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of the borrower.a But the borrower is not liable for the loss of the thing by external and irresistible violence; as if he hire a horse for a journey, and he be robbed of the horse, without any neglect or imprudence on his part. If however, his house should be destroyed by fire, and he saved his own goods, and was not able to save the article borrowed without abandoning his own goods; in that case he must pay for the loss, because he had less care of the article borrowed than of his own property, and gave the preference to his own. 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 article 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 article 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 inevitable accident. 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. He is liable also for inevitable ac cident, 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 of 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 kill
a Traité du Pret a Usage, No. 48, 49.
b Ibid. No. 55, 56.
c Ibid. No. 56.
d Ibid. No. 56.
e Ibid. No. 57.
ed 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. 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 from his breach of duty.b
I have taken these explanations of the degrees of responsibility, in the case of a borrower for use without reward, from Pothier. In Coggs v Bernard, Lord Ch. J. Holt lays down the same rules 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 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 is a bailment or delivery of goods by a debtor to his creditor, to be kept till the debt be discharged. It 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 thing hypothecated (hypotheca) did not. The pawnee is bound to take ordinary care, and is answerable for ordinary neglect, and no more; for the bailment is beneficial to both the debtor and credi
tor. The pawnee is secured in the payment of his debt; and the pawnor is enabled thereby to procure credit. Lord Holt, in Coggs v. Bernard, gives a clear and excellent summary of the English law on this species of bailment. The pawnee has a special property in the goods pawned; and if they be such as to be injuried by use, as clothes or linen, for instance, then the pawnee cannot use them. But if they be such as not to be the worse for use, as jewels, ear-rings, or bracelets pawned to a lady, she to whom they are pawned may use them, though the use is at her peril, because she is at no charge in keeping the pawn. She will be responsible in every event for the loss or damage which may happen while she is using the jewels. If the pawn be of such a nature as to be a charge upon the pawnee, as a horse or cow, he may, in that case, use the pawn in a reasonable manner. He may ride the horse moderately, and milk the cow regularly, as if he were the owner; and if he derives any profit from the pledge, he must apply those profits towards his debt." In general, the law requires nothing extraordinary of the pawnee, but only that he shall take ordinary care of the goods; and if they should then happen to be lost, he may, notwithstanding, resort to the pawnor for his debt. If however, he refuses to deliver the pawn on tender of the debt, his special property then ceases, and he becomes a wrong doer, and will be answerable, at all events, for any loss or damage which may afterwards happen to the pawn. It was likewise admitted in Morse v. Conham, that the pawnee might assign over the pawn, and the assignee would take it under all the responsibility of the original pawnee.
If the pawn be stolen from the pawnee, he is prima facie liable; for it would be evidence that he had not used ordinary care, and it would lay upon him to show, by the
a Mores v. Conham, Owen, 123. Pothier, Contral de Nantissement, 23. 35.36. Civil code of Louisiana, art. 3135.
b 2 Lord Raym, 916, 917.
circumstances, that he was in no default. Sir William Jones" enters into a critical examination of the cases, to prove that the pawnee is responsible, if the pawn be stolen or taken from him clandestinely, and not if it be robbed or taken from him by violence. The ground he takes is, that the loss of the pawn by theft is evidence of ordinary neglect ; and he vindicates his principle against a contrary doctrine of Lord Coke, with great acuteness and learning. Lord Coke held,b that if the goods were delivered to one in pledge, and they were stolen, he should not be answerable for them; for he only undertook to keep them as his own. The opinion of Lord Holt would rather seem to agree with that of Coke, as he refers to him on this point without objection; and he says, that if the pawnee uses true diligence, and the pawn be lost, he is not responsible. Bracton uses the same language. If the pawnee bcstows an exact diligence, and the pawn be lost by chance, he is not responsible for the loss. Bracton took all his principles from the Roman law; and Pothier has written a particular treatise upon this identical species of contract.d He discusses the question, what degree of care the pawnee is bound to bestow upon the pawn ; and as it is a contract made for the reciprocal benefit of the contracting parties, the creditor is bound to bestow upon the preservation of the pledge ordinary care. He is bound, according to the civil law, to bestow that care which a careful man bestows upon his own property. He is not bound to bestow the exactest diligence, as in the case of a loan to use, which is beneficial to the bailee only, nor is he responsible for the smallest neglect. He is responsible for light, but not the lightest neglect, de levi culpa, and not de levissima culpa.e
a Essay on Bailment, p. 33. 59, 60. 62, 63.
b Co. Litt. 89. a. 4 Co. 83. b.
c Bracton, 99. b.
d Pothier, Contrat de Nantissement.
e Ibid. n, 32. 36.
The rule would appear to be, that the pawnee was neither absolutely liable, nor absolutely excusable, if the pledge be stolen. It would depend upon circumstances, whether he was or was not able. A theft may happen without even a slight neglect on the part of the possessor of the chattel; and I think it would be going quite far enough, to hold that such a loss is prima facie evidence of neglect, and that it lays with the pawnee to destroy the presumption. It is not sufficient, says Pothier, that the pawnee allede that the pledge is lost. He must show how it was lost, and that it was not in his power to prevent it. This was also the decision of the civil law. a
In the case of Cortelyou v. Lansing, it was shown, by a careful examination of the old authorities, to have been the ancient and settled English law, that delivery was esc sential to a pledge, and that the general property did not pass as in the case of a mortgage, but remained with the pawnor. If the pledge was not redeemed by the stipulated time, it did not then become the absolute property of the pawnee, but he was obliged to have recourse to process of law to sell the pledge; and until that was done, the pawnor was entitled to redeem. If the pledge was for an indefinite term, the creditor might, at any time, call upon the debtor to redeem by the same process of demand. Where no time was limited for the redemption, the pawnor had his own lifetime to redeem, unless the creditor, in the mean time, called upon him to redeem; and if he died without such call, the right to redeem descended to his personal representatives. The English law now is, that after the debt is due, the pawnee has the election of two remedies. He may file a bill in chancery, and have a judicial sale under a regular decree of foreclosure; and this has frequently been done in the case of stock, bonds, plate, and
a Contrat de Nantissement, No. 31. b 2 Caines' Cases in Error, 200.