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Review: Theobald's Jones on Bailments.

other cases there would not be any presumption of neglect. And the civil law itself supposes, that, in such cases, the bailee might repel the imputation of negligence. By our law, in many cases, a bailee is excusable when the loss is by theft; but never when that theft is occasioned by gross negligence. So long ago as the reign of Edward the Third (29 Assisarum, 28), it was held, that, if a person bail his goods to keep, and they are stolen, he is excused. The reasoning of the Court in Coggs v. Bernard shews that the Court did not consider theft as prima facie presumptive of negligence. In short, our law considers theft, like any other loss, to depend for its validity as a defence upon the particular circumstances of the case, and to be governed by the general nature of the bailment, and the responsibility attached thereto. It neither imputes the theft to the neglect of the party, nor, on the other hand, exempts him from responsibility from that fact alone. But it decides upon all the circumstances, as leading to the conclusion that there has or has not been a due degree of care used.' Finucane v. Small, 1 Esp. N. P. C. 315. Story, 27.

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does not mean to place a burthen on his friend, by which extraordinary responsibility is to be incurred; but to manifest a personal confidence in the character and caution of his friend. Sir W. Jones has himself quoted, with apparent approbation, the opinion of Labeo, in the stronger case of a negotiorum gestor, a in which Labeo requires no more than good faith of him when he interferes officiously, but from pure kindness, to act in my affairs; affectione coactus, ne bona mea distrahantur, negotiis se meis obtulerit. The good sense of this as a general rule, interpreting the offer of the party in its fair intendment, would seem more to belong to the manliness of the common law, than the rule promulgated by Julian, even with all the authority of imperial wisdom. (Story, 58.)

The right of using the thing bailed is confined to the use expressed or implied in the particular transaction; and the borrower by any excess will make himself responsible.

"Lord Holt has put several cases to illustrate this doctrine. If a man lends another a horse to go westward, or for a month, and the` Now, it may be observed, (says Mr. Theo-bailee goes northward, or keeps the horse above bald) that the concluding remark, which is a suma month, if any accident happens on the normary of the argument preceding it, expresses Sir thern journey, or after the expiration of the W. Jones's opinion, with which also the whole month, the bailee will be chargeable, because argument so well agrees that it is difficult to dis- (says he) he has made use of the horse contrary cover any difference between them. The differ- to the use he was lent under, and it may be if ence, if any. is at most merely formal. Sir W. the horse had been used no otherwise than he Jones no where represents theft so presumptive was lent, that accident would not have befallen of neglect as to exclude evidence to rebut the him. (Coggs v. Bernard. See Appendix.) Bracton inculcates the like doctrine; and it presumption. He evidently considers it as a mere presumptio juris, not presumptio juris et seems, indeed, as old as the first rudiments of our law. (Bracton, Lib. 3, ch. 2, s. 1.) de jure and, what more is that than saying that theft shall not avail a bailee as a defence without some explanation of the circumstances under which it happened? Nor, seemingly, would Dr. Story allow it to be a defence, if it happened through the default of the bailee, or through his own negligence. The difference, therefore, seems to turn merely on this, that Sir W. Jones would disallow the plea unless, in addition to the allegation of the theft, it negatived the suspicion of default or negligence. venture to think this the better opinion, according to the principles of special pleading."

The distinction between

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an ordinary bailee, and one who acts voluntarily in the relation of a friend, is thus described:

"A voluntary offer of kindness to a friend, even when importunately urged, ought hardly to carry with it such penal consequences; since it is generally the result of strong affection, a desire to oblige, and often of a sense of duty, especially in cases of imminent peril or sudden emergency. The reason assigned for the rule is not satisfactory. It might, with at least as much force, be said, that he who trusts such a deposit to a friend at his urgent request, confides it to him as a proof of his personal confidence, and requires no more than that he should guard it as he guards his own, or at least as men ordinarily guard deposits. He

"The loan is to be considered as strictly personal, unless, from other circumstances, a different intention may be presumed. Thus, if 4. lends B. her jewels to wear, this will not if C. lends D. his horse to ride to Boston, this authorize B. to lend them to C. to wear. So, will not authorise D. to allow E. to ride the horse to Boston. But, if a man lends his his use, then a use by any of his family, or for horses and carriages for a month to a friend for family purposes, may be fairly presumed; though not a use for the mere benefit of

strangers."

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Review.-Lectures at the Incorporated Law Society.

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for which the thing is adapted. In regard to | burthen of proof might, perhaps, belong to the time, if no particular time is fixed, a reasonable plaintiff to establish. There are cases, at least, time must be intended, keeping in view the ob- in which it has been held that the plaintiff must jects of the bailment. If a horse is lent for a prove negligence under special circumstances. journey, it is presumed to be a loan for the But, where there is a demand of the thing ordinary time consumed in such a journey, loaned, and a general refusal, without any spemaking proper allowance for the ordinary cial excuse at the time of the demand, there delays and the ordinary objects of such a the burthen of proof would seem to be on the journey." (Story, 161.) defendant to negative the prima facie right of recovery thus made out by the plaintiff. And, in many complicated cases of evidence, the burthen of proof may ultimately shift from one party to the other in different stages of the trial."

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"In Coggs v. Bernard (2 Ld. Raym. 909, 916, and see Appendix), Lord Holt says, if the pawn be such as it will be the worse for using, the pawnee cannot use it, as clothes, &c. But, if it be such as will never be the worse, as, if jewels for this purpose were pawned to a lady, she might use them. But then she must do it

comprise several of the leading principles of the branch of law under consideration.

The Appendix, on the Law of Common 1. Who Carriers, is arranged as follows: are deemed Common Carriers; 2. Their Duties and Obligations; 3. The Risks for which they are liable; 4. The Commencement and Termination of the Risk; 5. Justification for Non-delivery; 6. Average and Contribution; 7. The Rights of Carriers. The Law relating to the Carriage of Passengers is next considered, and appropriately subdivided under the several departments of the subject.

We have thus, we trust, given sufficient at her own peril. For, whereas, if she keeps materials to enable our readers to judge of them locked up in her cabinet, if her cabinet is the merits of the present edition of Sir W. broken open and the jewels taken from thence, Jones's celebrated work; and the extracts we she would be excused; if she wears them have made will also, we hope, not be useabroad and is there robbed, she will be answer-less to the student, who will find that they able. And the reason is, because the pawn is in the nature of a deposit, and, as such, is not liable to be used. Now, the reason here given, so far from proving that the pledgee may lawfully use the jewels, expressly negatives any such right. And, unless the contrary is expressly agreed, it may fairly be presumed that the owner of such a pawn would not assent to the jewels being used as a personal ornament, and thereby exposed to unnecessary and extraordinary perils. The true rules deducible from the common law authorities, as to how far the pawnee is entitled to use the pawn, seem to be the following:-1. If the pawn is of such a nature that the due preservation of it requires some use, there it is not only justifiable, but it is indispensable to the faithful discharge of the duty of the pawnee. 2. If the pawn is of such a nature, that it will be the worse for the use, such, for instance, as the wearing of clothes which are deposited, there the use is prohibited to the pawnee. 3. If the pawn is of such a nature that the keeping is a charge to the pawnee, as, if it is a cow or a horse, there the pawnee may milk the cow and use the milk, and ride the horse, by way of recompense (as it is said) for the keeping. 4. If the use will be beneficial to the pawn, or indifferent, there it seems that the pawnee may use it, as, if the pawn is of a setting-dog, it may well be presumed that the owner would consent to the dog's being used in partridge shooting, and thus confirmed in the habits which make him valuable. So, books which will not be injured by a moderate use, may be read, examined, and used by the pawnee. 5. But, if the use will be without any injury, and yet the pawn will thereby be exposed to extraordinary perils, there the use is impliedly interdicted." (Story, 221.)

The burthen of proof, in case of damage or loss, depends on circumstances:

"Where a demand of the thing loaned is made, the party must return it, or give some account how it is lost. If he shews a loss the circumstances of which do not lead to any presumption of negligence on his part, there the

We think that great care and research have been bestowed by Mr. Theobald in executing his work, and we can recommend it as a useful addition to the branch of law it comprises.

NOTES OF LECTURES AT THE IN-
CORPORATED LAW SOCIETY.

9th December, 1833.

LIMITATION OF REAL ACTIONS.-TITHES.

In proceeding to explain, in detail, the effect of the several sections of the Act for the Limitation of Actions and Suits relating to real property, (3 & 4 W. 4. c. 27) Mr. Wilde observed on the clause defining the interpretation of the word "Land," as extending to manors, messuages, and all other corporeal hereditaments whatsoever; and also to tithes, (other than tithes belonging to a spiritual or eleemosynary corporation sole) and also to any interest, share, or interest in them (§ 1).

The enactment was intended to be limited to tithes in the hands of laymen; but (as we

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Lectures at the Incorporated Law Society.—Abstracts of Recent Statutes.

understood the Lecturer) it was doubtful whe-¡ directly from the land, were not included; the

ther the words of the Act would effect that object.

The Tithe or Prescription Act of Lord Tenterden, 2 & 3 W. 4, c. 100, a for shortening the time in claims of modus decimandi, or exemption from tithes, took away the remedy except within the times limited by that Act, but did not touch the right to the tithe. The present Act took away the right as well as the remedy, after the periods specified in the Act. It was important to notice a point in regard to lands "tithe free," which there was reason to believe was not generally known in the profession; namely, that a conveyance of such land without conveying the tithes would not the latter; so that the tithes might belong pass to the heir at law, whilst the estate was vested in a purchaser or devisee, who was not the

heir.

RENT.

The first section of the new Limitation of Actions Act, (3 & 4 W. 4, c. 27.) also defined that the word "rent" should extend to all heriots and to all services and suits for which a distress might be made, and to all annuities and periodical sums of money advanced upon or payable out of any land (except moduses or compositions belonging to a spiritual or eleemosynary corporation sole). The third section of the Law Amendment Act, 3 & 4 W. 4, c. 42, which limited actions of debt on specialties, included actions of debt for rent upon an indenture of demise, and these were barred after ten years from the end of the session, or twenty years from the cause of action. By the second section of the Limitation of Real Actions Act, (3 & 4 W. 4. c. 27,) actions to recover land or rent, must be brought within twenty years next after the right accrued. This applies to the question of title: the remedy for arrears was limited by section 42 to

definition in the first section relating to services, &c. and to quit rents, rent charges, &c. which were distinct from the estate held in the land. Unless this distinction were taken there would certainly be a variance between the two statutes. The 32 Hen. 8, relating to rent, (which limited the remedy to fifty years) did not mean rent reserved by lease, but quit rents, &c. as distinct from the land.

A curious case was mentioned as having occurred in the Common Pleas, where a claim was made under an administration taken out after the lapse of 80 years; and the right to recover having accrued on the date of the grant of the administration, which was within six years, the party recovered.

ABSTRACTS OF RECENT STATUTES.

PARISH APPRENTICES.

3 & 4 W. 4, c. 63.

THIS Act, which passed on the 28th August, 1833, is intituled "An Act to render valid Indentures of Apprenticeship allowed only by Two Justices acting for the County in which the Parish from which such Apprentices shall be bound, and for the County in which the Parish into which such Apprentices shall be bound, shall be situated; and also for remedying defective Executions of Indentures by Corporations."

By the 56 Geo. 3 c. 139, being “An Act to regulate the binding of Parish Apprentices,” it is enacted, that in all cases where the residence or establishment of business of the person to whom any child shall be bound shall be within a different county or jurisdiction of the peace from that within which the place by the officers whereof such child shall be

six years. The doubts which have arisen on the sup-bound shall be situated, and in all other cases posed variance of these sections, were thus met by the learned Lecturer: He held that in the Law Amendment Act, "rent" was confined to the profits of land, and in the Limitation of Actions Act, the profits, or that which arose

(a) See 2 Monthly Record, p. 404.

where the Justices of the Peace for the district within which the place by the officers whereof such child shall be bound shall be situated, and who shall sign the allowance of the indenture by which such child shall be bound, shall not have jurisdiction, every indenture shall be allowed, as well by two Jus

Abstracts of Recent Statutes.-Defence of the Local Courts Bill.

123

tives of the Peace for the county or district poor children apprentices: and have bound of the place from whence the child shall be them by indentures, which have been executed bound, as by two Justices for the county or by affixing the seal of the corporation: and district where such child shall serve. doubts have been entertained as to the validity of indentures so executed; therefore it is enacted :

:

2. That after the passing of this act in all cases where any indentures for the binding out poor children apprentices have been heretofore or shall be hereafter executed by any directors, guardians, acting guardians, or other officers of any hundreds, parishes, or other districts now incorporated or hereafter to be incorporated under and by virtue of any Act of Parliament, by affixing thereto the seal of the corporation of which they are or shall be directors, guardians, acting guardians, or other officers respectively, such execution of the said indentures respectively shall be deemed and taken to be a good, valid, and effectual execution of the said indentures respectively by the said directors, guardians, acting guardians, or other officers of such incorporated hundred, parishes, or other districts respectively.

In many instances, Petty Sessions were held weekly in market towns adjoining the borders of the county, and the Justices acted as well for the county adjoining as for the county where such Petty Sessions were held, and transacted the business for large districts in both counties at such weekly Petty Sessions on market days, to the great advantage, and saving of expence to the several parishes and villages: and since the passing of the 56 Geo. 3 numerous indentures of apprenticeship have been allowed by two Justices acting for the county within which the place by the officers whereof such child shall be bound is situated, and by the same two Justices acting also as Justices for the county within which the place is situated where the service is to take place. And doubts have arisen whether the allowance of such two Justices, acting as Justices for both counties, are effectual, or whether it is not necessary that the indenture should be allowed by four Justices, two acting for one county, and two for the other only; and whether the settlement of the numerous persons who have already served and are now serving under in-shall be allowed by two Justices of the Peace,

dentures allowed by two Justices acting for both counties may not be set aside, it is therefore enacted, as follows:

1. That after the passing of this act all indentures for the binding of parish apprentices which have been previous to the passing of this act allowed, and shall hereafter be allowed, by two Justices of the Peace acting as well for the county or district within which the place by the officers of which such child shall be bound

It being deemned expedient that Justices of the Peace in cities, boroughs, or towns corporate should have concurrent jurisdiction with county magistrates in apprenticing children, it is enacted :

3. That after the passing of this act every indenture for the binding of parish apprentices within any city, borough, or town corporate,

one of such Justices acting for and on behalf of the county, and the other of such Justices acting for aud on behalf of the city, borough, or town corporate within the limits of which such child shall be bound.

4. Provided that this act shall not be construed

to affect or set aside any decision or judgment made or given in any court of judicature respecting any such indentures.

shall be situated, as for the county or district DEFENCE OF THE LOCAL COURTS

within which the place shall be situated wherein such child shall be intended to serve, shall be deemed and taken to be as good, valid, and effectual, to all intents and purposes, as if the same had been allowed by two Justices of the Peace acting only for the county or district in which the place from which such child shall be bound is situated, and also by two other Justices of the Peace acting only for the county or district within which the place shall be situated in which such child shall be intended to serve.

BILL.

To the Editor of the Legal Observer.
Sir,

Your correspondent, B., (vide L. O. p. 26,) very confidently states that the Local Court Bill excites no interest as a popular measure. Now, sir, I enter the lists as his opponent, and the supporter of this bill; and I trust, an impartiality will be observed by you in giving fair publicity to the arguments on both sides but he has one great advantage over me, I perceive,―you are against the bill.

The directors, guardians, acting guardians, Your correspondent states that his convicor other officers of incorporated hundreds, tion is, that the Lord Chancellor's scheme will not "be at all conducive to the profit or conparishes, and other districts, are by their seve-venience of the trader." I should be glad to ral Acts of Parliament authorized to bind hear a substantial reason, why not.

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Defence of the Local Courts Bill.-Superior Courts: Lord Chancellor.

66

He then says, that all reflecting people are | It is a very ominous sign, the few that there satisfied that the great correctives are, cer-are; people are become wiser, they would soontainty and expedition." No doubt, the very er lose 157. than 657.; but does that say there intention is by this act to establish two such ought not to be a mode of obtaining a trial, and essential qualities in our obtaining justice. Is an attempt to recover the amount of their there any at present? I will answer for B. debts; and if unsuccessful, at the most only be "No." His idea is, that the clause in the Law it at the expense of a few pounds? Then, as to Amendment Act, with an improvement of the the patronage,-why doubt its proper applicaCourt of Requests, would answer the purpose tion by the hands in which it is placed? The of this bill. Can he tell me in which way? same cry was made upon the bankruptcy bill; There must be vast alteration in the clause to but was not the appropriation of the patroeven bear comparing with this bill. Truly, nage bestowed by that bill, an example to the clause he refers to, will get an action under any man possessed of patronage in the king. 207. tried, but not till after all the vexatious dom. I allude to the Lord Chancellor giving pleadings of the Superior Court are exhausted; the citizens of London the appointment of the then it may be tried by that tribunal, (if it may official assignees. This bill shall not, cannot receive that dignified title) which Lord Lynd- be rejected by any arguments that will bear hurst very properly laughs at, which has no hearing against it; but if it fall, it must be power to reserve points to nonsuit, or any by the power of numbers and of influence, thing more than find a verdict for the plaintiff in a parliamentary faction, determined to opor defendant. There certainly was a fine sam- pose every measure recommended by the preple of the mode in which that clause operates. sent Lord Chancellor, who disinterestedly A person had been at the expense of declara- enough endeavours to carry those measures tion, replication, and issue, when it was tried of legal reformation, which will clear and orin the Sheriff's Court, and the sheriff very dis-nament our common law code, that he wanted criminately doubted whether he had power to in 1828; for the consistency of his conduct, reserve points or nonsuit, or as I before stated, B. had better read the famous speech of the any thing more than merely to find for the Lord Chancellor made in 1828. plaintiff or defendant. Does he suppose that the Local Courts bill intends to allow all the formality of pleadings now used, to bring a cause into the Superior Courts ? If so, I am inclined to believe he labours under a very gross error; the bill should lop all that unnecessary foolery off; for such trifling matters as under 20., a summons and rule ought to bring the parties to the point. Such being the case, I think his proposition falls to the ground, without further argument.

And next, what matters the "host of petty actions," if they ultimately administer cheap justice to the needy; why should the dishonest labourer escape, because the amount is too small to risk an action at the present period? B. states his experience is very extensive; then I will ask him, if he can with any regard to his veracity deny that the result of a tradesman's interview with a solicitor, depends mainly whether the defendant is worth " powder and shot?" if not, is not the advice of an upright lawyer, to let it stand, and the tradesman lose his money without an attempt to recover, instead of risking 501. after it? That I am quite positive he will not deny; if he does, perhaps he will point out the mode adopted to recover his debt, without risking so much for costs. His knowledge as to the negative put upon the system by two of our most important provincial places goes very little way; if not accompanied by their reason, I take that for nought. As to petitioning, why, it is out of the question; who doubts its passing? Petitions are neither for nor against. The opulent merchants take a neutral part in it. It does not affect them directly. Their debts are generally above the intended jurisdiction of these Courts, and if not, why their debtors are generally men who can, but will not pay. The quantity of actions is a bad guide.

A CONSTANT READER.

SUPERIOR COURTS.

Lord Chancellor.

INFANT'S SUIT.-NEXT FRIEND.

Any person in a situation to answer for costs, may file a bill on behalf of infant as next friend; but there may be circumstances in which an order of reference will be made to the Master, as to whether a suit is for the benefit of infants, and whether the next friend who instituled it, was a fit person to have the conduct of it.

This was a suit instituted in the name of four infants by one Brown as their next friend, against the trustees and executors of their father's will. The bill prayed, in the usual form, that the trusts of the will may be declared valid, and be decreed to be carried into execution; that the executors may account, &c., and that the widow of the testator may be put to elect, whether she would, or would not, take under the will.

Sir Edward Sugden and Mr. Hayter moved that the suit he stayed, or that it be referred to the Master to inquire whether it was for the benefit of the infant plaintiffs that it should proceed; and in case the proceeding with it should be found to be for their benefit, whether the name of Brown should not be struck out of the bill, and some other person substituted as next friend. Brown was wholly unconnected with the family. He was stated to be a farmer's steward, residing at a distance. He was the friend of Mr. Tilby, a solicitor, whose suit this was, and who carried it on against the wish of the testator's family,

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