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4. A delivery by w?v of pledge, cal!e:l vmluim; and in 

 fuch good* the pawnee lias a fpecial property; and if the 

 goods be the worfe for ulmg, the pawnee mull not ufe 

 them; otherwife he may ufe them at liis peril; as jewels 

 pawned to a lady, if ihe keep them in a bag, and they are 

 ftolen, (he fhall not be charged ; bnt if (he go with them to 

 a plav, and thev are llolen, Ihe (liall be anfwerable. If the 

 pawnee be at a charge in Isceping them, he may ufe them for 

 his reafonable charge; but if, notwilhllanding all his dili- 

 gence, he loi'e the pled,;e, yet he (hall recover the debt. 

 But if he lofe it after the money tendered, he (hall be 

 chargeable, for he is a wrong-doer; after money paid (and 

 tender and refufal is the fame) it ceafts to be a pledge, and 

 therefore the pawnor mr.y either bring an a^'\ion of ajumjjn, 

 and declare that the defe'rdanc promifed to return the goods 

 upon requeft; or trover, the property being veftedin him by 

 the tender. 5. A deliveiy of goods to be canied for a re- 

 ward. (See Carrier.) 6. A dehvery of goods to do fome 

 aa about them (as to cany) without a reward, called by 

 Braaon mamlatum, in Engllfli, an afting by commiflion; 

 and though he get nothing for his pains, yet if there were 

 any negleft in him, he will be anfwerable, for his having un- 

 dertaken a truft is a fulhcient conlideration ; but if the goods 

 be mifufed by a third pcrfon, in the way, without any 

 neglccl of his, he will not be liable, being to have no 

 rev.'ard. 



On this fubjeft, fir William Jones's " Effay on the Law 

 of Bailment" merits particular attention ; and the following 

 analyfis will convey much knowledge in a iTiort compafs. 

 •■'■ DcjiniUom. I. Bailment, as before at the beginning of 

 this article. 2. Depoft is a bailment of goods to be kept for 

 the bailor without recompence. 3. Mandate is a bailment of 

 goods, without reward, to be carried from place to place, or 

 to have fome aft performed about them. 4. Lentllng for 

 vfe is a bailment of a thing for a certain time, to be uled by 

 the borrower without paying for it. 5. Pleelgtng, is a bad- 

 ment of goods by a debtor to his creditor, to be kept till 

 the debt be difcharged. 6. Letting to hire is (l) a bailment 

 of a thing to be ufed by the hirer for a compenfation in 

 n-.oney ; or (2) a letting out of work and labour to be done, 

 or cire and attention to be beftowcd, by the bailee on the 

 goods bailed, and that for a pecuniary recompence; or (3) 

 of care and pains in carrj'ing the things delivered from one 

 place to another, for a llipulated or implied reward. 7. 

 Ii.nominite bailments are thefe where the ccunpenfation for 

 the I'.Te of a thing, or for labour and attention is not pecu- 

 niarv ; but cither ( I ) the reciprocal ufe or the gift of fome 

 othtr thir.^; or (2) work and pains reciprocally under- 

 tak.-n; or (3) the ufe or gift of another thing in conlider- 

 ation of care and labour; and converfely. 8. Ordinary ne- 

 gi-a, is the omilTion of that care, which every man of com- 

 mon prndence, and capable of governing a, family, takes of 

 his own concerns, 9. Grofs neglect, is the want of that care 

 •which every man of common fenfe, how inattentive foever, 

 takes of his own property, xo. Slight neglect is the omil- 

 fion of that diligence which very circumfpeft and thought- 

 ful p.-rfons ufe in fecuring their own goods and chattels. 

 i\.'yl naked contract is a contrast, made without confidera- 

 ticn or recompence. 



'• II. The rules which may be confidered as axioms flow- 

 ing from natural reafon, good morals, and found policy, are 

 thefe. I. A bailee who derives no benefit from his under- 

 taking, is refponlible only for grofs negleft. 2. A bailee 

 who alone receives benefit from the bailment, is refponfible 

 for flight neglea. 3. When the bailment is beneficial to 

 both parties, the bailee mull anfwer for ordinary negleft. 

 4. A fpecial agreemeat of any bailee to anfwtr for more or 



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Icfs, is in general valid. 5. All bailees are anfwerable foi 

 adua! fraud, even though the conti-ary be lllpnlated. 6. 

 No bailee (hall be charged for a lofs by inevitable accident or 

 in-Lfidible force, c;;cept by fpecial agreement. 7. Robbery 

 by force is confidered as irrelillihle; but a lofs by private 

 (teahli is prefnmptive evidence of ordinary neglect. 8. 

 Grols neglcri is a violation of good faith. 9. No aftiorr 

 lies to compel performance of a naked contraA. 10. A 

 reparation may be obtained by fuit for every damage occa- 

 fioned by an injury. 1 1. The negligence of a fervar.t, acting 

 by his mailer's exprcfs or implied order, is the negligence of 

 the mailer. 



" in. From tlicfc ndts the follov.-irg propofitions are 

 evidently dcducible. I. A dtpoutary is reiponfible only for 

 grols negleft ; or, in other words, ior a violation of good 

 faith. 2. A depofitary, whofe charafter is known to his 

 depofitor, (liail not anfwer for mere negleit, if he take no 

 better care of his own goods, and they alfo be fpoiled or 

 deflroyed. 3. A mandatary to carry is refponfible only for 

 grofs negleft, or a breach of good faith. 4. A mandatary 

 to perform a work is bound to ufe a degree of diligence 

 adequate to the performance of it. 5. A man cannot be 

 compelled by aAion to perform his promife of engaging in 

 a dcpofit or mandate; but, — 6. A reparation may be ob- 

 tained by luit ior da;nage occalioned by the non-performance 

 of a promife to become a depofitary, or a mandatary. 7. 

 A borrower for ufe is refponfible for flight negligence. S. 

 A pawnee is anfwerable for ordinary negltft. 9. The hirer 

 of a thing is anhverable for ordinary neglect. 10. A work- 

 man for hire mull anfwer for ordinary' neglect of the goods 

 bailed, and mull apply a degree of fliill equal to his under- 

 taking. 1 1. A letter to hire of his care and attention, is re- 

 fponfible for ordinary negligence. 12. A carrier for hire by 

 land or by water is anfwerable for ordinary neglect. 



" IV. Exceptions to the above rules and propofitions. 

 I. A man who fpontaneoufly and officioufly engages to keep 

 or to carry the goods of another, though without reward, 

 muft anfwer for flight negledt. 2. If a man through ilrong 

 perfuafion and with reluftance undertake the execution of a 

 mandate, no more can be required of him than a fair exer- 

 tion of his ability. 3. All bailees become refponfible for 

 loiTes by cafualty or violence, after their refufal to return the 

 things bailed; on a lawful demand. 4. A borrov/cr and a 

 hirer are anfwerable in all events, if they keep the things 

 borrowed or hired after the llipulated time, jr ufe them 

 differently from their agreement. 5. A depofitary and a 

 pawnee are anfwerable in all events if they ufe the things 

 depofited or pawned. 6. An inn-keeper is ciiargcable for 

 the goods of his guefl within his inn, if the guclls be robbed 

 by the fervants or inmates of the keeper. 7. A common 

 carrier by land or by water muft indcnniify the owner of the 

 goods carried, if he be robbed of them. 



" V. It is no exception, but a corollary from the rules, 

 that every bailee is refponfible for a lofs by accident or force, 

 however inevitable or irrefiflible; if it be occafioned by that 

 degree of negligence for which the nature of his contraiil 

 makes him generally anfwerable." 



The following cafes may ferve to illullrate the above 

 principles. 



A man leaves a cheft locked up with another to be kept, 

 and doth not make known to him what is therein; if the 

 chcll and goods in it are ftolen, the pei fon who received 

 them fliall not be charged for the fame, for he was not trufted 

 with them. And what is faid as to dealing is to be under- 

 ftood of all other inevitable accidents; but it is necefiary 

 for a man that receives goods to be kept, to receive them in 

 a fpecial manner, viz. to be kept as bis own, or at the peril 



of 



