founded upon 3. Southcote's (b) case is a strong authority, and the reason of it comes home to this, because the general bailment is there taken to be an undertaking to deliver the goods at all events, and so the judgment is founded upon the un (b) That notion in Southcote's case, 4 Rep. 83 b. that a general bailment and a bailment to be safely kept is all one, was denied to be law by the whole court, ex relatione m'ri Bunbury. Note to 3d Ed. dertaking. But I cannot think, that a general bailment is an undertaking to keep the goods safely at all events. That is hard. Coke reports the case upon that reason, but makes a difference where a man undertakes specially, to keep goods as he will keep his own. Let us consider the reason of the case. For nothing is law that is 2Ld. Raym. not reason. Upon consideration of the authorities there cited, I find no such difference. In 9 Ed. 4. 40. b. there is such an opinion by Danby. The case in 3 H. 7. 4. was of a special bailment, so that that case cannot go very far in the matter. 6 H. 7. 12. there is such 912. an opinion by the bye. And this is all the foundation of Southcote's case. But there are cases there cited, which are stronger against it, as 10 H. 7. 26. 29 Ass. 28. the case of a pawn. My lord Coke would distinguish that case of a pawn from a bailment, because the pawnee has a special property in the pawn; but that will make no difference, because he has a special property in the thing bailed to him to keep. 8 Ed. 2. Fitzh. Detinue, 59. the case of goods bailed to a man, locked up in a chest, and stolen; and for the reason of that case, sure it would be hard, that a man that takes goods into his custody to keep for a friend, purely out of kindness to his friend, should be chargeable at all all events. But then it is answered to that, that the bailee might take them specially. There are many lawyers don't know that difference, or however it may be with them, half mankind never heard of it. So for these reasons, I think a general bailment is not, nor cannot be taken to be, a special undertaking to keep the goods bailed safely against all events. But if (a) a man (4) Vide ante does undertake specially to keep goods safely, that is a warranty, and will oblige the bailee to keep them safely against perils, where he has his remedy over, but not against such where he has no remedy over. Holt, Chief Justice. The case is shortly this, This defendant undertakes to remove goods from one cellar to another, and there lay them down safely, and he managed them so negligently, that for want of care in him some of the goods were spoiled. Upon not guilty pleaded, there has been a verdict for the plaintiff, and that upon full evidence, the cause being tried before me at Guildhall. There has been a motion in arrest of judgment, that the declaration is insufficient, because the defendant is neither laid to be a common porter, nor that he is to have any reward for his labour. So that the defendant is not chargeable by his trade, and a private person Nn 2 cannot 44. (a) Vide ante 35 cannot be charged in an action without a re. ward. I have had a great consideration of this case, and because some of the books make the action lie upon the reward, and some upon the promise, at first I made a great question, whether this declaration was good, But upon consideration, as this declaration is, I think the action will well lie. In order to shew the grounds, upon which a man shall be charged with goods put into his custody, I must shew the several sorts of bailments. And (a) there are six sorts of bailments. The first sort of bailment is, a bare naked bailment of goods, delivered by one man 2Ld. Raym, to another to keep for the use of the bailor; and this I call a depositum, and it is that sort of bailment which is mentioned in Southcote's case. The second sort is, when goods or chattels that are useful, are lent to a friend gratis, to be used by him; and this is called commodatum, because the thing is to be restored in specie, The third sort is, when goods are left with the bailee to be used by him for hire; this is called locatio et conductio, and the lender is called locator, and the borrower conductor. The fourth sort is, when goods or chattels are delivered to another as a pawn, to be a security to him for money bor 913. Accommoda tum. Pawns. rowed rowed of him by the bailor; and this is called in Latin vadium, and in English a pawn or a pledge. The fifth sort is when goods or chattels are delivered to be carried, or something is to be done about them for a reward to be paid by the person who delivers them to the bailee, who is to do the thing about them. The sixth sort is when there is a delivery of goods or chattels to somebody, who is to carry them, or do some thing about them gratis, without any reward for such his work or carriage, which is this present case. I mention these things, not so much that they are all of them so necessary in order to maintain the proposition which is to be proved, as to clear the reason of the obligation, which is upon persons in cases of trust. Things to be carried, &c. for a reward. To be carried ward. without re A man who re keep gratis for ceives goods to the use of the bailor is not answerable for their loss or As to the (a) first sort, where a man takes goods in his custody to keep for the use of the bailor, I shall consider, for what things such a bailee is answerable. He is not answerable, if they are stole without any fault in him, neither will a common neglect make him chargeable, but he must be guilty of some gross neglect. There is I confess a great authority against me, glect with re for any damage they may sus tain, unless he was guilty of some gross ne spect to them. (a) Vide ante 36. where |