taken by eminent domain before transfer of the property, becoming entitled thereby to damages for the taking. In the later of these two decisions the assessed damages were exactly one-third of the contract price.2

Samuel Williston.

1 Kuhn v. Freeman, 15 Kan. 423; Gammon v. Blaisdell, 45 Kan. 221. When Kuhn v. Freeman was decided, the eminent judge who wrote the opinion of the court in Whitaker v. Hawley, supra, was a member of the court.

2 A lease of personal property might be thought to approach more closely to a continuing contract, but such leases are rare. In the Southern States leases of slaves were formerly not unusual, and opinion was divided as to whether the loss in case of death fell upon the lessor or lessee. It was held that the lessee was excused from paying the stipulated hire in Collins v. Woodruff, 9 Ark. 463; Dudgeon v. Teass, 9 Mo. 857; Bacot v. Parnell, 2 Bailey, 424; Maldrow v. Wilmington, &c. R. R., 13 Rich. 69; Townsend v. Hill, 18 Tex. 422; George v. Elliott, 2 Hen. & Mun. 5. So emancipation by law was held to relieve the hirer from any obligation to pay rent thereafter. Wilkes v. Hughes, 37 Ga. 361; Mundy v. Robinson, 4 Bush, 342. On the other hand, by other courts it was held that the hirer was not relieved in case of the slave's death: Ricks's Adm. v. Dillahunty, 8 Port. 134; Lennard v. Boynton, 11 Ga. 109; Harrison v. Murrell, 5 T. B. Mon. 359 (see also Redding v. Hall, 1 Bibb, 536; Griswold v. Taylor's Adm., 1 Met' (Ky.) 228; Hughes v. Todd, 2 Duv. 188); Harmon v. Fleming, 25 Miss. 135; Hicks v. Parham, 3 Hayw. (Tenn.) 224; Wharton v. Thompson, 9 Yerg. 45; Dickinson v. Cruise, Head, 258; or emancipation, Coward v. Thompson, 4 Coldw. 442. In all these cases it is to be noticed there was not simply deterioration, but absolute destruction of the leased property. But slaves were an unusual kind of chattel, and it was held that the lease of a slave gave the lessee a property right, an estate in the slave so to speak, for the term of the lease: Smoot v. Fitzhugh, 9 Port. 72; Harmon v. Fleming, 25 Miss. 135; McGee v. Currie, 4 Tex. 217, 222. Specific performance was also granted of contracts relating to them. Murphy v. Clark, 9 Miss. 221; Williams v. Howard, 3 Murph. 74; Horry v. Glover, 2 Hill's Ch. 515; Henderson v. Vaulx, 10 Yerg. 30, 37. Compare Randolph v. Randolph, 6 Rand. 194.

A lease of a furnished house includes personal as well as real property. In Whitaker v. Hawley, 25 Kan. 674, it was held that the absolute destruction of the personal property relieved the tenant from the payment of the rent reserved as a lump sum for both personalty and realty, but it was held otherwise in Bussman v. Ganster, 72 Pa. 285. See also Womack v. McQuarry, 28 Ind. 103; Clinton v. Hope Ins. Co., 45 N. Y. 454. A contract to assign the residue of a term in a furnished house was held excused by the destruction of the premises. Bacon v. Simpson, 3 M. & W. 78.

In the civil law a hiring gives the hirer merely a contractual right, and wherever that system of law prevails, the hirer is excused not simply by the destruction, but also by the injury of the leased property, to an extent proportional to the injury. Hunter's Roman Law (2d ed.), 506, 508. Pothier, Contrat de Louage, sections 138-143; Code Civil Art. 1722, 1 Bell, Comm. (9th ed.) § 1208; Windscheid, Lehrb. des Pandekt. § 400; Code of Louisiana, Art. 2667. The law in Newfoundland seems to be the same, by custom. Broom v. Preston, Sel. Cas. S. C. Mewf. 491 (referred to in Gates v. Green, 4 Paige, Ch. 355). A lease in the civil law is, therefore, analogous to a contract of sale. The civilians who support the doctrine of the Roman law as to risk in contracts of sale, have always been troubled to reconcile the law as to leases. Hofmann seems clearly right in saying that reconciliation is impossible. Periculum beim Kaufe, 18–21.

A REVIEW OF THE LAW OF SAFE-DEPOSIT

THE

COMPANIES.

HE business of conducting public safe-deposit vaults is a comparatively new one in this country, the first of these institutions having been established but about thirty years ago. It was a natural development of the custom that formerly existed among banks of gratuitously according space in their vaults to customers having valuables for which they desired unusual protection.

As soon as vaults were established by incorporated companies as separate institutions, the companies, in offering to the public the protection to be obtained from them, assumed toward their patrons distinct relations and liabilities peculiar to the business from its nature. It has been necessary that these relations and liabilities should be defined and established at law, and the constantly increasing extent of the business and the importance of its position being recognized, it becomes a matter worthy of attention to consider what these are as interpreted by the courts. While the number of cases that have come before them in which safe-deposit companies are primarily involved is singularly small, those adjudicated have at the same time made clear the leading principles applicable to the business.

The important points to be considered may be stated as follows:

I. The legal relation between the company and its depositors. II. The nature and extent of the liability of the company. III. The position and duty of the company in case of legal proceedings against the property of a depositor.

IV. The relation between depositors having a community of interest in a safe.

I. The Legal Relation between the Company and its Depositors.

This resembles in certain respects two species of relation recognized by law, those of landlord and tenant and bailor and bailee. The resemblance to the first exists merely in form, however, suggested by the execution of the contract for hiring of the safe in the shape of a lease. In fact, there can be no relation of land

lord and tenant between them for two reasons: first, because the contract has nothing to do with real estate. This is shown by the exactly analogous case of an agreement for board and lodging with a designation of the particular rooms to be occupied. In such a case it was held that "the technical relation of landlord and tenant is not created between the parties. The lodger acquires no interest in the real estate. If he is turned out of the rooms before the time expires, he cannot maintain ejectment, and while he remains the hotel-keeper cannot get his pay by distraining as for rent in arears." Wilson v. Martin, I Denio, 602; White . Maynard, III Mass. 250.1 The second reason is found in the agreement on the part of the company, either expressed in the contract or implied from the nature of the business, to guard the safe. This agree ment fully establishes between the parties the relation of bailor and bailee, and it is this that is recognized by the courts as their legal relation.

In the case of Roberts v. The Stuyvesant Safe-Deposit Company (123 N. Y. 57), where the point was specifically passed upon, this is distinctly stated by the court to be the relation between the parties. In defining the liability of the company under it, the court cites the case of Jones v. Morgan (90 N. Y. 4). The latter case very aptly illustrates the contract relations and liabilities of the company, from the fact that the nature of the contract upon which action was brought is so entirely similar to that of the one existing between a safe-deposit company and its depositors. It is interesting, therefore, to consider it in detail.

The defendant owned a building in the city of New York. Under an agreement with the plaintiff, who desired to store for safe-keeping certain household furniture, a space was allotted to her in said building, and the defendant assured her that her goods would be safe and would be guarded day and night. The allotted space was enclosed by wooden partitions with a door, upon which were two locks, the key of one of which was kept by the plaintiff. Most of the property was stolen by those in charge of the building. In an action to recover damages, it was held that the contract between the plaintiff and the defendant was one of bailment; that the defendant was liable as warehouseman, and was bound to exercise

1 In the last particular, in the case of a safe-deposit company, the mode of procedure against the property of a depositor for arrears of rent is regulated in some States by statute. N. Y., L. 1875, c. 613, art. 15, as amend. 1886, c. 498; Mass., L. 1887,

c. 89.

ordinary care and prudence. The defendant contended that the relations between himself and the plaintiff were those of landlord and tenant, and that he was not responsible for property placed in the space leased. This contention was not sustained, on the ground that, when he agreed to guard the space leased, and assured the plaintiff that her property would be safe, he rendered himself liable as bailee. The court, in their opinion by Earl, J., said:

"It is a species of bailment like that existing in the case of the depositor in a safe-deposit company, who hires a box for his valuables and keeps the key. . . . He may keep the key, but the company, [even] without special contract to that effect, would be held to at least ordinary care in keeping the deposit; and the duty of such care would arise from the nature of the business it was carrying on, and the obligation to discharge it would be implied from the relation between the parties."

II.

The Nature and Extent of the Liability of the Company.

It is in its character of bailee that the company meets its liability for negligence. In general, the extent of this is measured by the degree of deviation from the care required of the ordinary bailee or depositary for hire, which is the care that a "prudent and intelligent" man would exercise in regard to his own property under similar circumstances. There are two leading cases in which the liability of the company for negligence is considered, and understanding of the nature of the company's responsibility cannot better be had than through an abstract of them.

The first is that of the Safe-Deposit Company of Pittsburgh v. Pollock (85 Penn. State, 391), where the company contracted with a depositor to "keep a constant and adequate guard and watch. over and upon the safe" rented by him. A number of bonds deposited therein were found to be missing. The jury found that the depositor put them in the safe, and did not remove them therefrom. There was no evidence that the vault or the safe had been broken, or that the lock had been tampered with. These facts being unquestioned, and the bonds having been taken from the safe, it necessarily followed that it had been opened with a key suited to the lock. The fact that the bonds were taken under these circumstances was evidence that the company had not kept "a constant and adequate guard and watch over and upon the safe," as by its agreement it was bound to do. It was held from these facts that the manner in which the bonds were undoubtedly taken threw upon

the company the necessity of making some explanation for the absence of the bonds, and that the question as to whether or not the company was guilty of negligence was properly left to the jury.

The other case is that of Roberts v. The Stuyvesant Safe-Deposit Company (123 N. Y. 57), previously referred to. There property was taken from the safe of a depositor in the vault of the company by officers acting under a search warrant. The description in the warrant of the property sought for did not sufficiently correspond with the property found in the safe to establish its identity as the property in question. Nevertheless, the officers removed it. It was held that the taking of the property under such circumstances was a trespass, which should have been prevented, if possible, by the officers of the company; or they should have used legal means to regain possession of it.

The court stated the rule establishing the duty of the company as follows:

"When property in the custody of a bailee for hire is demanded by third persons, under color of process, it becomes his duty to ascertain whether the process is such as requires him to surrender the property, and if it is not, then it is his right and duty to refuse, and to offer such resistance to the taking, and adopt such measures for reclaiming it, if taken, as a prudent and intelligent man would, if it had been demanded and taken under a claim of right to the property by another without legal process. The defendant did not discharge the duty that it owed to the bailor and owner of the property by merely making a formal protest against entering the vaults where the property was."

It is appropriate to advert here to the rule of evidence applied in the case of the Safe-Deposit Company of Pittsburgh v. Pollock, to the effect that, in cases against safe-deposit companies for damages on account of negligence, the burden of proof is on the plaintiff, unless there is prima facie evidence of negligence on the part of the defendant, calling for explanation from him. This follows the general rule, as stated in Edwards on Bailments, Art. 399, thus: "It rests with the party alleging a fact by way of maintaining or defending an action to establish it by evidence."

What constitutes prima facie evidence is thus given in the same paragraph: "The bailor makes a prima facie case when he shows such loss or damage to the chattel as ordinarily does not happen when the care which the law requires in the particular kind of bail