"rebus adhibit," on which the whole queftion depends, are copied exactly from JUSTINIAN*, who informs us in the proeme to his Institutes, that his decifions in that work were extracted principally from the Commentaries of GAIUS; and the epithet diligentiffimus is in fact used by this ancient lawyer †, and by him alone, on the subject of hiring: but GAIUS is remarked for writing with energy, and for being fond of ufing Superlatives, where all other writers are fatisfied with pofitives; fo that his forcible manner of expreffing himself, in this inftance as in fome others, mifled the compilers employed by the Emperor, whose words THEOPHILUS rendered more than literally, and BRACTON transcribed; and thus an, epithet, which ought to have been tranflated ordinarily diligent, has been supposed to mean extremely careful. By rectifying this mistake, we restore the broken harmony of the pandects with the inftitutes, which, together with the code, form one connected work§, and, when properly understood, explain and illuftrate each other; nor is it neceffary, I conceive,, to adopt the interpretation of M. DE FERRIERE, who ima Bract. 62. b. Justin. Inft. 3. 25. 5. where Theophilus has Η σφόδρα ἐπιμελίςατος. + D 19. 2. 25. 7. VOL. VI. Le Brun, p. 93. § Burr. 426. E E gines, that both JUSTINIAN and GAIUS are speaking only of cafes, which from their nature demand extraordinary care *. There is no authority then against the rule, which requires of a hirer the fame degree of diligence, that all prudent men, that is, the generality of mankind, use in keeping their own goods; and the juft diftinction between borrowing and hiring, which the Jewish lawgiver emphatically makes, by faying, "if it be an hired thing, it came for its hire †," remains established by the concurrent wisdom of nations in all ages. If Caius therefore hire a horse, he is bound to ride it as moderately and treat it as carefully, as any man of common difcretion would ride and treat his own horfe; and if, through his negligence, as by leaving the door of his ftable open at night, the horse be ftolen, he must answer for it; but not if he be robbed of it by highwaymen, unless by his imprudence he gave occafion to the robbery, as by travelling at unusual hours, or by taking an unusual road: if, indeed, he hire a carriage and any number of horses, and the owner fend with them his poftilion or coachman, Caius is difcharged from all attention to the horses, and remains obliged only to *Inft. vol. V. p. 138. + Exod. xxii. 15. take ordinary care of the glaffes and infide of the carriage, while he fits in it. Since the negligence of a fervant, acting under his master's directions express or implied, is the negligence of the mafter, it follows, that, if the Servant of Caius injure or kill the horse by riding it immoderately, or, by leaving the stabledoor open, fuffer thieves to fteal it, Caius must make the owner a compenfation for his lofs*; and it is just the fame, if he take a ready-furnished lodging, and his guests, or fervants, while they act under the authority given by him, damage the furniture by the omiffion of ordinary care. At Rome the law was not quite fo rigid; for POMPONIUS, whose opinion on this point was generally adopted, made the master liable, only when he was culpably negligent in admitting careless guests or fervants, whose bad qualities he ought to have known †: but this distinction must have been perplexing enough in practice; and the rule, which, by making the head of a family answerable indifcriminately for the faults of those, whom he receives or employs, compels him to keep a vigilant eye on all his domefticks, is not only more fimple, but more conducive to the publick fecurity, although it may be rather harsh * Salk. 282. Ld. Raym. 619. + D. 19. 2. II. in fome particular inftances * It may here be observed, that this is the only contract, to which the French, from whom our word bailment was borrowed, apply a word of the fame origin; for the letting of a house or chamber for hire is by them called bail à loyer, and the letter for hire, bailleur, that is, bailor, both derived from the old verb bailler, to deliver; and, though the contracts, which are the subject of this essay, be generally confined to moveable things, yet it will not be improper to add, that, if immoveable property, as an orchard, a garden, or a farm, be letten by parol, with no other stipulation than for the price or rent, the leffee is bound to use the fame diligence in preserving the trees, plants, or implements, that every prudent perfon would use, if the orchard, garden, or farm, were his own. 2. Locatio OPERIS, which is properly subdivisible into two branches, namely, faciendi, and mercium vebendarum, has a most extenfive influence in civil life; but the principles, by which the obligations of the contracting parties may be afcertained, are no lefs obvious and rational, than the objects of the contract are often vast and important. Poth. Louage, n. 193. + It may be useful to mention a nicety of the Latin language in the application of the verbs locare and conducere: the em If Titius deliver filk or velvet to a tailor for a fuit of clothes, or a gem to a jeweller to be fet or engraved, or timber to a carpenter for the rafters of his houfe, the tailor, the engraver, and the builder, are not only obliged to perform their feveral undertakings in a workmanly manner*: but, fince they are entitled to a reward, either by exprefs bargain or by implication, they must also take ordinary care of the things respectively bailed to them: and thus, if a horse be delivered either to an agifting farmer for the purpose of depafturing in his meadows, or to an hoftler to be dreffed and fed in his ftable, the bailees are answerable for the loss of the horse, if it be occafioned by the ordinary neglect of themselves or their fervants. It has, indeed, been adjudged, that, if the horse of a gueft be fent to pasture by the owner's defire, the innholder is not, as fuch, refponfible for the lofs ployer, who gives the reward, is locator operis, but conductor operarum; while the party employed, who receives the pay, is locator operarum, but conductor operis. HEINECC. in Pand. par. 3. 320. So, in Horace, "Tu fecanda marmora "Locas" which the ftonchewer or mafon conduxit. * 1 Ventr. 268. erroneously printed 1 Vern. 268. in all the editions of Bl. Comm. II. 452. The innumerable multitude of inaccurate or idle references, in our best reports and law-tracts, is the bane of the ftudent and of the prac |