The Law of Bailment has received in modern times a more systematic arrangement than formerly, and a more profound and accurate investigation into its principles. But it was always, though not under the same name, a branch of the common law, and some of its principles are as ancient as any part of that law. Sir William Jones speaks of it as referred to in the books of Moses, and as quite fully developed among the Greeks. But, in fact, much law on the topics which are now considered under the head of Bailment, must exist in all nations who make any approach to civilization. For there must always be something of borrowing, lending, hiring, and of keeping chattels, carrying or working upon them, for another; and all this is embraced within Bailment. The word is from the Norman-French bailler, to deliver. Whatever is delivered by the owner to another person, in any of the ways or for any of the purposes above mentioned, is bailed to him; and the law which determines the rights and duties of the parties, in relation to the property and to each other, is the law of Bailments.

Sir William Jones, in 1781, published his brief essay on the Law of Bailments. This work first gave to the subject systematic form. It was at that time eminently useful, and has always been celebrated. As a literary and philosophical production, manifesting much learning in the Roman civil law, it has great merit; but, as a law-book for present use, it now possesses less value. In the 2 Anne, Lord Holt, in the case of Coggs v. Bernard, (a) laid the foundations of this system of * law, build * 87

(a) 2 Ld. Raym. 909. This celebrated case is referred to in the great majority of subsequent cases which relate to the responsibility of a bailee. In this case, that eminent judge, Sir John Holt, may be said to have laid the foundation of the slight negligence. The third is, where the bailment is for the benefit both of bailor and bailee. In this class, ordinary care is required of the bailee, and he is responsible for ordinary negligence. We shall also see, presently, that there are bailees of whom the utmost possible care is required, and who are responsible for the slightest possible negligence, and others who are responsible when guilty of no negligence whatever.

Law of Bailment for England. He borrows most, perhaps all, of his principles from the civil law. And he gave at once a proof of the wisdom of that law, and of his own sagacity in seizing those of its principles which had been adopted by ing it, however, on principles deducible from or harmonizing with existing English jurisprudence, although he used an arrangement and nomenclature borrowed from the civil law.

A bailee is always responsible for the property delivered to him; but the degree and measure of this responsibility vary from one extreme to another. He is bound to take care of the property; but the question always occurs, What care? It is obviously impossible to measure the requirement of care with exact precision. But, for their assistance in doing this, courts have established three kinds or degrees of care, as standards. There is, perhaps, no better definition of these, than that given by Sir William Jones. First, slight care, which is that degree of care which every man of common sense, though very absent and inattentive, applies to his own affairs; secondly, ordinary care, which is that degree of care which every person of common and ordinary prudence takes of his own concerns; thirdly, great care, which is the degree of care that a man remarkably exact and thoughtful gives to the securing of his own property. It is obvious that the degree of care required measures the degree of negligence which makes the bailee responsible for loss of or injury to the thing bailed. There are, therefore, three degrees of negligence. The absence of slight care constitutes gross negligence; the absence of ordinary care constitutes ordinary negligence; the absence of great care constitutes slight negligence. The general purpose of the Law of Bailment is to ascertain whenever loss of or injury to a thing bailed occurs, to what degree of care the bailee was bound, and of what degree of negligence he has been guilty. (b)

For this purpose bailees are sometimes distributed into three general classes, corresponding with the three degrees of care and negligence already referred to. The first of these is, where the bailment is for the benefit of the bailor alone. In this class but slight care is required of the bailee, and he is responsible only for gross negligence. The second is, where the bailment is for the benefit of the bailee alone. In this class the greatest care is required of the bailee, and he is responsible for or were applicable to the common law, and in stating them with great accuracy of definition, and with the modifications required to adapt them to the common law. So that they have passed through all subsequent adjudications with but little essential change.

(b) For an able criticism upon the definitions and classifications of negligence, see Steamer New World v. King, 16 How. 409. See also, Blythe v. Waterworks, SO E. L. & E. 506; s. c. 11 Exch. 781.

Courts and writers have sometimes spoken of gross negligence as the same thing as fraud; but this is inaccurate. (c) l There are bailees who should not be held responsible but for the grossest negligence, and it is often difficult to distinguish between such cases and those where there is reasonable suspicion of fraud; for such negligence generally justifies such suspicion. But that the law makes this distinction is certain.

There have been many different classifications of the kinds of bailments; (d) but we prefer and shall use that of Sir Wil(c) In the case In re Hall & Hinds, 2 Man. & G. 862, Tindal, C. J., says: "Lata culpa or crassa negligentia, both by the civil law and our own, approximates to, and in many instances cannot be distinguished from, dolus malus or misconduct" There may be instances in which these cannot be discriminated in fact, but they are entirely distinct in law. In Wilson v. Y. & M. Railroad Co. 11 Gill & J. 58, 79, the court say: "We do not think that gross negligence would, in construction of law, amount to fraud, but was only evidence to be left to the jury, from which they might infer fraud, or the want of bona fides." In Goodman v. Harvey,4A.&E. 876, Lord Denman says: "Gross negligence may be evidence of mala fides, but it is not the same thing." This is quoted with approbation in Jones v. Smith, 1 Hare. 71, and Vice-Chancellor Wigram adds: " The doctrines of law and equity upon this point ought to be concurrent. When Lord Holt, in Coggs v. Bernard, says, that gross negligence is looked upon as evidence of fraud, he adopts a rule of the civil law; he does not mean that this evidence is conclusive; or, that if it be rebutted, and the negligence cleared from all stain of actual fraud, it will not remain gross negligence. In other words, gross negligence is not fraud by inference of law, but may go to a jury as evidence of fraud.

(d) There are two classifications of the various kinds of bailments which have become very celebrated in the English and American law - that of Lord Holt, in the case of Coggs v. Bernard, supra, and that of Sir William Jones, in his essay on bailments. We shall give them both in their author's own language. Lord Holt's is as follows: "There are," says he, "six sorts of bailments. The first sort of bailment is, a bare naked bailment of goods, delivered by one man to another to keep for the use of the bailor; and this I call a depositum, and it is that sort of bailment which is mentioned in Southcote's case. The second sort is, when goods or chattels that are useful are lent to a friend gratis to be used by him; and this is called commoda-tum, because the thing is to be restored in specie. The third sort is, when goods are left with the bailee to be used by him for hire; this is called locatio et conductio, and the lender is called locator, and the borrower conductor. The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money borrowed of him by the bailor; and this is called in Latin vadium, and in English a pawn or pledge. The fifth sort is, when goods or chattels are delivered to be carried, or something is to be done about them, for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. The sixth sort is, when there is a

1 That gross negligence on the part of a gratuitous bailee, though not a fraud, is in legal effect the same thing, was declared in National Bank v. Graham, 100 U. S. 699.

liam * Jones, which varies somewhat from Lord Holt's.

And we shall speak successively of

First, Depositum or deposit without compensation or reward.

Second, Mandatum, or gratuitous commission, wherein the mandatary agrees to do something with or about the thing bailed.

Third, Commodatum, or loan, where the thing bailed is lent for use, without pay, and is to be itself returned.

Fourth, Pignus, or pledge, where the thing bailed is security for debt.

Fifth, Locatio, or hiring, for a reward or compensation.