Where a thing is placed with a depositary, to be kept for a time, and returned when called for, the depositary to have no * compensation, the benefit of the transaction is wholly on the side of the bailor, and the bailee is liable only for gross negligence. (e) l By the Roman law he was answerdelivery of goods or chattels to somebody, who is to carry them or do something about them gratis, without any reward for such his work or carriage." Upon this classification Sir William Jones has made the following observations: "His division of bailments into six sorts appears, in the first place, a little inaccurate; for, in truth, his fifth sort is no more than a branch of his third, and he might, with equal reason, have added a seventh, since the fifth is capable of another subdivision. I acknowledge, therefore, but five species of bailments, which I shall now enumerate and define, with all the Latin names, one or two of which Lord Holt has omitted. 1. Depositum, which is a naked bailment, without reward, of goods, to be kept for the bailor. 2. Mandatum, or commission, when the mandatary undertakes, without recompense, to do some act about the things bailed, or simply to carry them; and hence

Sir Henry Finch divides bailment into two sorts, to keep, and to employ. 3. Commodatum, or loan for use; when goods are bailed, without pay, to be used for a certain time by the bailee. 4. Pignori Acceptum, when a thing is bailed by a debtor to his creditor in pledge, or as a security for the debt 6. Locatum, or hiring, which is always for a reward; and this bailment is either, 1. Locatio rei, by which the hirer gains the temporary use of the thing; or, 2. Locatio operis faciendi, when work and labor, or care and pains, are to be performed or bestowed on the thing delivered; or, 3. Locatio operis mercium vehendarum, when goods are bailed for the purpose of being carried from place to place, either to a public carrier, or to a private person." See Jones on Bailm. 36.

(e) This has been the clearly established law ever since the case of Coggs v. Bernard. Lord Coke, however, in Southnegligence. So it seems to have been held by Bractony (f) who copied from the Roman law. But by the English and American law, such bailee is, as we have seen, liable for gross negligence, although he may have been wholly innocent of any fraudulent intent. It is impossible to lay down any rule or principle, which will be in all cases a reliable test as to what constitutes gross negligence. The question must always depend upon several circumstances; such as the nature and quality of the goods bailed and the character and customs of the place where the trust is to be executed. What would amount to more than ordinary diligence in the case of a chattel of great bulk and little value, might be very gross negligence in the case of a bag of gold coin, or a parcel of valuable papers. Again, what would be a sufficient degree of diligence in a thinly peopled country, might be very culpable negligence in a thickly inhabited city. (g) It has been commonly stated by writers, and is said in some cases, that a depositary is not liable, as for gross negligence, if he shows that he has taken as much care of the goods of the bailor as he has of his own; but this is not law, (h) and although * it faith, but for such care as persons of common prudence in their situation usually bestow upon such property. If they omit such care, it is gross negligence. The present is a case of a mandatary of money. Such property is by all persons, negligent as well as prudent, guarded with much greater care than common property. The defendant is a broker, accustomed to the use and transportation of money, and it must be presumed he is a person of ordinary diligence. He kept his own money in the same valise; and took no better care of it than of the plaintiff's. Still, if the jury are of opinion that he omitted to take that reasonable care of the gold which bailees without reward in his situation usually take, or which he himself usually took of such property, under such circumstances, he has been guilty of gross negligence."

1 That national banks have the power to receive special deposits as incidental to their business, and when received gratuitously are liable for gross negligence, see Pattison v. Syracuse National Bank, 80 N. Y. 82, where the authorities on the liability of banks for special deposits are collated. To the same effect are Lyons Bank v. Ocean Bank, 60 N. Y. 278; National Bank v. Graham, 79 Penn. St. 106; Chattahoochee Bank able only for * fraud; for if the bailor thus deposited goods with a negligent person, he took upon himself the risk of cote's case, 4 Rep. 83 b, and in Co. Lit. 89 a, laid down a different rule. He stated the law to be, that a gratuitous bailee must answer for the goods delivered to him at his peril, unless he has made a special agreement to take such care of them only as he takes of his own goods; "for to be kept and to be safely kept is all one in law." But the profession seem never to have been satisfied with Lord Coke's rule. For it was denied to be law in 83 Car. II. by Pemberton, C. J. in the case of Rex v. Hertford, 2 Show. 172, and again in 13 Wm. III. by Holt, C. J., in the case of Lane v. Cotton, 12 Mod. 472, 487; and finally it was expressly overruled by the whole Court of Queen's Bench, in 2 Anne, in the case of Coggs v. Bernard. And Holt, C. J., in the latter case, said, that the rule stated in the text had always been acted upon at Guildhall, contrary to the opinion of Lord Coke, particularly during all of Chief Justice Pemberton's time, and ever since. The whole matter of the liability of a depositary was much discussed in the case of Foster v. The Essex Bank, 17 Mass. 479. The facts in that case were, that the plaintiff's testator had deposited at the Essex Bank, for safe keeping, a chest containing a large quantity of gold. Some time after the deposit was made, the gold was taken from the chest and put in a cask, from whence the greater part of it was fraudulently and secretly taken by the cashier and chief clerk, who appropriated it to their own use, and afterwards absconded, having also defrauded the bank of the greater part of its capital. This was done without the knowledge of any of the directors, or members of the corporation. The deposit in question was kept in the vault, in the same manner, and with the same care, as other special deposits, and as the specie of the bank; and the cashier and the clerk sustained fair reputations, until the time of their absconding. The court held, that the bank was not liable. And Parker, C. J., said: "The dictum of Lord Coke, that the bare acceptance of goods to keep implies a promise to keep them safely, so that the depositary will be liable for loss by stealth or accident, is entirely exploded; and Sir W. Jones insists that such a harsh principle cannot be inferred from v. Schley, 58 Ga. 369. 8ee also Scott v. Chester Valley Bank, 72 Penn. St 471. Contra Whitney v. Brattleboro Bank, 50 Vt. 388; Wiley v. Same, 47 Vt 546. See Shoemaker v. Hinze, 53 Wis. 116, where the defendant was held absolutely liable for a sum of money given him to take care of and stolen from him.