BAILMENT. 
630 
which are ufeful to keep, and they are to be returned again 
in fpecie, which is called accommodatum, which is a lending 
gratis \ and in fuch cafe the borrower is (tridtly bound to 
keep them: for, if he be guilty of the lead negleft, he 
(hall be anfwerable, but he’ fhall not be charged where 
there is no default in him. 3. A delivery of goods for 
hire, which is called locatio or conduElio ; and the hirer is 
to take all imaginable care, and reftore them at the time ; 
which care if he fo life, he fliall not be bound. 4. A de¬ 
livery by way of pledge, which is called vadium-, and in 
fuch goods the pawnee has a fpecial property ; and if the 
goods will be the worfe for ufing, the pawnee mutt not 
life them ; othenvife he may ufe them at his peril: as 
jewels pawned to a lady, if the keep them in a bag, and 
they are (lolen, the thall not be charged ; but if (he go 
with them to a play, and they are ftolen, (lie thall be an¬ 
fwerable. So if the pawnee be at a charge in keeping 
them, he may ufe them for his reafonable charge; and, if 
notwithfianding all his diligence he lofe the pledge, yet he 
•fhall recover the debt. But, if he lofe it after the money 
.tendered, he fhall be chargeable, for he is a wrong doer; 
after money paid (and tender and refufal is the fame) it 
ceates to be a pledge, and therefore the pawnor may either 
bring an a£tion of affumpfit, and declare that the defend¬ 
ant promifed to return the goods upon requeft; or trover, 
the property being vetfed in him by the tender. 5. A de¬ 
livery of goods to be carried for a reward, for which fee 
the article Carrier. It may here be added, that the 
plaintiff ought to prove the defendant ufed to carry goods, 
and that the goods were delivered to him or his fervant 
to be carried. And, if a price be alleged in the declara¬ 
tion, it ought to be proved the ufual price for fuch a fiage ; 
and if the price he proved there need no proof, the de¬ 
fendant being a common carrier: but there need not be a 
proof of a price certain. 6. A delivery of goods to do 
dome act about them (as to carry) without a reward, which 
is called by Brafton mandatunr, in Englith, an acting by 
commiflion : and, though lie be to have nothing for his 
pains, yet, if there were any neglcdt.in him, he will be an¬ 
fwerable, for Iris having undertaken a truft is a fufficient 
confideration ; but if the goods be mifufed by a third per- 
fon, in the way, without any negleft of his, he would not 
be liable, being to have no reward. See lord chief juftice 
Holt’s opinion, in the cafe of Coggs v. Bernard, 2 Ld. 
Raym. 909. Sir W. Jones's EJJay on the Law of Bailment, p. 35. 
Com. Rep. 133, with Mr. Rofe’s notes, jlnjl.'&c). yRep.%i. 
1 Rol. Ab. 338. \Infl.%c)b. DoEl.&St. 129. 1 NezvAb. 243. 
Having mentioned'Sir W. Jones’s Effay on the Law of 
Bailment, we cannot help recommending it to the atten¬ 
tion of the rational (indent; and for the ufe of fuch, ex¬ 
tracting the following analyfis, which will in general be 
found to be confonant witli the determinations in the 
books* and convey much knowledge in a thort compafs. 
Sir W. Jones differs in a few points from Lord Llolt and 
Lord Coke, and his reafons are defervingof much attention. 
“I. Definitions, i. Bailment, as before, at the be¬ 
ginning of this article. 2. Depofit is a bailment of goods 
to be kept for the bailor without recompence. 3. Man¬ 
date is a bailment of goods, without reward, to be carried 
from place to place, or to have fome a 61 performed about 
them. 4. Lending for ufe is a bailment of a tiling for a 
certain time to be ufed by the borrower without paying 
for it. 5. Pledging, is a bailment of goods by a debtor 
to his creditor, to be kept till the debt be difeharged. 
6 . Letting to hire is, (1) a bailment of a thing to be ufed 
by the hirer for a compentation in money; or (2) a let¬ 
ting out of work and labour to be done, or care and at¬ 
tention to be beftowed, by the bailee on the goods bailed, 
and that for a pecuniary recompence; or (3) of care and 
pains in carrying the things delivered from one place to 
another, for a flipulated or implied reward. 7. Innomi¬ 
nate bailments are thofe where the compenfation for the 
ufe of a thing, or for labour and attention, is not pecunia¬ 
ry; but either . (1) the reciprocal ufe or the gift of fome 
ether thing ; or (2) work and pains reciprocally under¬ 
taken ; or (3) the ufe or gift of another tiling in confide¬ 
ration of care and labour; and converfely. 8. Ordinary 
negleEl, is the oniifiion of that care which every man of 
common prudence, and capable of governing a family, 
takes of his own concerns. 9. Grofs negleEl , is the want 
of that care which every man of common fenfe, how inat¬ 
tentive foever, takes of his own-property. See Pofi. ii. 8. 
10. Slight negleEl, is the oniifiion of that diligence which 
very circumfpeft and thoughtful perfons ufe in fecuring 
their own goods and chattels. 11. A naked contrail , is a 
contract made without confideration or recompence. 
“II. The Rules, which may be confidered as axioms 
flowing fro'm natural reafon, good morals, and found po¬ 
licy, are thefe. 1. A bailee who derives no benefit from 
his undertaking, is refpontible only for grofs negleCt. 2. 
A bailee who alone receives benefit from the bailment, is 
refponfible for (light negleft. 3. When the bailment is 
beneficial to both parties, the bailee mutt anfwer for ordi¬ 
nary neglett. 4. A fpecial agreement of any bailee to 
anfwer for more or lefs, is in general valid. 5. All bailees 
are anfwerable for aitual fraud, even though the contrary 
be flipulated. 6. No bailee fhall be charged for a lofs by 
inevitable accident or irretitlible force, except by fpecial 
agreement, 7. Robbery by force is confidered as irreliffi- 
ble ; but a lofs by private Health is prefumptive evidence 
of ordinary neglect. 8. Grofs negledt is a violation of good 
faith. 9. No adtion lies to compel performance of a na¬ 
ked contrafl. 10. A reparation may be obtained by fuit 
for every damage occafioned by an injury. 11. The neg¬ 
ligence of a fervant a 61 ing by his matter’s exprefs or im¬ 
plied order, is the negligence of the matter, 
“ III. From thefe rules the following Propositions 
are evidently deducible. 1. A depotitary is refponfible 
only for grofs negledt ; or in other words for a violation 
of good faith. 2. A depotitary whofe charabter is known 
to his depofitor, fhall not anfwer for mere negleit, if he 
take no better care of his own goods, and they alfo be 
fpoiled or deftroyed. 3. A mandatary to carry is refpon¬ 
fible only for grofs negledt, 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 adtion to perform his promife of 
engaging in a depofit or a mandate ; but, 6. A reparation 
may be obtained by fuit for damage occafioned by the 
non-performance of a promife to become a depotitary, or 
a mandatary. 7. A borrower for ufe is refponfible for 
flight negligence. 8. A pawnee is anfwerable for ordinary 
negledt. 9. The hirer of a thing is anfwerable for ordi¬ 
nary neglect. 10. A workman for hire mutt anfwer for 
ordinary negledt of the goods bailed, and mult apply a de¬ 
gree of tkill equal to his undertaking. 11. A letter to 
hire of his care and attention, is refponfible for ordinary 
negligence. 12. A carrier for hire, by land or by water, 
is anfwerable for ordinary negledt. 
“ IV. Exceptions’ to the above rules and propofitions. 
1. A man who fpontaneoufly and officioufly engages to 
keep or to carry tire goods of another, though without re¬ 
ward, mutt anfwer for flight negledt. 2. If a man through 
ftrong perfuafion and with reluctance undertake the exe¬ 
cution of a mandate, no more can be required of him than 
a fair exertion of his ability. 3. All bailees become re¬ 
fponfible for Ioffes by cafualty or violence, after their re¬ 
fufal to return the tilings bailed, on a lawful demand. 4. 
A. borrower and a hirer are anfwerable in all events, if 
they keep the things borrowed or hired after the ftipula- 
ted time, or ufe them differently from their agreement. 
3. A depofitary and a pawnee are anfwerable in all events 
if they ufe the things depofited or pawned. 6. An inn¬ 
keeper is chargeable for the goods of his gueft within his 
inn, if the guefts be robbed by fhe fervants or inmates of 
the keeper. 7. A common carrier by land or by water, 
mutt indemnify 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 
3 er 
