No. 1031. Book 2, part 2, tit. 5, chap. 2, sec. 1, § 5, art. 1. No 1034. 1031. The price or consideration for carrying goods on land is called the hire; for carrying them on water, freight. § 5. Of carriers of passengers. 1032. Carriers of passengers may be distinguished into, 1, carriers by land; and, 2, carriers by water. Art. 1.-Of carriers by land. 1033. These must be considered with regard to, 1, their obligations; 2, their liability; and 3, their rights. 1. Of their obligations. 1034. They are bound to carry all passengers who offer themselves, against whose personal character and conduct there are no just objections, provided they have sufficient accommodations, (a) and the passage money has been offered. They have no more right to refuse a passenger than an innkeeper has to turn away a guest.(b) They are also required to provide sufficient carriages, with suitable horses and harness; careful drivers of reasonable skill and good habits; not to overload the carriage, either with passengers or baggage; to take care of the baggage, which each passenger is allowed to have; to stop at the usual places and allow such time as is commonly employed for taking refreshments; to use all ordinary precautions for the safety of passengers on the road; to carry passengers to the end of their journey; to put them down at the usual places of stopping, unless there has been a special contract to the contrary, and then to put them down at the place agreed upon.(c) (a) Pickford v. Grand Junction Railway Co., 8 Mees. & Wels. 372; Jencks v. Coleman, 2 Sumn. 221. (b) Bretherton v. Wood, 3 Brod. & Bing. 54. (c) Story, Bailm. §§ 591 to 598; McKinney v. Neil, 1 McLean, 540. VOL. I. 27 No. 1035. Book 2, part 2, tit. 5, chap. 2, sec. 1, § 5, art. 2. 2. Of the liabilities of carriers of passengers. No. 1038. 1035. Their liabilities toward passengers arise from a neglect to use extraordinary care and diligence, to carry safely those whom they take in their coaches; but they are not responsible for accidents, when they use all reasonable skill and diligence.(a) For the baggage of the passengers they are liable as common carriers.(b) 3. Of the rights of carriers of passengers. 1036. The rights of such carriers are, 1, to demand and receive their fare at the time the passenger takes his seat, and if the fare be but partially paid, and the passenger does not attend at the time of departure, his seat may be given to another; but if the whole fare be paid, he has a right to come in at any place on the journey for which he has paid. (c) The carrier has a lien on the baggage of his passenger for his fare or passage money, but not on the person of the passenger, nor the clothes he has on.(d) Art. 2.-Of carriers of passengers by water. 1037. Carriers of passengers by water are in general bound by the same rules as carriers by land; and liable for the same faults both as to the person and to the baggage of the passenger. 1038. Salutary regulations have been made by congress, as to the amount of provisions or sea-stores which must be taken on board of vessels bound to or from the United States, intended for the carriage of passengers; and also as to the number of passengers which vessels may take.(e) (a) Ware v. Gary, 11 Pick. 106. (b) Hollister v. Newlen, 19 Wend. 234; Cole v. Goodwin, 19 Wend. 251; Jones v. Voorhees, 10 Ohio, 145: Hawkins v. Hoffman, 6 Hill, 586. (c) Ker v. Mountain, 1 Esp. 26. (d) Abbott on Shipp. part 3, c. 3, s. 11. (e) Act of 2d March, 1819; Act of 22d of February, 1847; Act of 2d March, 1847, s. 2. No. 1039. Book 2, part 2, tit. 5, chap. 2, sec. 2. No. 1040. § 6. Of postmasters. 1039. The post office is a public institution, established for the general good, and the officers appointed to fulfil the duties incident to it are, first, the postmaster-general, who has the superintendence of the whole department; and, secondly, deputy postmasters, officers who are located over the whole country. It is their duty to receive and send, according to direction, all letters and other mailable matters, which are delivered to them. The delivery is usually made by being dropped into a box, at the place where they hold their office. Deputy postmasters are not responsible as common carriers, (a) nor are they liable for the secret delinquencies of their sworn assistants, (b) because there has been no default of their own; but when a postmaster is guilty of allowing a person, who is not permitted by law, to act as his assistant; for example, where he allowed one to have the custody of the mail, without being sworn according to law, he is responsible for any loss that may happen in consequence, (c) as he is when guilty of negligence or fraud.(d) SECTION 2.-OF PAWNS OR PLEDGES. 1040. In this section will be examined the contract of pawn or pledge, which is the second kind of bailment for the mutual benefit of both parties. Various definitions have been given of this contract, differing but little from each other. A pawn or pledge, (for the term is used as synonymous,) is a contract by which the debtor, or some other person for him, delivers tọ his creditor, as a surety for his claim, personal property to be detained by him, which the creditor obligates himself to return to the debtor after his claim shall have (a) Rowning v. Goodchild. 3 Wils. 443; Bolan v. Williamson, 2 Bay, 551. (b) Schroyer v. Lynch, 8 Watts, 453. (c) Bishop v. Williamson, 2 Fairf. 495. (d) Dunlap v. Monroe, 7 Cranch, 242, 269; 8 Watts, 453. No. 1041. Book 2, part 2, tit. 5, chap. 2, sec. 2. No. 1041. been satisfied. (a) The thing delivered by this contract to the creditor is also called a pawn or pledge, in Latin, pignus. The party who is in debt, and delivers the thing as a security, is called the pawnor, and he who receives it, the pawnee. 1041. A pawn or pledge somewhat resembles many other contracts, but still it is not exactly like them. It is like a mortgage, because in both cases the property is given as a security; but it is unlike a mortgage in this, that in a mortgage the title to the property passes to the mortgagee, subject to an equity of redemption; while only a special property passes to the pawnee, and the title remains in the pawnor. (b) It differs from a lien, which is a mere right in a creditor to be paid out of certain property, it is only a privilege; although the property is delivered in both cases, it differs from a loan, because the thing pledged is not to be used, except under special circumstances, when it is for the (a) Pothier Du Contr. de Nantissement, art. Prél. n. 1. Mr. Justice Story, in his learned treatise on the Law of Bailments, has rejected the definition of Pothier, and adopted that of Domat, because Pothier says that the pawn is to be given "pour la sureté de sa créance," which the learned judge has translated "as security for his debt," taking the meaning of the word in a narrow sense. The word créance is not used by Pothier for debt, but for claim, or for the obligation of the person who owes either money or any other thing; and in the same treatise," Du Contrat de Nantissement," n. 11, he uses it in the sense of claim, where he says, "Il n'importe quelle soit la créance pour sureté de laquelle la chose soit donnée en nantissement." In his Pandects, liv, 12, t. 1, s. 1, Pothier says, "Le préteur ayant donc renfermé dans ce titre beaucoup de choses relatives à differens contrats, il a dû faire précéder les créances en général, puisque la matière des créances renferme tous les contrats d'après lesquels nous nous en rapportons à la promesse d'autrui, car, comme le dit Celse, le mot créance est une denomination générale." See, as to the true, meaning of pawn, 2 Bell's Com. 20, 5th ed.; Jones on Bailm. 36, 117; Dane's Ab. c. 17, art. 4; Dig. 50, 16, 2, 38; Hein. Pand. lib. 20, t. 1, §§ 2, 3, 4, 5; Ayl. Pand. 524; Story, Bailm. § 286; Coggs v. Bernard, Ld. Raym. 909, 913; Domat, partie 1, 1. 3, t. 1, s. 1, n. 1; Bowy. Mod. Civ. Law, c. 29, p. 176; Ersk. Inst. B. 3, t. 1, n. 33. (b) Cortelyou v. Lansing, 2 Caines' Cas. Er. 200; Conrad v. Atlantic Ins. Co., 1 Pet. 449; Haven v. Low, 2 N. Hamp. 13; Brown v. Bement, 8 John. 97; Fletcher v. Howard, 2 Aik. 115; Lewis v. Stevenson, 2 Hall, 63; Gleason v. Drew, 9 Greenl. 82; Ward v. Sumner, 5 Pick. 60. No. 1042. Book 2, part 2, tit. 5, chap. 2, sec. 2, § 1. No. 1042. benefit of the pawnor.(a) It differs from a deposit, because in this contract the property is delivered to the depositary to be kept for the benefit of the depositor, and in a pledge it is to be kept as a security for the payment of a claim. The difference between hypothecation and pledge is this: hypothecation does not require possession to accompany it. The case of bottomry bonds, and the claims for seamen's wages, are nearly similar to the hypothecation of the civil law; these, however, are rather liens than pledges. Another instance may be mentioned: where a chattel is not in existence, it cannot properly be pledged, because it cannot be delivered, but the creditor has a lien by way of hypothecation, so that his right will attach the moment the chattel is produced. (b) To make the contract of pawn there must be, 1, property given in pledge; 2, a claim to be secured; 3, the delivery of the thing pledged; 4, the pawnor must enter into obligations; 5, the pawnee must be liable to the obligations; and, 6, after it has been made, it may be extinguished. § 1. What property may be pawned. 1042. The term pawn, ex vi termini, excludes the idea of real estate. When lands are given as security for a debt or other obligation, the title of them is conveyed to the creditor by a mortgage. Things which may be the subject of a pledge or pawn are ordinarily goods and chattels, but money, negotiable instruments and choses in action, and, indeed, any other valuable thing of a personal nature, such as manuscripts and patent rights, may, by the common law, be delivered in pledge. From principles of public policy the pay of soldiers and mariners in the service of the government cannot be pledged. (a) Thompson v. Patrick, 4 Watts, 414. |