Southcote's Case

NB

Notes/Research In Progress

Holmes says of the case: "The attempts of Lord Holt in Coggs v. Bernard, and of Sir William Jones in his book on Bailments, to show that Southcote v. Bennet was not sustained by authority, were futile, as any one who will Study the Year Books for himself may see. The same principle was laid down seven years before by Peryam, C. B., in Drake v. Royman, and Southcote's Case was followed as a leading precedent without question for a hundred years." OTOH, a brief piece says that Holmes is 'the only positive reference' to Southcote's case in the past hundred years; Drake v. Royman is also overruled(?): DRAKE v. ROYMAN, Sav. 133. That an executor cannot maintain trover, if the conversion was in the lifetime of the testator. Overruled. Crosier v. Ogleby, 1 Stra. 60; Badlam v. Tucker, I Pick. 389.

See also discussion in William Jones, Bailments:

"The reason of the judgment," says Lord Coke, "was, because the plaintiff had delivered the goods to be safely kept, and the defendant had taken the charge of them upon himself, by accepting them on such a delivery." Had the reporter stopped here, I do not see what possible objection could have been made; but his exuberant erudition boiled over, and produced the frothy conceit which has occasioned so many reflections on the case itself; namely, "that to keep and to keep safely are one and the same thing;" [...]

Coggs v. Bernard, besides overturning, has an extensive set of rebutting citations to show that this was 'never' the rule before this case.