if he can reasonably do so, the bailee must notify the bailor of the commencement of any such legal proceedings, in order to give the bailor opportunity to make a suitable defense."2

It is, of course, a perfect defense for the bailee to show, when sued by the bailor, that he surrendered the goods, even without suit, to the person rightfully entitled to receive them.93 As we have seen, the estoppel of the bailee to deny his bailor's title has no reference to such a case. This rule of estoppel applies only when the bailee sets up the adverse title for the purpose of keeping the goods himself, and not to cases in which the bailee has yielded to the superior rights of another. The estoppel provided for in the rule ceases when the bailment on which it is founded is terminated by what is equivalent to an eviction by title paramount."*

92 Scrantom v. Farmers' & Mechanics' Bank of Rochester, 24 N. Y. 424, 427; POWELL v. ROBINSON, 76 Ala. 423, Dobie Cas. Bailments and Carriers, 33. 98 Gerber v. Monie, 56 Barb. (N. Y.) 652. But he takes the risk of showing that such person had a good title. Foltz v. Stevens, 54 Ill. 180; Dodge v. Meyer, 61 Cal. 405; Maxwell v. Houston, 67 N. C. 305. The bailee may show in defense that the bailor obtained the property from the real owner feloniously or by fraud. Bates v. Stanton, 1 Duer (N. Y.) 79; King v. Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 420; Kelly v. Patchell, 5 W. Va. 585. Where a bailee is sued in trover by the real owner, and compelled to pay the value of the goods, he may assert the title thus acquired in defense to an action of his bailor. Cook v. Holt, 48 N. Y. 275.

94 Western Transp. Co. v. Barber, 56 N. Y. 544; Burton v. Wilkinson, 18 Vt. 186, 46 Am. Dec. 145; Wallace v. Matthews, 39 Ga. 617, 99 Am. Dec. 473; Bliven v. Hudson River R. Co., 36 N. Y. 403; King v. Richards, 6 Whart. (Pa.) 418, 37 Am. Dec. 420; Stephenson v. Price, 30 Tex. 715, 717. A bailee cannot, in an action brought against him by his bailor, set up the title of a third person, except by the authorization of that person. Dodge v. Meyer, 61 Cal. 405. A bailee may not set up the claim of the true owner when the true owner has abandoned such claim. Betteley v. Reed, 3 Gale & D. 561. Although, in certain cases, a bailee may set up the jus tertii, yet, if he accepts the bailment with full knowledge of an adverse claim, he cannot afterwards set up the existence of such a claim as against his bailor. Ex parte Davies, In re Sadler, 19 Ch. Div. 86. One borrowing property on promise to return it cannot release himself from his promise by purchasing a title adverse to that of the lender. Nudd v. Montanye, 38 Wis. 511, 20 Am. Rep. 25. A bailee is not permitted to dispute the title of his bailor, but he may show that the bailor has assigned his title to another, since the property was intrusted to him. If legally assigned, and the bailee has notice of the fact, the bailee must account to the assignee. The rule that a bailee should not attorn to a stranger does not apply; the assignee is not a stranger. Roberts v. Noyes, 76 Me. 590. See, also, Biddle v. Bend, 6 Best. & S. 225, 233; Shelbury v. Scotsford, Yelv. (3d Ed. Translated) 23; Betteley v. Reed, 4 Q. B. 511, 517; DAVIS v. DONOHOE-KELLY BANKING CO., 152 Cal. 282, 92 Pac. 639, Dobie Cas. Bailments and Carriers, 29.

TERMINATION OF THE BAILMENT

20. The bailment may be terminated by:

1. Act of the parties.

(a) By full performance of the bailment purpose or expiration of the time for which the bailment was created. (b) By mutual consent of the parties in all cases, and in some bailments at the option of one of the parties.

(c) By the bailee's wrong, at the option of the bailor.

2. By operation of law.

(a) By death of bailor or bailee, in some instances.

(b) By change of legal status of the parties, in some cases. (c) By destruction of the bailed goods.

The question of the termination of the bailment is discussed at some length under each separate class of bailments; but a brief statement is here made applicable alike to all bailments. In this connection, it might be noted that in many works on bailments not a little inaccuracy is found as to the termination of the bailment, as a result of attempts to formulate broad rules applicable to all bailments, which fail to notice essential distinctions between the various classes of bailments. As to the various ways in which the termination of the bailment may be effected, a clear distinction is seen between those ways which are (1) the positive acts of the parties themselves, and those ways in which (2) the law declares the bailment ended as a result of changed conditions brought about usually without regard to their effect on the bail

ment.

Performance or Expiration of Time

When the purpose of the bailment is fully accomplished," or when the time expires for which the bailment was created, the bailment in all cases comes to an end. The bailment thus ceases by natural limitations imposed upon it in its inception. This is, of course, true of all bailments.

95 Lay's Ex'r v. Lawson's Adm'r, 23 Ala. 377; Chattahoochee Nat. Bank v. Schley, 58 Ga. 369; Morse v. Androscoggin R. Co., 39 Me. 285; New York, L. E. & W. R. Co. v. New Jersey Electric Ry. Co., 60 N. J. Law, 338, 38 Atl. 828; Ouderkirk v. Central Nat. Bank of Troy, 119 N. Y. 263, 23 N. E. 875.

* Cobb v. Wallace, 5 Cold. (Tenn.) 539, 98 Am. Dec. 435; Benje ▼. Creagh's Adm'r, 21 Ala. 151.

Consent of the Parties

The parties who created the bailment can alike destroy it. Any bailment can therefore be terminated by the mutual consent of both bailor and bailee." The relation concerns the parties thereto; the law, therefore, has no reason for keeping alive the relation when both the parties concerned wish to bring it to an end. The same result is reached when, without expressly consenting to the termination of the relation, both bailor and bailee consent to the assuming. of some relation towards the goods which is inconsistent with the continuance of the bailment.

Some bailments may be terminated at the option of the bailor alone, some may be ended if the bailee so chooses, while still others can rightfully be terminated by neither party without the consent of the other. The termination of the bailment at the option of one of the parties can be accurately discussed only in connection with the specific classes of bailments.

Bailee's Wrong

It is a general rule, applicable to all bailments, that the active wrong of the bailee does not of itself operate to bring the bailment to an end, but merely gives the bailor the right to terminate the bailment if he so desires. Thus, when the bailee transcends the contemplated purpose of the bailment and uses the bailed goods for a purpose utterly different from that stipulated in the bailment contract, or when the bailee grossly misuses the goods, this immediately confers on the bailor the option of terminating the bailment.98

Death or Change of Legal Status in the Parties

The effect of death, or a change of legal status on the part of the bailor or bailee, such as bankruptcy or insanity, varies widely according to the nature of the bailment. Under each of the three great classes of bailments, the question is treated at some length. Any attempt to formulate any general rules on the subject, common to all bailments, would tend to confusion rather than clearness."9

97 Story, Bailm. §§ 418, 418a; New York, L. E. & W. R. Co. v. New Jersey Electric Ry. Co., 60 N. J. Law, 338, 38 Atl. 828; Minturm v. Stryker, 1 Edm. Sel. Cas. (N. Y.) 356.

98 Wentworth v. McDuffie, 48 N. H. 402; Green v. Hollingsworth, 5 Dana (Ky.) 173, 30 Am. Dec. 680; BARRINGER v. BURNS, 108 N. C. 606, 13 S. E. 142, Dobie Cas. Bailments and Carriers, 38.

» Story, Bailm. §§ 277, 418, 419; Schouler, Bailm. & C. §§ 56, 61, 156.

Destruction of the Bailed Goods

This necessarily terminates any bailment, for after such destruction 100 there is then nothing to which the relation can attach. A bailment without an existing subject-matter is a legal absurdity. The rights and liabilities of the bailor and bailee, upon such a destruction, depend upon various considerations subsequently to be discussed.

100 New York, L. E. & W. R. Co. v. New Jersey Electric Ry. Co., 60 N. J. Law, 338, 38 Atl. 828; Masterson v. International & G. N. R. Co. (Tex. Civ. App. 1900) 55 S. W. 577.

DEPOSITUM AND MANDATUM

21. Bailments for the sole benefit of the bailor include (a) Depositum and

(b) Mandatum.

Introductory

The distinctive feature of bailments for the bailor's sole benefit lies, of course, in the fact that all the benefit arising from the bailment relation accrues to the bailor, while the bailee receives no compensation or reward. Such bailments are usually divided into two classes: Gratuitous bailments of goods for mere custody, and gratuitous bailments of goods for the purpose of having active services performed concerning the goods.1

The terminology employed to designate these classes is far from satisfactory. To call the gratuitous bailment for mere custody "depositum" and the gratuitous bailment for active services "mandatum" is objectionable, because these terms (as used in Roman law, from which they were borrowed), are not limited to, or synonymous with, the bailment relations to which they are applied.2

1 Story, Bailm. § 3.

2 See Morey, Outlines of Roman Law, p. 369; Sandars' Justinian (Hammond) p. 457. The term "mandate" is sometimes used in a sense not denoting a bailment relation at all. "The Roman mandate in fact-a term apparently derived from the fiction of giving one's right hand as symbolical of giving to another authority to act-meant in the vernacular simply to constitute a gratuitous agency. A wide, sweeping class of trusts was this, not confined to personalty, nor to things specific as distinguishable from property in the mass, nor necessarily occupied with property at all. An unpaid carrier was for the time being a mandatary; but so, too, was an unpaid oral messenger or a naked attorney." Schouler, Bailm. p. 30.