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scale, be negligence greater than that evidenced by the absence of ordinary care of that degree of care which a man possessed of common prudence ought to take; and, after a similar fashion, the meaning of slight negligence may be made apparent.

Regard being had to the preceding paragraph, three leading classes of bailments may be thus characterized:

1st. Where the trust is exclusively for the benefit of the bailor (b). Here slight diligence only in regard to the thing bailed is required from the bailee, unless he be possessed of special skill or knowledge in relation to * it (c); and gross negligence alone will, except in the case of a skilled bailee, entail liability. (553)

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2ndly. Where the trust is exclusively for the benefit of the bailee. Here extraordinary care in regard to the chattel bailed is required from the bailee, who may even be liable for the negligence of his servant, without any consideration of personal negligence in hiring or keeping him. If the bailee of a horse, which has been gratuitously lent him, put it in his stable, and the horse be stolen, the bailee shall not be answerable. But if he or his servant leave the stable door open, and a thief steals the horse, the bailee will be chargeable by reason of his neglect and laches (d). (554)

3rdly. Where the trust is for the mutual benefit of both parties to the bailment; (555) and here the degree of care and diligence required from the bailee is intermediate between slight and extraordinary. This is by far the most important class of bailments, and in connexion with it must be noticed the doctrine of our law respecting lien.

Lien is a right, exerciseable in given cases over the chattel property of another, to retain such chattel until some charge attaching to and in respect of it has been satisfied (e).

(b) Coggs v. Bernard, Ld. Raym. 909. (c) Wilson v. Brett, 11 M. & W. 113.

(d) Ld. Raym. 916; Dansey v. Richardson, 3 E. & B. 144.

(e) Cross on Lien, 2.

(553) See Spooner v. Mattoon, 40 Vt. 300; McKay v. Hamblin, 40 Miss. 472; Dunn v. Branner, 13 La. Ann. 452; Sodowsky v. McFarland, 3 Dana (Ky.), 205. A mere depository is not liable to an action until refusal to deliver up on demand. Duncan v. Magette, 25 Tex. 245; Nelson v. King, id. 655; Jackman v. Partridge, 21 Vt. 558; Phelps v. Bostwick, 22 Barb. 314; Hill v. Wiggins, 31 N. H. (11 Fost.) 292; West v. Murph, 3 Hill (S. C.), 284.

(554) See Howard v. Babcock, 21 Ill. 259; Bennett v. O'Brien, 37 id. 250; Wilcox v. Hogan, 5 Ind. 546.

(555) This class embraces pledges or pawns. The distinction made between a pledge and a mortgage is, that in the case of a pledge the title remains in the pledgor, and in the case of a mortgage it passes to the mortgagee, subject to be divested. M Lean v. Walker, 10 Johns. 471; Tucker v. Buffington, 15 Mass. 480; Day v. Swift, 48 Me. 368; Sims v. Canfield, 2 Ala. 555. To constitute a pawn or pledge there must be a delivery and retention of the possession of the thing pawned. Walcott v. Keith, 22 N. H. (2 Fost.) 196; First, etc., Bank v. Nelson, 38 Ga. 391; Beeman v. Lawton, 37 Me. 543; Thompson v. Andrews, 8 Jones' Law (N. C.), 453.

Before selling a pledge the creditor must call upon the debtor to redeem, and give him notice of the time and place of sale. Bryan v. Baldwin, 52 N. Y. (7 Sick.) 232. See Alexandria, etc., R. R. Co. v. Burke, 22 Gratt. (Va.) 254. A pledgee, with power to sell, does not lose his lien by employing the pledgor as his agent to make the sale, and in his own name. Thayer v. Dwight, 104 Mass. 254. As to the liability of a pledgee, see Noland v. Clark, 10 B. Monr. (Ky.) 239; Goodall v. Richardson, 14 N. H. 567.

Every bailee for hire has a lien on the subject-matter of the bailment, for compensation due to him in respect of his work and labour bestowed upon it; and therefore he is not bound, unless it be otherwise specially agreed, to restore the thing bailed until that compensation has been paid him (f). (556) A tailor who has made clothes out of cloth sent to him by a customer, is not in strictness bound to deliver them to his employer until paid for the work and labour bestowed upon them by his direction. Nor is a jeweller who has received a gem to set, or a seal to * engrave, bound to restore it until [* 228] his charges for work bestowed upon it have been liquidated. In either of these cases the lien is designated as specific, i. e., the right is co-extensive merely with the claim in respect of the work and labour bestowed upon the thing in question; it could not be asserted in regard to other debts or other claims which might have accrued to the bailee as against the bailor. Such a right of specific lien is recognised by our law as available in all trades, and under very dissimilar circumstances; whereas to support a general lien, i.e. a right to detain the thing bailed in respect of all outstanding antecedent claims, which is an "encroachment on the common law," evidence of usage to that effect in the particular trade or profession must be given (g), or at all events the question whether such a general right of lien exists in the particular case must have been affirmatively settled.

The right of lien is clearly founded on possession, and if, after the lien has attached, the party claiming it, or entitled to claim it, once part with the possession of the goods, the right of lien upon them will be gone (h). This particular remedy, moreover, must be enforced by the act of the person claiming it; our common law aids him merely by recognizing his right, but declines to give him the costs incurred in enforcing it, or to compensate him for damages, pecuniary or otherwise, which he may have sustained whilst enforcing it (i). Within the last of the three leading classes of bailments previously mentioned, is included the bailment of goods to a common carrier. A common carrier is one who holds himself out to the public as undertaking carrier of goods. to convey the goods of applicants from place to place. If a man profess to be a carrier, the law creates for him a duty to receive* goods brought to him for carriage, so that the carrier may incur liability for refusing to receive them (k). The common law duty thus imposed on the carrier may, however, in many respects, be regulated according to his will; for he may choose the kind of conveyance to be used, the times for transit, the mode of delivery, the articles which alone he will undertake to carry, what price he will charge for carriage, when he will be paid; moreover, the duty to receive is always limited by the capability to carry (1).

Bailment to land

(f) Story, Bailments, 5th ed. 456.

(g) Brandão v. Barnett, 12 Cl. & F. 787. (h) Per Buller, J., Lickbarrow v. Mason, 2 T. R. 72; 1 H. Bla. 357; Cross on Lien, 38. (i) Somes v. British Empire Insur. Co., 8 H. L. Cas. 338.

(k) Pickford v. Grand Junction R. C., 8 M. & W. 372; Hales v. London and N. W. R. C., 4 B. & S. 66.

Lord Holt says (Lane v. Cotton, 12 Mod. 484) that wherever any subject takes upon himself a public trust for the benefit of the

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rest of his fellow-subjects, he is, eo ipso, bound to serve them in all things within the reach and comprehension of the trust which he has assumed. Upon this principle, an action will lie against a carrier if, his horses being not loaded, he refuse to take a package proper to be sent by him.

No carrier is bound to receive goods which are specially dangerous," 29 & 30 Vict. c. 69, s. 6.

(1) Johnson v. North Midland R. C., 4 Exch.

367.

(556) See Wilson v. Martin, 40 N. H. 88; Lovett v. Brown, id. 511; Farrington v. Meek, 30 Miss. 578; Nevan v. Roup, 8 Iowa, 211.

Further, according to our customary law, a common carrier is an insurer of the goods entrusted to him, that is to say, he is bound to deliver them safely, except when prevented from doing so by the act of God (m), or of the king's enemies; he is bound also to deliver within a reasonable time (n).

The policy of our law in thus holding that a carrier ensures is based on these considerations. Land carriers, it was thought by our ancestors, not without reason, might easily combine with thieves to pilfer the goods committed to their charge, and might effect this in so clandestine a manner as to evade detection. When goods are delivered to a carrier, they are usually no longer under the eye of their owner; he seldom follows them himself, or sends [*230] any agent with them to the place of their destination. If they should be lost or damaged, even by the grossest negligence of the carrier or his servants, or should be stolen by them or by others in collusion with them, the owner would most likely be unable to prove either of these causes of loss, for his witnesses must ex necessitate be the carrier's servants, who, not fearing contradiction, would excuse their masters and themselves (o).

*

Such was the reason for imposing on a carrier the peculiar liability of an insurer. To prevent litigation, collusion, and the necessity of investigating facts which could not satisfactorily be unravelled, the law presumed against the carrier, unless he showed that the injury complained of was done by the king's enemies, or was such as could not have happened by the intervention of

man.

The doctrines of our common law affecting carriers mainly rested on notions of expediency and on a desire to protect traders, who are more vitally interested than others in having protection extended, by stringent rules and enactments, to goods and merchandise in transitu. Our courts, nevertheless, apply to mercantile transactions, when occasion requires, their own rules and maxims, in order to do substantial justice between parties. Therefore, a carrier, although an insurer, is not liable for damage arising from any inherent defect in goods delivered to him for conveyance, or from their being improperly packed, or from their being of a perishable nature, and so becoming deteriorated; nor is a carrier liable for leakage (p); for the owner of goods shall not be permitted to take advantage of his own wrong and, having himself been guilty of negligence, to sue the carrier for damage thence

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resulting.

The duty of a carrier to deliver goods safely attaches in general upon the assumption that he has had the opportunity of securing to himself remuneration adequate to the risk cast upon him. If the carrier has not had that opportunity, or if circumstances make such protection reasonable, he may at common law, by a special acceptance, limit and restrict his responsibility (q).

(m) The expression "act of God" is said by Dr. Story (Bailments, 5th ed. p. 536) to denote any natural accident, such as by lightning, earthquake, or tempest-natural in this sense, as not happening through the negligence of man.

(n) Hales v. London and N. W. R. C., 4 B. & S. 66.

(o) Riley v. Horne, 5 Bing. 217; Forward v. Pittard, 1 T. R. 33-4; Coggs v. Bernard, Lord Raym. 909.

In Southcote's Case, 4 Rep. 84 a, we read that if a factor does all which he by his industry can do, he shall be discharged, and

incur no liability; his duty is as a servant to merchandise the best he can, and a servant is bound to perform the command of his master; but a common carrier who takes hire ought to keep the goods in his custody safely, and shall not be discharged if they are stolen by thieves.

(p) Hudson v. Baxendale, 2 H. & N. 575.

(g) In Morse v. Slue, 1 Ventr. 238, Lord Hale said, "If a carrier will, he may make a caution for himself, which if he omits, and takes in goods generally, he shall answer for what happens." See Phillips v. Edwards, 3 H. & N. 813.

The notices which carriers used, prior to the Carriers' Act (11 Geo. 4 & 1 Will. 4, c. 68), to affix in their offices and receiving houses, accordingly rejected responsibility, unless the conditions of insurance of goods thereby stipulated for were complied with: these notices constituted special acceptances of goods, and imposed a limit to liability by the will of the carrier." Where the customer knew of the notice, and did not offer, and the carrier did not ask for, a premium, the carrier was protected by his notice. This notice, however, was held insufficient to protect the carrier if he were proved to have been guilty of gross negligence-an expression to which it was found difficult to affix a precise meaning. Damage done to the article entrusted to the carrier for conveyance, or the loss of such article, was held to afford some evidence of negligence, and the line between negligence and gross negligence was ill-defined (r). Hence, too extended a liability was gradually* thrown [*232] by the current of judicial decisions upon the carrier; and the legislature interposed, and by the 11 Geo. 4 & 1 Will. 4, c. 68, granted to land carriers reasonable protection in respect of the articles (s) specified in sect. 1 of that statute, unless the customers insure.

As to the articles there enumerated, when exceeding in value 107., the statute provides that notices may be fixed up in the carrier's office or receiving house, which will bind the customer, without proof of their having come to his knowledge, provided sundry regulations contained in the act are duly conformed to. The mode of proceeding under the Carrier's Act is this:-the customer should tender to the carrier the article to be carried and declare its value, and the carrier who acquires a right to an increased rate of charge for valuable articles, by reason of being an insurer, should make that charge, and the customer should either pay it, and so be protected against loss, or refuse to pay it; and then the carrier, though bound to carry, would not, in case of loss, be liable (t). If a carrier, when the value of the goods tendered for carriage has been declared, omits to demand the increased rate of charge specified in his notice, he will still be liable for loss of the goods, although the higher rate of charge be not paid (u).

In regard to articles not enumerated in sect. 1 of the Carriers' Act, all notices, such as carriers had been accustomed to put up in their offices, and just now alluded to, are by sect. 4 invalidated. But by sect. 6 (v), a carrier is * still empowered to restrict his liability by a special contract (which is [*233] the statutory term) or agreement between his customer and himself, such agreement being evidenced either by notice acquiesced in, or document signed, by the customer.

(r) In Beal v. Sonth Devon R. C., 3 H. & C. 337, the Court of Ex. Ch. observe that for all practical purposes" the rule is this:"the failure to exercise reasonable care, skill, and diligence, is gross negligence. What is reasonable varies in the case of a gratuitous bailee and that of a bailee for hire. From the former is reasonably expected such care and diligence as persons ordinarily use in their own affairs, and such skill as he has. From the latter is reasonably expected care and diligence such as are exercised in the crdinary and proper course of similar business, and such skill as he ought to have,

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namely, the skill usual and requisite in the business for which he receives payment."

(8) Which are often of great intrinsic value, though small in bulk, such as, inter alia, gold or silver, coin, jewellery, bills of exchange, bank notes, and securities for the payment of money, pictures, plate, china, silks, furs, or lace (unless machine-made, 28 & 29 Vict. c. 94, s. 1). See Treadwin v. Great Eastern R. C., L. R., 3 C. P. 308.

(t) Hart v. Baxendale, 6 Exch. 769, 790. (u) Behrens v. Gt. Northern R. C., 7 H. & N. 950; 6 Id. 366.

(v) See Baxendale v. Great East. R. C., L. R., 4 Q. B. 244.

The case of loss caused by the felonious act of the carrier's servants is, by sect. 8, taken altogether out of the operation of the statute (x).

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The next important enactment affecting carriers, is "The Railway and Canal Traffic Act" (17 & 18 Vict. c. 31); under sect. 2 of which a company, within the purview of the act (y), is required to afford "all reasonable facilities" for the receiving, forwarding, and delivering of traffic; and such companies are precluded from giving "any undue or unreasonable preference or advantage to any person, or from subjecting him, or any particular description of traffic, to "undue or unreasonable prejudice or disadvantage in any respect whatsoever." Under sect. 3, a company infringing these provisions of the act may be restrained from continuing to do so by injunction.

Before the powers conferred by these two sections are put in motion, the court must be satisfied that some undue preference is being shown to an individual, or that some substantial damage is being done or inconvenience caused to the public (z); and they must further be satisfied that the complaint is bona fide made on behalf of the public, for whose benefit- not for that of individuals the statute must be taken to have been passed (a). A complaint of undue preference is often founded on and supported by evidence of inequality of charge. The intention manifested in the act was to give equal advantages, so far as the rate of charge is concerned, to all persons similarly circum* stanced. [* 234] A railway company, indeed, may be entitled to lay down. rules in reference to special circumstances, provided in doing so they act bona fide with regard to their own interests and those of the public; but they are not at liberty to make particular bargains with particular individuals, whereby one person is benefited and another injured (b).

The 7th section of the Railway and Canal Traffic Act is very material; it enacts as follows:- That every company to which it applies "shall be liable for the loss of, or for any injury done to any horses, cattle, or other animals, or to any articles, goods, or things in the receiving, forwarding, or delivering thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition, or declaration made and given by such company contrary thereto, or in anywise limiting such liability;" every such notice, condition, or declaration being declared to be null and void: but the company may make such conditions with respect to the receiving, forwarding, and delivering of any of the said animals or things as shall be adjudged by the court or judge before whom any question relating thereto is tried, to be "just and reasonable." Provided, however, that no greater damages shall be recovered for loss of or for injury done to any of such animals, beyond the sums specified in the act (c), "unless the person sending or delivering the same to such company shall, at the time of such delivery, have declared them to be respectively of higher value" than that mentioned in the act, in which case the company may demand and receive, by way of compen

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(x) Machu v. London and South Western R. C., 2 Exch. 432; Metcalfe v. London, Brighton, &c., R. C., 4 C. B. N. S. 307, 311. (y) See sect. 1 (the interpretation clause). (2) Ex parte Painter, 2 Č. B. N. S. 702. (a) Re Beadell, 2 C. B. N. S. 509.

(b) Garton v. Bristol and Exeter R. C., 6 C. B. N. S. 639; Harris v. Cockermouth and Workington R. C., 3 C. B. N. S. 693; Ransome's Case, 1 C. B. N. S. 437; Re Caterham

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