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strictly speaking no right of property. The law gives him an interest sufficient to carry out and accomplish the purposes of the contract,' which extends to the defence of the property by action against any and all persons who may interfere with it, but does not include the right to bestow it or make use of it in any way not evidently contemplated by the parties to the contract of bailment.

§ 70. Goods in the possession of one who has only the custody of them for the time being, as where they are in the keeping of the owner's servant, and he delivers them for safe keeping into the hands of a depositary, must be redelivered to the owner on demand. Until a demand is made or notice given, the depositary will be protected in the act of restoring the goods to the person, from whom he received them; this at least is the principle of the civil law, under which the bailee, if he discover that the goods were stolen, or who the true owner of them is, must give notice to him of the deposit, requiring him to make his claim in due time. If this is not done, he is at liberty to restore the goods to the bailor. At common law the owner of stolen property may follow it and retake it in whose hands soever it may be found. Though possession of personal property is prima facie evidence of title, it may be overcome by positive testimony; and since on every sale of personal chattels there is an implied warranty of the title to them, the remedy of the innocent purchaser of stolen property is by an action against the vendor. The title of the owner cannot be divested by the action of third persons without his concurrence or such neglect on his part as induces the purchaser to part with value for the same. An exception to this general rule exists in England, in respect to sales made in market overt; but the exception is not recognized in this State.*

Even an auctioneer who sells stolen goods is liable to the owner in an action of trover, notwithstanding the goods are sold and the proceeds paid over to the thief without notice of the felony.5 The exception in England, just mentioned, founded on a custom which prevailed principally in the city of London, has always been regarded and restricted by the courts, with unusual jealousy and vigilance. In the origin of the custom, sales in fairs or markets overt were regulated with great strict

1 Giles v. Grover, 6 Bligh R., 277; Story on Bailment, § 93.

2 Code of Louisiana, Art. 2921.

3 Cowen's Trea., 3d ed., 329; Rogers v. Weir, 34 N. Y., 463, 468. See case just decided, Lawrence v. Maxwell, Ct. Appl.

4 Hoffman v. Carow, 20 Wend. R., 21; S. C. 22 Wend., 285.

20 Wend., 21; 48 N. Y., 84, 92; 31 N. Y., 490; 4 Daly, 539.

6 Wheelright v. Depeyster, 1 John. R., 480.

ness, so as to give to them the utmost publicity and surround them with every circumstance of openness and fair dealing. As we have in this State no such market, sales here have no other effect than mere private sales in England.2

§ 71. The rule is different where property has been acquired by a fraudulent purchase, which, though void as between the parties, confers upon the vendee the possession of the property and thereby enables him to dispose of it to a bona fide purchaser for value. In this case the purchaser in good faith holds by a title superior to that of the original owner; since by parting with the possession he has armed the fraudulent vendee with the evidence of title, and thus enabled him to appear as the owner in a sale of the property. He has made a delivery with an intent to pass the title, and after that he is not permitted to follow and retake the goods from the hands of an innocent purchaser, or pledgee who has made advances upon them in good faith.*

§ 72. It is seldom that a depositary can defend himself from liability by showing a delivery to a wrong party; because as a general fact he knows or has the means of ascertaining the true owner. Prima facie therefore he is liable for a misdelivery, like a bailee for hire. The return of the goods to the owner is so essential in the discharge of his obligation, that the law will not lightly excuse the bailee from its performance; but where the goods came into his possession through the owner's neglect, and he does not know to whom they belong or by whom they were left, it seems he discharges his duty by the exercise of all reasonable care and vigilance in the delivery of them to a claimant, describing so as to identify the goods." As a gratuitous bailee he is not liable for the goods where they are lost without gross negligence on his part; but while it may be possible for him to excuse a loss by a misdelivery, where he is not chargeable with want of due care; it is

12 Black. Comm., 449, 450.

Mowrey v. Walsh, 8 Cowen R., 238.

Andrew v. Dieterick, 14 Wend. R., 31.

✦ 14 Wend. R., 31; 8 Cowen R., 238; Root v. French, 13 Wend. R., 570. Coffin v. Henshaw, 10 Ind., 277; James v. Greenwood, 20 La. Ann. R., 297; Nelson v. King, 25 Texas, 655; Esmay v. Fanning, 9 Barb., 176; Brandon v. Scott, 40 Eng. Law & Eq., 105; Colyar v. Taylor, 1 Coldwell (Tenn.),

372.

6 Morris v. Third Ave. R. Co., 1 Daly, 202. In this case the railroad company, taking up a satchel left in a car, was treated as a bailce for hire; and a verdict was rendered against the company for the property on the ground of a want of due care, notwithstanding the satchel had been honestly delivered to a claimant. Taber v. Gardner, 6 Abb. Pr. N. S., 147.

quite clear that in the affirmative duty of redelivering the goods, he must act with prudence and discretion.'

§ 73. The law always aids the true owner to recover his property; and it is a general rule that the bailee cannot dispute the title of his bailor. When therefore the bailee is applied to for the property by a third party claiming title, his prudent course is to leave the claimant to his action, and at once notify his bailor of the suit; he is not obliged to bear the burden of a litigation; and it is not safe for him to surrender the property on demand. For nothing will excuse a bailee from the duty to restore the property to his bailor, except he show that it was taken from him by due process of law, or by a person having the paramount title, or that the title of his bailor has terminated. By surrendering the property on demand to a third party, the bailee assumes the burden of establishing the title he thus acknowledges.

1 Skelly v. Kahn, 17 Ill., 170. In this, a case of mandate, the bailee was 'not allowed to excuse the loss of a sum of money by showing that he handed it to a boy for delivery. A carrier cannot excuse a misdelivery, by showing an honest delivery on a forged order. Powell v. Myers, 26 Wend., 591.

2 Welles v. Thornton, 45 Barb., 390.

3 Bates v. Stanton, 1 Duer, 79; Van Winkle v. U. S. Mail S. Co., 37 Barb., 122; Bliven v. Hudson R. R. Co., 35 N. Y., 403; 35 Barb., 191; Burton v. Wilkinson, 18 Verm. R., 186; Aubery v. Fiske, 36 N. Y., 47; McKay v. Draper, 27 N. Y., 256.

CHAPTER III.

GRATUITOUS COMMISSIONS OR MANDATES.

§ 74. Nature of the Contract. The difference between a contract of bailment by deposit without reward, and that species of contract known as a mandate, is not very broad, and does not so much concern the nature of the contract as the mode of its performance. A mandate is a bailment of goods without reward, to be carried from place to place, or to have some act performed about them. The leading case of Coggs v. Bernard,' decides, that where a man undertakes to carry goods safely and securely, he is responsible for any damage they may sustain in the carriage through his neglect, though he was not a common carrier and was to have nothing for the carriage. An executory contract of this kind cannot be enforced, since it wants a consideration to support it; it is an agreement to perform an act in the future, without any compensation promised or received, and it cannot be enforced in an action. But when the contractor actually enters upon the performance of the work contracted to be done, he is bound to perform it in a careful and workmanlike manner, and is responsible for neglect. A negligent performance of the undertaking by which the property is injured creates a liability for the loss occasioned. The owner's trusting the bailee with the goods, is held a sufficient consideration to oblige him to a careful management.

§ 75. Subject of the Contract. The subject matter of the contract of mandate, as in the contract of bailment by deposit, must be personal property, the custody of which is, for the time being, given into the hands of the mandatary.2

In the civil law, the contract might arise in respect to real property, as well as in cases where no property at all was concerned. What we term an agency, or a contract to perform certain specific work, was

12 Ld. Raymd., 909-913; Jones on Bailm., 53; 2 Kent's Comm., 569. In the case of a mandate, the labor and services are the principal objects of the parties, and the thing is merely accessorial.

2 Story on Bailm., § § 144, 145.

termed mandate in the civil law; and the contract included a great variety of undertakings with respect to property, the custody of which was not transferred. A gratuitous agency constituted the contract, as to purchase a given piece of property, or to perform a particular piece of work. The obligations involved, were similar to those imposed by our law under the same circumstances, but the classification is different.

§ 76. The Code of Louisiana makes the contract of mandate to arise in five different manners: for the interest of the person granting it alone; for the joint interest of both parties; for the interest of a third person; for the interest of such third persons and that of the party granting it; and finally for the interest of the mandatary and a third person. It is in form and effect a commission given by the mandator to another to transact for him and in his name, one or several affairs. The object of the mandate must be lawful, and such as the mandator has the right to accomplish, and the contract is completed only by the acceptance of the mandatary. Unless a compensation is agreed upon, the services are presumed to have been rendered gratuitously. In fact, the services are generally compensated under the Code of Louisiana, as is manifest from the great variety and matters of agency comprehended under this contract. In general, whatever may be committed to another by a procuration or power of attorney, is there embraced under the contract of mandate, sometimes in general terms to include all affairs, and again limited to one affair alone.

In respect to the performance of this contract, the mandatary is under that code responsible not only for unfaithfulness in his management, but also for his fault or neglect. But his responsibility with respect to faults is enforced less rigorously against the mandatary acting gratuitously, than against him who receives a reward.2

A broker is by the same law classed as a mandatary, who is employed to negotiate a matter between two parties, and is for that reason regarded as the mandatary of both, to whom he owes the same fidelity. His obligations and duties do not seem to differ very greatly from those imposed upon brokers and auctioneers under the common law.*

The compass of this contract under the civil law, it is evident from what has been said, embraces a much wider range of subjects and relations than are incident to the contract of mandate at common law. We

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