Commentaries on the Law of Bailments: With Illustrations from the Civil and the Foreign Law

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Little, Brown, 1856 - 653 pages
 

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Contents

Obligations of Bailee in different sorts of Bailments Difference of Legal
9
and Moral Obligation 10 The same subject 11 Diligence three different degrees of Ordinary Diligence what
11
Standard of Diligence variable
12
And different in different countries and Ages
13
Diligence affected by Customs and Usage of Trade and Business
14
And by Nature Bulk and Value of Articles
15
High or Great Diligence what is Low or Slight Diligence what
16
Degrees of Negligence Slight Ordinary and Gross
17
The like degrees in the Civil
18
Gross Negligence whether equivalent to Fraud
19
The same subject 20 a The same subject 20 b The same subject
20
Robbery how far deemed Irresistible Force
26
Theft how far deemed Irresistible Force
27
Burglary how far Irresistible Force
28
Other cases of Casualties at the Common
29
And in the Civil Law 31 Exception in cases of Special Contract
31
Bailee cannot contract against his own Fraud
32
Responsibility of Bailee may be enlarged by Special Contract
33
So by the Civil Law 35 Effect of Special Contract to keep safely whether Bailee is liable for Rob bery or Theft
34
Or in such case liable for Accidents
36
How far such a Bailee is liable by the Civil
37
Private Theft whether Presumptive of Fraud at the Common
38
The same subject 39 a Liability of second Bailee to the original Bailor when the second Bail ment is made without right
39
Confusion of Property by Bailee CHAPTER II
41
The same subject
42
From what the word is derived
43
Division of Deposits into Voluntary and Necessary 44 a Involuntary Deposits what
44
Another Division into Simple Deposits and Sequestrations
45
How far these Divisions are recognized at the Common
46
Difference between Deposit and Mutuum
47
Principles of the Contract arising from Natural
48
Divisions of the subject
49
By and between what persons the contract of Deposit may
50
What may be the Subject matter of a Deposit
51
What title Depositor must possess Secondary Bailments
52
Effect of Return of Deposit to owner
53
How and when an Accessorial thing passes with a Deposit
54
What is of the Essence of the Contract of Deposit Delivery of the thing
55
The same subject Delivery to keep the thing
56
The same subject Custody must be gratuitous
57
The same subject Delivery must be to a third person
58
The same subject The Contract must be intentional and not by mistake
59
The same subject Examples
60
Obligations of Depositaries To keep with care and to restore on request
61
What is Keeping with reasonable Care What degree of Diligence required
62
Lord Cokes Doctrine on the same subject
68
e The same subject Comment on Giles v Grover 93 f The same subject Rule deduced 93 g The same subject Exact Definition of term Special Propert...
93
The Right of the Owner to maintain an Action against a Stranger for Injury to
94
The Civil Law on this subject
95
Restitution of Deposit Obligation of Depositary
96
In what state to be restored Responsibility for Injuries
97
Formerly a doubt at the Common Law whether Depositary was compella ble at law to restore
98
Restitution of the Increase and Profits of Deposits
99
Sale of Deposit by Depositary effect
100
Sale by Heir or Administrator without knowledge of the Deposit
101
To whom Restitution is to be made Bailment of stolen Goods
102
In case of Intermediate Transfer of Title by Depositor Effect of Re mittance to pay a Debt
103
Whether Bailee may restore to his Bailor notwithstanding an adverse claim Countermand by Bailor
104
Rights of Owner in case of a Second Bailment by his Bailee
105
To whom Restitution should be where Deposit has been made by a Ser vant
106
When Demand necessary to be made by Depositor
107
How Restitution to be made according to the Civil and Foreign
108
Deposit by Guardians Administrators and Trustees to whom Restitu tion is to be made
109
What is to be done in cases of Adverse Claims by Different Persons
110
Interpleader what When and between whom it lies
111
The same subject
112
The Civil Law and Foreign Law on the same subject
113
Restitution in cases of Joint Deposits Remedy of Depositary in such a case if one Joint Depositor seizes the Deposits
114
The Civil Law in cases of Joint Deposits
115
Responsibility of Joint Depositaries
116
Restitution of Deposit in what place
117
The same subject
118
Restitution whether demandable before expiration of time of Deposit
119
Restitution what will excuse the Depositary or entitle him to Time to make Return Recovery by Title Paramount
120
Expenses of Depositary to be reimbursed whether he has a lien for 121 a Involuntary Deposits Expenses Salvage
121
Effect of unjustifiable Refusal to restore the Deposit Future Responsi bility of Depositary
122
When Interest or Damages payable on account of Detention
123
Deposits of Goods attached on Process
124
Rights of the Attaching Officer in cases of Deposits on Attachments
125
When the Attaching Officer may demand the Deposit attached Effect of Judgment and Subsequent Attachment
126
The Attaching Officer may retake the goods attached from the possession of the Debtor
127
Responsibility of the Attaching Officer to the Debtor
128
Rights of the Creditor in such cases of Attachment and Deposit
129
The Duties of the Attaching Officer what degree of Negligence will make liable
130
Who is to indemnify the Attaching Officer for his expenses in keeping
131
Goods attached 132 The Rights and Duties of the Attaching Officers Bailee
132
Whether the Bailee has a Special Property in the Goods attached
133
Notice of the French Law in cases of Attachments and Sequestrations
134
Effect of Attachment as to the Rights of the Owner of the Goods
135
Conclusion of the head of Deposits
136
Mandate Definition
137
Mandator Definition of Mandatary Definition
138
Contract of Mandate recognized in Common
139
Distinction between a Deposit and a Mandate
140
Contract of Mandate at Common Law confined to Personal Property not so in Civil
141
What Agencies are deemed Mandates in the Civil
142
Nature and Character of the Contract of Mandate
143
What is of the Essence of a Mandate
144
The matter of the Contract Acts in futuro
145
Certainty in regard to the object of the Mandate
146
The Act must be for the Benefit of the Mandator by another as his Agent
147
It must be capable of being done
148
It must not concern the Interest of the Mandatary alone Joint Interest
149
The Mandatary has not a Special Property in the thing
150
How far the Act must be for the Benefit of the Mandator or a Third Per
151
Right of Mandatary to maintain an Action for an Injury to the thing
152
The Contract must be gratuitous Difference between Counsel and Attor
153
Expenses of Mandatary to be reimbursed
154
The Contract must be Voluntary without mistake or fraud Distinction between Advice and Representation
155
Rules of the Common Law on this subject
156
The same subject
157
The Contract must not be illegal or against sound morals
158
160 No particular Form or Ceremony to create a Mandate
160
The same subject Review of Cases
166
Cases of negligent execution of Mandate governed by the same rule
172
The same subject Comment on Coggs v Bernard
178
Illustrations of the Doctrine
184
Quasi Contract of Negotiorum Gestor what 189 a Responsibility of Negotiorum Gestor 189 6 The same subject Law of Louisiania
189
Illustrative Case at the Common
190
Account to be rendered by Mandatary how and when
191
What Deductions to be allowed to Mandatary
192
The Expenses and Disbursements of Mandatary to be allowed
193
The Increase and Profits of Mandate to be accounted
194
Joint Mandataries severally liable in solido
195
Obligations of Mandator
196
In relation to Expenses of Mandatary
197
In relation to Incidental Contracts of Mandatary
198
Contracts of Mandatary how far binding on Mandator
199
How far Mandator is bound to indemnify Mandatary for Expenses
200
Opinion of Dr Paley on this subject
201
How the Contract of Mandate is dissolved 1 By Act of the Party 2 By Death of Mandatary Case of Death of one Joint Mandatary
202
Death of Mandator when it dissolves the Contract
203
Effect of Death in case of part execution
204
Difference of Civil and Common Law on this subject
205
When Contract dissolved by Change of state of the Parties as Marriage Insanity
206
Revocation of Mandate by operation of
207
Revocation by the act of Mandator in Civil
208
Revocation by the act of the Mandator at Common Law
209
Countermand of Delivery to a Third Person
210
Bankruptcy of the Mandator a revocation by operation of
211
Burden of Proof on whom it lies in cases of Loss or Injury of Mandate
212
The same subject Form of Action and Circumstances
213
Anomalous case of unintentional injury by Negotiorum Gestor
214
Exceptions from the general rule as to Diligence
215
Loss of Chattel taken on trial with a view to subsequent Purchase Degree of Diligence required
216
Mandate of a Slave and Loss by Flight
217
Conclusion of the head of Mandates CHAPTER IV
218
Gratuitous Loans definition
219
The same subject
220
No English word exactly expresses the meaning of Commodatum
221
The use of the word Loan in this Treatise
222
What is of the essence of a Gratuitous Loan It must be Personal Prop
223
It must be absolutely gratuitous
224
It must be for the use of the Borrower
225
Joint use of Lender and Borrower effect
226
Contract may be limited or conditional and during pleasure
227
erty
228
Capacity to contract Loan must not be immoral
229
Whether the Lender need be the absolute Proprietor
230
The Rights of the Borrower Use by
231
Limitation of Right to
232
Illustration of the Doctrine
233
When the Loan is personal
234
The same subject Comment on Bringloe v Morrice
235
The Obligations of the Borrower
236
Degree of Diligence required of the Borrower
237
The same subject Rule of the Civil Law 238 a Case of Accessories to the principal thing
238
Degree of Diligence how varied Theft when Borrower responsible
239
Borrower not liable for Accidents
240
Except when he is in Default
241
Loss by Robbery when Borrower is responsible for 242 a The same subject
242
Effect of Fraud and fraudulent Concealment
243
Losses by Accident in case of Ordinary or Extraordinary
244
In case of Fire whether Borrower may save his own Goods in prefer ence
245
The same subject Illustrations
246
The doctrine of Sir William Jones and Pothier doubted and discussed
247
The same subject Statement of the point in question
248
The same subject 249 a The same subject Different reasoning in case of Deposit 249 6 The same subject Test whether there has been Negligence agai...
249
The same subject Borrower need not make every possible Sacrifice to save Borrowed Goods
250
The same subject Principles of Morality
251
Exceptions to the general rule of Diligence Special Contract
252
Effect of Valuation of the Loan 253 a The same subject The Question one of Construction 253 6 Diligence in case of a Precarium 253 c Diligence w...
253
The Use to be made by the Borrower
254
The same subject
255
Expenses of Borrower by whom to be borne
256
The Restitution of the Loan how and when Rules of the Civil
257
Rules of the Common Law Of Revocation of Loan
258
Effect of Delay in Restitution
259
Accessorial things to be delivered back
260
To whom and by whom Restitution is to be made
262
Special Excuses for nonreturn
263
Borrower cannot detain for prior Debt
264
To whom Restitution is to be made
265
In case of Title by a Stranger
266
In case of Joint Loan
267
Condition in which the thing is to be returned
268
How far receiving the thing back affects Damages Right of action for Injuries
269
Obligations of the Lender
270
As to the Use of the Thing How far Bailment revocable
271
Disturbance in use by a Stranger
272
Reimbursement of Expenses by Lender at the Civil
273
At Common
274
Concealment of Defects by the Lender
275
Restitution of thing after paid for by Borrower
276
Revocation of Loan by act of the Party and by Death or Marriage
277
Burden of Proof on whom in case of Loss or Injury
278
Borrower has no Special Property in the Loan
279
But he has a Right of Action in certain cases
280
Comment on certain Positions in Rich v Aldred 6 Mod R 216
282
Comment on Seymour v Brown
283
Fungibles in Scottish Law what
284
Conclusion of the head of Gratuitous Loans Ꮯ Ꮋ Ꭺ Ꮲ Ꭲ Ꭼ Ꭱ V ON PAWNS OR PLEDGES
285
Definition of a Pawn or Pledge
286
Distinction between a Pawn and a Mortgage
287
Hypothecation without Possession in what cases
288
The Essence of the Contract of Pawn or Pledge
289
It must be of Personal Property 290 a Whether by Civil Law only Movables might be pledged
290
Whether the Pawner need be owner of the Pledge
291
Increase of Pledge whether subject to the Contract
292
What may not be pawned by the Civil and Common
293
Whether any Future Interest the proper subject of a Pawn
294
Limited Title of Pawner
295
Pawn of Negotiable Instruments
296
Delivery of the Pawn Necessity of at Common
297
How far necessary by Civil and Foreign
298
For what Debts and Engagements a Pawn may be Security
300
Extent of the Security
301
Pawn Contract of between what persons
302
Rights of Pawnee Special Property
303
Whether Pawn may be retained for other Debts
304
Rule of the Civil Law on this subject
305
Sale of Pawns when composed of Different Articles
314
Right of Pawnee to sue personally for the Debt
315
Whether Pawnee can be compelled to such Suit by the Civil
316
Effect of Stipulation prohibiting Sale
317
Right of Pawnee confined to Sale
318
Sale must be bonâ fide
319
Whether a Pawnee is compelled to sell
320
Negotiable Securities in Pawn how disposed ofCompromise with Debtor
321
Transfer of Pawn by Pawnee
322
Transfer of Negotiable Securities
323
Transfer by Pawnee in Pledge
324
Common Law Doctrine of Pledge by Factors in England
325
In America
326
Pledge by the Pawnee when good by the Common
327
When by the Civil
328
Use of the Pawn by Pawnee
329
The same subject
330
331 Use by the Civil
331
Duties of the Pawnee Diligence what Degree required
332
Whether Theft is presumptive evidence of Fraud
333
The same subject
334
The same subject
335
The same subject
336
The same subject
337
The same subject
338
Duty of Pawnee to return Pawn Onus Probandi in case of Loss
339
When Pawn may be delivered to original Owner if he is not the Pawoer
340
Effect of Refusal to return the Pawn
341
Liability of Pawnee for Acts of Omission as well as of Commission
342
Pawnee how and when to render an Account
343
Antichresis what in Civil Law Welsh Mortgage
344
Rights of Pawner Right of Redemption
345
Time of Payment Lapse of Time
346
Prescription and Statute of Limitations
347
Time to redeem when not fixed by the Parties
348
Effect of Sale before Offer of Redemption
349
Sale and Transfer by Pawner
350
Damage to Pawn
351
Pawnee has a Special Property Action for Damage by a Stranger
352
Pawns not seizable on Execution
353
Duties of Pawner Warranty of Title
354
Concealment of Defects of Pawn
355
Fraud by Pawner
356
Reimbursement of Expenses of Pawn
357
The same subject Rule of Civil
358
Extinguishment of the Contract of Pawn
359
The same subject Novation
360
The same subject Suit by Pawnee
361
The same subject Bar by Lapse of Time
362
The same subject Pawn perishing by Accident
363
The same subject Release
364
Common Law on this subject similar to the Civil
365
Local Law of Massachusetts respecting Attachments by Pawner
366
Conclusion of the subject of Pawns
367
Contract of Hire LocatioConductio Definition
368
Parties Denomination of in Common Civil and Foreign
369
Division of Contract of Hire into three kinds 370 a Pothiers Division into Regular and Irregular Contracts of Hire
370
Nature of the Contract
371
Essence of the Contract
372
The same subject What may be let to hire 373 a The same subject Use by the Hirer
373
The same subject Price
374
The same subject Price need not be specified
375
The same subject Price payable in Money Innominate Contracts
376
The same subject Pecuniary Recompense
377
Requisites of a valid Contract of Hire
378
Illegal Contracts what
379
Between what Parties the Contract may
380
Consent Mistake Imposition
381
Obligations and Rights arising from the Contract
382
a The same subject What excuses nondelivery
384
What Degree of Diligence required of Hirer by the Civil
398
a The same subject
405
Payment of Price to the Letter
416
Hire of Labor and Services Division
422
Obligations and Duties of the Workman
428
Doctrine of Sir William Jones criticized
434
Further Duties of Workman Lien
440
WAREHOUSEMen Rights and Responsibility
444
When the Responsibility of WarehouseMen begins and ends
445
Cases where a person is a WarehouseMan and Carrier
446
The same subject
447
The same subject
448
The same subject Forwarding merchants
449
Effect of Misdelivery 450 a Responsibility for injury by negligence when the goods are afterwards lost
450
WHARFINGERS Rights and Responsibility
451
The same subject Whether distinguished from WarehouseMen
452
When Responsibility of begins and ends
453
Onus Probandi on whom in cases of Hire of Custody
454
FACTORS AND OTHER BAILIFFS Rights and Responsibility
455
The same subject Obligation to Insure
456
Contract of Carriage of Goods general Nature
457
The Civil Law as to Carriers and others
458
The Common Law differs from the Civil
459
Enumeration of Excepted Cases from the Common Doctrine as to Hire ART VI POSTMASTERS
460
Origin of PostOffice Establishment
461
PostmasterGeneral how far responsible 462 a Mail Contractors how far responsible
462
Deputy Postmasters how far responsible
463
Reasons for the peculiar Liability of Innkeepers in the Civil
464
Extent of their Responsibility by the Civil
465
Innkeepers responsible for their Servants 466 a The same subject Theft by Guests
466
The modern Jurisprudence of Continental Europe the same
467
Results of the Civil Law Doctrine on this subject 468 a The Responsibility of Innkeepers at Civil Law for Theft 468 b The modern Doctrine in France
468
The Common Law derived from the Civil
469
What the Common Law is as to Innkeepers
470
Responsibility of Innkeepers generally
471
Innkeepers not Responsible to the same Extent as Common Carriers
472
Robbery by the Servants of the Guest
473
a Liens of Innkeepers
476
Who are deemed Guests
477
Liability of Innkeepers
478
The same subject What a sufficient Delivery of Goods
479
The same subject
480
Liability for Deeds Bonds and Obligations lost
481
What will excuse an Innkeeper
482
The same subject Exclusive Possession by Guest
483
Effect of Choice of Place of Deposit by Guest
484
Statute Regulations in America respecting Inns
485
Case of a Gratuitous Guest
486
When Innkeeper is liable only as a Common Bailee
487
Liability of Common Carriers by the Civil
488
Liability by the Common
489
Reasons for Extraordinary Liability
490
The same subject Comment on Riley v Horne
491
General Liability of Carriers 492 a Explanation of the rule
492
Rule relaxed in England
493
Divisions of the subject
494
Who are Common Carriers
495
Common Carriers 1 by Land 2 by Water
496
Carriers by Water a Decision considered
497
Stage Proprietors whether Common Carriers
498
The same subject 499 a Competency of the owner of lost goods to testify as to their value
499
The same subject
500
ShipOwners when deemed Common Carriers
501
Forwarding Merchants not Common Carriers
502
Nor Wharfingers
503
Case of Dale v Hall considered
504
Specific Price of Hire not material
505
Joint Carriers Liability
506
Carriers liable for the Acts of their Servants 507 a Carriers liable for Torts of Strangers
507
Duties and Obligations of Common Carriers
508
The same subject
509
Risks of Carriers at Common
510
What are Losses by Act of
511
What are Perils of the
512
Proximate not Remote Cause of Loss looked
515
Losses by Perils of the Sea when Carriers liable
516
Illustrative Case
517
Comments on the same Case
518
Case of Injury by Steam Gross negligence 519 a Loss by Fraud at
519
Case of Loss by Striking on the Bottom whether a Peril of the
520
Loss by Press of Sail when a Peril of the
521
Loss by Impressment of Seamen
522
Loss by sudden Failure of Wind
523
Seaworthiness of Vessel what sufficient
524
Jettison a Peril of the
525
What are Losses by Kings Enemies
526
Jettison by Compulsion of an Enemy
527
In what cases Carriers are liable though free from Negligence
528
Onus Probandi on whom
529
In respect to Property carried Goods thrown overboard 530 a Stowing Goods on Deck
530
Illustrative Case considered
531
Commencement of the Risk of Common Carriers
532
Liability attaches from Time of Acceptance of Goods
533
Usage of Masters and Owners of Ships as Carriers
534
Case where the Carrier is also a WarehouseMan or Innkeeper
535
The same subject
536
Case where the Carrier is also a Forwarding Merchant
537
Termination of the Risk of Common Carriers
538
The same subject
539
The same subject
540
The same subject 541 a The same subject
541
The same subject
542
Whether the Carrier is bound to make a Personal Delivery of Goods to the Owner
543
Illustrative Case
544
American Decisions in respect to Goods transported Coastwise 545 a At what time goods to be delivered 545 b To whom delivery to be made
545
Case where a person is at once a Carrier of Goods and an Agent or Fac tor for the sale of them
546
Case of Kemp v Coughtry 11 Johns R 107
548
Effect of Special Contracts and Notices of Carriers 349 a Modern Doctrine in England 549 b Carrier cannot modify the contract
549
Operation of a Bill of Lading In England In America
550
Special Contracts are either Express or more often Implied
551
Bill of Lading does not cover Seizure for Violation of Revenue Laws unless for Legal Cause of Forfeiture
552
Validity of Notices by Common Carriers
553
The same subject Chief Justice Bests Opinion Mr Bells 554 a English Carriers Act 554 b The same subject 554 c The same subject
554
Nature and Effect of Notices
555
The same subject
556
Notice where brought home to the Parties the Effect
557
Upon whom Notices are Obligatory
558
Cases in which several Persons are Carriers as Partners
559
Notice a mere Nullity where not brought home to the Owner of Goods carried
560
Rights and Duties of each Party growing out of Notices
561
Carrier must employ Suitable Means of Conveyance
562
Owner of Goods bound to put them in a Fit Condition for transportation
563
Conclusion of this part of the Subject
564
Effect of Concealment or Fraud 565 a Effect of Concealment Comments on Kenrig v Eggleston
565
Concealment of Value of Goods whether of itself Fraudulent
566
Where there is no Notice Owner of Goods not bound to disclose their
567
value unless asked 568 Whether the same rule applies to cases of Notice Mr Justice Bests Opinion
568
Case where the Carrier knows the Goods are of Extraordinary Value
569
though not paid for as such 570 Degree of Carriers Liability notwithstanding Notices 571 Whether Carrier is liable for Ordinary as well as Gross Negl...
571
What amounts to a Waiver of Notice
572
Onus Probandi as to Negligence on whom in cases of Notice
573
What will excuse a Nondelivery of Goods by a Common Carrier
574
The same subject Jettison
575
The same subject Goods Perishing by Intrinsic Defect
576
Question in respect to the Carriage of Slaves 577 a Doctrine of the Roman Law as to Slave Passengers
577
Nondelivery excused by act of Shipper discharging the Carrier
578
Nondelivery excused by Illegal Act of Shipper
579
Effect of Stoppage in transitu
580
The same subject
581
Case where the Goods are demanded by a Person having a Superior Title 582 a Acceptance of Goods by Owner no bar to Action for Negligence
582
Doctrine of Average and Contribution
583
Land Carriers when entitled to Compensation of Expenses
584
General Rights of Carriers
585
CARRIERS OF PASSENGERS
588
Bound not to overload the Coach
594
The same subject 22 The same subject
599
Duties of PassengerCarriers at the Termination of the Journey
600
New York Regulations for CanalBoats
606
Degree of Diligence required in different sorts of Bailments at the Com mon
613
To what Degree of Diligence Captors are bound
615
The same subject Lord Stowells Opinion
616
Case where Goods have been unliveried by Decree of Prize Court
617
Rules applicable to Goods seized by Revenue Officers
618
As to Prize Agents what Principles prevail
619
Officers of Court Degree of Diligence to which they are bound
620
Rule as to Receivers appointed by the Court 621 a Finders of Goods Responsibility
621
Salvors who are regarded as such
622
Salvors how far responsible
623
Loss of Salvage Property pending a Suit for Compensation by whom
624
be borne 625 Conclusion
633

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Page 467 - To bring a person within the description of a common carrier he must exercise it as a public employment: he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, not as a casual occupation pro hoc vice.
Page 36 - And this difference was taken, that where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and hath no remedy over, there the law will excuse him.
Page 2 - a delivery of goods in trust upon a contract, expressed or implied, that the trust shall be duly executed, and the goods restored to the bailee, as soon as the purpose of the bailment shall be answered.
Page 373 - But we think the real answer to the objection is, that no wrongdoer can be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened, whilst his wrongful act was in operation and force, and which is attributable to his wrongful act, he cannot set up as an answer to the action the bare possibility of a loss, if his wrongful act had never been done.
Page 3 - Without professing to enter into a minute criticism, it may be said that a bailment is a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust": Story on Bailments, p.
Page 179 - I agree with Sir William Jones, that where a bailee undertakes to perform a gratuitous act, from which the bailor alone is to receive benefit, there the bailee is only liable for gross negligence; but if a man gratuitously undertakes to do a thing to the best of his skill, where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence.
Page 356 - ... we find no case which asserts the doctrine that a master is not liable for the acts of a servant in his employment, when the particular act causing the injury was done in disregard of the general orders or special command of the master. Such a qualification of the maxim of respondent superior, would, in a measure, nullify it.
Page 373 - But the objection taken is, that there is no natural or necessary connection between the wrong of the master in taking the barge out of its proper course, and the loss itself; for that the same loss might have been occasioned by the very same tempest, if the barge had proceeded in her direct course.
Page 360 - But the liability, by virtue of the principle of relation of master and servant, must cease where the relation itself ceases to exist : and no other person than the master of such servant can be liable, on the simple ground, that the servant is the servant of another, and his act the act of another; consequently, a third person entering into a contract with the master, which does not raise the relation of master and servant at all, is not thereby rendered liable...
Page 37 - ... but when the party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. And therefore if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it.

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