This requires caution, as the pledgee must see that all the rights of the pledgor are secured to him. He should first, in all cases, demand payment or performance, of the pledgor; this he should do, though the debt is overdue, and though, by the express terms of the pledge, he is authorized to sell at public or private sale without notice to the pledgor. After demand and refusal, he may file his bill in equity, and obtain a judicial decree of sale; or, if he prefers it, may proceed more summarily by selling without judicial process, upon giving reasonable notice to the debtor.

He can in no case become owner of the pledge. His only remedy against it is, to sell it and apply the proceeds to the payment of the debt. Nor can he become the purchaser of the article pledged, upon its sale. The law secures to the pledgor a fair sale of his property, by preventing the pledgee from being in any manner interested in its purchase.

Upon sale, he may apply of the proceeds a sufficient amount to pay his debt, interest and expenses, and must account to the pledgor for the balance. If, where the pledge is of greater value than the debt, the pledgee should attempt a practical appropriation of it, in payment of the debt, by refusing to sell it, the pledgor would have relief in equity, and could obtain a decree of sale and payment of any surplus to himself.

The contract of pledge may be discharged, by payment of the debt, by the destruction or loss, without fault, of the thing pledged, or by a waiver of his rights by the pledgee, as by giving possession of the article.

SECTION 6.

Of Hiring and Letting for Reward.

This is a contract by which the use of a thing, or labor upon it, are stipulated to be given, for compensation, expressed or implied.

We will consider, FIRST, Contracts for the use of a thing. These are among the most frequent contracts in daily life. It has familiar illustration in the hiring of a horse and carriage at a livery stable. There is usually an express con

tract, which not only stipulates for the compensation, but limits the time and purpose, for which the thing hired is to be used. The lettor is bound to furnish an article reasonably adapted and competent to the uses stipulated for. For example: if a man apply to a stable keeper for a horse to perform a journey of fifty miles in a single day, and the stable keeper upon such an application should let a horse for that use, he would be liable in damages if he has good reason to believe that the horse furnished cannot perform one half the journey.

The hirer is bound to ordinary care and diligence, and is answerable only for want of common diligence; this species of bailment being like a pledge, one of mutual benefit.

He is bound, to use the article with proper care, to apply it to no other use than that stipulated for, and to return it at the expiration of the period for which it was hired.

If the article be used for a purpose other than that for which it was hired, the hirer will be liable for any damage which it may receive. The appropriation of an article hired, for any other purpose than that stipulated for, will generally amount to a conversion of the article; and the lettor may refuse to receive it on its return, and demand its value of the hirer. As, where a horse was let to an infant, to be driven from Boston to Salem, on Sunday, and the hirer drove him to Gloucester, he was held liable, in an action of trover, or trespass, for the wrongful appropriation of the horse, although, as an infant, he would not have been responsible upon his contract for him.

It follows, from the statement that the hirer is bound to bestow only common diligence, (that is, the diligence which every man of common prudence bestows upon the care and keeping of his own property), that, if the property is in any manner injured while in the custody of the hirer, he, exercising such diligence, is not responsible therefor.

As, if a horse break from a reasonable fastening, or a carriage be overturned or driven against, with reasonably careful guidance the hirer would not be responsible.

If the article be lost or damaged, by the hirer or those act

ing under him, from want of common prudence, he is answerable.

If a horse let for a journey become lame, without fault of the hirer, and is unable to perform the journey home, the owner must pay the expense of his care, and doctoring, and of his return.

SECOND. Another species of hiring is, where the labor and services of others upon an article is the subject of hiring. As, where furniture is sent to a workman to be upholstered or repaired. The article is, of course, liable to be destroyed by accident, or to perish from its own intrinsic defect; the loss in such a case falls upon the owner of the article, where it occurs without fault or want of diligence on the part of the workman. Whether he can recover compensation for his services upon the article so destroyed depends upon the nature of the contract.

If it be so made, that he is to complete his work before payment, and receive a specified sum therefor, and the article is destroyed by fire or other casualty before the work is completed, he can recover nothing. The article being destroyed, he can never fully perform that which was to precede payment.

This species of bailment, being also for the mutual benefit of the parties, only ordinary diligence is required in the care of the property. But where the labor to be performed upon the article requires skill in the performance, and the party employed professes to be competent to the undertaking, he, impliedly if not expressly, stipulates to apply a degree of skill equal to the task. If he performs the service unskilfully, he not only is entitled to no compensation, but, if damages are sustained, he becomes responsible therefor. The degree of skill stipulated for, is that possessed by a majority of persons employed in the business or profession.

In some instances, as in the case of surgery, he must follow settled rules of professional practice. Ordinary skill in that profession has been defined by the Supreme Court of New Hampshire as being, " that degree and amount of knowledge and science, which the leading authorities have an

nounced as the result of their researches and experience, up to the time, or within a reasonable time before, the question to be determined is made."

Every man is presumed to possess the ordinary skill requisite to the proper exercise of the profession, art or trade, which he undertakes. No general rule here can be laid down; but the degree of skill and diligence required increases in proportion to the value of the article to be operated upon, and to the delicacy and difficulty of the undertaking. Nothing can, however, in any case, be legally required, beyond the ordinary or average skill in the profession or business, to which the person employed belongs; and where the bailee or person employed does not profess, and is known by the employer not to possess skill in the business, he is responsible only for the reasonable exercise of the capacity and knowledge which he actually has.

An important question sometimes arises, as to the rights of a person so employed, where the work fails of completion through his fault or neglect. The answer to this depends upon the nature of the contract.

If the employer derives no benefit from the labor performed, the bailee is clearly entitled to no compensation; and where a person agrees to erect a building upon the land of another, on a specified plan, and with certain materials, and he departs from the special terms of his contract, by following a different plan or using other materials, it has been held that the builder is entitled to no compensation.

Wharf owners, warehouse men, forwarding merchants, and agistors of cattle or other stock, all come under this head of bailments, and are severally responsible only for good faith, ordinary care, and reasonable diligence, unless the duty of common carriers be attached to their other business or character.

SECTION 7.

Of Common Carriers.

A common carrier is one who, as a regular business, undertakes, for hire, to convey and deliver the goods of such persons as may employ him.

The occasional transportation of goods, upon special contracts, does not render one a common carrier. To give him that character, he must be a person, whose position in reference to the public implies a continual offer to carry goods, generally, and for every person, upon being paid a reasonable reward.

Familiar illustrations of the common carrier are expressmen, railroad companies who transport goods, truckmen, proprietors of stage-coaches who carry goods for hire, and other persons or corporations similarly employed.

What specially defines and sets them apart is, that they all carry for hire, without making a particular contract upon each occasion of service. This is by far the most important of all the species of bailments. From a very early time, the common carrier has been held to a stringent and onerous responsibility. He is in the nature of an insurer, and is answerable for every form of accident, including even destruction of the goods by fire without his fault, and theft or robbery. He is responsible for all losses, not coming within the special exception of the act of God, (meaning inevitable accident, as a stroke of lightning, or other act occurring without the intervention of man), and public enemies.

This has been the general and established rule of the common law, in this country and in England, for ages, and the rule is intended to guard against fraud and collusion. It is founded on public policy and convenience, arising out of the ease with which a carrier, having entire control of goods, frequently of great value and far removed from personal supervision of the owner, might fraudulently collude with a robber, make sale of the goods, and appropriate the proceeds, or in some other way cheat and defraud the owner; and the extreme difficulty which there would be of making proof against him.