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 — Part

Bailment for Valuable Consideration.

III.

injured through his neghgence, he will not be excused on the ground that it has subsequently been destroyed by inevitable mischance (u).

is

545 Sect.

i.

Hire of Custody.

1108. He is further responsible to the owner of the chattel intrusted to him not only for the negligence of his agents or Acts of servants, servants (r), but also for their acts of fraud or intentional malice (w), provided that such acts were committed by them within the apparent scope of their authority, either in the supposed interest of their principal or master or in the course of their employment (x). But such a custodian incurs no responsibility where an act of fraud or negligence is committed by a servant or agent not in the course of his employment or outside the scope of his authority (y). 1109. When a chattel intrusted to a custodian is lost, injured, Onus or destroyed, the onus of proof is on the custodian to show that the injury did not happen in consequence of his neglect to use such care and diligence as a prudent or careful man would exercise in If he succeeds in showing relation to his own property {z). this, he is not bound to show how or when the loss or damage But where a custodian declines either to produce occurred {a). the chattel intrusted to him, when required to do so by the owner, or to explain how it has disappeared, such refusal amounts ])rimd facie to evidence of breach of duty on his part, and throws on him the onus of showing that he exercised due care in the custody of the chattel and in the selection of the servants employed by him in the warehousing {m). Apart from special contract, a custodian is not responsible to the owner of the chattel intrusted to him in case of its destruction by fire (h), although if he insures it he has such an insurable intrusted to them from injury which might reasonably be expected from a skilled storekeeper acquainted with the risks to be apprehended either from the character of the storehouse itself or of its locality, and that obligation included not only the duty of taking all reasonable precautions to obviate these risks, but the duty of taking all proper measures for the protection of the chattels when such risks were imminent or had actually occurred." But if the bailee provide a reasonably fit place for storing the chattels he is not responsible for such place proving defective, under exceptional and unlooked-for stress [Searle v. Laverick (1874), L. R. 9 Q. B. 122 Broadwater v. Blot (1817), Holt, N. P. 547). (u) Story on Bailments, s. 450 a. (v) Randleson v. Murray (1838), 8 A. & E. 109. (w) Barwick v. English Joint Stock Bank (1867), L. R. 2 Exch. 259, 265 Mackay Dyer v. Munday, V. Commercial Bank of New Brunswick (1874), L. R. 5 P. C. 394 Coppen v. Moore (No. 2), [1898] 2 Q. B. 306. [1895] 1 Q. B. 742 (x) Ibid. ; Beard v. London General Omnibus Co., [1900] 2 Q. B. 530. {y) Ibid. J Sanderson v. Collins, [1904] 1 K. B. 628 (plaintiff while repairing defendant's carriage lent him another to use, and defendant's coachman took the carriage out for his own purposes and without his master's knowledge, and through his negligence it was injured, and it was held that defendant was not responsible). See also titles Agency, pp. 211, 212, ante, and Master and







Servant. Mackenzie v. Cox (1840), 9 0. & P. 632 Reeve. Palmer (1858), 5 C. B. (n. s.) Phipps V. New Claridge's Hotel, Ltd. (1905), 22 T. L. R. 49. {a) Bullen v. Swan Electric Engraving Co. (1907), 23 T. L. R. 258. (m) Piatt V. Hibbard (1827), 7 Cowen, 497, per Walworth, J., at p. 500 (an American case). See also note (p), p. 527 ante. Maving v. (6) Sidaways v. Todd (1818), 2 Stark. 400, _per Abbott, J., at p. 401 Todd (1815), 4 Camp. 225. {z)

84







H.L.

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I.

NN

of proof,

Fire and insurance,