John McLean

“ Let such a principle be applied to our postmasters, collectors of the customs, receivers of public moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public? No such principle has been recognized or admitted as a legal defence. ”

“ No one would contend that these words enlarged the responsibility of a common carrier, who is liable for more than what they would import, viz., for all losses except 'by the act of God, or the king's enemies;' neither should it be contended that they enlarge the responsibility of the bailee for hire, whose usual legal responsibility is the same as what the special acceptance in the case of simple deposit has been decided to be, viz., ordinary diligence. ”

“ It is the special acceptance that makes the party bound to ordinary diligence and liable for ordinary neglect.
Again, In the contract 'to keep safely,' it is the special acceptance (without inquiring into a reward or not) that makes the party bound to ordinary diligence; and in the ordinary contract of a depositary for a reward, it is the reward that puts the party to ordinary diligence. Story Bail., § 442; Jones Bail., 49, 91, 98, 99, original ed. The liability, therefore, of the special depositary to keep safely, and of the depositary for a reward, in the same ”

“ Not only that he should exercise the highest degree of vigilance, but that 'he should keep safely' the moneys which come to his hands. Any relaxation of this condition would open the door to frauds, which might be practised with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs, so as to establish his loss, without laches on his part. ”

“ The cases and authorities that expound the meaning of the words 'keep safely,' speak of them generally in reference to the contract of depositum, or naked bailment without reward; (Story Bail., § 33, the opinion of the judges in Coggs v. Bernard, in relation to these words altering the responsibility in case of naked bailment; Southcote's case, 2 Bl. Com., 452; 17 Mass., 479;) and as enlarging the responsibility from slight diligence, in such case, to ordinary diligence. ”