bound more strongly to seek the lender and learn his pleasure as to the place where he will receive the borrowed articles. The farmer who has given his note, payable in farm produce, may deliver the produce and pay the note at the place where it is made. But one who contracts to pay a given sum in salt, on or before a day named, must go to the residence of his creditor and make his payment there. So, also, no doubt the borrower, who has promised to return the bailed goods within a fixed time, must bring them to the lender, either at his residence or place of business, depending upon the circumstances and the subject matter of the contract. If he fail to fulfill the promise, he is liable for the value of the property. The duty he owes to the lender to return the property, involves an obligation as strong and imperative as that which the debtor owes to his creditor; he must not wait for a demand unless the loan is made for a indefinite time; and even then, he must make the return at the place designated by the lender. If he retains the goods for a longer time than has been agreed on, and after a demand, he is liable for any loss that may happen ;3 because he is liable as for a conversion of the property. And, of course, whenever the bailee has been guilty of a neglect in the return which amounts to an act of conversion, he is liable for all subsequent losses, even by accident.

§ 169. Where several persons jointly borrow an article, they are bound for it in solido; they enter into a joint contract to take care of and return it, which may be enforced against them all jointly, because each is answerable for the acts of the others. But the action should be brought against them all, or against the survivors, if one or more of them be dead. An agreement entered into by several persons is presumed to be a joint contract, unless otherwise expressed."

§ 170. A general loan for use is deemed strictly precarious; it is held subject to the will of the lender; he grants simply the custody of the chattels lent, with the authority to use them, and by implication retains the right to revoke the authority and reclaim them at any time. The possession in fact remains with the lender, so that under our old practice he might maintain the action of trespass against a third person who had

1 Goodwin v. Holbrook, 4 Wend. R., 377; La Farge v. Rickert, 5 Wend., 187, 189.

2 Durrell v. Mosher, 8 John. R., 445; Bryant v. Wardell, 2 Exchq. R., 479; Put v. Rowsterne, T. Raym. R., 472; Lashmere v. Toplady, 2 Vent., 170; Lucas v. Trumbull, 15 Gray, 310; Porter v. Foster, 7 Shep., 391; Ripley v. Dolbier, 6 Id., 382; Hart v. Skinner, 16 Vt., 138; Spencer v. Pitcher, 8 Leigh, 565. 3 Code of Louisana, Art. 2370; Jones on Bailm., 63; Coggs v. Bernard, 2 Ld. Raym., 909, 916; Fox v. Pruden, 3 Daly, 187, 190.

• Code of Louisiana, Art. 2876.

5 1 Cowen Trea., 609, 611, 3d ed.

seized the property; which could be maintained only where the plaintiff had either the actual or constructive possession of the goods. And he is constructively in possession whenever he has the immediate right to reduce them into his actual possession.1

The loan being subject to the pleasure of the lender, it may be revoked in several ways; by a demand that it be returned, by the death of the lender, or by a sale of the thing loaned with notice to the bailce. Being given for an indefinite time, the permission to use the property may be withdrawn at will, like the authority of an agent, or like a license to use or occupy lands.2

§ 171. The borrower is not bound to restore, or pay damages for the goods, where they are taken or destroyed by irresistible force, or by the wrongful act of a third person; in other words, he relieves himself from liability by showing such a loss or injury to the property, and that the same occurred without any negligence or want of prudence on his part.3 He must account for his failure to restore the goods, and he can only do so by showing the manner in which they were lost or injured; that is to say, he must answer the case made against him by proof of his failure to return the goods, by showing a loss or injury for which he is not responsible. The form of the issue decides where the burden of proof lies; if the plaintiff alleges an injury by the negligence of the defendant, he must support his allegation by proof," and it is conceded that slight proof will be sufficient.

§ 172. A loss of the goods by theft, will excuse the borrower, when it occurs without any fault on his part. The mere fact of a loss by theft from a room of an inn or while the goods are in the custody of a carrier, is considered proof of negligence; because ordinarily the carrier and

1 Orser v. Storms, 9 Cowen R., 687; Neff v. Thompson, 8 Barb., 213, 216; Van Sickle v. Van Sickle, 8 How. Pr., 265.

2 The death of the licensor or his sale and conveyance of the premises, revokes his prior license: Eggleston v. N. Y. & H. R. R. Co., 35 Barb., 162. The license is valid until it is revoked: Selden v. Del. & Hud. Canal Co., 29 N. Y., 634; Pratt v. Odgen, 34 N. Y., 20.

3 Vaughan v. Menlove, 3 Bing. N. C., 468; Scranton v. Baxter, 4 Sand., 5; Cumins v. Wood, 44 Illinois, 416; 37 Id. 250; Abraham v. Nunn, 42 Ala., 51; Yale v. Oliver, 21 La. Ann. R., 454.

The carrier's failure to deliver, casts upon him the burden of accounting for his failure; Burrell v. N. Y. C. R. R. Co., 45 N. Y., 184.

5 Watson v. Bauer, 4 Abbott's Pr. N. S., 273.

❝ Gile v. Libbey, 36 Barb., 70; Hulett v. Swift, 42 Barb., 230; Merritt v. Claghorn, 5 Adol. & Ellis, N. S., 164; Clute v. Wiggins, 14 John. R., 175; Gilbert v. Dale, 5 Adol. & Ellis, 450; Alden v. Pearson, 3 Gray, 342; Clark v. Barnwell, 12 How., 272; McDaniels v. Robinson, 26 Vt., 316, 340.

always the innkeeper insures against this kind of loss; the rule establishing his liability being framed with the intention of holding him accountable for losses of this kind; and not considered applicable where the carrier's contract leaves him liable simply as a bailee for hire. A refusal or failure to give any account of the loss or injury to the goods, raises a presumption against the bailee, and proof of that fact is sufficient in the first instance to hold him accountable for the goods.3

§ 173. The borrower of a chattel is not permitted to set up title in himself, to justify a violation of his promise to return it; he is not allowed to dispute the lender's title. The same principle applies as between landlord and tenant, principal and agent, and bailor and bailee. A sale of the property, where the bailee has no existing legal interest in it as against the bailor, changes the right of possession, and the bailee with notice cannot hold the property after the sale. The purchaser takes the place of the bailor. Where the bailee fails to return the property and promises to pay for it, the action of assumpsit lies against him as in the case of a sale. And after a special deposit of money for safe keeping, an agreement between the parties to consider it a loan, converts the bailment into a debt."

§ 174. Though the borrower cannot acquire title to chattels loaned to him, by any act of which he may be guilty, he is, as we have seen, liable for their value whenever he has exercised acts of ownership over them, and the lender clects to bring his action as for a conversion of the property. The owner does not lose his title without his consent, by any alteration of form through which his property may pass; he may seize it in its new shape so long as he can prove the identity of the original materials, as leather made into shoes, cloth into coats, trees squared into timber, wood converted into coal, logs manufactured into

1 Schieffelin v. Harvey, 6 John. R., 171, 177; Watkinson v. Laughton, 8 John. R., 213; De Rothschild v. Royal Mail Steam Packet Co., 14 Eng. Law and Eq., 327.

Lamb v. Camden & Amboy R. & Tr. Co., 46 N. Y., 271, 278.

3 Bush v. Miller, 13 Barb., 481, 489; Schwerin v. McKie, 5 Robt. R., 404, 419; Logan v. Mathews, 6 Barr, 417; Cumins v. Wood, 44 Ill., 416; sec Bowman v. Eaton, 24 Earb., 528.

4 Simpson v. Wrenn, 50 Illinois, 222; Faltz v. Stevens, 54 Id., 180; Maxwell v. Houston, 67 N. C., 305.

5 Hodges v. Hurd, 47 Ill., 363; Britton v. Aymar, 23 La. Ann. R., 63.

6 Parker v. Tiffany, 52 Illinois, 233. Where a man receives depreciated notes and gives a due-bill for them, he is prima facie liable for them as a debt. Rankin v. Craft, 1 Heiskell R., 711.

7 Chiles v. Garrison, 32 Mo., 475.

boards, or black salts converted into pearlashes.' But if he elects to bring his action of trover against any person who acquires the custody if his goods by bailment or otherwise, and recovers their value in damages, his title will pass to the defendant on payment of the judgment entered for the amount of the recovery.2

§ 175. As gratuitous loans sometimes run on through a number of years, it is important to ascertain the application of the statute of limitations; and here we are to observe that the statute runs from the time when the action accrues. Under a general loan for an indefinite time, it cannot commence to run until after a conversion of the property by the bailee; and under a loan which really leaves the goods in the hands of the borrower subject to the lender's call, a demand must be necessary before a right of action will accrue. With reference to the statute, the lender's right is not unlike that of a customer, who deposits his money in a bank subject to his check or draft; and his right of action does not accrue until after he has drawn for the money in the usual way.5 There being no violation of the contract, mere lapse of time will not affect the lender's title or right of property."

1 Curtis v. Grant, 7 John. R., 168; 5 Id., 348; Babcock v. Gill, 10 John. R., 237; Brown v. Sax, 7 Cowen, 95; Baker v. Wheeler, 8 Wend. R., 505.

2 Osterhout v. Roberts, 8 Cowen, 43.

3 Kelsey v. Griswold, 6 Barb., 436; Huntington v. Douglas, 1 Robt., 204; Bruce v. Tilton, 25 N. Y., 194; Roberts v. Bardell, 61 Barb., 37. See Roberts v. Sykes, 30 Barb., 173.

4 Payne v. Gardiner, 29 N. Y., 146.

5 Downes v. Phoenix Bank, 6 Hill, 297.

6 In Booth v. Terrell, 18 Ga., E70, a gratuitous loan was made for life; and in Orser v. Storms, 9 Cowen, 687, the loan ran on for seventeen years. See Farrow v. Bragg, 30 Ala., 261; McCoy v. Odom, 20 Ala., 502; Cortelyou v. Lansing, 2 Caines' Cas., 200.

CHAPTER V.

PLEDGES OR PAWNS-COLLATERAL SECURITIES.

§ 176. We come next in order to consider bailments, mutually beneficial to both the parties to the contract. A pledge is something put in pawn or deposited with another as security for a debt, or for the performance of some agreement; and the contract is confined to personal property.1

2

Notes, bonds, stacks, and in general all kinds of personal chattels may be given or delivered in pledge; and the mere delivery of a chattel or chose in action is sufficient. The title to the thing delivered in pledge does not pass, as it does in the case of a chattel mortgage. The delivery is made as a security for the payment of a debt, or for the performance of some other act; and the party making the delivery retains a power of redemption. In a chattel mortgage the title is conveyed, subject to a condition of defeasance in case of payment; while the title to goods deposited in pledge remains in the person making the deposit; only a special property passing to the pledgee. There is also another distinction between a pledge and a mortgage of personal

1 Markham v. Jaudon, 41 N. Y., 235, 241 ; Stearns v. Marsh, 4 Denio, 227. A pledge is a bailment of goods by a debtor to his creditor to be kept till the debt is discharged. Jones on Bailm., 118. The fourth sort of bailments is when goods or chattels are delivered to another as a pawn, to be security for money borrowed of him by the bailor; and this is called in Latin vadium, and in English a pawn or pledge. Coggs v. Bernard, 2 Ld. Raym., 909, 913. Kent calls it a bailment or delivery of goods by a debtor to his creditor, to be kept till the debt is discharged. 2 Kent's Comm., 577, 578. Story, as a bailment of personal property, as security for some debt or engagement. Story on Bailm., § 286. It is the pignori acceptum of the civil law, a contract by which a debtor gives something to his creditor as a security for his debt. Code Louisiana, Art. 3100.

2 McLean v. Walker, 10 John. R., 472; Campbell v. Parker, 9 Bosw., 322; Luckey v. Gannon, 1 Sweeny, 12.