ing that of another. The sin of commission may still be punished by the imposition of damages, though the sin of omission may not be. Though, therefore, at the common law the contracts of a married woman were entirely void and those of an infant were generally voidable, both the married woman and the infant could be held liable in a tort action for willfully destroying, injuring, or misappropriating that which had been entrusted to them. So, too, although it is plain that one cannot be held liable in damages for the failure to carry out a promise to become a gratuitous bailee, it is equally plain, that, when once the service has been undertaken, and the goods have been entrusted, the conditions are changed, and the mere act of entrusting becomes a sufficient consideration on which to base the contract of bailment.

Although the contract of bailment is usually an implied one, it is never so implied without the foundation of a positive duty or an express contract. One may, it is true, become a bailee fortuitously or by mistake, and assume the relationship of bailee involuntarily, but this will only be where his "holding out” in the past has been such as to imply and to create the duty, and where he would, as it were, be estopped from denying it. A storekeeper, for instance, who by his conduct and the nature of his business invites persons to come to his store and to lay aside one garment to try on another, and to leave such garment temporarily while going to a looking glass or some other part of the store, owes a duty to exercise some care to prevent the garment so laid aside from being stolen or lost. Since, indeed, a benefit accrues to him from the trying on of the garments and a sale is generally anticipated, he is nothing more nor less than a bailee for hire and is liable as such provided that such articles are at the time when taken beyond the immediate control of the customer. The leaving, or taking off, however, must be actually or impliedly invited, and the one sought to be held as bailee must know of the leaving or taking off, and of the trust impliedly imposed in him; or such taking off or leaving must be so

much a custom and necessity of the business transaction as reasonably to imply the knowledge.

It was held, indeed, in an early case, and rightly, where the plaintiff entered the saloon of a hotel to get refreshments late at night and left his opera glass behind, but it did not appear where, and the next morning when he called for it it could not be found, that the saloon-keeper was in no wise liable, as it did not appear that the defendant or any of his servants ever received or even saw the glass, nor did it appear that it was parted with, either by their express or implied invitation or consent, or that the parting with the possession and immediate personal control of the opera glass was reasonably necessary to the transaction of drinking. It is also to be borne in mind that an absolute title or ownership of, or in, the thing bailed is not necessary in order that one may be a bailor. All that is necessary, indeed, is a possessory right; and since, as we shall hereafter see, the bailee may not dispute the title of his bailor, and the finder of lost articles is entitled thereto as against all of the world but the true owner, it has been said that even a thief may be a bailor.

§ 8. The Subject Matter. Not everything can be the subject of a bailment. It must be personal property. It may be either corporeal or incorporeal personalty, but it cannot be real estate. It was once considered that it must itself be physical in its nature and capable of a manual delivery and of physical change of possession or handing over. It has been thought, indeed, that that which could be the subject of larceny could alone be the subject of a bailment. But this, if ever, is now no longer the fact. Stocks and bonds, debts, negotiable and non-negotiable paper, insurance policies, legal and equitable interests in personal property, and choses in action, generally can, now at any rate, be the subject of a bailment, provided that the interest or thing bailed can be put by actual delivery or by written transfer into the hands or within the power of the bailee or pledgee so as to be made available to him for the purpose of the trust or the satisfaction of the debt. The

article or thing, or chose in action, however, must, in order to be the subject of a pledge or other bailment, be in actual or potential existence at the time, and the bailor or pledgor must at the present time be entitled to the possession of that which he pledges or bails. Though, therefore, a person may effectually pledge the wool which is to grow upon the backs of his own sheep, as it has a potential existence, that is to say, will grow in the natural course of events, and the bailor is entitled to the possession of the sheep which will grow it, he cannot effectually pledge the wool which is to grow upon the backs of sheep which he does not own at the time of the pledge, or the crops to be grown upon the land of another in which he has no present interest. A distinction should, however, be made between a pledge or other bailment and a contract for a pledge or a bailment.

There is nothing to prevent a person from making a contract to pledge or to bail that which he does not at the time possess, and, though by it no bailment or pledge is presently created, he will be liable in damages to the contemplated pledgee or other bailee, if, when the time arrives for fulfillment and delivery, or when he comes into possession of the article, he fails to deliver the same and to consummate the bailment or hypothecation. So, too, it would seem that, in extreme cases, a court of equity will enforce a fulfillment of the agreement when the proper time arrives and it can be done without injustice to others, and when a mere action in damages would give a palpably inadequate relief.2 In every case, however, before an actual pledge can exist and the property be protected against bona fide creditors of the pledgor, who have no notice of the secret agreement, possession of the pledged article, or of the sheep, or other animal, whose product or increase it is, must have first been taken by the pledgee.

§ 9. Bailments, Sales, and Chattel Mortgages Distinguished. The distinction between a bailment and a sale or

2 See note to Fenville v. Casey, 4 Am. Dec. 559; McCaffrey v. Woodin, 65 N. Y. 459, 22 Am. Rep. 644; Benjamin on Sales, § 78; Keiser v. Topping, 72 Ill. 226.

barter lies in the fact that in the sale and the barter there is no agreement or obligation to redeliver the chattel, but merely an obligation to pay therefor, in money or in goods. The essential difference between a mortgage and a pledge (which is a bailment) as a matter of form is, that in one case the title passes and in the other that it does not, and that the mortgage is usually, upon its face, at least, an absolute sale subject to a defeasance in case of the payment of the debt in the manner and within the time agreed upon. The difference in substance and in fact is, that in the case of a pawn or other bailment the possession of the article must pass from the pawner or bailor, while in the case of the mortgage it need not. There can indeed be no bailment where there is no change in the right of possession and no express or implied agreement to redeliver. So, too, in order that there shall be a bailment it is necessary that, although the right of possession may pass for the time being to the bailee, the title or ownership shall not. When, therefore, the title to property passes with a right in the vendor to rescind it for cause, or on the failure of some condition either precedent or subsequent, the transaction is a conditional sale and not a bailment, and in case of loss, the loss would fall on the vendee.

§ 10. The Property Rights and Interests of the Bailor. We have before seen that, although the immediate right of possession and a special right of property is in the bailee, the title to the chattels does not pass, and the general right of property and of ultimate possession is in the bailor. This right or interest he may sell, give away, or otherwise dispose of, and the bailee, after receiving notice of such a transfer, must yield thereto, and will, thereafter, be the bailee of the assignee, grantee or transferee. Notice of the sale to the bailee in possession is sufficient to work a change of the general right of property and of the ultimate possession to the vendee; and an actual delivery of the goods to the latter is unnecessary even as against attaching creditors of the vendor. The bailor has, of course, the right to insist upon the fulfillment of the

terms of the bailment and upon a termination of the relationship, and a return of the goods to him in the case of a violation of material provisions; and any act of the bailee which is inconsistent with the bailment, such as a sale or the use of the property for a purpose not authorized by the contract, will entitle the bailor to sue for the possession or value thereof without the formality of any prior demand. So far, indeed, have the courts gone in this particular that it has been held that where plaintiff loaned his bailee a horse to retail fish, but not beyond a certain town, and the horse was seized upon an execution against the bailee at a point beyond the town where the latter had wrongfully driven it, the bailor was constructively in possession of the animal and could maintain an action of trespass against the attaching creditors, and this, in spite of the well-known rule that the action of trespass will not lie except where the plaintiff has an immediate right to the possession of the article. So, too, it is generally held that if property is loaned to another for an indefinite term, the one who owns it may maintain trespass against him who takes it tortuously from his bailee, as the bailor could, upon a demand to his bailee to deliver up the property to him, terminate the bailment, and maintain an action of trover therefor.

§ 11. The Duties and Liabilities of the Bailor. One who hires property to another for use impliedly warrants that the same is reasonably capable of that use or service and is liable in damages if the contrary is the fact. He is also held to the exercise of at least ordinary care in seeking to ascertain before such hiring if the article hired is in a safe condition and repair. A livery stablekeeper, for instance, is required to inspect his harnesses and buggies and to use reasonable care in putting them in a safe and usable condition; or, at any rate, is required to warn the hirer that the same have not been so inspected. So, too, the bailor of animals or of dangerous machinery is required to warn the hirer and even the gratuitous bailee who reaps all the advantage from the transaction, of any vicious 3 Root v. Chandler, 10 Wend. (N. Y.) 110; 25 Am. Dec. 546.