A bailment of choses in action may be created where the title passes in form to the bailee: certificates of stock are daily given in pledge by a formal transfer of the title-a transfer being the only way in which such property can be delivered. The absolute title, that is, the general property in the stock or in the choses in action, does not pass.2

The contract of bailment is very often implied from the circumstan ces attending the delivery of the goods. The usual definition assumes that there is a contract, either expressed or implied, in every bailment; and it is clear that the bailee is held bound to the performance of his duties on the theory of contract. There are cases, it must be admitted, in which there is an apparent want of consideration; e. g., where one loans a chattel gratuitously for an indefinite length of time; or where a man accepts the custody of property to keep or to carry without compensation. In reality the contract in each of these cases is executed on the part of the bailor; he has delivered the property; and it remains executory on the part of the bailee. The consideration is valid, though it be not beneficial to the party promising; and the contract having been partly executed is valid, notwithstanding the election given to one of the parties to withdraw from it or to terminate it.3 Hence there is nothing in the circumstance that the gratuitous lender has the right to terminate the agreement and take back his property, or in the fact that the depositary without reward has the right to restore the goods and thus put an end to his liability, to repel the theory of a contract. On the contrary, these rights assume the existence of the contract and grow out of it.4

§ 3. Authors of received authority on the subject generally specify five sorts or classes of bailment, which are defined as follows:

1. Depositum, that is, a simple delivery or deposit of goods, to be kept and returned without recompense. The depositary is here under but a limited liability, being answerable only for gross neglect. As he receives no reward for the service, the law does not render him responsible for anything more than the ordinary care which he bestows upon his own property of a similar nature.

2. Mandatum, or commission, is a species of bailment where the bailee receives goods, and without reward undertakes to do some act

1 Campbell v. Parker, 9 Bosw., 322, relates to the pledge of a bond and mortgage.

2 Wilson v. Little, 2 N. Y., 443.

3 Rutgers v. Lucet, 2 John. Cas., 92; Miller v. Drake, 1 Caines, Rep, 45, 46; Giles v. Bradley, 2 John. Cases, 253, 254; Towers v. Barrett, 1 Term Rep., 133. Orsen v. Storms, 9 Cowen, 687; Roulston v. M'Clelland, 2E. D. Smith, 6O.

about them, or simply to carry them. This kind of undertaking does not differ materially from that of the bailee in the case of deposit; the duties and liabilities arising out of it are very similar. The actual entrance upon the work to be performed is the ground of liability, since an executory contract of this nature cannot be enforced, wanting, as it does, the essential ingredient of a consideration promised or received.1

3. Commodatum is the loan or bailment of goods to be used for a certain time and then returned to the owner, and is made for the accommodation of the bailee; as the loan of a horse or carriage, from which the owner derives no benefit.

4. Property delivered in pledge for debt, pignori acceptum, is a bailment in the nature of collateral security. The title remains in the pledgor, so that under our statutes it may be levied upon and sold as his property, but after the sale, the pledgee is entitled to the possession of it until the purchaser redeems it from him. At common law, however, goods pawned or pledged are not liable to be taken in execution in an action against the bailor; and the special property of the pawnee gives him a right of action against the officer who assumes to take them,3 and even against the owner himself who wrongfully attempts to repossess them. For the purposes of the pledge he acquires a paramount right over the property, and is responsible for ordinary neglect. If he convert the property to his own use, or dispose of it in any manner contrary to the trust, he is liable to the owner for its value."

Goods are delivered in pledge for the mutual benefit of the parties to the contract; and hence the responsibility of the pledgee is the same as that of the bailee for hire. He has an advantage from the security it furnishes him for the payment of his demand, and the owner of the things pledged gains a credit; so that in the eye of the law the parties stand upon an equal footing.

5. A hiring, termed in the civil law locatio conductio, is a bailment of goods always for a reward, and includes the hire of things for use, lccatio rci; the hire of deposit or storage, locatio custodia; hire of labor and services to be performed on the goods delivered, locatio operis faciendi; and hire of carriage, locatio operis mercium vehendarum. Hire for use, such as hiring horses and carriage for a journey, is a bailment of proper

1 Thorne v. Deas, 4 John. Rep., 84.

2 Steif v. Hart, 1 Comst. R., 20, and cases cited by J. Jewett.

35 Binney, 457.

Mills v. Stewart, 5 Humph. R., 308.

Jones on Bailm., 121.

6 Jones on Bailm., 86; and Story on Bailm., § 8.

ty which renders the bailee responsible for ordinary neglect. The hire of deposit, such as the storage of goods by commission merchants and warehousemen,2 concerns the custody, and requires ordinary diligence in the bailee. Innkeepers, from motives of public policy, are held to a much higher responsibility. Where work is to be done on the property, as where cloth is left with a tailor to be made into clothes, or logs at a saw mill to be converted into boards, it is termed a bailment for labor and services, and the bailee is liable for ordinary neglect. In such cases there is an implied contract that the work shall be done in a workmanlike manner. The hire of carriage, or transportation of goods by a common carrier, is such a bailment of goods as renders the bailee liable for them without any neglect, unless the loss be caused by inevitable accident, by public enemies, or by the act of the owner of the property. The policy of the law holds him to a strict accountability, and makes him in effect an insurer of the goods.3

§ 4. The various degrees of liability imposed on the bailee are graduated by the circumstances attending the trust. He that borrows his friend's horses or books, clearly is in honor bound to take vigilant care of them, so that the lender may not suffer by his kindness; and the principle that holds the borrower responsible for even a slight neglect of this duty is confessedly just. Every one readily recognizes it as a natural obligation. So, where the owner of property deposits it with his neighbor, who receives it into his house or store without pay, and solely as an accommodation, it is plain that, if he take the same care of it as he does of his own goods, nothing more can in fairness be demanded of him. Unless he be guilty of gross neglect, which is morally as well as legally a breach of good faith, he ought not to be responsible for loss. The rule of equity is the rule of law in such a case. Every man is bound under all circumstances to deal honestly, and that is the limit of his responsibility as a mere depositary. Where, however, he voluntarily and officiously proposes to keep the goods of another, there is a sound reason why he should be held to a stricter liability, since by his own act he may have prevented them from being stored in safety. If he press himself into the undertaking, or make an express agreement to keep them safely, he must, in honesty, exercise ordinary prudence in its fulfillment.

When the relation so far changes that both parties derive an advantage from the contract, it is easy to perceive that the liability must change

1 Milion v. Salisbury, 13 J. R., 211.

2 Knapp v. Curtis, 9 Wend., 60.

* 12 Mod., 482; Jones on Bailm., 108; Forward v. Pittard, 1 Term Rep., 27; Hyde v. The Trent & Mersey Navigation Co., 5 Term Rep., 389.

proportionably; as where property is hired to be used, and a compensation is paid for the use. Here there is no inequality between the owner and him who receives the property in trust. The price of the hire balances the use, so that neither owes to the other any special obligation. The contract between them is one of ordinary business, from which both derive a benefit of profit or convenience. In the employment of property received under such circumstances, it is obvious that the hirer can only be held responsible for the use of ordinary care and common prudence in its preservation. It has sometimes been said, that he is bound to the exercise of all imaginable care of goods so received; but the rule does not go so far. If he exercise the common vigilance which the generality of mankind take of their own property, it will protect him from liability. In the absence of an express agreement, the law implies nothing strained or unreasonable; it is satisfied with the usual and ordinary care incident to the custody of another's goods.

In the negotiation for hire, it is presumed that a fair price was given for the use of the thing hired, and that the hirer undertook to keep it with reasonable care. Nothing extraordinary, as to the manner of keeping or using it, can be presumed to have entered into a contract so

common.

Property received with a commission or authority to do some act in relation to it, as when one receives money to use in a particular way, imposes the palpable and plain duty of faithfully executing the trust. Though no compensation be paid for the service, the commission must be faithfully executed, and the person undertaking it is understood to stipulate that he will exercise the necessary labor and skill in its execution. Receiving no recompense, if he undertake and execute the trust in good faith, he cannot be held responsible for the issue of the business. IIe must act with prudence, doing nothing by which his employer may suffer damage, and omitting to do nothing which the nature of the act requires. The profession or business of the employee, it is true, may sometimes affect his liability.

One who takes property in pledge for a loan of money or a debt due, as well as he who receives it with the view of bestowing labor upon it in order to make it more valuable, assumes the responsibility of keeping it safely. The ground of liability in each case seems to be the trust reposed in the person who receives the property. The manufacturer receiving wool to be converted into cloth, upon an agreement for compen

1 Jones on Bailm., 86, speaks of the rule with his usual neatness of phrase as established by the harmonious consent of nations.

2 Jones on Bailm., 53.

sation; retains a lien upon the goods until it is paid. The custody is equally for the benefit of both parties. So also in the case of pledging; the contract is one of reciprocal advantage. The debt perhaps is contracted on the understanding that the property shall be taken in pledge for its payment; or, the debt being due, its payment is postponed on the receipt of the pledge. The one party gains a credit and the other security by the contract. The principle of liability is therefore the same as in a hiring for use, and the bailee is responsible for ordinary care, and for every departure from the terms of the agreement. It is also a rule of law, as well as of common equity, that whatever is accessary to the thing pledged shall accrue or be applied to the benefit of the owner; if it be a bond and mortgage, the interest growing due on them shall be credited to him on the debt for which they are in pledge.

The common carrier's liability, grounded on the hire he receives, is extended by the policy of the law much beyond that of an ordinary bailee. His agreement to carry and deliver the goods at the place of destination may be discharged without performance only in three instances, namely, when they are destroyed by the act of God, by public enemies, or by the conduct of the owner himself. The reason of this rule, it is said, is the public employment exercised by the carrier, and the danger of his combining with robbers, to the infinite injury of commerce and extreme inconvenience of society.1

The difficulty of following the property, and in case of loss establishing by evidence the liability of the carrier, seems to be the true ground of the rule; especially since it matters little what principle prevails, so long as the parties to the contract make their agreement with reference to it. The added liability of an insurer, being perfectly understood, is taken into the account in fixing the price of transportation; thus in fact the law is stringent in its requirements and at the same time just. It is made the interest of the person having the custody of the goods to keep and convey them safely, so that the carrier, on whom rests the duty, has the interest in and the means of carrying them safely to the place of delivery. No other principle, it may be safely asserted, would so completely unite commercial convenience and economy with the strict demands of private justice.

The common carrier is by virtue of his occupation a servant of the public, whose duties and responsibilities are regulated with a view to the promotion of the interests which he serves, and are founded upon universal rules of commercial policy. These rules, that have grown up out of usages and customs handed down from the rudest periods, have

1 Jones on Bailm., 107.