Locatio in general, means a hiring; and as are there many ways of hiring, the general topic includes these particular forms, and usually the classification and the terms of the civil law are used.

1. Locatio rei; - where a thing is hired and the hirer acquires a temporary use of the thing bailed.

(vv) Baltimore, etc. Ins. Co. v. Dal-rymple, 25 Md. 269.

(vw) Bryson v. Rayner, 25 Md. 424. (w) Mairs v. Taylor, 40 Penn. St. 446. (ww) King v. Green, 6 Allen, 189.

(wx) Smithurst v. Edmunds, 1 McCar-ter 408.

(wy) Cleveland v. State Bank, 16 Ohio, 886.

2. Locatio operis faciendi;- where the bailee is hired to do some work or bestow some care on the things bailed.

3. Locatio operis mercium vehendarum ; - where the bailee is hired to carry the goods for the bailor from one place to another. This form of locatio embraces also the carrying of passengers.

We shall consider these subjects in this order; and begin with Locatio rei. When the owner of a thing lets it to another, who is to have the use of the thing, and to pay a compensation therefor, the contract between these parties is for their mutual benefit. The bailee is bound therefore only to take ordinary care of the thing bailed. (x) l But this obligation varies

(x) Reeves v. The Ship Constitution, Gilpin, 679; Bray v. Mayne, Gow, 1; Millon v. Salisbury, 13 Johns. 211; Harrington v. Snyder, 3 Barb. 380; Hawkins v. Pythian, 8 B. Mon. 615. In the case of Columbus v. Howard, 6 Ga. 213, 219, Mr. Justice Lumpkin said: "The question has been much mooted, what degree of care or diligence is required of the hirer, while using the property for the purpose, and within the time for which it was hired. Sir William Jones considered that the contract being one of mutual benefit, the hirer was bound only for ordinary diligence, and of course was responsible only for such. And this opinion appears to be now settled, upon principle, to be the true exposition of the common law. He ought, therefore, to use the thing, and to take the same care in the preservation of it which a good and prudent father of a family would take of his own. Hence the hirer of a thing, being responsible only for that degree of diligence which all prudent men use, that is, which the generality of mankind use, in keeping their own goods of the same kind, it is very clear he can be liable only for such injuries as are shown to come from an omission of that diligence; or, in other words, for ordinary negligence. If a man hires a horse, he is bound to ride it moderately, and to treat it as carefully as any man of common discretion would his own, and to supply it with suitable food; and if he does so, and the horse, in such reasonable use, is lamed or injured, he is not responsible for any damages." - In Dean v. Keate, 3 Camp. 4, it is held, that if, upon a hired horse being taken ill, the hirer calls in a farrier, he is not answerable for any mistakes which the latter may commit in the treatment of the horse: but if instead of that he prescribes for the horse himself, and from unskilfulness gives him a medicine which causes his death, although acting bond fide, he is liable to the owner of the horse as for gross negligence. - A somewhat peculiar question of liability arose in the case of Davey v. Chamberlain, 4 Esp. 229. It was an action on the case for negligently driving a chaise, whereby the plaintiff's horse was killed. The two defendants were proved to have been together in the chaise when the accident happened; but Chamberlain, one of the defendants, was sitting in the chaise smoking, and it was driven by the other. Erskine, for the defendants, put it to Lord Ellenborough whether he was not entitled to have a verdict taken for Chamberlain, the ground of his application being, that no verdict ought to pass against him, the injury having proceeded from the ignorance or unskilfulness of the other defendant, who was the person driving the chaise, and in whose care and under whose management it then was, Chamberlain remaining perfectly passive, and taking no part in the management or direction of the horse. But his lordship said, that "if a person, driving his own carriage, took another person into it as a passenger, such person could not be subjected to an action, in case of any misconduct in the driving bv the proprietor of the carriage, as he had no care nor concern with the carriage; but if two persons were jointly concerned in the carriage, as if both had hired it together, he thought the care of the king's subjects required that both should be answerable for any accident arising from

1 One receiving a horse to pasture for hire, is bound to use reasonable care only; if the owner desires more than that, he must contract for superior diligence. Mansfield v. Cole, 61 111. 191.

*with the nature of the thing and the circumstances. One who hires a valuable watch, easily disordered by any negligence, must be more careful than if the watch were cheaper and stronger. So of a valuable horse. So it should be if any known circumstances gave the thing hired a peculiar value, calling for peculiar care. Still it is only ordinary care, as the law defines that, because the rule must be, that the hirer is bound to render such care, in each case, as the owner has a right to expect that a man of ordinary capacity and caution would take of the same thing, if it were his own and under the same circumstances. (y)1 the misconduct of either in the driving of the carriage, while it was so in their joint care." The fact turned out to be, that the chaise in question had been hired by both the defendants, and a verdict passed against both accordingly.

(y) What we have stated above in the text has been found to be of great importance in its application to hired slaves. Inasmuch as a slave is an intelligent being, and may be supposed capable, under ordinary circumstances, of taking care of himself, his employer is not bound to so strict diligence as the hirer of an ordinary chattel. This is clearly shown by the case of Swigert v. Graham, 7 B. Mon. 661. It was an action on the case, brought by the plaintiff against the owners of a certain steamboat, to recover for the loss of one Edmund, the plaintiff's slave, who, while employed as a hired hand upon the defendants' boat, was drowned in the Kentucky River. Marshall, C. J., in delivering the opinion of the court, said : "The material question in the case is, whether, under the actual circumstances, the owners of the boat are liable for the loss of the slave by being drowned while in their employ. And this question depends not merely upon the general principles applicable to the case of bailment on hire, as they are stated or adjudged in relation to inanimate or to mere animal property, but upon the proper application or modification of those principles in reference to the particular case of a slave hired for service as a common hand on board of a steamboat engaged in the navigation of the Kentucky and Ohio Rivers. The rule that the bailee on hire is bound to ordinary diligence, and responsible for ordinary neglect, is doubtless true in all cases of their bailment, unless there be fraud, or a special contract by which it may be varied in the particular case. But what is or is not ordinary diligence may vary, not only with the circumstances under which the subject of it may be placed, but with the nature of the subject itself. That which, in respect to one species of property, might be gross neglect, might in respect to another species be extraordinary care. And, under peculiar circumstances of danger, extraordinary exertions may be required of one who is bound only to ordinary diligence, or, in other words, the circumstances may be such, that extraordinary exertions are nothing more than ordinary diligence. Ordinary diligence, then, means that degree of care, or attention, or exertion, which, under the actual circumstances, a man of ordinary prudence and discretion would use in reference to the particular thing were it his own property; or in doing the particular thing, were it his own concern. And where skill is required for the undertaking, ordinary diligence implies the possession and use of competent skill. . . . Applying these principles to the case of a slave hired either for general or special service, we come at once to the conclusion, that being ordinarily capable, not only of voluntary motion, by which he performs various services, but also of observation, experience, knowledge, and skill, and being in a plain case at least, as capable of taking care of his own safety as the hirer or owner himself, and presumably as much disposed to do it, from his possession of these qualities,