60 COMMISSION OF CHARITABLE USES. This commission issues out of chancery to the bishop and others, where lands given to charitable uses are misemployed, or there is any fraud or dispute concerning them, to inquire of and redress the same, etc. COMMISSION OF DELEGATES. When any sentence was given in any ecclesiastical cause by the archbishop, this commission, under the great seal, was directed to certain persons, usually lords, bishops, and judges of the law, to sit and hear an appeal of the same to the king, in the court of chancery. But latterly the judicial committee of the privy council has supplied the place of this commission.62 COMMISSION OF LUNACY. A writ issued out of chancery, or such court as may have jurisdiction of the case, directed to a proper officer, to inquire whether a person named therein is a lunatic or not;63 a commission issued out of chancery for the purpose of inquiring into the sanity of a person. 64 COMMISSION OF PARTITION. In the former English equity practice, this was a commission or authority issued to certain persons, to effect a division of lands held by tenants in common desiring a partition;65 when the commissioners reported, the parties were ordered to execute mutual conveyances to confirm the division.66 COMMISSION OF REBELLION. In English law, an attaching process, formerly issuable out of chancery, to enforce obedience to a process or decree; directed to public ministers and officers of justice, commanding all constables and bailiffs to assist the sheriff;68 abolished by order of 26th of Bouvier 63. Black L. D. [cit 1 Inst. n 382 et seq]. See generally Insane Persons [22 Cyc 1120]. 64. In re Moore, 68 Cal. 281, 283, 9 P 164 (holding that the term, as used in a statute, providing that a vacancy occurs in an office on the happening of the incumbent's insanity, found on a "commission of lunacy" issued to determine the fact, should be construed to mean only a commission issued out of chancery for the purpose of inquiring into the sanity of a person, and not to the superior proceedings taken to send a person to the insane asylum). 65. Black L. D. See generally Partition [30 Cyc 253 et seq]. 66. Black L. D. 67. Black L. D. 68. Miller v. Knox. 4 Bing. N. Cas. 574, 610, 33 ECL 865, 132 Reprint 910. 69. 70. 71. 72. Black L. D. 1 Blackstone Stephen Comm. 39. Comm. 351; 3 73. Black L. D. [cit 1 Blackstone Comm. 351; 3 Stephen Comm. 39, 40]. Compare Justices of the Peace [24 Cyc 410]. 74. Black L. D. See generally Treaties [38 Cyc 961]. 75. Black L. D. 76. Commission to take testimony: Generally see Depositions [13 Cyc 882 et seq]. In: Admiralty see Admiralty §§ 256259. Equity see Equity [16 Cyc 376]. Mandamus to compel issuance of see 77. Black L. D. [cit Tracy v. Suydam, 30 Barb. (N. Y.) 110]. 78. Regan v. Luthy, 16 Daly (N. Y.) 413, 415, 11 NYS 709 [cit 1 Washburn Real Prop. p 126]. See also Waste [40 Cyc 498]. 7812. Escriche Diccionario. 79. See Commitment post p 149; Committed infra text and notes 85-89. 80. Worcester D. [quot State v. Murphy, 35 La. Ann. 622, 623]. [a] "Commit an assault" synonymous with "make an assault."-It has been held that, in an information for assault with a dangerous weapon with intent to murder, the words "make an assault," are not argumentative; the word "commit" may be used instead of "make," where the facts are averred that make up the offense charged; the word "commit," in such connection, not merely declaring a conclusion or opinion. State v. Murphy, 35 La. Ann. 622, 623. [b] Passive omission distinguished.-In an action of trespass against a railroad company for dam ages to plaintiff's fields and crops, due to the alleged closing or obstruction of a drain, defendant excepted to the jurisdiction of the court under a state code providing that a person must be sued before the judge having jurisdiction over the place of domicile, claiming that the acts complained of were of omission, and that in consequence the court had no jurisdiction; but it was held that the act was not a passive one and that the suit was properly brought, and the court said: "We are of opinion that the court had jurisdiction, for the wrong complained of was not one of omission. The violations of defendant's rights were active enough. The act committed was in the nature of a trespass, and, using the word 'commission' in the sense of 'to commit,' the defendant was rather active in the commission of an act which was injurious to adjacent lands." Brown v. Louisiana, etc., R. Co., 118 La. 87, 89, 42 S 656. To same effect Holland v. Northwich Highway Bd., 34 L. T. Rep. N. S. 137. 81. U. S. v. Holte, 236 U. S. 140, 144, 35 SCt 271, 59 L. ed. 504, LRA 1915D 281. 82. Johnson D. [quot Clift V. Schwabe, 3 C. B. 437, 477, 54 ECL 437, 136 Reprint 175, 2 C. & K. 134. 61 ECL 134, per Pollock, C. B., dis. op.]. 83. Century D. See also Arrest 5. 84. French v. Bancroft, 1 Metc. (Mass.) 502, 504. 85. State v. Pearson, 100 N. C. 87 as sending a person to jail or other proper prison, to be there detained and held to answer for a criminal offense preferred or to be preferred against him in the court of procedure until he shall be discharged according to law.86 The term necessarily implies a warrant or order by a court or magistrate directing a ministerial officer to take a person to prison, and applies not only to a prisoner who is actually within the jail, but also to one committed by the magistrate and the mandate requiring the officer to perform the physical act of putting the prisoner in jail is duly issued and put in the hands of the officer who has the custody of the prisoner. Committed and discharged is a term of recognized legal meaning, referring only to the beginning and 414, 418, 6 SE 387 (where the court said: "A person is committed to jail by a proper tribunal to answer for a criminal offence; upon conviction, he is sentenced by judgment of the Court to be imprisoned in jail as a punishment, and when put in jail, he is then in execution of the judgment. The word 'committed,' is used in the statute in its technical sense, certainly, in its application to prisoners charged with criminal of fences"). 86. State v. Pearson, 100 N. C. 414, 418, 6 SE 387 [cit 4 Blackstone Comm: 296; Bouvier L. D.; Burrill L. D.; Chitty Cr. L. 107]. [a] "Convicted" distinguished. It has been held that the term "committed," as used in a statute providing that for the preservation of the health of such persons as shall be committed to jail the commissioners shall mark out a parcel of land, not exceeding six acres, adjoining the prison, and every person not committed for treason or felony, giving bond, etc., shall have the liberty to walk therein, is not synonymous with "convicted," and that the statute does not apply to one imprisoned under sentence in a criminal case, but is intended to apply to persons who in civil cases are committed to jail on mesne process, or on final judgment, and in criminal cases when the prisoner is committed to ⚫ jail for lack of bail, in order to secure his presence before the appropriate court to answer the criminal charge preferred against him. State v. Pearson, 100 N. C. 414, 417, 6 SE 87. [b] "Committed to gaol for trial." -It has been held that the phrase, as used in Can. Cr. Code § 765, should be construed as including any case where the accused is found in custody charged with an offense in respect of which he has the right to elect in favor of a speedy trial, and although he is so in custody, by reason of his surrender for the purpose of appearing before the judge, to elect a speedy trial after having been admitted to bail. Reg. v. Lawrence, 1 CanCrCas 295, 299. See also Reg. v. Gibson, 3 CanCrCas 451, 461 (holding that, where on a preliminary inquiry the justice finds that the evidence is sufficient to put the accused on his trial, and that it does not furnish such a strong presumption of guilt as to warrant a committal for trial, and the accused is in consequence admitted to bail, on finding sureties for his appearance to answer an indictment, but is subsequently rendered to the jail by the sureties under Cr. Code § 766, the person so rendered is not "committed to jail for trial" within the meaning of the same statute); Reg. v. Smith, 3 CanCrCas 467; Reg. Burke, 24 Ont. 64 (both cases construing the same statute). Compare Mullins v. Surrey, Treasurer, 7 App. Cas. 1, 9 [aff 6 Q. B. D. 156, 159 (rev 5 Q. B. D. 170, 173)] (where the court said: "The first question is what do the words 'committed to prison' and 'committal to prison' here mean? Lush J. thought that they V. 88 meant 'received into prison,' and on that based his judgment. But I cannot agree with him. think that the words, both in common parlance and in legal phraseology, mean when the order is made under which the person is to be kept in prison"). [6] "The words 'imprisoned' and 'committed,' in the statute of 1829, [relating to escape] are used as synonymous terms, and both mean imprisonment within the gaol house, or within the prison walls-an actual confinement within the walls of the prison, by lawful authority." Skinner v. White, 9 N. H. 204, 207. 87. Com. v. Barker, 133 Mass. 399, 400. 88. Reardon v. Peo., 123 Ill. A. 81, 86. 89. Lee v. Ionia County, 68 Mich. 330, 331, 36 NW 83. 90. Richter v. St. Paul, 29 Minn. 198, 12 NW 532 (construing these words as used in Gen. St. [1878] c 70 § 12). 91. State v. Clark, 170 Mo. 67, 76, 70 SW 489; Thomas V. St. Louis County, 61 Mo. 547. 92. Commitment: Fee see Sheriffs and Constables [35 Cyc 1563]. For: Contempt see Contempt [9 Cyc 50]. Cyc 64, 95]. see Extradition Fine see Fines [19 Cyc 551]. Of: [19 Child see Infants [22 Cyc 521, 626]; Parent and Child [29 Cyc 1584, 1601]; Reformatories [34 Cyc 1005]. Insane person see Insane Persons [22 Cyc 1158]. Witness: For refusal to testify see Contempt [9 Cyc 29]. To see Wit secure attendance nesses [40 Cyc 2175]. On civil process: After judgment see Executions [17 Сус 1490]. Before judgment see Arrest §§ 81270]. Conviction of crime see Criminal Law [12 Cyc 789]. To: see Paupers [30 Cyc sentence of felony, etc., relate to a case where an officer or other person holds a prisoner under lawful custody after he was judicially held under. a commitment, conviction, or sentence for a felony or misdemeanor. Peo. v. Marks, 75 Misc. 404, 405, 135 NYS 523. [b] Date of commitment.-Where a statute provided inter alia that any person committed for crime, "and not admitted to bail, and not tried at some term of the court having jurisdiction of the offense commencing within four months of the date of commitment shall be set at liberty by the court," it was held that the four months commenced to run at the date of plaintiff's incarceration under the mittimus issued by a police magistrate, and not on the day of the return of an indictment against him. Guthmann v. Peo., 203 Ill. 260, 262, 67 NE 821. 94. Abbott L. D. [quot Gilbert v. U. S., 23 Ct. Cl. 218, 224]. 95. Peo. v. Lee Ah Chuck, 66 Cal. 662, 665, 6 P 859. 86. 96. Reardon v. Peo., 123 Ill. A. 81, [a] Form and requisites.-"From the earliest times, as appears from the reported cases on the subject, this process was required to contain a statement of the nature of the crime with which the prisoner was charged. The legal requisites of such a process are thus described by an acknowledged authority on the subject of crimes and criminal procedure as defined by the common law: 'It must be in writing, under the hand and seal of the person by whom it is made and expressing his office or authority, and the time and place at which it is made, and must be directed to the jailor or the keeper of the prison. It may be made either in the name of the King, and only tested by the person who makes it, or it may be made by such person in his own name. It may command the jailor to keep the party in safe and close custody; for if every jailor be bound by the law to keep his prisoner in such custody, surely it can be no fault in a mittimus to command him so to do. It ought to set forth the crime alleged certainty, whether the commitment be by the privy council or any other authority; otherwise the officer is not punishable by reason of such mittimus for suffering the party to escape; and the court before whom he Insane asylum see Insane Persons against the person with convenient [22 Cyc 1158]. Jail see Arrest §§ 71, 220. Poorhouse 1146]. Prison see Prisons [32 Cyc 329]. Reformatory see Reformatories [34 Cyc 1007]. Legal commitment see Legal [25 Cyc 172 note 75]. 93. Guthmann v. Peo., 203 Ill. 260, 262, 67 NE 821 [cit Anderson L. D.; Bouvier L. D.]. [a] "Charge, commitment, arrest, conviction, or sentence."-It has been held that the term "commitment, conviction and sentence," in a statute providing that a person who by force or fraud rescues a prisoner from lawful custody, or from an officer or other person having him in lawful custody, is guilty of a felony if the prisoner was held on a charge, commitment, arrest, conviction, or is removed by habeas corpus ought to discharge or bail him. And this doth not only hold where no cause at all is expressed in the commitment, but also where it is so loosely set forth that the court cannot adjudge whether it were a reasonable ground of imprisonment.' (2 Hawkins Pleas of the Crown, chap. 16, p. 119.) In another authority the rule in regard to this process is stated as follows: 'But it is necessary to set forth the particular species of crime alleged against the party with convenient certainty, whether the commitment be by a justice of the peace, a sec .97 sense has been defined as a warrant or order by a court or magistrate, directed to a ministerial officer, to take a person to prison;" a warrant, order or process by which a court or magistrate directs a ministerial officer to take a person to prison or to detain him there; 98 the warrant or mittimus by which a court or magistrate directs an officer to take a person to prison;99 the process directed to a ministerial officer by which a person is to be confined in prison, usually issued by the order of a court or magistrate;1 the process by which a person is confined under the order of a court at any time before or after final sentence; a document whereby one person is committed to the custody of another; a judicial order.1 3 COMMITTEE. An individual or a body to which others have committed or delegated a particular duty, or who have taken it on themselves to perform it in the expectation of their act being confirmed by the body they profess to represent or act for; a person or persons to whom anything is committed; a person or persons to whose consideration or determination certain business is referred or confided." matter is committed or referred by some court;8 a bailiff whose power is limited to the mere care of the estate under the direction of the court. The term is especially applied to the person or persons who are invested, by order of the proper court, with the guardianship of the person and estate of one who has been adjudged a lunatic.10 a In parliamentary law. A portion of a legislative body, comprising one or more members, who are charged with the duty of examining some matter specially referred to them by the house, or of deliberating upon it, and reporting to the house the result of their investigations or recommending course of action.11 A committee may be appointed for one special occasion, or it may be appointed to deal with all matters which may be referred to it during a whole session or during the life of the body.1 In the latter case, it is called a standing committee.13 Ordinarily a committee is composed of a comparatively small number of members, but it may include the whole body.14 12 14 Committee of the whole. A committee of a legislative body consisting of all the members sitting in a deliberative rather than a legislative character, for formal consultation and preliminary consideration of matters awaiting legislative action.15 98. Peo. v. Hagen, 170 N. Y. 46, 49, 62 NE 1086 [quot Peo. v. Pitts, 111 App. Div. 319, 97 NYS 509, 510]. 99. Black L. D. In practice. An assembly or board of persons to whom the consideration or management of any retary of state, the privy council or he may use the common jail as a any other authority.' (1 Chitty's suitable place of detention and such Crim. Law, chap. 3, p. 111.)" Peo. v. detention is not deemed a commitHagan, 170 N. Y. 46, 49, 62 NE 1086. ment to jail." In re Edson, 85 Vt. See also State v. Birchim, 9 Nev. 95, 366. 369, 82 A 664. 100 (holding that a commitment, in the absence of any statutory provisions prescribing its form and contents, does not sufficiently state the offense by simply designating it by the species or class of crimes which the committing magistrate may consider it to belong, but in order to be a sufficient or valid commitment it ought to state the facts charged or found to constitute the offense with sufficient particularity to enable the court, on a return to the habeas corpus, to determine what particular crime is charged against the prisoner). to 97. Bouvier L. D. [quot Gilbert v. U. S., 23 Ct. Cl. 218, 224]; Com. v. Barker, 133 Mass. 399, 400. [a] "Detention" distinguished.It has been held that the detention of one held under legal process in any suitable place until he may be tried or properly committed to some reformatory or penal institution is not deemed a "commitment" to jail and the placing of a delinquent girl in the custody of the sheriff, after she had escaped from the custody of the constable having her in charge to take to the state industrial school, when she was placed in the women's ward at the jail with the two other women above eighteen years of age, was not a "comm'tment" contrary to the provisions of a statute that "a child under the age of sixteen years committed to a jail shall be kept separate from older persons committed to await trial, or on conviction for crime"; and the court said: "The terms of this statute did not make the detention of the relator illegal, for she was not 'committed' to the jail, and the word 'committed' seems to be used in a strict technical sense, for one reason, because the section follows immediately a section which beyond all question refers to commitments in the strict sense. When an officer has one under legal arrest, by virtue of either civil or criminal process, or without process, where that can be dispensed with, and it 's his duty to detain his prisoner until he can have him before some court or may properly commit him to some reformative or penal institution, he may in the meantime detain him in any proper and suitable place, and 1. Lynch v. Jackson County, 131 2. Peo. v. Rutan, 3 Mich. 42, 49. Cobbett v. Grey, 4 Exch. 729, [a] "Custody" compared.-Where a person convicted of fornication and bastardy was sentenced to pay a fine, etc., "and be in custody until this sentence is complied with," it was held that "custody" meant imprisonment, and that a discharge from a prison under such a commitment makes the sheriff liable; and the court said: "It is admitted, if the language had been 'committed until sentence is complied with,' it would mean imprisonment. But what greater force has the word 'committed?' It seems to me it is not so great as 'custody.' Committed what? Undoubtedly to custody; and this is the common form of sentence: and that you be committed to the custody of the sheriff until this sentence be complied with.' Custody here means strict custody-arcta custodia. A discharge from prison under such a commitment makes the keeper of the prison liable." Smith v. Com., 59 Pa. 320, 324. to 4. State v. Allen, 187 Mo. 560, 564, 86 SW 144. 5. Reynell v. Lewis, 15 M. & W. 517, 529, 153 Reprint 954. [a] As meaning officers-It has been held that the term, as applied to certain officers of a lodge, fairly designates their relation to the lodge. Coombs v. Harford, 99 Me. 426, 428, 59 A 529. 6. In re Scottish Petroleum Co., 51 L. J. Ch. 841, 845 (where the court said: "I observed in the argument, according to one's ordinary idea of the meaning of the word, a committee consists of more persons than one. But I was not right in saying that, because that is not ex vi termini the necessary meaning of the word 'committee,' which simply means a person or persons to whom anything is committed"). 7. Farrar v. Eastman, 5 Me. 345, 350 [quot Blaisdell v. York, 110 Me. 500, 518, 87 A 361]. 14. Hallock v. Lebanon, 215 Pa. 1, 5, 64 A 362. 15. Century D. [quot Hallock Lebanon,_215 Pa. 1, 5, 64 A 362]. V. [a] Form and procedure. —(1) "The practice of conducting business through the committee of the whole has for many years prevailed in legislative and deliberative bodies. Such a committee is no more than the assembly or body itself transacting a part of its business through what is termed the committee of the whole. The committee, therefore, as its name implies, amounts to this: That the particular body or assembly is carrying on a part of its legislative or deliberative functions as a committee composed of all its members. The committee, as is well known, cannot be in session unless the legal or parliamentary body of which it is composed is in session. It cannot adjourn to meet again at some other time or place. Whenever it rises, it must at once report its conclusions to the main body, and that body either rejects, approves, or modifies any matter reported to it. It is quite true that, since a majority of the committee is also generally a majority of the whole body, any matter agreed to in committee of the whole will likely be agreed to when it comes before the main body. The committee of the whole has, in modern times. in legislative and deliberat ve bodies become almost a matter of necessity. When the main body resolves itself into such committee, it does so for the purpose of escaping from the restraint that is placed upon its members under the rules governing the procedure of the main body. Debate and discussion are freer, and the secretary or clerk is relieved from recording all motions made and proceedings had, since all these are finally incorpor COMMITTITUR. An order or minute, setting forth that the person named in it is committed to the custody of the sheriff.16 Committitur piece. An instrument in writing on per or parchment, which charges a person, already 1 prison, in execution at the suit of the person who aested him.17 OMMIXTIO. In the civil law, commixture18 or commixtion;19 a mixing together of things solid or dry (as confusio is of things liquid,) which belong to fferent owners; 20 one of the modes of acquiring proprty in goods.21 COIMIXTION. In civil law, a term used to signify te act by which goods are mixed together; 22 confusɔn of goods.23 25 COMIIXTURE. Commixtion of goods.24 COMMODATE.2 In Scotch law, a gratuitous loan for use.26 28 29 COMMƆDATI ACTIO.27 In the civil law, an action of kan;2 an action for a thing lent;2 an action given for the recovery of a thing loaned and not returned to the lender. 30 COMMODATUM31 (Spanish, comodato). [8 1] A. Nature. In the civil law, a gratuitous loan, for ated into the report which the pre- | siding officer of the committee makes to the presiding officer of the main body. The report is addressed to the presiding officer of the main body, and is made to the same assembly and to the same members from whom it emanates. The whole purpose, therefore, of forming the committee of the whole, is to consider matters coming before the main body in an informal manner, as it is sometimes called. The committee of the whole, therefore, is nothing but the main body considering its business under suspended rules applicable to the main body. It is the same body transacting business in an informal instead of a formal manner under strict rules." Acord v. Booth, 33 Utah 279, 281, 283, 93 P 734 [cit Cushing L. and Pr. of Leg. Assemblies; Roberts Rules of Order; Waples Handbook of Parliamentary Pr. J. (2) "Except that it furnishes an occasional relief to the speaker and that members are allowed in committee to speak more than once to the same question, it is difficult at the present day to perceive any other difference between the house and the committee of the whole house than that the speaker presides in the former and a chairman in the latter." Cushing L. and Pr. of Leg. Assemblies [quot Acord v. Booth, supra]. 16. Black L. D. Black L. D. See also Commixture post. 19. Burrill L. D. See also Commixtion post. 20. Burrill L. D. See also Confusio post; Confusion of Goods [8 Cyc 570]. 21. Burrill L. D. 22. Bouvier L. D. 23. Webster Int. D. See generally Confusion of Goods [8 Cyc 5701. 24. Webster Int. D. See generally Confusion of Goods [8 Cyc 570]. 25. See also Bailments § 18. 26. Black L. D. [cit Erskine Inst. use only, of nonfungible property.32 It was one of [2] B. Parties-1. In General. In the Roman law the lender was known as commodans; the borrower as commodatarius.38 Each is bound to exercise the highest good faith.39 40 [3] 2. Rights and Obligations. Commodator. The lender retains the ownership of the subject matter, but cannot retake possession before the termination of the period fixed by the contract,* except, in some jurisdictions, where urgent necessity arises, 40% or where neither the duration of the 40% contract nor the character of the use has been de- lib III tit XIV 2. "Consumable things Spain.-Civ. Code art 1740 et seq; Louisiana. Civ. Code arts 2862, Philippine.-Civ. Code art 1740. Bolivia.-Civ. Code arts 1884, 1886, 1903. Chili. Civ. Code art 2174. 1928. [a] Other definitions.—(1) "A gratuitous loan of goods to be temporarily used by the bailee, and returned in specie." Hanes v. Shapiro. 168 N. C. 24, 28, 84 SE 33. (2) The bailment created "when goods or chattels that are useful, are lent to a friend gratis, to be used by him." Coggs v. Bernard, 2 Ld. Raym. 909, 913, 92 Reprint 107, 5 ERC 247 [quot Woods v. Latta, 35 Mont. 9, 20, 88 P 402]. (3) "A bailment of a thing for a certain time to be used by the forrower without paying for it." Jones Bailm. [quot Woods V. Latta, 35 Mont. 9, 20, 88 P 402]. (4) "A bailment to be used by the bailee temporarily, or for a certain time, without reward." Gaddy v. State, 8 Tex. A. 127, 128. [b] Technically, a transaction of this kind, which is solely for the benefit of the receiver, is more in the nature of a deposit than a loan, and, where the thing deposited was money, was what was known in the civil law as an irregular deposit, and both by the civil and common law a demand was necessary before a right of action for return would accrue. Woods v. Latta, 35 Mont. 9, 88 P 402. [c] Sole use of bailee essential element. In an action by the Republic of France for the loss of exhibits at the World's Columbian Ex | position it was contended that the 34. 35. 36. 37. 38. Justinian Dig. XIII, VI, I, 6. Civ. Code art 604. Sohm Rom. L. (3d ed) 376. [a] In the Spanish law the lender is called comodante; the borrower comodatario. Civ. Code art 1741. Sohm Rom. L. (3d ed) 376. 40. Roman Law.-Sohm Rom. L. (3d ed) 376. 39. 1741. Spain. Civ. Code art 1741. Philippine. Civ. Code art Compare Alcantara v. Alinea, 8 Philippine 111. Porto Rico.-Civ. Code § 1643. [a] It is so termed because the thing lent remains the property of the lender. Adams v. Colonial, etc., Mortg. Co., 82 Miss. 263, 34 S 482, 525, 100 AmSR 633, 17 LRANS 138. 4012. Spain.-Civ. Code art 1749. 2196. Venezuela.-Civ. Code art 1706. 2196. Venezuela.-Civ. Code art 1706. 404. Spain.-The burden of providing for such want of determination rests on the borrower and it is sufficient if the use is prescribed by custom. Civ. Code art 1750. Philippine.-Civ. Code art 1750. dans was liable only for dolus (fraud) and culpa lata (gross blame),* 40% but he was required to reimburse the commodatary for extraordinary expenses in preserving the subject matter.40% In Germany the commodans is responsible only for willful default or gross negligence.40 But under many codes he is liable to the commodatary for damages resulting from defects in the subject matter known to the commodator.40% The latter is also liable for extraordinary expenses of preservation, provided the commodatary gives notice before incurring them, unless they are too urgent.40% 40/2 4011 Commodatary. The borrower is entitled to the use of the subject matter but not to its income or fruits, 40% and his use must be that of a most diligent father for a family." If loss occurs which he could have prevented by using or leaving his own property he is liable." Moreover, he is liable even for a loss due to inevitable accident if he uses the subject matter for a different purpose, or keeps it for a longer time than that specified," or if it was delivered with an appraisement and there is no clause exempting him from liability.40% The commodatary must bear the ordinary expenses of preserving the subject matter,40% but he is not liable for ordinary wear or tear.* The commodatary is 400 Austria.-Civ. Code art 1641. Germany. Any use of the subject matter in breach of the contract, such as want of care or unauthorized transfer, justifies termination as does also the borrower's death. Civ. Code art 605. Portugal. Civ. Code art 1512. 40%. Sohm Rom. L. (3d ed) 376 (giving as a reason: "The lender is not interested in. the contract. He derives no benefit from the transaction"). 40%. Justinian Dig. XIII, VI. Colombia.-Civ. Code art 2216. Prussia. Civ. Code art 238. 4011. Roman Law.-"In rebus commodatis talis diligentia praetanda est, qualem quisque diligentissimus pater familias suis rebus adhibet." Justinian Dig. lib XIII tit VI par XVIII. "He is bound to make good all injury which befalls the thing while in his possession, if the injury was caused by his fault, or might have been prevented by a careful person." Mackenzie Rom. L. 216. Louisiana. Niblett V. White, 7 La. 253 (where defendant was held 401 usually obliged, on the expiration of the term, to return in specie the subject matter.40 Some of the codes, however, permit him to return "an equal amount of the same kind and quality.'' 40% In Chili,40% notwithstanding the obligation to return, the commodatary may retain the subject matter pending reimbursement for damages directly occasioned by its defective quality. So in Argentina if it consists of a deadly weapon or other object of which criminal use is sought it must be turned over to the judge. In Uruguay40 1/21 if it were wrongfully obtained the comodatario who knows it and fails to give the owner a reasonable opportunity to recover it becomes liable to the latter who must, nevertheless, have the consent of the comodante (bailor) or a judicial order, to warrant his taking possession. But the commodatary cannot detain the subject matter as against a debt due from the commodator.40 1/22 Enforcement. Under the Roman law the obligations of the borrower were enforced by the actio commodati; those of the lender by the actio contraria commodati.40 1/23 In Germany40 1/24 the liabilities of the parties are barred in six months. Where there are several borrowers they are liable in solido.40 1/25 Ordinarily the rights and obligations liable for a slave loaned by the master and lost in a storm while in the service of the commodatary). France.-Civ. Code art 1880. 401/12. Roman Law. Justinian Dig. lib XIII tit VI par V, 4; Sentence of Paulus II, IV, II. "He is bound to exercise omnis dili gentia, i. e. he is liable for culpa levis" (slight blame). Sohm Rom. L. (3d ed) 376. "Thus if a man borrow a horse, and so maltreat it by overriding, or otherwise, as to cause its death or render it useless, he will be liable for its value to the owner." Mackenzie Rom. L. 216. Louisiana.-Rev. Civ. Code art 2900. France.-Civ. Code art 1882. 4013. Roman Law.-Mackenzie Rom. L. 216. Spain. Civ. Code art 1744. Louisiana.-Civ. Code art 2870. Philippine. Civ. Code art 1744. Porto Rico.-Civ. Code § 1646. Bolivia. Civ. Code art 1891. Chili. Civ. Code art 2178. France. Civ. Code art 1881. Germany.-Civ. Code arts 603, 604. Guatemala.-Civ. Code art 1936. Italy. Civ. Code art 1809. Mexico. Civ. Code art 2792. Netherlands.-Civ. Code art 1782. Portugal. Civ. Code art 1514. Uruguay.-Civ. Code art 2183. 4014. Roman Law. Justinian Dig. lib XIII tit VI pars III, V. Spain.-Civ. Code art 1745. Louisiana.-Rev. Civ. Code art 2901. Philippine. Civ. Code art 1745. Porto Rico.-Civ. Code § 1647. Bolivia.-Civ. Code art 1893. France.-Civ. Code art 1883. Guatemala.-Civ. Code art 1937. Italy, Civ. Code art 1811. Mexico. Civ. Code art 2793. Netherlands.-Civ. Code art 1784. Uruguay.-Civ. Code art 2184. 4015. Roman Law.-Justinian Dig. lib XIII tit VI. Spain. Civ. Code art 1743. Philippine.-Civ. Code art 1743. Porto Rico.-Civ. Code § 1645. Bolivia. Civ. Code art 1890. Germany.-Civ. Code art 601 (providing also that where the subject matter is animated the cost of maintenance is included). Guatemala.-Civ. Code art 1935. Mexico.-Civ. Code art 2791. Uruguay.-Civ. Code art 2182. 4016. Roman Law.-Justinian Dig. lib XIII tit VI (X). Spain. Civ. Code art 1746. Louisiana. Civ. Code art 2902. Philippine.-Civ. Code art 1746. Porto Rico.-Civ. Code § 1648. Bolivia. Civ. Code art 1894. France.-Civ. Code art 1884. Germany. Civ. Code art 602. Guatemala.-Civ. Code art 1940. Italy. Rev. Civ. Code art 1812. Mexico. Civ. Code art 2801. Netherlands.-Civ. Code art 1785. Uruguay.-Civ. Code art 2190. Venezuela.-Civ. Code art 1703. 40117. Roman Law- Mackeldey Rom. L. (Dropsie ed) 338. Louisiana.-Rev. Civ. Code 2893. art France.-Civ. Code art 1875. Germany-Civ. Code art 604. [a] Returned in specie. Coggs v. Bernard, 2 Ld. Raym. 909, 913, 92 Reprint 107, 5 ERC 247 [quot Woods v. Latta, 35 Mont. 9, 20, 88 P 402]. [b] If it be money, it is to be returned in the identical bills and coins lent. Adams v. Colonial, etc., Mortg. Co., 82 Miss. 263, 34 S 482, 525, 100 AmSR 633, 17 LRANS 138. 4018. Spain. Civ. Code art 1740. Philippine.-Civ. Code art 1740. Porto Rico.-Civ. Code § 1642. 4019. Civ. Code art 2193. Compare art 2182. 40120- Civ. Code lib VII § 3 tit XVII. 4021. Civ. Code lib IV pt II tit VII cap II. 401/22. Roman Law. Justinian Codex lib IV tit XXIII (IV); Mackenzie Rom. L. 216. Spain.-Civ. Code art 1747. 2903. Civ. Code art Philippine.-Civ. Code art 1747. 2192. |