men employ in their own affairs; and he is responsible for even slight negligence, whereby the property is lost or injured. The omission of the most exact and scrupulous caution, or any want of prudence, is regarded as a culpable neglect in the borrower.1

2

The borrower does not insure the safety of the goods; and he is not liable for them, where he keeps and uses them with due care, and in the manner permitted by the terms of the loan; he is not liable where the chattel dies, or is stolen, or is destroyed by fire, without any negligence on his part.3 The risk of losses like these abides with the owner, unless

1 Scranton v. Baxter, 4 Sand. R., 5; cited in Moore v. Westervelt, 27 N. Y., 234, 243; Howard v. Babcock, 21 Ill., 259; Bennett v. O'Brien, 37 Ill., 250; Ross v. Clark, 27 Mo. (6 Jones), 549; Green v. Hollingsworth, 5 Dana (Ky.), 173; ante $5.

Lord Holt, in Coggs v. Bernard, states the doctrine on this point thus: The borrower is bound to the strictest care and diligence to keep the goods, so as to restore them back again to the lender, because the bailee has a benefit by the use of them, so as if the bailee be guilty of the least neglect, he will be answerable. 2 Ld. Raymd., 909, 916. It is to be noticed that he states the liability of the bailee for hire, in terms quite as strong, holding that he also is bound to the utmost diligence, such as the most diligent father of a family uses. Mr. Justice Blackstone also classes these two kinds of bailment together, and describes them in nearly the same words, but evidently without any intention of stating accurately the degree of care demanded in each. Sir William Jones notices this similarity of language, used in reference to contracts quite dissimilar, and contends that Chief Justice Holt was misled by Bracton, on whose authority he relied; that the language of Bracton is copied exactly from Justinian; that Justinian states in the proem to his Institutes, that his decisions on that work were extracted principally from the commentaries of Gaius; and that the epithet dilligentissimus, which comes down through Bracton, is in fact used by that ancient lawyer, and by him alone, on the subject of hiring. Jones on Bailm., 86, 87. Sir William mentions that Gaius is remarked for writing with energy, and for being fond of using superlatives where all other writers are satisfied with positives; certainly if this view, which is very plausible, be correct, it must be admitted that the energetic Gaius has succeeded in prolonging the emphasis of that word through an unusual lapse of time. It is, however, plain that the use of the word diligens in the place of dilligentissimus, in the passage quoted, will alter its entire meaning, so as to make it conform to the doctrine as now settled, which demands of the bailee for hire, only the ordinary care which diligent men take of their own goods. Jones on Bailm., 87. But the borrower, who alone receives benefit from the loan, is bound to the use of extraordinary care, such as the most diligent and prudent men use in securing their own goods.

2 Camoys v. Scurr, 9 Carr & Payne, 383; see Hard v. Neaving, 44 Barb., 472, 488; S. C. reversed on other grounds, 35 N. Y., 302.

3 Wood v. McClure, 7 Ind., 155; Millon v. Salisbury, a case of hiring, 13 John. R., 211; Hyland v. Paul, 33 Barb., 241, 245; Chitty on Contracts, ed. of 1851, p. 630, note.

the bailee has failed in his duty to anticipate and guard against the danger.

The nature of the property must be considered, as in other cases, in determining the kind of care for which the borrower is answerable. For though the law exacts the same degree of care over all borrowed goods and chattels, it is evident that a different kind of vigilance must be employed in the use of a horse, a watch, a book, or a sleigh. The ordinary mode of using the chattel, the attention required in keeping it, and the dangers to which it is naturally exposed, usually indicate the manner in which it should be guarded and preserved. E. g., in the safe-keeping of a carriage, the borrower must take reasonable care to house it in a safe building; and in the keeping of a horse he will be justified in stabling or turning him out to pasture, according to the custom of the place; and he will not be held liable for an injury to the horse, arising from a fall on a hillside or sloping field, used as a common pasture.2

§ 136. The borrower of a horse may not be liable for the want of reasonable intelligence and skill; and it has been asserted that the lender who knows perfectly his inexperience and incapacity, must be content with that degree of care and skill actually possessed by the borrower. And it is clear that a man who lends a horse to a minor, cannot recover against him in an action grounded on the contract; nor in an action of tort, without showing some positive or tortious misuse or misappropriation of the property. With this exception the borrower of a horse is certainly bound for the exercise of reasonable care and skill in driving and feeding and watering him. He is without any question bound for the exercise of as much intelligence and discretion as a bailee for hire.*

We have seen that a depositary or mandatary may be held liable for a loss of money entrusted to him, though he take the same care of it as he does of his own, where it is shown to have been lost through his gross negligence. To lessen the borrower's responsibility below the rule fixed by law, it would be necessary, it should seem, to show a state of facts from which it might reasonably be left to the jury to find a special contract to that effect. The loan is usually an act of friendship, and the lender knows both the borrower's character and how the thing loaned is to be used; and where a man lends a horse to a friend, whose

1 Searle v. Laverick, 22 W.-R., 367, L. R. 9 Q. B., 122; a case of hire, justifying the statement in the text.

2 Fortune v. Harris, 6 Jones Law (N. C.), 532.

* Ante, § 50.

Mooers v. Larry, 15 Gray (Mass.), 451; Eastman v. Sanborn, 3 Allen (Mass.), 594.

Tracy v. Wood, 3 Mason, 132; 2 Kent's Comm., 562.

mode of driving he is well acquainted with, to be harnessed with another and driven to a place named within a given time, it may fairly be presumed as matter of fact that the lender agreed to assume the risks attending the use contemplated.1

§ 137. The civil law, which is quoted to show that the character of the borrower, being known to the lender as that of a careless or rash man, will lessen his liability, makes distinctions not recognized under the common law. Thus the Code of Louisiana lays it down as the general principle, that the depositary is bound to use the same diligence in preserving the deposit, as he uses in preserving his own property; and then provides that the principle shall be enforced rigorously where the deposit has been made at the depositary's request, where he is to have a reward, where it is solely for his advantage, or where it has been agreed that he should be answerable for all neglects. The same principle is here applied to the depositary in all cases, only in some it is enforced with greater rigor; it being left to the discretion of the court to determine when the circumstances of the case dispense with, or demand severity in its application.

The spirit of the common law is very different; under it the jury make the application of the principles, announced by the court, to the facts established on the trial; and the principles of law are not said to be enforced leniently or rigorously according to circumstances. The facts proven may bring the case under one, or another principle of law, but we do not speak of the court as growing lenient or rigorous in its enforcement, nor of the principle as capable of adjusting itself to a sliding scale of care or neglect.

§ 137a. Where goods are lent for a use in which the lender has a common interest with the borrower, as in other bailments reciprocally advantageous, the bailee is responsible for only ordinary negligence, and is liable for their return in the same manner as a bailee for hire; for this is not properly a loan. Consistently with this principle, it must be decided that where goods are lent for the sole advantage of the lender, the obligations and duty of the borrower must be modified and reduced to the

5

1 The Court would hardly raise such a presumption as a matter of law; Conway Bank v. Amer. Ex. Co., 8 Allen, 512; Eastman v. Patterson, 33 Vt., 146; but see 38 Maine, 55.

2 Kent's Comm., 574; Jones on Bailm., 46-65.

3 Code of Louisiana, Art. 2908 and 2909. The edition quoted in these notes is that of 1838, with annotations by Wheelock S. Upton, LL. B., and Needler R. Jennings.

4 Jones on Bailm., 118, 119, 120.

5 Carpenter v. Branch, 13 Vt., 161; Jones on Bailm., 72, 73.

standard of those exacted of a depositary without reward. So, it is not the case of a loan, where a person rides a horse gratuitously at the owner's request, for the purpose of showing him for sale; and the rider being skilled in the management of horses, is bound to use such skill as he actually possesses.1

§ 138. The Loan, how used. The loan must be used strictly for the purpose and in the manner contemplated by the parties. Many examples are put by way of illustration. If Wendell lend his jewels to Charles, to be worn by him at a masked ball on a certain evening, the use must be confined to that particular occasion; and if on the way to and from the place where the ball is held, the borrower be robbed of them at the usual time of going and returning, he will not be answerable for their value; but if he go from the ball to a gaming house with the jewels, he will be responsible if he lose them there by any casualty whatever. Lord Holt puts a case to the same effect: If a man lends another a horse to go westward, or for a month, and the bailee goes northward, or keep the horse above a month, the bailee will be chargeable, if any accident happens on the northern journey, or after the expiration of the month, because he has made use of the horse contrary to the trust he was lent to him under, and it may be that if the horse had been used no otherwise than he was lent, the accident would not have befallen him.2

The understanding on which the loan is made, limits the right to use the property; so that any other use of the chattel, in excess of the privilege or license granted to the bailee, is tortious and wrongful. If a man borrow a horse for his own use, he has no right to permit his servant to ride him; the loan being in this case a strictly personal favor. If the loan be made in general terms, without either express or implied limitation as to the manner of using the horse, the borrower may allow his servant or any competent person to drive or use him, for his accommodation; but would not be at liberty to loan or let the animal to another party." And where, under the terms of the loan, the bailee is free to use or drive the horse by his agent or servant, he is responsible for the same degree of care as if he handled or drove the horse himself."

1 Wilson v. Brett, 11 Mees. & Welsby, 113.

2 Coggs v. Bernard, 2 Ld. Raym., 909; Jones on Bailm., 69.

3 Bringloe v. Morrice, 1 Mod. R., 210; 2 Kent's Comm., 574.

Camroys v. Scurr, 9 Carr, & P. (33 Eng. C. L. Rep.), 383.

Wilcox v. Hogan, 5 Ind., 546; Sargent v. Blunt, 16 John. R., 74, 76.

6 Hall v. Warner, 60 Barb., 193; Scranton v. Baxter, 4 Sand., 9; as to the care required of a hired driver, see Newton v. Pope, 1 Cowen, 109.

§ 139. If a man borrow a horse and cutter, or a horse and wagon having a seat for two, he may take in a friend to ride with him, unless there be something to prevent it in the terms of the loan; because an implied understanding has the same effect upon the rights of the parties as an authority given in express words.1 Both parties are bound by the agreement; if a horse be lent to go to a particular place, and the bailee go beyond or go to other places in a different direction, this is a secret and fallacious use of the property, which amounts to a conversion of it; it is said to render him liable for all accidents and injuries befalling the chattel during such unauthorized use; in strict law such use is itself a conversion.3

Notes and bills of exchange are frequently made and indorsed merely for the accommodation of a friend, as a substitute for a loan of money; and where they are made or indorsed for a special purpose, they must be used in accordance with the understanding of the parties. The accommodation maker or indorser, in effect, loans his credit and liability to the person for whose benefit he makes or indorses the note or bill of exchange; but if the note or bill, being negotiable, is transferred to a bona fide holder for value, the maker or indorser will be liable, notwithstanding the violation of the trust under which the note or bill was made or indorsed. As between the parties to the transaction, however, the loan is governed by the same general principles as regulate the loan of chattels.

§ 140. The contract of loan cannot be violated with impunity; the bailee for hire is confined to the use for which he stipulates; and there is still greater reason for restraining the borrower within the limits of the authority conferred upon him. When the loan is made in general terms, the lent chattel must be used only in the manner for which it is fitted by its nature; if a riding horse be loaned for an afternoon, the fair presumption is that the borrower will use him under the saddle. In former times the loan of a slave, made in general terms, implied an authority to use him as a servant, to go on errands; and the borrower was not held liable for him when he forgot to return.7

A loan for a certain time, as where a horse is loaned for a week or a

1 Harrington v. Suyder, 3 Barb., 380, 384.

2 Bac. Abr., 374; Roll. Rep., 128.

3 Fish v. Ferris, 5 Duer, 49; Sargent v. Blunt, 16 John. R., 74.

41 Cowen's Trea., 200, 201, 3d ed.

5 Disbrow v. Ten Broeck, 4 E. D. Smith, 497; Scranton v. Baxter, supra, and Harrington v. Snyder, supra.

6 Code Louisiana, Art. 2869.

'De Fonclear v. Shottenkirk, 3 John. R., 169.