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It remaineth now by the order of your conference, that you shoulde speake of the baylement and deliuery of goodes and chat∣tels, in which I would haue you to bee very briefe, because I had rather be resol∣ued in other matters belonging to the next title,
whereof ye are to treate, wherein I shall stand in neede of more instructions: but because some doubtes touching the aforesaid title doe trouble me, ye shal giue me leaue to moue vnto you some two or three questions thereupon: what is that Codicgn. which in the Ciuill law ye do properly [Diuision. 1] call depositum? for I doe imagine that the true knowledge thereof will ease my minde of many doubts.
* 1.1Depositum, is that which is commit∣ted to the credit and faithfulnesse of a man, to keepe safely to the vse of him that deliuereth it, to the ende that it may be restored, when he shall call for it,a 1.2 and in the one is the propertie, in the other the trust.
* 1.3To this our Law accordeth, for if a man deliuer goods & chattels to one to keep & he will not deliuer thē, he that deliuered them may haue a writ of Detinue against the other for these goods and chattels, and so if a man deliuer goods or mony to another in a bagge ensealed,b 1.4 or not ensealed,c 1.5 or in a chest, or coffer, to deliuer to another and hee to whom they are deliuered will not deliuer them ouer accordingly, he to whom they should bee deliuered, may haue a Writ of Detinue, but if a man deliuer money to one being not in a bagge or coffer, to redeliuer to him, or to deliuer ouer to a straunger, in such case, neither he that deliuereth, nor he to whom the money, or goods are to bee deliuered, shall haue a Writ of Detinue for the money, but a Writ of Accompt, because a Writ of Detinue
ought to be of a thing certaine,* 1.6 as of money in a bagge, or of a horse, or twentie kine, or such things in certaine,d 1.7 & if the baylie open the bag, in which money is deliuered, the party to whom the money belongeth may haue a writ of trespas, or Detinue at his pleasure,e 1.8 or if he doe burne or consume the things deliuered vnto him,f 1.9 So where a deed is deliuered to one to deliuer ouer vpon a condition to be performed to a stranger, and hee deliuereth it without mencioning the condition, a Writ of Detinue will lye against the first Baylie, and no other remedie may be had,g 1.10 and where I deliuer goods, and a straunger tak∣eth them out of the possession of the Baylie, I may haue a Writ of Detinue against the straun∣ger, or against my Baylie,h 1.11 for my Baylie is char∣able into whose hāds soeuer the goods do come: but if he deliuer them ouer to another, that bayly is not chargeable to me, but only for the posses∣sion.i 1.12
Suppose that a man infeoffeth me [Diuision. 2] of certaine landes with warranty, who retay∣neth all the deeds and euidences concerning the landes in his owne possession, whether may these deedes after liuerie made to me of the lands bee said to bee my depositum in his hands as a thing which I haue left in his handes, and whe∣ther will a Writ of Detinue lye for them at the common law?
if these writings, which you speake of, do belong to the feoffor, as I thinke they do, then they can∣not be said to be deposita: for wee haue a rule in our law, that res propriae frustra deponuntur apud dominum cum ex deposito non obligetur, and it is con∣tra bonā fidem that the owner should redeliuer his goods (in which he hath a propertie) to another man.m 1.15.
* 1.16It is good to bee considered to whom these charters or deedes aboue mentio∣ned do belong. The authoritie is very pregnant, that if a man make a feoffement of his land to an other by deede, the feoffee shall haue the char∣ters concerning the land, though the feoffor doe not expresly giue them to the feoffee.n 1.17 And if a man make a lease for terme of yeares, and after confirme the estate of the lessee in fee, and he to whom the confirmation was made dyeth, now his heire shall haue as well the deede of the lease for tearme of yeares, as the deede of confir∣mation, because that deede maketh the con∣firmation good,o 1.18 and so where a gift is made to one for life, the remainder to another in taile, if the donour release all his right to the tenaunt for life, hee in the remainder cannot haue a Writ of Detinue for his release after the death of the tenaunt for terme of life:p 1.19 But in the case which you haue proposed, because the fe∣offement is with Warrantie, so that the feof∣four is bounde to Warrantie, nowe the feof∣fee shall not haue the charters concerning the lande, for so the feoffour might fayle of the
maintenance of his warranty, and so if a man be infeoffed with warranty and after infeoffeth an∣other with warrantie, the heire of the feoffour may haue a Writ of Detinue against a straunger in whose possession are any deedes or charters concerning the land, because he may haue ad∣uantage of this Warrantie,q 1.20 but let the feoffe∣ment or gift bee made without warrantie, it is cleere that the donee or feoffee may claime the charters concerning the inheritance de iure, and therefore if a gift of land be made to A. in taile, the remainder to B. in fee, and after A. dyeth without issue, B. shall haue the deede,r 1.21 so if lands be giuen to two, and the heires of one of them by deed, now if the tenant for life die he that hath the fee simple shall haue the Writ of Deti∣nue for the deede,s 1.22 for the deede runneth with the lande and is of the nature of the inheritance, and therefore a repleuin lyeth not for such char∣ters,t 1.23 and it is said by Newton 22. H. 6. that hee in the remainder in taile shall not haue a Writ of Detinue against the tenant for terme of life, if he haue the deed specifying the remainder, yet he cannot haue a Forme done in the remainder, nor an Action of Waste without shewing the deede.u 1.24
Whether ought he to whom the [Diuision. 3] goods be deliuered make them good if they be stolne & embeasiled from him or by some other mischance do perish?
He is not to be charged if the goods be lost by any casualty,* 1.25 but onely in such case
where there is default, deceipt, and couin, or ap∣parant negligence in him.x 1.26
If a man deliuer to me his goods to keepe, and I put them amongest myne owne, & they be imbesiled, I shal not be charged for the goods,y 1.27 and if a man be bound to bring mee a summe of money and he is robbed of it by the way, he shall be by Law excused,z 1.28 But 9. E. 4. he shall not be excused, vnlesse he vndertake to keepe it, and to bring it as he wil his owne goods, and then hee may plead this in discharge of ac∣compt before auditors, but not in barre of Ac∣compt, so that it appeareth by this Booke, that if hee vndertake generally to bring the goods, hee must bring them at his perill. But 3. H. 7.a 1.29 is that if the Baylie be robbed of the goods, he shal not be further charged, but if the goods bee taken away by a trespassor, whom the Baylie doth know, he shall bee charged ouer to his Baylor, because he may haue an action against the trespassor.b 1.30 But 20. E. 4. it is said that if I. S. deliuer goods to one to keep, & a stranger taketh them out of his pos∣session, I.S. may haue an action against him or a∣gainst his Baylie,c 1.31 but in that case if the goods be stolne from the Baylie, in the indictment of the felon the wordes must be bona I.S. in custodia ta∣lis.d 1.32
1. The defini∣tion of deposi∣tum by the ci∣uil law.
l. 1. ff. depos. vbi doct', & in l. quod seruns eod. & dict. l. 1. §. est autem, & §. penult. & l. Lucius eod. l. licet in fin. eod.
2. The nature and course of it a•• the com∣mon law.
Fitz. na. br. 138. A.
18. H. 6. 20.
3. A diuersity where a writ of Accompt, of Detinue, and of Trespas are to be brought concerning things deliue∣red at the cō∣mon law.
Fitz. na. br. 138. A. 7. H. 4. 13. 13. E. 3. Detin. 53. 6. E. 4. 11. 36. H. 6 9. per Wāgef. & Bil∣ling. 5. Ma. 152. Dy. 39. E. 3. 30. 46. E. 3. 16.
21. E. 4. 36.
33 H. 6. 26. per Litt. 20. H. 6.17.
9. H. 6. 37. per Curiam.
20. E. 4. 11.
12. E. 4. 12.
1 That a thing cannot be said to be a deposi∣tum at the ci∣uil law, except it be deliuered to the party.
l. 1. ff. de pos. & ibi Doct'.
l. bona fides ff depos in fi.
2. That by the common law feoffee of the land is to haue the char∣ters when the feoffement is without war∣rantie: other∣wise it is. when it is with war∣rantie.
18. E. 4. 14. 9. E. 4. 53. 39 E. 3. 22. 7. H. 4. 7. 34. H. 6. 1.
9. E. 4. 53. Fitz. na. br. 138. K.
9. H. 6. 54.
Fitz. na. br. ibid. L.
3. H. 7. 15.
Fitz. na. br. 138. F.
4. H. 4. 7. 10.
22. H. 6. 1. per Newt.
1. That the baylie is not to be charge. with the losse of the goods which happe∣neth merely casualtie.
l. quod Ner∣ua: & saeo: But. in l. in re man∣data C. Man∣dati, & Instit. quib. mod. re. contra oblig. §. penult.
29. Ass. pl. 28.
40. E. 3. 6.
9. E. 4 40.
3. H. 7. 4.
20. E. 4. 11.
7. E. 4. 14. Lamb. Eirenar̄ 494. & 495.