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![handle is hein.slavery/ssactsengr0249 and id is 1 raw text is: PARKHURST V. GOSDEN
degree of care required by law from a bailer, varies with the nature of the bailment:
a gratuitous bailment (a)' imposes upon the bailee a less degree of responsibility than a
bailment for reward. The distinction is fully pointed out in Coggqs v. Bernard. What-
ever the nature of the bailment, it appears to have been usual to charge generally a
duty to use due care, and a breach of that duty. The degree of attention to the safety
of the thing with which the defendant is intrusted, is regulated by a reference to the
character he fills.
Rule discharged.
[894] PARKHURST v. GOSDEN. May 2, 1846.
This court cannot aid a party in obtaining a copy of the notes taken at a trial.-An
application for a rule, that a defendant might be furnished with a copy of the notes
taken by the judge of the sheriffs of London's court on a former trial between the
same parties, was refused.
C. Jones, Serjt., moved for a rule calling upon the judge of the sheriffs' court,
London, to shew cause why the defendant should not be furnished with a copy of the
notes taken by him upon a trial between the parties to this action, had before him in
the year 1842, upon an affidavit that such notes were material and necessary to the
defence of the present action-to enable the defendant's counsel, upon the trial of this
cause, to cross-examine the plaintiff's witnesses.
TINDAL, C. J. How can we grant a rule against the judge of the sheriffs' court? I
do not know that he is bound to take a note at all (a)'. The defendant should have
taken care to have some person present at the former trial capable of taking a note of
what occurred. Judges' notes are not to be made instruments of attack or defence in
the hands of either party.
The rest of the court concurred.
Jones took nothing (b).
[895] ZULUETA AND OTHERS V. MILLER AND OTHERS. May 7, 1846.
A plea framed fairly to raise the question whether the action is not rendered
unmaintainable by reason of the non-performance of an alleged condition precedent,
is an issuable plea.
Assumpsit. The declaration stated that, on the 2nd of November, 1844, by a
certain agreement in writing, dated, &c., then made between the defendants on the
one part, and the plaintiffs on the other part, and signed by the plaintiffs and the
defendants respectively, it was agreed that the defendants should furnish a pair of
direct-acting steam-engines of the collective power of 350 horses, of the best materials
and workmanship, fitted complete with expansion valves and gear, tubular boilers,
safety-valves, nozzles, and gear, stop-valves, nozzles, and gear, brine-pumps and
refrigerators or other suitable apparatus, a small engine to fill the boilers, water-
gauges and gauge-cocks, hand-pump and leather hose, feed, injection, and blow-off
pipes and cocks; all the pipes of copper that could with propriety be made of that
material, chimney and steam-chest casing, paddle-wheels and flats, coal-cases, fenders,
(a)1 Q. d. a gratuitous bailment for the sole benefit of the bailor,-depositum or man-
datum; not commodatum,-a gratuitous bailment for the sole benefit of the bailee.
(a)' But by the resolution of the judges respecting motions for new trials, in cases
before sheriffs and judges of inferior courts of record,- upon all motions respecting
causes tried before sheriffs or judges of inferior courts of'record, pursuant to the
statute (3 & 4 W. 4, c. 42), ss. 17, 18, the party making the application to the court
above must produce an examined copy of the notes of the sheriff or his deputy or of
the judge who tried the cause, together with an affidavit verifying such to be a true
copy. And see Mansell or Mansfied v. Brearq, 1 A. & E. 347, 3 N. & M. 471 ;
Burney v. Mawson or Moxall, 1 A. & E. 348, n., 3 N. & M. 472, n. ; Hall v. Middleown,
4 N. & M. 368; Walker v. NVeedham, 3 M. & G. 557.
(b) Vide ante, 874 (b).
1.197
2 C. B. 894.](ViewImageLocal?handle=hein.slavery/ssactsengr0249&div=1&collection=&method=preview&ext=.png&size=3)