livered, or (in our legal dialect) bailed, to a taylor to make a suit of clothes, he has it upon an implied contract to render it again when made, and that

the horses, and has only to take care of the glasses and inside of the carriage while he sits in it. 2 Jones, 89. 5 Esp. 39.

In all cases the negligence of the servant acting under his master's directions, express or im.. plied, is the negligence of the master. Salk. 282. Ld. Raym. 916, 3 Camp. 5. It will not be improper to add, that if immoveable property, as an orchard, garden, or farm, be let by parol, with no other stipulation than for the price or rent, the occupier is bound to use the same diligence in preserving the trees, implements, &c. as a prudent man would use if they were his own. 5 T. R. 373. 4 East, 154.

Secondly, Locatio operis faciendi. This species of bailment comprehends all those cases in which the bailee undertakes to execute work for a sum of money. He is bound to use more care than the gratuitous bailee, and as much as the hirer of property should do, the observations with respect to whom are here applicable, see 1 Gow. C. N. P. 30. 1 Camp. 138.; and if mischief accrue to the thing bailed from the violence of the elements, which might have been arrested in its progress, by the application of obvious means, the bailee is responsible. Cattle taken in to agist must be guarded with more than ordinary care. 8 Rep. 32. Holt, C. N. P. 547. So a bailee to keep for hire, must take care not to deliver the goods to an unauthorized person, or he becomes liable for the value of them. 1 Stark. 104. An inkeeper is bound to keep safely all such things as his guests deposit in his custody, or within his inn; and he is liable for all losses, except those arising from irresistible force, the act of God, or the king's enemies. He may excuse himself by shewing it was the guest's own default, as that the robbery was committed by the guest's own servant or companion, but the plea of sickness, or even insanity at the time, will not avail him. Jeremy, 145. Cro. Eliz. 622. Nor can he discharge himself from responsibility by refusing to take charge of the goods, because there are suspected persons in the house, whose conduct he cannot control. Jones, 95. 5 T. R. 273. 8 Coke, 32. If he refuse because his house is full of parcels, he is still liable for a loss, if the goods are deposited there, though he is not informed of it, provided the owner remains as a guest. 3 Rep. 63. 5 T. R. 273. When the guest quits, the goods, if left, become a simple deposit, gratuitous or for hire, as the case may be. But if the guest obtain exclusive use of a room for the purposes of a shop or warehouse, he exonerates the innkeeper, as to the property therein. Holt, C. N. P. 209. 211. n. 1 Stark. 249. See also 4 M. & S. 306. 4 D. & R. 636.

The 6 Anne, c. 31. and 14 Geo. III. c. 78. seem to exonerate bailees generally from liability for losses occasioned by fire beginning in any house or chamber: the latter act extends to barns, stables, or other buildings, or on any person's estate, within the bills of mortality; but it seems that innkeepers and carriers are not within the protection of this statute. 4 T. R. 581. 5 T. R. 389. 1 Stark. 72.

Warehousemen and Wharfingers stand generally in the situation of ordinary bailees for hire, and are therefore answerable only for ordinary neglect. Jones, 96. They are not answerable for thefts by their servants, if they can prove that they have exercised the same care of their bailments as of their own property. Peake, 113. Cowp. 480. 4 T. R. 581. It is a question, whether a warehouseman by removing goods from the warehouse (for the use of which the owner pays warehouse room) to another, is not liable for loss by fire? 2 Stark. 400. The responsibility commences from the moment the warehouseman's tackle is applied to the goods, and ceases upon his delivery of them, according to the owner's express or implied directions. 4 Esp. Rep. 262. 5 Esp. 43. 2 Ld. Raym. 909. Where goods are to be forwarded coastwise, and it is the custom of wharfingers to deliver them to the mates of the coasters, the wharfinger's responsibility ceases upon such delivery, though the goods be lost before they are carried off the wharf. 5 Esp. 41.

With respect to Factors, Attornies, Auctioneers, and Bailiffs, when their undertaking lies in feazance, and not merely in custody, more or less diligence is required, according to the nature of the business; and the question as to what amounts to reasonable care, is for a jury to decide. 4 Rep. 84. 1 Inst. 89. Lord Raym. 918. 4 Bar. & Ald. 202.

Thirdly, Locatio operis mercium vehendarum, or Carriers. There are varieties of this species of bailees, but their obligations are the same, except in the case of common carriers, of whom greater care and diligence is demanded. Any person undertaking to carry goods, either by land or water, of all persons indifferently, is for this purpose a common carrier, 1 Salk. 249. Cro. Jac. 262. 2 Chitty's Rep. 1. 6 Moore, 141. 2 Bos. & Pul. 419. though a hackney coachman is not. Jeremy, 13, 14. The postmaster-general, and deputy postmaster, are not liable as common carriers, 1 Salk. 17. Cowp. 754. but the deputy-postmaster is lable for not delivering letters in due time. 3 Wils. 443. 2 Bla. Rep. 906. 5 Burr. 2711. Common carriers are bound to receive and carry goods for reasonable hire and reward. 2 Show. 81. 129. They are liable for every mischief which might have been provided against; as if a rat make a hole in a ship and the goods are damaged, or if the ship strike against an anchor under water and sink, and the goods are lost, 3 Esp. 127. Selw. N. P. 395. 1 Wils. 181.; or if they be stolen. 1 Inst. 89. a. Gow. C. N. P. 115. A carrier is considered in the nature of an insurer, and is answerable for inevitable accident while the goods remain in his custody as a common carrier, 1 T. R. 33. Stra. 690. 5 T. R. 389. but if the goods remain in his warehouse at the end of the journey, at the request, and merely for the convenience of the owner (the owner not paying warehouse room), the carrier is not liable. 4 T. R. 581.

in a workmanly manner. (r) If money or goods be delivered to a common carrier, to convey from Oxford to London, he is under a contract in law to

r 1 Vern. 268.

The duties of carriers to London, with respect to delivery, are pointed out by the porterage act (39 Geo. III. c. 58. s. 4.) which provides, that parcels arriving in town by any conveyance other than stage waggons, between four in the evening and seven in the morning, shall be deli vered within six hours after such hour in the morning; if arriving at any other hour in the day, within six hours after such arrival, under a penalty not exceeding 20s. nor less than 10s.; and every parcel arriving by any public stage waggon, shall be delivered within twenty-four hours after such arrival, under a penalty of 40s. Upon every parcel directed to be left till called for, the charge for carriage, and two-pence for warehouse room must be paid, on delivery to the person duly authorized to call for it. The porters are subject to penalties for misbehaviour, and a parcel may be demanded which is not directed to be left till called for, upon payment of the carriage, and the additional two-pence for warehouse room.

A carrier is not liable for loss or damage occasioned by tempest, storm, or the like, unless be voluntarily, or by negligence, encounters the mischief. 3 Esp. 74, 131. 1 T. R. 27. 2 Buls. 280. Deceit, artifice, concealment, fraud, or neglect of the bailor, by which a parcel, containing things of great value, appears to be of small value, will discharge the carrier from liability, 4 Burr. 2298. 4 B. & A. 28, 41.; but directing a banker's parcel to a third person, so as to prevent its being known as a banker's, is not a fraudulent concealment. 2 B. & A. 350. The bailor need not, unless requested, disclose the value to the carrier; but if the latter has given notice, qualify. ing his liability, it is then necessary; but though falsely stated, if the carrier know its real value, he is still liable. 4 B. & A. 25. 32. Stra. 145. Bul. N. P. 70. If the goods be lost or injured by the bailor's imperfect packing, which the carrier could not perceive, 2 Stark. 325.; or by the omission of a condition precedent, as obtaining a permit, &c. the carrier is not liable. 3 Esp. 74. If the bailor send his servant with the goods, who has the exclusive care of them, the carrier is not responsible. 1 Stra. 690. 2 Bos. & Pul. 406. 2 Bulst. 280.

Carriers by water are not answerable for loss for not having a pilot on board, unless they refuse or neglect the proper means to obtain one. Nor for a pilot's incompetence or negligence. See the pilot act, 52 Geo. III. c. 39. 6 Rob. Rep. 317, 8. in notes. See 1 Moore, Rep. 4. 7 Taunt. 258. 309. 3 Stark. 12. 3 Price, 317. Nor in any case are they liable beyond the value of the ship, appurtenances, and freight of the voyage, s. 27. See also the 53 Geo III. c. 159. by which the responsibility of carriers by sea is slightly modified from the preceding. By the 26 Ġeo IH. c. 86. owners shall not be liable for loss by fire on board the ship, nor for loss or damage to gold, jewels, watches, &c. by reason of robbery or embezzlement, &c. unless the shipper thereof insert in his bill of lading, or otherwise declare in writing, to the master, &c. the true nature and quality of such articles..

Carriers may limit, or entirely get rid of their liability by notice, proved to be known and understood by the bailor or his servant on the delivery of the goods, 3 Camp. 27. 2 Stark. 53. except for misfeazance, gross negligence, or contravention of an act of parliament, as the porterage act. 1 Hen. Bla. 298. 4 East, 370. 5 East, 507. Aleyn, 93. 1 Stark. 72. On all questions of notice it is for the jury to determine whether the bailor had notice or not, 1 Stark. 186. 1 Hen. Bla. 198.; and potices are construed strictly against carriers, nor is their personal default, as misdelivery of parcels, &c. within them. 5 East, 428. 2 B. & A. 369. The word "glass" written on the package, is a sufficient notification of the nature and value of the goods, where a notification is necessary, from their value being much greater than their bulk and appearance indicate, 3 Camp. 527.; but see 3 Starkie, 107., and where an agent in the country sends goods to the plaintiff in town, who is aware of the restrictive notice, that is sufficient to bind the plaintiff. 3 Stark.

196.

A carrier's liability commences from the time the goods are actually delivered to him or his authorized agent. 5 T. R. 389. Delivery to the driver of a stage coach, as servant of the carrier, is sufficient, 2 Stark. 82.; or to the captain of a ship, is good against the owners, or the charterer, pro hac vice, if under charter. 3 Esp. 27. Where the carriage is to be by the post, it is not sufficient to make the consignee liable for the loss, if the letter was only given to a bell-man; but if it were delivered at the general post office, or a receiving house, it would be otherwise. Peake, C. N. P. 186.

The carrier's liability ceases when he vests the property in the hands of the consignee or his agent by actual delivery, or on its being resumed by the consignor, in pursuance of his right of stoppage in transitu. The leaving goods at an inn is not a sufficient delivery. Selw. N. P. tit. Carriers. The usual liability of carriers may in some degree be limited by usage, or by a special contract with the owner of the goods. 2 Moore Rep. 500. 1T. R. 27. So where the consignee directs the carrier to let the goods remain in his waggon office till he (the consignee) removes them, the carrier's liability ceases on the arrival of the goods at the waggon office. 1 Moore, 526. In such case the carrier can only be considered as a warehouseman. 2 Moore Rep. 500.; see 1 T. R. 27. In the river Thames the liability of the master continues till the goods are loaded in the lighter sent by the consignee to receive them, 1 Bos. & Pul. 16.; and if they are wrongfully detained by revenue officers, his liability still continues, he having a remedy against the officers. 1 Campb. 451.

The rate of charge for carriage is to be in some cases regulated by statute, (see 2 & 3 W. &

L

pay, or carry them, to the person appointed. (s) If a horse, or other goods, be delivered to an innkeeper or his servants, he is bound to keep them safely, and restore them when his guest leaves the house. (t) [452] If a man takes in a horse, or other cattle, to graze and depasture in

his grounds, which the law calls agistment, he takes them upon an implied contract to return them on demand to the owner. (u) If a pawnbroker receives plate or jewels as a pledge, or security, for the repayment of money lent thereon at a day certain, he has them upon an express contract or condition to restore them, if the pledgor performs his part by redeeming them in due time : (w) for the due execution of which contract many useful regulations are made by statute 30 Geo. II. c. 24. 23 And so if a landlord distrains goods for rent, or a parish officer for taxes, these for a time are only a pledge in the hands of the distrainors, and they are bound by an implied contract in law to restore them on payment of the debt, duty, and expenses, before the time of sale: or, when sold, to render back the overplus. If a friend delivers any thing to his friend to keep for him, the receiver is bound to restore it on demand; and it was formerly held that in the mean time he was answerable for any damage or loss it might sustain, whether by accident or otherwise; (x) unless he expressly undertook (y) to keep it only with the same care as his own goods, and then he should not be answerable for theft or other accidents. But now the law seems to be settled, (2) that such a general bailment will not charge the bailee with any loss, unless it happens by gross neglect, which is an evidence of fraud: but, if he undertakes specially to keep the goods safely and securely, he is bound to take the same care of them, as a prudent man would take of his own. (a)

In all these instances there is a special qualified property_transferred from the bailor to the bailee, together with the possession. It is not an absolute property, because of this contract for restitution; [453] the bailor having still left in him the right to a chose in action, grounded upon such contract. And, on account of this qualified property of the bailee, he may (as well as the bailor) maintain an action against such as injure or take away these chattels. The taylor, the carrier, the innkeeper, the agisting farmer, the pawnbroker, the distrainor, and the general bailee, may all of them vindicate, in their own right, this their possessory interest, against any stranger or third person. (b) For, being responsible to the bailor, or if the goods are lost or damaged by his wilful default or gross negligence, or if he do not deliver up the chattels on lawful demand, it is therefore reasonable that he should have a right of action against all other

t Cro. Eliz. 622.

x Co. Litt. 89.

s 12 Mod. 482.

u Cro. Car. 271. y 4 Rep. 84.

w Cro. Jac. 245. Yelv. 178. z Lord Raym. 909. 12 Mod. 487.

a By the laws of Sweden the depositary or bailee of goods is not bound to restitution, in case of accident by fire or theft: provided his own goods perished in the same manner; "jura enim nostra," says Stierohook, dolum pruesumunt, si una non pereant." (De jure Sueon. l. 2. c. 5) b 13 Rep. 69.

M. c. 12. s. 24. and 39 Geo. III. c. 58.) and in others by special stipulation between the parties; but in no case can a common carrier claim more than is reasonable for his trouble. 3 Taunt. 264.; see Cro. Jac. 262. 2 Show. 81. 129. The former of the statutes above cited, authorizes the justices in Easter quarter sessions throughout England, yearly to assess and rate the price of all land carriage; and though this statute is not acted upon, it may be considered as still in force. Jeremy, 112. 6 T. R. 17. 3 Taunt. 264.

Special carriers are those who do not carry for all persons indiscriminately, and are not like common carriers compellable to undertake the carriage of the goods. They are only liable as common mandatories, the law with respect to whom is explained in the 2d species of bailments, ante 451. (a).

(23) See 39 & 40 Geo. III. c. 99. and ante 451. (b) note 22. as to pawnbrokers.

Chitty.

persons who may have purloined or injured them; that he may always be ready to answer the call of the bailor.

24

3. Hiring and borrowing are also contracts by which a qualified property may be transferred to the hirer or borrower: in which there is only this difference, that hiring is always for a price, or stipend, or additional recompense; borrowing is merely gratuitous. But the law in both cases is the same. 25 They are both contracts, whereby the possession and a transient property is transferred for a particular time or use, on condition to restore the goods so hired or borrowed, as soon as the time is expired or use performed; together with the price or stipend (in case of hiring) either expressly agreed on by the parties, or left to be implied by law according to the value of the service. By this mutual contract, the hirer or borrower gains a temporary property in the thing hired, accompanied with an implied condition to use it with moderation, and not to abuse it; and the owner or lender retains a reversionary interest in the same, and acquires a new property in the price or reward. Thus if a man hires or borrows a horse for a month, he has the possession and a qualified property therein during that period; on the expiration of which his qualified property determines, and the owner becomes (in case of hiring) entitled also to the price for which the horse was hired. (c)

[454] There is one species of this price or reward, the most usual of any, but concerning which many good and learned men have in former times very much perplexed themselves and other people, by raising doubts about its legality in foro conscientiae. That is, when money is lent on a contract to receive not only the principal sum again, but also an increase by way of compensation for the use; which generally is called interest by those who think it lawful, and usury by those who do not so. For the enemies to interest in general make no distinction between that and usury, holding any increase of money to be indefensibly usurious. And this they ground as well on the prohibition of it by the law of Moses among the Jews, as also upon what is said to be laid down by Aristotle, (d) that money is naturally barren, and to make it breed money is preposterous, and a perversion of the end of its institution, which was only to serve the purposes of exchange and not of increase. Hence the school divines have branded the practice of taking interest, as being contrary to the divine law both natural and revealed; and the canon law (e) has prescribed the taking any, the least, increase for the loan of money as a mortal sin.

But, in answer to this, it hath been observed, that the Mosaical precept was clearly a political, and not a moral precept. It only prohibited the Jews from taking usury from their brethren the Jews; but in express words permitted them to take it of a stranger: (ƒ) which proves that the taking of moderate usury, or a reward for the use, for so the word signifies, is not malum in se since it was allowed where any but an Israelite was concerned. And as to the reason supposed to be given by Aristotle, and deduced from the natural barrenness of money, the same may with equal force be alleged of houses, which never breed houses; and twenty other things,

c Yelv. 172. Cro. Jac. 236.

d Polit. 1. c. 10. This passage hath been suspected to be spurious.
e Decretal, l. 5. tit. 19.
f Deut. xxiii. 20.

(24) See ante 451. note 22.

(25) The learned Commentator has here followed lord Holt, who has treated a commodatum and locatio without distinction. Lord Raym. 916. But this seems to be properly corrected by Sir W. Jones, 85.; who concludes that, the hirer of a thing is answerable only for ordinary neglect; but that a gratuitous borrower is responsible even for slight negligence. Ib. 120.

1

which nobody doubts it is lawful to make profit of, by letting them to hire. And though money was originally used only for the purposes of exchange, yet the laws of any state may be well justified in permitting it to be turned to the purposes of profit, if the convenience of society (the great end for which money was invented) shall require it. And that the al- [455] lowance of moderate interest tends greatly to the benefit of the public, especially in a trading country, will appear from that generally acknowledged principle, that commerce cannot subsist without mutual and extensive credit. Unless money therefore can be borrowed, trade cannot be carried on; and if no premium were allowed for the hire of money, few persons would care to lend it; or at least the ease of borrowing at a short warning (which is the life of commerce) would be entirely at an end. Thus, in the dark ages of monkish superstition and civil tyranny, when interest was laid under a total interdict, commerce was also at its lowest ebb, and fell entirely into the hands of the Jews and Lombards: but when men's minds began to be more enlarged, when true religion and real liberty revived, commerce grew again into credit: and again introduced with itself its inseparable companion, the doctrine of loans upon interest. And, as to any scruples of conscience, since all other conveniences of life may either be bought or hired, but money can only be hired, there seems to be no greater oppression in taking a recompense or price for the hire of this, than of

any other convenience. To demand an exorbitant price is equally contrary to conscience, for the loan of a horse, or the loan of a sum of money: but a reasonable equivalent for the temporary inconvenience, which the owner may feel by the want of it, and for the hazard of his losing it entirely, is not more immoral in one case than it is in the other. Indeed the absolute prohibition of lending upon any, even moderate interest, introduces the very inconvenience which it seems meant to remedy. The necessity of individuals will make borrowing unavoidable. Without some profit allowed by law, there will be but few lenders; and those principally bad men, who will break through the law, and take a profit; and then will endeavour to indemnify themselves from the danger of the penalty, by [456] making that profit exorbitant. A capital distinction must therefore be made between a moderate and exorbitant profit; to the former of which we usually give the name of interest, to the latter the truly odious appellation of usury: the former is necessary in every civil state, if it were but to exclude the latter, which ought never to be tolerated in any well-regulated society. For, as the whole of this matter is well summed up by Grotius, (g) "if the compensation allowed by law does not exceed the proportion of the hazard run, or the want felt, by the loan, its allowance is neither repugnant to the revealed nor the natural law: but if it exceeds those bounds, it is then oppressive usury; and though the municipal laws may give it impunity, they can never make it just."

We see that the exorbitance or moderation of interest, for money lent, depends upon two circumstances; the inconvenience of parting with it for the present, and the hazard of losing it entirely. The inconvenience to individual lenders can never be estimated by laws; the rate therefore of general interest must depend upon the usual or general inconvenience. This results entirely from the quantity of specie or current money in the kingdom; for the more specie there is circulating in any nation, the greater superfluity there will be, beyond what is necessary to carry on the business of exchange and the common concerns of life. In every nation or public com

g de j. b. & p. l. 2. c. 12. § 22.