In reftoring
an animal
borrowed, it fuffices that it
be returned
to the owner’s
jiable j
and, in reftoring
a
Jlaaje, that he
be returned
to his mailer's
boufe.
cumbent oil the leffor; becaufe the rent being a return for the
benefit arifing from the tenure of the article let, all that is required
from the leffee is merely to put it in the power of the leffor to recover
it, by diverting himfelf of it, and not that he Ihould return it
to him.— T h e expence of returning the fubjeft of an ufurpation, on
the contrary, muft be defrayed by the ufurper; for as the return o f the
article to the proprietor is incumbent on the ufurper of it in order to
remedy the injury he occafioned, fo the expence attendant on fuch
return muft of confequence be borne by him.
If a perfon, having borrowed a quadruped from another, Ihould
reftore it to the liable of the proprietor, and it be afterwards loft, in
that cafe he is not refponfible for it, on a favourable conftruftion.—
Analogy would fuggeft that he is refponfible, fince he has neither re-
ftored it to the proprietor nor his agent, but merely to his ground.—
The reafon for a more favourable con ft raft ion o f the law in this in-
ftance is, that a reftitution has here been made according to general
cuftom, fince it is cuftomary to reftore loans to the houfe of the proprietor;
as where, for inftance, veftels or utenfils belonging to a
houfe are borrowed, in which cafe it is ufual to return them, not
into the proprietor’s hands, \ but merely to his houfe.— Befides, if he
had returned the quadruped to the proprietor, he [the proprietor] would
have fent it to the liable, and therefore his doing lb at once is confidered
as a valid return.
I f a perfon borrow a Have, and afterwards return him to the houle
of his mafter without delivering him, perfonally, to the mailer him-
felf, he is not in that cafe refponfible for him for the reafons above-
mentioned.— If, on the contrary, an ufurper or a truftee return tbo
fubjedl of the ufurpation or the trull to the houfe of the proprietor,
without delivering it to the proprietor, they are in that cafe refponfible
for the eventual lofs of i t :— the ufurper, becaufe it was incumbent
on him to undo his aft, and his aft cannot be undone but by a
b ' delivery
delivery to the proprietor himfelf; and the truftee, becaufe the proprietor
did not wilh that he Ihould deliver the depofit merely to his
houfe or his family, for i f that had been the cafe, he would not have
depofited it with him.— It is otherwife with refpedt to loans, as thefe
are commonly returned to the houfe: excepting, however, where they
conlift of jewels, for in that cafe they muft be returned to the proprietor,
and not to the houfe or family.
If the borrower fend the quadruped he had borrowed to the proprietor
of it, by his own Have or his hireling, and it be loft in the
way, in that cafe he is not refponfible for it.— (By hireling is here to
be underftood a fefvant who receives yearly wages.)— The rea-
foti of this is that a loan is in the nature of a tru ll; and the
borrower may commit it, for the fake of prefervation, into the hands
of any of his family, in which relation a Have and a yearly fervant
Hand.— It is otherwife with relpefl to a daily fervant, as he is not held
to be one of the family.
If a borrower Ihould fend back the horfe or other animal he
had borrowed to the proprietor, by the Have or the hireling of the
proprietor, and it be loll or deltroyed on the way, he is not refponfible
for if, fince the proprietor is virtually fuppofed to have approved;
of this, in as much as he himfelf, if a delivery had been
made fo him, would have conftgfied the horfe to one Of thefe.—Some
have laid that the law here proceeds on the fuppofition of the Have or
hireling, fo Whom the quadruped is confi'gned, being the one to whom
the care and management of it is always given. Others, again, have
fiiid fhaf it matters not whether it be configned to fuch a Have, or
to any other Have of the proprietor: and this latter is the mod approved
doflftae.
It fuffices to
return the
loan by a
(lave or fervant
either o f
the borrower
or Under,