Chap. II. Return of goods without re-delivery. Several bailors. Determination of bailment by act of bailee. nature it may perhaps be considered that the bailee retains possession of the goods, and that they are merely placed in the custody of the bailor as servant of the bailee; and the possession of the bailee is, perhaps improperly, said to be constructive. A good example of this is afforded by the case of Reeves v. Capper, where Wilson pledged his chronometer to Capper upon the terms that Wilson was to have the use of it during a voyage. Wilson delivered the chronometer to Capper's clerk, who redelivered it to Wilson, who took it on his voyage. It was held that the delivery by Capper's clerk to Wilson was not a parting with the possession by Capper, but that Wilson's possession was the possession of Capper, and that Wilson had merely a licence to use the chronometer as Capper's servant. The bailee may do that which amounts to returning the goods to the bailor, without making an actual re-delivery to the bailor, by delivering the goods, with the consent of the bailor, toa stranger who consents to hold them as the bailee of the original bailor. This is called bailment by "attornment." 2 Where there are several bailors, the bailee is not bound to re-deliver the goods to some or one only of them, without the consent of the others." Where one of several tenants in common had the custody of goods for all, he could not bring trover against one of the co-owners who took the goods out of his custody.* "The act of the bailee in doing a thing entirely inconsistent with the terms of the bailment, though not amounting to a destruction of the chattel, is a determination of the bailment, and causes the possessory title (i.e., the right to possess) to revert to the bailor." This rule has been applied where a bailee for hire sold the goods; 6 where a mortgagor of goods sold them; where a man to whom oxen were lent to plough land killed them; and where a warehouseman or carrier 10 delivered the goods to a wrong 9 15 B. N. C. 136. See also Roberts v. Wyatt, sup. North Western Bank v. Poynter, [1895] A. C. 56. 2 Godts v. Rose, 17 C. B. 229. 3 Harper v. Godsell, L. R. 5 Q. B. 422; May v. Harvey, 13 East, 197; 12 R. R. 322. 4 Holliday v. Camsell, 1 T. R. 658; 1 R. R. 346. 5 Per Parke, B., Fenn v. Bittleston, 7 Ex. 159; see also Donald v. Suckling, L. R. 1 Q. B. 585, 614. 6 Cooper v. Willomatt,'1 C. B. 672; Marner v. Bankes, 16 W. R. 62; Bryant v. Wardell, 2 Ex. 479. 7 Fenn v. Bittleston, 7 Ex. 152. 8 Lit. s. 71. 9 Devereux v. Barclay, 2 B. & Ald. 702 21 R. R. 457. 10 Youl v. Harbottle, Peake, "49; Stephenson v. Harte, 4 Bing. 476; 29 R. R. 602. person; but if a pledgee deals with the pledge in a manner other Chap. II. than is allowed by law for the payment of his debt, the immediate right to possession does not re-vest in the pledgor.1 Bailee may not dispute title of bailor. As a general rule, the bailee is not allowed to dispute the title of his bailor. He is bound to restore the goods on the performance of the condition on which the bailment is made, notwithstanding that he knows that a third person has or claims to have a better title to the goods than the bailor. On the other hand, the bailee cannot have a better title to the goods than his bailor,3 Jus tertii. and therefore he can successfully resist the claim of the bailor to have the goods delivered to him, by showing that in refusing to give them up he is acting at the request and with the authority of a person who has a better title than the bailor; or by showing that such a person has actually taken the goods from him contrary to his wish; 5 but he cannot set up the title of another if he accepted the goods with knowledge of the adverse claim; and if the bailee has attorned to an innocent purchaser of the goods, he is estopped from denying the title of the purchaser.8 4 The position of a common carrier is somewhat peculiar. He is bound to receive goods for carriage, and is unable to make any enquiry as to the ownership. If goods are delivered to a carrier by a pseudo-owner, the carrier is safe if he delivers the goods in pursuance of his directions without any knowledge of the true owner's claim. In like manner he is safe, as against the pseudoowner from whom he could not refuse to accept the goods, if the true owner claims the goods and he gives them up to him.10 The bailee may become liable to the true owner if he declines to give up the goods to him."1 In the case of conflicting claims by the bailor and a third person, the bailee may institute interpleader proceedings.12 1 Halliday v. Holgate, L. R. 3 Ex. 299; Yungmann v. Briesemann, 67 L. T. 642. Biddle v. Bond, 6 B. & S. 225; Betteley v. Reed, 4 Q. B. 511; Rogers v. Lambert, [1891] 1 Q. B. 318. Wilson v. Anderton, 1 B. & Ad. 456; 35 R. R. 348. + Thorne v. Tilbury, 3 H. & N. 534; Ogle v. Atkinson, 5 Taunt. 759; 15 R. R. 647; Rogers v. Lambert, sup. • Shelbury v. Scotsford, Yelv. 23; Ross v. Edwards, 73 L. T. 100. In the case of carriers. common Chap. II. Duty of bailee in cases where the bailment is for benefit of bailor only; for benefit of bailee only; The bailee is bound to take care of the goods bailed, and is responsible if they are lost or damaged through his negligence. The amount of negligence which renders him responsible depends upon the nature of the bailment. First: Where the bailment is entirely for the benefit of the bailor, as where goods are delivered to the bailee to be kept by him gratuitously (the depositum of the Roman law), or to be carried or worked on by him gratuitously (the mandatum of the Roman law), he is, in the absence of special contract, only bound to act in good faith, and is only liable for gross negligence.1 The question what amounts to gross negligence in any particular case is a question of fact. Generally speaking, the fact that the gratuitous bailee has taken the same amount of care of goods deposited with him that he takes of his own property affords a strong, though not a conclusive, presumption that he has not been guilty of gross negligence.2 Where the gratuitous bailee undertakes to carry, or to do something to the goods bailed, he is bound to use such skill as he has in fact, and is guilty of gross negligence if he does not.3 In this case, if he undertakes to do that something to the best of his skill, and his situation or profession is such as to imply skill, an omission to use that skill is gross negligence.* Secondly: Where the bailment is solely for the benefit of the bailee, as in the case of a gratuitous loan of chattels to be used by the bailee (the commodatum of the civilians). In this case the bailee is bound to use great diligence in the protection of the chattels, and will be liable even for slight negligence. Б Slight negligence is the omission of that amount of care that very attentive and vigilant persons take of their own goods. The bailee must be considered as having held himself out to the lender as being competent to take care of the thing lent. A borrower is only allowed to use the thing lent in accordance with the 1 Coggs v. Bernard, 2 Ld. Raym. 913; 1 Sm. L. C. 173; Doorman v. Jenkins, 2 A. & E. 256; 41 R. R. 429; Shiells v. Blackburne, 1 H. Bl. 158; 2 R. R. 750 Dartnall v. Howard, 4 B. & C. 345. 2 Giblin v. McMullen, L. R. 2 P. C. 339. See per Sir Wm. Scott (Ld. Stowell), The William, 6. Rob. 316. 3 Lord v. Midland R. Co., L. R. 2 C. P. 344, per Willes, J.; Wilson v. Brett, 11 M. & W. 113. + Shiells v. Blackburne, 1 H. Bl. 158; 2 R. R. 750. 5 Coggs v. Bernard, 2 Ld. Raym. 909; 1 Sm. L. C. 173; Bracton, lib. 3, c. 2, s. 1. 6 Per Parke, B., Wilson v. Brett, 11 M. & W. 115. conditions of the loan. If the goods have been injured or destroyed by a stranger without any negligence on the part of the bailee, he is not liable to the bailor.2 Thirdly: When the bailment is for the common benefit of both bailor and bailee, as in cases of pawn, hire, warehousing for hire, and in other cases where the bailee undertakes for reward to do work upon or to carry the goods. In all these cases, except where the goods are delivered to a common carrier, the bailee is bound (in the absence of special contract) to use ordinary care, and is liable for ordinary negligence. By "ordinary care" is meant that care which every prudent man takes of his own goods. The bailee will be liable if the goods are injured through the negligence of his servant even while wrongfully using them for his own purposes.* The questions that arise as to pawn and common carriers require special consideration. Chap. II. for common benefit of bailee and bailor. A pledge or pawn (pignus of the civilians) is where possession Pawn or of a personal chattel is delivered by one person, called the pawnor pledge. or pledgor, to another, called the pawnee or pledgee, as security for a debt. The pawnee, having both the possession and the right to possess, is said to have a "special property" in the chattel, the general property remaining in the pawnor. But, on tender or repayment, the right to possess is immediately re-vested in the pawnor. 6 It need hardly be said that the pawnee does not acquire any greater right to the chattel than that which the pawnor had.7 There are some exceptions to this rule contained in the Factors Act, 1889,8 and the Sale of Goods Act, 1 Bringloe v. Morrice, 1 Mod. 210. 2 See The Winkfield, [1902] P. 42. 3 Coggs v. Bernard, 1 Sm. L. C. 173; 2 Ld. Raym. 909; (hiring) Dean v. Keate, 3 Camp. 4; 13 R. R. 735; Longman v. Calini, Abb. Ship. 270, n.; (warehousing) Walker v. British, &c. Assoc., 18 Q. B. 277; Cailiff v. Danvers, Peake, 114; 3 R. R. 666; Brabant v. King, [1895] A. C. 632; Peers v. Sampson, 4 D. & R. 636; (livery stable keeper) Searle v. Laverick, L. R. 9 Q. B. 122; (work for hire) Clarke v. Earnshaw, Gow, 30; 21 R. R. 790; (agister) Halestrap v. Gregory, [1895] 1 Q. B. 561; Turner v. Stallibrass, [1898] 1 Q. B. 56. 4 Coupé Co. v. Maddick, [1891] 2 Q. B. 413. 5 See Campbell on Sale, 57; Donald v. Suckling, L. R. 1 Q. B. 604; Halliday v. Holgate, L. R. 3 Ex. 299; Burdick v.. Sewell, 10 Q. B. D. 363, 367; Re Morritt, 18 Id. 222. 6 Re Lawford, [1902] 2 K. B. 445. 7 Hooper v. Ramsbottom, 4 Camp. 121; Lamb v. Attenborough, 1 B. & S. 831; Hoare v. Parker, 2 T. R. 376; 1 R. R. 500. 8 52 & 53 Vict. c. 45, ss. 2-9. See Hastings v. Pearson, [1893] 1 Q. B. 62; Tremoille v. Christie, 69 L. T. 338. Chap. II. 1893,1 in favour of pledges by factors,2 by persons who sell goods and remain in possession of them, and by persons who have bought or agreed to buy goods and have obtained possession thereof with the consent of the seller. Pawnbrokers The pawnee has a right to sell the goods on non-payment of the debt when a day was fixed for payment,3 but only after notice if no day was fixed. He may repay himself out of the proceeds, but must pay to the pawnor the net surplus of the purchase-money after payment of all expenses. The pawnee's interest in the pawn is alienable, and may be sub-pledged and be seized in execution by the sheriff." A pawn or pledge is not within the Bills of Sale Acts,7 although accompanied by a contemporaneous document signed by the pawnor or pledgor recording the transaction and regulating the rights of the pawnee or pledgee as to the sale of the goods.8 Many statutory provisions have been made with regard to pawnbrokers or persons who carry on the business of lending money on goods taken in pawn, beginning with 1 Jac. 1, c. 21; but these have all been superseded by the Pawnbrokers Act, 1872. The Act applies (1) to every loan by a pawnbroker of forty shillings or under, and (2) to every loan by a pawnbroker of above forty shillings and not above ten pounds, except in the case of a special contract as authorized by the Act between the pawnor and pawnbroker at the time of the pawning. 10 The Act contains general regulations for the carrying on of the business, which provide that on taking a pledge the pawnbroker shall deliver a pawn ticket to the pawnor, and includes a scale of profits and charges. Every pledge is redeemable by the holder for the time being of the pawnticket 11 within twelve months from the day of pawning and seven days of grace.12 If a pledge for ten shillings or under has not been redeemed within the time, it becomes the |