Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

offence committed, at their discretion; with the exception of persons committed by the governor and council, senate, or house of representatives, agreeable to, and for the causes mentioned in the constitution.

So any person who shall be held in prison upon suspi

cion of having committed a crime, for which he may have Stat. 1784, c. 72, sec. 13 sentence of death passed upon him, shall be bailed or dis

to be admitted to bail

indicted.

charged, if he is not indicted at the second term of the Persona imprisoned sitting of the supreme judicial court, in the county where for a capital offence the crime is alleged to have been committed, when there unless seasonably are two terms a year in such county. And in such counties as have but one supreme judicial court in a year, the defendant shall be bailed or discharged, if he is not indicted at the first term; provided such person shall have been held in prison for the space of six months next preceding the day of the court's sitting.

ap

Persons imprisoned
and under indictment,
to be bailed or tried
at the first term.

So when any person shall be held in prison under indict- Ibid. ment, he shall be tried or bailed at the first term next after his indictment, if he demands the same; unless it shall pear to the court, that the witnesses, on behalf of the government, have either been enticed away, or are detained, by some inevitable accident, from attending.

So all persons under indictment for felony, shall be bail- Ibid. ed or tried at the second term after the bill shall be returned, if they demand it.

Of admitting to bail

When any person charged with the crime of larceny, Stat. 1804, c. 143, s. 17. or as an accessary therein, or as a receiver of stolen goods, shall be admitted to bail; the recognizance for the appear- persons charged with larceny, or receiving ance of such person shall be taken with sufficient surety stolen goods. or sureties, in such sum as may be reasonably required for that purpose; with a further additional sum, which shall be double the amount of the property stolen; and when such recognizance shall be forfeited by default, the justices of the court, before whom judgment may be rendered thereon, shall order the amount or value of the property stolen to be paid out of the sum which shall be collected on such recognizance, to the owner of such property; provided he shall have been the prosecutor.

TITLE XXIII.

Jones on Bailm. 1.

Ld. Raym. 913.

BAILMENT.

BAILMENT is a delivery of goods on a condition, express, ed or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as soon as the purpose for which they were bailed, shall be answered. Lord Holt classes bailments into six kinds*.

1. A naked bailment.

* On this division of bailments by Lord Holt, Sir William Jones makes the following remarks: "His division of bailments into six sorts appears, in the first place, a little inaccurate; for, in truth, his fifth sort is no more than a branch of his third, and he might with equal reason have added a seventh, since the fifth is capable of another subdivision. I acknowledge, therefore, but five species of bailment; which I shall now enumerate and define, with all the Latin names, one or two of which Lord Holt has omitted. 1. Depositum, which is a naked bailment without reward, of goods, to be kept for the bailor. 2. Mandatum, or commission, when the mandatory undertakes, without recompense, to do some act about the things bailed, or simply to carry them; and hence Sir Henry Finch divides bailment into two sorts, to keep, and to employ. 3. Commodatum, or loan for use; when goods are bailed, without pay, to be used for a certain time by the bailee. 4. Pignori acceptum, when a thing is bailed by a debtor to his creditor in pledge, or as a security for the debt. 5. Locatum, or hiring, which is always for a reward; and this bailment is either, 1. Locatio rei, by which the hirer gains the temporary use of the thing; or, 2. locatio operis faciendi, when work or labour, or care and pains, are to be performed or bestowed on the thing delivered; or, 3. locatio operis mercium vehendarum, when goods are bailed for the purpose of being carried from place to place, either to a public carrier, or to a private person."

Essay on the Law of Bailments, p. 49, 50.

2. A delivery of goods for accommodation, or a lending gratis.

3. A delivery of goods to be used for hire.

4. A delivery by way of pledge.

5. A delivery of goods to be carried, or to which something is to be done, for hire.

6. A delivery of goods for some purpose (as to merchandize) without reward.

7. Of the property which the bailee has in the thing bailed.

I. A naked bailment.

A naked bailment of goods, delivered by one man to Ld. Raym. 913. another, to keep for the use of the bailor is called depo- 1 Pow. Contr. 217situm. In this case the law implies a contract by the bailee, that he will take such care of them, as that they may not be damaged by any gross neglect of his own. For, in such case, it would be contrary to reason or justice, that where a man is to have no reward, but keeps the goods merely for the use of the bailor, that he should be charged without some default in him; it does not seem necessary that he should even do all he is capable of, or that a man could do for himself in things he was most concerned for. If he keep the goods with an ordinary care, he has performed the trust reposed in him.

And this is going as far as the end and nature of such a Ibid. contract requires; for it is not to be supposed, that in such cases a man engaged to take such care, as to be at expenses extraordinary, or to neglect other affairs of his own, though perhaps less important in themselves, to attend other men's, as perhaps he might do if he acted for himself. But if the bailee keep the goods bailed to him as he keeps his own, it is evidence that he has discharged his undertaking.

And, therefore, in such case, although he keep his own Ibid. 248. but negligently, yet, if he keep the others in the same manner, he shall not be chargeable. As if the bailee be known as an idle, careless, drunken fellow, and he come

1 Pow. Contr. 248.

Ld. Raym. 913.

Ibid. and

1 Pow. Contr. 249.

Ibid.

bid. 250

home drunk, and leave all his doors open; and by reason thereof the goods bailed to him happen to be stolen, with his own, yet he shall not be charged, because it was the bailor's own folly to trust such a fellow. And this doctrine is agreeable to reason, and to the civil law.

And if a person, receiving goods upon such a bare naked bailment, were to enter into a written undertaking to redeliver them; it would not charge the party undertaking further than he would be charged by the implication of law for it would not go further than a covenant, that the covenantee shall have, occupy, and enjoy certain lands, which does not bind against the acts of wrong-doers.

II. A delivery of goods for accommodation, or a lending gratis.

The second kind of bailment is, where 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.

In this case the law implies, that the borrower contracts to use the strictest care and diligence, to keep the goods, so as to restore them back again safe to the lender; because the bailee has a benefit by the use of them. And, therefore, if the bailee be guilty of the least neglect, he will be answerable.

As if a man lend another a horse to go westward, or for a month; if the bailee go northward, or keep the horse above a month, and any accident happen to it in the northern journey, or after the month, the bailee will be chargeable because he has made use of the horse contrary to the trust under which he was lent to him; and it may be, that, if the horse had been used no otherwise than he was lent, the accident would not have befallen him.

But if the bailee, put the horse in his stable, and he be stolen from thence, the bailee will not be answerable for him, unless he or his servants left the house or stable doors open, and the thieves had taken that opportunity, and had stolen

the horse; for then he would be chargeable because the neglect gave the thieves the opportunity to steal it. Bracton says, the bailee must use the utmost care, but yet he shall not be chargeable where there is such a force as he cannot resist.

III. A delivery of goods to be used for hire.

The third kind of bailment is, when goods are left Ld. Raym. 913. with the bailee to be used by him for hire; this, in the

civil law, is called “locatio” et “conductio." And the lender is called locator, and the borrower conductor.

In this case, also, the law implies, that the hirer con- 1 Pow. Contr. 281. tracts to take the utmost care, and to return the goods when the time of hiring is expired. But every man, how diligent soever he may be, being liable to the accident of robbery, though a diligent man is not so liable as a careless one; the bailee will not be answerable in this case, if the goods are stolen.

IV. A delivery by way of pledge.

The fourth kind of bailment is, when goods or chattels Ld. Raym. 913. are delivered to another as a pawn, to be a security for money borrowed of him by the bailor; and this is called in Latin, "Vadium ;" and in English, a Pawn, or a Pledge.

If the goods so pawned be stolen, the pawner shall be Co. Litt. 89. discharged, for he had a special property in them him

self, and therefore is bound to keep them no otherwise

than as his own.

The same law applies in relation to goods found, the 1 Pow. Contr. 252. property in which continues in the owner, although the possession is in the finder. The law, therefore, implies

a contract in the possessor to use an ordinary diligence to preserve them for the owner.

Co. Litt. 9.

But it is observable, in these cases, that if the money, Ibid. for which the goods were pawned, be tendered to the pawnee before they are lost, then the pawnee shall be answerable for them: because the pawnee, by detaining

« ΠροηγούμενηΣυνέχεια »