Time works changes in the relations of the parties; and the law recognizes this fact of universal experience, in adjusting the rights of property. It limits the period of litigation. It prescribes the time within which all demands, including those which are most just and equitable, must be prosecuted. It leaves but one question open for investigation: when did the cause of action accrue? That being ascertained, the action must be brought within the years given for that purpose.2 In analogy with other similar trusts, the statute does not begin to run, as a general rule, until there has been an open denial or repudiation of the trust, or some notice of an adverse claim.3 § 323. A debt is not protected from the statute of limitations because accompanied by a pledge as collateral security; it is not on that account the less subject to the mischief against which the statute was intended to guard. If the debt be contracted and the pledge given for its payment at the same time, and the debt be suffered to pass under the bar of the statute, the creditor ought not to be deprived of the security. Though unable to collect his debt by suit, it does not seem to be just or reasonable to deprive him of the pledge received on the debt, with an implied power to sell it and apply the proceeds; more especially, since the statute operates upon the remedy and not upon the debt itself." § 324. A payment made upon a debt, renews it. It is an acknowledgment by the debtor of his liability to pay the whole demand; and from this acknowledgment the law implies a new promise by the debtor to pay the residue. The law does not imply such a promise from a part payment by the debtor's assignee; or from a payment made to the creditor on a collateral security held by him to secure the payment of the original debt." 1 Rundle v. Allison, 34 N. Y., 180. 2 Roberts v. Sykes, 30 Barb., 173; an action to redeem stocks pledged by a transfer, on a loan of money, must be brought within ten years after the money becomes due. SUTHERLAND, Justice. See Calkins v. Calkins, 3 Barb., 305; S. C., 20 N. Y., 147. 3 Purdy v. Sistare, 2 Hun., Sup. Ct. Rep. (N. Y.), 126; Angell on Lim., §§ 173, 178, 179, 180. Ante §§ 251-253. ✦ Slaymaker v. Wilson, 1 Penn. R., 216, per Chief Justice Gibson; and see Clark v. Bull, 2 Root R., 329. Wash v. Whitcomb, 2 Esp. R., 565; Bromley v. Holland, 7 Ves., 28; Hunt v. Rousmanier, 8 Wheat. R., 174. 6 The authority to sell the pledge is not affected by the statute; see Pratt v. Huggins, 29 Barb., 277; Thayer v. Mann, 19 Pick., 535; Bush v. Cooper, 4 Cush., 599; Baldwin v. Norton, 2 Conn., 163; 14 Peters, 19; 14 N. Y., 16; see Russell v. La Roque, 13 Ala. R., 149. Picket v. Leonard, 34 N. Y., 175; Harper v. Fairley, 53 N. Y., 442; 54 N. Y., 114. When a pledgee, with a view to foreclose the pledgor's interest in the pledge, proceeds to sell the same and becomes himself the purchaser, the transaction works no change in the rights of the parties. And so where a debtor, being pressed to pay his debt, assigns to his creditor a bond and mortgage made by a third party as a collateral security; and the creditor afterward forecloses the mortgage without making the debtor a party to the suit or proceeding, and himself buys in the property; the transaction does not cut off the debtor's right to redeem. The assignment of a subsisting mortgage as a collateral to secure a debt, operates like a mortgage or a pledge; and the debtor cannot be deprived of his interest in the property covered by the mortgage, or in the proceeds of it, without his consent; or without being heard in the action; the purpose of the assignment must be carried into effect, and the avails of the security must be duly accounted for." 1 Slee v. Manhattan Co., 1 Paige Ch., 48, 80; Carr v. Carr, 52 N. Y., 251. Martense, 16 N. Y., 231; ante § 292. 2 Hoyt v. • Stoddard v. Whiting, 46 N. Y., 627. CHAPTER VI. BAILMENTS FOR HIRE. § 325. Bailments for hire embrace a great variety of contracts connected with and growing out of the delivery of personal property, on an agreement mutually beneficial to the contracting parties. Letting for hire, or as the phrase is commonly used, letting to hire, is a bailment where compensation is given for the use of a thing, or for labor and services about it or upon it. The contract embraces the hire of storage, the hire of things, the hire of labor and services, and the hire of carriage or transportation.1 Warehousemen receive goods on deposit for a compensation paid for their custody or storage. One who hires a thing for use, acquires a right to the possession and use for the term agreed upon; and the letter to hire, gains an absolute property in the hire or compensation. Where cloth is delivered to a tailor to be made up into a suit of clothes, or a gem to a jeweler to be set or engraved, or timber to a mechanic to be converted into some useful implement; the tailor, jeweler and mechanic are bailees for labor and services, to be bestowed on the things entrusted to them, for a compensation. The hire of carriage is a contract under which the carrier, by land or water, engages for the transportation and delivery of goods and merchandise-a bailment of great importance and daily use, and therefore to be treated by itself. § 326. Our law of bailment has, to a considerable degree, grown out of the civil code; and many of the principles now established in the common law have their root and foundation in the laws of Rome; but with us, as in earlier times, the vital element of every law is that natural equity which inspires and gives to it an authority over the human mind. We do not accept it as rendering a compliment to an early age or to the masterly genius of a great people; it is its own authority, witnessed by the consent of people widely separated from each other in lineage and language, but loyal to the same unchanging law of justice. 12 Kent's Comm., 586; Cowen's Trea., 66; Jones on Bailm., 85, 86, 90, 97. 2 Pierce v. Schenck, 3 Hill, 29; 9 Wend., 327; 2 Denio, 628. 4 Without being of any practical importance, it is gratifying to be able to trace a principle of law to its source; to find, for example, that the rule which requires of one who hires a chattel for use, the same degree of diligence that all prudent men, that is, the generality of mankind, use in keeping their own goods, is older than any existing legislative power. For some reason, we place entire confidence in a law that has the sanction of the concurrent wisdom of nations in all ages; and which, like a proverb freighted with a rich and just thought, passes from mind to mind with an inherent vitality that makes it a part of the currency of the world. We perceive in it a universal law; that kind of universality which is implied in the pregnant maxim, that the voice of the people is the voice of God. § 327. Where one person deposits or leaves his goods with another, and pays a consideration for the custody of them, the contract is mutually beneficial to the parties, and the bailee must keep the goods with ordinary care. He is required to exercise a degree of diligence greater than that which is demanded of the depositary without reward; and he is excused for a degree less than that which is exacted of the borrower. The fact that he receives the goods within the line of his business for hire, binds him to a diligence increased beyond that of a mere depositary; and the fact that he renders a service to the owner of the goods, in keeping and guarding them, brings him under a less stringent obligation than that which rests upon one who borrows the use of a chattel, without rendering any sort of recompense for it.1 When it is said that the bailee for hire is responsible for the exercise of ordinary diligence, the meaning is, that he is bound to take that care of the goods entrusted to him, which every person of common prudence, and capable of governing a family, takes of his own concerns: in other words, he is bound for that measure of diligence which prudent men of business commonly take of their own affairs.2 The rule has reference to the accustomed diligence of business men; and the word ordinary is used to denote that which is customary among prudent men engaged in the business. The rule therefore prescribes the diligence of experts, as the standard of attention and watchfulness; using the term experts as 1 Spooner v. Mattoon, 40 Vt., 300; Smith v. First National Bank, 99 Mass., 500; Lancaster Bank v. Smith, 62 Penn. St., 47; Schmidt v. Blood, 9 Wend., 268. 2 Doerman v. Jenkins, 2 Adolph. & Ellis, 256; New York Central R. v. Lockwood, 17 Wallace, 357; Goodale v. Worcester Ag. Soc., 102 Mass., 401; Gray v. Harris, 107 Mass., 492. There are many shades of care, from the merest glance of attention, to the most vigilant anxiety and solicitude; and the law endeavors to fix a rule, between the two extremes, just in its application, and graduated so as to meet the needs and circumstances of business. descriptive of persons having actual knowledge of the business, derived from experience.1 The application of the common law rule, requiring ordinary care and diligence, depends so much upon circumstances that nearly every case gives occasion for some new illustration of the rule. In its affirmative form, the rule keeps its place with the strength of the reason on which it rests; while in its negative form, involving the comprehensive subject of negligence, it is daily receiving specific applications and branching out into a multitude of rules, defining what shall be considered neglect or omission of duty under given circumstances.2 § 328. HIRE OF CUSTODY. A delivery of property to be stored or kept for hire, creates a contract of bailment and obliges the bailee to the use of ordinary care; or that degree of care called for by the circumstances. The contract is to be fulfilled according to its terms; and the custody of the property must be transferred to the bailee in order to charge him with its safe keeping. A party receiving horses to be fed and taken care of, as in a liverystable, must observe his instructions and take reasonable care of them; and in the performance of his engagement, he is liable for the acts and omissions of his agents and servants. He is not liable for the omissions or negligence of a servant, sent by the owner to feed and take care of them. His duties are such as grow out of the special contract; and he is liable as a bailee for horses received to stable and feed in that capacity-liable to the owner on whose account be received the property." 1 In certain lines of business the use of this term becomes natural, and will be found convenient; in others it fails to serve any important purpose. As generally used in the profession, the term expert means a witness qualified by his vocation or special education in some business or science, to give an opinion; and the sense of the term may be limited, so as to describe a person with reference to his experience or special knowledge. De Witt v. Barly, 17 N. Y., 340; Clark v. Baird, 9 N. Y., 183; Robertson v. Knapp, 35 N. Y., 91; see Wharton on Negligence, Chap. 2, and § 500. 2 The recent works on the subject of negligence, in England and in this country, indicate the growing importance of the theme, and the steady expansion of the law in this direction. Would it not be a better plan to discuss the law on the theory of affirmative obligation? 248. 3 Collins v. Bennett, 46 N. Y., 490. Stone v. The Western Tr. Co., 38 N. Y., 240; Berry v. Morix, 16 La. Ann., Williams v. Jones, 3 Hurl. & Colt., 256, 602. 6 Swann v. Brown, 6 Jones (N. C.) L., 150. 'Randall v. Doane, 9 Gray (Mass.), 408. The owner for whose account the horse was received, is liable for the keep. |