Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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As to the third sort of bailment, scilicet locatio or lending for
hire, in this case the bailee is also bound to take the utmost care
and to return the goods, when the time of the hiring is expired.
And here again I must recur to my old author fol. 62. b. Qui pro
usu vestimentorum auri vel argenti, vel alterius ornanienti, vel ju-
menti, mercedem dcderit vel promiserit, talis ab eo desideratur cus-
todia; qualeni deligentissimus paterfamilias suis rebus adhibet,
quam si praestiterit, et rem aliquo casu amiserit, ad rem restituen-
dam non tenebitur. Nee sufficit aliquem talem diligentiani adhibere,
qualem suis rebus propriis adhiberet, nisi talem adhibuerit, de qua
superius dictum est. From whence it appears, that if goods are
let out for a reward, the hirer is bound to the utmost diligence,
such as the most diligent father of a family uses; and if he uses
that, he shall be discharged. But every man, how diligent soever
he be, being liable to the accident of robbers, though a diligent
man is not so liable as a careless man, the bailee shall not be answer-
able in this case, if the goods are stolen.

As to the fourth sort of bailment, Z'is. vadium or a pawn, in
this I shall consider two things ; first, what property the pawnee has
in the pawn or pledge, and secondly for what neglects he shall
make satisfaction. As to the first, he has a special property, for
the pawn is a securing to the pawnee, that he shall be repaid his
debt, and to compel the pawner to pay him. But if the pawn be
such as it will be the worse for using, the pawnee cannot use


it, as cloaths, &c. but if it be such, as will be never the worse, as
if jewels for the purpcjse were pawn'd to a lady, she might use
them. But then she must do it at her peril, for whereas, if she
keeps them lock'd up in her cabinet, if her cabinet should be broke
open, and the jewels taken from thence, she would be excused; if
she wears them abroad, and is there robb'd of them, she will be
answerable. And the reason is, because the pawn is in the nature
of a deposit, and as such is not liable to be used. And to this
effect is Oiv. 123. But if the pawn be of such a nature, as the
pawnee is at any charge about the thing pawn'd, to maintain it,
as a horse, cow, &c. then the pawnee may use the horse in a
reasonable manner, or milk the cow, &c. in recompense for the
meat. As to the second point Bracton 99. h. gives you the answer.
Creditor, qui pigiius acccpit, re obligatiir, ct ad illam restitnendam
tcnctur; ct cuiii liujcsmodi res in pigmis data sit ntriusqiic gratia,
scilicet dcbitoris, quo magis ci pecwiia crederetur, ct crcditoris quo
magis ci in tuto sit crcditum, sufficit ad ejus rei custodiam diligen-
tiam cxactam adhibcre, quam si pracstiterit, et rem casu ainiserit,
securus esse possit, nee inipedictur crcditum petcre. In effect, if
a creditor takes a pawn, he is bound to restore it upon the payment
of the debt; but yet it is sufficient, if the pawnee use true diligence,
and he will be indemnified in so doing, and notwithstanding the loss,
yet he shall resort to the pawnor for his debt. Agreeable to this is
29 Ass. 28. and Soutlicote's case is. But indeed the reason given
in Soutlicote's case is, because the pawnee has a special property
in the pawn. But that is not the reason of the case ; and there is
another reason given for it in the book of Assize, which is indeed
the true reason of all these cases, that the law requires nothing ex-
traordinary of the pawnee, but only that he shall use an ordinary
care for restoring the goods. But indeed if the money for which
the goods were pawn'd, be tender'd to the pawnee before they are
lost, then the pawnee shall be answerable for them; because the
pawnee, by detaining them after the tender of the money, is a
wrong doer, and it is a wrongful detainer of the goods, and the
special property of the pawnee is determined. And a man that
keeps goods by wrong, must be answerable for them at all events,
for the detaining of them by him, is the reason of the loss. Upon
the same difiference as the law is in relation to pawns, it will be
found to stand in relation to goods found.

As to the fifth sort of bailment, vis. a delivery to carr\' or other-
wise manage, for a reward to be paid to the bailee, those cases
are of two sorts; either a delivery to one that exercises a publick
employment, or a delivery to a private person. First if it be to a
person of the first sort, and he is to have a reward, he is bound
to answer for the goods at all events. And this is the case of the
common carrier, common hoyman, master of a ship, &c. which case
of a master of a ship was first adjudged 26 Car. 2. in the case of
Mors V. Slczv. Raym. 220. i Vent. 190. 238. The law charges this
person thus intrusted to carry goods, against all events but acts
of God, and of the enemies of the king. For though the force be
never so great, as if an irresistible multitude of people should rob
him, nevertheless he is chargeable. And this is a politick establish-


ment, contrived by the policy of the law, for the safety of all per-
sons, the necessity of whose afi'airs oblige them to trust these sorts
of persons, that they may be safe in their ways of dealing; for
else these carriers might have an opportunity of undoing all per-
sons that had any dealings with them, by combining with thieves,
&c. and yet doing it in such a clandestine manner, as would not
be possible to be discovered. And this is the reason the law is
founded upon in that point. The second sort are bailies, factors
and such like. And though a bailie is to have a reward for his
management, yet he is only to do the best he can. And if he be
robb'd, &c. it is a good account. And the reason of his being a
servant is not the thing ; for he is at a distance from his master,
and acts at discretion, receiving rents and selling corn, &c. And
yet if he receives his master's money, and keeps it lock'd up with
a reasonable care, he shall not be answerable for it, though it be
stolen. But yet this servant is not a domestick servant, nor under
his master's immediate care. But the true reason of the case is,
it would be unreasonable to charge him with a trust, farther than
the nature of the thing puts it in his power to perform it. But
it is allowed in the other cases, by reason of the necessity of the
thing. The same law of a factor.

As to the sixth sort of bailment, it is to be taken, that the
bailee is to have no reward for his pains, but yet that by his ill
management the goods are spoiled. Secondly, it is to be under-
stood, that there was a neglect in the management. But thirdly, if
it had appeared that the mischief happened by any person that
met the cart in the way, the bailee had not been chargeable. As
if a drunken man had come by in the streets, and had pierced the
cask of brandy ; in this case the defendant had not been answerable
for it, because he was to have nothing for his pains. Then the
bailee having undertaken to manage the goods, and having man-
aged them ill, and so by his neglect a damage has happened to the
bailor, which is the case in question, what will you call this? In
Bracton lib. 3. 100. it is called mandatiim. It is an obligation,
which arises exniandato. It is what we call in English an acting by
commission. And if a man acts by commission for another gratis,
and in the executing his commission behaves himself negligently,
he is answerable. Vinnius in his commentaries upon Justinian, lib.
3. tit. 27. 684. defines mandatum to be contractus quo aliquid gratiito
gerendum committitnr et accipitiir. This undertaking obliges the
undertaker to a diligent management. Bracton iibi supra says, con-
trahitur etiam obligatio non solum scripto et verbis, sed et consensu,
sicut in contractibus bonae fidei; ut in emptionibus, venditionibus,
locationibus, conductionibus, societatibus, et mandatis. I don't find
this word in any other author of our law, besides in this place in
Bracton, which is a full authority, if it be not thought too old. But
it is supported by good reason and authority.

The reasons are, first, because in the case, a neglect is a deceit
to the bailor. For when he intrusts the bailee upon his undertaking
to be careful, he has put a fraud upon the plaintifif by being negli-
gent, his pretence of care being the persuasion that induced the
plaintifif to trust him. And a breach of a trust undertaken volun-


tarily will be a good ground for an action, i Roll. Ahr. 10. 2 Hen. 7.
II. a strong case to this matter. There the case was an action against
a man, who had undertaken to keep an hundred sheep, for letting
them be drown'd by his default. And there the reason of the judg-
ment is given, because when the party has taken upon him to keep
the sheep, and after suffers them to perish in his default; in as
much as he has taken and executed his bargain, and has them in his
custody, if after he does not look to them, an action lies. For here
is his own act, viz, his agreement and promise, and that after broke
of his side, that shall give a sufficient cause of action.

But secondly it is objected, that there is no consideration to
ground this promise upon, and therefore the undertaking is but
nudum pactum. But to this I answer, that the owner's trusting him
with the goods is a sufficient consideration to oblige him to a careful
management. Indeed if the agreement had been executor)^ to
carry these brandies from the one place to the other such a day,
the defendant had not been bound to carry them. But this
is a different case, for assujnpsit does not only signify a future agree-
ment, but in such a case as this, it signifies an actual entry upon
the thing, and taking the trust upon himself. And if a man will
do that, and miscarries in the performance of his trust, an action
will lie against him for that, though no body could have compelled
him to do the thing. The 19 Hen. 6. 49. and the other cases cited
by my brothers, shew that this is the difference. But in the 1 1 Hen.
4. 33. this difference is clearly put, and this is the only case concern-
ing this matter, which has not been cited by my brothers. There the
action was brought against a carpenter, for that he had undertaken
to build the plaintiff a house within such a time, and had not done
it, and it was adjudged the action would not lie. Rut there the
question was put to the court, what if he had built the house un-
skilfully, and it is agreed in that case an action would have lain.
There has been a question made, if I deliver goods to A. and in
consideration thereof he promise to re-deliver them, if an action
will lie for not re-delivering them; and in Ych. 4. judgment was
given that the action would lie. But that judgment was afterwards
revers'd, and according to that reversal, there was judgment after-
wards entered for the defendant in the like case. Yd:'. 128. But
those cases w-ere grumbled at. and the reversal of that judgment
in Yek\ 4. was said by the judges to be a bad resolution, and the
contrary to that reversal was afterwards most solemnly adjudged in
2 Cro. 667. Tr. 21 Jac. i. in the king's bench, and that judgment
affirmed upon a writ of error. And yet there is no benefit to the
defendant, nor no consideration in that case, but the having the
money in his possession, and being trusted with it, and yet that was
held to be a good consideration. And so a bare being trusted with
anotlier man's goods, must be taken to be a sufficient consideration,
if the bailee once enter upon the trust, and take the goods into his
possession. The declaration in the case of Mors v. Slcti' was drawn
by the greatest drawer in Riu/laiid in that time, and in that declara-
tion, as it was always in all such cases, it was thought most prudent
to put in. that a reward was to be paid for the carriage. And so
it has been usual to put it in the writ, where the suit is by original.

3l6 ANON.

I have said thus much in this case, because it is of great consequence,
that the law should be settled in this point, but I don't know
whether I may have settled it, or may not rather have unsettled it.
But however that happen, I have stirred these points, which wiser
heads in time may settle. And judgment was given for the

(a) Torts and Contracts.
20 HEN. VI, 34, PL. 4 (1441).

'A Bill of Deceit sued against Joh. Doig(son) in the King's
Bench. And he counted how he bargained with the said Jo. such a
day and year to buy of him so much land for one hundred pounds
to him paid. Of which land he had enfeoffed the said plaintiff
within fourteen days after the year; the said J, enfeoffed one A,
of the same land, and so deceived him. And the defendant demurred
upon this bill in judgment, to the effect that by the matter shown
the plaintiff' should have a writ of covenant, and not this action.
And now in the Exchequer Chamber, Ascoiigh, If a carpenter take
upon himself to make me a house, and he does not do this, I shall
not have a writ of trespass, but only action of covenant, if I have
a specialty,^ but if he makes the house badly, now I shall have an
action of Trespass upon the Case: for by this malfeasance is the
cause of my action ;2 so in our case, if the defendant had retained
the land in his hand without making a feoffment, then the plaintiff
shall have merely a writ of covenant, and I think it is all one case
when the defendant makes a feoffment to a stranger, and when he
retains the land in his hand, wherefore this action does not lie.

Paston, J. Although a man can have a writ of covenant, still
that does not prove that he shall not have a writ of deceit: for it
may be that all the covenants are kept, and still it is deceit. As sup-
pose that a carpenter take upon himself to make me a house of such
a length, and such a breadth, and such a heighth, which he frames,
but he makes a mistake in joining, which is out of all the covenants;
now action of covenant fails me, because he has kept all the cov-

^For the English Law of Bailments at the present time, see Beven on
Negligence, 3rd Ed., vol. II, 729 et seq.

^Accord: Keilw. 50, p. 4, and see James Barr Ames' History of As-
sumpsit, 2 Harv. L. R., pp. lo-ii.

^Accord: Y. B. 11 H. IV, z?, pl- 60 (1409) ; 3 H. VI, 36 pi. 32, (1424) ;
21 H. VII, Keilw. 77, p. 25 (1505). And so in Elsee v. Gatziwd, 5 T. R.
143 (1793). it was held that, while a count which alleged that a carpenter
retained to make repairs had failed to do so was bad if no consideration was
alleged, a count alleging that instead of using the old material as agreed he
had used new and so had increased the expense was good. For other cases
where one assuming to" perform work for the plaintiff was liable in case, if
he performed it badly to the plaintiff's hurt, see James Barr .\rnes History
of Assumpsit, 2 Harv. L. R. i, pp. 2 to 7, in which the whole subject is_ most
ably discussed and to which the editor is indebted for the cases given in the
text and notes. So an action of Trespass on the case lay against a ferryman
overloading his barge, Y. B. 22 Ass. 94. p. 41 (t347). a barber infecting a
customer by use of dirty razor, 14 H. VII, Rast. Ent., 2 b. i (1498).

ANON. 317

enants,and still I shall have an action upon the Case for this which he
has done badly: so here, although I can have a writ of covenant, still
because he has disabled himself as above I shall have an action of
Deceit. Wherefore. Newton, J. If I bail a certain sum of money
to Paston to bail to Fortescue, if Paston does not bail this he is
chargeable to me in action of Account, and also by action of debt,
and it is at my pleasure which I shall choose, but when I have used
one of the said actions, then the other is extinct: so in our case,
although there are two actions, Covenant and Deceit, still the party
can hold to Deceit if he will.^ Wherefore, etc.

19 HEN. VI, 49 PL. 5 (1440).

Writ of trespass was brought upon the case against one R.
Marshall [probably error in the text for "a farrier"], because the
defendant took upon himself at London to cure his horse of a certain
disease, and that he there "negligently and carelessly gave him medi-
cine so that the horse, etc. Portington, To this we say that at Oxford
in the County of Oxford, we undertook to cure the horse of such an
infirmity as you speak (of), which w^e did satisfactorily, without
this that we undertook to cure your horse at London, Ready. Mark-
ham. That is no plea, for I alleged by my w^it that that by his neg-
ligence he has killed my horse, then that is the effect (gist) of my
injury, and of my action, which it is necessary for him to traverse,
and not the undertaking, wherefore, etc., As in case a carpenter
takes upon himself to make a house for me well and satisfactorily,
which he never does ; in that case I shall have no action against him,
wdiich proves that this misfeasance is the cause of the action, which,
to my mind, ought to be traversed.

Newton, J. It seems that the plea is good, for it may be that
he undertook to cure your horse at Oxford, as is said, which he has
done, and that afterwards at London your horse has had the in-
firmity again, and that he de son hon grc (of his good grace) gave
the medicines, and afterwards your horse died : now for that which
he did dc son ban grc (of his good grace) you shall have no action,
therefore in our case there is no need to traverse that, no more than
in this case — my horse is sick, and I go to a farrier, to have his ad-
vice, and he says that one of his own horses had such a malady and
that he gave a certain medicine to his horse, and so he will (^clo the
same for mine), which he does, and afterwards the horse dies;
should the plaintiff" now have an action? I say no; ^ then upon that
it follows that he shall not have an action in our case, unless he took

*See Acker, etc., Co. v. McGazi', 106 Md. 536 (1907). action on the case
by a principal against an agent who in violation of his obligations as such,
had secretly acted antagonistically to the principal's interests in a real estate

* See for case upon very similar facts, Ray v. Burbank & Jones, 61 Ga.
505 (1878), apothecary asked by a customer for liniment for his horse, rec-
ommends and puts up one which he has put up for another customer on the
latter's prescription and which has been reported to have had good effect.

,3.18 ANON.

upon himself, etc., which should be traversed — whether he had done

Paston, J. to Markham, You have not shown that he is a com-
mon farrier to cure such horses, in which case, although he killed
your horse by his medicines, still you shall have no action against
him wathout an undertaking; which proves well that the "without
this" {sans ceo] shall be taken upon the undertaking. Fortescue,
Where Markham has said that if a carpenter undertakes to make
me a house, which he does not do, that I shall have no action, which
proves that the undertaking is not the cause of the action to his mind,
and so the traverse shall not be taken upon that; I say that in any
case where he undertakes to make a thing and does not do it, that
for this nonfeasance I shall have a good action, and the traverse
shall come upon the undertaking, which proves that the undertaking
is the cause of the action, upon which it follows that the "without
this" shall be taken upon the assumption. As suppose that I have
a ruinous house and a carpenter takes upon himself to repair the
said house before a certain day well and satisfactorily, which he
does not do, wherefore my house all falls down ; now I shall have an
action against him, and the traverse can well be upon the undertak-
ing: so here, although the horse dies by his negligence, still when he
undertook to cure the said horse, which he has not done, for that
the action shall as well be taken as it shall be where the house falls
by his negligence, wherefore it seems that the plea is good enough.
Ascough, It seems that the undertaking is the gist (force) which
gives the action as well as shall by his warranty in this case. — Sup-
pose I sell to you one hundred (garments of wool with warranty
that they are good and saleable and then you find the) garments full
of moths, now this warranty is as well the cause of an action as the
spoiling of the wool, and upon this warranty the "without this" can
be well taken. So in this case the undertaking is the cause of the
action, wherefore the issue can be well taken upon it. As in action
upon the Statute of labourers the retaining can as well be traversed
as the departure. Markham, The writ is "that he negligently and
carelessly gave him medicine", so it seems that he by these wrong
medicines killed him, and so the dying of the horse is the reason of
his action, which should be traversed to my mind. Neivton, J.,
"Negligently gave" is void. If I have a disease in my hand, and
he give medicine to my heel, by which negligence my hand is lost,
still I shall not have an action unless he undertook to cure me.
Markham, Then we will imparl, with your leave.^

*The "super se assumpsit", the undertaking to perform was nec-
essary in every case even of misperformance save when the defendant was
carrying on some business as Common Carrier, Innkeeper, or Common Far-
rier, in the course of which he must serve all who offer and was entitled
to a reasonable compensation. Powtuary v. Walton, i Roll. Ab. 10, p. 5
(1598), and 2 Harv. L. R., pp. 3 to 7. It is entirely immaterial by whom the
defendant is paid, see Pippin v. Shepperd, 11 Price, 400 (1822), and note i to
Marshall v. Ry., post. p. 148. The tendency of modern cases is to hold that
if the defendant is not merely giving friendly advice but assumes charge of
the plaintiff, or, presumably, his live stock, as a physician or surgeon, he is
bound to exercise reasonable skill as such whether he is paid for his serv-




Court of Appeal, 1891. 8 Times Law Reports, 5.

This was an action for damages for personal injuries. The
plaintiff was a stevedore employed by a master stevedore in loading
a ship in the defendants' docks, the master stevedore being em-
ployed by the shipowner. Some days prior to the accident the ship
was moored by the defendants to the quay in their docks for the
purpose of being loaded. The defendants provided a wooden plat-
form, called a "table top," between the ship and the quay, which
was fastened at one end to the ship's gunwale by ropes, the other
end resting unfixed upon the quay. In the course of their duty the
stevedores would have to go upon this "table top." The gunwale
of the ship when unloaded stood high above the level of the quay.
As the ship was loaded she gradually sank deeper in the water, and
in consequence the ropes holding her to the quay slackened and the
ship drifted away from the ([uay, and while the plaintiff" was upon
the "table top" the end of the table top slipped off the quay, and the
plaintiff fell into the dock and was injured. The action was tried in
the City of London Court, when evidence was given that the de-
fendants kept a gang of men called a transporting gang, and that
it was a regular thing for this gang to alter the moorings as the ships
sank. There is a rule made by the defendants under their Act of
Parliament that the masters of vessels and others are cautioned to
have their mooring ropes attended to, and that the company will not
be responsible for the consecjuences of any alteration, or neglect of
alteration, of the moorings. The ship in question was left in charge
of the mate. The jury found that it was the custom of the defend-
ants to alter the moorings as the ship sinks on being loaded, and
found for the plaintiff", assessing the damages at £50. The Divisional
Court (Mr. Justice A. L. Smith and Mr. Justice Grantham) held
that there was no duty on the part of the defendants to the plaintiff,
and entered judgment for the defendants (see 7 The Times Law
Reports, 546). The plaintiff appealed.

Mr. Ruegg appeared for the plaintiff; Mr. George Wallace
appeared for the defendants.

The Court dismissed the appeal.

The ]\Iaster of the Rolls said that the defendants owed no
duty to the plaintiff either by statute or by contract. Was there,
then, any relation established between the plaintiff" and the defend-
ants such as would render the defendants liable to the plaintiff?
Even supposing that the defendants had habitually altered the moor-
ing ropes of the vessels in dock, the highest it could be placed was