any fault on his part. For the same reason, when the injury or death of a horse in the hands of the borrower is proved, it devolves upon him to show that he has exercised the care required by the nature of the bailment, or that the injury or loss occurred without any fault or neglect on his part. Unexplained, the loss raises a presumption of negligence against him; it casts the burden of proof upon him, to explain, as he may, the cause of the loss.2

§ 159. The rule of liability, as well as the action and the pleadings, is to be considered in determining with which party lies the burden of proof. For example, the common carrier is liable in the absence of any special contract, for all losses except those arising from two sources; hence where he fails to deliver the goods, he is prima facie liable for them; the burden of proof is on him to show a loss coming within the exceptions.3 And where in his bill of lading he exempts himself from losses arising from the "dangers of lake navigation," the shipper of the goods makes out a prima facie case against him, by proving the contract, the shipment and the arrival of the goods in a damaged or ruined condition; the carrier must then prove that the injury was caused by one of the dangers of the lake navigation; and the plaintiff to recover, must then show that the injury arose from the carrier's negligence.*

In like manner the onus probandi may pass from side to side in the trial of an action against a bailee without hire. E. g., in an action against a depositary receiving goods to keep without reward, the depositor alleges a conversion of the property, and proves that the bailee has refused to redeliver on demand; and then the onus of accounting for the default lies with the bailee, the presumption being that he has converted the goods to his own use; he repels this presumption by showing that they have been lost or destroyed.5 Where the action is based upon the contract the bailor establishes his cause of action, by shewing the bailee's failure to redeliver the property according to the agreement; the onus is then cast upon the bailee to shew such a loss as will excuse him, namely, a loss without any gross neglect on his part.

1 Bennett v. O'Brien, 37 Ill., 250; Scranton v. Baxter, 4 Sand., 5.

2 Wood v. McClure, 7 Ind., 155; McDaniels v. Robinson, 26 Vt., 316, 340; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344, 423; Fortune v. Harris, 6 Jones Law. N. C., 532.

3 N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. U. S., 344, 423; Camden & Amboy R. R. v. Baldanf, 16 Penn. St., 67.

4 11 Wallace 129; and Clark v. Barnwell, 12 How. U. S., 272.

Ante, § 156.

6 Graves v. Ticknor, 6 N. H., 537; 11 Wend., 25; 2 Salk., 655; ante, § 157.

§ 160. Restitution. In a loan for use, there is always an implied agree. ment by the borrower, to redeliver the thing loaned as soon as the time has expired for which the loan was made; or, no time being specified, within a reasonable time; or as soon as the purpose of the loan has been accomplished.' Every bailee is bound to redeliver the goods bailed according to the terms of his particular contract; and that of the borrower requires that he return the goods to the lender at the time and place contemplated by the parties. The depositary may retain them until a demand is made for them; and a mandatary is not to be presumed in fault until after he has been called upon for the property; but a borrower must return the loan within the time limited, and is liable in an action on the contract for a failure to do so."

2

3

His

§ 161. The borrower may return the loan by the hand of an agent or servant; but in doing so, he is bound to employ an agent or servant of approved skill and prudence, and is answerable for the same degree of care and diligence as when he makes the return by his own hand. liability covers the custody of the article until it reaches the owner's possession; he is answerable for the negligence of his agent or servant. He cannot transfer his duty, though he may ordinarily commit the manual service of making the return to his agent. He may not do this, where the nature of the property is such that his custody of it bears the character of a personal trust; a trust not being in its nature transferable by the trustee.7

§ 162. It is the borrower's duty to return the goods or chattels to the lender or to his authorized agent; it is not enough for him to return them to the place from which he received them; he must restore them to the lender's custody. A delivery of them to a person not authorized to receive them, is a conversion of the property; and though the misdelivery be made under a mistake of fact, it renders him liable for

1 Wilcox v. Hogan, 5 Ind., 546; Ross v. Clark, 27 Mo., 549; Lay's Exr. v. Lawson's Admr., 23 Ala. R., 377; 2 Kent's Comm., 573-577; Green v. Hollingsworth, 5 Dana Ky., 173.

2 Brown v. Cook, 9 John. R., 361; Phelps v. Bostwick, 22 Barb., 314; S. C., 22 N. Y., 242.

3 Beardsley v. Richardson, 11 Wend., 25.

4 Scranton v. Baxter, 4 Sand. R., 5; Fox v. Pruden, 3 Daly, 187.

5 Scranton v. Baxter, supra.

6 Hall v. Warner, 60 Barb., 198.

7 See Colyar v. Taylor, 1 Coldw. Tenn., 372; Skeller v. Kohn, 17 Ill., 170; cases of mandate involving the principle asserted in the text. See also Die fendorf v. Spraker, 10 N. Y., 246.

8 Esmay v. Fanning, 9 Barb., 176, and 5 How. Pr., 228.

the goods in an action of trover. A wrongful intent is not an essential element of the conversion; it is enough that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it. An unauthorized use of the property by a bailee, is a conversion of it;3 and so is an unauthorized deposit of the property with a third person, when it brings a charge upon the owner; as where a bailee unnecessarily leaves a borrowed chattel at an inn.1

§ 163. It is the borrower's duty to return the property with its natural increase; because in a gratuitous loan of animals, securities or stocks, there is nothing to vary the general rule that the increment, the interest or increase from property, accrues to the owner.5

§ 164. The place where the borrowed goods are to be restored in the absence of any express agreement in that respect, will depend upon the circumstances and nature of the contract. The borrower must return them to the lender, ordinarily at the place from which he received them; but the lender may designate the place where they shall be received. The borrower, in fact, contracts to redeliver the goods bailed; and if no place be agreed upon, the bailor may name the place." The bailee, no place being appointed for the delivery, must seek the lender and learn at what place he will receive them. This has been expressly adjudged to be the rule of law in respect to contracts for the delivery of specific articles; but the rule is subject to some qualifications, depending upon the circumstances and the nature, value and bulk of the articles to be delivered. Jewelry, for instance, should be returned to the lender in person, or to his authorized agent; while other articles, such as horses or cattle, should be delivered at the place where the collateral circumstances show that the lender intended to receive them.8

§ 165. The Code of Louisiana provides that if the contract does not specify the place where the article bailed must be restored, that it shall

1 Devereux v. Barclay, 2 Barn. & Ald., 702; Packard v. Getman, 4 Wend., 613; Stephenson v. Kent, 4 Bing., 476; 55 Barb., 188, 193; 37 How. Pr., 449. 2 Boyce v. Brockway, 31 N. Y., 490.

* Beach v. Raritan, &c. R. R. Co., 37 N. Y., 457; see also Vincent v. Couklin, 1 E. D. Smith, 203.

4 Seyds v. Hay, 4 Term R., 260. The innkeeper may hold the property, a horse, for its keep; Threlfold v. Borwick, 2 Eng. Rep., 689; Jones v. Morrill, 42 Barb., 623; S. C., 31 How. Pr., 639.

• Orser v. Storms, 9 Cowen, 687; Hasbrook v. Vandervoort, 4 Sand. R., 74; Booth v. Terrell, 16 Georgia, 25; Allen v. Delano, 55 Maine, 113.

6 Co. Litt., 210 b; Aldrich v. Albee, 1 Greenleaf R., 120.

'Bixby v. Whitney, 5 Greenleaf R., 192; Esmay v. Fanning, 9 Barb., 176. 2 Kent's Comm., 507; Chipman on Contracts, 25, 26, 27; Story on Bailm.,

§ 117.

1

be restored at the place where the bailment was made.1 Though the place be not named, if it may be inferred from the terms of the contract, or from the circumstances attending it, the delivery must be made at that place. The borrower assumes the obligation to redeliver, which is as imperative upon him as if he had entered into an agreement to pay a fixed amount in specific articles. The party bound to render a service or make a payment by a given day, must seek the party to whom the debt or duty is due. Is the place of performing the contract changed by substituting a commodity for money? The place of performance is sometimes implied from the nature of the articles to be delivered. If a merchant or manufacturer engages to pay on demand in the articles of his trade, and no place is specified in the contract, the store of the merchant or the workshop, or place of deposit of the fabrics of the manufacturer, is the place where payment must be demanded before an action accrues for the non-performance of the contract;3 because, from the peculiar circumstances and course of business of the promisors, the inference is that the parties intended that the articles should be delivered at the promisors' usual place of making and delivering the articles sold by them. The engagement is that the articles shall be delivered on demand, and this seems to imply that the creditor must go to the debtor to make the demand, before the latter can be in default.

But where a note of hand is given, payable at a time fixed, in cattle, grain or other portable articles, and no place of payment is designated in the note, the creditor's place of residence is the place of payment; for in this case there is nothing to rebut the usual presumption that the debtor or party bound, must seek his creditor and discharge his obligation within the time limited. In like manner, the borrower is under an obligation to return the borrowed articles to the lender, and if the time and not the place of the return be fixed, he must take them to the lend er's residence or place of business; for this obligation to redeliver, is in substance a debt or duty due to the lender.

§ 166. There is some diversity in the decisions in regard to the place where a contract for a delivery of specific articles shall be performed; but this diversity arises out of the difference of circumstances attending the contract. Thus, an agreement made at the residence of

1 Art. 2925.

2 Goodwin v. Holbrook, 4 Wend. R., 377.

3 Chip. on Cont., 28, 9; Buck v. Burk, 18 N. Y., 337; Haskell v. Mathews, 37 Maine, 541; Vance v. Bloomer, 20 Wend., 196.

4 4 Wend. R., 377; Stoker v. Cogswell, 25 How. Pr., 267, 274; Musselman v. Stoner, 31 Penn. St., 265.

5 Lobdell v. Hopkins, 5 Cowen R., 516; Chambers v. Winn, Prin. Dec. Kentucky, 192; Wilmouth v. Patton, 2 Bibb's Kentucky Rep., 280; Mason v. Briggs, 16 Mass. R., 453.

the debtor, payable in farm produce at the market price, may be performed at the place where it is made; and there being no time fixed for the payment, it is held that no action will lie until after a demand is made at the farm of the debtor. The want of time in such a contract renders it payable on demand; and the fact, that it is payable in farm produce, draws after it the inference that the farm is the place of payment.1

It is held in Kentucky, that on contracts for the delivery of property, where no place is expressed, the usual residence of the obligor is the place of performance; and that where the property is to be delivered on request, a special request at the obligor's residence must be averred." The action was on a contract for the payment of two hundred dollars, in a negro, upon request, and it was adjudged on demurrer that the plaintiff must aver in his declaration, a demand of the chattel at the residence of the vendor, or show circumstances justifying a departure. The law judges the place according to the nature and subject matter of the thing to be performed; presuming, in such a case, that the contract is to be executed at the place where it is made.

§ 167. In construing contracts of this nature, courts endeavor to carry into effect the intention of the parties, which may very often be inferred from the subject and purpose of the contract, as well as from its language. In an action for articles delivered to a bailee to be redelivered when called for, the bailee being absent from the commonwealth, a demand was made of his wife at the place of his residence; and it was held good, on the ground that one who makes a contract to deliver specific articles on demand should be always ready at his dwelling-house or place of business. This is clearly much more reasonable than to permit a demand to be made upon him personally for them, since he cannot be expected to carry the goods about with him. The reason here is the same as that which requires a due-bill without time or place, given by a merchant for goods, or a mechanic for work, to be demanded of the merchant at his store, or of the mechanic at his shop.*

§ 168. There is a perfect analogy between the contract to pay a fixed sum in specific articles and the undertaking of the borrower to redeliver the goods bailed to him. In respect to the time, place and manner of delivery, the obligation is the same, unless, indeed, the borrower is

1 Smith v. Leavenworth, 1 Root, 209; Bach v. Owen, 5 Term R., 409; Chandler v. Windship, 6 Mass. R., 310; Benners v. Executors of Howard, Tayl. N. C., 149. 2 Wilmouth v. Patton, 2 Bibb R., 280.

3 Mason v. Briggs, 16 Mass. R., 453; Fanchot v. Leash, 5 Cow. R., 506. * Lobdell v. Hopkins, 5 Cowen R., 516; Woodcock v. Bennett, 1 Cow. R., 711.