Southcote's case, on which Lord Coke relied; the judgment in that case, as the modern civilian thinks, being founded upon the particular state of the pleadings, from which it might be inferred, either that there was a special contract to keep safely, or gross negligence in the depositary. But as the judges, Gawdy and Clench, who alone decided that cause, said, that the plaintiff ought to recover, because it was not a special bailment, by which the defendant accepted to keep them as his own proper goods, and not otherwise; the inference which Lord Coke drew from the decision, that a promise to keep implied a promise to keep safely, even at the peril of thieves, was by no means unwarranted. But the decision, as well as the dictum of Lord Coke in his commentary, were fully and explicitly overruled by all the judges in the case of Coggs v. Bernard, and upon the most sound principles. It is so considered in Hargrave and Butler's note to Co. lit. n. (78), and all the cases since have adopted the principle, that a mere depositary, without any special undertaking, and without reward, is answerable for the loss of the goods only in case of gross negligence; which, as is everywhere observed, bears so near a resemblance to fraud, as to be equivalent to it in its effect upon contracts. Indeed the old doctrine, as stated in Southcote's case, and by Lord Coke, has been so entirely reversed by the more modern decisions, that, instead of a presumption arising from a mere bailment, that the party undertook to keep safely, and was therefore chargeable, unless he proved a special agreement to keep only as he would his own; the bailor, if he would recover, must, in addition to the mere bailment alleged and proved, prove a special undertaking to keep the goods safely; and even then, according to Sir William Jones, the depositary is liable only in case of ordinary neglect, which is such as would not be suffered by men of common prudence and discretion; so that if goods deposited with one who engaged to keep them safely were stolen, without the fault of the bailee, he having taken all reasonable precautions to render them safe, the loss would fall upon the owner, and not the bailee." See Gulledge v. Howard, 28 Ark. 61.

(f) Lib. 3, c. 2. fol. 99 b.

(g) It was held, in the case of Doorman v. Jenkins, 2 A. & E. 266, after much consideration, that the question of gross negligence was rather a question of fact for the jury than of law for the court. But this does not remove all difficulty from the question, what constitutes gross negligence. For it is obvious that the jury should receive instructions from the court to guide them in forming their judgment.

(h) It seems very clear that this it not a reliable test. For we have already seen that a depositary is liable for gross negligence, though a jury may be satisfied that he is wholly innocent of any fraudulent intent; and it is obvious that persons even who usually exercise great care, may in some instances be guilty of very gross negligence in the management of their own affairs. It seems also to be equally clear upon the modern authorities that it is no defence for a depositary who has, by his negligence, lost the goods intrusted to him, that he has been equally negligent in regard to his own property. The first case that we have seen, going to this point, is that of Booth v. Wilson, 1 B. & Ald. 69. That was an action on the case against the defendant for not repairing the fences of a close adjoining that of the plaintiff, whereby a certain horse of the plaintiff, feeding in the plaintiff's close, through the defects and insufficiencies of the fences, fell into the defendant's close and was killed. The defendant pleaded the general issue, and on the trial it appeared that the horse was the property of the plaintiff's brother, who sent it to him on the night before the accident; that the plaintiff put it into his stable for a short time, and then turned it after dark into his close, where his own cattle usually grazed, and that on the following morning the horse was found dead in the close of the defendant, having fallen from one to the other. The jury having found a verdict for the plaintiff, a rule for setting aside the verdict and granting a new trial was obtained, in support of which it was contended, among other things, that the plaintiff could not maintain the action, because, having taken as much care of the horse as he did of his own cattle, he was not liable over, and so had not sustained any damage. But Lord Ellenborough said: "The plaintiff certainly was a gratuitous bailee, but, as such, he owes it to the owner of the horse not to put it into a dangerous pasture; and if he did not exercise a proper degree of care, he would be liable for any damage which the horse might sustain. Perhaps the horse might have has been thought that the degree of care and diligence to be required of a bailee should be regulated to some * extent been safe during the daylight, but here he turns it into a pasture to which it was unused, after dark. This is a degree of negligence sufficient to render him liable." The other judges being of the same opinion, the rule was discharged. Afterwards came the case of Doorman v. Jenkins, 2 A. & £. 266. The plaintiff, in that case, had intrusted the defendant with a sum of money for the purpose of paying and taking up a bill of exchange. It appeared that the defendant, who was the proprietor of a coffee-house, had placed the money in his cash-box, which was kept in the tap-room; the taproom had a bar in it; that it was open on Sunday, but that the other parts of the premises, which were inhabited by the defendant and his family, were not open on that day; and that the cash-box, with the plaintiff's money in it, and also a much larger sum belonging to the defendant, was stolen from the tap-room on a Sunday. The defendant's counsel contended that there was no case to go to the jury, inasmuch as the defendant, being a gratuitous bailee, was liable only for gross negligence; and the loss of his own money, at the same time with the plaintiff's, showed that the loss had not happened for want of such care as he would take of his own property. But Lord Denman, before whom the case was tried, refused to nonsuit the plaintiff, and told the jury that it did not follow from the defendant's having lost his own money at the same time with the plaintiff's that he had taken such care of the plaintiff's money as a reasonable man would ordinarily take of his own; and that the fact relied upon was no answer to the action, if they believed that the loss occurred from gross negligence. The jury having found a verdict for the plaintiff, a rule was obtained to set it aside. The counsel for the defendant, one of whom was Sir J. Scarlett, in support of the rule, said, that they did not contend for the absolute proposition, that a gratuitous bailee, who keeps another person's goods as carefully as his own, cannot become liable for the loss, or be guilty of gross negligence. Their objection to the verdict was, that the plaintiff, upon whom the burden of proof lay, did not make out a prima facie case of gross negligence. But the court unanimously discharged the rule. And Mr. Justice Taunton said: "The defendant receives money to be kept for the plaintiff. What care does he exercise? He puts it, together with money of his own (which I think perfectly immaterial), into the till of a public-house." The case of Tracy v. Wood, 8 Mason, 182, is also a very strong case to the same point. It was an action of assumpsit for negligence in losing 764 1/2 doubloons, intrusted to the defendant to be carried from New York to Boston, as a gratuitous bailee. The gold was put up in two distinct bags, one within the other, and at the trial, upon the general issue, it appeared that the defendant, a money-broker, brought them on board of the steamboat bound from New York to Providence; that in the morning, while the steamboat lay at New York, and a short time before sailing, one bag was discovered to be lost, and the other was left by the defendant on a table in his valise in the cabin, for a few moments only, while he went on deck to send information of the supposed loss to the plaintiffs, there being then a large number of passengers on board, and the loss being publicly known among them. On the defendant's return the second bag was also missing, and after every search no trace of the manner of the loss could be ascertained. The valise containing both bags was brought on board by the defendant on the preceding evening, and put by him in a berth in the forward cabin. He left it there all night, having gone in the evening to the theatre, and on his return having slept in the middle cabin. The defendant had his own money to a considerable amount in the same valise. There was evidence to show that he made inquiries on board, if the valise would be safe, and that he was informed that if it contained articles of value, it had better be put into the custody of the captain's clerk in the bar, under lock and key. Story, J., in summing up to the jury, said: " I agree to the law as laid down at the bar, that in cases of bailees without reward, they are liable only for gross negligence. Such are depositaries, or persons receiving deposits without reward for their care; and mandataries, or persons receiving goods to carry from one place to another without reward. The latter is the predicament of the defendant. He undertook to carry the gold in question for the plaintiff gratuitously, from New York to Providence, and he is not responsible, unless he has been guilty of gross negligence. . . . The contract of bailees without reward, is not merely for good by what may be shown to be his general character in those respects, it would seem to be the better opinion, that the individual character of the bailee is not a legitimate subject of inquiry, unless it can be shown that his character was known to the bailor, and that it was the implied understanding of the parties that the bailee should employ such care and skill as he possessed. (i) If the bailor knows the habits and character of the bailee, and the place and manner in * which he usually keeps such goods, the bailee is not responsible for any injury resulting from his keeping and treating them in that way. (j)