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was taken, but for the general *balance of accounts, unless there were circumstances to show that the parties did not so intend. If the pawnor has only a limited interest in the articles pawned, the pawnee cannot hold them against the person entitled in remainder, after the particular interest has expired ; b and if a factor pledges the goods of his principal, the pawnee cannot detain them, not even to the extent of the loan.c And if there be various claims upon the fund after the pledge has been duly sold, the party who was in possession of the pledge is to be first satisfied his debt.d

As every bailee is in the lawful possession of the subject of the bailment, and may justly be considered, notwithstanding all the nice criticism to the contrary, as having a special or qualified property in it for the protection of that possession ; and as he is responsible to the bailor in a greater or less degree for the custody of it; he, as well as the bailor, may have an action against a third person for an injury to the thing; and he that begins the action has the preference; and a judgment obtained by one of them is a good bar to the action of the other.e

· Code, 8. 27. Heinec. Elem. Jur. sec. ord. pand. 4. soc. 46, and Hub. Prelec. lib. 20, tit 6. sec. 1, were referred to in support of the doctrine in the civil law. Pothier, in his Traité du Contrat de Nantissement, No. 47, lays down the same rule, and it also exists in the Scottish law. 2 Bell's Com. 22, 5th edit.

• Hoare v. Parker, 2 Term Rep. 376.

• Patterson v. Tash, 2 Str. Rep. 1178. Daubigny v. Duval, 5 Term Rep. 604. M'Combie v. Davies, 7 East's Rep. 5.

« Marshall v. Bryant, 12 Mass. Rep. 321. This was also the rule in the civil law. Dig. 50. 17. 128. Story on Bailments, 209, 210, 2d edit.

e Flewellin v. Rave, 1 Bulst. Rep. 68. 2 Blacks. Comm. 395. Rooth v. Wilson, 1 Barnw. f Ald. 59. Faulkner v. Brown, 13 Wendell, 63. Thayer v. Hutchinson, 13 Vermont Rep. 504. See supra, p. 568, and seo Story on Bailments, p. 74. 191, 192, 205, 2d edit. The pawnee may maintain replevin against the pawnor as well as against a stranger, for a wrongful taking of the goods pledged. Story on Bailment, sec. 303. Gib. son v. Boyd, Kerr's N. B. Rep. 150.

V. Of locatum, or hiring for a reward.

This is the fifth and last species of bailment remaining to be examined. It is a contract by which the use of a thing, or labour or services about it are stipulated to be given for a reasonable compensation, express or implied.a It includes the thing let, the price or recompense, and a valid contract between the letter and hirer.b This bail.

ment or letting for hire is of three kinds; locatio *586 rei, by which the *hirer, for a compensation, gains

the temporary use of the thing ; locatio operis faciendi, or letting out of work and labour to be done, or care and attention to be bestowed by the bailee on goods bailed for a recompense ; locatio operis mercium vehendarum, or when goods are bailed to a public carrier or private person, for the purpose of being carried from one place to another for a stipulated or implied reward.c

(1.) In the case of the locatio rei, or letting to hire, the hirer gains a special property in the thing hired, and the letter to hire an absolute property in the price, and retains a general property as owner in the chattel. This is a contract in daily use in the common business of life; and it is very important that the rules regulating it should be settled with clear and exact precision. The letter according to the civil law, is bound not to disturb the hirer in the use of the thing during the period for which

1 Bell's Com. 255. 451, 5th edition. Story on Bailment, p. 251–254.

o Pothier, Traite du Contrat de Louage, No. 6. Story's Comm. 250. The books usually follow the civil law, and consider the price as being payable in money; but the contract at common law may be classed under the head of location, or locatio-conductio rei, be the recompenso what it may. Ibid. 253.

· Coggs v. Bernard, 2 Ld. Raym. 909. Jones on Bailment, 27. 90. The letter or owner who lets out the thing for hire, is called in the civil law locator; and the hirer who has the benefit of the thing for a compensation, the conductor; and the bailment or contract for hire itself, is called locatio or locatio-conductio, or in English, location ; and this is the language used in the Scottish Law. 1 Stair's Inst. b. 1. tit. 15, soc.1. 5, 6. Wood's Inst of the Civil Law, 236. Story on Bailments, 247—249, 22

it was hired, and to keep the subject in suitable order and repair, and to pay for extraordinary expenses necessarily incurred upon it.a But the extent of the obligations of the letter, under the common law on the point of repairs and expenses, remains to be defined and settled by judicial decisions. The hirer is bound to ordinary care and diligence, and is answerable only for ordinary neglect;

for this species of hiring is one of mutual benefit. He is bound to use the article with due care and moderation and not apply it to any other use, or detain it for a longer period, than that for which it was hired.c The responsibility of the hirer is sufficiently shown by Sir William Jones, in his subtle but perfectly judicious criticism on the cases in the English and the Roman law.d The hirer, says Pothier, is only held to a common diligence, and "answerable only for slight neglect. *587 He is bound to bestow the same degree of diligence that all prudent men use in keeping their own goods, and to restore the article in as good condition as he received it, unless it be deteriorated by internal decay or by external means, without his default; and if the article be injured or destroyed without any fault or neglect on the part of the person who takes on hire, the loss falls upon the owner, for the risk is with him. But if the thing hired be lost or damaged by the hirer, or by his servants acting under him, from the want of ordinary care and

Pothier, Traite du Contrat de Louage, No. 77. 106, 107. 129, 130. Civil Code of Louisiana, art. 2663, 2664. i Bell's Com. 453, 5th edit.

Story's Comm. 260, 261. Pothier, Traite du Contrat de Louage, 180. Johnson, J., in Do Tollemere v. Fuller, 1 Const. Rep. S. C. 121. Wheelock v. Wheelwright, 5 Mase. Rep. 104. Story's Comm. 263, 264, 272, 273, 2d edit.

Essay on Bailment, 66–69. Pothier, Traite du Contrat de Louage, No. 190. 192. 197. 200. Gar. side v. T. & M. Navigation Company, 4 Term Rep. 581. Cooper v. Barton, 3 Campb. Rep. 6, note. Millon v. Salisbury, 13 Johns. Rep. 211. Story's Com. 268-272. Salter v. Hurst, 5 Miller's Louis. Rep. 7. Reeves v. the Constitution, Gilpin's Rep. 579. Vol. II.

57

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diligence, he is responsible. The bailee, when called upon for the article deposited, must deliver it, or account for his defa ult by showing a loss of it by some violence, theft or accident. When the loss is shown, the proof of negligence or want of due care is thrown upon the bailor and the bailee is not bound to prove affirmatively that he used reasonable care.c The care must rise in proportion to the demand for it; and things that may easily be deteriorated require an increase of care and diligence in the use of them. Negligence is a relative term ; and the value of the article and the means of security possessed by the bailee, are material circumstances in estimating the requisite care and diligence. That may be gross negligence in the case of a parcel of articles of extraordinary value, which, in the case of another parcel, would not be so; for the temptation to theft, and the necessity for care, are in proportion to the value.d Gaius

uses the word diligentissimus when the rule is ap*588 plied *in the Roman law to the case of an under

is taking to remove a column from one place to another.e

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Bray v. Mayne, 1 Gow's Rep. 1. Dean v. Keate, 3 Campb. Rep. 4. Story's Comm. 268. Sinclair v. Pearson, 7 N. H. Rep. 219.

b If a bailee for hire sells the goods without authority, the bailor may maintain trover against even the bona fide purchaser. Loeschman v. Ma. chin, 2 Starkie, N. P. C. 311. Cooper v. Willomatt, 1 Manning, Granger f. Scott, 672.

• Harris v. Packwood, 3 Taunt. Rep. 264. Marsh v. Horne, 5 Barnio. Cress. 322. 7 Cowen's Rep. 500, note. a Batson v. Donovan, 4 Barnw. f. Ald. 21. Tracy v. Wood, 3 Mason's Rep. 134, 135. See the cases put by Sir William Jones, and Lord Stow. ell, by way of illustration of the reason of the distinction between different degrees of diligence requisite in different cases. Jones on Bailment, 62. 6 Rob. Adm. Rep. 142. 155.

Dig. 19. 2. 25. 7. Sir William Jones, in his Essay on Bailment, 67, says, that the superlative diligentissimus was here improperly applied, and that it would be a case only of ordinary care. But Ferriere, in his Commentaries upon the Institutes, tom. v. p. 138, thinks otherwise ; and that Gaius was speaking of things that might easily be deteriorated, and would require the most exact diligence for their preservation. The case would

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(2.) The case of locatio operis faciendi, is where work and labour, or care and pains, are to be bestowed on the thing delivered, for a pecuniary recompense; and the workman for hire must answer for ordinary neglect of the goods bailed, and apply a degree of skill equal to his undertaking. Every man is presumed to possess the ordinary skill requisite to the due exercise of the art or trade which he assumes. Spondet peritiam artis, and Imperitia culpæ annumeratur. If he performs the work unskilfully, he becomes responsible in damages. Every mechanic who takes any materials to work up

for another in the course of his trade, as where a tailor receives cloth to be made into a coat, or a jeweller a gem to be set or engraved, is bound to perform it in a workmanlike manner; he must bestow ordinary diligence, and that care and fidelity, which every man of common prudence, and capable of governing a family, takes of his own concerns.b As this contract is of mutual benefit, the bailee is not answerable for slight neglect, nor for a loss by inevitable ac. cident or irresistible force, or from the inherent defect of the thing itself ;c he is only answerable for ordinary neglect.

*But though he must exercise a care, diligence, *589 and skill, adequate to the business; and if he fails in the ordinary care and skill which belongs to his under

depend upon circumstances. Gaius was speaking, not of uphewn blocks of granite or marble, but of columns, which implied, in the midst of the splendid architecture of Rome, productions of great labour and skill; and in such a case, it would, no doubt, require the utmost attention to avoid injury to the polished shaft or capital; and especially if that capital was finished in the Corinthian style, or surmounted by an entablature, adorned with all the beauty and elegance of the Grecian art.

Bell's Com. vol. i. p. 459. Pothier, Traite du Contrat de Louage, No. 425, 426. M'Donald v. Simpson, 4 Arkansas Rep. 523.

Dig. 19. 2. 9. 5. Pothier, Ibid. No. 419. 428. 1 Bell's Com. 456, 458. Duncan v. Blundell, 3 Starkie's Rep. 6. Story on Bailments, 281. 2d edit.

e Pothier, Traité du Contrat de Louage, n. 428. Dig. 19. 2. 13. 5. d Story on Bailment, p. 282, 283, 284, 2d edit.

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