sists in the want of such care as the general mass of mankind observe in the transactions of daily life.

Slight negligence is the want of slight diligence; and slight diligence is that diligence which persons of less than common prudence take of their own affairs. It is next in order to gross negligence; for gross negligence is the absence of even slight diligence.

§ 19. Excuses for Loss or Non-Delivery-Acts of God and of the Public Enemy. In all classes of bailments the bailee will be excused from liability where, without his own concurring negligence, the loss is occasioned by the Act of God, the public enemy, some inherent defect of the article itself, or the contributory negligence of the bailor. The Act of God may be defined as a sudden irresistible act of nature, such as a sudden flood or a flash of lightning, which acts immediately upon the article injured and in whose origin and work of destruction man plays no part. A public enemy is some power or enemy which is at open war with the government of the bailee. The term does not apply to thieves, robbers, or even to armed mobs who are not organized and operating as a military force against the government. An inherent defect in the article itself would be shown in the case of spontaneous combustion, or the tendency of a horse to interfere, or of sheep to crowd. The contributory negligence of the bailor is well illustrated. by the lending to another without warning a loaded and rusty gun which explodes in the hands of the bailee.

These excuses may be pleaded by all classes of bailees and even by those whose duties are exceptional in their nature. In addition to pleading them, the nonexceptional bailee may plead an obedience to irresistible force, inevitable accident, and loss by fire or by robbery. He may, in fact, as a rule, plead any cause of loss or of destruction which is not due to the lack on his part of the degree of care which the law has imposed upon him.

§ 20. The Duty to Redeliver. A sharp and somewhat curious distinction is made in the common law between the duty of care and custody and the duty to redeliver. While

none but the exceptional bailees are held liable for loss or injury to the goods intrusted to them in the absence of some degree of negligence or wrongdoing on their part, all classes of bailees are held to an almost absolute liability to redeliver to the right person at the termination of the bailment. This liability is imposed where no proof of negligence whatever is obtainable, and even where a high degree of care has been exercised. The only excuses, indeed, which may be pleaded are the contributory negligence of the bailor himself, an actual and consummated delivery to the real owner, a prior surrender of the property under legal restraint and in obedience to due process of law, or the destruction thereof, or the prevention of such delivery by the Act of God or the public enemy.

§ 21. The Place and Time of Delivery. As to the place and time of delivery, much depends upon the terms of the bailment, the nature of its object and the custom of the place or business, which, in the absence of an express provision upon the question, is often incorporated into the implied agreement. Generally speaking, and in the absence of a special agreement or well-established custom to the contrary, it may be said that it is the duty of the gratuitous bailee who alone derives benefit from the transaction, to deliver at the place most convenient to his bailor, or, at any rate, at any reasonable place which he may direct. This place is usually the residence or place of business of the bailor, and the delivery should, of course, be made during business, or, at any rate, during waking hours.12 The mandatary or depositary is for similar reasons only expected to deliver at the time and place most convenient to him, provided such place is reasonably accessible to his bailor, and this place is usually his own residence or place of business.13 The duty of the mutual-benefit bailee is to deliver at a time and place which is mutually convenient, and this place is usually that where the bailment was first made. The time must be a time which is mutually con12 Esmay v. Fanning, 9 Barb. (N. Y.) 176.

13 Edw. on Bail, 2nd Ed., § 64.

venient also, and that time is usually within the business or waking hours of the day.14

Contributory Negligence of the Bailor. If the delivery to the wrong person is brought about by the acts or the negligence of the bailor himself, no liability will fall upon the bailee. A delivery of goods to the wrong person on a forged order which purports to come from the bailor will, for instance, as a rule, render the bailee absolutely liable no matter how much care he may have exercised in examining the order and in testing its genuineness. If, however, the forgery was the direct result of, or was made possible by the negligence of the bailor, the rule would be the opposite. If, for instance, the bailor should sign an order for the delivery of the goods which contained an unfilled blank in which the name of the consignee might be inserted and should lose such blank or order, and the finder should insert his own name therein and obtain a delivery of the goods from the bailee, the bailee would hardly be held liable.

Delivery to the Real Owner-Estoppel of Bailee to Deny Title of Bailor. By accepting the property the bailee admits the bailor's title and assumes a relation of trust and confidence in regard to the article until it is returned or lawfully accounted for. To this rule, however, there are, as we have seen before, the qualifications that where a wrongful delivery is induced by the negligence of the bailor himself, or an actual and consummated delivery has been made in good faith to the real owner, and on the demand of such owner, or where the property has been surrendered under legal restraint and in obedience to due process of law, the bailee may plead and be exonerated by such facts. The burden of proof is, however, upon him in all such cases. It will not do, the courts say, for a bailee to hunt up a paramount claimant, and then, when called upon by the bailor for the property, to answer that he is now the voluntary bailee of such claimant. It must be apparent that this would enable him to enjoy the property by pretending to hold it for another. A bailee cannot avail 14 Esmay v. Fanning, 9 Barb. (N. Y.), 176.

himself of the title of a third person (though the third person be the true owner) for the purpose of keeping the property for himself, nor in any case where he has not yielded to the paramount title. Nor can the bailee assert against his bailor any title of his own even though discovered or acquired after the relationship of bailor and bailee has begun. If acquired since the relationship began he must be prepared to show that it was acquired by inheritance, or in some manner which would not involve a breach of his duty to care for the interests of his bailor, and of the duty which devolves upon every agent to use the utmost good faith, to communicate to his principal facts and knowledge which may warn him of threatened danger, and to prefer and protect the interests of that principal even above his own. Even if such title is acquired in good faith and is bona fide in its nature and enforcible, he must, before he can assert it, redeliver the goods to his bailor according to the condition of the contract of bailment, and then assert his title by an appropriate action.

Delivery under Due Process of Law. It is always the duty of the bailee to be loyal to, and to protect, the interests of his bailor, but this does not mean that he should obstruct the officers of the law in the execution of their duties or burden himself with unnecessary and unprofitable law suits. As between the bailor and the bailee, the presumption is that the goods belong to the latter, and not to any third person; and although the bailee will be liable in conversion if he withholds them from the real owner after a demand is made upon him for their delivery, and he has had a reasonable time to investigate the claim, and has been furnished by the owner a reasonable proof of ownership and identification, the proof is still upon him when sued by his bailor to prove the ownership of such third person. So, too, although he may not, or, at any rate, is not, required forcibly to resist the officers of the law, he is never protected if he yields up the property under a writ, process, or execution which is void upon its face, or in which his bailor is not named as a party defendant. There is a question even

whether a forcible seizure of the goods under such void process will relieve him of liability to his bailor, and whether a suit against the sheriff or his bondsmen is not his only remedy. On the other hand, the bailee of stolen goods, even though he may have been cognizant of the theft, will not be liable to the true owner in conversion, if, before a demand is made upon him by such person, he returns the goods to his bailor, provided that he was not a party to the theft in the first instance and had no intention of concealing or withholding the property from its lawful owner. In order to constitute conversion, indeed, there must be an intention on the part of the defendant to take to himself the property in the goods or to deprive the plaintiff of them.15

Remedies of Bailee-Interpleader. It is not to be understood, however, that the bailee is remediless in the premises. His right is the right to the immediate possession, while that of his bailor is, during the term of the bailment, a general property right merely. Since this right of immediate possession is in him and not in his bailor, it is his privilege and duty to resent intrusions thereon, and it is doubtful if, while the bailment lasts, his bailor has any power to do so. If the bailee convert the goods, or, what is the same thing, make a use or disposition of the same which is inconsistent with the terms of his bailment, the right to the immediate possession is reinvested in the bailor and he may immediately sue for the recovery or for the value thereof. The same is also true where the bailee has wrongfully bailed, sold or given the goods to a third party, and the bailor, then having the right of immediate possession may sue and recover, either from his bailee, or from such third party. Where, however, the goods are, during the term of the bailment, wrongfully taken by a third party from the bailee, the latter may sue for their recovery, as he alone has the right to the immediate possession. So, too, it is probable that if a claim is made upon him for the goods by a third party, he may adjudicate the claim with such third party

15 Loring v. Mulcahy, 3 Allen (Mass.) 575; Nelson v. Iverson, 17 Ala. 216; Hill v. Hayes, 38 Conn. 532.