been corrected and qualified by the experience and wisdom of each succeeding age, so as to form at the present time a singularly consistent system of law.

Innkeepers are in like manner and to a like extent liable for the goods of guests stopping with them. In the usual language of the books they are insurers of the property, and nothing but the act of God or public enemies will excuse a loss.1 In consideration of exercising the public business of innkeepers, they are bound to receive and entertain strangers and travelers, and answer for their goods. In part requital of this unusual liability, the landlord has a lien on the goods for his reasonable charges. The relation of landlord and guest, however, must exist before either the lien or liability can arise. Indeed, the lien and liability are coincident, the one supporting the other, and both standing and falling together. The extraordinary responsibility of an innkeeper, like that of a common carrier, is based on a principle of public policy, sustained by motives of general utility. The stranger cannot be supposed to have at his command the means of showing the precise negligence by which his goods may have been lost. He is compelled to trust to the care of others, without having the means of ascertaining personally the prudence and care of those to whom he confides his property. And hence the law wisely casts upon the landlord the burden of answering for the loss against which he has the best means of providing. The presumptions of the law are thrown against him, in order that his interest may stimulate his vigilance in the safe keeping of property committed to his custody.

While there is no injustice in this rule, since the innkeeper carries on his business with a perfect knowledge of his liability, there is at the same time the highest public convenience. The exhausted traveler sleeps in security under a watchful care, presided over and enforced by a strict law.

The several degrees of diligence required of the bailce in the care of property intrusted to him under different circumstances, and the kinds of negligence for which he may become liable, require to be carefully marked and fixed in appropriate terms. The language of the law must have a uniform standard value, a sort of technical and scientific precision. In ordinary speech, it is sufficient to say that the person having the custody of property must keep it with diligence; but it will not suffice in legal reasoning. Its meaning varies and is relaxed or intensified too much, according to the notions of responsibility entertained by the person using it. The idea expressed by it is not a fixed quantity, but

1 Grinnell v. Cook, 3 Hill, 488.

rather a quality of attention, differing as much as men differ in the care they take of property entrusted to them. It varies also in respect to the object in reference to which it is employed.

§ 5. Stated in affirmative form, these several degrees or measures of diligence commend themselves to universal acceptance; they are the dictates of reason; they rest upon the solid basis of sound morality'; and they have been approved and established by a long course of decisions. 1. A mere depositary, who receives into his custody goods or chattels for the owner's accommodation, as an act of favor or friendship, is bound to take the same care of them as he does of his own property of a like kind. A mandatary acting gratuitously, is bound to the same rule of diligence. In the absence of any special agreement, the law implies an undertaking by each to keep the property under ordinary cir cumstances, with as much care as he does his own. 2. A bailee under a bailment which is mutually beneficial to the parties, is required to use ordinary diligence to preserve the goods entrusted to him; namely that care which prudent men take of their own property; or that care which reasonable men use in their own business. The law exacts greater diligence from the bailee deriving a benefit from the contract, because his engagement is made in the ordinary course of business. 3. When the bailee alone derives a benefit from the bailment, he is bound to use great vigilance and extraordinary care in the use and safe-keeping of the property. As a borrower, receiving the use of goods or chattels gratuitously, he must preserve and return them with very great care.

§ 6. It is customary to state the rules of liability in a negative form. E. g., it is usual to state the degree of negligence for which bailees, in these several classes of bailment, are liable. As usually stated, these rules stand as follows: 1. A gratuitous depositary of goods is liable for their value, when they are destroyed or lost through his gross negligence; or by his omission or neglect to take the same care of them which he takes of his own property of a similar kind. 2. The bailee for hire, or for some beneficial consideration, is responsible for losses arising through ordinary negligence, or by his omission to take that care of the goods entrusted to him which prudent men take of their own property. 3. The borrower who receives the use of goods gratuitously, is liable for their loss or injury through slight neglect, or by the failure to use that diligence which very circumspect and thoughtful persons use in preserving their own goods.

§ 7. Does the law recognize these three degrees of negligence? No one denies that there are differing degrees of negligence, or that the law takes notice of them; nor does any one deny the liability of a bailee for slight negligence, where like a borrower he alone is to receive a ben

efit from the bailment; nor is it denied that the bailee is liable for ordinary negligence, where the bailment is mutually beneficial to the parties; neither does any one deny the liability of a gratuitous bailee for gross negligence. But the classification has been called in question; it has been doubted whether the terms "slight, ordinary and gross negligence can be usefully applied in practice." It has even been questioned whether there is any intelligible distinction between negligence and gross negligence, on the notion that the addition of the epithet gross is mere matter of vituperation which adds nothing to the sense.1 The justness of these criticisms may well be conceded, so far as they call in question the sufficiency of these terms; since in their ordinary use they are really terms of comparison. In legal language as in conversation, they are used with implied reference to what the situation calls for-with implied reference to the affirmative duty required under the circumstances.'

They are recognized by a long course of decisions; they are used to express a rule of law constantly administered in our courts; and they are perhaps as definite and certain as the rule itself. An assignment for the benefit of creditors, relieving the assignee or trustee from liability for losses not caused by willful misfeasance or gross negligence, is fraudulent in law; because the law holds the trustee to a higher degree of responsibility, and does recognize the different degrees of negligence. RUGGLES, CH. J: "These distinctions are sufficiently obvious to the mind in theory; but it must be admitted that their practical application to particular cases is sometimes difficult. They appear, however, to be well established and generally acknowledged; and the clause in the assignment which gives rise to the present controversy seems to have beeen drawn with reference to their existence and practical operation. The assignee is not exempted from accountability for gross negligence, but is exonerated from the consequences of negligence in any inferior degree." 3

The rules of pleading are often appealed to as good illustrations of the rules and principles of the common law. The old form of declara

1 Steamboat New World v. King, 16 How. U. S., 469; Hinton v. Dibbin, 2 Adolph & Ellis, N. R., 645; Perkins v. N. Y. Central R. R. Co., 24 N. Y., 207 ; Wilson v. Brett, 11 Mees. & Welsh, 113; Briggs v. Taylor, 28 Vt., 185.

2 Philadelphia and Reading R. R. Co. v. Derby, 14 How. U. S., 486; Storer v. Gowen, 18 Maine R., 177; Gill v. General Iron Screw Collier Co., Law Rep., 1 C. P., 612; Kelsey v. Barney, 12 N. Y., 425, 429; Whitney v. Lec, 8 Metcalf, 91.

3 Litchfield v. White, 3 Saud. S. C. R., 545; S. C. 7 N. Y., 438. The assignee is chargeable with the care and diligence of a provident owner, and liable for a loss by ordinary negligence.

tion in assumpsit against a bailee without reward, alleged among her things that the defendant so negligently and carelessly conducted himself that through his negligence the goods were lost to the plaintiff. The same allegation was made in an action against a bailee for hire.' The allegation in both of these cases measures the degree of negligence for which the bailee is liable; and it tacitly implies that the bailce is liable whenever he has so carelessly and negligently conducted himself that the goods are lost to the plaintiff or injured to his damage. While therefore the rules of pleading do not in form recognize the different degrees of negligence, they do assume that the law proportions the care. required of a bailee to the natural dangers to which the goods are exposed; and they do fairly imply that the bailce is liable for such carelessness as actually results in a loss, where his negligence is the direct and producing cause of the loss or injury.2

§ 8. It is desirable to have these rules of duty and liability imposed by law upon the bailee expressed in terms that convey a uniform and fixed meaning; and yet every one knows that these and similar terms vary in their signification, from different causes. Used by one person they do not express exactly the same sense, as they do when spoken by another. Men differ in their sense of obligation, so that the same word of duty spoken by different persons does not express a fixed meaning, as it does when spoken with reference to a physical law or fact of natural science. The sense of the terms is also modified by the situation or circumstances in regard to which they are spoken. Ordinary care of one kind of property is not the care required of a different species of property: a package of money requires one kind of care, and a span of horses another. In one community the danger of loss from theft may not be very great; while in another, being much greater, it calls for proportionate vigilance. Our banks and safety deposit companies, with which negotiable bonds and securities are left for safe-keeping, build with a view to defend themselves against dangers of this kind; they construct their vaults and employ watchmen to defend themselves against losses by robbery; in some of our cities they even construct a telegraphic wire, so that the burglar unwittingly reports himself and his crime to the headquarters of the police. In other localities, where but few securities of this kind are found, and the crime of burglary is scarce

1 Yates' Pleadings, 246, 250.

* The degree of negligence is discussed in Bissell v. The N. Y. C. R. R. Co., 29 Barb., 602, 612; S.C., 22 N. Y., 258, 305; and in Wells v. N. Y. C. R. R. Co., 24 N. Y. 181; and in Whitney v. Lee, 8 Met., 91; and in Foster v. Essex Bank, 17 Mass., 479.

ly known, precautionary measures of safety like these are rarely taken; and it would be hardly reasonable to hold the omission to take such measures, proof of negligence.

§ 9. Strictly speaking, the law does not allow neglect of any kind in the execution of a contract. Its rule varies only in respect to the care it exacts under varying circumstances. The borrower must be very circumspect and careful of goods and chattels, the use of which he receives gratuitously. The relation in which he stands makes it appropriate that the law should be construed rigorously against him for his acts of neglect. Having received a favor, it is adjudged a great fault in him to be guilty of even a slight negligence, through which the confidence and trust reposed in him are converted into an injury to his friend. In effect these differing degrees of neglect are only so many accents of mildness or severity in which the law, according to the attending circumstances, pronounces the same principle of equity. Where the contract is one of ordinary business and gainful to both the parties to it, no special care is required, and common prudence will satisfy the rule of liability. And in the case of a naked deposit, without reward, the construction becomes still more favorable to the bailee, whose situation with reference to the goods does not impose upon him the same watchful diligence usually bestowed on property stored for hire. In all cases, indeed, there is an admirable and intimate relation between the duty of the bailee and the consideration he receives as a reward, or as a motive for entering upon the execution of the trust.

The principles embraced in the law of bailments, originally in a great measure derived, like our principles of equity, from the civil law, compose a system of a somewhat complex nature, involving many nice distinctions, and a great variety and extent of interests. Contracts implied by law, manifestly must be modified by the customs and course of trade. Liabilities imposed by public policy, must be enforced with a wise reference to the conservation of the general interest.

Engagements of a voluntary nature, fairly entered upon, are to be

1 Story on Bailm., § 17.

2 In its true and genuine meaning, equity is the soul and spirit of all laws. Positive law is construed, and rational law is made by it: in this, equity is sy. nonymous with justice; in that, with the true sense and sound interpretation of the rule. 3 Black. Comm., 429.

A sentence from Hooker is very often quoted as expressing the highest idea of abstract and pure law. "Of law no less can be acknowledged than that her seat is the bosom of God, and her voice the harmony of the world; all things in heaven and on earth do her homage, the very least as feeling her care, and the greatest, as not exempt from her power."