The common law does not recognize the rule of the civil law that the bailor for hire is bound to keep the thing in repair, and in the absence of provision the question as to which party is bound to repair depends largely on custom and usage ; Central Trust Co. of New York v. Ry. Co., 50 Fed. 857.
The depositary or mandatary has a right to the possession as against everybody but the true owner; Story, Bailm. § 93 ; Pitt v. Albritton, 34 N. C. 74 ; 4 E. L. & Eq. 438; see McMahon v. Sloan, 12 Pa. 229, 51 Am. Dec. 601; but is excused if he delivers it to the person who gave it to him, supposing him the true owner ; Nelson v. Itierson, 17 Ala. 216 ; and may maintain an action agai#st a wrong-doer ; 1 B. & Ald. 59 ; Chamberlain v. West, 37 Minn. 54, 33 N. W. 114.
It is contended by Story that a mere de pository has no special property in the de posit, but a custody only ; Story, Bailm. §§ 93, 133, citing Norton v. People, 8 Cow. (N. Y.) 137; Com. v. Morse, 14 Mass. 217 ; and that there is a clear distinction between the custody of a thing and the property, wheth er general or special, in a thing ; 1 Term 658. If a depository has a special property in the deposit, it must be equally true that every other bailee has, and indeed that every per son who lawfully has the custody of a thing. with the assent of the owner, has a special property in it. Under such circumstances, the distinction between a special property and a mere custody would seem to be almost, if not entirely, evanescent ; Story, Bailm. § 93 a, citing the leading case of Hartop v. Hoare, 3 Atk. 44, where certain jewels en closed in a sealed paper and sealed bag had been placed by the owner with a jeweller for safe custody, and the latter afterwards brake the seals and pledged the jewels to Hoare for an advance of money. The owner brought suit against the pledgee and the court held, first, that the delivery to the jeweller was a mere naked bailment for the use of the bailor, and the jeweller was a mere depository, having no general or special property in the jewels, and no right to dis pose of them; secondly, that as the pledge by the jeweller was wrongful, the refusal by the defendant to deliver the jewels to the owner was a tortious conversion. In a crit
icism on this view, it has been said that that case does not constitute a sufficient authority for denying the bailee's right to a special property in the bailment ; that although the jeweller came into possession of the jewels by right originally, yet when he broke the seals and took them out of the bag, he was possessor mala fide; and that from this it might be inferred that the principle was ad mitted that, as respects third persons, a de pository has a special property, as other wise there is no pertinency in resting the want of it on the circumstances of his break ing the seals and taking the jewels out of the envelopes, and thereby divesting himself of the special property he originally had, and in fact ceasing to be a bailee ; 16 Am. Jur. 280. Sir William Jones says: "The general bailee has unquestionably a limited property in the goods entrusted to his care ;" Jones, Bailm. 80; and Lord Coke says: "Bailment maketh a privity. If one has goods as bailee where he bath only a possession, and no property, yet he shall have an action for them ;" 2 Bulst. 306. If his possession be violated he may maintain trespass or tro ver ; Waterman v. Robinson, 5 Mass. 303, where it was held that he had no spedial property by which he could maintain re plevin.
A bailee of an officer in cases of an attach ment of property has a sufficient property to maintain an action against a stranger for any dispossession or injury to the goods at tached ; Odiorne v. Colley, 2 N. H. 70, 9 Am. Dec. 39 ; Bender v. Manning, 2 N. H. 289.
A borrower has no property in the thing borrowed, but may protect his possession by an action against the wrongdoer; 2 Bingh. 173 ; Hurd v. West, 7 Cow. (N. Y.) 752. As to the property in case of a pledge, see PLEDGE.
In bailments for storage the bailee ac quires a right to defend the property as against third parties and strangers, and is answerable far loss or injury occasioned through his failure to exercise ordinary care. See WAREHOUSEMAN; TROYER.