afterward, and the value of the goods converted is uncertain or fluctuating, it is not unreasonable to give him the value of his goods when he calls for them; nor can it be said that this rule operates inequitably towards the wrong-doer; because he received and held the goods under a contract binding him to redeliver them on demand, and cannot reasonably claim a discharge from his contract on the ground of his own previous tort. A man wrongfully takes and converts your timber into boards or shingles; and being sued in trover for the manufactured article, he cannot shew the conversion of the timber in answer to your demand for the boards or shingles; he is not allowed to antedate or carry back his wrongful act to relieve himself of its burden.1

2

§ 61. A restoration of the goods, after an act of conversion, does not take from the owner his right of action; he may still maintain the action of trover, and recover in it his actual damages. The wrong-doer cannot annul the consequences of his wrongful act by an offer to restore the chattel, or by an actual return of the property.3 The owner may still recover the damages he has sustained in consequence of being deprived of the use of his property; or even special damages, the direct and natural consequence of the wrongful act. Time lost and labor spent in searching for the property taken or appropriated, may be recovered in the form of damages. A decrease in the value of the goods from the delay, may be also recovered."

In

§ 62. It is the depositary's duty to restore the goods on demand, and where he fails to do so he is bound to render some account of them; the omission to redeliver naturally calls upon him for some explanation. The form of the action affects to some extent the burden of proof. the action of trover, an unexplained refusal to restore the goods is evidence of a conversion-evidence from which the jury may find the fact of a conversion; it is therefore sufficient to cast the burden of proof upon the defendant; and thus compel him to show a loss of the goods without fault on his part. In an action founded upon the bailee's con

' Brown v. Sax, 7 Cowen, 95; Baker v. Wheeler, 8 Wend., 505; Curtis v. Groot, 6 John. R., 168; Babcock v. Gill, 10 John., 287; Rice v. Hollenback, 19 Barb., 664; Salisbury v. McCoon, 3 N. Y., 379.

2 Reynolds v. Shuler, 5 Cowen, 323.

3 Hanmer v. Wilsey, 17 Wend., 90, 93; Otis v. Jones, 21 Wend., 394; see ante,

§ 42; 48 N. Y., 84; 50 N. Y., 17; 3 Jones & 8., 1.

4 Woodruff v. Cook, 25 Barb., 505; Bennett v. Lockwood, 20 Wend., 223. 5 McDonald v. North, 47 Barb., 530.

Rowley v. Gibbs, 14 John., 335; Suydam v. Jenkins, 3 Sand., 614.

7 2 Greenleaf's Ev., § 644, 645; Bradley v. Spofford, 3 Foster, N. H., 444. • Wellington v. Wentworth, 8 Met., 548; Collins v. Bennett, 46 N. Y., 490.

tract, the plaintiff must prove the contract and the breach or failure to redeliver; the burden of proof is then cast upon the bailee to show due diligence in the custody or keeping of the goods, or a loss of them notwithstanding such diligence; this is clearly the rule in actions brought against a depositary for hire, and the reason of the rule applies with equal force in actions against a bailee without hire.' When the property is returned in a damaged condition, that is, injured in such a way or to such an extent as does not ordinarily occur without culpable negligence, it rests with the bailee to show how the injury occurred, and that he was not guilty of the negligence that caused it.2 The rule here rests upon two grounds: first the facts relating to the injury are peculiarly within the knowledge of the bailee, and second the injury is of such a nature that it does not usually occur without negligence on the part of the custodian. It follows that the burden of proof is not cast upon the bailee where the injury is of such a nature that it might well occur in the ordinary course of things, or where the loss appears to have arisen under circumstances consistent with due diligence.*

When the trial commences the burden of proving negligence rests with the party alleging it as the ground of his action or defence; the amount of proof required to establish the fact, prima facie, depends very much upon the circumstances attending the transaction.5

§ 63. As against the true owner, the bailee holding property on deposit gratuitously, does not stand in any better condition than the bailor; since the true owner may follow and take the property in whose hands soever it may be found. Against every other person, the general principle is, that actual and lawful possession gives a right of action to the person holding personal property, for its protection. It was formerly considered that the plaintiff in such cases must show a special property

1 Arent v. Squire, 1 Daly, 347 ; Schwerin v. McKie, 5 Robertson, N. Y. S. C., 404, 419, and cases there cited; Goodfellow v. Meegan, 32 Missouri, 280.

2 Collins v. Bennett, 46 N. Y., 490, 494. In this case the horse in question was foundered and rendered worthless while in the bailee's possession; McDaniels v. Robertson, 26 Vt., 340.

3 Cairnes v. Robbius, 8 Mees. & Wels., 258; Rose v. Hill, 2 Man. Gr. & Scott, 787.

* Platt v. Hibbard, 7 Cow., 497; Watson v. Bauer, 4 Abb. Pr., N. S., 273. Lamb v. Camden & Amboy R. & T. Co., 46 N. Y., 271, 279; Russell Manuf.

Co. v. New H. S. Co., 50 N. Y., 121, 126.

6 Cook v. Holt, 48 N. Y., 275.

7 Armory v. Delamirie, 1 Str., 504; Fisher v. Cobb, 6 Vermont R., 622; Sutton v. Buck, 2 Taunt. R., 302; Miller v. Adsit, 16 Wend., 335; 5 Taunt., 579; White V. Webb, 15 Conn. R., 302.

in the goods claimed, in order to maintain the action; but that doctrine has been recently so far modified as to give the bailee, or person in possession, a right of action against all persons who wrongfully interfere with the goods.

§ 64. Wherever the goods or chattels pass into the hands of the bailee under a written contract, by the terms of which they are deliverable on demand at a particular place, the bailor cannot recover them until they have been properly demanded according to the contract; neither can he require their delivery at any other place than that specified. If no place is specified for their delivery, they are deliverable at the place of deposit, and the bailee cannot be required to produce them at any other place, unless he has voluntarily stipulated to do so. As in other cases, the contract regulates the place and mode of the redelivery, and the time or event on the occurrence of which it is to be made.

4

§ 65. Right to Use. How far the bailee's right to use the goods or chattels deposited with him goes, depends upon the circumstances of the case. If the property is bailed with the evident intention that it shall be used, its use will not impose upon the bailee any additional obligation. It is laid down as a general rule, that the depositary has no right to use the thing deposited, except in those cases where its use may be necessary for the preservation of the deposit, or where the consent of the depositor may be reasonably presumed. If he use the thing deposited, in cases where no such consent can be inferred, the bailee is answerable for all casualties. There are many instances in which this consent to the use of the subject of bailment will be presumed. The civil and common law agree, that the depositary cannot make use of the thing deposited, without the express or implied permission of the depositor. The bailee, it should seem, may use moderately a horse left in his custody; may milk a cow left in his possession, or use the books of a friend deposited in his library; such use is not injurious to the property, and is sometimes very useful for its preservation. If the bailee derive profit or advantage from such use of the property deposited with him, he is at least under the civil law, answerable for the value of such use; the effect of such use must, therefore, under that law operate to change the nature of the

1 Templane v. Case, 10 Mod. R., 25; 5 Mass. R., 304; Hoyt v. Gelston, 13 John. R., 151, and 14 do., 131.

2 Brown v. Cook, 9 John. R., 361; Phelps v. Bostwick, 22 Barb., 314.

3 De Fouclear v. Shottenkirk, 3 John. R., 170.

41 Cowen's Trea., 71, 3d ed.; Beach v. R. & Del. Bay Co., 37 N. Y., 457; 46 N. Y., 490.

"Code of Louisiana, Art. 2911; Bac. Abr. Bailm. D. ; 2 Kent's Comm., 568, 6 Story on Bailm., § 83; Jones on Bailm., 81.

contract into a bailment for hire, thus enhancing the degree of care and diligence required of the bailee.

§ 66. The naked depositary ought neither to be injured nor benefited in any respect by the trust undertaken by him; in an emergency, he has an implied authority to incur expenses on behalf of the owner for the preservation of the property; and where he is himself at some expense in keeping the property deposited with him, he may without doubt make use of it in a reasonable manner by way of compensation for the charge.1 Is his liability increased by reason of his making use of the deposit, the use being less in value than the expenses incident to its custody? The bailment here is not wholly gratuitous, and yet on the whole the bailee acquires no advantage from it; he is but partially paid for his services. It seems, however, that he is bound to the use of ordinary care; the related rules of law give strength to this impression.3

Where the thing deposited is of such a nature that it imposes no charge upon the depositary in the keeping of it, as in the case of a deposit of jewels, no doubt can arise; if the bailee wear them, he will be liable for their loss; liable because he exposed them to the danger of loss, and by so doing was guilty of an act of conversion.

§ 67. A deposit of articles shut up in a box, or under a sealed cover, should not be examined by the depositary, since he should not seek to know what the depositor has concealed from him. If the things deposited be locked up in a box or chest, or enclosed in a wrapper under seal, this circumstance would imply that they are not to be used; books, jewelry, plate or pictures deposited in this manner should be retained carefully in the condition in which they are received. So also if the goods are of such a character as to be impaired by usage, they must not be used; since it cannot be presumed that the owner intended to place them at the disposal of the depositary for his own advantage. The presumption would be different with respect to such things as would be very little if at all injured by use, as books left with a friend neither boxed nor locked up, in the use of which even moderate care would prevent them from being injured. Still the general doctrine seems to be that the deposita

1 Herter v. Blanchard, 8 Albany Law Journal, 12, 13; 64 Barb., 617, opinion by Smith, J.

2 Newhall v. Paige, 10 Gray (Mass.), 366.

3 Sinedes v. Utica Bank, 20 John. R., 372; 3 Cowen, 653; Bank of Utica v. McKinsler, 11 Wend., 473; Robinson v. Smith, 3 Paige, 222; 1 Edw. Ch., 513,

543.

Code of Louis'ana, Art. 2914.

Story on Bailments, § 90.

6 Jones on Bailment, 81; Ld. Raym., 917.

ry, who uses the thing bailed with him, is responsible if it be lost or injured while it is so used; the use so far affects the contract as to make it partake of the nature of a loan, and thus casts upon the depositary the increased responsibility of the borrower, who must answer for any accident which a very careful and vigilant man could have avoided. If the use be without either the express or implied consent of the depositor, the law is that the depositary is liable in any event of loss or damage; he becomes thereby guilty of such a violation of his contract or trust that he must answer for any and every mischance. Such authorized use of the goods for his own convenience, by which they are exposed to the dangers of injury or loss, justly imposes on the bailee the duty of answering for them in any event.1

§ 63. The person making a deposit must reimburse the depositary the money he has advanced for the safe keeping of the thing, and indemnify him for all the deposit has cost him. He must also indemnify the depositary for the losses which the thing deposited may have occasioned him; this is the rule of the civil law, and it should seem to be equally good at common law. Under the civil law such advances or losses became a lien upon the chattels in deposit, but at common law no lien attaches for such a demand; it is, it would appear, only a right of action, though it would doubtless be more equitable to allow a lien in such cases. If the bailee come into the possession of the property by finding, and the owner offers a reward for the restoration of it to him, the reward becomes a lien on the property.*

§ 69. The bailee has no right to pledge goods deposited with him for an advance of money; that is a use of the property not authorized by law, in direct violation of his contract. The owner in such a case may follow and recover the property in whose hands soever it may be found. The action of trover lies against the person in possession, who refuses to deliver up the goods, and thereby converts them to his own usc. The transfer to him being wrongful, he acquires no greater right over the property than was possessed by the original bailee. Whatever special property the bailee acquires in the goods, his right and control over them are limited by the terms of the contract under which he has them in custody. He has, it should seem, only a possessory interest in them," and

1 3 Atk. R., 44.

2 Code of Louisiana, Art. 2931; Jones on Bailm., 47.

3 Story on Bailm., § 121; Nicholson v. Chapman, 2 H. Black. R., 254 ; Amory

v. Flyn, 10 John., 103; 61 Barb., 617.

4 Wentworth v. Day, 3 Mete. R., 325.

3 Atk. R., 41, Hartop v. Hoare; 5 Mass. R., 303, Waterman v. Robinson. 6 Commonwealth v. Morse, 14 Mass. R., 217.