ftrefs on the mere words of the tranflation, as I cannot perfuade myself, that the Greek jurifts under BASILIUS and LEO were perfectly acquainted with the niceties and genuine purity of their language; and there are invincible reafons, as, I hope, it has been proved, for rejecting all systems but that, which РOTHIER has recommended and illuftrated.

I come now to the laws of our own country, in which the fame diftinctions and the fame rules, notwithstanding a few clashing authorities, will be found to prevail; and here I might proceed chronologically from the oldeft Year-book or Treatife to the latest adjudged Cafe; 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 fame time, under each head, a kind of hiftorical order. It must have occurred to the reader, that I might easily have taken a wider field, and have extended my inquiry to every poffible cafe, in which a man poffeffes for a time the goods of another; but I chose to confine myself within certain limits, left, by grafping at too vaft a subject, I should at last be compelled, as it frequently happens, by accident or want of leifure, to leave the whole work unfinished: it will be fufficient to remark, that the rules are in general the fame, 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 confequence of fome diftinct contract.

Sir JOHN HOLT, whom every Englishman should mention with respect, and from whom no English lawyer fhould venture to diffent without extreme diffidence, has taken a comprehensive view of this whole fubject in his judgment on a celebrated cafe, which shall foon be cited at length; but, highly as I venerate his deep learning and fingular fagacity, I shall find myself conftrained, in fome few inftances, 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 divifion 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 fubdivifion. I acknowledge, therefore, but five fpecies of bailment; which I fhall now enumerate and define, with all the

* Doct. and Stud. dial. 2. ch. 38. Lord Raym. 909. 917. See Ow. 141. 1 Leon. 224. 1 Cro. 219. Mulgrave and Ogden.

† Lord Raym. 912.

Latin names, one or two of which lord HOLT has omitted. I. DEPOSITUM, which is a naked bailment, without reward, of goods to be kept for the bailor. 2. MANDATUM, or commiffion; when the mandatary undertakes, without recompence, to do fome act about the things bailed, or fimply to carry them; and hence Sir HENRY FINCH divides bailment into two forts, to keep, and to employ*. 3. COMMODATUM, or loan for ufe; when goods are bailed, without pay, to 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 hiring, which is always for a reward; and this bailment is either, 1. locatio rei, by which the hirer gains the temporary ufe 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 vebendarum, when goods are bailed for the purpofe of being carried from place to place, either to a publick carrier, or to a private perfon.

I. The most ancient cafe, 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 grofs negligence in a depofitary to leave fuch a depofit in an open antichamber, and ordinary neglect, at least, to let them remain on his table, where they might poffibly tempt his fervants; 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 fufpected, to contain diamonds; and DOMAT, who prefers the opinion of TREBATIUS, decides, that, in fuch a cafe, the de

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pofitary would only be obliged to restore the "cafket, as it was delivered, without being re"sponsible for the contents of it." I confefs, however, that, anxiously as I wish on all occafions to fee authorities refpected, and judgment holden facred, BONION's cafe appears to me wholly incomprehenfible; for the defendant, instead of having been grossly negligent (which alone could have expofed him to an action), seems to have used at leaft ordinary diligence; and, after all, the lofs was occafioned by a burglary, for which no bailee can be responsible without a very special undertaking. The plea, therefore, in this cafe was good, and the replication, idle; nor could I ever help suspecting a mistake in the laft words alii quòd non; although RICHARD DE WINCHEDON, or whoever was the

diffatisfied, we fee, with Sir EDWARD COKE'S

reafon, that, when the jewels were locked up

"in a cheft, the bailee was not, in fact, trufted "with them." Now there was a diversity of opinion, upon this very point, among the greateft lawyers of Rome; for "it was a question, "whether, if a box fealed up had been depofited, "the box only should be demanded in the ac❝tion, or the clothes, which it contained, should "also be specified; and TREBATIUS infifts, that "the box only, not the particular contents of it, "must be sued for; unless the things were pre"viously shewn, and then depofited: but LABEO "afferts, that he, who depofits the box, deposits the " contents of it; and ought, therefore, to demand "the clothes themselves. What then, if the depo

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fitary was ignorant of the contents? It feems to "make no great difference, fince he took the

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charge upon himself; and I am of opinion, fays ULPIAN, that, although the box was "fealed up, yet an action may be brought for "what it containedt." This relates chiefly to the form of the libel; but, furely, cafes may be put, in which the difference may be very material as to the defence. Diamonds, gold, and precious trinkets, ought, from their nature, to be kept with peculiar care under lock and key: it