Throughout his work he displays no small sagacity and erudition, but speaks with too much confidence of his own decisions, and with too much asperity or contempt of all other interpreters from BARTOLUS to VINNIUS.

At the time when this author wrote, the learned M. POTHIER was composing some of his admirable Treatises on all the

for,

different species of express or implied contracts; and here I seize, with pleasure, an opportunity of recommending those treatises to the English lawyer, exhorting him to read them again and again; if his great master LITTLETON has given him, as it must be presumed, a taste for luminous method, apposite examples, and ✩ a clear manly style, in which nothing is redundant, nothing deficient, he will sure be delighted with works, in which all th advantages are combined, and the greate portion

portion of which is law at Westminster as well as at Orleans [s]: for my own part, I am so charmed with them, that, if my undissembled fondness for the study of jurisprudence were never to produce any greater benefit to the public, than barely [30]. the introduction of POTHIER to the ac

quaintance of my countrymen, I should think that I had in some measure discharged the debt, which every man, according to Lord COKE (13), owes to his profession.

To this venerable professor and judge, for he had sustained both characters with

deserved applause, LE BRUN sent a copy of his little work; and M. POTHIER hopoured it with a short, but complete, answer

[Oeuvres de M. Pothier, à Paris, chez DEBURE: blumes in duodecimo, or 6 in quarto. The illustrious or died in 1772.

Vindication

of the old

system by
Pothier.

in the form of a General observation on his Treatises [t]; declaring, at the same time, that he would not enter into a literary contest, and apologizing for his fixed adherence to the ancient system, which he politely ascribes to the natural bias of an old man in favour of opinions formerly imbibed. This is the substance of his answer: "That he

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can discover no kind of absurdity in "the usual division of neglect and diligence,

nor in the rule, by which different de

grees of them are applied to different " contracts; that, to speak with strict propriety, negligence is not permitted "in any contract, but a less rigorous con"struction prevails in some than in others; "that a hirer, for instance, is not consi"dered as negligent, when he takes the same care of the goods hired, which the generality of mankind take of their o

[] It is printed apart, in fourteen pages, at the of his Treatise on the Marriage-Contract.

"that

"that the letter to hire, who has his re"ward, must be presumed to have de

"manded at first no higher

no higher degree of [ 31 ] diligence, and cannot justly complain "of that inattention, which in another

66

case might have been culpable; for a lender, who has no reward, may fairly "exact from the borrower that extraordi

nary degree of care, which a very at"tentive person of his age and quality would

certainly have taken; that the diligence, "which the INDIVIDUAL party commonly

uses in his own affairs, cannot properly. "be the object of judicial inquiry; for

66

every trustee, administrator, partner, or

co-proprietor, must be presumed by the court, auditors, or commissioners be"fore whom an account is taken, or a “distribution or partition made, to use in their own concerns such diligence, as

commonly used by all prudent men; that it is a violation of good faith for

any

any man to take less care of another's property, which has been intrusted to "him, than of his own; that consequent

ly, the author of the new system de"mands no more of a partner or a joint"owner than of a depositary, who is bound

to keep the goods deposited as he keeps "bis own; which is directly repugnant "to the indisputable an undisputed sense of the law Contractus,'

I cannot learn whether M. LE BRUN ever published a reply, but am inclined to believe that his system has gained very little ground in France, and that the old [ 32 ] interpretation continues universally admitted on the Continent both by theorists and practisers.

Nothing material can be added to THIER's argument, which in my hum opinion, is unanswerable; but it may no

be