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

Secondly; when a man fpontaneously and officiously proposes to keep the goods of another, he may prevent the owner from intrufting them, with a perfon of more approved vigilance; for which reafon he takes upon himself, according to JULIAN, the risk of the depofit, and becomes reSponfible at least for ordinary neglect, but not for mere cafualtiest.

on any

Where things are depofited through neceffity fudden emergence, as a fire or a shipwreck, M. LE BRUN infifts, "that the depofitary must "answer for less than grofs neglect, how carcless "foever he may be in his own affairs; fince the

preceding remark, that a man, who repofes confidence in an improvident perfon, must impute. any loss to his own folly, is inapplicable to a "cafe, where the depofit was not optional; and "the law ceafes with the reason of it‡;” but that is not the only reason; and, though it is an additional misfortune, for a man in extreme hafte and deep diftrefs to light upon a stupid or inat

* Doct. and Stud. dial. 2. chap. 38.

+ D. 16. 31 I. 35

De la Preftation des Fautes, p. 77.

tentive depofitary, yet I can hardly perfuade myfelf, that more than perfect good faith is demanded in this cafe, although a violation of that faith be certainly more criminal than in other cafes, and was therefore punished at Rome by a forfeiture of the double value of the goods depofited.

In these circumftances, however, a benevolent offer of keeping another's property for a time would not, I think, bring the case within JuLLAN's rule before-mentioned, fo as to make the person offering answerable for flight, 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 diftrahantur, 86 negotiis fe meis obtulerit."

Thirdly; when the bailee, improperly called a depofitary, either directly demands and receives a reward for his care, or takes the charge of goods in confequence of fome lucrative contract, he becomes answerable for ordinary neglect; since, in truth, he is in both cafes a conductor operis, and lets out his mental labour at a juft 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 fervants, or with a ferryman, the bailees are as much bound to indemnify the owners if the goods be loft or damaged through

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

it

Fourthly; when the bailee alone receives advantage from the depofit, 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 flight negligence; and this bailment, indeed, is rather a loan than a depofit, in whatever light may be confidered by the parties. Suppose, for example, that Charles, intending to appear at a masked ball expected to be given on a future night, requests George to lend him a drefs and jewels for that purpose, and that George, being obliged to go immediately into the country, defires Charles to keep the drefs till his return, and, if the ball be given in the mean time, to wear it; this feems to be a regular loan, although the original purpose of borrowing be future and contingent.

Since, therefore, the two laft cafes ire not, in ftrict propriety, depofits, the exceptions to the general rule are reduced to two only; and the fecond of them, I conceive, will not be rejected by the English lawyer, although I recollect no de

cision or dictum exactly conformable to the opinion of JULIAN.

Clearly as the obligation to restore a depofit flows from the nature and definition of this contract, yet, in the reign of ELIZABETH, when it had been adjudged, confiftently with common fense and common honefty," that an action on "the cafe lay against a man, who had not per"formed his promise of redelivering, or deliver

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ing over, things bailed to him," that judgement was reverfed; and, in the fixth year of JAMES, judgement for the plaintiff was arrested in a cafe exactly fimilar*: it is no wonder, that the profeffion grumbled, as lord HOLT fays, at fo abfurd a reverfal; which was itself moft justly reversed a few years after, and the first decision folemnly established.

Among the other curious remains of Attick law, which philologers have collected, very little relates to the contracts, which are the fubject of this effay; but I remember to have read of DEMOSTHENES, that he was advocate for a person, with whon three men had depofited fome valuable uteifil, of which they were joint-owners; and the lepofitary had delivered it to one of them, of whofe knavery he had no fufpicion;

* Yelv. 4. 50. 128.

† 2Cro. 667. Wheatly and Low.

upon which the other two brought an action, but were nonfuited on their own evidence, that there was a third bailor, whom they had not joined in the fuit; for, the truth not being proved, DEMOSTHENES infifted, that his client could not legally restore the depofit, unless all three proprietors were ready to receive it; and this doctrine was good at Rome as well as at Athens, when the thing depofited was in its nature incapable of partition it is alfo law, I apprehend, in Westminfter-hall*.

The obligation to return a depofit faithfully was, in very early times, holden facred by the Greeks, as we learn from the ftory of GLAUCUS, who, on confulting the oracle, received this anfwer" that it was criminal even to harbour a

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thought of with-holding depofited goods from "the owners, who claimed them†;" and a fine application of this univerfal law is made by an Arabian poet contemporary with JUSTINIAN, who remarks, "that life and wealth are only depofited with us by our creator, and, like all "other depofits, must in due time be restored.”

II. Employment by COMMISSION was also known to our ancient lawyers; and BRACTON, the best writer of them all, expreffes it by the Roman

* D. 16. 3. 1. 36. Bro. Abr. tit. Bailment, pl. 4. + Herod. VI. 86. Juv. Sat. XIII. 199.