Southcote's Case

Why Southcote's Case, 4 Co. Rep. 83b; Cro. Eliz. 815 (1601)? The rule ("that to keep and to keep safely are one and the same thing") apparently never appealed to anyone before or since, as no one has ever tried to disturb Coggs v. Bernard 2 Ld. Raym. 909, which overruled it, and where Holt said that the judges in London had never followed it. How did it come to be decided ... or was it decided?

NB

Sketch

The rule in Coke's report of Southcote's case is a fairly extreme one. Holt in Coggs v. Bernard does such a thorough job of demolishing Coke's report of the case, as well as laying out a typology of bailments, that bailment cases prior to it have all but vanished from The Digest.

Still, at least one author finds the rule supportable: Holmes. In Lectures on the Common Law, 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." Holmes may yet be alone- a brief Harvard Law Review piece roughly contemporaneous to Holmesalt. source says that Holmes is 'the only positive reference' to Southcote's case in 'the past hundred years', and another contemporary HLR piece points out some misanalysis by Holmes. Perhaps more interestingly, that piece points out some significant flaws in the reasoning in Southcote, and suggests that it later went to the defendant.

In the passage Holmes refers to, William Jones's Bailments says:

"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;" [...]

Need translation

Drake v. Royman, Savile 133

resources still to digest

• Pollock and Maitland on bailment: covers early history; suggests that an absolute rule may have been the case c. 1200, per Glanvill x. 18, but that even as early as Bracton (f. 62b, 99) there was at least sometimes a mitigating factor for diligence (which Southcote ignores.)
• LanevCotton, 12 Mod. 473; 88 ER 1458. Holt in dicta distinguishes Southcote's case, saying that it is good law for the case of a special bailment, and including the case where the bailee is a government agent as a special bailment, but that the general rule of the case does not hold.

resources still to find

• 33 Hen. 6. pl. 1: when a gaol is broken open, the gaoler can be charged because 'he hath his remedy over'
• Woodlife's Case, Moo. 462; Mosley v. Fossett, Moo. 543: in which the other judges (who did not rule on Southcote) differ from Gawdy and Clench on bailment cases, per 11 HLR 161
• Ld. Raymond, 3d. ed: Call # Rep 1775g. Apparently adds an annotation that the rule 'was denied to be law by the whole case, ex relatione Magistri Bunbury.'
• Kettle v. Bromsall, Willes, 118 ( Story says this contemporary, post-Coggs case 'seems to admit the general correctness of Southcote's case on the point actually in judgment', which is to say in the case where the bailor has undertaken a special bailment.)
• Williams v. Lloyd, 1 Jones, 179; s.c. Palmer, 549; 22 Liber Assisarum, 41; (cases which story says are earlier than Southcote and disagree)

cases cited by Holt against Southcote in Coggs:

• 29 Ass. 28: "the opinion is, that the bailee is not chargeable, if the goods are stole."
• 8 Edw. 2, Fitz. Detinue 59: "where goods were locked in a chest, and left with the bailee, and the owner took away the key, and the goods were stolen, and it was held that the bailee should not answer for the goods. That case they say differs, because the bailer did not trust the bailee with them. But I cannot see the reason of that difference, nor why the bailee should not be charged with goods in a chest, as well as with goods out of a chest. For the bailee has as little power over them, when they are out of a chest, as to any benefit he might have by them, as when they are in a chest; and he has as great power to defend them in one case as in the other."
• 9 Edw. 4, 40 b. was but a debate at Bar. For Danby was but a counsel then, though he had been Chief Justice in the beginning of Ed. 4, yet he was removed, and restored again upon the restitution of Hen. 6, as appears by Dugdale's Chronica Series. So that what he said cannot be taken to be any authority, for he spoke only for his client; and Genney for his client said the con- trary.
• 3 Hen. 7, 4, is but a sudden opinion and that but by half the Court; and yet that is the only ground' for this opinion of my Lord Coke, which besides he has improved.

cases cited by 11 HLR 161 to show no precedent to Southcote:

• 3 E. 4, 15 pl 7 by Littleton 1462
• 9 E. 4, 34 pl 9 by Littleton and Brian JJ 1469
• 9 E. 4, 40 pl 22 1469 by Danby CJ ante
• 6 H 7 12 pl 9 per Fineux J 1491
• 10 H 7 26 pl 3 per Fineux J 1495 ("In the last two cases Keble, arguendo, had stated the opposite view and Brooke (Detinue, 37) by a query appears rather to approve Keble's contention.")