The owner must stand to all the ordinary risks to which the chattel is naturally liable, but not to risks occasioned by negligence or want of ordinary caution on the part of the hirer. If a carriage, for example, let to hire, breaks down on the ordinary public thoroughfare, through the badness of the road, or is injured by a flood or inundation, the owner must bear the loss, although the carriage was driven by the servants and horses of the hirer. But if the hirer had gone out of his way to meet the danger-if he had travelled by unusual and difficult roads, or crossed a plain subject to floods, when he might have kept the high ground, and been safe, he must make good the loss that has been occasioned thereby. If the owner sends his own postillion or coachman to drive the carriage, the hirer is discharged from all attention to the horses and the risks of the road, and is bound only to take ordinary care of the glasses and inside of the carriage whilst he sits in it, unless he officiously interferes and gives orders, and takes the management and direction of the vehicle into his own hands(). If a horse is hired as a saddle-horse, the hirer has no right to use it in a cart, or as a beast of burden. If it is hired to go to Richmond he has no right to go with it to York; and if, during such misuser, a loss occurs, the hirer will be responsible therefor(). If a horse hired for a journey is taken ill on the road, and the hirer calls in a farrier, he will not be responsible if the horse dies, although the death may have been occasioned by the injudicious treatment of the latter; but if the hirer neglects to avail himself of proper advice and assistance, or chooses ignorantly to prescribe himself, and from unskilfulness gives the horse improper medicine, and the horse dies, be is liable to the owner for the loss(m). It is of course the primary duty of the hirer, in the absence of an express stipulation to the contrary, to supply an animal hired by him with suitable food during the time it is intrusted to him for use; and if a hired horse is exhausted, or becomes ill, and refuses its food, and the hirer notwithstanding pursues his journey, and by so doing injures or kills the horse, he will be responsible therefor to the owner(n). "As to the fourth sort of bailment," says Lord Holt, "viz., vadium, or (1) Jones on Bailments, 88; Pothier LOUAGE, No. 106, 190; Tr. des Oblig. 1, 543. Hughes v. Boyer, 9 Watts, 556. (l) Hall v. Corcoran, 107 Mass. 251; Kennedy v. Ashcraft, 4 Bush (Ky.), 530; Mayor of Columbus v. Howard, 6 Ga. 213; Lewis v. McAfee, 32 Ga.,465; Wheelock v. Wheelright, 5 Mass. 104; Homer v. Thwing, 3 Pick. 492; Rotch v. Hawes, 12 Pick. 136; Schenck v. Strong, 1 South, 87; M'Neills v. Brooks, 1 Yerg. 75; Martin v. Cuthbertson, 64 N. C. 328. (m) Deane v. Keate, 3 Campb. 4. (n) Handford v. Palmer, 5 Moore, 79; 2 B. & B. 359. Bray v. Mayne, 1 Gow, N. P. C. 1. Thompson v. Harlow, 31 Ga. 348, a pawn, if the pawn be such as will be the worse for using, the pawnee cannot use it, as clothes, etc.; but if it be such as will be never the worse, as jewels pawned to a lady, she might use them; but then she must do it at her peril: for whereas, if she keeps them locked up in her cabinet, if her cabinet should be broken open, and the jewels taken from thence, she would be excused; if she wears them abroad, and is there robbed of them, she will be answerable. And the reason is, because the pawn is in the nature of a deposit, and is not liable to be used. But if the pawn be of such a nature that the pawnee is at any charge about the thing pawned to maintain it, as a horse, cow, etc., then the pawnee may use the horse in a reasonable manner, or milk the cow, etc., in recompense for the meat(nn). And as to neglects for which the pawnee shall make satisfaction, Bracton tells us that if a creditor takes a pawn he is bound to restore it upon payment of the debt; but yet, if the pawnee uses true diligence in keeping of the pawn(o), it is sufficient, and, notwithstanding the loss of it, he may resort to the pawnor for his debt. And the true reason of all these cases is, that the law requires nothing extraordinary of the pawnee, but only that he shall use an ordinary care for restoring the goods(p). But, indeed, if the money for which the goods were pawned be tendered to the pawnee before they are lost, then the pawnee shall be answerable for them, because the pawnee, by detaining them after the tender of the money, is a wrong-doer; and a man that keeps goods by wrong must be answerable for them at all events, for the detaining of them by him is the reason of the loss. The same law holds in relation to goods found"(q). Should the pawnee dispose of the goods under a power of sale, he will be liable for gross negligence in conducting the sale, by which the goods are disposed of at an inadequate value(). "As to the fifth sort of bailment," says Lord Holt, "viz., a delivery to carry, or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts: either a delivery to one that exercises a public employment, or a delivery to a private person. First, if it be to a person of the first sort, and he is to have a reward, he is bound to answer for the goods at all events. And this is the case of the common carrier, common hoyman, master of a ship, etc." (post, ch. 10). "The second sort are bailees, factors, and such like; and though a (nn) Lawrence v. Maxwell, 53 N. Y. 19, 22; Story on Bailm. s. 89. (0) See Donald v. Suckling, post, p. 551. (p) See Shackell v. West, 2 Ell. & Ell. 328. (g) As to pledges to pawnbrokers, see Addison on Contracts, 6th ed., 279-293. bailee is to have a reward for his management, yet he is only to do the best he can, and if he be robbed, etc., it is a good account." "As to the sixth sort of bailment, it is to be taken that the bailee is to have no reward for his pains, and that by his ill-management the goods are spoiled. Then the bailee, having undertaken to manage the goods, and having managed them ill, and so by his neglect a damage has happened to the bailor, the bailee is answerable. It is an obligation which arises ex mandato. It is what we call in English, acting by commission. And if a man acts by commission for another gratis, and in the executing his commission behaves himself negligently, he is answerable; and the reasons are, first, because in such a case a neglect is a deceit to the bailor, for when he intrusts the bailee, upon his undertaking to be careful, he has put a fraud upon the plaintiff by being negligent, his pretence of care being the persuasion that induced the plaintiff to trust him. And a breach of such a trust, undertaken voluntarily, will be a good ground for an action. A strong case to this matter was an action against a man who had undertaken to keep an hundred sheep, for letting them be drowned by his default. And there the reason of the judgment is given, because, when the party has taken upon him to keep the sheep, and after suffers them to perish by his default, inasmuch as he has taken them, and has them in his custody, if after he does not look to them, an action lies. And if a man will enter upon the thing, and take the trust upon himself, and miscarries in the performance of the trust, an action will lie against him for that; though nobody could have compelled him to do the thing "(s). A banker, the gratuitous bailee of a box belonging to his customer, and containing securities, is not liable for the loss of the box, by the theft of his clerk, unless he has omitted to take some precaution which a reasonable and prudent man would have taken of his own property(t). Where a bystander was asked by the owner of a horse to get on the horse and ride it, for the purpose of showing it off for sale, and the bystander recklessly and carelessly rode the horse over very slippery and dangerous ground, and threw it down and injured it, it was held that he was responsible for the injury(u). 598 Loss of chattels by workinen.-Every bailee for hire of a chattel is bound to take the same care of the chattel, whilst it remains in his (s) Coggs v. Bernard, 2 Ld. Raym. 909; 1 Smith's L. C., 6th ed. 177. Doorman v. Jenkins, 2 Ad. & E. 262. (t) Giblin v. McMullen, 38 Law J., P. C. 25; L. R., 2 P. C. Ca. 317. See ante, p. 501. (u) Wilson v. Brett, 11 M. & W. 113. possession, that a prudent and cautious man ordinarily takes of his own property. If clothes are delivered to a fuller to be dressed, and he suffers them to be eaten by mice, he will be responsible for the damage, unless he can discharge himself from all imputation of neglect, by showing that he had been subjected to some unusual and unexpected visitation from such vermin. The very occurrence of the disaster affords a strong prima facie presumption of a want of ordinary caution(c). Where a ship, bailed to a shipwright to be repaired, was put into a dry dock belonging to the shipwright, and whilst she lay there a high tide arose, and pressed against the dock gates; and it appeared that the gates might have been shored up so as to resist the pressure of the water, but nothing was done, and the water at last burst open the gates and dashed the bailor's vessel against another vessel, it was held that the bailee was responsible for the injury, as he might, by proper precautions, have guarded against the accident(x). Wherever the loss of the thing bailed arises from the want of the degree of care which, from the nature of the bailment, ought to be exercised, it is immaterial whether the negligence be imputable personally to the bailee or to the servants employed by him(y). 599 Theft by servants.—If the subject-matter of the bailment is secretly purloined by the bailee's servant, the bailee will be responsible for the loss, unless he can show that he could not, by the exercise of the greatest vigilance, have guarded against the theft; but he will not be responsible for a robbery by irresistible violence(z). Where a chronometer, bailed to a watchmaker to be repaired for hire, was placed by the bailee in a drawer in his shop amongst a variety of common watches, part of which belonged to the bailee, and the rest to his customers, which drawer was locked at night, and in a recess in the same room stood a strong iron chest, in which watches belonging to the watchmaker, of the value of several thousand pounds, were deposited aud locked up, and in the night the drawer was broken open by the watchmaker's servant, who slept in the shop, and the chronometer was stolen by him, together with the other watches there deposited, but the watches in the iron chest remained untouched, it was held, that as the watchmaker had taken more care of his own watches, by lock (v) In the Roman law proof of such a disaster was held to be proof of negligence. "Si fullo vestimenta polienda acceperit; eaque mures roserint, ex locato tenetur, quia debuit ab hac re cavere." Dig. lib. 19, tit. 2, lex 13, s. 5. (x) Leck v. Maestaer, 1 Campb. 137. (y) Ld. Campbell, C.J., Dansey v. Richardson, 3 Ell. & Bl. 169; 23 Law J., Q. B. 228. (z) Walker v. British Guarantee Ass., 21 Law J., Q. B. 260; 18 Q. B. 277. ing them up in the iron' safe, than he had taken of the bailor's chronometer, he was responsible for the loss, and Dallas, C.J., was of opinion that the watchmaker "was bound to protect the property against depredation from those who were within the house "(a). 600 Negligent keeping of goods by warehousemen, wharfingers, and depositaries for hire.-All persons to whom goods and chattels are delivered to be kept for hire and reward, and who are paid expressly and specifically for the exercise of their labor and care in keeping them, and not merely for the finding of a place of deposit, are bound to exercise that amount of care and vigilance for their preservation, which the most prudent and careful of men exercise for the protection of their own property (b). If the goods are injured by mice or rats, the warehouseman will be responsible for the damage(c), although he keeps cats to destroy vermin(d). It is no answer to an action against a warehouseman for the non-delivery of a chattel intrusted to him to keep for hire, to say that he has lost it(e); the mere fact of the loss is prima facie proof of negligence, and he must rebut this presumption by showing that he had taken the greatest care of the thing intrusted to him, and had no means of preventing the loss. A booking-office keeper who receives money for booking parcels, is bound to put them into a safe place, and if he leaves them in a public room, or an open shop, and they are lost or stolen, he will be responsible to the owner(ƒ). (a) Clark v. Earnshaw, Gow, 30. (b) "Quod si horrearius nominatim custodiam mercium in se recepit, videbitur locasse operas non solum exactæ, sed etiam exactissimæ custodia."-Pandect. Just. ed. Poth. lib. 19, tit. 2, art. 3, 72. Warehousemen are bound to exercise ordinary care and diligence in the keeping of goods, and are responsible only for ordinary neglect. Titsworth v. Winnegar, 51 Barb.(N. Y.) 148. Knapp v. Curtis, 9 Wend, 60. Ducker v. Barnett, 5 Mo. 97. Baltimore, etc., R. R. Co. v. Shumacher, 29 Md. 168. Chicago, etc., R. R. Co. v. Scott, 42 Ill. 132. Jackson v. Sacramento, etc., R. R. Co., 23 Cal. 268; Myers v. Walker, 31 Ill. 353. A want of ordinary care on the part of a warehouseman in one particular, will not render him responsible for a loss occasioned by causes unconnected with that particular in which he is negligent. Gibson v. Hatchett, 24 Ala. 201. A warehouseman is not required by law to render his buildings secure against all possible contingencies; and will not be liable for injuries to goods if the buildings in, which they were stored were reasonably and ordinarily safe against ordinary and common occurrences. Cowles v. Pointer, 26 Miss. 253. And if the bailor knows at the time he intrusts his goods to another how and where his bailee will keep them, he thereby assents to such keeping, and can maintain no action for their loss. Knowles v. Atlantic & St. L. R. R. Co., 38 Me. 55. Warehousemen are not insurers against loss by an accidental fire; nor are they chargeable with the negligence of their servants in failing to remove goods from a burning warehouse, unless the removal of goods in such cases was within the scope of the servant's employment. Aldrich v. Boston & Worcester R. R. Co., 100 Mass. 31. See Kay v. Wheeler, L. R., 2 C. P. 302. (c) White v. Humphry, 11 Q. B. 44. (d) Laveroni v. Drury, 8 Exch. 166. (e) Cairns v. Robins, 8 M. & W. 258. Boycot, 2 B. & S. 1; 31 Law J., Q. B. 69, (f) Dover v. Mills, 5 C. &. P. 175. AD. VOL. I,-34 Reeve v. Palmer, 5 C. B., N. S. 84. Goodman v. |