damage has happened to the bailor, which is the case in question, what will you call this? In Bracton, Lib. III. 100, it is called Mandatum."

The liability of the bailee in cases of this class is for gross negligence only, and he is not chargeable for slight neglect only. The liability is, therefore, the same as in the case of Depositum, and it appears difficult to see why these two separate classes of this nature should have been distinguished by Lord Holt.

A bailee in this class is bound to use such skill as he possesses, because a reasonable man should use care in proportion to his skill (m).

On the other hand, the bailor is bound to disclose defects in any chattel which he lends gratis (such as a vicious horse) (n).

At the common law where goods were delivered to a man upon trust as a bailee, he could not be convicted of larceny if he fraudulently converted them to his own use.

However, this is now altered by the Larceny Act, 1861, s. 3, and the Larceny Act, 1901, s. 1. Sect. 3 of the former Act enacts (0) :-"Whosoever, being a bailee of any chattel, money, or valuable security, shall fraudulently take or convert the same to his own use or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny, and may be convicted thereof upon an indictment for larceny; but this section shall not extend to any offence punishable on summary conviction."

Under this section it has been held to be larceny where the prisoner, being requested to purchase coals for the prosecutor, and being given the money for the purpose, abstracted from the cart part of the coals so bought, though he duly delivered the remainder (p). By sect. 1 of the Larceny Act, 1901 (q), which repealed sects. 75 and 76 of the Larceny Act, 1861, whosoever (a) being entrusted, either solely or jointly with jointly with any other person, with "any property,

(m) Wilson v. Brett, 11 M. & W. 113.

(n) Blakemore v. Bristol & Exeter Rail. Co., 27 L. J. Q. B. 167; 8 E. & B. 1035. Similarly in case of carriers: see Farrant v. Barnes, 11 C. B. N. S. 553; 31 L. J. Č. P. 137.

(o) 24 & 25 Vict. c. 96, sect. 3.

(p) R. v. Bunkall, 33 L. J. M. C. 75. A similar conviction, where the prisoner appropriated the money given him to purchase coals: R. v. Aden, 12 Cox, C. C. R. 512.

(2) 1 Edw. 7, c. 10, sect. 1.

in order that he may retain in safe custody or apply, pay or deliver, for any purpose or to any person, the property or any part thereof; or (b) having, either solely or jointly with any other person, received any property for or on account of any other person, fraudulently converts to his own use or benefit, or the use or benefit of any other person, the property or any part thereof, or any proceeds thereof, shall be guilty of a misdemeanour."

The most important of the above six classes, so far as concerns the use of vehicles upon highways with which this work is concerned, is the fifth, Locatio operis faciendi, because in this class are included common carriers, as they are termed. It is, therefore, necessary to deal with this class at greater length, and with more minuteness, than with the other five classes.

First, one should consider the law as it applies to bailees to whom goods are entrusted for reward, either to be kept, or to have work done in regard to them. In these cases the bailee is bound not only to duly perform such work as he has contracted to do, but he must also use ordinary care or diligence in the keeping or preservation of the goods delivered to him.

Thus, where a ship was delivered to a shipwright to be repaired, and was put into a dry dock, the gates of which were burst open by a high tide, thus causing damage to the ship, it was held that the shipwright was liable, as he ought to have guarded against the danger by taking proper precautions). So also where goods are injured by vermin (s). If a livery stable-keeper undertakes, for reward, to house a carriage, he is under an obligation to take reasonable care that any building in which it is deposited is in a proper state, so that the thing (carriage) therein deposited may be reasonably safe in it (t). Where wharfingers, for reward, agreed to moor a vessel for the purpose of discharging at their jetty, in a place where she would take ground at low water, it was held that they were liable for injuries done to the vessel through the uneven condition of the bed of the river, where she took ground, as they must be taken to have represented that they had taken reasonable care to ascertain that the state of the bed of the river was fit for the purpose of grounding, and for which they agreed that their jetty should be used (u). The same reasoning applied in a case where a plaintiff went

Leck v. Maestaer, 1 Campb. 137.

White v. Humphrey, 11 Q. B. 44.

Per Blackburn, J., Searle v. Laverick, 9 Q. B. D. at p. 126, citing Coggs v. Bernard.

(u) The Moorcock, 13 P. D. 157; 14 P. D. 64; 58 L. J. P. D. & A. 73.

to a restaurant to dine, and gave his overcoat to a waiter to hang up, and upon rising to go away found that the overcoat was gone; it was held that the proprietor of the restaurant was a bailee, upon the evidence, and that there was negligence on his part owing to a want of reasonable care (x).

The liability of innkeepers, as bailees, is limited by the Innkeepers' Liability Act, 1863 (y). Previously to the Act, the general rule was that an innkeeper was liable for the loss of goods placed in his charge by a guest, unless such loss was caused by the negligence of the guest (s). The first section of that Act provides that no innkeeper shall be liable to make good to any guest any loss of or injury to goods or property brought to his inn, not being a horse or other live animal, or any gear appertaining thereto, or any carriage, to a greater amount than the sum of thirty pounds, except—

(1) Where such goods or property have been stolen, lost, or injured through the wilful act, default, or neglect of the innkeeper, or of his servant; or

(2) Where such goods shall have been deposited expressly for safe custody with such innkeeper.

If the innkeeper refuses to receive such goods for safe custody, and the guest is unable to make a deposit of them, as required by the innkeeper, through the default of the innkeeper, then the benefit of the Act is lost.

The question of liability under this Act will be found very fully discussed in the case of Medawar v. Grand Hotel Co. (a). This case goes to show that the onus is upon the guest to show that the loss was due to wilful neglect so as to bring the case within the exceptions.

Where a guest's horse was injured through a kick from another horse in the same stable, it was held to be a proper direction to tell the jury that the innkeeper was only liable if he or his servants were guilty of direct injury or violence (b).

Where a guest's gig was placed outside the inn yard and in the street, upon a fair day, and stolen thence, the innkeeper was held to be responsible (c). And it has also been decided that where a guest went away, leaving his horse at the inn, the innkeeper was liable for injuries done to the horse while

(x) Ultzen v. Nicols, (1894) 1 Q. B. 92; 63 L. J. Q. B. 289.

(y) 26 & 27 Vict. c. 41.

(z) See Caley's case, 1 Smith's L. C. (10th edit.), p. 115.

(a) (1891) 2 Q. B. 11; 60 L. J. Q. B. 209. And as to the meaning of "guest," see Strauss v. County Hotel Co., 12 Q. B. D. 27; 53 L. J. Q. B. 25. (b) Dawson v. Chamney, 5 Q. B. 164.

(c) Jones v. Tyler, 1 A. & E. 522.

B.

N

being driven by the innkeeper's servant (d). It will be seen from the wording of the Act that it does not apply to the cases of horses or carriages, and that the old common law still applies in such cases. Locomotives are carriages, and so are bicycles (e). The cases decided since the Act are, however, useful as illustrating the principles of negligence applying in the case of negligence of innkeepers.

It should be noticed that innkeepers are, by the Innkeepers Act, 1878 (f), entitled, in addition to their ordinary lien, after the expiration of six weeks to absolutely sell and dispose by public auction of any goods, chattels, carriages, horses, &c., which may have been deposited or left in the house, coachhouse, stables, or premises, where the person depositing such goods shall have become indebted to the innkeeper for board or lodging or for the keep or expenses of any horse or other animal; any surplus after such sale and after paying the amount of the bill is to be paid, on demand, to such person. An advertisement of the proposed sale must be issued, in accordance with the provisions of the Act, at least one month before the sale. The lien referred to is a general lien for the whole amount of the bill, and not merely in reference to the bill incurred in respect of the goods upon which the lien is claimed (g).

Every person who accepts delivery of goods, for carriage for reward, is bound to exercise care in the carrying, and is responsible for the negligence of himself and his servants; when, however, there is a specific contract of carriage, then the rights of the parties are governed partly by the terms of the contract and also by such terms as the law may imply.

In contracts to carry passengers by land for hire, the law implies a warranty that the vehicle with equipments is roadworthy and reasonably safe for the purpose for which it is used. The owner is not, however, liable for hidden defects (h), but he should exercise ordinary and reasonable care in the examination of the vehicle (i). The law also implies a warranty that the driver will exercise competent skill, and will drive at a reasonable rate of speed, and will follow the

(d) Bather v. Day, 32 L. J. Ex. 171.

(e) Cf. Taylor v. Goodwin, L. R. 4 Q. B. D. 228. An innkeeper was held liable for the loss of a bicycle brought to his inn by a guest; per Judge Martin at Luton County Court, Law Times 19 Nov. 1897, p. 39.

(f) 41 & 42 Vict. c. 38.

(g) Mulliner v. Florence, 3 Q. B. D. 484.

(h) Christie v. Griggs, 2 Camp. 81; Readhead v. M. Rail. Co., L. R. 4 Q. B. 372; 38 L. J. Q. B. 169; Hyman v. Nye, 6 Q. B. D. 685.

(i) Richardson v. G. E. Rail. Co., L. R. 10 C. P. 486; 1 C. P. D. 342.

rule of the road, and drive in proper and safe places; otherwise, in the case of a collision or other accident, the owner will be liable for injuries caused thereby (). The general rule, then, in such cases would seem to be that all carriers are bound to exercise the greatest care in the carriage of passengers for hire, and are answerable for all acts of negligence or for all negligent omissions on the part of themselves or their servants; but they are not answerable for pure accidents which cannot be foreseen, or which are caused by defects which could not be detected by the exercise of care and skill.

According to similar reasoning, a common carrier is not liable where an injury is caused to the goods by an inherent latent defect in the goods, the existence of which was not known to either the sender or to the carrier, and this freedom from liability is not affected by the fact that the carrier's servants may have in some way contributed to the injury, so caused by the inherent defect, while the goods are in the course of being carried (1).

A common carrier may be defined as being a person who plies for hire with carriages or waggons by land, or by boats or vessels by water, from place to place, and who holds himself out to carry either passengers or goods between such places for hire. He is said to be "one who offers to carry goods for any person between certain termini (m) and on a certain route, and he is bound to carry for all who tender to him goods and price of carriage, and insures these goods against all loss but that arising from the act of God or the public enemy, and has a lien on the goods for the price of the carriage " (n).

A carman who undertakes only particular jobs, and who does not ply for hire regularly, is not a common carrier (o), nor is a person who holds himself out to carry passengers only (p). Railway companies are not common carriers of passengers (9), but they are common carriers of such goods as

(k) Aston v. Heaven, 2 Esp. 535; Wayde v. Carr, 2 D. & R. 256; Lloyd v. Ogleby, 5 C. B. N. S. 667; Pluckwell v. Wilson, 5 C. & P. 375.

(1) Lister v. L. & Y. Railway, (1903) 1 K. B. 878; 72 L. J. K. B. 385; 88 L. T. 561.

(m) The termini need not be fixed: Liver Alkali Co. v. Johnson, L. R. 7

Exch. 267.

(n) Quoted by Cockburn, C. J., Nugent v. Smith, 1 C. P. D. at p. 427. See also Pickford v. Grand Junction Railway, 8 M. & W. 372; Garton v. Bristol & Exeter Rail. Co., 30 L. J. Q. B. 273.

(0) Brind v. Dale, 2 M. & Rob. 80.

(p) Aston v. Heaven, 2 Esp. 533.

(9) Readhead v. Midland Rail. Co., L. R. 4 Q. B. 379.