Commentaries on American Law (1826-30)

Chancellor James Kent

Of Bailment

BAILMENT is a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered.1

There are five species of bailment, according to Sir William Jones, in his correction of Lord bit s enumeration of the different sorts of bailments. (1.) Depositam, or a naked deposit without reward. (2.) Mandatum, or commission, which is gratuitous, and by which the mandatary undertakes to do some act about the thing bailed. (3.) Commodatum, or loan for use without pay, and when the thing is to be restored in specie. (4.) A pledge, as when a thing is bailed to a creditor as a security for a debt. (5.) Locatio, or hiring for a reward.2 I shall examine each of them in their order.

I. Of depositam.

This is a bailment of goods to be kept for the bailor, without a recompense; and as the hailee or depositary derives no benefit from the bailment, he is responsible, if there be no special undertaking to the contrary, only for gross neglect, or, in other words, for a violation of good faith.3 He is not answerable for mere neglect, if the goods be injured or destroyed while in his custody, if he take no better care of his own goods, and they be also spoiled or destroyed. Mere neglect, in such a case, is not gross neglect; since the latter implies a breach of good faith, and means the want of that care which every man of common sense, how inattentive soever, takes of his own property.4

The main inquiry in this case is, what is the duty, and what is. the responsibility of the bailee.

In Bonion’s case,5 the delpositary had a chest containing plate and jewels deposited with him. The chest was locked, and he was not informed of the contents. In the night his house was broken open, and plundered, as well of the chest with its contents, as of his own goods. An attempt was made to charge the bailee; but there was no foundation for the charge, since the bailee used ordinary diligence, and the loss was by a burglary; and it was accordingly held, that the bailee was not answerable. Such a bailee, who receives goods to keep gratis, is under the least responsibilty of any species of trustee. If he keeps the goods as he keeps his own, though he keeps his own negligently, he is not answerable for them, for the keeping them as he keeps his own is an argument of his honesty.6 “If,” says Lord Holt, “the bailee be an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open, by reason whereof the goods deposited are stolen, together with his own, he shall not be charged, because it is the bailor’s own folly to trust such an idle fellow.” As he assumes the trust gratuitously, he is bound to good faith. He is only answerable for fraud, or for that gross neglect which is evidence of fraud. Indeed, if such a bailee had undertaken to keep the goods safely, yet, as he has nothing for keeping them, he would not be responsible for the loss of them by violence.7

The Roman law was the same as to the responsibility of a depositary. He was only answerable under that law for fraud, and not for negligence. He was not answerable if the thing had been stolen from him, even though it had been carelessly kept. He who commits his goods to the care of a negligent friend, must impute the loss, not to his friend, but to his own want of prudence; or, as Bracton,8 who copied this rule from the Institutes of Justinian,9 observed, he must set down the loss to the account of his own folly.

Lord Coke10 laid down a different doctrine on the subject of the responsibility of a depositary. It was held in Southcote’s case, that where a person received goods to keep safely, and they were stolen by one of his servants, he was responsible to the bailor for the loss. The reason of the decision was, that there was a special acceptance to keep safely, and the case afforded an inference that the bailee had not used that ordinary care and diligence which such a special acceptance required, and the goods were stolen by one of his own servants. It is supposed by Sir William Jones,11 that the case itself may be good law; but the doctrine which Lord Coke deduced from it was not warranted by the case, nor by reason, or the general principles of law. Lord Coke said, there was no difference between a general acceptance to keep, and a special acceptance to keep safely; and he advised every one who received goods to keep, to accept specially to keep as his oven, and then he would not be responsible for the loss by theft. But the judges of the K. B. in Coggs v. Bernard,12 expressly overruled every such deduction from Southcote’s case; and they insisted that there was a material distinction between a general bailment and a special acceptance to keep safely. Lord Holt was of opinion, that Coke had improved upon Southcote’s case, by drawing conclusions not warranted by it; and this has been shown more fully, and with equal acuteness and learning, by Sir William Jones; and I would recommend what he says upon that case, as a fine specimen of juridical criticism.

If the depositary be an intelligent, sharp, careful man in respect to his own affairs, and the thing entrusted to him be lost by a slight neglect on his part, the better opinion would seen to be, that he then is responsible. Pothier, says,13 that this has been a question with the civilians, and he is of opinion, that the depositary would be liable in that case, for he was bound to that same kind of diligence which he uses in his own affairs, and an omission to bestow it was a breach of fidelity. But he admits that it would not be a very suitable point for forensic discussion, to examine into the character of the depositary; and that the inquiry into the comparative difference between the attention that he bestows on his own affairs and on the interest of others, would be a little difficult. An example is stated by Pothier,14 to test the fidelity of the depositary. His house is on fire, and he removes his own goods, and those of the bailor are burned; is he then responsible? He certainly is, if he had time to remove both. If he had not, Pothier then admits, that a breach of faith cannot be imputed to him, for having saved his own effects in preference to those of another entrusted to his keeping. But if the goods intrusted to him were much more valuable than hisown, and as easily removeable, then he ought to rescue the deposited goods, and to look to them for an average indemnity for the loss of his own.

There are several cases in which a naked depositary is answerable beyond the case of gross neglect. He is answerable, 1. When he makes a special acceptance to keep the goods safely. 2. When he spontaneously and officiously proposes to keep the goods of another. He is responsible in such a case for ordinary neglect; for he may have prevented the owner from entrusting the goods with a person of more approved vigilance. Both those exceptions to the general rule on the subject, are taken from the digest,15 and stated by Pothier and Sir William Jones. 3. A third exception is, when the depositary is to receive a compensation for the deposit. It then becomes a lucrative contract, and not a gratuitous deposit, and the depositary is held to ordinary care, and answerable for ordinary neglect; and the same conclusion follows, when the deposit is made for the special accommodation of the depositary.16 A warehouseman, or depositary of goods for hire, being bound only for ordinary care, is not liable for loss arising from accident, when he is not in default; and he is not in default when he exercises due and common diligence.17 In the case of goods bailed to be kept for hire, if the hire be intended as a compensation for house room, and not a reward for diligence and care, the bailee is only bound to take the same care of the goods as of his own; and if they be stolen by his servants, without gross negligence on his part, he is not liable. This was so ruled by Lord Kenyon, in Finucane v. Small.18

While on the examination of this contract of gratuitous bailment, and which Lord Host calls a depositam, I have been struck with the learning and sagacity of Sir William Jones. But after studying Lord Holt’s masterly view of the doctrine, and especially the copious treatise of Pothier, the admiration which was excited by the perusal of the English treatise has ceased to be exclusive. Pothier’s essay on that particular species of bailment, is undoubtedly superior in the extent, precision and perspicuity of its details, and in the aptitude of the examples by which he explains and enforces his distinctions.19

It has been made a question, whether the depositary could lawfully restore the article deposited, to one out of two or more joint owners, and when the thing was incapable of partition. Sir William Jones refers to a case in 12 Hen. IV. 18, abridged in Bro. tit. Bailment, pl. 4. where it was held, that one joint owner could alone bring the action of detinue against the bailee, for if they were to sue separately, the court could not know to which of them to deliver the chattel. The Roman law,20 states the case of a bailment of a sum of money sealed up in a box, and one of the owners comes to demand it. In that case, it is said the depositary may open the box, and take out his proportion only, and deliver it. But if the thing deposited cannot be divided, then it is declared, that the depositary may deliver the entire article to the one that demands it, on taking security from him for that proportion of the interest in the article which does not belong to him, and if he refuses to give the security, the depositary is to bring the article into court. This implies that it would not be safe to deliver the thing to one alone; and the rule was correctly laid down by Sir William Jones. The deposit cannot safely be restored by the bailee unless all the proprietors are ready to receive it, or one of them demands it with the consent of the rest.21

II. Of mandatum.

Mandate is when one undertakes, without recompense, to do some act for another in respect to the thing bailed.

If the mandatary undertakes to carry the article from one place to another, he is responsible only for gross neglect, or a breach of good faith. But if he undertakes to perform some work relating to it, he is then bound to use a degree of diligence and attention suitable to the undertaking, and adequate to the performance of it.22 In some cases he is answerable for slight neglect, and in others he is only bound to act with good faith.

A distinction exists between nonfeasance and misfeasance, that is, between a total omission to do an act which one gratuitously promises to do, and a culpable negligence in the execution of it. It is conceded in the English, as well as by the Roman law, that if a party makes a gratuitous, engagement, and actually enters upon the execution of the business, and does it amiss, through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance. But Sir William Jones contends, that by the English law, as well as by the Roman law, an action will lie for damage occasioned by the non-performance of a promise to become a mandatary, though the promise be purely gratuitous. There is no doubt that this is the doctrine of the civil law; but it was shown by the Supreme Court of this state, in Thorne v. Deas,23 that Sir William Jones had mistaken some of the ancient English cases on this point, and that the uniform current of the decisions from the time of Henry VII. to this day, led to the conclusion, that a mandatary, or one who undertakes. to do an act for another without reward, is not answerable for omitting to do the act, and is only responsible when he attempts to do it, and does it amiss. In other words, he is responsible for a misfeasance, but not for a nonfeasance, even though special damages be averred.24

In the great case of Coggs v. Bernard, the defendant undertook gratis to carry several hogsheads of brandy from one cellar, and deposit them in another, and he did it so negligently and improvidently, that one of the casks was staved, and the brandy lost. The K. B. held, that the defendant was answerable for the damage on the ground of his neglect and carelessness, though he was not a common carrier, and though he was to have nothing for his trouble. If the mischief had happened by any person who had met the cart in the street, the bailee would not have been chargeable, but the neglect or want of ordinary care in that case was a breach of trust; and a breach of trust undertaken voluntarily is a good ground of action. Lord Holt admitted, that if the agreement had been executory, or to carry the brandy at a future time, the defendant would not have been bound to carry it; but in the case before him the defendant had actually entered upon the execution of the trust, and having done so, he was bound to use a degree of diligence and attention adequate to the performance of his undertaking.

The case of Elsee v. Gatward25 is a decision of the K. B. to the same point. It was decided upon the doctrine of Coggs v. Bernard, and of the ancient authorities refer, red to by the court in that case. The court recognized, the justness of the distinction, that if a party undertakes to perform a work, and proceeds to the employment, he makes himself liable for any misfeasance in the course of that work. But if he undertakes without consideration, and does not proceed on the work, no action will lie against him for the nonfeasance, unless it be in special cases, at in the case of a common carrier, porter, ferryman, farrier or innkeeper, who are bound, from their situations in life, to perform the work tendered to them, or the employment assumed by them.

A similar decision to that in the K. B., was made in the C. B. in Shiells v. Blackburne.26 A general merchant undertook, voluntarily, and without reward, to enter a parcel of goods for another, together with a parcel of his own of the same sort, at the custom house, for exportation; but he made an entry under a wrong denomination, whereby both parcels were seized. It was held, that he was not liable for the loss, inasmuch as he took the same care of the goods of his friend as of his own, and had not any reward for his undertaking, and he was not of a profession or employment that necessarily implied skill in what he undertook. The defendant in that case acted with good faith, and that was all that could be required. The case would have been different, if a ship broker, or a clerk in the custom house, had undertaken to enter the goods, because their situation and employment would necessarily imply a competent degree of knowledge in making such entries. So, if a surgeon should undertake gratis to attend a wounded person, and should treat him improperly, he would be liable for improper treatment, because his profession implied skill in surgery. It was held to be an act of negligence sufficient to render a gratuitous bailee responsible, for him to have turned a horse, after dark, into a dangerous pasture to which he was unaccustomed, and by which means the loss of the horse ensued.27

If a mandatary undertakes specially to do the work, he may, like a depositary, be answerable for casualties. So, if he spontaneously and officiously offers to do the act, he way be responsible beyond the case of gross negligence, and be held to answer for slight lieglect.28 There is reason to believe, that this head of mandatum, in the Essay on Bailment, was not examined with perfect accuracy, when the distinguished author undertook to prove from the English law, what he certainly failed to show, that an action lay for the nonfeasance in promising to do a thing gratuitously, and omitting altogether to do it. The civil law did undoubtedly contain such a principle; and Pothier, in his elaborate treatise, on the contract of mandatum,29 adopts the powerful reasoning and very sound maxims of the civil law on the subject of the responsibility of the mandatary.30 But the English law, as has been abundantly shown from the cases already referred to, never carried the liability of the mandatary to the same extent.

III. Of commodatum.

This is a bailment, or loan of an article for a certain time, to be used by the borrower without paying for it. Such a borrower is responsible for slight negligence. This loan for use is to be distinguished from a loan for consumption, or the mutuum of the Roman law. The latter was the loan of corn, wine, oil, and other things that might be valued by weight or measure, and the property was transferred. The value only was to be returned in equal quantity, and the borrower was to bear the loss of them, even if destroyed by inevitable accident. In the case of the commodum, or loan for use, as a horse, carriage, or book, the same identical article or thing is to be returned; and as it is a loan without pay or reward, the borrower is liable for slight neglect.

The Roman and the English law coincide in respect to the conclusions on this head. The borrower cannot apply the thing borrowed to any other than the very purpose for which it was borrowed, nor keep it beyond the time limited, nor detain it as a pledge for any demand he may otherwise have against the bailor. If the article perish, or be lost by accident, without any blame or neglect imputable to the borrower, the owner must abide the loss.31 The owner cannot require greater care on the part of the borrower, than he had a right to presume the borrower was capable of bestowing. If a spirited horse be lent to a raw youth, and the owner knew him to be such, the circumspection of an experienced rider cannot be required, and what would be neglect in the one would not be so in the other.32

Pothier, who has given to the public an excellent treatise on this loan, says, that the borrower is bound to bestow upon the preservation of the thing borrowed, not merely ordinary, but the greatest care, and that he is responsible not merely for slight, but for the slightest neglect. The reason is, that this is a loan made gratuitously for the sole benefit of the borrower.33 But the borrower its not liable for the loss of the thing by external and irresistible violence; as if he hire a horse for a journey, and he be robbed of the horse, without any neglect or imprudence on his part.34 If, however, his house should be destroyed by fire, and he saved his own goods, and was not able to save the article borrowed without abandoning his own goods; in that case he must pay for the loss, because he had less care of the article borrowed than of his own property, and gave the preference to his own.35 But if his own goods were more valuable than the articles borrowed, and both could not be saved, was the borrower bound in that case to prefet the less valuable article borrowed?

Pothier admits this to be a question of some difficulty; but he concludes, that the borrower must answer for the loss, because he was not limited to bestow only the same care of the borrowed article as of his own. He was bound to bestow the exactest diligence in the preservation of it, and nothing will excuse him but vis major, or inevitable accident.36 The borrower is also responsible for the loss of the article even by vis major, when the accident has been owing to his own imprudence; as if he borrows a horse to ride, and he quits the ordinary and safe road, or goes at a dangerous hour of the night, and is beset by robbers, and loses the horse, he is liable.37 He is liable also for inevitable accident, if he had borrowed a horse of his friend in order to save his own, and concealed from his friend that he had one of his own equally proper for the occasion; as if a person borrowed of his friend a cavalry horse to use in battle, and concealed from him that he had one of his own, and the borrowed horse should be killed, he must pay for it, for this was a deceit practiced upon the lender; and nothing would exempt him from this responsibility but the fact that he had previously disclosed to his friend the truth of the case, and his disinclination to hazard his own horse.38 The borrower is also responsible for loss by inevitable accident, if he has detained the article borrowed beyond the time he ought to have returned it, for the loss is then to be presumed to have arisen from his breach of duty.39

I have taken these explanations of the degrees of responsibility. in the case of a borrower for use without reward, from Pothier. In Coggs v. Bernard, Lord Ch. J. Holt lays down the same rules precisely; and he took them from Bracton, who borrowed them from the civil law, the great fountain from whence all the valuable principles on the subject of these various kinds of bailments have been extracted. It was reserved, however, for Pothier, to methodize, vindicate, and illustrate those principles, by a clearness of analysis which is admirable; and to shed light and luster, by means of his chaste style and elegant taste, upon this branch of the science of jurisprudence.

IV. Of pledging.

This is a bailment or delivery of goods by a debtor to his creditor, to be kept till the debt be discharged. It is the pignori acceptum of the civil law; and, according to that law, the possession of the pledge (pignus) passed to the creditor; but the possession of the thing hypothecated (hypotheca) did not.40 The pawnee is bound to take ordinary care, and is answerable for ordinary neglect, and no more; for the bailment is beneficial to both the debtor and creditor. The pawnee is secured in the payment of his debt and the pawnor is enabled thereby to procure credit.

Lord Holt, in Coggs v. Bernard, gives a clear and excellent summary of the English law on this species of bailment. The pawnee has a special property in the goods pawned; and if they be such as to be injured by use, as clothes or linen, for instance, then the pawnee cannot use them. But if they be such as not to be the worse for use, as jewels, earrings, or bracelets pawned to a lady, she to whom they are pawned may use them, though the use is at her peril, because she is at no charge in keeping the pawn. She will be responsible in every event for the loss or damage which may happen while she is using the jewels. If the pawn be of such a nature as to be a charge upon the pawnee, as a horse or cow, he may, in that case, use the pawn in a reasonable manner. He may ride the horse moderately, and milk the cow regularly, as if he were the owner; and if he derives any profit from the pledge, he must apply those profits towards his debt.41

In general, the law requires nothing extraordinary of the pawnee, but only that he shall take ordinary care of the goods; and if they should then happen to be lost, he may, notwithstanding, resort to the pawnor for his debt. If however, he refuses to deliver the pawn on tender of the debt, his special property then ceases, and he becomes a wrongdoer, and will be answerable, at all events, for any loss or damage which may afterwards happen to the pawn.42 It was likewise admitted in Morse v. Conham, that the pawnee might assign over the pawn, and the assignee would take it under all the responsibility of the original pawnee.

If the pawn be stolen from the pawnee, he is prima facie liable; for it would be evidence that he had not used ordinary care, and it would lay upon him to show, by the circumstances, that he was in no default. Sir William Jones43 enters into a critical examination of the cases to prove that the pawnee is responsible, if the pawn be stolen or taken from him clandestinely, and not if it be robbed or taken from him by violence. The ground he takes is, that the loss of the pawn by theft is evidence of ordinary neglect; and he vindicates his principle against a contrary doctrine of Lord Coke, with great acuteness and learning. Lord Coke held,44 that if the goods were delivered to one in pledge, and they were stolen, he should not be answerable for them; for he only undertook to keep them as his own. The opinion of Lord Holt would rather seem to agree with that of Coke, as he refers to him on this point without objection; and he says, that if the pawnee uses true diligence, and the pawn be lost, he is not responsible. Bracton uses the same language. If the pawnee bestows an exact diligence, and the pawn be lost by chance, he is not responsible for the loss.45

Bracton took all his principles from the Roman law; and Pothier has written a particular treatise upon this identical species of contract.46 He discusses the question, what degree of care the pawnee is bound to bestow upon the pawn; and as it is a contract made for the reciprocal benefit of the contracting parties, the creditor is bound to bestow upon the preservation of the pledge ordinary care. He is bound, according to the civil law, to bestow that care which a careful man bestows upon his own property. He is not bound to bestow the exactest diligence, as in the case of a loan to use, which is beneficial to the bailee only, nor is he responsible for the smallest neglect. He is responsible for light, but not the lightest neglect, de levi culpa, and not de lexissima culpa.47

The rule would appear to be, that the pawnee was neither absolutely liable, nor absolutely excusable, if the pledge be stolen. It would depend upon circumstances, whether he was or was not liable. A theft may happen without even a slight neglect on the part of the possessor of the chattel; and I think it would be going quite far enough, to hold that such a loss is prima facie evidence of neglect, and that it lays with the pawnee to destroy the pre,uttrption. It is not sufficient, says Pothier, that the pawnee allede that the pledge is lost. He must show how it was lost, and that it was not in his power to prevent it. This was also the decision of the civil law.48

In the case of Cortelyou v. Lansing,49 it was shown, by a careful examination of the old authorities, to have been the ancient and settled English law, that delivery was essential to a pledge, and that the general property did not pay, as in the case of a mortgage, but remained with the pawnor. If the pledge was not redeemed by the stipulated time, it did not then become the absolute property of the pawnee, but he was obliired to have recourse to process of law to sell the pledge; and until that was done, the pawnor was entitled to redeem. If the pledge was for as indefinite term, the creditor might, at any time, call niion the debtor to redeem by the same process of demand. Where no time was limited for the redemption, the pawnor had his own lifetime to redeem, unless the creditor, in the mean time, called upon him to redeem; and if he died without such call, the right to redeem descended to his personal representatives. The English law now is, that after the debt is due, the pawnee has the election of two remedies. He may file a bill in chancery, and have a judicial sale under a regular decree of foreclosure; and this has frequently been done in the case of stock, bonds, plate, and other chattels, pledged for the payment of the debt.50 But the pawnee is not now bound to wait for a sale under a decree of foreclosure, as he is in the case of a mortgage of land; (though Lord Chancellor Harcourt once held otherwise;) and he may sell without judicial process, upon giving reasonable notice to the debtor to redeem. This was so settled in the cases of Tucker v. Wilson,51 and of Lockwood v. Ewer.52 The notice to the party in such cases is, however, indispensable. This was conceded in Tucker v. Wilson, and it has been since so ruled in this country.53

The old rule existing in the time of Glanville, and which is now the rule on the continent of Europe and in Scotland, required a judicial sentence to warrant the sale.54 The code Napoleon55 has retained the same check, and requires a judicial order for the sale; and the code of Louisiana56 has followed to same regulation. The civil law allowed the pawnee to sell it, case of default of payment on his own authority, but it required a two years notice to the debtor, by an ordinance of Justinian.57 The English and American law, with the exception of Louisiana. is peculiar in the prompt and easy remedy which it places in the hands of the creditor, when the pawn is not under the control of a special agreement. But the creditor will be held at his peril to deal fairly and justly with the pledge, both as to the time of the notice and the manner of the sale. The English law, especially in the equity courts, is vigilant and jealous in its circumspection of the conduct of trustees.

By the lex commissoria at Rome, the debtor and creditor might agree, that if the debtor did not pay at the day, the pledge should become the absolute property of the creditor. But a law of Constantine abolished this power, as unjust and oppressive, and having a growing asperity in practice.58 Every agreement preventing the right of redemption, in mortgages of chattels as of lands, would, no doubt, be equally condemned in the English law.

A lien upon a pawn may, by agreement, be created to extend to cover subsequent advances. This has been considered to be the law in respect to mortgages and judgments;59 but the power is subject to some qualification, as respects the rights of third persons. Lord Chancellor Cowper gave validity and operation to such a mortgage, as against a subsequent mortgagee, who had notice of the agreement appearing on the face of the first mortgage;60 and in Connecticut it has been justly held, that the mortgage must contain within itself reasonable notice of the encumbrances, by stating the nature of those thereafter to arise, and the manner in which they were to be created, so that collusion and fraud may be avoided, and the extent of the encumbrances ascertained, by the exercise of ordinary discretion and diligence.61 Though there be no express agreement that a pledge for a debt shall be held as a security for future loans, yet if circumstances warrant the presumption that a further loan was made upon the credit of the pledge, a court of equity will not suffer the debtor to redeein the pledge without payment of the further loan.62 If, however, there be no reasonable ground for such a presumption, the better opinion is, that the pawnee will not be allowed to retain the pledge for any other debt than that for which it was made.63

In Jarvis v. Rogers,64 this question was extensively discussed and the weight of opinion would seem to have been, that the pawnee could not retain the pledge, independent of a special agreement, for any other debt than that for which the chattel was specifically given, and that good faith would require the restoration of it, without deduction on account of any cross demand. This I think to be the better opinion. It was, however, stated in that case, that by the civil law the pawnee might retain the pledge, not only for the sum for which the pledge was taken, but for the general balance of accounts, unless there were circumstances to show that the parties did not so intend.65 And if the pawnor has only a limited interest in the articles pawned, the pawnee cannot hold them against the person entitled in remainder, after the particular interest has expired;66 and if a factor pledges the goods of his principal, the pawnee cannot detain them, not even to the extent of the loan.67

As every bailee has a qualified property in the subject of the bailment, and is responsible to the bailor in a greater or less degree for the custody of it, he, as well as the bailor, may have an action against a third person for an injury to the thing; and he that begins the action has the preference, and a judgment obtained by one of them is a good bar to the action of the other.68

V. Of locatum, or hiring for a reward.

This is the fifth and last species of bailment remaining to be examined. This letting to hire is of three kinds; locatio rei, by which the hirer, for a compensation in money, gains the temporary useof the thing; locatio operis faciendi, or letting out of work and labor to be done, or care and attention to be bestowed by the bailee on the goods bailed, for a pecuniary recompense; locatio operis mercium vehendarum, or when goods are bailed to a public carrier or private person, for the purpose of being carried from one place to another, for a stipulated or implied reward.69

(1.) In the case of the locatio rei, or letting to hire, the hirer gains a qualified property in the thing hired, and the owner an absolute property in the price. This is a contract in daily use in the common business of life; and it is very important that the rules regulating it should be settled with clear and exact precision. The hirer is bound only to ordinary care and diligence, and is answerable only for ordinary neglect. This is sufficiently shown by Sir William Jones, in his subtle, but perfectly judicious criticism on the cases in the English and the Roman law.70 The hirer is bound to bestow the same degree of diligence that all prudent men use in keeping their own goods; and if the thing hired be lost or damaged, by him, or by his servants acting under him, from the want of ordinary care and diligence, he is responsible. The care must rise in proportion to the demand for it; and things that may easily be deteriorated require an increase of care and diligence in the use of them. Negligence is a relative term; and the value of the article, and the means of security possessed by the bailce, are material circumstances in estimating the requisite care and diligence. That may be gross negligence in the case of a parcel of articles of extraordinary value, which in the case of another parcel, would not be so; for the temptation to theft is in proportion to the value.71 Gaius uses the word diligentissimus, when the rule is applied in the Roman law to the case of an undertaking to remove a column from one place to another.72

(2.) The case of locatio operis faciendi, is where work and labor, or care and pains, are to be bestowed on the thing delivered, for a pecuniary recompense; and the workman for hire must answer for ordinary neglect of the goods bailed, and apply a degree of skill equal to his undertaking. Every mechanic who takes any materials to work up for another in the course of his trade, as where a tailor receives cloth to be made into a coat, or a jeweller a gem to be set or engraved, he is bound to perform it in a workmanlike manner; he must bestow ordinary diligence, and that care which every man of common prudence, and capable of governing a family, takes of his own concerns. The bailee in this case is not answerable for slight neglect, nor for a loss by inevitable accident or irresistible force; he is only answerable for ordinary neglect.

The extent of the responsibility of an innkeeper for the horse or goods of his guest, whom he receives and accommodates for hire, has been a point of much discussion in the books. In general he is responsible for the acts of his domestics, and for thefts, and is bound to take all possible care of the goods and baggage of his guests deposited in his house, or entrusted to the care of his family or servants.

In Calye’s case,73 it was decided, upon the authority of the original writ in the register, (and which Lord Coke said was the ground of the common law on the subject,) that if a guest came to an inn, and directed that his horse be put to pasture, and the horse was stolen, the innkeeper was not responsible, in his character of innkeeper, for the loss of the horse. However, it was agreed in that case, that if the owner had not directed that the horse be put to pasture, and the innkeeper had done it of his own accord, he would be responsible. Perhaps this rule might admit of some limitations; for if the putting the traveler’s horse to pasture in the summer season be the usual custom, as it is in many parts of this country, the consent or direction of the owner to that effect would be fairly presumed.

It was laid down in the same case in Coke, that the innkeeper was bound absolutely to keep safe the goods of his guest deposited within the inn, and whether the guest acquainted the innkeeper that the goods were there, or did not, and that he would in every event be bound to pay for the goods if stolen, unless they were stolen by a servant or companion of the guest. The responsibility of the innkeeper extends to all the moveable goods and chattels of his guest which are placed within the inn, (infra hospitium,) but it does not extend to trespasses committed upon the person of the guest. It is no excuse for the innkeeper that he was, at the time the goods of his guest were lost, sick or insane, for he is bound to provide careful servants.74 In the modern case of Bennet v. Mellor,75 the responsibility of innkeepers was laid down with great strictness, and even with severity. The plaintiff’s servant came to an inn to deposit some goods for a week. The proposal was rejected, and the servant sat down in the inn as a guest, with the goods placed behind him, and very shortly thereafter they were stolen. It was held, that the innkeeper was liable for the goods, for the servant was entitled to protection for his goods during thetime he continued in the inn as a guest. It was not necessary that the goods should have been in the special keeping of the innkeeper, in order to make him liable. If they be in the inn, that is sufficient to charge him. It is not necessary to prove negligence in the innkeeper, for it is his duty to provide honest servants, according to the confidence reposed in him by the public, and he ought to answer civilly for their acts, even if they should rob the guests who sleep under his roof.

Rigorous as this law may seem, and hard as it may actually be in some instances, it is, as Sir William Jones observes, founded on the principle of public utility, to which all private considerations ought to yield. Travelers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innkeepers. and it would be almost impossible for them, in any given case, to make out proof of fraud or negligence in the landlord. The Roman praetor held innkeepers responsible for the goods of their guests, on the same principle of public utility. It was necessary to confide largely in the honesty of such men, and if they were not held very strictly to their duty, they might yield to the temptation to commit a breach of trust.76

The responsibility of innkeepers, to the full extent of the English law, has been recognized in the courts of justice in this country. Thus, in Quinton v. Courtney,77 the innkeeper was held liable for money stolen out of the saddle bags of the guest, which he had delivered to the servant, without informing him, or his master, that there was money in them. And in Clute v. Wiggins,78 the innkeeper was held responsible for a theft of bags of grain in a loaded sleigh of a guest, which had been placed for the night in a wagon or outhouse appurtenant to the inn, with fastened doors. The sleigh was deemed infra hospitium, and the innkeeper liable, without any negligence being proved against him.

Under so extended a responsibility, it becomes very important that the nature of inns and guests, and to whom the description applies, should be precisely understood.

In Calye’s case it was declared, that common inns were instituted for passengers and wayfaring men, and that a neighbor who was no traveler, and lodged at the inn as a friend, at the request of the innkeeper, was not a guest whose goods would be under special protection. A house merely for lodging strangers for a season who came to a watering place, and furnishing hay, and stable room for their horses, and selling beer to them, and to none else, has been held not to be a public inn.79 It must be a house kept open publicly for the lodging and entertainment of travelers in general for a reasonable compensation. If a person lets lodgings only, and upon a previous contract with every person who comes, and does not afford entertainment for the public at large indiscriminately, it is not a common inn.

In Thompson v. Lacy,80 this subject was fully discussed; and it was decided, that a house of public entertainment in London, where provisions and beds were furnished for travelers, and all others capable of paying a suitable compensation for the same, was a public inn. The owner was subject to all the liabilities of an innkeeper, even though he kept no stables, and was not frequented by stage coaches and wagons from the country, and even though the guest did not appear to have been a traveler, but to have previously resided in furnished lodgings in the city. A lodging house keeper was one that made a contract with every person that came; but an inn, said one of the judges in that case, is a house, the owner of which holds out, that he will receive all travelers and sojourners who are willing to pay a price adequate to the sort of entertainment provided, and who come in a situation in which they are fit to be received. If a guest applies for a room in an inn for a purpose of business distinct from his accommodation as a guest, the particular responsibility does not extend to goods lost or stolen from that room.81 Though a landlord cannot exonerate himself by merely handing over a key to his guest, yet if the guest takes the key, it will be a question of fact, whether he took it animo custodiendi, so as to exempt the landlord.

In this and other states, where inns and taverns are under statute regulations, their definition and character are contained in the statute. Inns and taverns in this state, are to be licensed82 by the commissioners of excise; and it is usually a part, though not an essential part of the license, to retail strong and spiritous liquors under five gallons. There are licenses merely to sell strong and spiritous liquors under five gallons, granted to merchants and grocers, but they cannot be sold to be drank in the house or store where merchant’s goods are sold; and there are other licenses to retail strong and spirit ous liquors granted to persons for the purpose of keeping an inn or tavern. Those persons so licensed are the true and proper innkeepers within the contemplation of our statute law, and probably the only persons to whom the rights and resposibility of an innkeeper attaches.

Every person to whom the license is granted for that purpose, must enter into a recognizance not to keep a disorderly inn or tavern; and the license is only to be given to persons of good moral character, and of sufficient abilities to keep an inn or tavern, and who have accommodations to entertain travelers. Every keeper of a public inn or tavern, except in the city of New York, is required by the act to keep at least two spare beds for guests, well provided, and good and sufficient stabling, grain, hay, or pasturage, for horses and other cattle belonging to travelers. Every innholder or tavernkeeper, who is licensed as such, is also required to put and keep up a proper sign on or adjacent to the front of his house; and every person who erects or keeps up such a sign without a license as an innkeeper, or sells spiritous liquors by retail to be drank in his house, outhouse, yard, or garden, without entering into recognizance as an innkeeper, is subjected to a penalty for every offense.

Such a license is deemed to be indispensable for retailing liquors; and it is a personal trust, and cannot be assigned so as to enable one man to keep a tavern under a license to another.83 It has, however, been held,84 that a person may act as a tavern keeper, and retail liquors without license, when he acts ex necessitate; as when the tavern licenses of the town are expired, and the commissioners of excise are prevented from meeting to renew them.

In the case of letting to hire, the bailee must exercise a care, diligence and skill, adequate to the business he assumes: and if he fails in the ordinary care and skill which belong to his undertaking, and the bailor sustains damage he must answer for that damage. If, however, the delivery was of a nature to transfer the property, a different result would follow. In the case of a delivery to a goldsmith of a bar of silver to be made into vases, or an ingot of gold to be made into rings, by the civil law the whole property passed to the smith, and the employer was merely entitled as a creditor to have metal equally valuable returned in a certain shape.85 If the metal in that case should be lost, even by irresistible force, the smith, as the owner of it, would be held to bear the loss, and the creditor to be entitled to his vase or ring; though it would be otherwise, if the same metal was to be returned in its new form.86

In the case of Seymour v. Brown,87 a quantity of wheat was sent to a miller to be exchanged for flour, at the rate of a barrel of flour for every five bushels of wheat. The miller mixed the wheat with the mass of wheat of the same quantity belonging to himself and others, and before the flour was delivered, the mill, with all its contents, was destroyed by fire. It was held, upon the question who was to bear the loss, that as there was no fault or negligence imputable to the miller, he was not responsible for the loss, and that the property was not transferred. It was considered, that there was no sale within the intention of the parties. If the same identical wheat was to have been returned in the shape of flour, the decision was correct, according to the general principles of law applicable to the case. But as it did not appear to have been understood, that the wheat delivered was to be kept separate, and returned in flour, but only flour equal to wheat of such quantity and quality, and as the miller himself acted upon that understanding, the decision was not conformable to the true and settled doctrine. There was in that case a transfer of the property in the wheat to the miller, and he was bound, at his own risk, and at all events, to have returned the flour.

(3.) The locatio operis mercium vehendarum, is a contract relating to the carriage of goods for hire; and this is by far the most important, extensive and useful of all the various contracts that belong to the head of bailment. The carrier for hire, in a particular case only, is answerable for ordinary neglect; but if he be a common carrier, he is answerable for all accidents and thefts, and even for a loss by robbery. He is answerable for all losses that do not fall within the excepted cases of the act of God, or public enemies; and this has been the settled law of England for ages; and the rule is founded on the same broad principles of policy and convenience which govern the case of innkeepers.88

Common carriers are those persons who undertake to carry goods generally, and for all people indifferently, for hire, and with or without a special agreement as to price.89 In this class of persons are included the owners of stage wagons and coaches, who carry goods, as well as passengers, for hire, wagoners, teamsters, cartmen, the masters and owners of ships, vessels, and all watercraft, belonging to internal, as well as coasting and foreign navigation, lightermen, ferrymen, and wharfingers. They are bound to do what is required of them in the course of their employment, if they have the requisite convenience to carry, and are offered a reasonable or customary price; and if they refuse without some just ground, they are liable to an action.90

In Morse v. Slue,91 it was decided, in the reign of Charles II by the court of K. B., upon great consideration, that the master of a vessel employed to carry goods beyond sea, in consideration of the freight, was answerable as a common carrier. It was admitted in that case, and afterwards declared by Lord Hardwicke in Boucher v. Lawson,92 that, the action lay equally against masters and owners of vessels. The doctrine in those cases has been recognized ever since,93 and it applies equally to the carrier of goods in the coasting trade from port to port,94 and to a bargeman and hoyman upon a navigable river,95 and to wharfingers.96 They are all liable in their respective characters as common carriers, and to the whole extent of inland carriers, except so far as they may be exempted by the exceptions in the contracts of the charter party and bill of lading, or by statute. There is no distinction between a land and a water carrier; and so it was declared by Lord Mansfield, and the other judges of the K. B., in the case of The Proprietors of the Trent Navigation v. Wood; and the carrier is equally liable for the acts of his servants or agents as for his own.97

The proprietors of a stage coach do not warrant the safety of passengers in the character of common carriers, and they are not responsible for mere accidents to the persons of the passengers, but only for the want of due care.98 It was held, also, by Lord Holt, that they were not answerable as carriers for the baggage of the passengers, unless a distinct price was paid for the baggage, and that it was not usual to charge for baggage unless it exceeded a certain amount in weight or quantity.99 Whenever the owner of the coach becomes answerable as a carrier for the safety of the baggage, he is not discharged in consequence of any particular care over his baggage which the passenger may have voluntarily assumed.100 The responsibility of the proprietors of post coaches is now usually so limited by means of special notice,101 as probably to render this point quite unimportant.

The books abound with strong cases of recovery against common carriers, without any fault on their part; and we cannot but admire the steady and firm support which the English courts of justice have uniformly and inflexibly given to the salutary rules of law on this subject, without bending to popular sympathies, or yielding to the hardships of a particular case. In Morse v. Slue, armed persons had entered on board the vessel in the night time in the river Thames, under pretense of impressing seamen, and plundered the vessel; and in Forward v. Pittard,102 the common carrier lost a parcel of hops by a fire, which in the night originated within one hundred yards of the place where he had deposited the hops, and, raging with irresistible violence, it reached and destroyed them.

The loss in both those cases was by inevitable misfortune, without the least shadow of neglect or fault imputable to the carrier; and yet Sir Matthew Hale in the one case, and Lord Mansfield in the other, delivered the unanimous opinion of the K. B. in favor of a great principle of public policy, which has proved to be of eminent value to the morals and commerce of the nation in succeeding generations. The rule was to prevent the necessit.y of going into circumstances impossible to be unravelled; and the law presumed against the public carrier, unless he could show it was done by public enemies, or such acts as could not happen by the intervention of man, as lightning and tempests. If it were not for such a rule, the carrier might contrive, by means not to be detected, to be robbed of his goods in order to share the spoil.103 Sheriffs and jailers, in respect to debtors in custody, have been placed under the same responsibility as common carriers.104

The common carrier is answerable for the loss of a box or parcel of goods, though he be ignorant of the contents, or though those contents be ever so valuable, unless he made a special acceptance.105 But the rule is subject to a reasonable qualification; and if the owner be guilty of any fraud or imposition in respect to the carrier, as by concealing the value or nature of the article, he cannot hold him liable for the loss of the goods. Such an imposition destroys all just claim to indemnity; for it goes to deprive the carrier of the compensation which he is entitled to, in proportion to the value of the article entrusted to his care, and the consequent risk which he incurs; and it tends to lessen the vigilance that the carrier would otherwise bestow.106

If goods be destroyed by necessity, as by throwing them overboard from a vessel or barge, for the preservation of the vessel and crew in a tempest, the carrier is not liable.107 The responsibility of the common carrier does not commence until there has been a complete delivery to him; and if, according to the usage of the business, it be a sufficient delivery to leave the goods on the dock, by or near the carrier’s boat, yet this must be accompanied with express notice to the carrier.108 When the responsibility has begun, it continues until there has been a due delivery by him, or he has discharged himself of the custody of the goods in his character of common carrier.109 There has been some doubt in the books, as to what facts amounted to a delivery, so as to discharge the common carrier. If it be the usage of the carrier to deliver goods at the house to which they were directed, he is bound to do so, and to give notice to the consignee.110

In Hyde v. The Trent and Mersey Navigation Company111 it was much discussed whether the carrier was bound to deliver to the individual at his house, or whether he discharged himself by delivery to a porter, at the inn in the place of destination. The opinion of the majority of the court, (though there was no decision on the point,) was, that the risk of the carrier continued until a personal delivery at the house or place of deposit of the consignee with notice. The actual delivery to the proper person, is generally conceded to be the duty of the carrier;112 and the consignee may take charge of the goods on their passage, and before they have arrived at the extreme or ultimate place of delivery, and the carrier’s risk will then terminate.113 In this state it was held, in Ostrander v. Brown,114 that placing goods on the wharf is not a delivery to the consignee, so as to discharge the carrier, even though there was a usage to deliver goods in that manner. The carrier must not leave the goods on the wharf, even though there be an inability or refusal of the consignee to receive them.

As carriers by water were liable at common law to the same extent as land carriers, and as their responsibility was more extensive, and their risk greater, from the facilities for fraud and violence upon the water, it was deemed in England a proper case for legislative interference to a guarded and limited extent. The statutes of 7 Geo. II. c. 15. and 26 Geo. III. c. 86. and 53 Geo. III. c. 159. exempted owners of vessels from responslhlllty as common carriers for losses by fire; and provided further, that the owner should not be liable for the loss of gold, silver, diamonds, watches, jewels, or precious stones, by robbery or embezzlement, unless the shipper inserted in the bill of lading, or otherwise declared in writing to the master or owner of the vessel, the nature, quality, and value of the articles; nor should he be liable for embezzlements without his fault or privity, beyond the value of the ship and freight; nor should part owners in those cases be liable beyond their respective shares in the ship and freight.115

We have no such statute provisions in this country; but according to the modern English doctrine, which may be applicable with us, carriers may limit their responsibility by special notice of the extent of what they mean to assume. The goods in that case are understood to be delivered on the footing of a special contract; and it is necessary, in order to give effect to the notice, that it be previously brought home to the actual knowledge of the bailee, and be clear, explicit, and consistent.116 The doctrine of the carrier’s exemption, by means of notice, from his extraordinary responsibility, is said not to have been known until the case of Forward v. Pittard in 1785;117 and it was finally recognised and settled by judicial decision in Nicholson v. Willan,118 in 1804. The language of the court in Bodenham v. Bennett,119 and in Garnett v. Willan,120 is, that those notices were introduced to protect the carrier only from extraordinary events, or from that responsibility which belongs to him as an insurer, and not from the consequences of the want of due and ordinary care and diligence. It has been strenuously urged in some of the cases, that there was no sound distinction as to the responsibility of the common carrier, between negligence and misfeasance of him or his servants. Be that as it may, it is perfectly well settled, that the carrier, notwithstanding notice has been given and brought home to the party, continues responsible for any loss or damage resulting from gross negligence or misfeasance in him or his servants.121

The English judges have thought that the doctrine of exempting carriers from liability by notice had been carried too far; and its introduction into Westminster Hall has been much lamented.122 I do not know whether the doctrine of restricting the responsibility of the carrier by notice, has been judicially established in this country; but I presume, it will readily be received, for there seems to be a disposition to abate the severity of the English rule.

In this state, the English law on the subject has been fully, explicitly, and repeatedly recognized in its full extent; and equally in respect to carriers by land and water, and equally in respect to foreign and inland navigation.123 In Elliott v. Rossell, the whole doctrine was extensively considered; and it was uuderstood and declared, that a common carrier warranted the safe delivery of goods, in all but the excepted cases of the act of God and public enemies, and that there was no distinction between a carrier by land and a carrier by water, and whether the water navigation was internal or foreign, except so far as the exception is extended to perils of the sea by the special terms of the contract contained in the charter party or bill of lading. It was further shown, that the marine law of Europe went to the same extent, as did also the civil law, and the law of those nations in Europe which have made the civil law the basis of their municipal jurisprudence. It was supposed to be a principle prevailing equally in our American courts; and the cases of McClure v. Hammond,124 and of Bell v. Reed,125 were referred to as evidence of that fact. The principle appeared to be sound and wise, and to have a very general reception among nations.

But the late case of Aymar v. Astor,126 would seem to have gone far to unsettle and reverse the former doctrine in this state, in respect to carriers by water. The case arose on error, from the Court of Common Pleas in New York, which had charged the jury that the owners of a vessel bringing goods from New Orleans to New York were liable as common carriers. The judgment was reversed on account of that charge; and it was held, that a master of a vessel was not responsible like a common carrier for all losses, except they happen by the act of God or the enemies of the country. He was responsible only for ordinary neglect; and it was a proper question of fact for a jury, whether the master had used ordinary care and diligence in carrying the goods.

In Pennsylvania, there has been a disposition also shown, to relax the stern policy of the English law in respect to carriers by water, though their Supreme Court have proceeded with great caution, and have not disturbed the rule in its foundations. It is adunitted,127 that the English law is the law in Pennsylvania, as to carriers by land; but with respect to carries by water, the law was considered as locally unsettled, particularly in respect to their interior waters, and as fairly open to investigation. The carrier on inland waters was held to be clearly liable for every accident which skill, care, and diligence could have prevented; but beyond that, it was competent for the common carrier to prove a usage different from the common law.128 In Louisiana it is also stated, that the owners of a steamboat are not liable to the freighters for a loss, when the boat was destroyed by fire, in a case where proper diligence had been used.129

It has been the settled law in England since the case of Lane v. Cotton, 130 that the rule respecting common carriers does not apply to postmasters, and there is no analogy between them. The post office establishment is a branch of the public police created by statute, and the government have the management and control of the whole concern. The post masters enter into no contract with individuals, and receive no hire, like common carriers, in proportion to the risk and value of the letters under their charge, but only a general compensation from government. In the case last referred to, the Post Master General was held not to be answerable for the loss of the exchequer bills stolen out of a letter while in the defendant’s office.

The subject was elaborately discussed in Whitfield v. Lord Le Despencer,131 and the same doctrine asserted. The Post Master General was held not to be responsible for a bank note by one of the sorters out of a letter in the post office. But a deputy postmaster is still answerable in a private suit for misconduct or negligence; as for wrongfully detaining an unreasonable time.132 The English law on this subject was admitted in Dunlop v. Munroe,133 to be the law of the United States, and a post master was considered to be liable in a private action for damages arising from misfeasance, or for negligence in his office in not safely transmitting a letter. Whether he was liable himself for the negligence of his clerks or assistants, was a point not decided; though if he were to be deemed responsible in that case, it would only result from his own neglect in not properly superintending the discharge of his duty in his office.

The general doctrines of agency and lien have a material bearing on this subject of bailment; but as they are essentially connected with mercantile transactions, their extent and importance will require a separate discussion.


     1.    2 Blacks Com. 452. Pothier, Traité du Contrat de Dép t, No. 1.
     2.    Jones’ Essay on the Law of Bailments, p.27, 1st edit. 1790.
     3.    Foster v. The Essex Bank, 17 Mass. Rep. 479, in which the doctrine of bailment was very ably and learnedly discussed.
     4.    Jones’ Essay, p. 90-93. Lord Holt, in Coggs v. Bernard, 2 Lord Raym. 913.
     5.    Year Book, 8 Edw. II. Fitz. Abr. tit. Detinue, p1. 59. and cited by Lord Holt in 2 Lord Raym. 914, and in Jones on Bailment, p. 28.
     6.    Wood’s Institutes of the Civil Law, 218.  
     7.    Lord Holt, in Coggs v. Bernard, 2 Lord Raym. 915. Jones on Bailment, p. 34.
     8.    Lib. 3. c. 2. 99. b.
     9.    Inst. 3. 15. 3.
   10.    Co. Litt. 89. a. b. 4 Co. 83.
   11.    Jones on Bailment, 32, 33.
   12.    2 Lord Raym. 909.
   13.     Contrat de Dép t, No. 27.
   14.    Ibid. No. 29.
   15.    Dig. 16. 3. 1. 35.
   16.    Pothier, ibid. n. 30, 31, 32. Jones on Bailment, 37, 38.
   17.    Garside v. The Proprietors of the Trent Navigation, 4 Term Rep. 581. Cailiff v. Danvers, Peake N. P. 114. Thomas v. Day, 4 Esp. N. P. 262.
   18.    1 Esp. N. P. Rep. 315,
   19.    Essay on Bailment, p. 39.
   20.    Dig. 16. 3. 1. 36.
   21.    May v. Harvey, 13 East, 197. The Code Napoleon says, that the depositary must not give up the thing deposited, except to the order of him who deposited it; and if he who made the deposit dies, and there be several heirs, it must be yielded up to them each according to his share and portion; and if the thing deposited cannot be divided, the heirs must agree among themselves as to the receiving it. Art 1937, 1939. The Civil Code of Louisiana has adopted the same provisions; art. 2920, 2922, and both those codes leave the inference to be drawn, that if the thing be indivisible, it cannot safely be delivered to one of two or more claimants, without their joint agreement or consent.
   22.    Wood’s Inst. of the Civil Law, 212. Jones on Bailment, 40. 93. Shiells v. Blackburne, 1 H. Blacks. 158.
   23.    4 Johns. Rep. 84.
   24.    Elsee v. Gatward, 5 Terra Rep. 143.
   25.    5 Term Rep. 143.
   26.    1 H. Blacks. 158.
   27.    Booth v. Wilson, 1 Barn. & Ald. 59.
   28.    Jones on Bailment, 41. 48. 94.
   29.    Traité du Contrat de Mandat.
   30.    See Dig. 17. tit. 1. and Inst. 3 tit. 27, and Code 4 tit. 35. on the Contract of Mandalum.
   31.    Noy’s Maxims, ch. 43. p. 91. Jones on Bailment, p. 49, 50.
   32.    Jones on Bailment, p. 49, 50. Pothier, Traité du Prêt à Usage, No. 49.
   33.     Traité du Prêt à Usage, No. 48, 49.
   34.    Ibid. No. 55, 66.
   35.    Ibid. No. 56.
   36.    Ibid. No. 56.
   37.    Ibid. No. 57.
   38.    Pothier, Traité du Prêt à Usage, No. 59.
   39.    Ibid. No. 60.
   40.    Dig. 13. 7. 9. 2.
   41.    Mores v. Conham, Owen, 123. Pothier, Contrat de Nantissement, 23, 35, 36. Civil code of Louisiana, art. 3135.
   42.    2 Lord Raym. 916, 917.
   43.    Essay on Bailment, p. 33, 59, 60, 62, 63.
   44.    Co. Litt. 89. a. 4 Co. 83. b.
   45.    Bracton. 93. b.
   46.    Pothier, Contrat de Nantissement.
   47.    Ibid. n. 32, 36.
   48.    Contrat de Nantissement. No. 31.
   49.    2 Caines’ Cases in Error, 200.
   50.    Demandray v. Metcalf, Prec. in Ch. 419. Gilbert’s Eq. Rep. 104. Kemp v. Westbrook, 1 Vesey, 278. Vanderzee v. Willis, 3 Bro. 21.
   51.    1 P. Wm. 261. 1 Bro. P. C. 494.
   52.    2 Atk. 303.
   53.    De Lisle v. Priestman, 1 Brown’s Penn. Rep. 179.
   54.    Glanville, lib. 10. c. 6 and 8. Huber’s Praelec tom. 3. 1072. s. 6. Perezius in Cod. tom. 2. 63. s. 8. Domat, vol. i, 362. s. 9, 10. Ersk. Inst. vol. 2. 455. Pothier, Contrat de Nantissement, No. 24.
   55.    Art. 2078.
   56.    Art. 3132.
   57.    Code 8. 34. 3. 1. See also Dig. 13. 7. 4.
   58.    Code 8. 35. 3. Hub tom. 3. 1038. s. 17. 1 Domat. 362. s. 11.
   59.    United States v. Hooe, 3 Cranch, 73. Skirras v. Caig & Mitchell, 7 Cranch, 34. Hendricks v. Robinson, 2 Johns. Ch Rep. 309. Livingston v. McInlay, 16 Johnson, 165. Lyle v. Ducomb, 5 Binney, 585.
   60.    Gordon v. Graham, 7 Viner, 52. E. pl. 3.
   61.    Pettibone v. Griswold, 4 Conn. Rep. 158. Stoughton v. Pascq, 5 Conn. Rep. 442.
   62.    Demandray v. Metcalf, Prec. in Ch. 419. 2 Vern. 691.
   63.    Ex parte Ockenden, 1 Atk. 236. Jones v. Smith, 2 Vesey, jun. 372. Vanderzee v. Willis, 3 Bro. 21. But see Adams v. Claxton,6 Vesey, 226, where the authority of the two last cases is somewhat disturbed.
   64.    15 Mass. Rep. 389.
   65.    Code, 8. 27. Heinecc. Elem. Jur. sec. ord. pand, p. 4. s. 46. and Hub. Praelec. lib. 20. tit. 6, s. 1. were referred to in support of the doctrine in the civil law, though there were other cases to show that good faith required a restoration of a deposit, upon payment of the specific debt only. Code 4. 31. 14. 4. 34. 11.
   66.    Hoare v. Parker, 2 Term Rep. 376.
   67.    Paterson v. Tash, 2 Str 1178. Daubigny v. Duval, 5 Term Rep. 604. McCombie v. Davies, 7 East. 5.
   68.    Flewellin v. Rave, 1 Bulst. 68. Booth v. Wilson, 1 Barn. & Ald. 59.
   69.    Jones on Bailment, 27. 90.
   70.    Essay on Bailment, p. 66-69.
   71.    Batson v. Donovan, 4 Barn. & Ald. 21.
   72.    Dig. 19. 2. 25. 7. Sir William Jones, in his Essay, p. 67 says, that the superlative diligentissimus was here improperly applied, and that it would be a case only of ordinary care. But Ferriere, in his Commentaries upon the Institutes, tom. 5. 138, thinks otherwise; and that Gaius was speaking of things that might easily be deteriorated, and would require the most exact diligence for their preservation. The case would depend upon circumstances. Gaius was speaking not of unhewn blocks of granite, but of columns, which implied, in the midst of the splendid architecture of Rome, productions of great labor and skill; and in such a case it would, no doubt, require the utmost attention, to avoid injury to the polished shaft or capital; and especially if that capital was finished in the Corinthian style, or surmounted by an entablature, adorned with all the beauty and elegance of the Grecian art.
   73.    8 Co. 32.
   74.    Cross v. Andrews, Cro. E. 622.
   75.    5 Term Rep. 273.
   76.    Dig. 4. 9. 1.
   77.    1 Haywood’s N. C. Rep. 40.
   78.    14 Johns. Rep. 175.
   79.    Parkhurst v. Foster, 1 Salk. 387. Carth. 417, S. C.
   80.    3 Barn. & Ald. 283.
   81.    Burgess v. Clements, 4 Maule & Selw. 306. Farnworth v. Packwood, 1 Ho1t’s N. P. 209.
   82.    Act for regulating Inns and Taverns, Laws of N.Y. sess. 24. ch. 164.
   83.    Alger v. Weston, 14 Johns. Rep. 231.
   84.    Palmer v. Doney, 2 Johns. Cas. 346.
   85.    Dig. 19. 2. 31.
   86.    Jones on Bailment, 78, 79.
   87.    19 Johns. Rep. 44.
   88.    Co. Litt. 89. a. 1 Rol. Abr. 2. c. pl. 5. Woodleife v. Curtis. Lord Holt in Coggs v. Bernard, 2 Lord Raym. 918. Lee, Ch. J in Dale v. Hall, 1 Wils. 231. Proprietors of the Trent Navigation v. Wood, 3 Esp. Rep. 127.
   89.    Gisbourn v. Hurst, 1 Salk. 249. Lawrence, J. in Harris v. Packwood, 3 Taunton, 264.
   90.    Jackson v. Rogers, 2 Shaw. 332. Lord Kenyon, and Ashhurst, J. in Elsee v. Gatwood, 5 Term Rep. 143. Holroyd, J. in 4 Barn. & Ald. 32.
   91.    1 Vent. 190, 238. 2 Lev. 69.
   92.    Cases temp. Hardw. 183.
   93.    See Goff v. Clinkard, cited in 1 Wils. 282.
   94.    Dale v. Hall, 1 Wils. 281. Proprietors of the Trent Navigation v. Wood, 3 Esp. 127.
   95.    Kich v. Kneeland, Cro. Jac. 338. Wardell v. Mourillyan, 2 Esp. N. P. Cas. 693.
   96.    Ross v. Johnson, 5 Burr. 2825.
   97.    Cavenagh v. Such, 1 Price’s Exch. Rep. 328.
   98.    Aston v. Heaven, 2 Esp. N. P. 535. Christie v. Griggs, 2 Campb. 79.
   99.    Middleton v. Fowler, 1 Salk. 282. Upshare v. Aidee, Comyn’s Rep. 25.
   100.    Chambre. J. in Robinson v. Dunmore, 2 Bos. & Pull. 416.
   101.    Clarke v. Grey, 6 East, 564.
   102.    1 Term Rep. 27.
   103.    Jones on Bailment, 79-85. Lord Holt in Coggs v. Bernard, 2 Lord Raym. 909. Barclay v. Heygena, cited in 1 Term Rep. 33. Trent Navigation v. Wood, 3 Esp. N.P. Rep. 127. Hyde v. Trent and Mersey Company, 5 Term Rep. 389.
   104.    Elliott v. Duke of Norfolk, 4 Term Rep. 789. Alsept v. Evles, 2 H. Blacks. 108. The Code Napuleon, and the Civil Code of Louisiana have declared in the same words that carriers and watermen were subject to the like obligations and duties as tavern keepers, and that they were responsible for goods entrusted to them, against loss and damages by theft or otherwise, unless they could show, that the loss proceeded from force majeure, or uncontrollable events. Code Napoleon, art. 1929, 1953, 1954, 1782, 1784. Code Louis, art. 2722, 2725, 2910, 2939.
   105.    Tichburne v. White, 1 Str. 145.
   106.    Gibbon v. Paynton, 4 Burr. 2298. Clay v. Willan, 1H. Blacks. 298. Batson v. Donovan, 4 Barn. & Ald. 21.
   107.    Mouse’s case, 12 Co. Smith v. Wright, 1 Caines’ Rep. 43.
   108.    Packard v. Getman, 6 Cowen, 757, and see also Selway v. Holloway, 1 Lord Raym. 46. Cobban v. Downe, 5 Esp. Rep. 41.
   109.    Garside v. Trent and Mersey Navigation. 4 Term Rep. 581. Hyde v. The Trent and Mersey Navigation, 5 Term Rep. 389.
   110.    Golden v. Manning, 2 Wm. Blacks. Rep. 916.
   111.    5 Term Rep. 389.
   112.    Smith v. Horne, 8 Taunton, 144. Bodenham v. Bennett, 4 Price, 31. Garnett v. Willan, 5 Barn. & Ald. 53. Duff v. Budd, 3 Brod. & Bing. 177.
   113.    Strong v. Natally, 4 Bos. & Pul. 16.
   114.    15 Johnson’s Rep. 39.
   115.    Wilson v. Dickson, 2 Barn. & Ald. 2.
   116.    Butler v. Heane, 2 Campb. 415. Cobden v. Bolton, ibid. 108. Gouger v. Jolly, Holt, 317. Mayhew v. Eames, 3 B. & Cresswell, 601.
   117.    Purrough, J., 8 Taunton, 146.
   118.    5 East, 507.
   119.    4 Price Exch. Rep. 31.
   120.    5 Barn. & Ald. 53.
   121.    Ellis v. Turner, 8 Term Rep. 531. Beck v. Evans, 17 East, 247. Smith v. Horne, 8 Taunton, 144. Bickett v. Willan, 2 Barn. & Ald. 356. Batson v. Donovan, 4 Barn. & Ald. 21. Garnett v. Willan, 5 Barn. & Ald. 52. Sleat v. Fagg, 5 Barn. & Ald. 342.
   122.    See Smith v. Horne, 8 Taunton, 144.
   123.    Colt v. McMechan, 6 Johns. Rep. 160. Schieffelin v. Harvey, 6 Johns. Rep. 170. Elliott v. Russell, 10 Johns. Rep. 1. Kemp v. Coughtry, 11 Johns. Rep. 107.
   124.    1 Bay’s Rep. 99.
   125.    4 Binney, 127.
   126.    6 Cowen, 266.
   127.    Gordon v. Little, 8 Serg. & Rawle, 533.
   128.    I apprehend, with great deference, that the case of Aymar v. Astor, so far as it meant to decide that masters of vessels were not liable as common carriers, (and it appears to have meant that, and that only,) is not to be taken for sound law. A distinguished rule of commercial policy, which had been settled in England, and regarded as fundamental ever since the great case of Morse v. Slue, and, which had been recognized, and acted upon, and indicated, by the Supreme Court of this state, in the cases of Colt v. McMechan, Schieffelin v. Harvey, Watkinson v. Laughton, Elliott v. Russell, and Kemp v. Coughtry, cannot be thus suddenly demolished. If the court had placed the decision on the ground that the damage to the goods was occasioned by a peril of the sea, the rule would have been preserved, and the carrier would have been protected by the exception in his bill of lading. But the Court did not decide the cause on that point, nor could they, upon the facts stated, without overruling the English authority. They went upon the broad ground that masters of vessels were not common carriers, nor liable as such; and this appears to me to be overturning first principles, and rendering the law of the land vague and uncertain. No such judicial reformation of the law is thought of in England: and in relation to this very subject, a bill was introduced into parliament, and passed the House of Commons, since the year 1795, to reduce the liability of owners and masters of vessels navigating the high seas as common carriers, to the cases of robbery, embezzlement, and actual default of the owner, master, or mariners, but the bill was rejected in the House of Lords. Abbott on Shipping, part 3. ch. 4. s. 1. note c.
   129.    Christy’s Dig. tit. Carrier, n. 5.
   130.    1 Lord Raym. 646.
   131.    Cowp. 754.
   132.    Bowning v. Goodchild, 3 Wils .443.
   133.    7 Cranch, 242.