month, or indefinitely, for his keeping, gives the borrower considerable discretion; it will authorize a general use of the animal, by himself or his servant; but when no time is specified, the loan of a chattel of this nature is regarded as a personal trust reposed in the borrower, and not transferable; certainly it must be so regarded, unless the terms or circumstances of the loan be such as to authorize a greater freedom in the use of the chattel.2

§ 141. The character of the loan is a matter of fact. Prima facie the lender is understood to loan the chattels for the personal benefit of the borrower in whom he reposes a special trust; it is a contract in which the borrower engages to bestow his personal care and diligence in' the preservation of the thing loaned; especially where the chattel naturally requires skillful treatment.3 Of course the understanding of the parties will control the implied contract; and this understanding is to be ascertained from all that was said and done at the time the loan was made, the same as in proving a verbal contract of hiring or sale. If the object of the loan be named, the implication is that the borrower will not depart from it or go beyond the reasonable scope of his authority.

§ 142. Expenses of the Loan. Under the Code of Louisiana, the borrower bears the expenses incident to the use of the thing loaned; but where he is obliged, for the preservation of the property, to go to somet extraordinary expense, necessary and so urgent that he cannot give the lender notice of the same, he is entitled to be reimbursed; the lender must bear expenses of this kind.5

The common law is not different; the borrower must bear the ordi

1 Chamberlain v. Cobb, 32 Iowa, 161; Camroys v. Scurr, 9 Carr. & P., 383. 2 Bringloe v. Morrice, 1 Mod. R., 210; S. C., 3 Salk., 271.

3 Bringloe v. Morrice was an action of trespass for immoderately riding plaintiff's mare; the defendant pleaded that the mare was lent to him, and that by virtue of the implied license, he and his servant had alternately rode her. To this plea there was a demurrer by the plaintiff; and the Court held that the license for the use of the chattel was annexed to the person of the defendant, and could not be communicated to another; for this riding was a matter of pleasure. Chief Justice North took a difference where a certain time is limited for the loan of the horse, and where it was not. In the first case the party to whom the horse is lent has an interest in the horse during that time, and in that case his servant may ride, but in the other case he may not. He also took a difference between hiring and borrowing a horse to go to York; in the first, the party may permit his servant to ride, or use the animal, not in the second. Mod. R., 210.

4 Pierson v. Hoag, 47 Barb., 244. "The law regardeth the intent of the parties, and will imply their words thereunto."

• Code of Louisiana, Art. 2875, 2879.

wary expenses incident to the use of the loan, or necessary to its due servation. No reasonable doubt can arise upon this point. The bor wor of chattels, whether cattle or slaves, takes upon himself the burdea of keeping and taking care of them; since this is necessary to the to of the loan.' And though this expense, paid by the borrower, does savo the owner the cost of keeping, and is so far an advantage to him, the loan is nevertheless regarded as a gratuitous bailment. The incidontal advantage is not the compensation necessary to convert the bailment into one of hire.2

Where extraordinary expenses, such as could not be anticipated by the parties, become necessary for the preservation of the property, the lender is answerable for them; in an emergency which brooks no delay, the bailee having no opportunity to communicate with the lender, may incur the necessary and reasonable expenses to preserve the property, on the credit of the lender. If a horse, the subject of the bailment, suddenly fall sick or is injured, the bailee, bound to take the greatest care of the property, may retain a farrier on the owner's credit, or leave the animal at a hotel for proper care and treatment.3 His situation is analogous to that of the master of a ship disabled in a foreign port, unable to communicate with his principals and bound to do what he can promptly to protect the interests entrusted to his care. His rightful power must be as broad as his legal duty: he may therefore, it seems, bind the owner for all necessary and reasonable expenses in the preservation of the property beyond those arising in its ordinary use. In the emergency, he may act for the owner and do what is necessary to be done promptly, on behalf of the owner.

§ 143. Fraud in Procuring the Loan. Any misrepresentation, or suppression of the truth which ought to be told, is fraudulent; and fraud vitiates all contracts. The title does not pass under a sale procured by fraud; and though there be a delivery, the possession of the true owner is

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1 The hirer bears the ordinary expense of keeping a chattel: Harrington v. Snyder, 3 Barb., 380.

2 Bennett v. O Brien, 37 Ill., 250. A different rule in regard to the nature of the bailment was held in Iowa, where the owner of a horse having no use for him, loaned him for his keep; Chamberlain v. Cobb, 32 Iowa, 161.

3 The principle stated in the text is affirmed in Harles v. Blanchard, at General Term, by Justices Mullen, Talcott, and Smith.

In an emergency rendering the act necessary, the master may hypothecate or sell the ship or the cargo at an intermediate port; the necessity enlarges his power. Butler v. Murray, 30 N. Y., 88; Chambers v. Grantzon, 7 Bosw., 414; Nelson v. Belmont, 21 N. Y., 36; Merritt v. Walsh, 32 N. Y., 685.

5 Root v. French, 13 Wend., 570.

not divested; the fraudulent purchaser is liable in an action of trespass or replevin for an unlawful taking of the goods. The defrauded seller may bring an action to recover the goods.2

Any kind of fraud practiced on the part of the borrower, in order to procure the loan, either by a suppression of the truth or by express falsehood, will avoid the contract and render him liable for all casualties. Asking a favor on the ground of friendship, he is not at liberty to conceal facts that might have a tendency to prevent the loan.

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§ 144. One who obtains the loan of a chattel by a fraudulent misrepresentation, stands in no better relation towards the lender then a trespasser. There is here no legal delivery, and no consent to the taking; because consent, in law, is more than a mere formal act of the mind, and must be unclouded by fraud. On a sale procured through fraud and false pretenses, the party obtaining the property cannot be convicted of larceny; but a bailce may be so convicted who acquires the custody of the property fraudulently, with a felonious intent to deprive the owner of it. In both cases there is the moral guilt of larceny, but it is not regarded as the same crime under the adjudications. Larceny defined by East, to be the wrongful or fraudulent taking or carrying away, by any person, of the mere personal goods of another from any place, with a felonious intent to convert them to his, the taker's own use, and make them his own property, without the consent of the owner. The crime is not committed where the owner intends to transfer the property. The decisions creating this distinction, have been made mostly in actions arising between the owner and a third person who has purchased the property bona fide, for a valuable consideration, from him who acquired it by fraud. The distinction is between taking chattels feloniously, and acquiring them by means of a fraudulent purchase. In the latter case, one who buys of the fraudulent purchaser in possession, without notice of the fraud, and pays the price, acquires the title; not so in the case of stolen goods."

1 Cary v. Hotailing, 1 Hill, 311; Goulding v. Davidson, 26 N. Y., 604, 606; Ash v. Putnam, 1 Hill, 302.

2 Nichols v. Michael, 23 N. Y., 264. A sale to an honest purchaser for value, will put the property beyond the reach of the first seller.

3 * Campbell v. Stokes, 2 Wend. R., 137; Cary v. Hotailing, supra. Ross v. The People, 5 Hill R., 294; as to the effect of a delivery procured by fraud on the civil rights of a bailee, see Bigelow v. Heaton, 6 Hill, 43. People v. Anderson, 14 John. R., 295; People v. McGarren, 17 Wend., 460. 62 East P. C., 553.

Mowry v. Walsh, 8 Cowen, 238; Root v. French, 13 Wend., 570; Locker v. Rhoades, 45 Barb., 499.

§ 145. In order to constitute the crime of larceny, the taking must be with intent to steal, and must be equivalent to an act of trespass;' but the taking need not be from the actual custody of the owner. A servant entrusted with his master's horse, may be convicted of larceny, where he takes the animal from the stable with intent to steal and run away with it. So may the man, who hires or borrows a horse on pretense of taking a journey, but in truth with intent to steal him; 3 and so may the carrier, who severs part of the goods from the rest with a felonious intent to appropriate them as his own. The taking and conversion of the property, with a felonious intent, by a party having the custody or possession of it for a special purpose, is larceny; and it is adjudged a felony for a man, eloping with another's wife, to take her husband's goods with her, on her request."

§ 146. The lender is bound to deal fairly with the borrower; but he is not liable for damages arising from the defective state or nature of the things loaned, unless it is shown that he was aware of the defect." If a man lend a vicious animal of the domestic kind, with knowledge of its viciousness, he is liable for the injuries committed by the animal; on the ground of his duty to guard and keep the vicious beast with uncommon care, to prevent its doing an injury to any person. It follows that a man may lend a vicious or defective chattel, without incurring any liability, provided he notifies the borrower of its vice or defect, so as to enable him to use and keep it with proper care."

§ 147. The Borrower when exempt from Liability. It results from the rule of liability, we have stated, that in the case of chattels loaned, the owner must abide the loss, if they perish through any accident which a very careful and vigilant man could not have avoided. If they

1 The People v. McDonald, 43 N. Y., 61; Commonwealth v. King, 9 Cush., 284. The legal distinction between larceny and embezzlement is quite nicely drawn in many cases. Ante, § 21.

2 People v. Wood, 2 Park. Cr., 22.

3 Brannan's Case, 1 City H. Rec., 50; Commonwealth v. James, 1 Pick., 375.

4 Nichols v. The People, 17 N. Y., 114. Bassett v. Spofford, 45 N. Y., 387.

6 People v. Schuyler, 6 Cowen, 572.

'MacCarthy v. Young, 6 Hurl. and Nor. Ex., 329; Blackemore v. The Bristol & R. Co., 8 Ellis & Black., 1035, 1050; 67 Barb., 113.

The liability does not arise out of the loan; it stands on general principles. Van Leuven v. Lykee, 1 N. Y., 515; Osincup v. Nichols, 49 Barb., 145; Dickson v. McCoy, 39 N. Y., 400. As to the owner's duty in keeping wild animals, see Scribner v. Kelly, 38 Barb., 14.

9 The merit of a watch-dog proves a defect under some circumstances: see Fairchild v. Bentley, 20 Barb., 147.

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be taken from him by robbery, or stolen out of his possession, notwithstanding his extraordinary care, the borrower is not liable. The law demands no impossibility, and if he uses more than ordinary diligence, he is not chargeable if they be wrested from him by a force which he cannot resist. His implied contract does not bind him to guaranty the lender against the machinations and crimes of third persons; in the case of a borrowed horse, if he put him in his stable, and he is stolen from thence, the borrower is not answerable for him. But if he or his servant leave the stable door open, and the thieves take the opportunity of that, and steal the horse, he is chargeable; because the neglect gave the thieves the occasion to steal the horse.3

§ 148. The borrower is not liable for losses caused by inevitable accident, or by the act of God; even a common carrier is not liable for such losses. Still it is clear that both the carrier and the borrower are liable for a loss caused in part by superior natural force, and in part by his own negligence, where it appears that the loss might have been prevented by due foresight and care. He is liable where through his own fault he brings the property under the operation of an act of God; as where from the want of due diligence he fails to remove it from exposure to such an act.

§ 149. There are many cases of loss by accident, besides those which occur from the act of God, for which the borrower is not responsible. He is not liable for losses caused by a riot, without any neglect on his part; nor for borrowed chattels destroyed by fire, there being no imputation against him of any want of care." An example is put from the civil law, to shew that he may he held liable for a loss by fire: if the house of Caius be in flames, and he being able to secure one thing only, save an urn of his own in preference to a silver ewer which he borrowed of Titius, he shall make the lender a compensation for this loss; especially if the ewer be the more valuable, and would consequently have been preferred had he been the owner of them both; even if his urn be more precious, he must either leave it and bring away the borrowed vessel, or pay Titius the value of that which is lost; unless the alarm was so sudden and the fire so violent, that no deliberation or selection

1 Wood v. McClure, 7 Ind., 155; Field v. Brockett, 56 Maine, 121.

2 Abraham v. Nunn, 42 Ala., 51; Yale v. Oliver, 21 La. Ann. R., 454.

3 Per Lord Holt in Coggs v. Bernard, Ld. Raym., 909.

• Colt v. M'Mechen, 6 John. R., 160.

Reed v. Spaulding, 30 N. Y., 630; Davis v. Garrett, 6 Bing., 716.

6 Bowman v. Teall, 23 Wend., 310; Wing v. N. Y. & Erie R. R. Co., 1 Hil. ton, 235.

Ilyland v. Paul, 33 Barb., 241, 245.