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exposition is requisite to give them lawful effect. It is a rule of strictness and rigor, and not to be resorted to but where other rules of exposition fail. (a) The *modern and more reasonable practice is, to give to the language its just sense, and to search for the precise meaning, and one requisite to give fair effect to the contract, without adopting either the rule of a rigid or of an indulgent construction. The Roman law maxims of interpretation in such cases were that in dubiis benigniora præferenda sunt. In obscuris quod minimum est, sequimur-secundum promissorem interpretamur. (b) The true principle of sound ethics is, to give the contract the sense in which the person making the promise believed the other party to have accepted it, if he in fact did so understand and accept it. (c)

If the object of the contract be present, an error in the name does not vitiate it; as if A. gives a horse to C., (D. being present,) says to him, (C.) “ D., take this horse," the gift is good notwithstanding a mistake in the name; for the presence of the grantee gives a higher degree of certainty to the identity of the person than the mention of his name. So, if the error consists in the demonstration or reference, and not in the name of the thing as if A. grant to B. his lot of land called Dale, in the parish of B., in the county of D., and the lot lies in the county of H., yet the falsity of the addition does not affect the efficacy of the contract. Many other cases to the like effect are put by Lord Bacon, and given by way of illustration of the rule, that præsentia corporis tollit errorem nominis, et veritas nominis tollit errorem demonstrationis. (d)

(a) Bacon's Maxims of Law, No. 3.

(b) Dig. 45, 1, 99. Ibid. 50, 17, 9, 56. However, if the deed from its ambiguity creates a doubt, the construction is to be favorable to the grantee, and there is no distinction, in this respect, between the language of the grant itself, and that of any exception or reservation contained in it. Ch. J. Parker cites the authorities and enforces the rule in his able decision in Cocheco Man. Co. v. Whittier, 10 N. H. Rep. 305.

(c) Every treaty, says Vattel, should be interpreted as the parties understood it, when the act was prepared and accepted. Droit des Gens, b. 2, ch. 17, sec. 268. Vide supra, vol. i. 460, note.

(d) Bacon's Maxims of the Law, Reg. 25. Smith v. Smith, 1 Edw. Ch. Rep. 189. Doe v. Cranstoun, 7 Mees. & W. 1.

LECTURE XL.

OF BAILMENT.

BAILMENT is a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered. (a)

There are five species of bailment, according to Sir William Jones, in his correction of Lord Holt's enumeration of the dif ferent sorts of bailments.

I. Depositum, or a naked deposit without reward.

II. Mandatum, or commission, which is gratuitous, and by which the mandatary undertakes to do some act about the thing bailed.

III. Commodatum, or loan for use without pay, and when the thing is to be restored in specie.

IV. A pledge, as when a thing is bailed to a creditor as a security for a debt.

*559 V. Locatio, or hiring for a reward. (b)

(a) 2 Blacks. Com. 451. Pothier, Traité du Contrat de Dépôt, No. 1. Mr. Justice Story, in his Commentaries on the Law of Bailments, speaks of a consignment to a factor, as being a bailment for sale; and he applies the term bailment to cases in which no return or delivery, or redelivery to the owner or his agent, is contemplated. But I apprehend this is extending the definition of the term beyond the ordinary acceptation of it in the English law.

(b) Jones's Essay on the Law of Bailments, 36. Bailments have been reduced, by

I shall examine each of them in their order.

*I. Of depositum.

* 560

This is a bailment of goods to be kept for the bailor, and returned upon demand without a recompense; and as the bailee or depositary derives no benefit from the bailment, he is to keep them with reasonable care; and he is responsible, if there be no special undertaking to the contrary, only for gross neglect, or for a violation of good faith. (a) As a general rule, he is not answerable for mere neglect, if the goods be injured or destroyed while in his custody, if he takes no better care of his own goods, of the like value and under the like circumstances, and they be also spoiled or destroyed. (b) Mere neglect, in such a case, is not gross neglect, since the latter is tantamount in the mischief it produces to a breach of good faith, and it usually implies it; but whether fraud does or does not, in point of fact, accompany gross neglect in a depositary, he is still responsible for it in law. Gross neglect, as was observed by Ch. J. Parker, (c) bears so near a resemblance to fraud, as to be equivalent to it in its effects upon contracts. Gross neglect is the want of that care which ery man of common sense, under the circumstances, takes of his own property. (d)1

a late master hand, to three kinds : 1. Those in which the trust is for the benefit of the bailor, and which embrace deposits and mandates. 2. Those in which the trust is for the benefit of the bailee, as the commodatum, or gratuitous loan for use. 3. Those in which the trust is for the benefit of both parties, as pledges or pawns, and hiring and letting to hire. Story's Com. on Bailments, § 3.

(a) Quia nulla utilitas ejus versatur apud quem depositur, merito dolus præstatur solus. Dig. 13, 6, 5. Foster v. The Essex Bank, 17 Mass. Rep. 479. Lafarge v. Morgan, 11 Martin's Louis. R. 462. Doorman v. Jenkins, 4 Neville & Manning, 170. In this last case it was held, that what would amount to gross negligence, was a question for a jury. The law raises an assumpsit in all cases, even in that of a gratuitous bailment, that the bailee will keep and deliver, safely and securely, which means due care in all cases, but the degree of care varies according to the nature of the bailment, and becomes stringent in cases of carriers and bailees for hire. Ross v. Hill, 2 Man. G. & Scott's R. 877.

(b) See Foster v. Essex Bank, infra, p. 563, n. d.

(c) 17 Mass. Rep. 500.

(d) Jones's Essay, 118. Lord Holt, in Coggs v. Bernard, 2 Lord Raym. 913. In

1 The distinction between the different degrees of negligence has met with the disappro bation of some recent eminent authorities. See the opinion of the court in Steamboat

561

*The main inquiry in the case is, what is the duty, and what is the responsibility of the bailee. The general measure of diligence requisite in every species of bailment is regulated, in a greater or less degree, by the nature and quality of the thing bailed, and by the understanding and practice of the city or country in which the parties resided or happened to be. Diligence is a relative term; and it is evident that what would amount to the requisite diligence at one time, in one situation, and under one set of circumstances, might not amount to it in another. (a) The deposit is to be kept with the ordinary care applicable to the case under its circumstances, and the depositary cannot make use of the thing deposited without the consent of the bailor expressly given or reasonably implied. (b)

In Bonian's 'case (c) the depositary had a chest containing

the civil law, gross negligence was termed magna culpa, or lata culpa, and it was in some cases deemed equivalent to fraud or deceit. Lord Ch. J. Tindal, in 2 Manning & Granger, 852, 1 Adol. & Ellis, N. S. 38, say, that it also, in the English law, approximates to and cannot be distinguished from dolus malus, or misconduct. But it is not fraud by inference of law, but a matter of fact for a jury. Wilson v. Y. & M. R. Road, 11 Gill & Johnson, 58. It was put by Paulus for fraud, and by Ulpian it was held to be plainly assimilated to fraud. Magna negligentia culpa est, magna culpa dolus est. Lata culpa plane dolo comparabitur. Dig. 50, 16, 226. Ibid. 11, 6, 1, 1. It was not understood by the civilians to be absolutely fraud, but only the presumptive evidence of fraud, when applied to cases of trust. In many other cases the presumption was not raised. It was not held to be such under the Cornelian law, ne in hac lege culpa lata pro dolo accipitur. Dig. 48, 8, 7. Proculus would not admit that lata culpa amounted to dolus; but Nerva and Celsus insisted that it amounted to the same thing, in effect, when applied to bailment; for though a person had not ordinary care, yet, if he bestowed less care than was ordinary for him on a thing confided to his care, it was evidence of bad faith. Dig. 16, 3, 32. Culpam tamen dolo proximam contineri quis merito dixerit. Dig. 43, 26, 8, 3. Deceit (dolus) is any subtle contrivance, by words or acts, with a design to circumvent. Fraud imports damage or detriment.

(a) Batson v. Donovan, 4 Barn. & Ald. 21. Story's Com. on Bailments, § 11-17. (b) Dig. 16, 3, 29. Pothier, Traité de Dépôt, No. 34. Story's Com. § 89-92. (c) Year Book, 8 Edw. II. Fitz. Abr. tit. Detinue, pl. 59, and cited by Lord Holt, in 2 Lord Raym. 914, and in Jones on Bailment, 28.

New World v. King, 16 How. U. S. 469, and Mr. Wallace's note to Coggs v. Bernard, 1 Smith's L. C. (Am. ed.) 82. Negligence is defined by Baron Alderson to be "either the omitting to do something that a reasonable man would do, or the doing something that a reasonable man would not do; in either case causing mischief to a third party, not intentionally, for then it would not be negligence." Blyth v. Waterworks, 36 Eng. L. & Eq.

*

chest was locked, In the night his

*

plate and jewels deposited with him. The and he was not informed of the contents. house was broken open and plundered, as well of the chest with its contents as of his own goods. An attempt was made to charge the bailee; but there was no foundation for the charge, since the bailee used ordinary diligence, and the loss was by a burglary; and it was accordingly held that the bailee was not answerable. Such a bailee, who receives goods to keep gratis, is under the least responsibility of any species of trustee. If he keeps the goods as he keeps his own, though he keeps his own negligently, he is not answerable for them; for 562 the keeping them as he keeps his own, is an argument of his honesty. "If," says Lord Holt, "the bailee be an idle, careless drunken fellow, and comes home drunk, and leaves all his doors open, by reason whereof the goods deposited are stolen, together with his own, he shall not be charged, because it is the bailor's own folly to trust such an idle fellow." (a) As he assumes the trust gratuitously, he is bound to good faith. He is only answerable for fraud, or for that gross neglect which is evidence of fraud. Indeed, if such a bailee had undertaken to keep the goods safely, yet, as he hath nothing for keeping them, he would not be responsible for the loss of them by violence. (b)

(a) The civil law did not exact of the depositary any greater diligence than that he was wont to bestow on his own property under the like circumstances; and the civil law has been followed, in this respect, by Bracton, Holt, and Sir William Jones. Dig. 16, 3, 32. Bracton, lib. 3, 99 b. 2 Lord Raym. 914. Jones on Bailment, 90– 93. It was considered that there was no just ground to infer bad faith in such a case. If the depositor knew the general character, employment, and situation of the depositary, or was presumed to know him, the rule of the civil law is a sound and just rule. But if the depositor did not know these circumstances, then it has been held, that the depositary is bound to bestow ordinary care on the deposit, though he does not on his own goods; and that such care is to be ascertained without reference to the character of the depositary. The William, 6 Rob. Rep. 316. Story's Com. § 64, et seq. Great stress is, and ought to be, laid upon the habits, employment, and character of the depositary, and they are to be taken into consideration. In Sodowsky v. M'Farland, 3 Dana's Ken. R. 205, it was held, that a mere depositary or mandatory was liable only on account of loss from his culpable negligence.

(b) Lord Holt, in Coggs v. Bernard, 2 Lord. Raym. 915. Jones on Bailment, 44. Lord Holt followed the language of the civil law, and said that gross negligence in the case of bailment was "looked upon as an evidence of fraud." "Neglect is a deceit to the bailor; for when he intrusts the bailee, upon his undertaking, to be care