The Doctor and Student (1518)
Christopher St. Germain
If a house by chance fall upon a horse that is borrowed, who shall bear the loss?
In the said sum called summa rosella, the said title cases fortuitus, in the beginning, is put this case: If a man lend another a horse, which is called there a depositum, and a house by chance falleth upon the horse, whether in: that case he shall answer for the horse? And it is answered: there, that if the house were like to fall, that then it cannot. 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 common presumption, in no danger of falling, but that it fill by a sudden tempest, or such other casualty, that then it shall be taken as a chance, and lie that had the keeping of the horse shall be discharged. And though this diversity agreeth with the laws of the realm, yet for the more plainer declaration thereof, and for the more like cases and chances that may happen to goods, that a man hath in his keeping that be not his own, I shall add a little more thereto that shall be somewhat necessary, as methinketh, to the ordering of conscience. First, a man may have of another by way of loan or borrowing money, corn, wine, and such other things, where the same thing cannot be delivered if it be occupied, but another thing of like nature and like value must be delivered for it; and such things he that they be lent to, may by force of the loan use as his own, and therefore if they perish, it is at his jeopardy; and this is most properly called a loan. Also a man may lend to another a horse, an ox, a cart, or such other things as may be delivered again, and they by force of that loan may be used and occupied reasonably in such manner, as they were borrowed for, or as it was agreed at the time of the loan that they should be occupied: and if such things be occupied otherwise than according to the intent of the loan, and in that occupation they perish, in what wise soever they perish, so it be not in default of the, owner, lie that borrowed them shall be charged therewith in law and conscience; and if he that borrow them occupy them in such manner as they were lent for, and in that occupation they perish in default of him that they were lent to, then he shall answer for them: and if they perish not through his default, then he that owneth them shall bear the loss. Also if a man have goods to keep to a certain day, for a certain recompence for the keeping-, he shall stand charged or not charged after as default or no default shall be in him, as before appeareth: and so it is if he have nothing for the keeping. But if he have for the keeping, and make a promise at the time of the delivery, to redeliver them safe at his peril, then he shall be charged with all chances that may fall. But if he make that promise, and have nothing for keeping, I think he is bound to no such casualties, but that be wilful and his own default, for that is a nude or a naked promise, whereupon, as I suppose, no action lieth. Also if a man find goods of another, if they be after hurt or lost by wilful negligence, he shall be charged to the owner: but if they be lost by other casualty, as if they be laid in a house that by chance is burned, or if he deliver them to another to, keep, that runneth away with them, I think he is discharged. And these diversities hold most commonly upon pledges, or where a man hireth goods of his neighbour to a certain day for certain money. And many other diversities be in the law of the realm, what shall be to the jeopardy of the one, and what of the other, which I will not speak of at this time. And by this it may appear, that it is commonly holden in the laws of England, if a common carrier go by the ways that be dangerous for robbing, or drive by night, or in other inconvenient time, and be robbed; or if he overcharge a horse whereby he falleth into the water, or otherwise, so that the stuff is hurt or impaired; that he shall stand charged for his misdemeanor: and if he would percase refuse to carry it, unless promise were made unto him that he shall not be charged for no misdemeanor that should be in him, the promise were void, for it were against reason and against good manner’s, and so it is in all other cases like. And all these diversities be granted by secondary conclusions derived upon the law of reason, Without any statute made in that behalf. And peradventurelaws, and the conclusions therein, be the more plain, and the more open. For if any statute were made therein, I think verily more doubts and questions would arise upon the statute, than doth now when they be only argued and judged after the Common law.