Commentaries on American Law

ought to indemnify him, upon principles of moral, if not of legal obligation. (e)

III. Of Commodatum.

certain time to be

This is a bailment or loan of an article for used by the borrower without paying for the use. This loan for use is to be distinguished from a loan for consumption, or the mutuum of the Roman law. The latter was the loan of corn, wine, oil, and other things that might be valued by weight or measure, and the property was transferred. The value only was to be returned in property of the same kind, and the borrower was to bear the loss of them, even if destroyed by inevitable accident. (ƒ) In the case of the commodatum, or loan for use, as a horse, carriage, or book, the same identical article or thing is to be * 574 returned, and in as good a plight as it was when it was first delivered, subject, however, to the deterioration arising from the ordinary and reasonable use of the loan, and which deterioration the lender is to bear. (a) The borrower has no special property in the thing loaned, though his possession is sufficient for him to protect it by an action of trespass against a wrongdoer. (b) The Roman and the English law coincide in respect to the conclusions on this head. The borrower cannot apply the thing borrowed to any other than the very purpose for which it was borrowed; (c) nor permit any other person to use the thing loaned, for such a gratuitous loan is strictly a personal favor; (d) nor keep it beyond the time limited; (e) nor detain it as a pledge for any demand he may otherwise have against the bailor. (ƒ) If the article perish, or be lost or injured by theft, accident or casualties which could not be foreseen and guarded against, or by the wear and tear of the article in the reasonable use of it, with

(e) Pothier, Contrat de Mandat, Nos. 68-82. Story's Com. §§ 197-201.

(f) Inst. 3, 15. Dig. 12, 1, 2, 1. Idem, 44, 7, 1, 2. Pothier, Prét a Usage, n. 10. Story on Bailment, § 283.

(a) Dig. 13, 6, 19, and 23. Pothier,

Prét a Usage, n. 39. Story's Com. § 269.

(b) Burton v. Hughes, 2 Bing. 173. Hurd v. West, 7 Cowen, 752.

(c) Dig. 47, 2, 40. Pothier, Traité du Prét a Usage, Nos. 20-22. Idem, n. 58, 60. Lord Holt, in Coggs v. Bernard, 2 Ld. Raym. 915. Wheelock v. Wheelwright, 5 Mass. 104. Story's Com. §§ 232, 233.

(d) Bringloe v. Morrice, 1 Mod. 210. Story's Com. §§ 234, 235.

(e) Story's Com. § 257.

(ƒ) Code, 4, 23, 4. Pothier, Prét a Usage, n. 44.

out any blame or neglect imputable to the borrower, the owner must abide the loss. (g) The owner cannot require greater care on the part of the borrower than he had a right to presume the borrower was capable of bestowing. If a spirited horse be lent to a raw youth, and the owner knew him to be such, the circumspection of an experienced rider cannot be required; and what would be neglect in the one, would not be so in the other. (h) 1

Pothier says, that the borrower is bound to bestow on the preservation of the thing borrowed, not merely ordinary, * but 575 the greatest care; and that he is responsible, not merely for slight, but for the slightest neglect. This was the doctrine of the civil law. And so the law was also declared by Lord Holt, in Coggs v. Bernard; and the reason is, that this is a loan made gratuitously for the sole benefit of the borrower. (a) What is due diligence or neglect, will depend upon the circumstances of the particular case, and the nature of the article loaned, and the character and employment of the borrower. He is not liable for the loss of a thing from the wrongful act of a third person which he could not foresee or prevent, nor from external and irrresistible violence; as if he hires a horse for a journey, and he be robbed of the horse, without any neglect or imprudence on his part. (b) If, however, his house should be destroyed by fire, and he saved his own goods, and was not able to save the articles borrowed, without abandoning his own goods; in that case he must pay the loss, because he had less care of the article borrowed than for his

(g) Inst. 3, 15, 2. Dig. 13, 6, 20. Idem, 44, 7, 1, 4. Pothier, Prét a Usage, n. 39, 53. Bell's Com. vol. i. p. 255. Noy's Maxims, 91, ch. 43. Jones on Bailment, 64, 65. If the thing be not returned on a loan to use, the burden of proof naturally and justly lies with the borrower to account satisfactorily for the loss, or pay the value. Pothier, Traité du Prét a Usage, No. 40. Ibid. des. Oblig. No. 620. If the article, a slave, for instance, perish through neglect or imprudent conduct, the borrower must pay the value. Niblett v. White, 7 Louis. 253.

(h) Jones on Bailment, 65. Pothier, Traité du Prét a Usage, No. 49.

(a) Dig. 44, 7, 1, 4. Pothier, Traité du Prét a Usage, Nos. 48-56. 2 Lord Raym. 915. Story's Com. § 238. See, also, Lord Stair's Institutes of the Scotch Law, 1 Inst. p. 1, 11, 9, and which, as Mr. Justice Story observes, includes the substance of the rules concerning the degrees of diligence due from the bailee.1

(b) Dig. 13, 6, 19. Pothier, Traité du Prét a Usage, Nos. 38, 55, 56.

1 A gratuitous lender is not liable for an injury received by the borrower in consequence of a defect in the thing lent, not known to the lender. MacCarthy v. Young, 6 Hurl. & Nor. 329.

1 Howard v. Babcock, 21 Ill. 259.

own property, and gave the preference to his own. (c) But if his own goods were more valuable than the articles borrowed, and both could not be saved, was the borrower bound in that case to prefer the less valuable articles borrowed? Pothier admits this to be a question of some difficulty; but he concludes that the borrower must answer for the loss, because he was not limited to bestow only the same care of the borrowed articles as of his own; he was bound to bestow the exactest diligence in the preservation

of it, and nothing will excuse him but vis major, or in* 576 evitable accident. (d) The borrower is also responsible * for the loss of the article even by vis major, when the accident has been owing to his own imprudence; as if he borrows a horse to ride, and he quits the ordinary and safe road, or goes at a dangerous hour of the night, and is beset by robbers and loses the horse, he is liable. (a) He is liable, also, for inevitable accident, if he had borrowed a horse of his friend in order to save his own, and concealed from his friend that he had one of his own equally proper for the occasion; as if a person borrowed from his friend a cavalry horse, to use in battle, and concealed from him that he had one of his own, and the borrowed horse should be killed, he must pay for it, for this was a deceit practised upon the lender; and nothing would exempt him from this responsibility but the fact that he had previously disclosed to his friend the truth of the case, and his disinclination to hazard his own horse. (b) The borrower is also responsible for loss by inevitable accident, if he has detained the article borrowed beyond the time he ought to have returned it; for the loss is then to be presumed to have arisen

(d) Ibid. No. 56. Mr. Justice Story (Story's Com. §§ 245–251) questions the solidity of Pothier's conclusion in this case, though it be backed by the positive text of the civil law. The reasoning in Pothier is rather refined and artificial, and the plain common sense and justice of the case, and the moral feelings and instincts which arise out of it, would dictate, that the most valuable articles be first snatched from the flames, when a choice was presented. If, however, the difference in value between his own article and the one borrowed be not broadly and distinctly marked, it is safest and most politic to adhere to the rule of the civilians, (which is adopted in the Code Napoleon, art. 1882, and Code of Louisiana, art. 2817,) in order to guard against the neglects and temptations which self-interest might suggest.

(a) Pothier, Traité du Prét a Usage. No. 57. (b) Pothier, Ibid. No. 59.

from his breach of duty. (c) If, in the mean time, the lender has been put to expense from the want of the article borrowed, there are opinions that the borrower is bound to indemnify him for such expenses. But if the borrower was not in default in retaining the article, the better reason and equal authority would exempt him from that responsibility. (d)

The ordinary expenses attendant on the thing loaned gratuitously are borne by the borrower; but if the expenses

* were extraordinary, and arose from the inherent infirmity * 577 of the thing, or were requisite for its preservation without any neglect on the part of the borrower, the lender must bear them, and the borrower has a lien on the article for his reimbursement of such extraordinary expenses. (a)

I have taken these explanations of the degrees of responsibility, in the case of a borrower for use without reward, principally from Pothier. In Coggs v. Bernard, (b) Lord C. J. Holt lays down the same rule precisely; and he took them from Bracton, who borrowed them from the civil law, the great fountain from whence all the valuable principles on the subject of these various kinds of bailments have been extracted. It was reserved, however, for Pothier to methodize, vindicate, and illustrate those principles by a clearness of analysis and of illustration which is admirable; and to shed light and lustre, by means of his chaste style and elegant taste, upon this branch of the science of jurisprudence.

IV. Of pledging.

This was a bailment or delivery of goods by a debtor to his creditor, to be kept till the debt be discharged; or, to use the more comprehensive definition of Mr. Justice Story, (c) it is a bailment of personal property, as security for some debt or engagement.1 All kinds of personal property that are vested and

(d) Pothier, No. 55. (a) Dig. 13, 6, 18, 2. Com. §§ 256, 272, 273.

(b) 2 Lord Raym. 909.

Story's Com. § 257.

Pothier, Traité du Prét a Usage, Nos. 81, 82, 83. Story's

1 It is not easy in every case to determine whether the transaction amounts to a mortgage, or only to a pledge or sale. It would seem, that the question, whether the contract be a

tangible, and also negotiable paper, may be the subject of pledge; and choses in action, resting on written contract, may be assigned in pledge. (d) A pawn or pledge is the pignori acceptum of the civil law; and, according to that law, the possession of the pledge

(pignus) passed to the creditor; but the possession of the *578 thing hypothecated* (hypotheca) did not. (a) The pawnee

is bound to take ordinary care, and is answerable only for ordinary neglect; for the bailment is beneficial to both the debtor and creditor. This is the rule of civil law and of continental

(d) M'Lean v. Walker, 10 Johns. 471. Roberts v. Wyatt, 2 Taunt. 268. Jarvis v. Rogers, 13 Mass. 105. Story's Com. § 290. 2 Bell's Com. 24. The assignment of shares in joint-stock companies, such as banks and railroad corporations, by way of pledge or security for moneys loaned or advances made, is usually effected by delivery of the certificate of the company for the shares given to the borrower, with a power of attorney to the lender to make the actual transfer on the books of the company. The actual transfer is frequently postponed or omitted, but the transfer, or, at least, notice to the company of the right, is deemed requisite to the complete efficacy of the security, otherwise a transfer of the shares by the borrower, on the books of the company, to a bonâ fide purchaser, &c., if permitted, might embarrass, if it did not destroy, the security, inasmuch as the original shareholder would appear, on the books, to be the reputed and true owner. In England, the actual transfer, or, in lieu of it, formal notice to the company by the lender, of the assignment of the shares to him in pledge, is deemed requisite, under their bankrupt laws, in order to divest the reputed ownership in the debtor, as against his assignees in bankruptcy, in case he should become bankrupt before any actual transfer was made. The point is well considered and discussed in the Law Magazine, London, May, 1838, art. 8, (xix. 389,) and the numerous recent authorities in support of the notice are there referred to.2

(a) Dig. 13, 7, 9, 2. Inst. 4, 6, 7. See, further, infra, vol. iv. p. 138, on the distinction between a pledge and a mortgage of goods.

pledge or a mortgage, may generally be decided by determining whether the legal title has passed with a condition of defeasance upon the payment of the debt, or whether a mere right of possession, with an authority to sell, in case of default of payment, is the substance of the agreement. Brownell v. Hawkins, 4 Barb. (N. Y.) 491. Wilson v. Little, 2 Comst. 443. Dykers v. Allen, 7 Hill (N. Y.) 498. Houser v. Kemp, 3 Barr, 208. In the case last cited, the question is discussed whether the contract amounts to a sale, or only to a pledge. See post, p. 589, note (1).

2 In New Hampshire, the transfer on the books of the company is necessary as against creditors of the vendor. Pinkerton v. Man. & L. R. R. 42 N. Hamp. 424. Ex parte, Boulton, 1 De Gex & Jones, 163, adheres to the doctrine stated in the above note.

3 It is not necessary that the possession of the pledge should be actual. Stocks, and, it would seem, equitable interests, may be pledged; and it will be sufficient if, by a proper transfer, the property be put within the power and control of the pledgee. Wilson v. Little, 2 Comst. 443. Story on Bail, § 297. Dykers v. Allen, 7 Hill (N. Y.) 497.

1 An hypothecation may be made of things not in existence, which will attach to the parties' interest in the things when they come into existence. The Hull of New Ship Daveis, Dist. Ct. 199. 1 Hare, 549.

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