passage:-" In contractibus, interdum dolum solum, interdum et culpam, præstamus. Dolum in deposito; nam quia nulla utilitas ejus versatur, apud quem depositur, merito dolus præstatur solus; nisi forte et merces accessit, tunc enim, ut est et constitutum, etiam culpa exhibetur ; utriusque utilitas vertitur

ubi

ut in pignore, et dolus et stated by Bracton (b)—

culpa præstatur (a). And as "Creditor qui pignus accepit re obligatur et ad illam restituendam tenetur et cum hujusmodi res in pignus data sit utriusque gratia scilicet debitoris quomagis ei pecunia crederetur data sit et creditoris quo magis ei in tuto sit creditum sufficit ad illi rei custodiam diligentiam exactam adhibere quam si præstiterit, et rem casu amiserit, securus esse possit, nec impedietur creditum petere."

Gross neglect, lata culpa, or as the Roman lawyers most accurately call it, dolo proxima, is in practice considered as equivalent to dolus, and even, in its consequent liability, to fraud itself. It consists, according to the best interpreters, in the omission of that care, which even inattentive and thoughtless men take of their own property. Slight neglect (levissima culpa) is the omission of that care which very attentive and diligent persons take of their own goods, or in other words, of very exact diligence; but 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 (c). For lack of such diligence, pawnees are, at Common Law, held responsible; but the law requires nothing extraordinary of the pawnee, but only that he shall take reasonable care of the thing pawned while lawfully in his custody (d).

(a) Dig. Lib. 13, tit. 6, 1. 5, sec. 2 (5).

(b) 99 b., Lib. 3, cap. 2.

(c) Jones On Bailments, 22. (d) Coggs v. Bernard, Salk. 909, Smith's L.C., 7th ed., 188.

In accordance with this rule, the bailee has been held not liable for loss of, or damage to, the subject of the bailment in the following cases :-When the goods bailed were stolen from a chest, of which the bailor kept the key (a). When the defendant, an agent, had locked up money received by him for his master, in that master's warehouse, whence it was stolen (b). When goods let on hire were stolen by the defendant's servants, though there were some prior circumstances which cast suspicion upon their integrity, because (c) "to support an action of this nature, positive negligence must be proved. The goods were lodged in a place of security, and where things of much greater value were kept. This was all the defendant was bound to do, and theft by the defendant's servants was not such negligence as would support the action" (d). When customer's securities, deposited with the defendants, a firm of bankers, were stolen by a person in their employ without any negligence on their part, the bank was held not liable (e). Contra, when the robbery was caused by the bank's negligent supervision of its own manager (ƒ).

On the same principle, the pawnee is not liable when the pawn is destroyed by fire or other vis major, without negligence of the pawnee. The contract to restore the pawn on redemption is, in all cases, subject to the implied. condition that the pawnee shall be excused from obligation

(a) Fitzharris's Ab., 8th ed., 2, tit. Det. 59.

(b) Vere v. Smith, 1 Vent. 121. The plea did not state that the money was stolen without the agent's default.

(c) Per Lord Kenyon, in Finucane v. Small, 1 Esp., 315.

(d) The Judge appears to have relied upon Lord Coke's rule, as cited above. The authority of this case is doubtful, as a bailee ought not to expose the bailor's property to the risk of theft by dishonest servants.

(e) Giblin v. McMullin, L.R., 2 P.C., 317, 38 L.J., 25 P.C., 21 L.T. N.S. 214,

17 W.R. 445.

(f) Re United Service Company, exp. Johnson, L.R. 6 C.A. 212, 40 L.J. 286 Ch., 24 L.T. N.S. 115, 19 W.R. 459.

to restore it, if, before breach, restoration becomes impossible by the perishing of the pawn, without his default. Thus when a building was burnt before completion, the builder failed in an action brought to recover the price (a) when a crop of growing potatoes perished in the earth, performance of a contract of sale was excused (b); and when a horse, sold subject to approbation, died within the time limited for approval (c), the purchaser was held not liable for the price. A shipowner recovered his bill of lading freight, when part of the cargo had perished, without his default (d); a bailee was held not liable for loss by a robbery, not caused by negligence on his part, and to which the bailor's neglect had contributed (e); and when a pawn was burnt in an accidental fire (ƒ), the pawnee (a Pawnbroker), was held not liable for the loss of the pawn (g). But where pawns were burglariously stolen from the premises of a Pawnbroker, who had left his premises without any person therein, the Justices held him to have been guilty of negligence conducing to the robbery, and the Court of Queen's Bench expressed itself not dissatisfied with their finding (h).

(a) Taylor v. Caldwell, 3 B. & S. 833, 32 L.J. 164 Q.B., 8 L.T. N.S. 356, 11 W.R. 726; Appleby v. Myers, 14 W.R. 835, 14 L.T. N.S. 549.

(b) Howell v. Coupland, L.R. 9 Q.B. 462, 1 Q.B.D. 258, 43 L.J. 20 1 Q.B., 46 L.J. 147 Q.B., 30 L.T. N.S. 677, 33 Ib. 832, 22 W.R. 691, 24 W.R. 470. (c) Elphick v. Barnes, L.R. 5 C.P.D. 321, 49 L.J. 699 C.P.

(d) Merchant Shipping Coy. v. Armitage, (in Ex. Ch.) L.R. 9 Q.B. 99, 43 L.J. 24 Q.B., 29 L.T. N.S. 809.

(e) Talley v. Great Western Railway Coy., L.R. 6 C.P. 44, 40 L.J. 9 C.P., 23 L.T. N.S. 413, 19 W.R. 154.

(f) Syred v. Carruthers, E.B. & E. 469, 27 L.J. 273 M.C.; Reg. v. Cording, 1 N. & M. 35, 4 B. & Ad. 198; see also Chapman v. Great Western Railway Coy., L.R. 5 Q.B.D. 278, 49 L.J. 418 Q.B., 42 L.T. N.S. 252, 28 W.R. 566. (9) As to a Pawnbroker's liability for loss by fire, see Post, cap. X., THE STATUTORY LIABILITIES OF THE PAWNEE.

(h) Shackell v. West, 29 L.J. 45 M.C., 8 W.R. 22. ; Healing v. Cattrell, Ib 29 L.J. 47n. M.C.

A bailee will not be liable for loss of the thing bailed, through bad weather on a sea voyage (a), or by high tide. overflowing premises near a river, unless the damage has been caused or increased by the pawnee's neglect of proper precautions (b). In every such case, the bailor must prove that the injury has resulted from the bailee's negligence, before he can recover. But he is not bound to show the precise manner in which the damage was done. Thus, when goods shipped in good order and condition, were found, on arrival, to be damaged both externally and internally, without any inherent vice or other traceable cause, the facts were held to constitute sufficient prima facie evidence of neglect, to make the ship owner liable (c). So also, a Dock Company was held liable for loss of bulk in spirits stored with them, when the loss was so large as to constitute primá facie evidence of negligence (d).

In like manner, the pawnee will not be liable if the pawn be injured or rendered of less value while in his keeping, unless the injury or deterioration be caused by his neglect, which may depend on the nature of the things bailed, and the manner in which a reasonably careful man would deal with them. Thus, a warehouseman, or a shipowner, will be liable for injury done by rats to goods warehoused or shipped with him (e), if he does not adopt proper means to keep down such vermin. So will a gratuitous bailee of a cartoon painted on paper and mounted on canvas, if he causes damage thereto by keeping it against a damp wall (ƒ).

(a) Nugent v. Smith, (in C.A.) L.R. 1 Q.B.D. 423, 45 L.J. 697 Q.B.D., 34 L.T. N.S. 827, 25 W.R. 117.

(b) Nitro Phosphate Coy. v. London and St. Katherine's Dock Coy. (in C.A.) L.R. 9 Ch. D. 503, 39 L.T. N.S. 433, 27 W.R. 267.

(c) Czech v. General Steam Navigation Coy., L.R. 3 C.P. 14, 37 L.J. 3 C.P., 17 L.T. N.S. 246, 16 W.R. 430.

(d) Lamare v. London & St. Katherine's Dock Coy., 39 L.T. N.S. 330. (e) Califf v. Danvers, Peake, 114; White v. Humphrey, 11 Q.B. 43. Mytton v. Cock, Stra. 1099. See also Booth v. Wilson, 1 B. &. Ald. 59.

The principle thus repeatedly recognised is simple enough. But its practical application is attended with considerable difficulty when pawnors of the humbler class come before magistrates with claims for damage done by moths and similar insects. As each case depends upon its own circumstances, and no two cases are precisely alike, the question has never presented itself in shape for such decision by the Superior Court as would be of value as a precedent. It may, however, be safely said that injury by moth is of no more weight in establishing liability, than loss by theft or accidental fire. In 1819, a case was submitted to the then Common-Serjeant Newman Knowlys, for the guidance of a magistrate, before whom a Pawnbroker had been summoned by the owner of a coat, which after being twenty months in pawn, was found, upon redemption, to have been seriously injured by moth. No other evidence of negligence than that afforded by the condition of the coat at the end of that period having been given, Mr. Knowlys advised thus:-"I am of opinion that the pawnor must fail on the facts here stated. The great case of Coggs v. Bernard, in 2 Lord Raymond, 916, which is universally acted upon, is decisive in favour of the Pawnbroker. Lord Holt, when delivering judgment in that case, considers for what neglects the Pawnee shall answer, and says the law requires nothing extraordinary of the Pawnee, only that he shall use an ordinary care for restoring the goods. The Pawnee is not, like the common carrier, an insurer at all events, except for the act of God and the King's enemies; if the Pawnee uses the same care respecting the goods pawned as men generally use respecting their own property, he is not answerable for any damage or deterioration that the goods may undergo whilst under his care. If he has suffered his warehouse to be out of repair, and the goods have received damage by weather, that would be a default, and he must answer for it; or, if he leaves his doors and windows open