his implied contract has been incidentally mentioned in a preceding page.

III. On the third fpecies of bailment, which is one of the most ufual and moft convenient in civil fociety, little remains to be observed; because our own, and the Roman, law are on this head perfectly coincident. I call it, after the French lawyers, loan for ufe, to distinguish it from their loan for confumption, or the MUTUUM of the Romans; by which is understood the lending of money, wine, corn, and other things, that may be valued by number, weight, or meafure, and are to be restored only in equal value or quantity*: this latter contract, which, according to St. GERMAN, is moft properly called a loan, does not belong to the present subject; but it may be right to remark, that, as the Specifick things are not to be returned, the abfolute pro

*Doct. and Stud. dial. 2. ch. 38. Bract. 99. a. b. In Ld. Raym. 916. where this paffage from Bracton is cited by the chief justice, mutuam is printed for commodatam ; but what then can be made of the words ad IPSAM reftituendam? There is certainly fome mistake in the paffage, which must be very ancient, for the oldeft MS. that I have feen, is conformable to Tottel's edition. I fufpect the omission of a whole line after the word precium, where the manuscript has a full point; and poffibly the fentence omitted may be thus fupplied from Juftinian, whom Bratton copied: " At is, qui mutuum accepit, "obligatus remanet," fi forte incendio, &c. Inft. 3. 13. 2.

perty of them is transferred to the borrower, who must bear the loss of them, if they be deftroyed by wreck, pillage, fire, or other inevi table misfortune. Very different is the nature of the bailment in queftion; for a horse, a chariot, a book, a greyhound, or a fowling-piece, which are lent for the ufe of the bailee, ought to be redelivered Specifically, and the owner muft abide the lofs, if they perish through any accident, which a very careful and vigilant man could not have avoided. The negligence of the borrower, who alone receives benefit from the contract, is conftrued rigorously, and, although flight, makes him liable to indemnify the lender; nor will his incapacity to exert more than ordinary attention avail him on the ground of an impoffi bility, "which the law, fays the rule, never de-, "mands;" for that maxim relates merely to things abfolutely impoffible; and it was not only very poffible, but very expedient, for him to have examined his own capacity of performing the undertaking, before he deluded his neighbour by engaging in it: if the lender, indeed, was not deceived, but perfectly knew the quality, as well as age, of the borrower, he must be fupposed to have demanded no higher care, than that of which fuch a perfon was capable; as, if Paul lend a fine horse to a raw youth, he cannot exact the fame degree of management and cir

cumfpection, which he would expect from a riding-mafter or an officer of dragoons*.

From the rule, that a borrower is answerable for flight neglect, compared with the distinction before made between fimple theft and robbery, it follows, that, if the borrowed goods be fiolen out of his poffeffion by any perfon whatever, he muft pay the worth of them to the lender, un

lefs he

prove, that they were purloined notwithftanding his extraordinary care. The example, given by JULIAN, is the first and best that occurs Caius borrows a filver ewer of Titius, and afterwards delivers it, that it may be fafely reftored, to a bearer of fuch approved fidelity and warinefs, that no event could be lefs expected than its being ftolen; if, after all, the bearer be met in the way by fcoundrels, who contrive to fteal it, Caius appears to be wholly blamelefs, and Titius has fuffered damnum fine injuria. It feems hardly neceffary to add, that the fame care, which the bailee is bound to take of the principal thing bailed, must be extended to fuch acceffory things, as belong to it, and were delivered with it: thus a man, who borrows a watch, is responsible for flight neglect of the chain and feals.

Although the laws of Rome, with which thofe

* Dumoulin, tra&t. De eo quod interest, n. 185.

See p. 370. and note.

of England in this refpect agree, most expressly decide, that a borrower, using more than ordinary diligence, shall not be chargeable, if there be a force which he cannot refift*, yet PUFENDORF employs much idle reasoning, which I am not idle enough to transcribe, in fupport of a new opinion; namely, "that the borrower ought to "indemnify the lender, if the goods lent be destroyed by fire, fhipwreck, or other inevitable "accident, and without his fault, unless his own perifh with them :" for example, if Paul lend William a horfe worth thirty guineas to ride from Oxford to London, and William be attacked on a heath in that road by highwaymen, who kill or feize the horse, he is obliged, according to PUFENDORF and his annotator, to pay thirty guineas to Paul. The juftice and good fenfe of the contrary decifion are evinced beyond a doubt by M. POTHIER, who makes a diftinction between those cafes, where the loan was the occafion merely of damage to the lender, who might in the mean time have fuftained a lofs from other accidents, and thofe, where the loan was the fole efficient caufe of his damaget; as if Paul, having lent his horse, should be forced in the interval by fome preffing bufinefs to hire an

* D. 44. 7. I. 4. Ld. Raym. 916.

+ Poth. Prêt à Ufage, n. 55. Puf. with Barbeyrac notes, B. 5. C. 4. § 6.

2

other for himself; in this cafe the borrower ought, indeed, to pay for the hired horfe, unless the lender had voluntarily fubmitted to bear the inconvenience caused by the loan; for, in this fenfe and in this inftance, a benefit conferred fhould not be injurious to the benefactor. As to a condition prefumed to be impofed by the lender, that he would not abide by any lofs occafioned by the lending, it feems the wildeft and moft unreasonable of prefumptions: if Paul really intended to impofe fuch a condition, he fhould have declared his mind; and I perfuade myself, that William would have declined a favour fo hardly obtained.

Had the borrower, indeed, been imprudent enough to leave the high road and pafs through fome thicket, where robbers might be fuppofed to lurk, or had he travelled in the dark at a very unfeasonable hour, and had the horse, in either cafe, been taken from him or killed, he muft have indemnified the owner; for irrefiftible force is no excuse, if a man put himself in the way of it by his own rafhnefs. This is nearly the cafe, cited by St. German from the Summa Rofella, where a loan muft be meaned, though the word depofitum be erroneously ufed*; and it is there decided, that, if the borrower of a horfe will im

*Do. and Stad. where before cited.