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AN

ESSAY

ON

THE LAW OF BAILMENTS.

HAVING lately had occasion to examine with some attention the nature and properties of that contract, which lawyers call BAILMENT, or, A delivery of goods on a condition, expresed or implied, that they shall be restored by the bailee to the bailor, or according to his directions, as foon as the purpose, for which they were bailed, fball be answered, I could not but observe with surprise, that a title in our English law, which seems the most generally interesting, should be the least generally understood, and the least precisely afcertained. Hundreds and thousands of men pass through life, without knowing, or caring to know, any of the numberless niceties, which attend our abstruse, though elegant, system of real property, and without being at all acquainted with that exquisite logick, on

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which our rules of special pleading are founded; but there is hardly a man of any age or station, who does not every week and almost every day contract the obligations or acquire the rights of a birer or a letter to hire, of a borrower or a lender, of a depositary or a person depositing, of a commisfioner or an employer, of a receiver or a giver, in pledge; and what can be more absurd, as well as more dangerous, than frequently to be bound by duties, without knowing the nature or extent of them, and to enjoy rights, of which we have no just idea? Nor muft it ever be forgotten, that the contracts above-mentioned are among the principal fprings and wheels of civil fociety; that, if a want of mutual confidence, or any other cause, were to weaken them or obstruct their motion, the whole machine would instantly be disordered or broken to pieces: preferve them, and various accidents may still deprive men of happiness; but destroy them, and the whole species must infallibly be miserable. It seems therefore astonishing, that so important a branch of jurisprudence should have been fo long and so strangely unsettled in a great commercial country;

and that, from the reign of ELIZABETH to the reign of ANNE, the doctrine of bailments should have produced more contradictions and confusion, more diversity of opinion and inconsistency of argument, than any

other part, perhaps, of juridical learning; at least, than any other part equally simple.

Such being the case, I could not help imagining, that a short and perspicuous discussion of this title, an exposition of all our ancient and modern decisions concerning it, an attempt to reconcile judgments apparently discordant, and to illustrate our laws by a comparison of them with those of other nations, together with an investigation of their true spirit and reason, would not be wholly unacceptable to the student of English law; especially as our excellent BLACKSTONE, who of all men was best able to throw the cleareft light on this, as on every other, subject, has comprised the whole doctrine in three paragraphs, which, without affecting the merit of his incomparable work, we may safely pronounce the least satisfactory part of it; for he represents lending and letting to hire, which are bailments by his own definition, as contracts of a diftinet Species; he says nothing of employment by commission; he introduces the doctrine of a distress, which has an analogy to a pawn, but is not properly bailed; and, on the great question of reSponsibility for neglect, he speaks so loosely and indeterminately, that no fixed ideas can be collected from his words*. His commentaries are

2. Comm. 452,453, 454.

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ever it

the moftcorrect and beautifuloutline, that ever was exhibited of any human science; but they alone will no more form a lawyer, than a general map of the world, how accurately and elegantly so

may

be delineated, will make a geographer: if, indeed, all the titles, which he professed only to sketch in elementary discourses, were filled up with exactness and perspicuity, , Englishmen might hope at length to poffefs a digest of their laws, which would leave but little room for controverfy, except in cases depending on their particular circumstances; a work, which every lover of humanity and peace must anxioufly wish to fee accomplifhed. The following esfay (for it aspires to no higher name) will explain my idea of fupplying the omissions, whether designed or involuntary, in the Commentaries on the Laws of ENGLAND.

I propose to begin with treating the subject analytically, and, having traced every part of it up to the first principles of natural reason, shall proceed historically, to show with what perfect harmony those principles are recognised and eftablished by other nations, especially the ROMANS, as well as by our ENGLISH .courts, when their decisions are properly understood and clearly distinguished ; after which I shall resume fynthetically the whole learning of bailments, and expound such rules, as, in my

humble

appre

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