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what possible objection could have been made; but his exuberant erudition boiled
produced the frothy conceit, which has occasioned fo many
reflections on the case itself; namely, " that to KEEP and to keep sAFELY are one and the same thing;” a notion which was denied to be law by the whole court in the time of chief justice Holt*.
It is far from my intent to speak in derogation of the great commentator on LITTLETON; since it may truly be asserted of him, as QUINTILIAN said of CICERO, that an admiration of bis works is a fure mark of some 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 case by the vanity of thinking to improve them.
The pleader, who drew the replication in SOUTHCOTE's case, must have entertained an idea, that the blame was greater, if a servant of the depositary stole the goods, than if a mere stranger had purloined them; since the defendant ought to have been more on his guard against a person, who had so many opportunities of stealing; and it was his own fault, if he gave those opportunities to a man, of whose honesty he was not morally certain : the court, wę find,
rejected this distinction, and also held the replication informal, but agreed, that no advantage could bet aken on a general demurrer of such informality, and gave judgement on the substantial badness of the plea*. If the plaintiff, instead of replying, had demurred to the plea in bar, he might have insisted in argument, with reason and law on his side, “that, although “a general bailee to keep be responsible for
Gross neglect only, yet BENNET had, by a Special acceptance, made himself answerable “ for ORDINARY neglect at least; that it was
ordinary neglect, to let the goods be stolen out “ of his possession, and he had not averred, that “they were stolen without his default; that he
ought to have put them into a safe place, ac
cording to his undertaking, and have kept " the key of it himself; that the special bailee " was reduced to the class of a conductor operis,
or a workman for bire; and that a tailor, to “ whom his employer has delivered lace for a “ suit of clothes, is bound, if the lace be stolen,
to restore the value of itt.” This reasoning
+ “ Alia est furti ratio ; id enim non cafui, fed levi culpæ, fermè ascribitur." Gothofr. Comm. in L. Contractus, p. 145. See D. 17. 2. 52. 3. where says the annotator, “ Adverfùs latrones parùm prodest custodia ; adversùs firem prodesse poteft, fi quis advigilet.” See also Poth. Contrat de Louage, n. 429. and Contrat de Pret à usage, n. 53. So, by justice Cot
would not have been just, if the bailee had pleaded, as in Bonion's case, that he had been robbed by violence, for no degree of care can
in general prevent an open robbery: impetús predonum, says ULPIAN, à nullo præftantur.
Mr. Justice Powell,. speaking of SouthCOTE's case, which he denies to be law, admits, that, “ if a man does undertake specially. to keep
goods SAFELY, that is a warranty, and will “ oblige the bailee to keep them fafely against “perils, where he has a remedy over, but not
against those where he has no remedy over*." One is unwilling to suppose, that this learned judge had not read lord Coke's report with attention; yet the case, which he puts, is precisely that which he opposes, for Bennet did undertake “ to keep the goods SAFELY;" and, with submission, the degree of care demanded, not the remedy over, is the true measure of the obligation ; for the bailee might have his appeal of robbery, yet he is not bound to keep the goods against robbers without a most express agreementt. This, I apprehend, is all that was meaned by St. GERMAN, when he says, “ that,
tesmore, “Si jeo grante byens a un home a garder a mon oeps, “ fi les byens per fon mesgarde font embles, il sera charge a moy “ de melmes les byens, mez s'il soit robbe de mesmes les byens, "il est excusable per le ley.” 10 Hen. VI. 21. * Ld. Raym. 912.
+ 2 Sho, pl. 166. в в 2
" if a man have nothing for keeping the goods
bailed, and promise, at the time of the delivery, “ to restore them safe at his peril, he is not re
sponsible for mere casualties* ;” but the rule extracted from this passage, " that a Special ac
ceptance to keep safely will not charge the “ bailee against the acts of wrongdoerst,” to which purport HOBART also and Croke are cited, is too general, and must be confined to acts of violence.
I cannot leave this point, without remarking, that a tenant at will, whose interest, when he has it rentfree, the Romans called PRECARIUM, stands in a situation exactly parallel to that of a deposıtary; for, although the contract be for his benefit, and, in some instances, for bis benefit only, yet he has an interest in the land till the will is determined, “ and, our law adds, it is the folly of “ the lessor, if he do not restrain him by a special “ condition :" thence it was adjudged, in the Countess of Shrewsbury's case, “ that an action “ v-ill not lie againt a tenant at will generaliy, if “ the house be burned through his neglectf;" but, says justice Powell, “ had the action been “ founded on a special undertaking, as that, in o consideration that the leffor would let him live
* Doct. and Stud. dial. 2. chap. 38.
“ in the house, he would deliver it up in as good “ repair as it then was in, such an action would “ have been maintainable. *"
It being then established, that a bailee of the first fort is answerable only for a fraud, or for gross neglect, which is considered as evidence of it, and not for such ordinary inattentions as may be compatible with good faith, if the depositary be himself a careless and inattentive man; a question may arise, whether, if proof be given, that he is, in truth, very thoughtful and vigilant in bis own concerns, he is not bound to restitution, if the deposit be lost through his neglect, either ordinary or sight; and it seems easy to support the affirmative; since in this case the measure of diligence is that, which the bailee uses in his own affairs. It must however be confessed, that the character of the individual depositary can hardly be an object of judicial discussion: if he be Nightly or even ordinarily negligent in keeping the goods deposited, the favourable presumption is, that he is equally neglectful of his own property; but this presumption, like all others, may be repelled; and, if it be proved, for instance, that, his house being on fire, he saved his own, goods, and, having time and power to save also those deposited, suffered them to be burned, he
* Ld. Raym. 911.