(b) To do some Act about the Thing bailed. Here, as in the last case, the bailor derives an advantage from the gratuitous exertions of the bailee; and, consequently, the latter is bound only to ordinary diligence, and is not liable unless gross negligence is proved against him (u). Thus, a stage-coachman is not liable for the loss of a parcel, which was entrusted to him to carry without reward, unless there has been great carelessness in his conduct with reference thereto (x). If the situation or profession of a gratuitous mandatory be such as to imply skill, an omission to use that skill is imputable to him as gross negligence (y). Thus if A., a general merchant, undertake voluntarily and without reward, to enter at the custom-house for exportation a parcel of goods of B., together with a parcel of his own of the same sort, but he makes the entry under a wrong denomination, whereby both parcels are seized; A., having bonâ fide taken the same care of the goods of B. as of his own, not having received any reward, and not being of a profession or employment which necessarily implied skill in what he had undertaken, is not liable for the loss occasioned to B. (2). But if in this case a ship-broker, or a clerk in the custom-house, had undertaken to enter the goods, a wrong entry would have been gross negligence in him; because his situation and employment necessarily imply a competent degree of knowledge in making such entries. So a person who rides a horse gratuitously, at the owner's request, for the purpose of showing him for sale, is bound in so doing to use such skill as he actually possesses: and if he be proved to be a person conversant with and skilled in horses, he is as much liable as a borrower would be, for an injury done to the horse whilst being ridden by him (a). CH. XIV. s. 3. Bailments without Reward (for Treatment). Gratuitous mandatory gross negli gence. liable for Rule where his profession implies skill. Riding horse sale. to display for So a carrier who receives goods into his warehouse, for the Carrier warehousing purpose of their being carried for hire when orders to that effect before shall be given, is not, whilst the goods are in his care as a carriage. warehouseman, a gratuitous bailee within the rule we are now considering, although he make no charge for warehousing (b). (c) Loan for Use. When goods are bailed, to be used for a certain time by the Liability of bailee without pay, then, as the lender must be taken to lend for (u) 1 Smith, L. C.; Jones on Bailm. 120, 123; Shiells v. Blackburne (1789), 1 H. Bl. 159; 2 R. R. 750; Mytton v. Cock (1739), 2 Str. 1099. (x) Beauchamp v. Powley (1831), 1 Moo. & R. 38. (y) Wilson v. Brett (1843), 11 M. & W. 113. (z) Shiells v. Blackburne (1789), 1 H. Bl. 159; 2 R. R. 750. (a) Wilson v. Brett (1843), 11 M. & W. 113. (b) White v. Humphrey (1847), 11 Q. B. 43. borrower. C.C. 24 CH. XIV. s. 3. the beneficial use of the borrower, the latter is not responsible for Bailments without Reward (Loan for Use). Horse. Liability of lender. Coughlin v. Gillison. Horse. reasonable wear and tear. But he is liable for negligence, for misuse, for gross want of skill in the use, and, above all, for any thing which may be qualified as legal fraud (c). So he is liable if the goods be purloined from him, provided this happened through his want of ordinary care (d). So the borrower has no right to deviate from the conditions of the loan. Thus, if a horse be lent to a person to ride, this will not entitle him to allow the horse to be ridden by his servant (e). But where a horse was for sale, and the vendor allowed the defendant to have the horse in order to try it it was ruled that he had a right to allow a competent person to ride the horse for that purpose (ƒ). It is the duty of the lender to communicate to the borrower any defect in the thing lent of which he is aware with reference to the use for which the loan is made, and if he wilfully or negligently omits to do so, he is liable for injury resulting to the borrower in the use, but his liability goes no further. So it was held by the Court of Appeal in Coughlin v. Gillison (g), in which one of the borrowers of a donkey-engine, borrowed for ballasting a ship, failed to recover from the lender for injury caused by the boiler bursting. The general rule would apply to the loan of a vicious and unmanageable horse (h). Delivery, actual or constructive, essential; SECT. 4.-Bailment in Pledge. (a) Generally. The general property in the goods pledged remains in the pledgor, but a special property in them passes to the pledgee in order that he may be able to sell if his right to sell arises (i). But there must be an actual delivery by the pledgor of the articles pledged, either to pledgee, or to a warehouse for him with receipt given, or, where the possession itself is practically impossible, possession may be given by the delivery of a key, the symbol of possession, but the delivery of a key, "in order to amount to constructive possession, must be under such circumstances that (c) Per Cur., Blackmore v. Bristol and Exeter Rail. Co. (1858), 8 E. & B. 1035, 1050; and see Jones on Bailm. 50, 65; Coggs v. Bernard (1704), 2 Ld. Raym. 915. (d) Jones on Bailm. 66. (e) Bringloe v. Morrice (1676), 1 Mod. 210. (f) Camoys v. Scurr (1840), 9 C. & P. 383. (g) Coughlin v. Gillison, [1899] 1 Q. B. 145, C. A., approving Blackmore v. Bristol and Exeter Rail. Co. (1858), 27 L. J., Q. B. 167 (crane); MacCarthy v. Young (1861), 6 H. & N. 329 (scaffold). (h) Blackmore v. Bristol and Exeter Rail. Co. (1858), 27 L. J., Q. B., at p. 172. (i) Per Bowen, L.J., in Ex parte Hubbard (1886), 17 Q. B. D. 690, C. A. it really does pass full control of the place to which admission is CH. XIV. s. 4. to be gained by means of the key” (k). To such a pledge neither the Bills of Sale Act, 1878 or 1882, applies; it is left to be dealt with at common law, and is outside those statutes altogether (1). Bailment in (Generally). Pledge of &c. But this necessity as to delivery of possession does not apply except as to to goods at sea, or bills of lading which are specially excepted goods at sea. from the operation of the Bills of Sale Acts, 1878, 1882, and it is expressly provided by sect. 3 of the Factors Act, 1889, that "a pledge of the documents of title (m) to goods shall be deemed to be a pledge of the goods," though previous to that Act it had been decided by the House of Lords that while goods are at sea, or so long as the engagement of the shipowner is not completely fulfilled, the bill of lading is a living instrument, and the pledge of it is equivalent to delivery by way of pledge of the goods themselves, but such pledge only passed a "special" and not a general property in the goods (n). By the bailment of goods by a debtor to his creditor in pledge, or as a security for a debt, the pledgee impliedly undertakes to deliver back the property to the pledgor, when the sum for which it was pledged is paid, and the pledgor impliedly undertakes that the property pledged is his own, and may be safely returned to him (0); but if the pledgee has notice of the infirmity of the pledgor's title, or of facts putting him on his inquiry, the pledgee will not get a good title if he neglects to make the inquiry (p). If, however, the pledgor, having regained possession of the pledge, although by a fraud on the pledgee, parts with the goods to a third person, bonâ fide and for a good consideration, an action will not lie by the pledgee, to recover the goods or their value from such third person (q). Obligation of pledgee to redeliver. Where the pledgee has the custody of the pledge he is answer- Rights and able for ordinary neglect (r), so that he shall not be discharged liabilities of if the pledge be simply stolen from him, unless he can show that (k) Per Kekewich, J., in Hilton v. Tucker (1888), 39 Ch. D. 669; where it was further decided-following Reeves v. Capper (1838), 6 Scott, 877-that the delivery of possession may be subsequent to the money advance, so long as it is in honest fulfilment of the contract. As to " apparent possession" of the grantor, see sect. 4 of the Bills of Sale Act, 1878. (1) Hilton v. Tucker, ubi sup., following Ex parte Hubbard, ubi sup.; see, however, Mills v. Charlesworth (1890), 25 Q. B. D. 421. (m) For definition of documents of title, see ante, p. 236 (x). (n) Barber v. Meyerstein (1870), L. R., 4 H. L. 317; Sewell v. Burdick (1884), 10 App. Cas. 74. (0) Per Parke, B., Cheesman v. Exall (1851), 6 Exch. 341. (p) Sheffield v. London Joint Stock Bank (1888), 13 App. Cas. 333. (q) Babcock v. Lawson (1880), 5 Q. B. D. 284, C. A. (r) Jones on Bailm. 75, 76; Coggs v. Bernard (1704), 2 Ld. Raym. 917. pawnee. CH. XIV. s. 4. he used due care to protect it; but he shall be excused if he be forcibly robbed thereof (s). Bailment in Pledge (Generally). Pledgee repledging. May not use thing pledged. Pledge by stockbroker. And if several things be pledged for the same debt, and one of them be lost without default in the pawnee, the residue are liable to be retained for the whole debt (t). If the debtor tender the debt to the pawnee, and he refuse to deliver up the pledge, the pawnee's special property therein is determined; and he becomes liable, in all possible events, to make good the pledge, or to relinquish his debt (u). If the pawnor make default in payment at the stipulated time, the pawnee may sell the pledge, even although there be not any express agreement to that effect (x); or he may sue the pawnor for his debt, retaining the pawn as a security (y). But if a time for payment has not been agreed upon, or if the time agreed upon has been extended indefinitely, the pawnee cannot sell the pledge until after demand and notice (z). It has been held, however, that if, before the day appointed for payment, the pawnee repledge the goods as security for a loan made to himself; or if, there being no day appointed for payment, he sell the goods in order to repay himself his debt; this does not put an end to the contract of pledge, so as to entitle the pawnor to maintain trover or detinue for the pledge against the pawnee, without payment or tender to him of the amount of his loan (a). But the pawnee has not, in general, any right to use the pawn; although, if such were necessary for its preservation, or were otherwise beneficial to it; or if, where the pawn is an animal, it were used as a recompense for the cost of its keep, the law would perhaps imply the consent of the pawnor to the use of the pawn (b). In Simmonds v. London Joint Stock Bank (c), the plaintiff entrusted a stockbroker with bonds of a foreign company, (s) Jones on Bailm. 76; Anon. (1694), (t) Bac. Abr. Bailment (B.). (x) Pigot v. Cubley (1864), 15 C. B., (y) Bac. Abr. Bailment (B.). (2) Pigot v. Cubley (1864), 15 C. B., N. S. 701. •(a) Donald v. Suckling (1866), L. R., 1 Q. B. 585; Halliday v. Holgate (1868), L. R., 3 Ex. 299, Ex. Ch., but a custom of money-lenders to repledge has not been so proved as to bind any one dealing with money-lenders without notice of custom, so as to debar such moneylender's customer from redeeming ; Sheffield v. London Joint Stock Bank (1888), 13 App. Cas. 333. As to the damages recoverable, where trover can be maintained, see Johnson v. Stear (1863), 15 C. B., N. S. 330. (b) Jones on Bailm. 81, n. 38; Bul. N.P. 72; Coggs v. Bernard (1704), 2 Ld. Raym. 916, 917; Mores v. Conham (1610), Owen, 123; Story on Bailm. 221. (c) Simmonds v. London Joint Stock Bank, [1891] 1 Ch. 270. Bailment in payable to bearer. The stockbroker sold the bonds without the CH. XIV. §. 4. plaintiff's authority, and repurchased others of the same kind, which he entered in their proper numbers in his books as the plaintiff's bonds, and pledged them together with securities with the defendants to cover an advance to himself. The broker became insolvent, and the defendant sold the securities in discharge of his debt to them. It was held that an authority to a broker to pledge a customer's securities does not impliedly authorise the broker to pledge them en bloc with those of other persons to raise a lump sum, (b) The Pawnbrokers Act. The consolidating Pawnbrokers Act, 1872, 35 & 36 Vict. c. 93, Pawnbrokers. which (see sects. 6 and 10) applies only to loans of 10l. or less, regulates the business, rights, duties, and liabilities of pawnbrokers, limiting the rate of interest which they may require (sect. 15), and also enacting that "every pledge shall be redeemable within 12 months from the day of pawning, exclusive of that day; and Redemption. there shall be added to that year of redemption 7 days of grace within which every pledge (if not redeemed within the year of redemption) shall continue to be redeemable" (sect. 16), that “A pledge pawned for 10 shillings or under if not redeemed within the year of redemption and days of grace, shall, at the end of the days of grace, become and be the pawnbroker's absolute property" (sect. 17), and that "a pledge pawned for above 10 shillings shall further continue redeemable until it is disposed of as in this Act provided, although the years of redemption and days of grace are expired" (sect. 18). Other sections of the Act provide that pawnbrokers must give Pawn-tickets, pawn-tickets (sect. 14), must keep books, and allow ticket-holders to inspect them (sects. 12, 21), and must account for surplus receipts for sales within three years (sect. 22), but that the contract of pawn is not void for infringing these or other sections of the Act. And by sect. 25 the holder of the pawn-ticket is to be presumed to be the person entitled to redeem the pledge, and the pawnbroker must, on payment of loan and profit, deliver the pledge to the person producing the pawn-ticket, and he is indemnified for so doing; but this indemnity applies only as between the pawnbroker and the pledgor, or the owner who authorised the pledge, and does not affect the right of a person whose property has been pledged without his authority, to recover such property from the pawnbroker (d). If the pawn-ticket is lost, sect. 29 provides for a new ticket being obtained by a declaration before a magistrate, which must be shown (d) Singer Manufacturing Co. v. Clark (1879), 5 Ex, D. 37. |