use, and a breach of trust, for which he shall be held responsible. If the bailment is made under circumstances leading to the conclusion that the bailee was to have the use of the thing in return for his labour and pains in the keeping of it, as if he were to have the milk of the cow, the wool of the sheep, or the young of animals bearing increase, for his own benefit and advantage, then the bailment would amount to a contract of borrowing and lending, and not to a mandate.

Liability of the MANDATOR.-Payment of the expenses.-By the Roman law the mandator is bound to reimburse the mandatary all expenses that he has necessarily and unavoidably incurred in the safe keeping and preservation of a chattel intrusted to his care and management. If he took charge of living animals, he had a right to call upon the mandator for the expenses of their keep and nourishment. If he was obliged to incur expense in procuring carriages or means of transport for the conveyance of inanimate things intrusted to him to be conveyed to a distant part, or otherwise in and about the execution of his trust, the mandatary was bound to reimburse him such expenses, for it was considered that a gratuitous commission executed for the behoof of the mandator ought not to be made a subject of expense and charge to the mandatary. (f) In the common law, if the mandatary must necessarily incur expense in the execution of the commission intrusted to him, he is clothed with an implied authority from the mandator to defray such expenses, and all money necessarily laid out by him in that behalf, is money expended for the use of the mandator at his (implied) request for the recovery whereof the ordinary action for money paid (ante, 226-231) is maintainable by the mandatary. "Thus, if a party requests a friend to receive his goods and enter them at the custom-house and pay the duties thereon, an implied obligation arises to reimburse the amount of duties and other incidental expenses and charges upon the entry. If a party requests a friend to carry goods for him in a stage coach to another town, for which goods carriage hire is usually paid, a like duty to pay the bill is presumed." (g)

The French law accords to the mandatary a right to detain the chattel until he has received payment of the expenses he has incurred in the execution of the trust concerning it. In our own law no such right exists, and no lien is permitted to be claimed by one man upon the property of another for the expenses attendant upon the execution of a gratuitous commission.(h) A person, therefore, who receives horses, cows, sheep, or

(ƒ) Dig. lib. 16, tit. 3, l. 12, 1. 23; Domat, lib. 1, tit. 15, s. 2. § 6.

(g) Story's Bailments, § 197.

(k) Sanderson v. Bell, 2 Cr. & M. 39; 4 Tyr. 214, s. c.

any description of living animals to keep for the owner, has no lien upon them for the expenses of their keep, or for the repayment of money disbursed by him in providing them with proper food and nourishment, (i) or for sending persons to seek after them when they have gone astray, or for the hire of servants to watch and tend them.

SECTION III.

OF A COMMODATUM AND MUTUUM OR GRATUITOUS LOAN.

If the bailee is to have the use and enjoyment of the subject matter of the bailment for his own benefit and advantage, without payment of hire or reward to the bailor, then the bailment becomes a gratuitous loan, and the bailee is clothed with the duties and responsibilities and implied engagements of a borrower for use in addition to those of a mere depositary and mandatary. There are in the civil law two kinds of gratuitous loans, the one called a mutuum, which is a loan for use and consumption, the thing being bailed to be consumed and an equivalent in kind subsequently returned; and the other a commodatum, which is a loan of a specific chattel to be used by the bailee and returned in individuo. In the loan by way of mutuum the bailor is called the creditor by reason of the credit given by him to the promise of the bailee, and the latter the debtor because he owes an equivalent to be paid back. (a) In the loan, by way of commodatum, the parties are known in law by the ordinary appellation of borrower and lender.

"The Latin language," observes Gibbon, "very happily expresses the fundamental difference between the COMMODATUM and the MUTUUM which our poverty is reduced to confound under the vague and common appellation of a loan. In the former the borrower was obliged to restore the same individual thing with which he had been accommodated for the temporary

(1) Chapman v. Allen, Cro. Car. 271. Jackson v. Cummins, 5 M. & W. 342. Judson v. Etheridge, 1 Cr. & M. 746.

(a) Dig. lib. 50, tit. 16, lex 11; lib. 12, tit. 1, lex 2, § 3. Mutui datio consistit in his rebus quæ pondere, numero, mensurâ, consistunt; quo

niam eorum datione possumus in creditum ire: quia in genere suo functionem recipiunt per solationem, quam specie, nam in cæteris rebus ideo in creditum ire non possumus, quia, aliud pro alio, invito creditori, solvi non possunt. Dig. lib. 12, tit. 1, lex 2, § 1.

supply of his wants; in the latter it was destined for his use and consumption, and he discharged this mutual engagement by substituting the same. specific value according to a just estimation of number of weight and of measure."(b) If corn or potatoes, wine or brandy, coals or oil, be borrowed, they are borrowed to be consumed, the corn being eaten, the wine drunk, and the coals and the oil burned and consumed; a loan of this description, therefore, is necessarily a MUTUUM, for the identical thing lent cannot be returned, but an equivalent in kind must be rendered back. (c) If money is lent to be used, the money is necessarily mixed with other coin of a similar denomination, it passes into other hands; its identity and individuality are destroyed, and the specific pieces of coin cannot be rendered back. A loan of money, therefore, is a mutuum, the borrower being bound to restore, not the identical money lent, but an equivalent in the shape of money of the same denomination and value.(d)

But if a horse or a book be lent for use, the identity and individuality of the chattel are not destroyed or in any way affected by the use; the same horse and the same book remain, though the one may have been ridden, and the other read, the loan, therefore, is a cOMMODATUM; the borrower does not fulfil his engagement by rendering an equivalent in the shape of a different horse or a different book of equal value, but is bound to return the identical thing lent. (e) It is of the very essence of a commodatum that the subject matter of the bailment be granted to be used free of reward, for if anything be paid for the use of the chattel, the contract is a contract of letting and hiring, and belongs to the class LOCATIO REI (ƒ)

LIABILITIES of the BORROWER.-In a bailment by way of mutuum, the chattel bailed becomes the absolute property of the bailee to do what he pleases with it, and use it in any way that he thinks fit; (g) but in a bailment by way of commodatum, the temporary right of possession and user only are transferred, the right of property remaining in the lender, (h) and the borrower, consequently, is obliged to render back the identical thing lent in as good condition as it was in when borrowed, subject only to the deterioration re

(b) Gibbon's Roman Empire, ch. 44, 3, 2. (c) Non potest commodari id quod usu consumitur. Dig. lib. 13, tit. 6, 3, § 6.

(d) Et quoniam nobis non eædem res, sed aliæ ejusdem naturæ et qualitatis, redduntur inde etiam mutuum appellatum est, quia ita a me tibi datur, ut ex meo, tuum fiat. Instit. lib. 3, tit 15. leo baila a un argent, ou blèes hors de bagge ou sack a garder et a rebailer a moi, quant il sera requis, ieo ne puisse prouer estre mon blee ou mon argent, car quaunt il est hors de bagge ou sacke, it ne peut etre discerne, ne un denier ni blée conus d'auter. Staunford's Plees

del Coron, lib. 3, c. 23, p. 188, ed. 1583.

(e) Doct. and Studt. Dial. 2, ch. 38. (f) Commodata autem res tunc proprie intelligitur, si nulla mercede acceptâ, vel constitutâ, res tibi utenda data est-gratuitum enim debet esse COMMODATUM. Instit. lib. 3, tit. 15, § 2; Dig. lib. 13, tit. 6.

(g) Appellata est autem mutui datio ab eo, quod de meo tuum fit; et ideo si non fiat tuum non nascitur obligatio. Dig. lib. 12, tit. 1, § 2 Instit. lib. 3, tit. 15

(h) Nemo enim commodando rem facit ejus cui commodat. Dig. lib. 9.

sulting from inherent defects or produced from ordinary wear and tear and the reasonable use of it for the purpose for which it was known to be required (i) The law exacts the strictest good faith from the borrower, and makes him responsible for the slightest breach of trust. "If a man should lend another a horse to go westward, and the bailee go northward, if any accident happen to the horse on the northern journey 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 as he was lent, that accident would not have happened to him."(k)

If a horse is lent for the performance of an ordinary journey, and the borrower leaves the high road and travels unnecessarily through by-paths or dangerous roads, and the horse falls, and is injured, he will be responsible to the lender; but if the horse is lent for the purpose of hunting, then the borrower is justified in using it in by-paths and dangerous places, and may expose it to all the ordinary risks of the chase, because those risks are necessarily incident to the use for which the horse was borrowed, and were known to and must have been contemplated by the lender. So, to cite an instance from the Digest, if a man lends his horse to a neighbour to ride home, and the latter rides the horse to a fight, where it is injured, or killed, he shall make good the loss; but if it is lent to him for the express purpose of enabling him to join in the affray, then the lender must abide by all the ordinary risks of warfare, and if the horse is killed he has no claim for compensation against the borrower. (7) And if the lender, to cite another example from the Digest, lends a service of plate to the borrower for the purpose of entertaining a party of friends at supper, at his, the borrower's, own house, and the borrower transports the plate away from his house to some distant part, he will be responsible for this breach of faith, and for all the injuries that may befal the things lent, whether occasioned by fire, shipwreck, pirates, or any inevitable accident. (m)

By the Roman law, it is provided that if the borrower has knowingly and wilfully used a chattel lent to him for purposes not warranted by the nature of the loan, and not approved of by the lender, he shall be deemed

() Handford v. Palmer, 5 Moore, 76; 2 B. & B. 359.

(k) Coggs v. Bernard, 2 Raym. 915; Bract. lib. 3, ch. 2, § 1, p. 99, 100, who copies as usual the text of the Institutes.

(1) Si tibi equum commodavero, ut ad villam

adduceres, tu ad bellum duxeris, commodati teneberis. Plane si sic commodavi ut ad bellum duceres, meum erit periculum. Dig. lib. 13, tit. 6, lex 5, § 7.

(m) Dig. lib. 13, tit. 7, lex 18.

guilty of theft,(n) and be liable to a penalty to the extent of double or quadruple the value of the thing lent, which may be recovered from him by the lender in an action of theft.

The measure of care and diligence to be exercised for the protection and preservation of a thing bailed by way of commodatum, whilst it remains in the possession of the borrower, is that amount of care, prudence, and foresight, which the most vigilant and careful of men exercise for the preservation and protection of their own property.(o) The foundation for this increased liability, on the part of the BORROWER in comparison with the hirer of a chattel, is the increased trust and confidence reposed in him. The lender himself derives no benefit from the contract. In making the bailment he performs a gratuitous act of kindness dictated by his confidence in the bailee; the law therefore exacts from the latter a corresponding return, and requires from him the greatest amount of care that is ever bestowed by the most cautious of men in the protection and preservation of property of the description bailed. The borrower cannot, of course, be made responsible for inevitable accidents, or casualties which could not have been foreseen, and which no human prudence could have guarded against ;(p) but if by the exercise of proper forethought and care he might have saved the thing bailed to him from an accident which has occurred, and he has not done so, his own neglect is the occasion of such accident, and he is responsible therefor. The bailee, observes Lord Coke, will be answerable for the "least neglect." If he or his servant puts a borrowed horse into a stable and neglects to lock the door at night, and thieves come and steal the horse, he will be responsible for the loss, for the neglect to lock the door may have encouraged the thieves, and been the occasion of the robbery. If the borrower puts a borrowed horse into a ruinous building likely to fall, and the building is blown down during a tempest, and falls upon and kills the horse, the borrower shall be answer. able, for if the building had been strong, and in good repair, perchance the disaster would not have occurred, and "it cannot, therefore, be taken as a chance but as the default of him that had the horse delivered to him. But if the house were strong, and of likelihood, and by

(n) Si is qui rem utendam accepit, in alium usum eam transferat, quam cujus gratiâ ei data est, furtum committit: veluti si quis argentum utendum acceperit, quasi amicos ad cœnam invitaturus et id peregre secum tulerit; aut si quis equum gestandi causâ commodatum sibi longius aliquo duxerit: Instit. lib. 4, tit. 1, § 6.

(0) Exactissimam diligentiam custodiendæ rei præstare compellitur, nec sufficit ei candem

diligentiam adhibere quam suis rebus adhibet; si alius diligentior custodire poterit. Dig. lib. 44, tit. 7, 1, § 4. Inst. lib. 3, tit. 15, § 2.

(p) Is, qui utendum accepit, si majore casu cui humana infirmitas resistere non potest, veluti, incendio, ruina, naufragio amiserit securus est. Dig. lib. 44, tit 7, 1, § 4. Bract. lib. 3, ch. 2, p. 99.