Page:Halsbury Laws of England v1 1907.pdf/754

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Bailment.

532 Sect.

1.

Deposit.

Modified by locality.

in the custody of the bailee, although similar chattels belonging to him sustain no damage, it is conceived that the onus of proof lies on the ba,ilee to show that he has not unduly favoured his own chattels The amount of diligence which is required may also be affected by the particular locality in which the bailment is effected. Thus in agricultural districts it is usual to leave barns, in which horses and other cattle are kept, unlocked at night but in cities it would be deemed a great want of caution to act in the same manner (?•). If the bailee be notoriously either a dissipated, negligent, or

whilst



Or "by character of bailee.

imprudent man (s), and the bailor was aware of the fact, a presumption might be raised that the bailor only expected of him such lax amount of care as the bailee was in the habit of bestowing on his

Or by nature of chattels.

own

chattels of a similar nature

(s).

Court to decide whether there is any evidence of breach of duty on the part of the bailee, and if there is evidence of such breach of duty, the jury, after considering all the circumstances of the case, the nature, portability, value and character of the chattel, must decide whether such evidence is sufficient to justify the charge of negligence (i). The

In every case

it

is

for the

was lost or injured whilst in the possession of the bailee raises a prima facie presumption against him, but he may rebut it by proving that he was not to blame for the loss or fact that the chattel

if unable to show how it happened (it). Except by special agreement, a gratuitous depositary is not liable to his bailor for the misfeasances of third parties, whereby the chattel bailed is damaged or stolen, unless it can be shown that he was guilty of such negligence in its conduct or custody as to

injury, even

Acts of third parties.

amount Effect of special contract.

to gross negligence or fraud (v).

1083. As in every other contract, a gratuitous bailee may, by special agreement, either limit or enlarge his legal liability for loss money

same time

as the plaintiff's that he had taken such care of the as a reasonable man would ordinarily take of his own," and that the fact relied upon Avas no answer to the action if they believed that the loss had occurred from gross negligence, at the same time expressing his own opinion that The jury found for the plaintiff, and the verdict was upheld by the it had not. Court in banc. Lord Denman's direction was expressly approved by tlie Privy Council in Gihlin v. McMullen (1869), L. E. 2 P. C. 317, at p. 339, in which case,

at the

plaintiff's

money

See however, the Court said the plaintiff (Giblin) should have been nonsuited. also Nelson v. Macintosh (1816), 1 Stark. 237 Dartnall v. Hoivard (1825), 4 B. & C. 345. {q) Pothier, Pret a Usage, s. 56. (r) Story on Bailments, s. 13. (s) The William (1806), 6 Ch. Bob. 316. See also Coggs v. Bernard (1703), 2 Ld. Baym. 909, per Lord Holt, at p. 914, who says, " Suppose the bailee is an idle, careless, drunken fellow, and comes home drunk and leaves all his doors open, and by reason thereof the goods happen to be stolen with his own yet he shall not be charged, because it is the bailor's own folly to trust such an idle fellow " a dictum requiring the qualification given in the text. {t) Gihlin v. McMullen, supra. See also Ryder v. Womhivell (1868), L. B. 4 Exch. 32, at pp. 38 and 39. {u) See note (_p), p. 527, ante. {v) Coggs v. Bernard, supra, at p. 913 Nelson v. Macintosh, supra, at p. 238 Gihlin v. McMidlen, supra ; Jones on Bailments, pp. 46, 47 Scott v. National Bank of Chester Valley (1874), 10 Canada L. J. (n. s.) 182.