the lifts against as many of equal fame, and each fide difplays great ingenuity and addrefs in this juridical tournament. D'AVEZAN fupports the affirmative; and POTHIER, the negative; but the fecond opinion feems the more reasonable. The word PERICULUM, used by ULPIAN, is in itself equivocal: it means hazard in general, proceeding either from accident or from negle&t; and in this latter sense it appears to have been taken by the Roman lawyer in the paffage, which gave birth to the difpute. But, whatever be the true interpretation of that paffage, I cannot fatisfy myself, that, either in the Customary Provinces of FRANCE, or in ENGLAND, a borrower can be chargeable for all events without his confent unequivocally given: if William, indeed, had faid to Paul alternatively, "I promise, on my return to "Oxford, either to reftore your horse or to pay you thirty guineas," he muft in all events have performed one part of this disjunctive obligation*; but, if Paul had only faid, "the horse, "which I lend you for this journey, is fairly "worth thirty guineas," no more could be implied from those words, than a design of preventing any future difficulty about the price, if the horse should be killed or injured through an omiffion of that extraordinary diligence, which the nature of the contract required.

*Palm. 651

Besides the general exception to the rule concerning the degrees of neglect, namely, Si quid convenit vel plus vel minus, another is, where goods are lent for a use, in which the lender has a common intereft with the borrower: in this cafe, as in other bailments reciprocally advantageous, the bailee can be responsible for no more than ordinary negligence; as, if Stephen and Philip invite fome common friends to an entertainment prepared at their joint expence, for which purpose Philip lends a fervice of plate to his companion, who undertakes the whole management of the feaft, Stephen is obliged only to take ordinary care of the plate; but this, in truth, is rather the innominate contract do ut facias, than a proper loan.

Agreeably to this principle, it must be decided, that, if goods be lent for the fole advantage of the lender, the borrower is anfwerable for gross neglect only; as, if a paffionate lover of mufick were to lend his own inftrument to a player in a concert, merely to augment his pleasure from the performance; but here again, the bailment is not fo much a loan, as a mandate; and, if the musician were to play with all due skill and exertion, but were to break or hurt the inftrument without any malice or very culpable negligence, he would not be bound to indemnify the amateur, as he was not in want of the inftrument,

and had no particular defire to use it. If, indeed, a poor artist, having loft or fpoiled his violin or flute, be much diftreffed by this lofs, and a brothermusician obligingly, though voluntarily, offer to lend him his own, I cannot agree with DESPEISSES, a learned advocate of Montpellier and writer on Roman Jaw, that the player may be lefs careful of it than any other borrower: on the contrary, he is bound, in conscience at least, to raise his attention even to a higher degree; and his negligence ought to be construed with rigour.

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By the law of Moses, as it is commonly tranflated, a remarkable distinction was made be tween the lofs of borrowed cattle or goods, happening in the absence, or the presence, of the OWNER; for, fays the divine legislator, "if a "man borrow aught of his neighbour, and it be "hurt or die, the owner thereof not being with it, "he fhall furely make it good; but, if the owner "thereof be with it, he shall not make it good*:" now it is by no means certain, that the original word fignifies the owner, for it may signify the possessor, and the law may import, that the borrower ought not to lose fight, when he can poffibly avoid it, of the thing borrowed; but, if it was intended, that the borrower fhould always

*Exod. xxii. 14, 15.

answer for cafualties, except in the cafe, which must rarely happen, of the owner's prefence, this exception feems to prove, that no casualties were meaned, but fuch as extraordinary care might have prevented; for I cannot fee, what difference could be made by the prefence of the owner, if the force, productive of the injury, were wholly irresistible, or the accident inevitable.

An old Athenian law is preferved by DEMOSTHENES, from which little can be gathered on account of its generality and the use of an ambiguous word*; it is understood by PETIT as relating to guardians, mandataries, and commiffioners; and it is cited by the orator in the case of a guardianship. The Athenians were, probably, fatisfied with speaking very generally in their laws, and left their juries, for juries they certainly had, to decide favourably or feverely, according to the circumftances of each particular cafe.

IV. As to the degree of diligence, which the law requires from a pawnee, I find myself again obliged to diffent from fir EDWARD COKE, with whofe opinion afimilar liberty has before been taken in regard to a depositary; for that for that very learned man

Περὶ ὧν καθαρῆκε τις, ὁμοίως ἐφλισκάνειν, ὥσπερ ἂν αὐτὸς ἔχη. Reifkes edi tion, 855. 3. Here the verb xaupiéval, may imply flight, or ordinary, neglect; or even fraud, as Petit has rendered it.

lays it down, that, "if goods be delivered to

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one as a gage or pledge, and they be stolen, "he shall be discharged, because he hath a pro

perty in them; and, therefore, he ought to "keep them no otherwife than his own*:" I deny the first propofition, the reason, and the conclufion.

Since the bailment, which is the subject of the present article, is beneficial to the pawnee by securing the payment of his debt, and to the pawnor by procuring him credit, the rule, which natural reason prescribes, and which the wisdom of nations has confirmed, makes it requifite for the perfon, to whom a gage or pledge is bailed, to take ordinary care of it; and he must consequently be responsible for ordinary neglect. This is expressly holden by BRACTON; and, when I rely on his authority, I am perfectly aware, that he copied JUSTINIAN almoft word for word, and that lord HOLT, who makes confiderable use of his treatise, obferves three or four times, "that " he was an old author‡;" but, although he had been a civilian, yet he was also a great common-lawyer, and never, I believe, adopted the rules and expreffions of the Romans, except when they coincided with the laws of England + Bract. 99. b..

* 1 Inft. 89. a. 4 Rep. 83. b. ‡ Ld. Raym. 915, 916. 919.