entirely upon general principles. The owner of a pair of horses, lends them to his neighbor to carry a load of provisions to a particular market; can he, on the way, meet him and demand the immediate possession of the team, leaving the borrower to sustain the injury resulting from such an abrupt and unexpected termination of the loan? It may in this case well be questioned whether the contract of loan for this special purpose, united to the injury resulting to the borrower from its termination before the purpose has been answered, will not justify the borrower in resisting this demand for immediate possession, and be received as an adequate defence.

§ 130. Lender's Interest in the Loan. The title to the thing lent, as we have seen, remains in the owner; the use only being transferred to the borrower. The earlier writers speak of the borrower as having a special or qualified property in the subject of the loan;3 more recently it is asserted that he has no special property in the borrowed chattel.* But this variation of language does not show any variation of principle. The bailee has an interest in the goods bailed, which, in the old action of trover, was frequently spoken of as a special property, in contradistinction from the naked possession held by a mere servant; the mere servant could not, while the bailee might maintain the action as against strangers and wrong-doers." Cowen, in speaking of the distinction between general and special property, says: "Special property is where a man holds goods by bailment, or has any temporary interest therein, either in his own right and for his own use, or by authority of law for legal purposes." So, in Bacon's Abridgment, where a man lends sheep or cattle, the borrower is said to have a qualified property in them, according to the purposes for which the loan was made.

§ 131. The general property is in the lender during the continuance of the loan; and the borrower, being responsible to his principal for the goods intrusted to him, has an interest in them, by whatever term described, sufficient to enable him to maintain an action for their protection against strangers, who wrongfully interfere with the goods. Has

1 10 Wend. R., 110; Bac. Abr., 374.

22 Kent's Comm., 574.

3 Doct. and Stud., D., 2 c, 38; Bac. Abr., 373; 2 Black. Comm., 453. 42 Kent's Comm., 574; Story on Bailm, § 279, 93-96, 150; Taylor v. Linday,

9 East R., 49; Burton v. Hughes, 2 Bing. R., 173.

5 Falkner v. Brown, 13 Wend. R., 63.

62 Saund., 47; 1 East R., 244; 4 id., 247; Cro. Eliz., 819.

71 Cowen's Trea., 320, 3d ed.; 1 Caines' R., 14.

8 Bac. Abr., 373.

9 13 Wend. R., 63; Bliss v. Schaub, 48 Barb., 339,343; Hays v. Riddle, 1 Sand., 248, 253.

he any legal interest in them, as against the owner? Under the Code of Louisiana, the lender cannot take back the thing lent, till after the time agreed on; or, if no agreement is entered into in that respect, not till after it has been employed in the use for which it was borrowed.' This provision is clearly founded in good sense and sound reason. The borrower has a right to rely upon the good faith of the lender; and where he receives a chattel for a specified use, and actually commences to use it in the manner stipulated, it may occasion him a serious injury to have it suddenly withdrawn, when the object of the loan is but half accomplished. Such conduct in the lender is little less than a breach of trust, and a breach of a trust undertaken voluntarily is a good ground for an action. The lender has promised the use of the chattel to the borrower; but the law demands a consideration to render the promise valid; and that consideration must be either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made.3 In the case we have supposed, the borrower acts upon the promise of the lender, receives the chattel, commences to use it under the contract of loan, and will be injured by its withdrawal before the purpose of the loan has been fully accomplished. It should seem, that here is a valid contract binding upon the lender as well as the borrower, and that the latter does in fact acquire a legal interest in the subject of the loan, a qualified property in it, according to the purpose for which it was borrowed.*

6

§ 132. Story considers it a matter of serious doubt whether the depositary, the mandatary or the borrower has any special property in the subject of the trusts respectively committed to them, and he reviews at length the authorities on the question, inclining to the opinion that the general bailee has an interest, well expressed by the phrase, "possessory interest," in the goods bailed, but not a special property. Blackstone, speaking of the various classes of bailment, says: "In all these instances there is a special qualified property transferred from the bailor to the bailee, together with the possession. It is not an absolute property, because of his contract for restitution; the bailor having still left in him the right to a chose in action, grounded upon such contract. And, on account of this qualified property of the bailec, he may, as well as the bailor, maintain an action against such as injure or take away those

1 Code of Louisiana, art. 2877.

22 Lord Raym., 911.

3 1 Cowen's Trea., 58, 3d ed.

4 Doct. and Stud., D. 2 c, 38; Bac. Abr., 373; Story on Bailm., § 258. Story on Bailm., § 93.

2 Black. Comm., 453; 13 Rep., 69.

chattels. The tailor, the carrier, the innkeeper, the agisting farmer, the pawnbroker, the distrainor, and the general bailee, may all of them, vindicate in their own right, this their possessory interest, against any stranger or third person. For, being responsible to the bailor, if the goods are lost or damaged by his willful default or gross negligence, or if he do not deliver up the chattel on lawful demand, it is therefore reasonable that he should have a right of action against all other persons who may have purloined or injured them; and that he may always be ready to answer the call of the bailor." Sir William Jones says, "every bailee has a temporary qualified property in the things, of which possession is delivered to him by the bailor, and has, therefore, a possessory action or an appeal in his own name against any stranger who may damage or purloin them." 1

Chancellor Kent, in speaking of the depositary, says: He has, perhaps, strictly speaking, no property, general or special, in the article deposited; that he has only a naked custody or possession, with a right of action, if his possession be unlawfully disturbed, or the property injured. Treating of the loan for use, he says: "The borrower has no special property in the thing loaned, though his possession is sufficient for him to protect it by an action of trespass or trover, against a wrongdoer." Afterwards he states the doctrine in the prevailing language of the books: "As every bailee is in the lawful possession of the subject of the bailment, and may justly be considered, notwithstanding all the nice criticism to the contrary, as having a special or qualified property in it; and as he is responsible to the bailor in a greater or less degree for the custody of it; he, as well as the bailor, may have an action against a third person for an injury to the thing; and he that begins the action has the preference; and a judgment obtained by one of them is a good bar to the action of the other."

§ 133. Where no time is limited for the continuance of the loan, the lender has undoubtedly, title, and a right to repossess himself of the chattels bailed at any time; the borrower having no right whatever over the chattels as against the lender." The lender has not in such a case the actual, but the constructive possession, which follows the title, and which exists wherever he has the right to reduce the property to

1 Jones on Bailm., 80; Year B., 21; Hen. VII., 14 b, 15 a.

22 Kent's Comm., 568.

3 Burton v. Hughes, 2 Bing. Rep., 173; Hurd v. West, 7 Cowen R., 752; 2 Kent's Comm., 574.

4 Flewellin v. Rave, 1 Bulst. Rep., 68; Rooth v. Wilson, 1 Barnw. and Ald. 59; 2 Kent's Comm., 585.

• Orser v. Storms, 9 Cowen's R., 687.

actual possession at any time.' This he cannot have where he has transferred to the bailee by a valid contract a right for a specified term to the use of the goods bailed; because in that case he is not entitled to reduce the goods to his possession when he pleases.2

The question whether the borrower under a loan for a definite time or use, can have a legal interest as against the lender, is rather speculative, and it does not appear to have been directly passed upon; though in an early case it was assumed in argument that a loan for a definite time, gives the borrower an interest in the chattel during that time. There is here by common consent a contract of loan between the parties, embracing mutual promises, expressed or implied, from the circumstances; and where the borrower takes action upon the faith of the loan, the lender ought not to recall the property until the time or purpose of the loan has been fulfilled, to the injury of the borrower. On the other hand, a loan made without any specification as to time or purpose, is but a bare license or authority which may be recalled at any time.5

§ 134. The right of countermand exists in respect to a license, permission, trust, agency or authority, in which the agent or bailee acquires no legal interest. If one gives money to another to pay over to a third person in discharge of a debt, the cestui que use may recover it in an action of debt or account against the bailee; but if the money were

1 Putnam v. Wyley, 8 John. R., 433.

2 Hoyt v. Gelston, 13 John. R., 142 and 561; Aiken v. Buck, 1 Wend. R., 466. 3 Bringloe v. Morrice, 1 Mod. R., 210; Viner's Abr. Bailment D; Bac. Abr. Bailment D; Cro. Jac., 687; 2 Roll. R., 440; 1 Strange, 165; Taylor v. Linday, 9 East, 49.

4 McGehee v. Mahone, 1 Ala. Select Cases, 212; Code of La., Art. 2877, 2878. Sheppard's Epitome, Countermand.

Root v. Chandler, 10 Wend., 110. In Root v. Chandler, it was held that the lender has a constructive possession of the thing loaned; but it appeared in that case that the borrower had exceeded his authority in the use of the chattel bailed; the plaintiff lent a pair of horses to Evan Rice and Stephen Goss, to enable them to retail a load of fish. The horses were lent at Buffalo, and the borrowers had permission to proceed east as far as Clarence, in the county of Erie; but one of them went as far as Batavia, in the county of Genesee, where the horses were seized by the defendant's direction on an execution against Rice. The action was trespass de bonis asportatis, and on the trial a verdict was rendered for plaintiff. One of the questions raised on a motion for a new trial, was, whether the plaintiff had a sufficient possession to maintain trespass; and upon this question the court say: "The plaintiff had the general property in the horses; he lent them to Rice to go to Clarence, but no farther; he had a right to reduce the property to his actual possession whenever he pleased; he was therefore constructively in possession, and the action on that ground is well sustained."

delivered to the bailee to hand to a third person, to whom nothing was due, the owner has a right to countermand the authority at any moment before it is executed.1 In like manner, a delivery of goods to A, to the use of B, upon a precedent consideration, may not be countermanded, because it vests the absolute property in B; it being for his benefit, his acceptance is presumed even before it be actually manifested. A person delivering money to another for a charitable purpose, may countermand the authority so long as the money remains in the hands of the bailee, unappropriated according to the purposes of the trust. Indeed, if the power or authority be in its nature legally revocable, it seems that it cannot be rendered irrevocable by any act or stipulation on the part of him who grants it. So long as it is a mere license or authority, granted as a matter of ease, pleasure or trust for the benefit of the bailor, it may be countermanded. If the owner of goods deliver them to a bailee, to be delivered over to a third person, the bailee has no property in them except for the purpose of trust. But if the bailment is not on a legal or valuable consideration, the delivery is countermandable; and in that case, if the bailor bring an action in the nature of trover, he reduces the property again in himself, for the action amounts to a countermand of the gift; but if the delivery be on a valuable or legal consideration, the bailor cannot maintain his action because he has not the right of immediate possession; he has, for the time being, parted with an interest in it."

§ 135. Degree of Care and Diligence. Under a gratuitous loan for use, the benefit being all on one side, the borrower is bound to use extraordinary diligence in preserving the borrowed chattels: he is bound to exercise all the care and diligence which the most careful and vigilant

1 Peter Harris v. Peter de Bervoir, Cro. Jac., 687.

2 Atkin v. Berwick, 1 Strange, 165.

3 Taylor v. Linday, 9 East, 49.

Sheppard's Epitome, Countermand.

Roll. Abr., CO3.

6 Bulst., 68; 2 Leon, 30; Yelv., 164. Many of the earlier adjudications on the subject of bailments, were made in the old action of detinue, in which it was held a good plea, that the bailment was upon a condition; Viner Abr., D. Rich v. Aldred was an action in detinue for the recovery of a picture of Oliver Cromwell, and Chief Justice Holt, at the trial, illustrated the doctrine thus: If A bail the goods of C to B, and C bring detinue against B for them, B may plead the bailment to him by A to be redelivered to A, and so bring in A as garnishee to interplead with C; and if A bail goods to C and afterwards give his whole right in them to B, B cannot maintain detinue for them against C, because the special property that C acquires by the bailment is not thereby transferred to B. 6 Mod. R., 216.