so high authority, of a Judge, to proceed in the mode thus suggested, to be enabled to arrive at a satisfactory conclusion. upon a single propounded question, involving the principle of the legal liability of carriers, how much to be respected is the suggestion by an author professing to consider every question which has been propounded to the Courts of Common Law on that subject, from the earliest to the latest adjudged case. It thus seems, as it were, imperative, before commencing to treat, as is now proposed, of the law of carriers as a distinct and independent subject, to show the several sorts of bailments, and to give a compendious view of that more general branch of the law to which the decisions in respect to the legal liability of a carrier have reference; and it is intended, in so doing, to have free recourse to the profound legal erudition and philosophical labors both of Sir William Jones1 and the late learned Mr. Justice Story.2 §3. Sir William Jones, it may be premised, has expressed his astonishment at the fact, that so important a branch of jurisprudence, as the title bailment, in the English law, should have, from the reign of Elizabeth to the reign of Anne, produced more contradictions and confusion, more diversity of opinion and inconsistency of argument, than any other part of judicial learning equally simple.3 It § 4. To begin with the definition of the term bailment. is derived from the French word bailler, which signifies to n. 3. Abridged reports of different parts of Lord Holt'so pin ion are in Holt's Reports, 13, 131, 528. 1 An Essay on the Law of Bailments, by Sir William Jones, Knt. (4th Eng. edit.) 2 Commentaries on the Law of Bailments, with Illustrations from the Civil and Foreign Law, by Joseph Story, LL. D., one of the Justices of the Supreme Court of the United States, and Dane Professor of Law in Harvard University. 4th edition, 1846. 3 Jones on Bailm. 2, 3. 1 deliver; and it is a compendious expression to signify a contract resulting from delivery.2 Sir William Jones has defined bailment to be, "A delivery of goods on a condition express 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 are bailed shall be answered." 3 In another part of his essay he offers a definition in language somewhat different, saying, "A delivery of goods in trust, on a contract, express or implied, that the trust shall be duly executed, and the goods re-delivered, as soon as the time or use, for which they were bailed, shall have elapsed, or be performed." 4 Blackstone has defined bailment to be, "A delivery of goods in trust upon a contract, express or implied, that the trust shall be faithfully executed on the part of the bailee ; " 5 and again, a " Delivery of goods to another person for a particular use." Story, without professing to enter into a minute criticism, thinks it may be said, that "A bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust."7 Kent may be considered to have blended, in some measure, the definitions of Jones and Blackstone,8 and he refuses to apply the term bailment to cases in which no return or delivery, or redelivery to the owner or his agent is contemplated. "Bail 1 2 Black. Comm. 451. "It may be observed," says Sir William Jones, "that this is the only contract to which the French (from whom our word bailment was borrowed,) apply a word of the same origin; for, the letting of a house or chamber for hire is by them called bail à loyer, and the letter for hire bailleur, that is, bailor, both derived from the old word, bailler, to deliver." Jones on Bailm. 90. 2 Story on Bailm. § 2. 3 Jones on Bailm. 1. 4 Ibid. 117. 5 2 Black. Comm. 451. 6 Ibid. 395. Story on Bailm. § 2, p. 4, (4th edit.) 8 So Story thinks; Story on Bailm. ub. sup. ment," he says, "is a delivery of goods in trust, upon a contract, express or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered."1 In these definitions, it will be observed, bailment is called a contract; and although it has been thought by some, whose opinions are entitled to consideration and weight, that in some of the species of bailment, contract does not subsist2; yet that 12 Kent, Comm. 558. In Les Termes de la Ley, first published in 1563, there appears the following definition of bailment, and one which shows that the principles of this branch of the law were not, as above stated in the text, at so late a period as that between the reigns of Elizabeth and Anne, clearly understood. The definition is,-"Bailment is a delivery of things, whether writings, goods or stuff, to another; sometimes to be delivered back to the bailor, that is, to him that so delivered it; sometimes to the use of the bailee, that is, of him to whom it is delivered; and sometimes, also, it is delivered to a third person. This delivery is called a bailment." This definition is considered singularly loose and unsatisfactory, and, considering the recognized accuracy of the work from which it is cited, it is corroboratory proof that, at the time the above-named work was first published, the principles of this branch of the law were not very clearly understood; for it mentions as a class of bailments, distinct from those in which there is to be a re-delivery to the bailor, or a delivery to a third person, the case of goods delivered to the use of the bailee; but in all such cases, there must be a trust to re-deliver to the bailor, or to deliver to a third party, or there would be no bailment; the last-mentioned class is also very incorrectly worded, "Sometimes, also, it [query what?] is delivered to a third person." If this be taken to mean that the subject-matter of the bailment is delivered to a third person, he would be the bailee; but the meaning must be, (though the original French — " Il est deliver à un tierce person”—will hardly warrant that construction,) that the thing bailed is to be delivered by the bailee to a third person. See English Monthly Law Magazine for April, 1839. Where a contract was made between a miller and other persons, by which the former agreed to take from the latter wheat, and give them one barrel of flour for every four bushels and thirty-six pounds of wheat, it was held, that the contract was one of sale, and not of bailment; and that the destruction of the wheat, after its delivery, by the burning of the mill, was the loss of the miller, and was no defence to an action for the price. Baker v. Woodruff, 2 Barb. (N. Y.) R. 520. 2 See an able article by the late Mr. J. B. Wallace, of the Philadelphia Bar, in the American Jurist for 1837, vol. 16, p. 253 to 285. term is used, when speaking of bailment generally by Courts and Judges, without reference to the distinction of its several species.1 § 5. It is obvious, from the foregoing definitions, that the law of bailments involves what Sir William Jones calls, "the great question of responsibility for neglect," a question upon which Blackstone speaks so loosely and indetermi nately, that no fixed ideas can be collected from his words; though his commentaries are the most correct and beautiful outline that ever was exhibited of any human science.2 Before considering, therefore, the different kinds of bailments, this great question, which is of the utmost importance in illustrating the law of carriers, demands attention. From the obligation contained in the definition of bailment, to restore the thing bailed at a certain time, it follows that the bailee (a carrier for instance) must keep it, and be responsible to the bailor, (the person, for instance, by whom a carrier is employed,) if it be lost or damaged; but as the bounds of justice would, in most cases, be transgressed, if he were made liable for the loss of it without his fault, he can only be obliged to keep it with a degree of care proportioned to the nature of the bailment; and the investigation of this degree, in every particular contract, is the problem which involves the principal difficulty.4 3 § 6. As to the various degrees of care or diligence which are recognized in the law, Sir William Jones, with his characteristic acuteness, says, "that there are infinite shades, from the slightest momentary thought or transient glance of attention, to the most vigilant anxiety and solicitude. But extremes," he says, "in this case, as in most others, are inapplicable to practice; the first extreme would seldom enable the bailee to perform the condition, and the second ought 1 See post, note to 19. 3 Jones on Bailm. p. 5. not in justice to be demanded; since it would be harsh and absurd to exact the same anxious care which the greatest miser takes of his treasure, from every man who borrows a book or a seal. The degrees of care to be sought, then, must lie somewhere between these extremes; and, by observing the different manners and characters of men, a certain standard may be found, which will greatly facilitate an inquiry; for, although some persons are excessively careless, and others extremely vigilant, and some through life, and others only at particular times, yet it is perceptible that the generality of rational persons use nearly the same degree of diligence in the conduct of their own affairs. This care, therefore, which every person of common prudence, and capable of governing a family, takes of his own concerns, is a proper measure of that which would uniformly be required in performing every contract, if there were not strong reasons for exacting in some of them a greater, and permitting in others a less degree of attention. Here, then," says Sir William Jones, "we may fix a constant determinate point, on each side of which there is a series consisting of variable terms, tending indefinitely towards the above-mentioned extremes, in proportion as the case admits of indulgence or demands rigor; if the construction be favorable, a degree of care less than the standard will be sufficient; if rigorous, a degree more will be required; and in the first case, the measure will be that care which every man of common sense, though absent and inattentive, applies to his own affairs; in the second, the measure will be that attention which a man remarkably exact and thoughtful gives to the security of his personal property.1 § 7. Story thinks, that although it may not be possible to lay down any very exact rule, applicable to all times and all circumstances; yet that may be said to be common or ordinary diligence in the sense of the law, which men of 1 Jones on Bailm. 5, 6. |