knows the loan is accepted, of which he is aware, and owing. to which, directly, the borrower is injured. Adjuvari quippe nos, non decipi, beneficio oportet,' is the maxim which STORY sufficient consideration; but yet if the bailee will take the goods into his custody, he shall be answerable for them; for the taking the goods into his custody is his own act. And this action is founded upon the warranty, upon which I have been contented to trust you with the goods, which without such a warranty I would not

Chester Valley, 79 Penn. St. 471. And the degree of care to be exercised is to be determined by the fairly understood terms of the contract itself, as explained by all the attendant circumstances, and if the bailment is gratuitous, the same rule ap plies, except that he will only be liable for gross negligence. Mariner v. Sinith, 5

This principle has been extended to cover not merely the carriage of goods, but the keeping or carriage of money gratuitously. A person who agrees to transport goods or money gratuitously, can not be held liable for a refusal to carry out his agreement, but if he enters upon its performance he is bound to exercise such care in carrying it out, as men of ordinary prudence observe in their own affairs. In Eddy v. Livingston, 35 Mo. 487, the defendant received money from the plaintiff to transmit to B. without reward, and there being no bankers where he resided, in Utah, he purchased a draft of the United States marshal upon the treasury department at Washington with B.'s money and some of his own, and of others uniting with him, in accordance with the usual method of transmitting money from that place. The draft was refused payment, and the court held that the defendant having exercised the same care of the plaintiff's money that he did of his own, and this care being such as a man of ordinary prudence would have exercised, exonerated him from liability for its loss. The rule in all such cases was laid down by the court to be that a bailee without reward, who receives money to transmit to a third person, is bound to perform his undertaking in good faith, and with diligence and attention adequate to the trust reposed in him. The mere fact that a person takes the same care of property entrusted to him that he does of his own, is not the measure of his duty, for he may be grossly negligent in reference to his own property, nor is he in all cases required to take that degree of care that he does of his own property, for he may be a man of extraordinary prudence and caution. The measure is, whether he has taken that care of the goods that a man of common, ordinary prudence takes of his property of a similar class. In Colyer v. Taylor, I Cold. (Tenn.) 372, the defendant received for the plaintiff one thousand five hundred dollars, which he undertook without compensation to deliver to him at their place of residence in another town. After having drawn the money he attended a public fair, where he met E., a fellowtownsman, who was going home before he was. The defendant stepping a little aside from the crowd, gave E. the money to carry to the plaintiff. While E. was on his way home in a crowded car, he had his pocket picked of the money. The defendant was held liable for the loss, as he had violated his trust, and was guilty of gross negligence See Kemp v. Furlow, 5 Ind. 462; Andrews v. Foresman, Wright (Ohio), 598; Tracy v. Wood, 3 Mass. 132; Jenkins v. Mottow, I Sneed. (Tenn.) 248 Nobb v. Lockhart, 18 Ga. 495: Bland v. Wormuck, 2 Murph. (N. C.) 373 Skelly v. Kahn, 17 Ill. 170; Tompkins v. Saltmarsh, 14 S. & R. (Penn.) 275; Lamply v. Scott, 24 Miss. 585; Sodowsky v. McFarland, 3 Dana (Ky.) 205; Storer v. Gowen, 18 Me. 174.

borrows from the 'Digest;' and Pothier is express to the same effect, citing, as STORY does also, the instance, Qui sciens vaso vitiosa commodavit, si ibí infusum vinum, vel eleum corhave done. And a man may warrant a thing without any consideration. And therefore when I have reposed a trust in you, upon your undertaking, if I suffer, when I have so relied upon you, I shall have my action. Like the case of the Countess of Salop. An action will not lie against a tenant at will generally, if the house be burnt down. But if the action had been founded upon a special undertaking, as that in consideration the lessor would let him live in the house, he promised to deliver up the house to him again in as good repair as it was then, the action would have lain upon that special undertaking. But there the action was laid generally.

1

3. Southcote's case is a strong authority, and the reason of it comes home to this, because the general bailment is there taken to be an undertaking to deliver the goods at all events, and so the judgment is founded upon the undertaking. But I can not think that a general bailment is an undertaking to keep the goods safely at all events. That is hard. Coke reports the case upon that reason, but makes a dif. ference where a man undertakes specially, to keep goods as he will keep his own. Let us consider the reason of the case. For nothing is law that is not reason. Upon consideration of the authorities there cited, I find no such difference. In 9 Ed. 4, 40 b, there is such an opinion by Danby. The case in 3 H. 7, 4, was of a special bailment, so that that case can not go very far in the matter. 6 H. 7, 12, there is such an opinion, by the bye. And this is all the foundation of Southcote's case. But there are cases there cited, which are stronger against it, as 10 H. 7, 26, 29, Ass. Heisk. (Tenn.) 203. The omission of that care which even the most thoughtless never fail to exercise in their own affairs. Wiser v. Chesley, 53 Mo. 547.

Ordinarily a bailee can not dispute his bailor's title, but this is not invariably the rule; for in all instances where it is shown that the bailor obtained posses-ion by fraud, or that they have been taken from him by one having a superior title, or even where he has been notified by the true owner not to deliver them to the bailor, he may set up these matters in defense. Kelly v. Patchell, 5 W. Va. 585. As to whether a bailment is or is not gratuitous, is a question of fact. Patteson v. Syracuse National Bank, 4 N. Y. S. C. 96.

That a gratuitous bailee has exercised the same care of the goods that he did of his own, is not the measure; for if a man is careless and thoughtless as to the care of his own property, this does not absolve him from his duty to exercise common care, at least, of the property of others entrusted to him. The fact that he used the property as he did his own, is a circumstance proper to be shown as affecting the question of honesty and good faith, but as to whether such care was reasonable and common care-such care as persons of common prudence usually exercise in the care of such property—is a question of fact. It has been held in some cases that the fact that he used the property as he did his own, was a legal excuse. Anderson v. Foresman, Wright (Ohio), 598. But while this might properly be the rule where it is shown that the party leaving the property was aware of the manner 1 Vide Com. 627, Burr. 1638.

That notion in Southcote's case, 4 Rep. 83 b, that a general bailment and a bailment to be safely kept is all one, was denied to be law by the whole court, ex relatione m'si Bunbury. Note to 3d Ed.

ruptum effusumve est, condemnandus eo nomine est.' This is so consonant to reason and justice that it has become part of our law. If, therefore, the owner of a horse, knowing it to be 28, the case of a pawn. My Lord Coke would distinguish that case of a pawn from a bailment, because the pawnee has a special property in the pawn; but that will make no difference, because he has a special property in the thing bailed to him to keep. 8 Ed. 2, Fitzh. Detinue, 59, the case of goods bailed to a man, locked up in a chest, and stolen; and for the reason of that case, sure it would be hard, that a man that takes goods into his custody to keep for a friend, purely out of kindness to his friend, should be chargeable at all events. But then it is answered to that, that the bailee might take them specially. There are many lawyers don't know that difference, or however it may be with them, half mankind never heard of it. So for these reasons, I think a general bailment is not, nor can not be taken to be, a special undertaking to keep the goods bailed safely against all events. But if a man does undertake specially to keep goods safely, that is a warranty, and will oblige the bailee to keep them safely against perils, where he has his remedy over, but not against such where he has no remedy over.

HOLT, Chief Justice.-The case is shortly this: This defendant undertakes to remove goods from one cellar to another, and there lay them down safely, and he managed them so negligently that, for want of care in him, some of the goods were spoiled. Upon not guilty pleaded, there has been a verdict for the plaintiff, and that upon full evidence, the cause being tried before me at Guildhall. There has been a motion in arrest of judgment, that the declaration is insufficient, because the defendant is neither laid to be a common porter, nor that he is to have any reward for his labor. So that the defendant is not chargeable by his trade, and a private person can not be charged in an action without a reward.

I have had a great consideration of this case, and because some of the books make the action lie upon the reward, and some upon the promise. At first I made a great question whether this declaration was good. But upon consideration, as

in which the bailee kept his own property of a similar character, or knew how he proposed to keep it, yet, as a general rule, it is not the law, and ought not to be. In Doorman v. Jenkins, 2 Ad. & El. 256, which was an action for money left by the plaintiff with the defendant, which, with his own, was left in his (defendant's) barroom, and stolen, TAUNION, J., in commenting upon and repudiating this rule, said, "I am of the opinion that the fact that the defendant lost his own money in the same way, is perfectly immaterial." The same rule was also adopted in the case of Tracey v. Wood, 3 Mason (U. S.) 132, where the defendant was held liable for money belonging to the plaintiff, 'which, with his own, he put into a valise, and left in his berth on a steamer, while he went to the theatre, and it was stolen, and he was held liable.

In Kowing v. Manley, 49 N. Y. 92, 10 Am. Rep. 346, the defendant, as bailee, held property belonging to the plaintiff, which the plaintiff had directed him not to deliver to any one without his written order. The plaintiff's wife presented a written order for the property, purporting to be signed by her husband, and the defendant delivered the property to her, supposing and honestly believing the order to be genuine. It was, in fact, a forgery, and the court held him liable for its value, upon the ground of negligence in not taking proper measures to ascertain the character of the order. See Spooner v. Mattoon, 40 Vt. 300.

vicious and unmanageable, and highly dangerous to ride, should lend it to one who is ignorant of its bad qualities, and conceals them from him, and the rider, using ordinary care and

this declaration is, I think the action will well lie. In order to show the grounds upon which a man shall be charged with goods put into his custody, I must show the several sorts of bailments. And there are six sorts of bailments. The first sort of bailment is, a bare naked bailment of goods, delivered by one man to another to keep for the use of the bailor; and this I call a depositum, and it is that sort of bailment which is mentioned in Southcote's case. The second sort is, when goods or chattels that are useful, are lent to a friend gratis, to be used by him; and this is called commodatam, becau-e the thing is to be restored in specie (locatio et conductio). The third sort is, when goods are left with the bailee to be used by him for hire; this is called locatio et conductio, and the lender is called locator, and the borrower, conductor. The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor; and this is called in Latin, vadium, and in English a pawn or a pledge. The fifth sort is, when goods or chattels are delivered to be carried, or something is to be done about them, for a reward to be paid by the person who delivers them to the bailee who is to do the thing about them. The sixth sort is, when there is a delivery of goods or chattels to somebody who is to carry them, or do something about them, gratis, without any reward for such, his work or carriage, which is th ́s present case. I mention these things, not so much that they are all of them so necessary in order to maintain the proposition which is to be proved, as to clear the reason of the obligation which is upon persons in cases of trust.

But 1

As to the first sort, where a man takes goods in his custody to keep for the use of the bailor, I shall consider for what things such a bailee is answerable. He is not answerable if they are stole without any fault in him; neither will a common neglect make him chargeable, but he must be guilty of some gross neglect. There is, I confess, a great authority against me, where it is held, that a general delivery will charge the bailee to answer for the goods if thus are stolen, unless the goods are specially accepted, to keep them only as you will keep your own. my Lord Coke has improved the case in his report of it, for he will have it, that there is no difference between a special acceptance to keep safely, and an acceptance generally to keep. But there is no reason nor justice in such a case of a general bailment, and where the bailee is not to have any reward, but keeps the goods merely for the use of the bailor, to charge him without some default in him. For if he keeps the goods in such a case with an ordinary care, he has performed the trust reposed in him. But according to this doctrine the bailee must answer for the wrongs of other people, which he is not, nor can not be sufficiently armed against. If the law be so, there must be some just and honest reason for it, or else some universal settled rule of law, upon which it is grounded; and therefore it is incumbent upon them that advance this doctrine, to show an undisturbed rule and practice of the law according to this position. But to show that the tenor of the law was always otherwise, I shall give a history of the authorities in the books in this matter, and by them show, that there never was any such resolution given before Southcote's case. The 29 Ass. 28, is the first case in the books upon that learning, and there the opinion is, that the bailee is not chargeable, if the goods

1 Vide 2 Ld. Raym. 655.

skill, is thrown and injured, the lender would be responsible. By the necessarily implied purpose of the loan, a duty is contracted by the lender towards the borrower not to conceal from him those defects, known to the lender, which may make the

that case.

are stolen. As for 8 Edw. 2, Fitz. Detinue, 59, where goods were locked in a chest, and left with the bailee, and the owner took away the key, and the goods were s'olen, and it was held that the bailee should not answer for the goods. That case they say differs, because the bailor did not trust the bailee with them. But I can not see the reason of that difference, nor why the bailee should not be charged with goods in a chest, as well as with goods out of a chest. For the bailee has as little power over them, when they are out of a chest, as to any benefit he might have by them, as when they are in a chest; and he has as great power to defend them in one case as in the other. The case of 9 Edw. 4, 40, b, was but a debate at bar. For Danby was but a counsel then, though he had been chief justice in the beginning of Ed. 4. yet he was removed and restored again upon the restitution of Hen. 6, as appears by Dugdale's Chronica Series. So that what he said can not be taken to be any authority, for he spoke only for his client; and Genney for his client said the contrary. The case in 3 Hen. 7, 4, is but a sudden opinion, and that but by half the court; and yet that is the only ground for this opinion of my Lord Coke, which besides he has improved. But the practice has been always at Guildhall, to disallow that to be a sufficient evidence to charge the bailee. And it was practised so before my time, all Chief Justice Pemberton's time, and ever since, against the opinion of When I read Southcote's case heretofore, I was not so discerning as my brother Powys tells us he was, to disallow that case at first, and came not to be of this opinion, till I had well considered and digested that matter. Though I must confess reason is strong against the case to charge a man for doing such a friendly act for his friend, but so far is the law from being so unreasonable, that such a bailee is the least chargeable for neglect of any. For if he keep the goods bailed to him but as he keeps his own, though he keeps his own but negligently, yet he is not chargeable for them; for the keeping them as he keeps his own, is an argument of his honesty. A fortiori he shall not be charged, where they are stolen without any neglect in him. Agreeable to this is Bracton, lib. 3, c. 2, 99b. J. S. apud quem res deponitur, re obligatur, et de ea re, quam accepit, restituenda tenetur, et etiam ad id, si quid in re deposita dolo commiserit ; culpæ autem nomine non tenetur, scilicet desidiæ vel negligentiæ, quia qui negligenti amico rem custodiendam tradit, sibi ipsi et propriæ fatuitati hoc debet imputare. As suppose the bailee is an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open, and by reason thereof the goods happen to be stolen with his own; yet he shall not be charged, because it is the bailor's own folly to trust such an idle fellow. So that this sort of bailee is the least responsible for neglects, and under the least obligation of any one, being bound to no other care of the bailed goods, than he takes of his own. This Bracton I have cited is, I confess, an old author, but in this his doctrine is agreeable to reason, and to what the law is in other countries. The civil law is so, as you have it in Justinian's Inst. lib. 3, tit. 15. There the law goes farther, for there it is said: Ex eo solo tenetur, si quid dolo commiserit: culpæ autem nomine, id est, desidiæ ac negligentiæ, non tenetur. Itaque securus est qui parum diligenter custoditam rem furto amiserit, quia qui negligenti amico rem custodiendam tradit non ei, sed suæ facilitati id imputare debet.