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cumspection, which he would expect from a riding-master or an officer of dragoons*.
From the rule, that a borrower is answerable : for Night neglect, compared with the distinction before made between simple theft and robberyt, it follows, that, if the borrowed goods be stolen out of his possession by any person whatever, he must pay the worth of them to the lender, unless he prove, that they were purloined notwithstanding his extraordinary care. The example, given by JULIAN, is the first and best that occurs : Caius borrows a silver ewer of Titius, and afterwards delivers it, that it may be safely reftored, to a bearer of such approved fidelity and wariness, that no event could be less expecied than its being stolen ; if, after all, the bearer be met in the way by scoundrels, who contrive to steal it, Caius appears to be wholly blameless, and Titius has suffered damnum hne injuriâ. It seems hardly necessary to add, that the same
which the bailee is bound to take of the principal thing bailed, must be extended to such accessory things, as belong to it, and were delivered with it: thus a man, who borrows a watch, is responsible for Night neglect of the chain and seals.
Although the laws of Rome, with which those
* Dumoulin, tract. De eo quod interest, n. 185. + See p. 370. and notet.
of England in this respect agree, most expressly decide, that a borrower, using more than ordinary diligence,
shall not be chargeable, if there be a force which he cannot refift*, yet PUFENDORF employs much idle reasoning, which I am not idle enough to transcribe, in support of a new opinion ; namely,
“ that the borrower ought to indemnify the lender, if the goods lent be de
stroyed by fire, shipwreck, or other inevitable “ accident, and without bis fault, unless his own
perish with them:" for example, if Paul lend William a horse worth thirty guineas to ride from Oxford to London, and William be attacked on a heath in that road by highwaymen, who kill or seize the horse, he is obliged, according to PUFENDORF and his annotator, to pay thirty guineas to Paul. The justice and good sense of the contrary decision are evinced beyond a doubt by M. Pothier, who makes a distinction between those cases, where the loan was the occafion merely of damage to the lender, who might in the mean time have sustained a loss from other accidents, and those, where the loan was the sole efficient cause of his damaget; as if Paul, having lent his horse, should be forced in the interval by some pressing business to bire an
* D. 44. 7. 1. 4. Ld. Raym. 916.
+ Poth. Prêt à Usage, n. 55. Puf. with Barbeyrai's notes, B. 5. C. 4. 6.
other for himfelf; in this case the borrower ought, indeed, to pay for the hired horse, unless the lender had voluntarily submitted to bear the inconvenience caused by the loan; for, in this sense and in this instance, a benefit conferred jould not be injurious to the benefactor. As to a condition prefumed to be imposed by the lender, that he would not abide by any lofs occasioned by the lending, it seems the wildest and most unreasonable of prefumptions: if Paul really intended to impose fuch a condition, he should have declared his mind; and I persuade myself, that William would have declined a favour fo hardly obtained.
Had the borrower, indeed, been imprudent enough to leave the high road and pass through fome thicket, where robbers might be supposed to lurk, or had he travelled in the dark at a very unfeasonable hour, and had the horse, in either cafe, been taken from him or killed, he must have indemnified the owner; for irresistible force is no excuse, if a man put himself in the way of it by his own rashness. This is nearly the case, cited by St. German from the Summa Rosella, where a loan must be meaned, though the word depositum be erroneously used*; and it is there decided, that, if the borrower of a horse will im
* Deci, and Stud. where before cited.
prudently ride by a ruinous house in manifeft danger of falling, and part of it actually fall or the horse's head, and kill him, the lender is entitled to the price of him; but that, if the house were in good condition and fell by the violence of a sudden hurricane, the bailee shall be difcharged. For the same, or a stronger, reason, if William, instead of coming to London, for which purpose the horse was lent, go towards Bath, or, having borrowed him for a week, keep him for a month, he becomes responsible for any accident, that may
befall the horse in his journey to Bath, or after the expiration of the week*.
Thus, if Charles, in a case before putt, wear the masked habit and jewels of George at the ball, for which they were borrowed, and be robbed of them in his return home at the usual time and by the usual way, he cannot be compelled to pay George the value of them; but it would be otherwise, if he were to go with the jewels from the theatre to a gaming-house, and were there to lose them by any casualty what. ever. So, in the instance proposed by GAIUS in the digest, if silver utensils be lent to a man for the purpose of entertaining a party of friends at supper in the metropolis, and he
carry into tbe country, there can be no doubt of his ob
ligation to indemnify the lender, if the plate be loft by accident however irresistible.
There are other cases, in which a borrower is chargeable for inevitable mischance, even when he has not, as he legally may, taken the whole risk upon himself by express agreement. For example, if the house of Caius be in flames, and he, being able to secure one thing only, save an urn of his own in preference to the silver ewer, which he had borrowed of Titius, he shall make the lender a compensation for the loss; especially if the ewer be the more valuable, and would consequently have been preferred, had he been owner of them both: even if his urn be the more precious, he must either leave it, and bring away the borrowed vessel, or pay Titius the value of that, which he has lost; unless the alarm was so sudden, and the fire so violent, that no deliberation or selection could be justly expected, and Caius had time only to snatch up the first utensil, that presented itself.
Since openness and honesty are the soul of contracts, and since “ a suppression of truth is often
as culpable as an express falsehood," I accede to the opinion of M. POTHIER, that, if a soldier were to borrow a horse of his friend for a battle expected to be fought the next morning, and were to conceal from bim, that bis own horse was as fit for the service, and if the horse, so bor