their absolute owner, and a bailment thus constituted. A bailment has been defined as "a delivery of a thing Definition of in trust for some special object or purpose, and upon a bailment. an undertaking express or implied to conform to the object or purpose of the trust" (n). Different classi- Division of fications of bailments have been given, but perhaps the Lord Holt in best is found in the judgment of Lord Holt in the Coggs v. leading case of Coggs v. Bernard (o), where they are divided as follows:: 1. Depositum-where goods are delivered to be kept by the depositee without reward for the bailor; 2. Commodatum-where goods are lent to some. person gratis to be used by him; 3. Locatio rei-where goods are lent out to a person for hire; 4. Vadium-where goods are pawned or pledged; 5. Locatio operis faciendi-where something is to be done to goods, or they are to be carried for reward; and 6. Mandatum-where goods are to be carried gratis. bailments by Bernard. mandatum. Of the above, let us first deal with those bailments called depositum and mandatum, they being exactly Depositum and similar to each other in respect that each is the doing of some act by the bailee voluntarily and without reward. Now, in any contract or bailment of a merely voluntary nature a person cannot be compelled to do the act required, for a simple contract requires a valuable consideration (p), and therefore it is said that a voluntary bailee is not liable for nonfeasance, so that though from his not doing what he has contracted to do damage may have arisen to the other party, yet he is not liable (9). (n) Broom's Coms. 800. (0) I S. L. C. 199; Lord Raymond, 909. (9) Elsee v. Gatward, 5 T. R. 143. v. Bernard. But if a bailee enters upon the bailment, as by accepting a deposit of goods, there is sufficient consideration by the intrusting to create a duty in him to perform the matter properly, and if he does not do so he is liable, if he is guilty of such default as to amount to gross negligence; and the before-mentioned case of Coggs v. Bernard is a direct decision to this effect. The facts in that Facts in Coggs case were that the defendant had promised the plaintiff to take up several hogsheads of brandy then in a certain cellar, and lay them down again in a certain other cellar safely and securely; and by the default of the defendant one of the casks was staved, and a quantity. of brandy spilt. It was decided that the plaintiff was entitled to recover, notwithstanding the defendant was not to be paid, but that a voluntary bailee was only liable for gross negligence. This, then, is the general principle of law governing the liability of voluntary bailees, but it has been in some slight degree altered, it being now decided that if a voluntary bailee is in such a situation as to imply skill in what he undertakes to do, an omission to use that skill is imputable to him as gross negligence (). Thus in the case of Wilson v. Brett (cited below), it was held that a person who rode a horse for the purpose of exhibiting and offering him for sale, though he was to receive no reward for doing so, was yet bound to use such skill as he possessed, and that he being proved to be conversant with and skilled in horses, was equally liable with a borrower for any injury done to the horse on account of his omission to use such skill. Wilson v. Commodatum. In the above cases of mandatum and depositum, the reason of the bailee being only liable for his gross neglect is the fact of the bailment being altogether for the bailor's benefit; but in the case of the bailment called commodatum, as the whole benefit is received by (r) Wilson v. Brett, 11 M. & W. 113. the bailee, the liability is different, for here the bailee is strictly bound to use the utmost care, and will be liable for even slight neglect, so that if a person lends a horse to another, and the lendee lets his servant ride it, and it is injured without his fault or the fault of his servant, that will nevertheless be quite sufficient slight neglect on his part to render him liable, for the horse was lent to him, and he had no right to let his servant ride it (s). In the bailment locatio rei, or hiring of goods, the Locatio rei. bailee is bound to use ordinary diligence, and is liable for ordinary neglect, for here the bailment operates for the benefit of both parties; for that of the bailee in that he has the use of the goods, and for that of the bailor in that he has the amount agreed to be paid for the hire. So also the bailment vadium, or pawn, is for the Vadium, or benefit of both parties, the pawner getting a loan of acceptum. pignori money and the pawnee getting the use of the chattel, or interest, or both, and so the liability of the pawnee is only to use ordinary diligence. To constitute a valid pledge there must be either an actual or constructive delivery of the article to the pawnee, and the bailee here looks not only to the property but to the person of the bailor, for if the subject of the bailment is lost and the bailee has used a proper amount of diligence, and the loss has occurred without any fault on his part, he may sue the bailor for the amount of the debt (t). It is not sufficient to exonerate a bailee from responsibility for the loss of the subject of the bailment to shew that it was stolen, but he must also shew that he used due care to protect it (u). As to the right of the bailee in this kind of bailment, it was stated by Lord (s) I S. L. C. 226. (t) 1 S. L. C. 227. (u) Chitty on Contracts, 438. Distinctions between a pawn, a lien, and a mortgage of personal property. Pawnbrokers. Holt, in his judgment in Coggs v. Bernard (v), that if it will do the article no harm, he may use it (as, for instance, the wearing of a jewel pawned), but such user will be at the peril of the bailee; but if the article will be the worse for using, then it must not be used, and the law now seems to be that the pawnee is generally never justified in so using the article pawned, except it be of such a nature that the bailee is at some expense to maintain it (as, for instance, a horse, which naturally requires to be fed), for in such a case as this the bailee may use it in a reasonable way to recompense him for his expenditure (w). A pawn requires to be carefully distinguished from a lien, and from a mortgage of personal estate (x). lien, generally speaking, gives but a right to retain property and no active right in respect of it (y); a mortgage passes the actual property in the goods to the mortgagee, but a pledge simply gives a special or qualified property, and a limited right of possession. The proper remedy of a pawnee to recover his money is on reasonable notice to sell the subject of the pledge or to sue, or if necessary he may adopt both remedies (z). In the one case, however, of a pledge of title-deeds, which constitutes an equitable mortgage, it is now an established rule that the proper remedy of the depositee is to come to the Chancery Division of the Court asking for a foreclosure (a). A certain practically very important kind of pawnees or pledgees are pawnbrokers, and at common law they (v) I S. L. C. 211. (w) Chitty on Contracts, 439. (x) See I S. L. C. 228. (y) See ante, p. 86. (z) I S. L. C. 228. (a) James v. James, L. R. 16 Eq. 153; 42 L. J. Ch. 386. But the case of York Union Bk. Co. v. Artley, L. R. 11 Ch. D. 205, shews that if the deposit of the deeds is accompanied by a memorandum of agreement to execute a legal mortgage, then he is entitled to either a foreclosure or a sale. stood on the same footing as other bailees of that class, and liable, therefore, as before stated. But it must appear that the system of pawning, to those who make it their special and peculiar business, is open to many abuses, both from the necessities persons may be under to induce them to pledge, the desire of others to part with things to which they have no right beyond that of possession, and the opportunities that pawnbrokers may have of advantaging themselves to the injury of the pawners, and accordingly the Legislature has specially dealt with the subject. The present statute is the Pawnbrokers' Act, 1872 (b), which, how- Pawnbrokers' Act, 1872. ever, only deals with loans up to the sum of £10, and as to loans beyond that amount the ordinary law of pawns applies (c). By this statute every pledge must be redeemed within twelve months from the day of pawning, with seven additional days of grace (d), and if not redeemed within that time, and the amount for which the article is pledged does not exceed 10s., it becomes the pawnbroker's absolute property (e); but if for above IOS., then it is still redeemable until actual sale (f), and any such sale is only to be by public auction, and the surplus after the costs of the sale and the amount of the pledge is to be accounted for (g). As to an injury to the subject of the pledge by fire, Pawnbroker is now absolutely formerly the pawnbroker was not liable unless it was liable for loss proved that the fire took place through his default or neglect, but now he is absolutely so liable, and is, to protect himself, empowered to insure to the extent of the value of the goods (h). Formerly, also, as to goods which had been stolen, neither the pawnbroker nor a purchaser from him had a right to retain the goods as against the true owner, but now, upon conviction of (b) 35 & 36 Vict. c. 93. (c) On the old law, see Pennell v. Attenborough, 4 Q. B. 868. (e) Sect. 17. (f) Sect. 18., (g) Sect. 19. (h) Sect. 27. by fire. |