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 special acceptance [1]. 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 SOUTHCOTE'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 [] 4 Rep. 83. b. 1. Inst. 89. a. b. doctrine doctrine of the learned reporter cannot in all points be maintained (19), I shall offer a few remarks on the pleadings in the cause, and the judgment given on them. SOUTHCOTE declared in detinue, that Southcote's he had delivered goods to BENNET, to be case. by him SAFELY kept: the defendant con- [ 42 ] fessed 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 judgment; which, on a general demurrer to the replication, he obtained. "reason of the judgment, says Lord Coke, "was, because the plaintiff had delivered "the goods to be SAFELY kept, and the "The (19) See 2 Ld. Ray. 911, and note (c), 912-914. "defendant "defendant had taken the charge of them upon himself, by accepting them on "SUCH a delivery." Had the reporter stopped here, I do not see what possible objection could have been made; but his exuberant erudition boiled over, and produced the frothy conceit, which has occasioned so 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 [m]. It is far from my intent to speak in derogation of the great commentator Littleton; since it may truly be asserted of him, as Quintilian said of CICERO, that an admiration of his works is a sure mark of some proficiency in the study of the law (20); 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 [ 43 ] in Southcote's case, must have entertained (20) Ille se profecisse sciat, cui Cicero valde "placebit." Instit. Orat. lib. 10. c. I. § 6. Among the orators and statesmen of the ancient world, none has established a fairer claim to the applause and gratitude of posterity than Cicero: his orations are models of all that is to be admired and studied in eloquence-his other valuable productions have transmitted the best precepts of the rhetorical science, and the moral wisdom of a mind that, amidst the most important public avocations, carefully and profoundly noted every circumstance illustrative of the duties of men. This example should not be forgotten by those who are most busily engaged in the pursuits of honourable ambition: knowledge acquired by intercourse with mankind is of the highest practical value, and when communicated under the sanction of respectable talents and character, will not be imparted in vain. Thus might many great men secure a celebrity independent of the caprice of contemporary applause, and close the scene of life with the conscious exclamation of the poet, "Exegi monumentum ære perennius." 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, we find, rejected this distinction, and also held the replication informal, but agreed, that no advantage could be taken on a general demurrer of such informality, and gave judgment on the substantial badness of the plea [n]. 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 an 66 [n] Cro. 815. "swerable |