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diates. It is true, that he gives no epithet or name to the omission of his second mode of care; and, had he searched for an epithet, he could have found no other than gross; which would have demonstrated the weakness of his whole system*.
The disquisition amounts, in fact, to this: from the barrenness or poverty, as LUCRETIus calls it, of the Latin language, the single word CULPA includes, as a generick term, various degrees or shades of fault, which are sometimes distinguished by epithets, and sometimes left without
distinction; but the Greek, which is rich and flexible, has a term expressive of almost every shade, and the translators of the law Contractus actually use the words ox@wpía and a’uéraid, which are by no means synonymous, the former implying a certain easiness of mind or remisness of attention, while the second imports a higher and more culpable degree of negligencet. This observation, indeed, seems to favour the system of GODEFROI; but I lay no great
* See pages 32. 73. 74. 149.
† Bafilica, 2, 3, 23. See Demojih. 3 Phil. Reiske's edit. I. 112. 3. For levisima culpa, which occurs but once in the whole body of Roman law, çąguuía seems the proper word in Greek; and it is actually so used in the Basilica, 60. 3. 5. where mention is made of the Aquilian law, in quâ, says Ulpian, et levissima culpa venit. D. 9. 2. 44.
stress on the mere words of the translation, as I cannot persuade myself, that the Greek jurists under BASILIŲs and Leo were perfectly acquainted with the niceties and genuine purity of their language; and there are invincible reasons, as, I hope, it has been proved, for rejecting all systems but that, which Pothier has recommended and illustrated.
I come now to the laws of our own country, in which the same distinctions and the same rules, notwithstanding a few clashing authorities, will be found to prevail; and here I might proa ceed chronologically from the oldest Year-book or Treatise to the latest adjudged Case; but, as there would be a most unpleasing dryness in that method, I think it better to examine separately every distinct Species of bailment, observing at the same time, under eich head, a kind of historical order. It must have occurred to the reader, that I might easily have taken a wider field, and have extended my inquiry to every possible case, in which a man polles for a time the goods of another; but I chose to confine myself within certain limits, lest, by grasping at too vast a subject, I should at last be compelled, as it frequently happens, by accident or want of leisure,'to leave the whole work unfinished: it will be sufficient to remark, that the rules are in general the same, by whatever means the goods are legally in the hands of
the poffeffor, whether by delivery from the owner, which is a proper bailment, or from
any other person, by finding*, or in consequence of fome distinct contract.
Sir John Holt, whom every Englishman should mention with respect, and from whom no English lawyer should venture to diffent without extreme diffidence, has taken a comprehensive view of this whole subject in his judgment on a celebrated case, which shall soon be cited at length; but, highly as I venerate his deep learning and fingular sagacity, I shall find myself constrained, in some few instances, to differ from him, and shall be presumptuous enough to offer a correction or two in part of the doctrine, which he propounds in the course of his argumentt.
His division of bailments into fix forts appears, in the first place, a little inaccurate; for, in truth, his fifth fort is no more than a branch of his third, and he might, with equal reason, have added a seventh, since the fifth is capable of another subdivision. I acknowledge, therefore, but five fpecies of bailment; which I shall now enumerate and define, with all the
* Doct. and Stud. dial. 2. ch. 38. Lord Raym. 909.917. See Ow. 141. 1 Leon. 224. I Cro. 219. Mulgrave and Ogden.
Lord Raym. 912
Latin names, one or two of which lord HOLT has omitted. 1. DEPOSITUM, which is a naked bailment, without reward, of goods to be kept for the bailor. 2. MANDATUM, or commission; when the mandatary undertakes, without recompence, to do some act about the things bailed, or simply to carry them; and hence Sir Henry Finch divides bailment into two forts, to keep, and to employ*. 3. COMMODATUM, or loan for use; when goods are bailed, without be used for a certain time by the bailee. 4. PIGNORI ACCEPTUM; when a thing is bailed by a debtor to his creditor in pledge, or as a fecurity for the debt. . 5. LOCATUM, or biring, which is always for a reward; and this bailment is either, 1. locatio rei, by which the hirer gains the temporary use of the thing; or, 2. locatio operis faciendi, when work and labour, or care and pains, are to be performed or bestowed on the thing delivered: or, 3. locatio operis mercium vehendarum, when goods are bailed for the purpose of being carried from place to place, either to a publick carrier, or to a private person.
I. The most ancient case, that I can find in our books, on the doctrine of Deposits (there were others, indeed, a few years earlier, which turned on points of pleading), was adjudged in
* Law, b. 2. ch. 18.
would, therefore, be gross negligence in a depofitary to leave such a deposit in an open antichamber, and ordinary neglect, at least, to let them remain on his table, where they might possibly tempt his servants; but no man can proportion his care to the nature of things, without knowing them: perhaps, therefore, it would be no more than flight neglect, to leave out of a drawer a box or casket, which was neither known, nor could justly be suspected, to contain diamonds; and DOMAT, who prefers the opinion of TREBATIUS, decides, “that, in such a case, the de
pofitary would only be obliged to restore the “ casket, as it was delivered, without being re“ sponsible for the contents of it.” I confess, however, that, anxiously as I wish on all occasions to see authorities respected, and judgment holden sacred, Bonion's case appears to me wholly incomprehensible; for the defendant, instead of having been grossly negligent (which alone could have exposed him to an action), seems to have used at least ordinary diligence; and, after all, the loss was occasioned by a burglary, for which no bailee can be responsible without a very special undertaking. The plea, therefore, in this case was good, and the replication, idle; nor could I ever help suspecting a mistake in the last words alii quòd non; although RICHARD DE WINCHEDON, or whoever was the