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 fupport of a new opinion; namely, "that the borrower ought to

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indemnify the lender, if the goods lent be de"ftroyed by fire, fhipwreck, or other inevitable "accident, and without his fault, unless his own "perifh with them :" for example, if Paul lend William a horfe worth thirty guineas to ride from Oxford to London, and William be attacked on a heath in that road by highwaymen, who kill or feize the horse, he is obliged, according to PUFENDORF and his annotator, to pay thirty guineas to Paul. The juftice and good sense of the contrary decifion are evinced beyond a doubt by M. POTHIER, who makes a diftinction between those cases, where the loan was the occafion merely of damage to the lender, who might in the mean time have fuftained a lofs from other accidents, and thofe, where the loan was the fole efficient caufe of his damaget; as if Paul, having lent his horse, should be forced in the interval by fome preffing business to hire an

* D. 44. 7. I. 4. Ld. Raym. 916.

+ Poth. Prêt à Ufage, n. 55. Puf. with Barbeyrac', notes, B. 5. C. 4. § 6.

other for himself; in this cafe the borrower ought, indeed, to pay for the hired horfe, unless the lender had voluntarily fubmitted to bear the inconvenience caused by the loan; for, in this sense and in this inftance, a benefit conferred fhould not be injurious to the benefactor. As to a condition prefumed to be impofed by the lender, that he would not abide by any lofs occafioned by the lending, it feems the wildeft and moft unreasonable of prefumptions: if Paul really intended to impose fuch a condition, he fhould have declared his mind; and I perfuade myfelf, 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 fuppofed to lurk, or had he travelled in the dark at a very unfeafonable hour, and had the horfe, in either cafe, been taken from him or killed, he must have indemnified the owner; for irrefiftible force is no excufe, if a man put himfelf in the way of it by his own rashness. This is nearly the cafe, cited by St. German from the Summa Rofella, where a loan must be meaned, though the word depofitum be erroneoufly ufed*; and it is there decided, that, if the borrower of a horse will im

* Doc. and Stud. where before cited.

prudently ride by a ruinous house in manifeft danger of falling, and part of it actually fall on 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 fudden hurricane, the bailee shall be dif charged. 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 cafe 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 ufual time and by the ufual way, he cannot be compelled to pay George the value of them; but it would be otherwife, if he were to go with the jewels from the theatre to a gaming-house, and were there to lose them by any casualty whatever. So, in the instance propofed by GAIUS in the digeft, if filver utenfils be lent to a man for the purpose of entertaining a party of friends at fupper in the metropolis, and he carry them into the 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 cafes, in which a borrower is chargeable for inevitable mifchance, 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 fecure one thing only, fave an urn of his own in preference to the filver ewer, which he had borrowed of Titius, he fhall make the lender a compenfation for the lofs; especially if the ewer be the more valuable, and would confequently 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 veffel, or pay Titius the value of that, which he has loft; unless the alarm was fo fudden, and the fire fo violent, that no deliberation or felection could be justly expected, and Caius had time only to fnatch up the first utenfil, that prefented itself.

Since openness and honefty are the foul of contracts, and fince" a fuppreffion of truth is often "as culpable as an exprefs falfehood," 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 him, that his own horfe was as fit for the fervice, and if the horse, so bor

rowed, were flain in the engagement, the lender ought to be imdemnified; for probably the diffimulation of the borrower induced him to lend the horse; but, had the foldier openly and frankly acknowledged, that he was unwilling to expofe his own horfe, fince, in cafe of a lofs, he was unable to purchase another, and his friend, nevertheless, had generously lent him one, the lender would have run, as in other. inftances, the risk of the day.

If the bailee, to use the Roman expreffion, be IN MORA, that is, if a legal demand have been made by the bailor, he must answer for any cafualty that happens after the demand; unless in cafes, where it may be strongly prefumed, that the fame accident would have befallen the thing bailed, even if it had been reftored at the proper time; or unless the bailee have legally tendered the thing, and the bailor have put himself in morâ by refufing to accept it: this rule extends of course to every species of bailment.

"Whether, in cafe of a valued loan, or, where "the goods lent are estimated at a certain price, "the borrower must be confidered as bound in "all events to restore either the things lent or "the value of them," is a queftion, upon which the civilians are as much divided, as they are upon the celebrated claufe in the law Contractus: five or fix commentators of high reputation enter