CH. XIII. s. 3. the contract was complete on the Sunday, and was therefore void (r). Sale of Goods (Illegal Sales). Effect of subsequent promise. Sale of game. Sale of spirits. 25 & 26 Vict. c. 38. Where, however, the defendant-who had, on a Sunday, bought some cattle of the plaintiff, a drover-kept them, and afterwards promised payment, it was held that he was liable upon a quantum meruit (s). But the mere fact of the vendee keeping the goods will not render him liable in such a case (t). The Game Act, 1831, 1 & 2 Will. 4, c. 32, s. 4, prohibits the buying or selling of birds of game, after the expiration of ten days from the respective days in each year on which it becomes unlawful under the Act to kill or take such birds of game. This section does not prohibit a licensed dealer in game from entering into a contract, during the season, to deliver live game out of a mew, or breeding-place, at any time of the year (u). Nor does the section apply to foreign game killed abroad and imported into this country, e.g., "Russian partridges" (x). And by the Ground Game Act, 1880, 43 & 44 Vict. c. 47, s. 4, the occupier of land has the same power to sell ground game killed by him, or persons authorised by him, under the provisions of that Act, as if he had a licence to kill game. The Spirits Act, 1742 (commonly called the Tippling Act), 24 Geo. 2, c. 40, s. 12, takes away the right to recover any debt contracted for spirituous liquors, unless it was bonâ fide contracted at one time, to the amount of 208. or upwards; or to recover any item in any account for such liquors, unless they were delivered at one time, to the amount of 20s. at the least. But by the Sale of Spirits Act, 1862, 25 & 26 Vict. c. 38, the above enactment is repealed, so far as relates to spirituous liquors sold, to be consumed elsewhere than on the premises where sold, and delivered at the residence of the purchaser thereof, in quantities not less at any one time than a reputed quart (y). (1) Simpson v. Nicholls (1838), 3 M. & W. 240. (u) Porritt v. Baker (1855), 10 Exch. 759. (x) Guyer v. The Queen (1889), 23 Q. B. D. 100. (y) The Spirits Act, 1742, 24 Geo. 2, c. 40, s. 12, was considered not to apply to the sale of spirituous liquors by a publican, to an officer in the army, to be used, out of the plaintiff's house, by recruits under the command of the defendant; Spencer v. Smith (1811), 3 Camp. 9. But it was held to apply to cases where the liquor was sold, not to be consumed by the purchaser-a publican-but to be re-sold by him to his customers; Hughes v. Done (1841), 1 Q. B. 294; overruling Jackson v. Attrill (1793), Peake, N. P. C. 180. And it was also held to apply to items under 20s. in a tavern bill, for spirits supplied to guests on the defendant's credit; Burnyeat v. Hutchinson (1821), 5 B. & Al. 241; Gilpin v. Rendle (1809), 1 Selw., N. P., 13th ed. 75. So it was held to apply to a sale of spirits mixed with water; Scott v. Gillmore (1810), 3 Taunt. 266; 12 R. R. 641. And where part of the consideration of a bill of CH. XIII. s. 3. Sale of ale, beer, &c., to And by the County Courts Act, 1888, 51 & 52 Vict. c. 43, s. 182, re-enacting sect. 4 of the County Courts Act, 1867, it is enacted, that no action shall be brought or maintainable in any Court to recover any debt or sum of money, alleged to be due in respect of the sale of any ale, porter, beer, cider, or perry which was consumed on the premises where sold or supplied; or in respect premises. of any money or goods lent or supplied, or of any security given. for, in, or towards the obtaining of any such ale, porter, beer, cider, or perry. As to sales to drunken persons, see p. 143, ante. be drunk on By the Pharmacy Act, 31 & 32 Vict. c. 121 (2), s. 17, it is Sale of poison. enacted, that it shall be unlawful (1) to sell any poison, either by wholesale or by retail, unless the bottle, &c., containing it be labelled with the name of the article and the word "poison," and with the name and address of the seller, and (2) to sell arsenic, strychnine, corrosive sublimate, and other named poisons "to any person unknown to the seller unless introduced by some person known to the seller," who is directed to enter particulars of each sale on a statutory form in a book "to be kept for that purpose," showing date of purchase, name and (see s. 5 of Pharmacy Act, 1869, 32 & 33 Vict. c. 117) address of purchaser, name and quantity of poison sold, purpose for which it was required, signature of purchaser, and signature of person introducing him. exchange or promissory note was for liquors sold contrary to the statute, the instrument was held to be altogether inoperative, in the hands of any party who received it upon such consideration; Scott v. Gillmore (1810), 3 Taunt. 226; and see Crookshank v. Rose (1831), 1 Moo. & R. 100. Whether the statute applies to the case of an innkeeper, who supplies spirituous liquors to a guest (z) See this Act and the poisons which CHAPTER XIV. OF BAILMENTS EXCEPTING BAILMENT FOR CARRIAGE. [See Sir W. Jones on Bailments, 4th ed. (1833); Story on Bailments, 9th ed. (1878); Beven on Negligence, 3rd ed. (1895); Beal on Bailments (1900); Wyatt Paine on Bailments (1901).] SECT. 1.-The different Kinds of Bailment. In this and Chapter XV. we shall drop technical language of classification and treat of bailments under the heads of Bailments without Reward, whether for Custody, Treatment or Use. Bailments in Pledge. Bailments for Custody for Reward; and lastly, Bailments by Way of Hire, reserving for the next chapter the treatment of the Bailment for Carriage, which our modern railway companies and the numerous statutes affecting them have invested with so much importance to lawyers. When bailee excused from redelivering thing bailed. SECT. 2.-General Rules. First In all contracts of bailment, if the performance of the promise of the bailee, to return the thing bailed, becomes impossible because it has perished; this impossibility, except in the case of carriers and of innkeepers, if it did not arise from the negligence of the bailee, excuses him from the performance of his promise (a), (a) The borrower of a horse promised to deliver it on request. Before request the horse died without his default. Held, that he was not liable: Williams v. Lloyd (1629), Sir W. Jones, 179; S. C., by the name of Williams v. Hill, Palm. 548. General and so, if the goods are taken away from the bailee by a third CH. XIV. s. 2. party who claimed by title paramount, this will excuse the bailee from redelivering; but a mere adverse claim is not sufficient; for a bailee cannot set up jus tertii against his bailor (b), unless he be defending an action upon the right and title of such third person (c); but he may institute interpleader proceedings (d). Secondly: Ordinary neglect has been defined to be, the omission Different degrees of of that care which every man of common prudence, and capable negligence. of governing a family, takes of his own concerns; gross neglect, to be the want of that care which every man of common sense, how inattentive soever, takes of his own property; and slight neglect, to be the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods (e). Thirdly Where actual fraud exists, the bailee is liable, even though the contrary be stipulated (ƒ);—a special agreement by any bailee, to use more or less than the exact degree of care the law would have required from him, is in general valid (g);and where particular orders are given and assented to, they form the contract between the parties, and the law implies a promise by the bailee to perform such orders (h). Effect of special agree fraud, or ment. violence, Fourthly: Although robbery by force is considered to be Loss by irresistible, a loss by private stealth is said to be presumptive evidence of ordinary neglect (i). Where a bailee seeks to excuse himself, on the ground that the or act of God. loss arose from the act of God, it must appear that the loss was the immediate result of such act (k). Fifthly A bailee in possession may recover against a stranger for loss of bailed goods by negligence, although he would have had a good answer to an action by the bailor for damage for the loss of the goods bailed (1). (b) Ex parte Davies (1881), 19 Ch. D. 86, C. A., distinguishing Biddle v. Bond (1865), 6 B. & S. 225. And see Ross v. Edwards (1895), 73 L. T. 100. B. & S. (c) Biddle v. Bond (1865), 225, approved in Rogers v. Lambert, [1891] 1 Q. B. 318, C. A. (d) Rogers v. Lambert, supra, per Lindley, L.J.; and see Robinson v. Jenkins (1890), 24 Q. B. D. 275, C. A. (e) Jones on Bailm. 118; and see per Lord Chelmsford, delivering judgment in Giblin v. M'Mullen (1868), L. R., 2 P. C. 317, 336. (f) Jones on Bailm. 119, sect. 5, and compare Roman Law to the same effect. Illud nulla pactione effici potest ne dolus CH. XIV. s. 3. Reward (for Gratuitous bailee only liable for gross negligence. Unsolicited articles. No lien on deposits for safe custody. SECT. 3.-Bailments without Reward. (a) For Custody. Where there is a naked bailment without reward, of goods to be kept by the bailee, as where in the course of business bankers receive, for safe custody in their strong-room, plate or scrip belonging to their customers; such bailee is primâ facie liable only for gross neglect, the burden of proof being upon those who attempt to charge the bailee (m). So where articles are sent unsolicited, as bottles of wine by an enterprising tradesman, in the hope of orders; or literary matter to a journal by an unknown contributor; or, as in Howard v. Harris (n), a manuscript play to a theatrical manager; the recipient bailee will only be liable as a finder for wilful negligence as beyond mere loss from carelessness (o). But his duty will be enlarged, and he will become responsible for ordinary neglect, if he spontaneously and officiously propose to keep the goods (p); or if he change his character as gratuitous bailee, by taking charge of the goods for reward (q). To exempt a gratuitous bailee from liability, it is not sufficient merely to show that he has kept goods deposited with him, in the same manner as he kept his own, although this degree of care will, generally, repel the presumption of gross negligence (r); and where valuables or scrip are deposited with bankers in locked boxes or sealed parcels for safe custody, the bailee has no right to open the box or parcel, and their contents are not subject to any lien for previous or subsequent debts of the customer (s). (m) Giblin v. M'Mullen (1868), L. R., 2 P. C. 317, 339; Doorman v. Jenkins (1834), 2 A. & E. 256; Jones on Bailm. 45, 46; Coggs v. Bernard (1704), 2 Ld. Raym. 909. And see Trefftz v. Canelli (1872), L. R., 4 P. C. 277; In re United Service Co., Johnston's Claim (1871), L. R., 6 Ch. 212. As to the duty of excise officers, to take care of goods seized after the penalty has been paid, see Hutchings v. Morris (1827), 6 B. & C. 464. (n) Howard v. Harris (1884), C. & E. 253. cast upon the defendant, is questioned; also Beal on Bailments, at p. 68; Wyatt Paine on Bailments, at p. 18, citing Lethbridge v. Phillips, (1819) 2 Stark. at p. 545; and compare p. 331, ante. (p) Jones on Bailm. 48; see Nelson v. Macintosh (1816), 1 Stark. 237; 18 R. R. 766. (q) Jones on Bailm. 49. (r) Giblin v. M'Mullen (1868), L. R., 2 P. C. 317, 339; Rooth v. Wilson (1817), 1 B. & Al. 59; Coggs v. Bernard (1704), 2 Ld. Raym. 914, 915; In re United Service Co., Johnston's Claim (1871), L. R., 6 Ch. 212. (s) Leese v. Martin (1873), L. R., 17 Eq. 224, following Brandao v. Barnett (1846), 12 Cl. & F. 787. As to loan of pictures for an exhibition, see Beven on Negligence, vol. 2, p. 920, citing Vigo Agricultural Society v. Brimfel, 52 Am. R. 657. |