Sec 320

A bailee or other depositary of goods is not regarded as an insurer, but is responsible only for loss caused by his own negligence or mistake; and is not liable if he has shown the diligence usual with good business men under similar circumstances.2 A warehouseman, it has been said, by the custom of a. particular trade, may be liable as insurer.3 But this custom must be brought home to the parties so as to make part of the contract. Ordinarily a warehouseman is only liable for losses produced by a lack of those precautions which are undertaken by prudent storers of goods under similar circumstances.4 And this has been held in respect to bailees of horses;5 even the buyer of a horse with a right to return on breach of warranty not being divested of the privilege of rescission by the intermediate injury of the horse through casus.6

Sec 321

We have elsewhere seen that impossibility is no defence to an action on a contract in the nature of a guarantee.7 This is eminently the case with guarantees that third parties should do a particular thing.8 It is otherwise when the third party is prevented from doing the specified thing by the action of the legal authorities having jurisdiction, as where a party for whom bail have entered into a recognizance has been convicted and imprisoned by a tribunal of the state having jurisdiction of the recognizance, and is thus prevented.

Casus a defence to suit against bailee.

Bail bond and other guarantees relieved by casus or necessity.

1 Wh. on Neg. sec 561; Ford v. Cotes-worth, L. R. 4 Q. B. 127; Colt v. Mc-Mechen, 6 Johns. 160; Railroad Co. v. Reeves, 10 Wall. 176; Holladay v. Kennard, 12 Wall. 254; Denny v. R. R., 13 Gray, 481; Morrison v. Davis, 20 Penn. St. 175; South. Ex. Co. v. Craft, 49 Miss. 480.

2 Coggs v. Bernard, L. Ray. 909; Giblin v. McMullen, L. R. 2 P. C. 317; Doorman v. Jenkins, 2 A. & E. 256; Field v. Brackett, 56 Me. 121; Foster 9. Bank, 17 Mass. 500; Smith v. Bank, 99 Mass. 605; Edson v. Weston, 7 Cow.

278; Scott v. Bank, 72 Penn. St. 471; and cases cited Wh. on Neg. sec 461 et seq.; 569 et seq.

3 North Brit. Ins. Co. v. London Ins. Co., L. R. 5 Ch. D. 569.

4 Wh. on Neg. sec 573 et seq.

5 Leake, 2d ed. 707; Williams v. Lloyd, W. Jones, 179.

6 Head v. Tattersall, L. R. 7 Ex. 7.

7 See supra, sec 311.

8 Lamb's case, 5 Co. 23 6; Thorn-bury v. Bevill, 1 Y. & C. 564; Lloyd v. Crispe, 5 Taunt. 249; see M'Neill v. Reed, 2 Moore & S. 89; 9 Bing. 68.

from attending court in compliance with the conditions of the recognizance.1 The death, also, or mortal sickness of the principal, is a bar to the suit;2 though not, it is said, the principal's insanity, in cases where a habeas corpus could be maintained to bring him into court;3 though a commitment by the proper local authorities to an insane asylum would be a defence.4 That the principal has been convicted and imprisoned by a court of the same state having jurisdiction, has been repeatedly ruled to be a defence;5 though it is otherwise when the imprisonment is for a short duration, which is ground only for a continuance in a suit against the bail.6 Imprisonment of the principal in another state from that in which the bail is entered is no excuse, since the principal could, by going to another state, in this way relieve himself at his own will;7 though such is not the case when he is surrendered by the state having jurisdiction of the bail bond.8 The rule is, that "the bail is entitled to relief when the surrender is made impossible by the act of the law, where the plaintiff loses nothing by the omission of any act which it is in the power of the bail to perform; the governing principle being that as the power of making the surrender is taken away by an act of the law, the obligation to surrender is thereby discharged by law; as the surety cannot, by law, surrender his principal, he cannot, by law, be held answerable for not surrendering."9 Hence, compliance with the bond cannot be said to be impossible when the principal could have complied with its stipulation but neglected to do so.1 - A voluntary enlistment in the army by the principal does not relieve the bail any more than would any other voluntary escape by the principal.2 Compulsory conscription of the principal, however, excuses the bail.3 - Escape, before there has been a formal surrender, does not discharge the bail,4 though it is otherwise when there has been a formal surrender made and accepted.5 - When the principal, as is alleged, has fled from mob violence, this is no defence, so it is maintained, unless the government is unavailingly appealed to for protection. In a case in Kentucky, in 1881, where this defence was interposed,6 it was said by the court: "The evidence shows that at that time the county of Elliott, in which the proceedings were had, was overrun by a band of so-called regulators, that they had killed several persons and had shot and seriously wounded the accused, and had threatened to take his life whenever they might find him, and that by reason of these threats the accused was compelled to abscond. It is contended by counsel that as it is the duty of the Commonwealth to protect the lives of her citizens, it ought not to require the citizen to discharge any duty or to comply with any obligation when such protection is not extended, and that the bail should be exonerated as in case of sickness of the accused, which renders it physically impossible for him to attend in response to his bond. This ought unquestionably to be true when the constituted authorities are unable or indisposed, when properly called upon, to protect the citizen in the discharge of the duty, but in this case appellants made no application for protection to the accused, and do not in any way show that the authorities were either unable or unwilling to extend the protection necessary to enable the accused to appear. It does not come in the category of cases where the accused is prevented from appearing by the act of God." - On the same reasoning, permanent illness of an apprentice, making his performance of his covenants impossible, is a defence to his father when sued as surety.1 A person, also, who undertakes to introduce another person into a partnership of which he is a member, guarantees the assent of the other members of the partnership to the introduction.2 - " I entirely agree with the principle that where a covenant is made that a stranger shall do or accept particular acts, that covenant must be performed at the peril of the covenantor."3

1 See supra, sec 305.

2 People v. Manning, 8 Cow. 297; People v. Tubbs, 37 N. Y. 586; Scully v. Kirkpatrick, 79 Penn. St. 324; Mather v. People, 12 111. 9; State v. Cone, 32 Ga. 331.

3 Adler v. State, 35 Ark. 517. See Hamilton v. Dunklee, 11 N. H. 172; Brandt on Suretyship, sec 428.

4 Fuller v. Davis, 1 Gray, 612.

5 Way v. Wright, 5 Met. (Mass.) 380; People v. Bartlett, 3 Hill, 570; Wilhelm v. Caul, 2 W. & S. 26; Canby v. Griffin, 3 Harring. 333; Caldwell's case, 14 Grat. 698; State v. Adams, 3 Head, 259; Belding v. State, 25 Ark. 315; Cooper v. State, 5 Tex. Ap. 215.

6 Phoenix Fire Ins. Co. v. Mowatt, 6 Cow. 599. That imprisonment of a principal by a provost marshal during the late civil war excused the bail, see Com. v. Webster, 1 Bush, 616.

7 See supra, sec 306.

8 State v. Allen, 2 Humph. 258.

9 Van Syckel, J., Steelman v. Mattix, 38 N. J. L. 247.

1 Ibid. See State v. Merrihew, 47 Iowa, 112. See generally as to liability on bail bond, Brandt on Suretyship, sec 428 et seq.; Bailey v. De Crespigny, L. It. 4 Q. B. 180; Pres. Ch. v. New-York, 5 Cow. 538; Bennett v. Wool-folk, 15 Ga. 213. For analogous cases, see supra, sec 305.

2 Harrington v. Dennis, 13 Mass. 93; State v. Reany, 13 Md. 230; State v. Scott, 20 Iowa, 23; Shook v. People, 39 111. 443; Huggins v. People, 39 111. 241; contra, People v. Cook, 30 How. Pr. 110. That under such circumstances the suit against the bail may be continued, see Gingrich v. People, 34 111. 448.

3 Alford v. Irwin, 34 Ga. 25.

4 State v. Tiernan,' 39 Iowa, 474; Lee v. State, 51 Miss. 665; State v. Norment, 12 La. 511.

5 See Com. v. Coleman, 2 Met. (Ky.) 382; Askins v. Com., 1 Duvall, 275; Smith v. Kitchens, 51 Ga. 158; and cases cited, Brandt on Suretyship, sec 433.

6 Weddington v. Com., 3 Ky. Law Rep. 441.