THE BAILMENT CASES.
As the boys were slowly coming up the lane, towards the house, they saw Mary and Lucy in the garden. They went round into the garden to see what they were doing.
They found them seated upon a bench in a pleasant part of the garden; it was the same bench were Rollo had once undertaken to establish a hive of bees. Mary was teaching Lucy how to draw pictures upon lilac leaves, and other leaves which they gathered, here and there, in the garden.
The boys came up and asked to see what the girls were doing. The girls did not say to them, as girls sometimes do in such cases, 'It is none of your concern,-you go off out of the garden, we don't want you here.' They very politely showed them their leaf sketches,-and the boys, at the same time, with equal politeness, offered them some of their raspberries. In the course of the conversation, as they sat and stood there, Rollo said to his sister,
"Henry lost my fish, Mary, and ought he not to pay me?"
"Your fish?" asked Mary.
"Yes," said Rollo, "I caught a fish in a dipper."
"And how came Henry to have it?"
"O, I let him have it, to catch another. He made me."
Henry had some secret feeling that he had not done quite right in the transaction, though he did not know exactly how he had done wrong. He did not make any reply to Rollo's charge, but stood back, looking somewhat confused.
"Ought he not to pay me?" repeated Rollo.
"It seems to be a case of bailment," said Mary.
"O yes," said Rollo, who now recollected his father's conversation on that subject some days before.
"And so, you know, the question," continued Mary, "whether he ought to pay or not, depends upon circumstances."
"Well," said Rollo, who began to recall to mind the principles which his father had laid down upon the subject, "it was for his benefit, not mine, and so he ought to pay."
All this conversation about bailment, and about its being for his benefit, not Rollo's, was entirely unintelligible to Henry, who had never studied the law of bailment at all. He looked first at Mary, and then at Rollo, and finally said,
"I don't understand what you mean."
So Mary explained to him what her father had said. She told him, first, that whenever one boy intrusted his property of any kind to the hands of another boy, it was a bailment; and that the question whether the one who took the thing ought to pay for it, if it was lost, depended upon the degree of care he took of it, considered in connection with the question, whether the bailment was for the benefit of the bailor, or the bailee.
"What is bailor and the bailee?" said Henry.
"Why, Rollo bailed you his fish," said Mary. "Rollo was bailor, and you bailee."
"No," said Henry, "he only gave me back my dipper, and the fish was in it."
Mary asked for an explanation of this, and the boys related all the circumstances. Mary said it was an intricate case.
"I don't understand it exactly," said Mary. "You returned him his property which you had borrowed, and at the same time put into his hands some property of your own. I don't know whether it ought to be considered as only giving him back his dipper, or bailing him the fish."
"I did not want the fish," said Henry.
"No," said Mary. "It is a knotty case. Let us go and ask father about it."
"O, I don't want to go," said Henry.
"Yes, I would," said Mary. "I'll be your lawyer, and manage your side of the question for you; and we will get a regular decision."
"Well," said Henry, reluctantly. And all the children followed Mary and Lucy towards the house.
They found Rollo's father in his room, examining some maps and plans which were spread out upon the table before him. When he saw the children coming in, he asked Mary, who was foremost, what they wanted. She said they had a law question, which they wanted him to decide.
"A law question?" said he.
"Yes," she replied; "a case of bailment."
"O, very well; walk in," said he.
There was a sofa at one side of the room, and he seated the children all there, while he drew up his arm-chair directly before them. He then told them to proceed. Rollo first told the whole story, closing his statement by saying,
"And so I let him have my fish; and that was a bailment, and it was not for my benefit, but his, and so he ought to have taken very especial care of it. But he did not, and lost it, and so he ought to pay."
"But we maintain," said Mary, "that the fish was not bailed to Henry at all. Rollo only gave him back the dipper, and, though the fish was in it, still the fish did not do Henry any good, and so it was not for his benefit."
"It seems to be rather an intricate case," said her father, smiling.
Henry looked rather sober and anxious. The proceedings seemed to him to be a very serious business.
However, Rollo's father spoke to him in a very kind and good-humored tone, so that, before long, he began to feel at his ease. After hearing a full statement of the case, and all the arguments which the children had to offer on one side or the other, Rollo's father began to give his decision, as follows:-
"I think that Rollo's giving Henry the dipper, with the fish in it, was clearly a bailment of the fish; that is, it was an intrusting of his property to Henry's care. It is clear also that Henry took pretty good care of it. He tried to avoid losing it. He took as much care of it, perhaps, as he would have done of a fish of his own. Still, he did not take very extraordinary or special care of it. The loss was not owing to inevitable accident. If the bailment was for Rollo's benefit, the care he took was sufficient to save him from being liable; but, if it was for his own benefit, then all he did was at his own risk; and the loss ought to be his loss, and he ought to pay for it."
"But I don't see," said Mary, "that he was to blame in either case."
"O, no," said his father; "he was not to blame for losing the fish, perhaps. That is not the point in these cases. It is not a question of who is to blame, but who ought to bear a loss, for which perhaps nobody is to blame.
"And you see," he continued, "that it is reasonable that the loss should be borne by the person who was to have derived benefit from the risk. If the risk was run for Henry's benefit, then he ought to bear the loss; which he would do by making Rollo compensation. If the risk was run for Rollo's benefit, then Rollo ought to bear the loss himself."
"Yes, sir," said Rollo; "and it certainly was for Henry's benefit, for he was trying to catch another fish for himself,-not for me. I had no advantage in it."
"That is not so certain," replied his father. "It depends altogether upon the question, who had a right to the dipper at that time. If Henry had a right to the dipper, then he might have even poured out the water, fish and all; or he might have kept the fish in, to accommodate Rollo. On the other hand, if Rollo had a right to the dipper then, and he let Henry have it, as a favor to him, then, in that case, the bailment was for Henry's benefit."
"Well, sir," said Henry, "I had a right to the dipper, for it was mine; and so it was for his benefit, and I ought not to pay."
"No, sir," said Rollo; "he had let me have it, and I let him have my basket."
"I only lent it to him," said Henry.
"But you lent it to me for the whole walk," said Rollo, turning round to Henry.
"You must only speak to me," said his father. "In all debates and arguments, always speak to the one who is presiding."
"Well, sir," said Rollo, turning back to his father, again, "he lent it to me for the whole walk, and so I don't think he had any right to take it back again."