118 Review: Theobald's Jones on Bailments. refined taste. He observes, however, that | usually done in a country in respect to things it is properly an Essay on the principle of the Bailee's legal responsibility; for the law of Bailments" comprises the whole circle of cases and decisions which have arisen peculiarly from the contracts of this species. To supply the other portions of the law is the principal object of the Notes and Appendix. Mr. Theobald, with a candour, not always displayed in book-making, acknowledges that he has derived most of his annotations, and the article on the Law of Carriers, from Dr. Story, formerly a Professor of Law, and now an American Judge. In the Law of Carriers, and some other instances, Mr. Theobald found it necessary, however, to deviate from his author. According to the text of Sir Wm. Jones, the degree of care required of a bailee, is that" which every person of common prudence and capacity of governing a family takes of his own concerns.' On this Mr. Theobald makes the following note: "Or rather, as Dr. Story expresses it, the common prudence which men of business and heads of families usually exhibit in affairs which are interesting to them. The variable character of the standard of diligence is illustrated by Dr. Story in the following pleasing manner. In one country or in one age,' says he, acts may be deemed negligent, which, at another time, or in another country, may be justly deemed an exercise of ordinary 'diligence; and it is important to attend to this consideration, not merely to deduce the implied obligations of a party in a given case, but also to possess ourselves of the true measure by which to fix the application of the general rule. Thus, in times of primitive or pastoral simplicity, when it was customary to leave flocks to roam at large by night, it would not be a want of ordinary diligence to allow a neigh bour's flock, which is deposited with us, to roam in the same manner. But, if the general custom were, at night, to pen them in a fold, it would doubtless be a want of such diligence, not to do the same with them. In many parts of our country, especially in the interior, where there are, comparatively speaking, few temptations to theft, it is quite usual to leave barns, in which horses and other cattle are kept, without being locked by night. But, in cities, where the danger is much greater, and the temptations more pressing, it would be deemed a great want of caution to do the same. If a man were to leave his friend's horse in his field, or in his barn, all night, in many country towns, and the horse were stolen, it would not be imagined that any responsibility was incurred. But if, in a large city, the same want of precaution were shewn, it would be deemed in many cases gross neglect. If robbers were known to frequent a particular district of country, much more precaution would be required than in districts where robberies were of very rare occurrence. What, therefore, is of a like nature, whether more or less in point of diligence than is exacted in another country, is in fact the general measure of diligence. business also have an important influence. If, in the course of a particular trade, particular goods, as, for instance, coals, are usually left on a wharf without any guard or protection during the night, and they are stolen, the wharfinger, or other person having the custody, might not be responsible for the loss, although, for a like loss of other goods not falling under a like predicament he might be responsible. If a chaise were left during the night under an open shed, and were stolen, the bailee might not be liable for the loss, if such was the usual practice of the place; and yet he would be, if other precautions were usually taken. In short, of danger of loss, and that danger is, in difdiligence is usually proportioned to the degree ferent states of society, compounded of very different elements. What constitutes ordinary diligence may also be materially affected by the nature, bulk, and value of the articles. A man would not be expected to take the same care of a bag of oats as of a bag of dollars; of a bale of cotton as of a box of jewellery; of a load of wood as of a package of paintings; of a block of marble as of a sculptured statue. The value, especially, is an ingredient to be taken into consideration upon every question of negligence; for, that may be gross negligence in the case of a parcel of extraordinary value, which, in the case of a common parcel, would not be so.' (Story, 9.)”—pp. 5, 6. "The customs of trade and the course of In various passages of the Essay it seems to be assumed that in the Common Law, as in the Civil Law, gross negligence and fraud are equivalent. Thus, ordinary negligence is spoken of as a mean between fraud and accident;" gross negligence as "inconsistent with good faith;" and a bailee without reward as being answerable only for fraud, or for gross negligence, which is considered evidence of it." This doctrine is thus observed upon by Mr. Theobald. "One case opposed to it is put by Sir W. Jones himself. If, he says, (p. 47) a depositor commits a gross neglect in regard to his own goods, as well as those which are bailed, by which both are lost or damaged, he cannot be said to have violated good faith, and the bailor must impute to his own folly the confidence which he reposed in so improvident and thoughtless a person. So, where a cartoon was left in the hands of an auctioneer, without any particular agreement to take care of it, or re-deliver it safe, and without any agreement for a reward, and it appeared that the painting was upon paper pasted on canvas, and that the bailee kept it in a room next to a stable in which there was a wall which had made it damp and peel-it was held gross neglect, and the bailee was made responsible, although there was no imputation of fraud. These cases shew that gross negligence is not equivalent to Review: Theobald's Jones on Bailments. fraud, according to the common law authorities. On the contrary, gross negligence is, or at least may be, entirely consistent with good faith and bonesty of intention; and, to confound it with fraud, would be most mischievous, for, then, unless a jury should believe the party guilty of fraud, no laches would come up to the legal notion of gross negligence, so as to entitle the sufferer by the loss to recover. A man may leave a casket of jewels or a purse of gold upon the table of a public room at an inn, or may leave a package of bank bills in a great coat in the common entry of an inn, from pure thoughtlessness; and a jury might be well satisfied that it was gross negligence. But if fraud were a necessary ingredient, the very statement of the case would negative a right of recovery. Besides, if gross negligence were equivalent to fraud, there could be no defence set up by the bailee, founded either on his own conduct in respect to his own goods, or on a special contract not to be liable for gross negligence. But there is no principle in our law that would prevent a depositary from contracting not to be liable for any degree of mere negligence." On the question of the liability of bailees for loss by robbery and inevitable accident, we have the following notes: "Sir W. Jones thinks that a depositary would not be liable for a loss of goods by robbery, without a most express agreement. (Jones, 44.) St. German also holds, that if a depositary promise to restore the goods safe, at his peril, he is not responsible for casualties; but it would be otherwise if he is to receive a reward. (Doct. & Stud. Dial. 2, ch. 38). Lord Holt, in Coggs v. Bernard, (2 Lord Raym. 909, 915, 918), was of opinion, that, upon a promise by a bailee without reward to keep or carry safely, he is not responsible for injuries or losses occasioned by the acts of wrong-doers; and, à fortiori, that he is not responsible for a theft not caused by his own neglect. Robbery would, of course, in his opinion, exempt him from liability. Mr. Justice Powell, in the same case, thought that robbery would not be an excuse, and of course that theft would not, because the bailee would have a remedy over against the robber. Mr. Justice Powys and Mr. Justice Gould seem to have agreed with Lord Holt. Sir W. Jones holds, that, in such a case, the bailee would be responsible for a loss by theft, but not for a loss by robbery. He founds himself manifestly upon the distinction taken in the civil law, that the attack of robbers is an irresistible force; but that of thieves may be guarded against by vigilance. Lord Chief Justice Willes, however, seems to have thought, that, upon such a special undertaking, even robbery would not be an excuse. (Kettle v. Bromsale, Willes, 121.) The civil law would make the bailee liable upon such a contract in case of theft, but not of robbery. "In respect to losses occasioned by inevitable accident, as, by lightning, tempests, inundations, &c., there are very respectable authorities, that, notwithstanding a special contract 119 or undertaking to keep safely, the bailee will not be responsible for losses. Sir W. Jones manifestly supports this doctrine. It is sanctioned also by St. German in the passage above cited; and was avowed by the Court in Coggs v. Bernard. There are many cases in our law, where, if a contract or condition, possible at the time it was made, become afterwards impossible by the act of God, or of the law, the obligation or condition is discharged. (Com. Dig. Condition, D. 1. L. 12, 13. Co. Litt. 206. 1 Roll. Abr. Condition, I. Com. Dig. Assumpsit, G. Bac. Abr. Condition, D. 1, 2.) There are others, again, where a different doctrine is inculcated. (1 Roll. Abr. Condition, G. 8, 9, 10. Com. Dig. Assumpsit, G. 2 Saund. R. 422, n. (2). 6 T. R. 750.) It is not easy to reconcile the cases, or to point out the different reasonings on which they proceed. In Aleyne's Reports, 27, this distinction is taken :- Where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and he hath no remedy over, there the law will excuse him; but, when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding he might have provided against it by his conany accident by inevitable necessity; because, tract. This distinction has the countenance of highly respectable authorities. 6 T. R. 750. Hadley v. Clarke, 8 T. R. 259. 267.) But, in the present state of the law, it does not seem possible to lay down any general rule on the subject, as to what casualties will excuse in cases of a special contract. The general rule of the civil law would seem to be, that the risk of casualties is never included under the general terms of a contract. And, however general the undertaking may be, it includes only such risks as may be forseen, and not those which there could be no room to apprehend. The code of France adopts into its positive regulations most, if not all the rules of the civil law on this subject. (Story, 23.)” The consequences of loss by private theft are thus considered: "That a loss by private theft is presumptive evidence of ordinary neglect, a proposition asserted more than once in this essay, (pp. 76, 119), is an established tenet of the civil law; but Dr. Story has taken considerable pains to prove that the common law warrants no such presumption. Abstractedly speaking,' says he, there is nothing in the case of theft from which we have a right to infer, that, because a loss has happened by it, there must have been some neglect. (Fere v. Smith, 1 Vent. 121; S. C. 2 Lev. 3.) On the contrary, no degree of vigilance will always secure a party from losses by theft. A store may be broken open however securely locked; a person may be robbed while riding in a stage coach, or while asleep; a servant may be faithless, and betray the confidence reposed in him; a person may be seized with a sudden fit, or alienation of mind, and the theft committed without any consciousness on his part. In these and in many 120 Review : Theobald's Jones on Bailments. dence in the character and caution of his friend. Sir W. Jones has himself quoted, with apparent approbation, the opinion of Labeo, in the stronger case of a negotiorum gestor, a in which Labeo requires no more than good faith of him when he interferes officiously, but from pure kindness, to act in my affairs; affectione coactus, ne bona mea distrahantur, negotiis se meis obtulerit. The good sense of this as a general rule, interpreting the offer of the party in its fair intendment, would seem more to belong to the manliness of the common law, than the rule promulgated by Julian, even with all the authority of imperial wisdom. (Story, 58.) other cases there would not be any presump-| does not mean to place a burthen on his friend, tion of neglect. And the civil law itself sup-by which extraordinary responsibility is to be poses, that, in such cases, the bailee might incurred; but to manifest a personal confirepel the imputation of negligence. By our law, in many cases, a bailee is excusable when the loss is by theft; but never when that theft is occasioned by gross negligence. So long ago as the reign of Edward the Third (29 Assisarum, 28), it was held, that, if a person bail his goods to keep, and they are stolen, he is excused. The reasoning of the Court in Coggs v. Bernard shews that the Court did not consider theft as prima facie presumptive of negligence. In short, our law considers theft, like any other loss, to depend for its validity as a defence upon the particular circumstances of the case, and to be governed by the general nature of the bailment, and the responsibility attached thereto. It neither imputes the theft to the neglect of the party, nor, on the other hand, exempts him from responsibility from that fact alone. But it decides upon all the circumstances, as leading to the conclusion that there has or has not been a due degree of care used.' Finucane v. Small, 1 Esp. N. P. C. 315. Story, 27. “ Now, it may be observed, (says Mr. Theo- | bald) that the concluding remark, which is a summary of the argument preceding it, expresses Sir W. Jones's opinion, with which also the whole | argument so well agrees that it is difficult to discover any difference between them. The difference, if any, is at most merely formal. Sir W. Jones no where represents theft so presumptive of neglect as to exclude evidence to rebut the presumption. He evidently considers it as a mere presumptio juris, not presumptio juris et de jure and, what more is that than saying that theft shall not avail a bailee as a defence without some explanation of the circumstances under which it happened? Nor, seemingly, would Dr. Story allow it to be a defence, if it happened through the default of the bailee, or through his own negligence. The difference, therefore, seems to turn merely on this, that Sir W. Jones would disallow the plea unless, in addition to the allegation of the theft, it negatived the suspicion of default or negligence. I venture to think this the better opinion, according to the principles of special pleading." The distinction between an ordinary bailee, and one who acts voluntarily in the relation of a friend, is thus described: "A voluntary offer of kindness to a friend, even when importunately urged, ought hardly to carry with it such penal consequences; since it is generally the result of strong affection, a desire to oblige, and often of a sense of duty, especially in cases of imminent peril or sudden emergency. The reason assigned for the rule is not satisfactory. It might, with at least as much force, be said, that he who trusts such a deposit to a friend at his urgent request, confides it to him as a proof of his personal confidence, and requires no more than that he should guard it as he guards his own, or at least as men ordinarily guard deposits. He The right of using the thing bailed is confined to the use expressed or implied in the particular transaction; and the borrower by any excess will make himself responsible. Lord Holt has put several cases to illustrate this doctrine. If a man lends another a horse to go westward, or for a month, and the bailee goes northward, or keeps the horse above a month, if any accident happens on the northern journey, or after the expiration of the month, the bailee will be chargeable, because (says he) he has made use of the horse contrary to the use he was lent under, and it may be if the horse had been used no otherwise than he was lent, that accident would not have befallen him. (Coggs v. Bernard. See Appendix.) Bracton inculcates the like doctrine; and it seems, indeed, as old as the first rudiments of our law. (Bracton, Lib. 3, ch. 2, s. 1.) "The loan is to be considered as strictly personal, unless, from other circumstances, a different intention may be presumed. Thus, if 4. lends B. her jewels to wear, this will not if C. lends D. his horse to ride to Boston, this authorize B. to lend them to C. to wear. So, will not authorise D. to allow E. to ride the horse to Boston. But, if a man lends his his use, then a use by any of his family, or for horses and carriages for a month to a friend for family purposes, may be fairly presumed; though not a use for the mere benefit of * * strangers." within the scope of the bailment must depend "In respect of the use, what is or is not upon a great variety of implications and presumptions growing out of the circumstances of each particular case; and no general rule can be laid down which will govern all cases. In general, it may be said, in the absence of all Controuling circumstances, that the use intended by the parties is the natural and ordinary use a "The negotiorum gestor in the civil law is one who spontaneously, and without authority, undertakes to act for another, during his absence, in his affairs. Of course, as his acts are wholly without the assent of the owner, the case is much stronger than that of a depositary, who officiously interposes in another's affairs with his consent." Review.-Lectures at the Incorporated Law Society. for which the thing is adapted. In regard to time, if no particular time is fixed, a reasonable time must be intended, keeping in view the objects of the bailment. If a horse is lent for a journey, it is presumed to be a loan for the ordinary time consumed in such a journey, making proper allowance for the ordinary delays and the ordinary objects of such a journey." (Story, 161.) * 121 burthen of proof might, perhaps, belong to the plaintiff to establish. There are cases, at least, in which it has been held that the plaintiff must prove negligence under special circumstances. But, where there is a demand of the thing loaned, and a general refusal, without any special excuse at the time of the demand, there the burthen of proof would seem to be on the defendant to negative the prima facie right of recovery thus made out by the plaintiff. And, in many complicated cases of evidence, the burthen of proof may ultimately shift from one party to the other in different stages of the trial." comprise several of the leading principles of the branch of law under consideration. The Appendix, on the Law of Common Carriers, is arranged as follows: 1. Who are deemed Common Carriers; 2. Their Duties and Obligations; 3. The Risks for which they are liable; 4. The Commencement and Termination of the Risk; 5. Justification for Non-delivery; 6. Average and Contribution ; 7. The Rights of Carriers. The Law rela ting to the Carriage of Passengers is next considered, and appropriately subdivided under the several departments of the subject. "In Coggs v. Bernard (2 Ld. Raym. 909, 916, and see Appendix), Lord Holt says, if the pawn be such as it will be the worse for using, the pawnee cannot use it, as clothes, &c. But, if it be such as will never be the worse, as, if jewels for this purpose were pawned to a lady, We have thus, we trust, given sufficient she might use them. But then she must do it at her own peril. For, whereas, if she keeps materials to enable our readers to judge of them locked up in her cabinet, if her cabinet is the merits of the present edition of Sir W. broken open and the jewels taken from thence, Jones's celebrated work; and the extracts we she would be excused; if she wears them have made will also, we hope, not be useabroad and is there robbed, she will be answer-less to the student, who will find that they able. And the reason is, because the pawn is in the nature of a deposit, and, as such, is not liable to be used. Now, the reason here given, so far from proving that the pledgee may lawfully use the jewels, expressly negatives any such right. And, unless the contrary is expressly agreed, it may fairly be presumed that the owner of such a pawn would not assent to the jewels being used as a personal ornament, and thereby exposed to unnecessary and extraordinary perils. The true rules deducible from the common law authorities, as to how far the pawnee is entitled to use the pawn, seem to be the following:-1. If the pawn is of such a nature that the due preservation of it requires some use, there it is not only justifiable, but it is indispensable to the faithful discharge of the duty of the pawnee. 2. If the pawn is of such a nature, that it will be the worse for the use, such, for instance, as the wearing of clothes which are deposited, there the use is prohibited to the pawnee. 3. If the pawn is of such a nature that the keeping is a charge to the pawnee, as, if it is a cow or a horse, there the pawnee may milk the cow and use the milk, and ride the horse, by way of recompense (as it is said) for the keeping. 4. If the use will be beneficial to the pawn, or indifferent, there it seems that the pawnee may use it, as, if the pawn is of a setting-dog, it may well be presumed that the owner would consent to the dog's being used in partridge shooting, and thus confirmed in the habits which make him valuable. So, books which will not be injured by a moderate use, may be read, examined, and used by the pawnee. 5. But, if the use will be without any injury, and yet the pawn will thereby be exposed to extraordinary perils, there the use is impliedly interdicted." (Story, 221.) The burthen of proof, in case of damage or loss, depends on circumstances: We think that great care and research have been bestowed by Mr. Theobald in executing his work, and we can recommend it as a useful addition to the branch of law it comprises. NOTES OF LECTURES AT THE IN- 9th December, 1833. LIMITATION OF REAL ACTIONS.-TITHES. In proceeding to explain, in detail, the effect of the several sections of the Act for the Limitation of Actions and Suits relating to real property, (3 & 4 W. 4. c. 27) Mr. Wilde observed on the clause defining the interpretation of the word " 'Land," as extending to manors, messuages, and all other corporeal hereditaments whatsoever; and also to tithes, (other than tithes belonging to a spiritual or eleemosynary corporation sole) and also to any interest, share, or interest in them (§ 1). The enactment was intended to be limited "Where a demand of the thing loaned is made, the party must return it, or give some account how it is lost. If he shews a loss the circumstances of which do not lead to any presumption of negligence on his part, there the to tithes in the hands of laymen; but (as we 122 Lectures at the Incorporated Lam Society.-Abstracts of Recent Statutes. understood the Lecturer) it was doubtful whe- | directly from the land, were not included; the ther the words of the Act would effect that definition in the first section relating to serobject. The Tithe or Prescription Act of Lord Tenterden, 2 & 3 W. 4, c. 100, a for shortening the time in claims of modus decimandi, or exemption from tithes, took away the remedy except within the times limited by that Act, but did not touch the right to the tithe. The present Act took away the right as well as the remedy, after the periods specified in the Act. It was important to notice a point in regard to lands "tithe free," which there was reason to believe was not generally known in the profession; namely, that a conveyance of such land without conveying the tithes would not pass the latter; so that the tithes might belong to the heir at law, whilst the estate was vested in a purchaser or devisee, who was not the heir. RENT. The first section of the new Limitation of Actions Act, (3 & 4 W. 4, c. 27.) also defined that the word "rent" should extend to all heriots and to all services and suits for which a distress might be made, and to all annuities and periodical sums of money advanced upon or payable out of any land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole). The third section of the Law Amendment Act, 3 & 4 W. 4, c. 42, which limited actions of debt on specialties, included actions of debt for rent upon an indenture of demise, and these were barred after ten years from the end of the session, or twenty years from the cause of action. By the second section of the Limitation of Real Actions Act, (3 & 4 W. 4. c. 27,) actions to recover land or rent, must be brought within twenty years next after the right accrued. This applies to the question of title: the remedy for arrears was limited by section 42 to vices, &c. and to quit rents, rent charges, &e. which were distinct from the estate held in the land. Unless this distinction were taken there would certainly be a variance between the two statutes. The 32 Hen. 8, relating to rent, (which limited the remedy to fifty years) did not mean rent reserved by lease, but quit rents, &c. as distinct from the land. THIS Act, which passed on the 28th August, 1833, is intituled "An Act to render valid Indentures of Apprenticeship allowed only by Two Justices acting for the County in which the Parish from which such Apprentices shall be bound, and for the County in which the Parish into which such Apprentices shall be bound, shall be situated; and also for remedying defective Executions of Indentures by Corporations." By the 56 Geo. 3 c. 139, being “An Act to regulate the binding of Parish Apprentices," it is enacted, that in all cases where the residence or establishment of business of the person to whom any child shall be bound shall be within a different county or jurisdiction of the peace from that within which the place six years. by the officers whereof such child shall be The doubts which have arisen on the sup-bound shall be situated, and in all other cases posed variance of these sections, were thus met by the learned Lecturer: He held that in the Law Amendment Act, "rent" was confined to the profits of land, and in the Limitation of Actions Act, the profits, or that which arose (a) See 2 Monthly Record, p. 404. where the Justices of the Peace for the district within which the place by the officers whereof such child shall be bound shall be situated, and who shall sign the allowance of the indenture by which such child shall be bound, shall not have jurisdiction, every indenture shall be allowed, as well by two Jus |