Bailment

“ Then Rollo came back to his father to ask him a little more about bailments.
[Pg 69]
“Father,” said Rollo, when he came back, “if James should give me his knife, or any thing, for my own, would that be a bailment?”
“No,” said his father. “A bailment is only where property is intrusted to another, for a certain purpose, to be returned again to the possession of the owner, when the purpose is accomplished. For instance, when Jonas is sawing wood with my saw, the saw is a bailment from me to him; it remains my property ”

“ A bailment is the rightful holding of an article of personal property by one, for the accomplishment of a certain purpose, with an obligation to return it after the completion of that purpose. Where there is a sale, the entire property right passes to the new buyer, and if the article is destroyed, providing title has passed, the new buyer must pay the purchase price if he has not already done so, although he gets nothing for it. ”

“ If a bailee, or debtor, be guilty of any fraud in pro­curing the bailment, or of any fault, culpable neglect, or want of good faith in the custody, use, or management of the value bailed, whereby any loss should accrue to the bailor, or creditor, the bailee or debtor will be liable, not on his con­tract, but in an action on the case for damages ”

“ A bailment has been defined to be "A delivery of goods for the execution of a special object, beneficial to the bailor, the bailee or both, upon a contract express or implied, to carry out this object, and dispose of the property in conformity with the purpose of the trust." It is the giving possession of personal property to another for the purpose of having the property cared for, improved or used, with the understanding that when the purpose of the delivery is fulfilled, the property shall be returned to the bailor or disposed of according to his directions. ”

“ Though in some cases a greater degree of care is exacted than in others, yet in “the second sort of bailment, viz., commodatum or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods so as to restore them back again to the lender; because the bailee has a benefit by the use of them, so as if the bailee be guilty of the least neglect he will be answerable; as if a man should lend another a horse to go westward, or for a month; if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him ”

“ That a contract of debt is a mere contract of bailment, as has now been described-that is, a mere bailment, by the creditor to the debtor, of a quantum of value hold by the latter to the former, and to be formally delivered in the shape of money, but in the mean time to remain merged in the general property of the debtor-seems to be too nearly self-evident to render a more elaborate argument, at this point, necessary. ”

“ A bailment always supposes the subject to be delivered only for a limited time, at the expiration of which it must be re-delivered to the bailer, the responsibility of the bailee being dependent, in some degree, upon the contract on which the bailment is made. Pledging and letting for hire are species of bailment. Agistment, or the taking in of cattle or live stock to feed at a rate of so much per head, is a contract of bailment.
Baily, Edward Hodges, an English sculptor, born at Bristol 1788, died at London 1867. ”

“ This double contract of sale and bailment of necessity implies that the debtor has property in his hands, both for the sale and bailment to attach to-otherwise there would be no validity in either contract. No contract, either of sale, or bailment, is of any validity, unless there be property for the contract to attach to, at the time it is made. It is in the nature of things impossible that a man can make a con­tract, either of bailment or sale, that can bind property, or convey any right to property, unless he have property, at the time, for the contract to attach to. ”

“ Another kind of bailment is the hiring of property for a reward. If an article is injured or destroyed without any fault on the part of the hirer, the loss falls on the owner, for the risk is with him. ”

“ That the contract entered into by the bank was not a mere gratuitous bailment. Second. That the original contract of bailment being valid and binding, the obligation of the bank for the safe custody f t he deposit did not cease when the plaintiff's debt had been paid. Third. That the defendant was responsible if the bonds were stolen in consequence of its failure to exercise such care and diligence in their custody and keeping as banks of common prudence, in like situation and business, usually bestowed in the custody and keeping of similar property belonging to themselves ”

“ That doctrine is, that the carrier is responsible for every loss which is not produced by inevitable accident. It has been pressed beyond the general principles which govern the law of bailment, by considerations of policy. Can a sound distinction be taken between a human being in whose person another has an interest, and inanimate property? ”

“ A person appointing another to act for him in his dealings with third parties is called the principal. The one appointed to represent the principal is the agent. A bailment is therefore a [Pg 448] special class of agency transactions with particular rules governing the safe-keeping of the goods of the principal in the possession of the agent. In the case of a consignment, the consignor is the principal and the consignee the agent. The relation of the consignee to the consignor as regards the care to be exercised in handling the consignor’s goods is a bailment relationship. ”

“ If damage had been done or occasioned by the act or omission of the defendant in the pursuit of some of the more common callings, such as that of a farrier, it seems that the action could be maintained, without laying an assumpsit, on the allegation that he was a "common" farrier. /1/ The latter principle was also wholly independent of bailment. It expressed the general obligation of those exercising a public or "common" business to practise their art on demand, and show skill in it. ”

“ No ordinary excuse can be allowed for the nonproduction of the money committed to their hands. Still, they are nothing but bailees. To call them anything else, when they are expressly forbidden to touch or use the public money except as directed, would be an abuse of terms. But they are special bailees, subject to special obligations. It is evident that the ordinary law of bailment cannot be invoked to determine the degree of their responsibility. ”

“ A bailee may, however, enlarge his legal responsibility by contract, express or fairly implied, and render himself liable for the loss or destruction of the goods committed to his care-the bailment or compensation to be received therefor being a sufficient consideration for such an undertaking.' This statement of the binding effect of contracts upon those who enter into them was, in substance, but a reiteration of the principle clearly announced in Dermott v. ”

“ The cases and authorities that expound the meaning of the words 'keep safely,' speak of them generally in reference to the contract of depositum, or naked bailment without reward; (Story Bail., § 33, the opinion of the judges in Coggs v. Bernard, in relation to these words altering the responsibility in case of naked bailment; Southcote's case, 2 Bl. Com., 452; 17 Mass., 479;) and as enlarging the responsibility from slight diligence, in such case, to ordinary diligence. ”

“ We no longer seek solutions on every side through a pedantic Romanized law of bailments and in the law of bailments itself we are coming to talk in common-law terms of negligence in view of the circumstances and not in Romanist terms of the willed standard of diligence and corresponding degrees of negligence. In America, at least, the objective theory of contract is orthodox and the leader of English analytical jurists of the present generation has expounded it zealously. ”

“ If these definitions of debt, debtor, and the obligation of a debt, are correct, they prove that from the time the contract (by which the debt is created) is entered into, up to the time the value due is to be delivered, the debtor is the mere bailee of the creditor; for a man, who continues to hold property, that he has sold to another, is merely the bailee of the pur­chaser; lie is the mere holder, user, and hirer of the value, which he himself has sold, but not delivered; and all the necessary consequences of bailment follow ”

“ The object of bail in civil cases is, either directly or indirectly, to secure the payment of a debt or other civil duty; while the object of bail in criminal cases is to secure the appearance of the principal before the court for the purposes of public justice. Payment by the bail in a civil case discharges the obligation of the principal to his creditor, and is only required to the extent of that obligation, whatever may be the penalty of the bond or recognizance ”

“ The next inquiry is, therefore, has the law creating this liability of the assignor been complied with?
The assignee ought to take every compulsory process of law against the original debtor, until his insolvency is established; or the suit and all incidental remedies are found insufficient to coerce payment. Smallwood vs. Woods, 1 Bibb, 546.
To omit holding to bail, when bail is of right demandable, if on a ca. sa. the return is non est inventus; is negligence. 2 Marshall, 197.
The assignee is bound to issue a fi. fa. and a ca. sa. all if the debtor is not found, to proceed against the bail. ”

“ Wiser and more determined creditors take the law into their own hands. With a tea-pot, a pipe, and a mattress, they proceed to the shop of the recalcitrant debtor or security as circumstances may dictate, and there take up their abode until the amount is paid. If inability to meet the debt has been pleaded, then this self-made bailiff will insist on taking so much per cent. ”

“ To omit to demand bail, where bail was of right demandable, in case the ca. sa. should be returned non est inventus, would be negligence. Where bail given, the assignee must proceed against bail, upon n. e. i. returned against principal. Refers to Mackie's Ex. vs. Davis, 2 Wash. 219; Boal's Ex. vs. M'Connell, Pr. Dec. 152.
Spratt vs. M'Kinney, 1 Bibb, 595. 1809.-Assignment on assignment of a covenant. Absence of debtor from the circuit is not sufficient to entitle the assignee to recourse against the assignor. Diligence by suit cannot be dispensed with by averring that debtor was insolvent. ”

“ Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth Amendment. ”

“ A bankrupt, who has been guilty of withdrawing his effects, if his case be not very atrocious, commonly meets with mild usage. But a debtor, who has left his bail in jeopardy, is sure to be described in characters of unmingled deformity. Here the personal feelings of the bail, which may be allowed to be somewhat poignant, are admitted to interfere; and, as wrath and revenge commonly strike in the dark, the colors are laid on with a grossness which I am convinced must often defeat its own purpose. ”

“ Ch., 305, that where bail become fixed with the payment of the debt of the defendant, their character of bail ceases; that after judgment and execution against bail and sureties, there is an end of the relation of principal and surety, and the bail cannot claim any advantage against the creditor on the ground of want of diligence in prosecuting the principal debtor. ”

“ Neither we nor our bailiffs shall seize any land or rent for any debt as long as the debtor's goods and chattels suffice to pay the debt AND THE DEBTOR HIMSELF IS READY TO SATISFY THEREFORE. Nor shall the debtor's sureties be distrained as long as the debtor is able to pay the debt. If the debtor fails to pay, not having the means to pay, OR WILL NOT PAY ALTHOUGH ABLE TO PAY, then the sureties shall answer the debt. ”

“ If it is inconvenient, out of pure friendship and humanity, a little time is given upon a bond and judgment, which is no sooner signed, &c. but execution is taken out and levied. The honest broker appraises the effects to one third the value, the monied friend purchases them under the sheriff’s bill of sale, the deluded wretch is robbed, beggared, and branded for a villain by his fair creditors, whilst the attorney, bailiff, broker, and purchaser divide the booty, and the unhappy debtor is sent to the King’s Bench or Fleet, as an additional proof of THEIR industry. ”

“ If property is taken in execution, and replevin bond given, the bond must be put in suit; if there is bail to the action, and the principal cannot be taken on a capias ad satisfaciendum, the bail must be pursued; and all incidental and collateral remedies, which may accrue to the assignee, must be adopted and prosecuted; and the discharge of the drawer by the insolvent act, at the suit of a third person, bill be no excuse for any relaxation in the diligence required to fix the assignor; who is suable only after the exhaustion of all legal means of obtaining payment. ”