wilson v. Brett (1843), 11 M. & W. 113. houseman, a gratuitous bailee within the rule we are now con- CH. XIV. s. 3. sidering, although he make no charge for warehousing (z). (c) Loan for Use. Bailments without Reward (for borrower. When goods are bailed, to be used for a certain time by the Liability of bailee without pay, then, as the lender must be taken to lend for the beneficial use of the borrower, the latter is not responsible for reasonable wear and tear. But he is liable for negligence, for misuse, for gross want of skill in the use, and, above all, for anything which may be qualified as legal fraud (a). So he is liable if the goods be purloined from him, provided this happened through his want of ordinary care (b). So the borrower has no right to deviate from the conditions of the loan. Thus, if a horse be lent Horse. to a person to ride, this will not entitle him to allow the horse to be ridden by his servant (c). But where a horse was for sale, and the vendor allowed the defendant to have the horse in order to try it it was held that he had a right to allow a competent person to ride the horse for that purpose (d). lender. On the other hand, the lender is responsible to the borrower, if Liability of he is aware of any defect in the chattel, with reference to the use for which he knows the loan is accepted, and owing to which defect, directly, the borrower is injured (e). SECT. 4.-Bailment in Pledge. (a) Generally. actual or constructive, The general property in the goods pledged remains in the pledgor, Delivery, but a special property in them passes to the pledgee in order that he may be able to sell if his right to sell arises (ƒ). But there must essential; be an actual delivery by the pledgor of the articles pledged, either to pledgee, or to a warehouse for him with receipt given, or where the possession itself is practically impossible, possession may be given by the delivery of a key, the symbol of possession, but the delivery of the key "in order to amount to constructive possession, CH. XIV. s. 4. must be under such circumstances that it really does pass full control of the place to which admission is to be gained by means of (Generally). the key" (g). Bailment in Delivery of nossessioncont. except as to goods at sea. Pledge of bills To such a pledge neither the Bills of Sale Act, 1878 or 1882, applies; it is left to be dealt with at common law, and is outside those statutes altogether (h). But this necessity as to delivery of possession does not apply to goods at sea, or bills of lading which are specially excepted from the operation of the Bills of Sale Acts, 1878, 1882, and it is expressly provided by s. 3 of the Factors Act, 1889, that "a pledge of the documents of title (i) to goods shall be deemed to be a pledge of lading, &c. of the goods," though previous to that Act it had been decided by the House of Lords that while goods are at sea, or so long as the engagement of the shipowner is not completely fulfilled, the bill of lading is a living instrument, and the pledge of it is equivalent to delivery by way of pledge of the goods themselves, but such pledge only passed a "special" and not a general property in the goods (j). By the bailment of goods by a debtor to his creditor in pledge, or as a security for a debt-the pledgee impliedly undertakes to deliver back the property to the pledgor, when the sum for which it was pledged is paid; and the pledgor impliedly undertakes that the property pledged is his own, and may be safely returned to him (k), but if the pledgee has notice of the infirmity of the pledgor's title, or of facts putting him on his inquiry, the pledgee will not get a good title if he neglects to make the inquiry (1). If, however, the pledgor, having regained possession of the pledge, although by a fraud on the pledgee, parts with the goods to a third person, bonâ fide and for a good consideration, an action will not lie by the pledgee, to recover the goods or their value from such third person (m). Where the pledgee has the custody of the pledge, he is answerable for ordinary neglect (n), so that he shall not be discharged if the pledge be simply stolen from him, unless he can show that (g) Per Kekewich, J., in Hilton v. Tucker (1888), 39 Ch. D. 669; where he further decided-following Reeves v. Capper (1838), 6 Scott, 877-that the delivery of possession may be subsequent to the money advance, so long as it is in honest fulfilment of the contract. As to " apparent possession of the grantor, see s. 4 of the Bills of Sale Act, 1878. (h) Hilton v. Tucker, ubi sup., following Ex parte Hubbard, ubi sup. ; see, however, Mills v. Charlesworth (1890), 25 Q. B. D. 421. (i) For definition of documents of title, see ante, p. 266 (m). (j) Barber v. Meyerstein (1870), L. R., 4 H. L. 317; Sewell v. Burdick (1884), 10 App. Cas. 74. (k) Per Parke, B., Cheesman v. Exall (1851), 6 Exch. 341. (1) Sheffield v. London Joint Stock Bank (1888), 13 App. Cas. 333. (m) Babcock v. Lawson (1880), 5 Q. B. D. 284, C. A. (n) Jones on Bailm. 75, 76; Coggs v. Bernard (1704), 2 Ld. Raym. 917. |