When the thing bailed is lost or injured, the hirer is bound to account for such loss or injury. But, when this is done, the proof of negligence or want of due care is thrown upon the bailor, and the hirer is not bound to prove affirmatively that he used reasonable care. (b) 1

It was held, in an action by the plaintiff to recover the value of the slave, that the defendant was bound to use such diligence as a man of ordinary prudence would, if the property were his own; that as the slave was a rational being, so much care was not necessary as would be required of the bailee of a brute or an inanimate thing; that as the plaintiff had let the slave for this very purpose, he must be presumed to know all the dangers and risks incident to the employment; and, therefore, as it did not appear that the usual risks were in any way increased, that he could not recover. But where a slave was hired to work in gold-mines, in which wooden buckets were used for raising up water and ore, in which were valves for letting out the water, and an iron drill was dropped into a bucket, and fell through the valve, and split the skull of the slave, it was held to be a want of ordinary care. Biles v. Holmes, 11 Ired. L. 16. See also, as to the duties and responsibilities of the hirers of slaves, McCall v. Flowers, 11 Humph. 242; Mims v. Mitchell, 1 Tex. 443; Sims v. Chance, 7 Tex. 661; Mitchell v. Mims, 8 Tex. 6; McLauchlin v. Lomas, 3 Strob. L. 86;

Alston v. Balls, 7 Eng. (Ark.) 664; Jones v. Glass, 18 Ired. L. 806.

(z) Finucane v. Small, 1 Esp. 316; Foster v. Essex Bank, 17 Mass. 470; Brind v. Dale, 8 C. & P. 207. See also Butt p. Great Western Railway Co. 7 E. L. & E. 443; s. c. 11 C. B. 140. But see Sinclair v. Pearson, 7 N. H. 210. See also, ante, vol. i. p. * 102, n. (c).

(a) Loeschman v. Machin, 2 Stark. 311; Cooper v. Willomatt, 1 C B. 672.

(b) Beckman v. Shouse, 6 Rawle, 179; Clark v. Spence, 10 Watts, 386; Runyan v. Caldwell, 7 Humph. 134; Platt v. Hib-bard, 7 Cowen, 400, n. (a); Schmidt v. Blood, 9 Wend. 268; Foote v. Storrs, 2 Barb. 326; Harrington v. Snyder, 8 id 880. This question was very thoroughly discussed in the case of Logan v. Matthews, 6 Penn. St. 417. The court below in that case instructed the jury, that "when the bailee returns the property in a damaged condition, and fails, either at the time or subsequently, to give any account of the matter, in order to explain how it occurred, the law will authorize a presumption of negligence on his part. But when he gives an account, although it may be a general one, of the cause, and shows the occasion of the injury, it

1 The view in the text was affirmed in Claflin v. Meyer, 75 N. Y. 260, where, the defendant having shown a loss by theft, it was held that the plaintiff could not recover without proof of negligence.

* The owner must deliver the thing hired in a condition to be used as contemplated by the parties; (c) 1 nor may he interfere with the hirer's use of the thing while the hirer's property in it, or right to it, continues. (d) Even if the hirer abuses then devolves on the plaintiff to prove negligence, unskilfulness, or misconduct." And this instruction was held to be correct Coulter, J., said: "The books are extremely meagre of authority on this subject of the onus probandi in cases of bailment. But reason and analogy would seem to establish the correctness of the position of the court below. All persons who stand in fiduciary relation to others are bound to the observance of good faith and candor. The bailor commits his property to the bailee, for reward, in the case of hiring. It is true; but upon the implied undertaking that he will observe due care in its use. The property is in the possession and under the oversight of the bailee, whilst the bailor is at a distance. Under these circumstances, good faith requires, that if the property is returned in a damaged condition, some account should be given of the time, place, and manner of the occurrence of the injury, so that the bailor may be enabled to test the accuracy of the bailee's report, by suitable inquiries in the neighborhood and locality of the injury. If the bailee returns the buggy (which was the property hired in this case), and merely says, ' Here is your property, broken to pieces,' what would be the legal and just presumption? If stolen property is found in the possession of an individual, and he will give no manner of account as to the means by which he became possessed of it, the presumption is that he stole it himself. This is a much harsher presumption than the one indicated by the court in this case. The bearing of the law is always against him who remains silent when justice and honesty require him to speak. It has been ruled that negligence is not to be inferred, unless the state of facts cannot otherwise be explained. 9 Eng. Jur. 907. But how can they be explained, if he in whose knowledge they rest will not disclose them? And does not the refusal to disclose them justify the inference of negligence? Judge Story, in his Treatise on Bailments, § 410, says, that it would seem that the burden of proof of negligence is on the bailor, and that proof merely of the loss is not sufficient to put the bailee on his defence. The position that we are now discussing, however, includes an ingredient not mentioned by Judge Story and on which it turns; that is, the refusal or omission of the bailee to give any account of the manner of the loss, so as to enable the bailor to shape and direct his inquiries and test his accuracy. Judge Story says, there are discrepancies in the authorities. In the French law, as stated by him, § 411, the rule is different; and the hirer is bound to prove the loss was without negligence on his part And he cites the Scottish law to the effect that if any specific injury has occurred, not manifestly the result of accident, the onus probandi lies on the hirer to justify himself by proving the accident That would be near the case in hand, because the injury here was not manifestly the result of accident, and the hirer did not even explain or state how the accident occurred. The case of Ware v. Gay, 11 Pick. 106, seems to have a strong analogy to the principle asserted. It was there ruled, that where a public carriage or conveyance is overturned, or breaks down, without any apparent cause, the law will imply negligence, and the burden of proof will be on the owners to rebut the presumption. The prima facie evidence arises from the fact that there is no apparent cause for the accident. And in the case in hand, there was no apparent cause; nor would the hirer give any account of the cause. We think, therefore, there was no error in adding to the answer the qualification or explanation which we have been considering." See also Skinner v. London, B. & S. R. Co. 2 E. L. & E. 300; s. c. 6 Exch. 787. And in Bush v. Miller, 13 Barb. 481, where property was delivered to the defendant, who received the same, and engaged to forward it, but it was never afterwards seen nor heard of, and the defendant never accounted for it in any way, it was held, that he was prima facie liable for the goods without proof of negligence, which proof could not be required unless he gave some account of his disposition of the property.