But, if the receiver in pledge were the only bailee, who had a special property in the thing bailed, it could not be logically inferred, “ that,

therefore, he ought to keep it merely as his "own" for, even if Caius have an abfolute undivided property in goods, jointly or in common with Septimius, he is bound by rational, as well as pofitive, law to take more care of them than of his own, unless he be in fact a prudent and thoughtful manager of his own concerns; fince every man ought to use ordinary diligence in affairs, which interest another as well as himself: "Aliena negotia," fays the emperor CONSTAN"exacto officio geruntur*."

TINE,

The conclufion, therefore, drawn by fir EDWARD COKE, is no lefs illogical than his premiffes are weak; but here I muft do M. LE BRUN the justice to obferve, that the argument, on which his whole system is founded, occurred likewise to the great oracle of English law; namely, that a perfon, who had a property in things committed to his charge, was only obliged to be as careful of them as of his own goods; which may be very true, if the sentence be predicated of a man ordinarily careful of his own; and, if that was LE BRUN's hypothesis, he has done little more than adopt the fyftem of GODE

* C. 4. 35. 21.

FROI, who exacts ordinary diligence from a partner and a co-proprietor, but requires a higher. degree in eight of the ten preceding contracts.

Pledges for debt are of the highest antiquity: they were used in very early times by the roving Arabs, one of whom finely remarks, “that the "life of man is no more than a pledge in the hands "of Destiny;" and the falutary laws of Mos Es, which forbade cercain implements of husbandry and a widow's raiment to be given in pawn, deserve to be imitated as well as admired. The distinction between pledging, where poffeffion is transferred to the creditor, and hypothecation, where it remains with the debtor, was originally Attick; but scarce any part of the Athenian laws on this fubject can be gleaned from the ancient orators, except what relates to bottomry in five fpeeches of DEMOSTHENES.

I cannot end this article, without mentioning a fingular case from a curious manuscript preferved at Cambridge, which contains a collection of queries in Turkish, together with the decisions or concise answers of the MUFTI at Conftantinople:it is commonly imagined, that the Turks have a tranflation in their own language of the Greek code, from which they have supplied the defects of their Tartarian and Arabian jurifprudence*;

* Duck de Auth. Jur. Civ. Rom. I. 2. 6.

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but I have not met with any fuch translation, although I admit the conjecture to be highly probable, and ani perfuaded, that their numerous treatifes on Mahomedan law are worthy on many accounts of an attentive examination. The cafe was this: "Zaid had left with Amru divers goods in pledge for a certain fum of money, "and fome ruffians, having entered the house of "Amru, took away his own goods together "with those pawned by Zaid." Now we muft neceffarily fuppofe, that the creditor had by his own fault given occafion to this robbery; otherwife we may boldly pronounce, that the Turks are wholly unacquainted with the imperial laws. of BYZANTIUM, and that their own rules are totally repugnant to natural justice; for the for the party proceeds to afk, "whether, fince the debt became "extinct by the lofs of the pledge, and since the "goods pawned exceeded in value the amount "of the debt, Zaid could legally demand the "balance of Amru;" to which queftion the great law-officer of the Othman court answered with the brevity ufual on fuch occafions, OLMAZ, It cannot be*. This cuftom, we must con

* Publ. Libr. Cambr. MSS. Dd. 4. 3. See Wotton, LL. Hywel Dda. lib. 2. cap. 2. § 29. note x. It may poffibly be the ufage in Turkey to ftipulate "ut amiffio pignoris liberet de"bitorem," as in C, 4. 24. 6.

fefs, of propofing cafes both of law and confcience under feigned names to the fupreme judge, whose answers are confidered as folemn decrees, is admirably calculated to prevent partiality and to fave the charges of litigation.

V. The laft fpecies of bailment is by no means the least important of the five, whether we confider the infinite convenience and daily use of the contract itself, or the variety of its branches, each of which fhall now be fuccinctly, but accurately, examined.

1. Locatio, or locatio-conductio, REI, is a contract, by which the hirer gains a tranfient qualified property in the thing hired, and the owner acquires an abfolute property in the stipend, or price, of the hiring; fo that, in truth, it bears a strong resemblance to the contract of emptio-venditio, or SALE; and, fince it is advantageous to both contracting parties, the harmonious confent of nations will be interrupted, and one object of this effay defeated, if the laws of England shall be found, on a fair inquiry, to demand of the hirer a more than ordinary degree of diligence. In the most recent publication, that I have read on any legal fubject, it is expressly said, “that the hirer is to take all imaginable "care of the goods delivered for hire":" the

* Law of Nifi Prius, 3d edition corrected, 72.

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words all imaginable, if the principles before established be juft, are too ftrong for practice even in the strict case of borrowing; but, if we take them in the mildeft fenfe, they muft imply an extraordinary degree of care; and this doctrine, I prefume, is founded on that of lord HOLT in the cafe of COGGS and BERNARD, where the great judge lays it down, "that, if goods are let out "for a reward, the hirer is bound to the UTMOST diligence, fuch as the MOST diligent father of a family ufes*." It may feem bold to controvert fo refpectable an opinion; but, without infifting on the palpable injustice of making a borrower and a birer answerable for precisely the fame degree of neglect, and without urging, that the point was not then before the court, I will engage to show, by tracing the doctrine up to its real fource, that the dictum of the chief justice was entirely grounded on a grammatical mistake in the translation of a single Latin word.

In the first place, it is indubitable, that his lordship relied folely on the authority of BRACTON; whose words he cites at large, and immediately fubjoins, "whence it appears, &c." now the words, "talis ab eo defideratur cuftodia, qualem DILIGENTISSIMUS paterfamilias fuis

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* Ld. Raym. 916.