3. "Southcote's 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 undertaking. 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 a case specially, to keep goods as he will keep his own. Let us consider the reason of the case: for nothing is law that is not reason. Upon consideration of the authorities there cited, I find no such difference. In Edw. 4, 40, b, there is such an opinion by Danby. The case in 3 Hen. 7, 4, was of a special bailment, so that that case cannot go very far in the matter. 6 Hen., 7, 12, there is such an opinion by the by. And this is all the foundation of South-cote's case. But there are cases there cited, which are stronger against it, as Hen., 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 Edw., 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 events. But then it is answered to that, that the bailee might take them specially. There are many lawyers do not 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 man 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, C. J. 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 labor, so that the defendant is not chargeable by his trade, and a private person cannot be charged in an action without a reward. "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 show the goods upon which a man shall be charged with goods put into his custody, I must show the several sorts of bailments. The first sort of bailment is, a bare naked bailment of goods, delivered by one man 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 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 borrowed of him by the bailor; and this is called in Latin, vadium, and in English, a pawn, or 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 something about them gratis, without any reward for his work or carriage, which is this present case. I mention these things, not so much that they are all of them 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.

2. "As to the 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 stolen 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; 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 your own. But 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 fault 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 wnich it is grounded; and therefore it is incumbent upon them that to advance this doctrine, to show an undisturbed rule and practice of the law according to this position. But to show that the tenor of the law was always otherwise, I shall give a history of the authorities in the books in this matter, and by them show that there never was any such resolution given before South-worth'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 Fitzh. Detinue, 59, where the goods were locked in a chest, and left with the bailee, and the owner took away the key, and the goods were stolen, it was held that the bailee should 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 a great power to defend them in one case as in the other. The case of 9 Edw., 4, 40 b, was 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 Genny for his client, said the contrary. The case in 3 Hen., 7, 4, is but a sudden opinion, and that 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 practiced 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 unreasonable, that such a bailee is the least chargeable for neglect of any. For if he keeps the goods bailed to him but not chargeable for them, for the keeping them as he keeps his own is an argument for 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. 'Is apud quern res deponitur, re obligatur, et de ea re, quam accepit, restituenda tenetur, et etiam ad id, si quid in re deposita dole commiserit; cupae autem nomine non tenetur, solicit desidiae vel negligentiae; 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 and 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 further; for there it is said: 'Ex eo solo tenetur, si quid dolo commiserit; culpae autem nomine, id est, desidiae ac negligentiae, non tenetur. Itaque securus est qui parum diligenter custoditam rem furto amiserit, quia qui negligenti amico rem custodiendam tradit, non ei, sed suae facilitati, im-putare debet'. So that such a bailee is not chargeable without an apparent gross neglect. And if there is such a gross neglect, it is looked upon as an evidence of fraud. Nay, suppose the bailee undertakes safely and securely to keep the goods in express words: yet even that would not 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 the 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.