or if he used the ner not war

goods in a man

ranted by the terms of the loan Vide. ante 68, 69.

should lend another a horse, to go Westward, or for a month; if the bailee if the bailee go Northward, or keep the horse above a month, if any accident happen to the horse in the Northern journey, or after the expiration of the month, the bailee will be chargeable; because he has made use of the horse contrary to the trust he was lent to him under, and it may be if the horse had been used no otherwise than he was lent, that accident would not have befallen him. This is mentioned in Bracton, ubi supra: his words are, Is autem cui res aliqua utenda datur, re obligatur, quæ commodata est, sed magna differentia est inter mutuum et commodatum; quia is qui rem mutuam accepit, ad ipsam restituendam tenetur, vel ejus 2Ld. Raym. pretium, si forte incendio, ruina, naufragio, aut latronum vel hostium incursu, consumpta fuerit, vel deperdita, subtracta vel ablata. Et qui rem utendam accepit, non sufficit ad rei custodiam, quod talem diligentiam adhibeat, qualem suis propriis adhibere solet, si alius eam diligentius potuit custodire; ad vim autem majorem, vel casus fortuitos non tenetur quis, nisi culpa sua intervenerit. Ut si rem sibi commodatam domi, detulerit cum peregre profectus fuerit, et illam incursu hostium vel prædonum, vel naufragio amiserit non est dubium quin ad rei restitutionem teneatur. I cite this author, though I confess

rebus

secum

he

916.

Note in the
me, it is com-
that must be a
mistake, as you

Bracton before

modatam, but

will find by

Justinian, ubi whence Bracton has taken all and that almost

supra, from

his distinctions,

word for word.

002

he is an old one, because his opinion is reasonable, and very much to my present purpose, and there is no authority in the law to the contrary. But if the bailee put this horse in his stable, and he were stolen from thence, the bailee shall not be answerable for him. But if he or his servant leave the house or stable doors open, and the thieves take the opportunity of that, and steal the horse, he will be chargeable; because the neglect gave the thieves the occasion to steal the horse. Bracton says, the bailee must use the utmost care, but yet he shall not be chargeable, where there is such a force as he cannot resist.

As to the third sort of bailment, scilicet loca tio or lending for hire, in this case the bailee is also bound to take the utmost care and to return

the goods, when the time of the hiring is expired. And here again I must recur to my old author, fol. 62. b. Qui pro usu vestimentorum auri vel argenti, vel alterius ornamenti, vel jumenti, mercedem dederit vel promiserit, talis ab eo desideratur custodia, qualem (a) diligentissimus paterfamilias suis rebus adhibet, quam si præstiterit, et rem aliquo casu amiserit, ad rem restituendam non tenebitur. Nec sufficit aliquem talem diligentiam adhibere, qualem suis rebus propriis adhiberet,

nisi

nisi talem adhibuerit, de qua superius dictum est, From whence it appears, that if goods are let out for a reward, the hirer is bound to the utmost diligence, such as the most diligent father of a family uses; and if he uses that, he shall be discharged. But every man, how diligent soever he be, being liable to the accident of robbers, though a diligent man is not so liable as a careless man, the (a) bailee shall not be an- (a) D. acc. 2 Ld. swerable in this case, if the goods are stolen.

Raym. 1087.

(6) S. P. 3 Salk. Salk 522.

248. Holt 528.

As to the fourth sort of bailment, viz. vadium or a pawn, in this I shall consider two things; first, what property the pawnee has in the pawn or pledge, and secondly, for what neglects he shall make satisfaction. As to the first, he has a special property, for (b) the pawn is a securing to the pawnee, that he shall be repaid his debt, and to compel the pawnor to pay him. But if the pawn be such as it will be the worse for using, the (c) pawnee cannot use it, as clothes, &c. but if it be such, as will be () S. P. 3. Salk. never the worse, as if jewels for the pawned to a lady, she (d) might use them. But (4) S. P. 3 Salk. then she must do it at her peril, for whereas,

purpose were

if

2Ld. Raym.

917.

2 8 Holt 528. Salk. $22.

268. Holt 28. Salk 522. vide

she keeps them locked up in her cabinet, if her ante 85, 81. cabinet should be broke open, and the jewels

taken

If a pawnee use the pawn about th. keeping of which he is at no charge, he is answerable at all events for any loss or damage which may hap

pen with respect effect is Ow. 123.

to it whil he is using it. S. P. 3 Salk. 268. Holt 58. Salk. 522. vide ante 80, 81.

(a) S. P. 3 Salk.

Salk. 522 vide

ante 80, 81,

taken from thence, she would be excused; if she wears them abroad, and is there robbed of them, she will be answerable. And the reason is, because the pawn is in the nature of a deposit, and as such is not liable to be used. And to this effect is Ow. 123. But if the pawn be of such a nature, as the pawnee is at any charge about the thing pawned, to maintain it, as a horse, cow, &c. then (a) the pawnee may use the horse in a reasonable manner, or milk the cow, &c. 268. Holt 28. in recompence for the meat. As to the second point Bracton 99, b. gives you the answer. Creditor, qui pignus accepit, re obligatur, et ad illam restituendam tenetur ; et cum hujusmodi res in pignus data sit utriusque gratia, scilicet debitoris, quo magis ei pecunia crederetur, et creditoris quo magis ei in tuto sit creditum, sufficit ad ejus rei custodiam diligentiam exactam adhibere, quam si præstiterit, et rem casu amiserit, securus esse possit, nec impedietur creditum petere. In effect, if a creditor takes a pawn, he is bound to restore it upon the payment of the debt; but yet it is sufficient, if the pawnee use true dili

The pawnce of

goods is responsible for an loss or damage with respect to the pawn while he is warranted in detaining it, if it was occasion

gence, and he will be indemnified in so doing, and notwithstanding the loss, yet he shall resort Agreeable to this

ed by his negli to the pawnor for his debt.

gence. Vide

ante 75.

is 29 Ass. 28. and Southcote's case is. But in

deed

deed the reason given in Southcote's case is, be
cause the pawnee has a special property in the
pawn. But that is not the reason of the case;
and there is another reason given for it in the
Book of Assize, which is indeed the true reason
of all these cases, that the law requires nothing
extraordinary of the pawnee, but only that he
shall use an ordinary care for restoring the goods.
But indeed, if the money for which the goods
were pawned, be tendered to the pawnee before
they are lost, then the pawnee shall be answer
able for them; because the pawnee, by detain
ing them after the tender of the money, is a
wrong-doer, and it is a wrongful detainer of the
goods, and the special property
of the pawnee is
determined. And a man that keeps goods by
wrong, must be answerable for them at all events,
for the detaining of them by him is the reason
of the loss. Upon the same difference as the
law is in relation to pawns, it will be found to
stand in relation to goods found.

As to the fifth sort of bailment, viz. a delivery to carry or otherwise manage, for a reward to be paid to the bailee, those cases are of two sorts; either a delivery to one that exercises a public employment, or a delivery to a private

person.