would, therefore, be grofs negligence in a depofitary to leave fuch a deposit 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 suspected, to contain diamonds; and DOMAT, who prefers the opinion of TREBATIUS, decides, that, in fuch a cafe, the depofitary would only be obliged to restore the "cafket, as it was delivered, without being re

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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 exposed 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 fufpecting a mistake in the laft words alii quòd non; although RICHARD DE WINCHEDON, or whoever was the

compiler of the table to this Year-book, makes a distinction, that, "if jewels be bailed to me, and “I put them into a casket, and thieves rob me of "them in the night-time, I am answerable; not, "if they be delivered to me in a cheft Sealed

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up" which could never have been law, for the next oldest case, in the book of Affife, contains the opinion of chief juftice THORPE, that "a general bailee to keep is not responsible,

if the goods be stolen, without his gross neglect*;" and it appears, indeed, from FITZHERBERT, that the party was driven to this iffue, "whether the goods were taken away by "robbers."

By the Mofaick inftitutions, "if a man deli"vered to his neighbour MONEY or STUFF to

keep, and it was stolen out of his house, and the "thief could not be found, the master of the "houfe was to be brought before the judge, and

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to be discharged, if he could fwear, that he "had not put his hand unto his neighbour's goods," or, as the Roman author of the LEX DEI tranflates it, Nihil fe nequiter geffiffet; but a diftinction feems to have been made between a

* 29. Aff. 28. Bro. Abr. tit. Bailment, pl. 7.

+ Exod. xxii. 7, 8.

Lib. 10. De Depofito. This book is printed in the fame volume with the Theodofian Code, Paris, 1586,

ftealing by day and a ftealing by night*; and "if CATTLE were bailed and ftolen (by day, I

prefume), the perfon, who had the care of "them, was bound to make reftitution to the owner;" for which the reason feems to be, that, when cattle are delivered to be kept, the bailee is rather a mandatary than a depositary, and is, confequently, obliged to use a degree of diligence adequate to the charge: now sheep can hardly be ftolen in the day-time without fome neglect of the shepherd; and we find that, when JACOB, who was, for a long time at least, a bailee of a different fort, as he had a reward, loft any of the beafts intrufted to his care, LABAN made him answer for them "whether stolen by day or ftolen by night‡.”

Notwithstanding the high antiquity, as well as the manifest good sense, of the rule, a contrary doctrine was advanced by Sir EDWARD COKE, in his Reports, and afterwards deliberately inferted in his Commentary on LITTLETON, the great refult of all his experience and learning; namely,' "that a depositary is responsible, if the

goods be ftolen from him, unless he accept "them fpecially to keep as his own," whence he advises all depofitaries to make such a spe

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cial acceptance*. This opinion, so repugnant to natural reason and the laws of all other nations, he grounded partly on fome broken cafes in the Year-books, mere converfations on the bench, or loofe arguments at the bar; and partly on SOUTHCOTE's cafe, which he has reported, and which by no means warrants his deduction from it. As I humbly conceive that cafe to be law, though the doctrine of the learned reporter cannot in all points be maintained, I fhall offer a few remarks on the pleadings in the cause, and the judgement given on them.

SOUTHCOTE declared in detinue, that he had delivered goods to BENNET, to be by him SAFELY kept: the defendant confeffed SUCH delivery, but pleaded in bar, that a certain perfon STOLE them out of his poffeffion; the plaintiff replied, protesting that he had not been robbed, that the perfon named in the plea was a SERVANT of the defendant, and demanded judgement; which, on a general demurrer to the replication, he obtained. “ The reason of the judgement, says lord "COKE, was, because the plaintiff had delivered "the goods to be SAFELY kept, and the defend"ant had taken the charge of them upon him"felf, by accepting them on SUCH a delivery." Had the reporter ftopped here, I do not fee

4 Rep. 83. b. 1 Inft. 89. a. b.

what poffible objection could have been made; but his exuberant erudition boiled over, and produced the frothy conceit, which has occafioned fo many reflections on the case itself; namely, "that to KEEP and to keep SAFELY are one and the fame thing;" a notion which was denied to be law by the whole court in the time of chief juftice HOLT*.

It is far from my intent to speak in derogation of the great commentator on LITTLETON; fince it may truly be afferted of him, as QUINTILIAN faid of CICERO, that an admiration of his works is a fure mark of fome proficiency in the Study of the law; but it must be allowed, that his profuse learning often ran wild, and that he has injured many a good cafe by the vanity of thinking to improve them.

The pleader, who drew the replication in SOUTHCOTE'S cafe, muft have entertained an idea, that the blame was greater, if a fervant of the depofitary ftole the goods, than if a mere ftranger had purloined them; fince the defendant ought to have been more on his guard against a perfon, who had fo many opportunities of ftealing; and it was his own fault, if he gave thofe opportunities to a man, of whofe honefty he was not morally certain: the court, we find,