denomination; the first may be called less, and the second more than ordinary diligence. Then he proceeds to say, that just in the same manner, there are infinite shades of default or neglect, from the slightest inattention, or momentary absence of mind, to the most reprehensible supineness and stupidity; and these are the omissions of the beforementioned degrees of diligence, and are exactly correspondent with them.1

10. The three degrees of negligence are thus distinguished, both in the Civil and the Common Law, by name: 1. Gross neglect, lata culpa, as the Roman lawyers call it, is in practice considered as equivalent to fraud; and consists, according to Sir William Jones, in the omission of that care which even inattentive and thoughtless men never fail to take of their own property; this fault, the best interpreters of the Civil Law hold to be clearly a violation of good faith.2

1 Jones on Bailm. 7, 8; Story on Bailm. § 17.

2 Jones on Bailm. 21; Story on Bailm. § 18. Story remarks, that in various passages of the Essay of Sir William Jones, it seems to be assumed, that, in the Common Law, as in the Civil Law, gross negligence and fraud are equivalent. Thus, he observes, ordinary negligence is spoken of as "a mean between fraud and accident." (p. 8); gross negligence as "inconsistent with good faith." (pp. 10, 46, 119); and a bailee without reward, as being "answerable only for fraud, or for gross negligence, which is considered evidence of it." (p. 46). But this doctrine is not warranted by the Common Law authorities. One case opposed to it is put by Sir W. Jones himself. If, he says (p. 57), a depositor commits a gross neglect in regard to his own goods, as well as those which are bailed, by which both are lost or damaged, he cannot be said to have violated good faith, and the bailor must impute to his own folly the confidence which he reposed in so improvident and thoughtless a person. So, where a cartoon was left in the hands of an auctioneer, without any particular agreement to take care of it, or re-deliver it safe, and without any agreement for a reward, and it appeared that the painting was upon paper pasted on canvass, and that the bailee kept it in a room next to a stable in which there was a wall, which had made it damp and peel — it

2. Ordinary neglect, levis culpa, is the want of that diligence which the generality of mankind use in their own concerns, that is, of ordinary care.1 3. Slight neglect, levissama culpa, is the omission of that care which very attentive and vigilant persons take of their own goods, or, in other words, of very exact diligence.2

$11. Such, then, are the nature and various degrees of negligence, and of diligence, and the next question is in what manner the law applies them. The answer is as short and simple as it is rational. When the bailment is for the sole benefit of the bailor, the law requires only slight diligence on the part of the bailee, and he is consequently responsible for nothing less than gross neglect. When the bailment is for the sole benefit of the bailee, an extraordinary

was held gross neglect, and the bailee was held responsible, although there was no imputation of fraud. These cases show that gross negligence is not equivalent to fraud, according to the Common Law authorities. On the contrary, gross negligence is, or at least may be, entirely consistent with good faith and honesty of intention; and, to confound it with fraud, would be most mischievous, for then, unless a jury should believe the party guilty of fraud, no laches would come up to the legal notion of gross negligence, so as to entitle the sufferer by the loss to recover. A man may leave a casket of jewels or a purse of gold upon the table of a public room at an inn, or may leave a package of bank bills in a great coat in the common entry of an inn, from pure thoughtlessness; and a jury might be well satisfied that it was gross negligence. But if fraud were a necessary ingredient, the very statement of the case would negative a right of recovery. Besides, if gross negligence were equivalent to fraud, there could be no defence set up by the bailee, founded either on his own conduct in respect to his own goods, or on a special contract not to be liable for gross negligence. But there is no principle in our law, that would prevent a depositary from contracting not to be liable for any degree of mere negligence. Story on Bailm. § 20, et seq. With respect to common carriers, however, fraud may be presumed, as will be shown, post. 1 Jones on Bailm. 22; Story on Bailm. § 18.

2 Ibid.

degree of care is demanded, and the bailee is therefore responsible for slight neglect. When the bailment is reciprocally beneficial to both parties (as in the case of the carriage of goods for hire), such care is exacted of the bailee as every prudent man commonly takes of his own goods; or, in other words, the law requires ordinary diligence on the part of the bailee, and makes him responsible for ordinary neglect. Such are the rules recognised by the Common Law; a like division of the degrees of responsibility is to be found in the Civil Law; and the same rules are found in the French and Scotch law, and may be deemed indeed the general result of the law of Continental Europe. But it is often difficult to mark the lines of distinction between the different degrees of negligence, so as to show precisely where the one ends and the other begins; and, therefore, by the Common Law, it is left to the jury, upon the nature of the subject-matter, and the particular circumstances of each case, to say whether the particular case is within the one or the other. From these principles it however follows, that bailees in general are not responsible for losses resulting from unavoidable accident, or from irresistible force; and yet (as will be shown, in treating of the particular liability of carriers) bailees may become so responsible, both by special contract, and by the special policy of the law.

12. It may here be proper to notice the distinction between negligence and misfeasance. It seems to be this, that the former takes place in the course of performing the contract; the latter in an act done in direct contravention of

1 Jones on Bailm. 22, 23, 24; Story on Bailm. § 23, 24; Coggs v. Bernard, 2 Ld. Raym. R. 909, and Appx.; Pothier, Traité de Depot, n. 23; Pothier, Oblig. P. 1, ch. 2, art. 1, § 1, n. 141; 1 Bell, Comm. 453, (5th ed.); Ersk. Inst. 448; Heinec. Elem. Jur. Inst. Lib. 3, tit. 15, § 12.

2 See Opinion of Shaw, C. J., in Whitney v. Lee, 8 Met. (Mass.) R. 91. And see Ante, § 7, 8.

it, by which its performance is prevented. An instance of the latter, is where the defendants received a parcel, and contracted to send it by the mail, and it was sent in a different manner (by another coach), and was lost. The Court held, that if the defendants had forwarded the parcel by the mail, in pursuance of the contract, they would not have been liable for the loss, but as they had acted in direct contravention of it, it was a misfeasance.1

$ 13. As before mentioned, Lord Holt, in Coggs v. Bernard,3 has traced with much attention the different species of bailment; which, it will at once be perceived, are derived from the Civil Law, to which Bracton had recourse in expounding the law of bailment ;4 and by the elaborate opinion of that learned Judge, in the case just referred to, and by the Essay of Sir William Jones, the different sorts of bailment in the Civil Law have become transferred to the Common Law. The division of bailments by the above mentioned Judge, is into six sorts, but this division has since been considered somewhat inaccurate, because in fact his fifth division is no more than a branch of his third; and he might, with equal reason, have added a seventh, since the

1 Sleat v. Fagg, 5 B. & Ald. R. 342. See also Ellis v. Turner, 8 T. R. 531; Garnett v. Willan, 5 B. & Ald. R. 53.

2 See Ante, § 2.

3 Coggs v. Bernard, 2 Ld. Raym. R. 909, and Appendix.

4 See Bracton and the Civil Law referred to by Lord Holt in Coggs v. Bernard, ub. supra. See also Wood, Civil Law, 235; 1 Domat, B. 1, tit. 4, §1; 1 Bell, Comm. 452, (5th ed.); 2 Kent, Comm. 585; Story on Bailm. § 8.

5

Story on Bailm. § 8; Jones on Bailm. 36, 117. Lord Holt presided as lately as the second year of Queen Anne; and a point which the first elements of Roman Law have so fully decided, that no Court of judicature on the continent would suffer it to be debated, was thought in England to deserve what it certainly received, very great consideration. Jones on Bailm. 58, referring to the opinion of Lord Holt in Coggs v. Bernard, ub. sup.

1

fifth is capable of another subdivision. The Common Law, as now understood and applied, recognises but five general species of bailment, which may be thus enumerated and defined, with all the Latin names, one or two of which Lord Holt has omitted: 1. Depositum, or Deposit, which is a naked bailment, without reward, of goods to be kept by the bailor, and to be returned when the bailor shall require it. The appellation and the definition are both derived from the Civil Law. Depositum est, quod custodiendum alicui datum est (Dig. Lib. 16, tit. 4, l. 1). 2. Mandatum, or Mandate, which is defined to be a bailment of goods without reward, to have some act performed about them, or to be carried from place to place. This appellation is also derived from the Civil Law. Mandantis tantum gratiâ intervenit mandatum, is the language of the Institutes; 2 Mandatum, nisi gratuitum, nullum est, is that of the Pandects.3 3. Commodatum, or loan for use, when goods are bailed without pay, to be used for a certain time by the bailee. It differs from what is called in the Civil Law a Mutuum in this, that in a Commodatum the goods are lent to be specifically returned; in a Mutuum the goods are to be consumed, and are to be repaid in property of the same kind. Thus, corn or wine, delivered to some one to be consumed, and to be repaid in kind, is a case of Mutuum; but if a horse be gratuitously lent for a journey, it is a case of Commodatum. 4. Pignori acceptum, when a thing is bailed by a debtor to his creditor, in pledge or pawn, as security for some debt or engagement. 5. Locatum, or hiring, which is always for a reward; and this bailment is either first, Locatio rei, by which the hirer gains the temporary use of the thing, or secondly, Locatio operis faciendi, when work and labor, or care and pains, are

1 Jones on Bailm 36.

2 Inst. Lib. 3, tit. 27, § 1.

3 Dig. Lib. 17, tit. 1; Story on Bailm., notes 4 and 5 to § 5.

4 The same definition is given in the Civil Law. Story on Bailm. § 6.