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shall restore the worth of them to the owner*. If, indeed, he have time to save only one of two chests, and one be a deposit, the other his own property, he may justly prefer his own; unless that contain things of small comparative value, and the other be full of much more precious goods, as fine linen or silks; in which case he ought to save the more valuable chest, and has a right to claim indeinnification from the depositor for the loss of his own. Still farther; if he commit even a gross neglect in regard to his own goods as well as those bailed, by which both are lost or damaged, be cannot be said to have violated good faith, and the bailor must impute to his own folly the confidence which he reposed in so improvident and thoughtless a persont.

To this principle, that a depositary is answerable only for grofs negligence, there are some exceptions.

First, as in SOUTHCOTE's case, where the bailee, by a Special agreement, has engaged to answer for less: “Si quid nominatim convenit,” says the Roman lawyer, “ vel plus vel minus in singulis sa contractibus, hoc servabitur quod initiò con“ venit; legem enim contractui dedit];" but the

* Poth. Contrat de Dépôt, n. 29. Stiernh. de Jure Sueon. 1. 2. C. 5.

+ Bract. 99. b. Justin. Inst. l. 3. tit. 15. I L. Contraplus, 23. D. de reg. jur.

opinion of Celsus, that an agreement to dispense with deceit is void, as being contrary to good morals and decency, has the assent both of ULPIAN and our English courts *.

Secondly; when a man spontaneously and officiously proposes to keep the goods of another, he may prevent the owner from intrusting them with a person of more approved vigilance; for which reason be takes upon himself, according to JULIAN, the risk of the deposit, and becomes reSponsible at least for ordinary neglect, but not for mere casualtiest. Where things are deposited through necessity

sudden emergence, as a fire or a shipwreck, M. Le Brun insists, “ that the depositary must “ answer for less than gross neglect, how careless “ soever he may be in his own affairs; since the “ preceding remark, that a man, who reposes confidence in an improvident person, muft impute

any loss to his own folly, is inapplicable to a “ case, where the deposit was not optional; and the law ceases with the reason of itf;” but that is not the only reason; and, though it is an additional misfortune, for a man in extreme haste and deep distress to light upon a stupid or inat

on any

* Doct. and Stud. dial. 2. chap. 38.
+ D. 16. 3) 1. 35.

De la Prestation des Fautes, p. 77.

tentive depositary, yet I can hardly persuade myself, that more than perfect good faith is demanded in this case, although a violation of that faith be certainly more criminal than in other cases, and was therefore punished at Rome by a forfeiture of the double value of the goods deposited.

In these circumstances, however, a benevolent offer of keeping another's property for a time would not, I think, bring the case within JuLIAN's rule before-mentioned, so as to make the person offering answerable for Night, or even ordinary, negligence; and my opinion is confirmed by the authority of LABEO, who requires no more than good faith of a negotiorum geftor, when “ affectione coactus, ne bona mea distrahantur,

negotiis se meis obtulerit.”

Thirdly; when the bailee, improperly called a depositary, either directly demands and receives a reward for his care, or takes the charge of goods in consequence of some lucrative contract, he becomes answerable for ordinary neglect; since, in truth, he is in both cases a conductor operis, and lets out his mental labour at a just price: thus, when clothes are left with a man, who is paid for the use of his bath, or a trunk with an innkeeper or his servants, or with a ferryman, the bailees are as much bound to indemnify the owners if the goods be lost or damaged through

their want of ordinary circumspection, as if they were to receive a ftipulated recompense for their attention and pains; but of this more fully, when we come to the article of kiring.

Fourthly; when the bailee alone receives advantage from the deposit, as, if a thing be borrowed on a future event, and deposited with the intended borrower, until the event happens, because the owner, perhaps, is likely to be absent at the time, such a depositary must answer even for sight negligence; and this bailment, indeed, is rather a loan than a deposit, in whatever light it may

be considered by the parties. Suppose, for example, that Charles, intending to appear at a malked ball expected to be given on a future night, requests George to lend him a dress and jewels for that purpose, and that George, being obliged to go immediately into the ountry, defires Charles to keep the dress till his return, and, if the ball be given in the mean time, to wear it; this seems to be a regular loan, although the original purpose of borrowing be future and contingent.

Since, therefore, the two last cases ire not, in strict propriety, deposits, the exceptons to the general rule are reduced to two only; ind the second of them, I conceive, will not be rejected by the English lawyer, although I recolleit no de

cision or di&tum exactly conformable to the opinion of JULIAN.

Clearly as the obligation to restore a deposit flows from the nature and definition of this contract, yet, in the reign of ELIZABETH, when it had been ad udged, consistently with common fense and common honesty," that an action on “ the case lay against a man, who had not per“ formed his promise of redelivering, or deliver

ing over, things bailed to him," that judgement was reversed; and, in the sixth

year

of JAMES, judgement for the plaintiff was arrested in a cafe exactly similar*: it is no wonder, that the profeffion grumblıd, as lord Hoit says, at fo absurd a reversal; which was itself moft justly reversed a few years after, and the first decision folemnly establishedt.

Among the other curious remains of Attick law, which philologers have collected, very little relates to tie contracts, which are the subject of this essay; but I remember to have read of DeMOSTHENES, that he was advocate for a person, with whon three men had deposited fome valuable uteisil, of which they were joint-owners; and the lepositary had delivered it to one of them, of whose knavery he had no fufpicion;

* Yelv. 4. 50. 128.
+ 2 Cro. 667. Wheatly and Low.

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