have their damages arising from the | against the contractor as a debtor. breach of contract by the complain- The proceeding is in rem-a controversy over a particular fund, involving only the amount due to the contractor from the owner and the amount due to the lien claimants respectively. This part of the answer which is in the nature of a cross bill, was properly struck out by the vice chancellor. To that extent the order appealed from is affirmed; but that part of the order which directed the striking out of the same allegations in the answer should be reversed, and a decree entered in accordance with the views expressed in this opinion. No costs shall be allowed to either party."

ant set out in the answer assessed in a court of law, within such time and in such manner as the court of chancery may direct. The part of the answer which is in the nature of a cross bill is superfluous, and is not adapted to present the defense. It is true that by the act of 1896 it is provided that, if the amount of such damages recouped shall exceed the demand of the plaintiff, judgment shall be given in favor of the defendant and against the plaintiff in such action for such excess, with costs; but that part of the statute is inapplicable to this procedure. There is in this statute no provision for a personal judgment 125

1985

§ 1925. Liability for damages-Generally.-In determining the liability of a bailee for damages there are certain factors of governing importance and these are: (1) The different kinds of bailments. (2) Their nature, the legal obligations

1 "This contract is of five kinds : | his creditor to be kept by the cred(1) Depositum, a bailment of a chat-itor till the debt be discharged; (5) tel to be kept for the bailor and re-locatio, a bailment of a chattel to turned upon demand without recom- one who is to enjoy the temporary pense; (2) mandatum, a bailment use thereof and pay, for such use, of a chattel to one who undertakes, a reasonable compensation to the without recompense, to do some act bailor, or who is to expend labor or for the bailor in respect to the thing services thereon and receive, for bailed; (3) commodatum, a bail- such labor or services, a reasonable ment of a chattel, for a certain time, compensation from the bailor." to be used by the bailee without Robinson's Elementary Law, sec. paying for its use; (4) pignus, a 178. bailment of a chattel by a debtor to

"There are six sorts of bailments.

arising from these various kinds and the duty, or degree of care or diligence, imposed thereby. That eminent authority, Judge Story, in his work on bailments has classified the legal requirements as to the relative degrees of duty and negligence as follows: "When the bailment is for the benefit of the bailor, the law requires only slight diligence on the part of the bailee, and of course makes him answerable only for gross neglect. When the bailment is for the sole benefit of the bailee, the law requires great diligence on the part of the bailee, and makes him responsible for slight neglect. When the bailment is reciprocally beneficial to both parties, the law requires ordinary diligence on the part of the bailee and makes him responsible for ordinary neglect." It is also declared that in all bail

about them gratis, without any reward for such work or carriage." Lord Holt in Coggs v. Bernard, Ld. Raym. 909; 1 Smith's Lead. Cas. 354; 2 Black. Comm. (1 Cooley's ed. and 4th ed. by Andrews) 451 note 2.

As to other classifications, see 2 Bl. Com. (1 Cooley's ed., and id., 4th ed., by Andrews), 451, note (citing Jones on Bailm. secs. 4-10); Schouler's Bailm. (ed. 1880) pp. 11 et seq.; Field on Dam. (ed. 1876) sec. 359 (citing Story's Bailm. sec. 2; 2 Pars. Cont. 88); 5 "Cyc." Law and Proc. pp. 162, 163 (citing Jones on Bailm. sec. 36; Schouler's Bailm. sec. 14; Story's Bailm. sec. 14, and noting other classifications).

The first sort of bailment is a bare | carry them, or to do something naked bailment of goods delivered by one man to another to keep for the use of the bailor; and this I call depositum; and it is that sort of bailment which is mentioned in Southcope's Case, 4 Rep. 83. 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 commodatum, because the thing is to be restored in specie. 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 lendor is called the locator and the borrower conductor. The fourth sort is when goods or chattels are delivered to another as a pawn, to be security to him for money borrowed of him by the bailor; and this is called in latin vadium, and in English a pawn or pledge. The fifth sort is when the 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 where there is a delivery of goods or chattels to somebody who is to

As to trover and conversion, see secs. 1105-1180, herein.

As to carriers and baggage, see ch. 67, 68, herein.

2 Field on Dam. (ed. 1876) sec. 359.

8

3 This quotation is given in Woodruff v. Painter, 150 Pa. St. 191; 24 Atl. 621; 1 Am. Neg. Cas. 872, which is also quoted by Duffie, J., in Sulpho Saline Bath Co. v. Allen (Neb. 1902), 92 N. W. 354; 13 Am. Neg. Rep. 141, 144, 145, which latter

ments the nature and value of the property affects the question of ordinary care and this degree of care is such as the gener

1903), 13 Am. Neg. Rep. 533; 66 N. E. 803; Pelton v. Nichols, 180 Mass. 245; 62 N. E. 1; Dixon v. McDonnell, 92 Mo. App. 479; Dailey v. Black, 92 Mo. App. 228; Rettner v. Minnesota Cold Storage Co. (Minn. 1903), 93 N. W. 120; Curran

was a case where a bathing house | York, N. H. & H. R. R. Co. (Mass. keeper was held liable for the value of property entrusted to his care and the former case was a suit to recover the value of a watch, which, at the direction of a clerk, the bailor had placed in a drawer while trying on a suit of clothes. As to degree of care and diligencev. Olson (Minn. 1903), 92 N. W. required and as to negligence and degrees thereof, see 5 Cyc. Law and Proc. p. 181 et seq.; James v. Orrell, 68 Ark. 284; 57 S. W. 931; Union Compress Co. v. Nunnally, 67 Ark. 284; 54 S. W. 872; Bashinsky & Co. v. Seals, 135 Ala. 357; 33 So. 675; Cartlidge v. Sloan (Ala.), 26 So. 918; Higman v. Camody, 112 Ala. 267; 20 So. 480; Taussig v. Bode & Haslett, 134 Cal. 260; 66 Pac. 259; 54 L. R. A. 774; 64 Pac. 108; Cussen v. Southern Cal. Sav. Bk., 133 Cal. 534; 65 Pac. 1099; Pusey v. Webb, 2 Pennewill (Del.), 490; 47 Atl. 701; Bank of Forsyth v. Davis, 113 Ga. 341; 38 S. E. 836; Mauck v. Atlanta Trust & Bkg. Co., 113 Ga. 242; 38 S. E. 845; Watson v. Loughran, 112 Ga. 837; 38 S. E. 82; Mayer v. Brensinger, 180 Ill. 110; 54 N. E. 159; Sibley Warehouse & Storage Co. v. Durand & Kasper Co., 102 Ill. App. 406, aff'd 200 Ill. 354; 65 N. E. 676; Brewster v. Weir, 93 Ill. App. 588; Saunders v. Hartsook, 85 Ill. App. 55; Bass v. Canton, 123 Ind. 444; Loomis v. Reimers (Iowa, 1903), 93 N. W. 95; Morgan v. Penick, 23 Ky. L. Rep. 27; 62 S. W. 479; Day v. Kenton, 22 Ky. L. Rep. 1917; 62 S. W. 3; Kimball v. Dahoney, 18 Ky. L. Rep. 937; 38 S. W. 3; Garvey v. Crouch, 18 Ky. L. Rep. 84; 35 S. W. 273; O'Kelley v. Ferguson, 49 La. Ann. Texas C. R. Co. v. Flanary (Tex. 1230; 22 So. 783; Levins v. New | Civ. App.), 50 S. W. 726; Spencer

1124; Isham v. Post, 141 N. Y. 100; 56 N. Y. St. R. 656; 35 N. E. 1084; 23 L. R. A. 90, rev'g 54 N. Y. St. R. 232; 23 N. Y. Supp. 211, 1168; 71 Hun, 184, which aff'd 23 N. Y. Supp. 211; 3 Misc. 184; Willetts v. Hatch, 132 N. Y. 41; 43 N. Y. St. R. 405; 28 Abb. N. C. 225; 30 N. E. 251, 17 L. R. A. 193 and note, aff'g 16 Daly, 328; 32 N. Y. St. R. 608; 11 N. Y. Supp. 73; Stewart v. Stone, 127 N. Y. 500; 40 N. Y. St. R. 314; 28 N. E. 595; 14 L. R. A. 215, aff'g 16 N. Y. St. R. 52; Roberts v. Stuyvesant Safe Dep. Co., 123 N. Y. 57; 33 N. Y. St. R. 175; 25 N. E. 294; 9 L. R. A. 438, rev'g 49 Hun, 117; 16 N. Y. St. R. 967; 1 N. Y. Supp. 862; King v. New Brunswick, A. & N. Y. S. Co., 73 N. Y. Supp. 999; 36 Misc. 555; Whalen v. New York & S. I. Elec. Co., 63 App. Div. N. Y. 615; 71 N. Y. Supp. 593; Lyons v. Thomas, 68 N. Y. Supp. 802; 34 Misc. 175; Lucia v. Ornel, 53 App. Div. (N. Y.) 641; 66 N. Y. Supp. 1136, aff'g 46 App. Div. 400; 61 N. Y. Supp. 659; A. H. Motley & Co. v. Southern Finishing Co., 126 N. C. 339; 35 S. E. 601; Merchants' & M. Nat. Bk. v. William A. Baeder Glue Co., 164 Pa. 1; 25 Pitts. L. J. N. S. 122; 35 W. N. C. 69; 2 Ohio Leg. N. 69; 30 Atl. 290; Chafee v. Postal Tel. Cable Co., 35 S. C. 372;

5

4

ality of mankind use in their own affairs. It may, therefore, be generally stated, in connection with the foregoing principles, that if an innkeeper is chargeable with negligence he is responsible in damages, except in cases of a guest's contributory negligence, and subject to certain other exceptions. An action for damages may also be brought for such an unlawful dealing with a pledge as constitutes a conversion. The plaintiff may, however, instead thereof sue for possession of the thing pledged. And where stock is pledged to secure the payment v. Shelburne, 11 Tex. Civ. App. | Laird V. Eichold, 10 Ind. 212; 521; 33 S. W. 260; Foster v. Pacific Packard v. North Craft, 2 Metc. Clipper Line, 30 Wash. 515; 71 (Ky.) 439; Carter v. Hobbs, 12 Pac. 48; Hildebrand v. Carroll, 106 Mich. 52; Sibley v. Aldrich, 33 N. Wis. 324; 82 N. W. 145; Sturm v. H. 553; Ingallsbee v. Wood, 33 N. Boker, 150 U. S. 312; 14 Sup. Ct. Y. 577; Howth v. Franklin, 20 Tex. 99; 37 L. Ed. 1093; Northwestern 798; Reed v. Amidon, 41 Vt. 15; Nat. Bk. v. J. Thompson & Sons McDaniels v. Robinson, 26 Vt. 316. Mfg. Co., 36 U. S. App. 413; 17 C. C. A. 638; 71 Fed. 113; Judd v. New York & T. S. S. Co. (U. S. C. C. A. Pa.), 54 C. C. A. 238; 117 Fed. 206; 55 C. C. A. 438; 118 Fed. 826; McKeage v. Pope, Rap. Jud. Quebec, 10 C. S. 459; Leggo v. Welland Vale Mfg. Co. (C. A.), 2 Ont. Law Rep. 45.

4 Minnesota Butter & Cheese Co. v. St. Paul Cold Storage Warehouse Co., 75 Minn. 445; 77 N. W. 977, per Buck, J.

6 Hawley v. Smith, 25 Wend. (N. Y.) 642; Dickerson v. Rodgers, 4 Humph. (Tenn.) 179. See Woodworth v. Morse, 18 La. Ann. 156; Burrows v. Trieber, 21 Md. 320; Dickinson v. Winchester, 4 Cush. (Mass.) 114; Williams v. Moore, 69 Ill. App. 618; Fisher v. Kelsey, 121 U. S. 383; Elcox v. Hill, 98 U. S. 218.

6 Chamberlain v. Masterson, 26 Ala. 371; Profilet v. Hall, 14 La. Ann. 524. See Fowler v. Dorlon, 24 Barb. (N. Y.) 384.

7 See Mateer v. Brown, 1 Cal. 221; Kelsey v. Berry, 42 Ill. 469;

Not liable for loss by inevitable casualty or superior force, without negligence. Merritt v. Claghorn, 23 Vt. 177. That extraordinary diligence is required of an innkeeper, see Sasseen v. Clark, 37 Ga. 242; Packard v. Northcraft, 2 Metc. (Ky.) 439; Burrows v. Trieber, 21 Md. 320; Sibley v. Aldrich, 33 N. H. 533; Huleb v. Swift 42 Barb., (N. Y.) 230. As to liability for gross negligence, see Donlan v. Clark, 23 Nev. 203; 45 Pac. 1. That he is responsible for keeping goods well and safely, and proof of want of negligence is insufficient. Shaw v. Berry, 31 Me. 478.

8 Schaaf v. Fries, 90 Mo. App. 111. See Ledberter v. Thomas (Ala.), 30 So. 343; Brinks, Chicago City Exp. Co. v. Hendricks, 104 Ill. App. 154; Newman v. Olney, 118 Mich. 545; 77 N. W. 9; 5 Det. L. N. 595; Scott v. Reid, 83 Minn. 203; 85 N. W. 1012; Barber v. Hathaway, 169 N. Y. 575; 61 N. E. 1127, aff'g 47 App. Div. 165; 62 N. Y. Supp. 329; Smith v. Durham, 127 N. C. 417; 37 S. E. 473; Union Credit Bk. v. Mersey