Answ. Here also the Law of the Land as regulating proprieties must be very much regarded; and especially the true meaning of the parties must be understood: If it was antecedently the expressed or implied meaning that one party in such or such a case should bear the loss, it must in strict justice be according to the true meaning of the parties. Therefore if a Carrier that undertaketh to secure it, loseth it; he loseth it to himself. Or if one that it is lent to on that condition (explicit or implicit) lose it, it is to himself. But if a friend to whom you are beholden for the carriage lose it, who undertook no more than to bestow his labour, the loss must be yours; yea, though it was his negligence or drunkenness that was the fault: For you took him and trusted him as he is. But if a servant or one obliged to do it by hire, do without any other agreement, only undertake to serve you in it, and loseth it, the Law or custom of the Country is instead of a Contract: For if the Law or Custom lay the loss on him, it is supposed that he consented to it in consenting to be your servant: If it lay it on you, it is supposed that you took your servant on such terms of hazard. But if it be left undecided by Law and Custom, you may make your servant pay only so much as is a proportionable penalty for his fault, but no more, as any satisfaction for your loss: except you agreed with him to repay such losses as were by his default. And when it is considered what strict Justice doth require, it must also be considered what Charity and mercy doth require, that the poor be not oppressed.
Answ. Here also the Law of the Land as regulating proprieties must be very much regarded; and especially the true meaning of the parties must be understood: If it was antecedently the expressed or implyed meaning that one party in such or such a case should bear the loss, it must in strict justice be according to the true meaning of the parties. Therefore if a Carrier that undertaketh to secure it, loseth it; he loseth it to himself. Or if one that it is lent to on that condition (explicite or implicite) lose it, it is to himself. But if a friend to whom you are beholden for the carriage lose it, who undertook no more than to bestow his labour, the loss must be yours; yea, though it was his negligence or drunkenness that was the fault: For you took him and trusted him as he is. But if a servant or one obliged to do it by hire, do without any other agreement, only undertake to serve you in it, and loseth it, the Law or custome of the Countrey is instead of a Contract: For if the Law or Custome lay the loss on him, it is supposed that he consented to it in consenting to be your servant: If it lay it on you, it is supposed that you took your servant on such terms of hazard. But if it be left undecided by Law and Custome, you may make your servant pay only so much as is a proportionable penalty for his fault, but no more, as any satisfaction for your loss: except you agreed with him to repay such losses as were by his default. And when it is considered what strict Iustice doth require, it must also be considered what Charity and mercy doth require, that the poor be not oppressed.
