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Vide Str. 1099.

Nor even then

if he was guilty

of the same neglect with re

spect to his own.

D. acc. 2 Ld.
Raym. 655.

Semb. acc.

Burr. 2300.

Vide ante 46.62.
(a) Vide 2 Ld.
Raym. 655.
Ante 41.

your own.

where it is held, that a general delivery will charge the bailee to answer for the goods if they are stolen, unless the goods are specially accepted, to keep them only as you will keep But (a) my lord Coke has improved the case in his report of it, for he will have it, that there is no difference between a special acceptance to keep safely, and an acceptance generally to keep. But there is no reason nor justice in such a case of a general bailment, and where the bailee is not to have any reward, but keeps the goods merely for the use of the bailor, to charge him without some default in him. For if he keeps the goods in such a case with an ordinary care, he has performed the trust reposed in him. But according to this doctrine the bailee must answer for the wrongs of other people, which he is not, nor cannot be, sufficiently armed against. If the law be so, there must be some just and honest reason for it, or else some universal settled rule of law, upon which it is grounded; and therefore it is incumbent upon them that advance this doctrine, to shew an undisturbed rule and practice of the law according to this position. But to shew that the tener of the law was always otherwise, I shall give a history of the authorities in the books in this

matter,

914.

matter, and by them shew, that there never was 2Ld. Raym any such resolution given before Southcote's case. The 29 Ass. 28. is the first case in the books' upon that learning, and there the opinion is, that the bailee is not chargeable, if the goods are stole. As for 8 Edw. 2. Fitz. Detinue, 59. where goods were locked in a chest, and left with the bailee, and the owner took away the key, and the goods were stolen, and it was held that the bailee should not answer for the goods. That case they say differs, because the bailor did not trust the bailee with them. But I cannot see the reason of that difference, nor why the bailee should not be charged with goods in a chest, as well as with goods out of a chest. For the bailee has as little power over them, when they are out of a chest, as to any benefit he might have by them, as when they are in a chest; and he has as great power to defend them in one case as in the other. The case of 9 Edw. 4. 40. b. was but a debate at bar. For Danby was but a counsel then, though he had been chief justice in the beginning of Ed. 4. yet he was removed and restored again upon the restitution of Hen. 6. as appears by Dugdale's Chronica Series. So that what he said cannot be taken to be any authority, for he spoke only for his client; and Genney for his client said the

contrary.

contrary. The case in 3 Hen. 7. 4. is but a sudden opinion, and that but by half the court; and yet that is the only ground for this opinion of my Lord Coke, which besides he has improved. But the practice has been always at Guildhall, to disallow that to be a sufficient evidence to charge the bailee. And it was prac tised so before my time, all Chief Justice Pemberton's time, and ever since, against the opinion of that case. When I read Southcote's case heretofore, I was not so discerning as my brother Powys tells us he was, to disallow that case at first, and came not to be of this opinion, till I had well considered and digested that matter. Though I must confess reason is strong against the case to charge a man for doing such a friendly act for his friend, but so far is the law from being so unreasonable, that such a bailee is the least chargeable for neglect of any. For if he keeps the goods bailed to him but as he keeps his own, though he keeps his own but negligently, yet he is not chargeable for them; for the keeping them as he keeps his own, is an argument of his honesty. A fortiori he shall not be charged, where they are stolen without any neglect in him. Agreeable to this is Bracton, lib. 3. c. 2. 99. b. J. S. apud quem res deponitur, re obligatur, et de ea re, quam accepit, restituenda tenetur, et

915.

etiam ad id, si quid in re deposita dolo commiserit; culpæ autem nomine non tenetur, scilicet desidie vel negligentia, quia qui negligenti amico rem custodiendam tradit, sibi ipsi et propriæ fatuitati hoc debet imputare. As suppose the bailee is an idle, careless, drunken fellow, and comes home drunk, and leaves all his doors open, and by reason thereof the goods happen to be stolen 2Ld. Raym. with his own; yet he shall not be charged, because it is the bailor's own folly to trust such an idle fellow. So that this sort of bailee is the least responsible for neglects, and under the least obligation of any one, being bound to no other care of the bailed goods, than he takes of his own. This Bracton I have cited is, I confess, an old author, but in this his doctrine is agreeable to reason, and to what the law is in other countries. The civil law is so, as you have it in Justinian's Inst. lib. 3. tit. 15. There the law goes farther, for there it is said, Ex eo solo tenetur, si quid dolo commiserit: culpæ autem nomine, id est, desidia ac negligentiæ, non tenetur. Itaque securus est qui parum diligenter custoditam rem furto amiserit, quia qui negligenti amico rem custodiendam tradit non ei, sed suæ facilitati id imputare debet. So that a bailee is not chargeable without an apparent gross neglect. And if there is such a gross neglect, it is looked upon

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A gross neglect fraud.

an evidence of

Though a man
who takes goods
to keep gratis
for the use of
the bailee ex-
pressly under-
takes to redeli-

as an evidence of fraud. Nay, suppose the bailee undertakes safely and securely to keep the goods, in express words, yet even that won't charge him with all sorts of neglects. For if such a promise were put into writing, it would not charge so far, even then. Hob. 34. a covenant, that the covenantee shall have, occupy, and enjoy certain lands, does not bind against the acts of wrong-doers. 3 Cro. 214. acc. 2 Cro. 425. acc. upon a promise for quiet enjoyment. And if a promise will not charge a man against wrong-doers when put in writing, it is hard it should do it more so when spoken. Doct. and Stud. 130. is in point, that though a bailee do promise to re-deliver goods safely, yet if he have nothing for keeping of them, he will not be answerable for the acts of a wrong-doer. So that there is neither sufficient reason nor authority to support the opinion in Southcote's case; if the bailee be guilty of gross negligence, he will be chargeable, but not for any ordinary neglect. As to the second sort of bailment, viz. commosponsible for any datum or lending gratis, the borrower is bound to the strictest care and diligence to keep the goods, so as to restore them back again to the ante 65. 72, 73 lender, because the bailee has a benefit by the use of them, so as if the bailee be guilty of the least neglect, he will be answerable as if a man

ver them safely, sponsible for any

he is not re

loss or damage occasioned by a wrong-doer.

Sed vide ante 45.

The borrower

of goods is re

damage or loss if it was occasioned by his

negle. Vide

should

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