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by the nature of a contract which lies in fefance, agreeably to the distinction with which I began this article. As judgement, indeed, was to be given on the record merely, it was unnecessary, and might have been improper, to have extended the proposition beyond the point then before the court; but I cannot think, that the narrowness of the proposition in this instance affects the general doctrine, which I have presumed to lay down; and, in the strong case of the shepherd, who had a flock to keep, which he suffered through negligence to be drowned, neither a reward nor a special undertaking are stated*: that case, in the opinion of justice TOWNSEND, depended upon the distinction between a bargain executed and executory; but I cannot doubt the relevancy of an action in the second case, as well as the first, whenever actual damage is occasioned by the nonfefancet.
There seems little necessity after this, to mention the case of PowTUARY and WALTON, the reason of which applies directly to the present subject; and, though it may be objected that the defendant was stated as a farrier, and must be
* Yearb. 2 Hen. VII, 11.
+ Stath. Abr. tit. Accions sur le cas, pl. 11. By justice Pafton, “ fi un ferrour face covenant ove moy de ferrer mon chival,
qe fil ne ferra mon chival, uncore jeo averai accion “ sur mon cas, qar en son default paraventure mon chival eft
presumed to have acted in his trade, yet chief
justice ROLLE intimates no such presumption; but says expressly, that “ an action on the case “ lies upon this matter, without alledging ang con
fideration: for the negligence is the cause of " action, and not the assumpt*.”
A bailment without reward to carry from place to place is very different from a mandate to perform a work; and, there being nothing to take it out of the general rule, I cannot conceive that the bailee is responsible for lefs than grofs neglect, unless there be a special acceptance: for instance, if Stephen desire Philip to carry a diamond-ring from Bristol to a person in London, and he put it with bank-notes of his own into a letter-case, out of which it is stolen at an inn, or seized by a robber on the road, Philip shall not be answerable for it; although a very careful, or perhaps a commonly prudent, man would have kept it in his purse at the itin, and have concealed it somewhere in the carriage; but, if he were to secrete his own notes with peculiar vigilance, and either leave the diamond in an open room, or wear it on his finger in the chaise, I think he would be bound, in case of a loss by stealth or robbery, to restore the value of it to Stephen: every thing, therefore, that has been expounded
in the preceding article concerning deposits, may be applied exactly to this sort of bailment, which may be considered as a subdivision of the second species.
Since we have nothing in these cases analogous to the judgements of infamy, which were often pronounced at Rome and Athens, it is hardly necessary to add, what appears from the speech of Cicero for S. Roscius of Ameria, that " the “ ancient Romans considered a mandatary as infamous, if he broke his engagement, not only by actual fraud, but even by more than ordinary negligence*."
As to exceptions from the rule concerning the degree of neglect, for which a mandatary is responsible, almost all, that has been advanced before in the article of depofits, in regard to a special convention, a voluntary offer, and an interest accruing to both parties, or only to the bailee, may be applied to mandates: an undertaker of a work for the benefit of an absent person, and without his knowledge, is the negotiorum gestor of the civilians, and the obligation resulting from
* “In privatis rebus, fi quis rem mandatam non modo ma. “ litiofiùs geflisset, fui quæftûs aut commodi causâ, verùm etiam “ negligentiùs, eum majores summum admififfe dedecus exifti" mabant: itaque mandati conftitutum eft judicium, non minùs
tùrpe quàm furti.” Pro S. Rofc. p. 116. Glasg.
implied Contract has been incidentally mentioned in a preceding page.
III. On the third species of bailment, which is one of the most usual and most convenient in civil society, 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 use, to distinguish it from their loan for consumption, 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 measure, and are to be restored only in equal value or quantity*: this latter contract, which, according to St. GERMAN, is most 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 absolute pro
* Doct. and Stud. dial. 2. ch. 38. Bract. 99. a. b. In Ld. Raym. 916. where this passage from Brachon is cited by the chief justice, mutuam is printed for commodatam ; but what then can be made of the words ad ipsam restituendam? There is certainly some mistake in the passage, which must be very ancient, for the oldest MS. that I have seen, is conformable to Totteľ's edition. I suspect the omission of a whole line after the word precium, where the manuscript has a full point; and possibly the sentence omitted may be thus supplied from Juftinian, whom Bracion copied: “ At is, qui mutuum accepit, “ obligatus remanet," fi forte incendio, &c. Int. 3. 13. 2.
perty of them is transferred to the borrower, who must bear the loss of them, if they be destroyed by wreck, pillage, fire, or other inevitable misfortune. Very different is the nature of the bailment in question; for a horse, a chariot, a book, a greyhound, or a fowling-piece, which are lent for the use of the bailee, ought to be redelivered specifically; and the owner must abide the loss, 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 construed rigorously, and, although fight, makes him liable to indemnify the lender; nor will his incapacity to exert more than ordinary attention avail him on the ground of an impossiHility, “ which the law, says the rule, never de“ mands;" for that maxim relates merely to things absolutely impossible ; and it was not only very posible, 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 supposed to have demanded no higher care, than that of which such a person was capable; as, if Paul lend a fine horse to a raw youth, he cannot exact the same degree of management and cir