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dissatisfied, we see, with Sir EDWARD Coke's reason, “ that, when the jewels were locked up “in a chest, the bailee was not, in fact, trusted 66 with them*. Now there was a diversity of opinion, upon this very point, among the greatest lawyers of Rome; for “ it was a question,

whether, if a box fealed up had been deposited, “ the box only should be demanded in the ac

tion, or the clothes, which it contained, should “ also be specified; and TREBATIus insists, that “ the box only, not the particular contents of it, - must be sued for; unless the things were pre

viously shewn, and then deposited: but LABEO

asserts, that he, who deposits the box, deposits the “ contents of it; and ought, therefore, to demand “ the clothes themselves. What then, if the depo

sitary was ignorant of the contents? It seems to “ make no great difference, since he took the “ charge upon himself; and I am of opinion,

says ULPIAN, that, although the box was “ sealed up, yet an action may be brought for “ what it containedt." This relates chiefly to the form of the libel; but, surely, cases 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

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would, therefore, be gross negligence in a depositary 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 occafions 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

that "

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 chest sealed up;" which could never have been law, for the next oldest case, in the book of Alife, contains the opinion of chief justice THORPE,

a general bailee to keep is not responfible, if the goods be stolen, without his gross ne

glect*;" and it appears, indeed, from FitzHERBERT, that the party was driven to this issue, “ whether the goods were taken away by 66 robbers.

By the Mofaick institutions, “ 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 “ house was to be brought before the judge, and

to be discharged, if he could swear, that he “ had not put his band unto his neighbour's

goods):,” or, as the Roman author of the Lex Der translates it, Nibil se nequiter gefile F; but a distinction seems to have been made between a

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29. Aff. 28. Bro. Abr. tit. Bailment, pl. 79 + Exod. xxii. 7, 8.

| Lib. 10. De Deposito. This book is printed in the same volume with the Theodofan Code, Paris, 1586,

stealing by day and a stealing by night*; and “ if CATTLE were bailed and stolen (by day, I

presume), the person, who had the care of them, was bound to make restitution to the

owner-f;" for which the reason seems to be, that, when cattle are delivered to be kept, the bailee is rather a mandatary than a depositary, and is, consequently, obliged to use a degree of diligence adequate to the charge: now sheep can hardly be stolen in the day-time without some 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 be bad a reward, loft any of the beasts intrusted to his care, LABAN made him answer for them “ whether stolen by “ day or stolen by nights.”

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 inserted in his Commentary on LITTLETON, the great result of all his experience and learning; namely, “ that a depositary is responsible, if the

goods be stolen from him, unless he accept “ them specially to keep as his own,whence he advises all depositaries 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 some broken cases in the Year-books, mere conversations on the bench, or loose arguments at the bar; and partly on Southcore's case, which he has reported, and which by no means warrants his deduction from it. As I humbly conceive that case to be law, though the doctrine of the learned reporter cannot in all points be maintained, I shall 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 confessed such delivery, but pleaded in bar, that a certain person STOLE them out of his possession; the plaintiff replied, protesting that he had not been robbed, that the person 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“ self, by accepting them on such a delivery.” Had the reporter stopped here, I do not see

4 Rep. 83. b. i Inst. 89. a. b.

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