246 



LEVERY-STABLE KEEPEES, AGISTERS, ETC. 



Xegligence of 

 a bailee. 



Eule fis to 

 negligence of 

 gratuitous 

 bailee. 



Use strictly 

 personal. 



Cannot bo 

 used by a 

 servant. 



he borrows, that he is a person of compefent skill. If a 

 person more skilled knows that to be dangerous which 

 another, not so skilled as he, does not, surely that niakes 

 a difference in the liability. I said I could see no differ- 

 ence ^between negligence and gross negligence — that it was 

 the same thing with the addition of a vituperative 

 epithet " (e). 



Whether there is a distinction, and what that distinc- 

 tion is, if there be one, between negligence and gross negli- 

 gence, is a matter of little importance ; but one thing is 

 settled, that the negligence of a gratuitous bailee, to be 

 actionable, differs from the negligence which would be 

 actionable in a bailee, who is not gratuitous, and the dis- 

 tinction appears to be that a gratuitous bailee is not liable 

 for simple negligence, for which a borrower would be Hable, 

 but only for such negligence as he is guilty of in .spite of 

 the better sliill or knowledge, which he either actually had, 

 or undertook to have {/). 



And the principle upon which he is liable is thus well 

 laid down in Coggs v. Bernard (g) : " If a man will enter 

 upon a thing, and take the trust upon himself, and mis- 

 carries in the performance of the trust, an action will lie 

 against him for that ; though no one could have compelled 

 him to do the thing." 



In cases of mere gratuitous loan, the use is to be deemed 

 strictly a personal favour and confined to the borroiver, 

 unless a more extensive use can be implied from other 

 circumstances ; such, for instance as lending the horse on 

 triiil. In general it may be said, in the absence of all 

 controlling circumstances, that the use intended by the 

 parties is the natural and ordinary use for which the thing 

 is adapted (/«). 



A borrowed horse cannot be used by a servant. Thus, 

 where an action of trespass was brought for immoderately 

 riding the plaintiff's horse, it appeared that the defendant 

 had borrowed the animal, and that he and his servant had 

 ridden it by turns. It was held that the licence was 



{e) IFihon v. £rett, 11 M. & "W. 

 11 a. See also per Willes, J., in 

 Grill V. General Iron Screw Colliery 

 Co., L. R., 1 C. P. 612. 



(/) I'er Pollock, C.B., Seal v. 

 SoiUh Devon Mail. Co., 5 H. & N. 

 881 ; Austin v. Manchester Hail. 

 Co., 10 C. B. 454; Giblin T. 



McMullen, L. R., 2 P. C. 317. 



{!/) Coggs v. Bernard, \ Smith's 

 L. C. 9th ed. 201 et seq. ; Giblin v. 

 MciluUen, L. R., 2 P. C. 317. 



(/() Story on Bailments, 161 ; and 

 Lord Camoys v. Scurr, 9 C. & P. 

 386. 



