rejected this diftinction, and also held the replication informal, but agreed, that no advantage could bet aken on a general demurrer of fuch informality, and gave judgement on the substantial badness of the plea*. If the plaintiff, inftead of replying, had demurred to the plea in bar, he might have infifted in argument, with reafon and law on his fide, "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 poffeffion, and he had not averred, that they were ftolen 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 clafs of a conductor operis, "or a workman for hire; and that a tailor, to "whom his employer has delivered lace for a “fuit of clothes, is bound, if the lace be stolen, to reftore the value of it." This reasoning * 1 Cro. 8:5. "Alia eft furti ratio; id enim non cafui, fed levi culpa, fermè afcribitur." Gothofr. Comm. in L. Contractus, p. 145. See D. 17. 2. 52. 3. where fays the annotator, "Adverfùs latrones parùm prodeft cuftodia; adverfùs furem prodeffe poteft, fi quis advigilet." See alfo PoTH. Contrat de Louage, n 429. and Contrat de Pret à ufage, n. 53. So, by justice Cot would not have been juft, if the bailee had pleaded, as in BONION's cafe, that he had been robbed by violence, for no degree of care can in general prevent an open robbery: impetus prædonum, fays ULPIAN, à nullo præftantur. Mr. Juftice PowELL,. fpeaking of SOUTHCOTE's cafe, which he denies to be law, admits, that, "if a man does undertake Specially to keep 66 goods SAFELY, that is a warranty, and will "oblige the bailee to keep them safely against perils, where he has a remedy over, but not ' against those where he has no remedy over*." One is unwilling to fuppofe, that this learned judge had not read lord COKE's report with attention; yet the cafe, which he puts, is precisely that which he opposes, for BENNET did undertake "to keep the goods SAFELY;" and, with fubmiffion, 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 agreement. This, I apprehend, is all that was meaned by St. GERMAN, when he fays, "that, tefmare, "Si jeo grante byens a un home a garder a mon oeps, "files byens per fon mefgarde font embles, il fera charge a moy "de mefmes les byens, mez s'il foitobbe de mefmes les byens, "il eft excufable per le ley." 10 Hen. VI. 21. * Ld. Raym. 912. † 2 Sho. pl. 166. "if a man have nothing for keeping the goods. 66 bailed, and promise, at the time of the delivery, "to restore them fafe at his peril, he is not re"fponfible for mere cafualties*;" but the rule extracted from this paffage, "that a special ac ceptance to keep SAFELY will not charge the "bailee against the acts of wrongdoers," to which purport HOBART alfo 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, whofe intereft, when he has it rentfree, the Romans called PRECARIUM, ftands in a fituation exactly parallel to that of a depofitary; for, although the contract be for his benefit, and, in some instances, for his benefit only, yet he has an intereft in the land till the will is determined, “and, our law adds, it is the folly of "the leffor, if he do not reftrain him by a special "condition:" thence it was adjudged, in the Countess of Shrewsbury's cafe, "that an action "vill not lie againt a tenant at will generally, if "the house be burned through his neglect‡;" but, fays juftice POWELL, "had the action been "founded on a special undertaking, as that, in "confideration that the leffor would let him live, Doct. and Stud. dial. 2. chap. 38. + Com. 135. Ld. Raym. 915. “in the house, he would deliver it up in as good repair as it then was in, fuch an action would "have been maintainable.*" 66 It being then established, that a bailee of the first fort is answerable only for a fraud, or for grofs neglect, which is confidered as evidence of it, and not for fuch ordinary inattentions as may be compatible with good faith, if the depofitary be himself a careless and inattentive man; a question may arife, whether, if proof be given, that he is, in truth, very thoughtful and vigilant in his own concerns, he is not bound to reftitution, if the depofit be loft through his neglect, either ordinary or flight; and it seems easy to support the affirmative; fince in this cafe the measure of diligence is that, which the bailee ufes in his own affairs. It must however be confeffed, that the character of the individual depofitary can hardly be an object of judicial difcuffion: if he be flightly or even ordinarily negligent in keeping the goods depofited, the favourable prefumption is, that he is equally neglectful of his own property; but this prefumption, like all others, may be repelled; and, if it be proved, for inftance, that, his houfe being on fire, he faved his own goods, and, having time and power to fave also thofe depofited, fuffered them to be burned, he * Ld. Raym. 911. fhall reftore the worth of them to the owner*. If, indeed, he have time to fave only one of two chefts, and one be a depofit, the other his own property, he may juftly prefer his own; unless that contain things of fmall comparative value, and the other be full of much more precious goods, as fine linen or filks; in which cafe he ought to fave the more valuable cheft, and has a right to claim indeinnification from the depofitor for the lofs of his own. Still farther; if he commit even a grofs neglect in regard to his own goods as well as those bailed, by which both are loft or damaged, he cannot be faid to have violated good faith, and the bailor muft impute to his own folly the confidence which he repofed in fo improvident and thoughtless a person†. To this principle, that a depositary is answerable only for grofs negligence, there are some exceptions. First, as in SOUTHCOTE's cafe, where the bailee, by a special agreement, has engaged to answer for lefs: "Si quid nominatim convenit," fays the Roman lawyer, " vel plus vel minus in fingulis "contractibus, hoc fervabitur 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. Inft. 1. 3. tit. 15. L. Contractus, 23. D. de reg. jur. |