CHAP. II. goods. If, on the other hand, in any of these cases the bailee should do something with the goods inconsistent with his contract, then the bailor becomes entitled to immediate possession and can sue the bailee or third parties.

Safe custody, (a) gratuitous.

Giblin v. McMullen, 1869, L. R. 2 P.C. 317.

(b) For reward.

Johnston's

Bailment with a Banker for safe custody.-An instance of bailment very usual with bankers is the receipt and care of valuables deposited with a bank by its customers for safe custody. In all cases of bailment it becomes the duty of the bailee to take care of the thing bailed; but the degree of care which the law demands differs in cases where the bailment is gratuitous, from that required in cases where the bailee receives a reward or commission.

Generally speaking, in cases of gratuitous bailment, it is sufficient if the bailee exercise the care that would be used by an ordinary prudent man in the management of his own business. So, in two such cases where the bank had exercised proper care but nevertheless the valuables deposited had been stolen by the bank's own officers, the bank was held not to be liable for the loss of the securities; and in one of these cases, where the thief was a teller who had always borne a good character, it was held that nothing short of knowledge or reasonable grounds of suspicion by the bank that the teller was unfit to be appointed or retained would have rendered the bank liable.

But in a case where valuable certificates had been deposited for safe keeping, and an arrangement In re United made that the bank should collect the dividends for Service Co., a commission, and when it happened that the manager of the bank, who had the key of the safe where the certificates were kept, fraudulently sold the shares and forged the name of the owner to the transfer, it was held that the banking company was a bailee for reward

claim, 1870,

6 Ch. 212.

of the certificates, and had been guilty of culpable neg- CHAP. II. ligence in the keeping of them.

In cases where the bank has received a locked box, When service is gratuitous. or sealed parcel, and has no access to the contents and Cf. Grant, p. nothing to do in respect of the deposit beyond safe- 191, Langtry keeping it, and makes no charge nor gets any direct v. Union Bk. benefit, those conditions are usually understood as con

stituting gratuitous bailment.

But if the bank performs any other banking service, When not. such as detaching coupons from Debentures deposited, and collecting them for credit of a customer's account, for a small commission, as in the case referred to above, that is not a gratuitous bailment. And, if such a service were performed without any direct charge, the case would not strictly speaking be one of gratuitous bailment, for the right given to the bank to receive the proceeds of the coupons would be consideration moving from the customer sufficient to destroy in point of law the idea of gratuitous service.

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Moreover, the practice of receiving things for safe A doubt custody on the part of banks has become so usual, that raised. lawyers and bankers have doubted whether any ordinary deposit of valuables with a bank for safe custody can properly be termed gratuitous. To sustain this position it is urged that all banks customarily do give such facilities to their customers. A customer, therefore, by virtue of becoming such is entitled to the facilities offered by the bank, and, if he avail himself of the opportunity, the service rendered is no more gratuitous than the collection of an instrument on which no exchange may be chargeable, but is in fact founded on the same consideration, viz., the keeping of his account by the customer with that bank.

Legal decision, however, has not gone so far and it is generally conceded that a banker's general lien does not extend over documents deposited for safe custody upon

B

CHAP. II. the ground that any such valuables are not held by him in his capacity as banker.

Lien. This is the name given to the right of a person in possession of the goods of another to retain possession of them until a debt due to him has been satisfied.

Liens are particular or general.

Particular where there is a right to retain a thing for some charge or claim growing out of or connected with the particular thing.

General where there is a right to retain a thing or things, not only for such charges and claims, but also for a general balance of accounts between the parties in respect of other dealings between them of a like kind.

Every workman to whom a chattel has been delivered by the owner to be mended, repaired, or altered for reward and who has bestowed his labour upon it has a lien upon the chattel for his charges. Thus the artificer to whom goods have been delivered to be worked up, the shipwright to whom a vessel has been delivered to be repaired, the horsebreaker or trainer, by whose skill a horse is trained or rendered manageable, have each a lien for their proper charge; but such lien may be prevented from arising by express or implied contract between the parties. The Common Law also gives to carriers and innkeepers a particular lien over the goods in their care in the way of business, and the innkeeper's claim on goods extends to the amount of his guest's bill.

Particular liens are favoured in law, but a general lien having a tendency to prefer one creditor above another is taken strictly.

A general lien in respect of a general balance of debt will arise by express contract, and is also implied by custom in certain trades, notably in cases of wharfingers and bankers. A banker's lien arises, it may be

noticed, in respect of pure banking business; it will not CHAP. II. arise over goods or securities that have been left with a But see banker upon an express and gratuitous contract for supra, p. 11. safe custody simply. A lien is lost by giving up possession or by taking security for payment.

CHAPTER III.

ALIENATION OF PERSONAL PROPERTY.

CHAP. III. LAWYERS use the term alienation to denote the transfer of ownership of property. The expression, transfer of property, would be ambiguous in many ways and liable to be frequently confused with mere delivery of possession.

If we put upon one side the change of ownership under a will, or upon intestacy, and deal only with transfers between living persons, or, as lawyers term it, the alienation of property inter vivos the subject may be subdivided into (a) voluntary and (b) involuntary alienation.

Involuntary alienation occurs where a man's goods are taken to satisfy a judgment debt under a writ of execution, or by distraint and sale (e.g., for rent), or when they are sequestrated upon bankruptcy or where a debt is garnisheed. Bankruptcy is the subject of a later chapter; the other forms of involuntary alienation are not of direct interest in mercantile law.

The three principal modes of voluntary alienation of things in possession are

(1) By gift and delivery.

(2) By deed.

(3) By sale.

1. With regard to gift and delivery.-In order that the property may pass, delivery must be made; otherwise, if there is no consideration and no deed, words of donation, even though assented to by the donee, will