prefumed to have acted in his trade, yet chief juftice ROLLE intimates no fuch prefumption; but fays exprefsly, that "an action on the case "lies upon this matter, without alledging any con

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fideration: for the negligence is the cause of action, and not the affumpfit*."

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 less than gross neglect, unless there be a special acceptance: for inftance, if Stephen defire Philip to carry a diamond-ring from Bristol to a perfon in London, and he put it with bank-notes of his own into a letter-cafe, out of which it is ftolen 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 purfe at the inn, and have concealed it somewhere in the carriage; but, if he were to fecrete his own notes with peculiar vigilance, and either leave the diamond in an open room, or wear it on his finger in the chaife, I think he would be bound, in cafe of a lofs by stealth or robbery, to restore the value of it to Stephen: every thing, therefore, that has been expounded

Ro. Abr. ic.

in the preceding article concerning depofits, may be applied exactly to this fort of bailment, which be confidered as a subdivision of the second

may species.

Since we have nothing in these cafes analogous to the judgements of infamy, which were often. pronounced at Rome and Athens, it is hardly neceffary to add, what appears from the speech of CICERO for S. Roscius of Ameria, that "the ancient Romans confidered a mandatary as in"famous, if he broke his engagement, not only by actual fraud, but even by more than ordinary negligence*."

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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 perfon, and without his knowledge, is the negotiorum geftor of the civilians, and the obligation resulting from

* "In privatis rebus, fi quis rem mandatam non modo ma • "litiofiùs geffiffet, fui quæftûs aut commodi caufà, verùm etiam "negligentiùs, eum majores fummum admififfe dedecus exifti"mabant: itaque mandati conftitutum eft judicium, non minùs "tùrpe quàm furti." Pro S. Rofc. p. 116. Glafg.

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

III. On the third fpecies of bailment, which is one of the most usual and most 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 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 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 juftice, 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 seen, is conformable to Tottel's edition. I fufpect the omiffion of a whole line after the word precium, where the manufcript has a full point; and poffibly the fentence omitted may be thus fupplied from Juftinian, whom Bracton 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 lofs of them, if they be deftroyed 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 ufe 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 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 such a person 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 anfwerable · for flight neglect, compared with the distinction before made between fimple theft and robbery†, it follows, that, if the borrowed goods be stolen out of his poffeffion by any perfon whatever, he must pay the worth of them to the lender, unlefs 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 stolen; if, after all, the bearer be met in the way by fcoundrels, who contrive to fteal it, Caius appears to be wholly blameless, and Titius has fuffered damnum fine injuria. It seems 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 those

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