
    [Sunbury,
    June, 21, 1826.]
    TOMPKINS against SALTMARSH.
    IN ERROR.
    A voluntary bailee, without reward, is responsible for the loss of the goods intrusted to him, only in cases of gross negligence.
    
    In -an action against a voluntary bailee, for the loss of goods by carelessness and negligence, he may give in evidence his own acts and declarations, immediately before and after the loss, to repel the charge. , -
    But the defendant cannot himself be examined, to prove that the loss was not occasioned by his own neglect, carelessness, and mismanagement.
    ■ Writ of error to the Court of Common Pleas of Bradford county.
    
      Orlando Saltmarsh, the defendant in error,
    brought this action against Isaac Tompkins, the plaintiff in error, an.d filed a declaration containing five counts. The first three, which nearly resembled each other, alleged, that Saltmarsh delivered to Tompkins, at Georgetown, in the District of Columbia, five bank-bills of fifty dollars each, to be conveyed.by him to Athens, Bradford county, Pennsylvania, there to be delivered to the plaintiff; that the defendant undertook safely and securely to keep the said bills, and safely to deliver them to the plaintiff, but that by his carelessness, negligence, and mismanagement, they were wholly lost to the plaintiff. The fourth count was for two hundred and fifty dollars, money had and received by. the defendant to the use of the plaintiff, and the fifth on an insimul computassent.
    
    The case, as.-proved on the part of the plaintiff, was, that he delivered to the.defendant the bills enclosed in a letter to D. Jilanson Saltmarsh, to be delivered -to him at Jit he ns, and that the letter never was delivered to him: This was proved by I). A. Salt-marsh himself, who stated that he had some conversation on the subject with Mr. Tompkins, on his return. ■
    The defendant, after having proved that a valise,, which he had borrowed of a friend, and which was produced in court, was-sound and whole when he received it, and that when it was returned two of the loops were cut in such a manner that the hand might be introduced into it, offered in evidence the deposition of Dana S. Upson, taken in Philadelphia, \a February, 1824, to.those parts of'which,-printed in italics, the counsel for the plaintiff objected, and they were rejected by the court, who sealed a bill of exceptions. The parts excepted to are so connected with the rest of the deposition, that it is necessary to give the whole of it. -It was in these words:—
    “ That a man of the name of Tompkins lodged with him, (the deponent,) about a year ago last December, according to the best of his recollection, a day or two, and then left for New York, as he stated. He was a tall young man, from twenty-seven to thirty years of age, and wore a white hat. One or two days elapsed, and he wrote deponent a letter by mail, stating he had met with the loss of a sum of money. The same morning on which deponent received the letter, he stepped over to Solomon Mien’s office, and saw a letter which Mr. Tompkins had written to him. Deponent thinks it was on Monday morning; Mr. Mien asked deponent about it. The same day on which deponent received the letter, or on the nest, but deponent thinks the same day, Mr. Tompkins came to deponent’s house again, and made a short stay. Mr. Tompkins stated, that he had been robbed of a stem of money, and seemed to think it had been stolen in deponent’s house; that he did not examine his baggage from the time he left deponent’s house, until he had got to New York. He stated he should not feel so unpleasantly about it, if it were his own; that it had been sent by another man. Deponent has examined for the letter he received; he thinks it contained the same account of the transaction which Mr. Tompkins after-wards gave in conversation. Deponent further states, that the first time Mr. Tompkins came there, he occupied room No. 9, and does not recollect he took a room .the second time he came. The room in which Mr. Tompkins lodged', if he lodged in No. 9, as deponent thinks, has four beds in it; if in No. 11, but one bed. It it is probable there were other persons in No. 9, the same night. Deponent further states, that it is the custom of the house to send the baggage of persons stopping there, immediately to the room in which they are to sleep, and it is not customary to take the baggage to any particular room, or to lock it up. Deponent thinks it would be perfectly sáfe, and no mark of negligence for any person arriving ut his house to have his baggage taken to his room, and there leave it until bed-time. Tf Mr. Tompkins lodged in No. 9, as deponent thinks, he would not have been at liberty to lock the door and take the key away. Deponent further states, that Mr. Tompkins appeared much concerned at the loss, and was anxious to take all means to trace the money, as any one would be in a similar situation. Deponent further states, he keeps the hotel in the city of Philadelphia called Judd’s Hotel, and that he kept it in December, 1822.
    “ Deponent being cross-examined, says, he does not distinctly remember at w'hat time of day Mr. 'Tompkins first arrived at his house: he thinks, however, it was by the Baltimore boat, about ten o’clock in the morning. He does not remember any thing in relation lo Mr. Tompkins’s baggage, exeept what he learned from conversation with him, when he came the second time. He does not know that Mr. Tompkins requested the bar keeper to take care of his baggage, or any thing belonging to him. Deponent says, there were locks both on the rooms No. 9 and 'No. 11, at least deponent presumes so, as there were locks on the rooms generally. Deponent says, unless the house is very full, a single bedded room can generally be had, if called for. He thinks that in December, 1822, Mr. Tompkins could have had such a room, if he had asked for it. He does not know, as he has said before, whether Mr. Tompkins roomed in No. 9 or No. 11. Deponent knows nothing of the situation of Mr. Tompkins’s baggage in his room, or how long he was absent from the house while in Philadelphia. Mr. Tompkins left Philadelphia for Neto York, at twelve o’clock in the day time, in the Union Line steam boat. Deponent does not know whether Mr. Tompkins made any purchases in Philadelphia, or whether he left a bundle or any thing else in possession of the bar keeper. Deponent presumes that when Mr. Tompkins went to New York, the porter of the house, James Brady, took his baggage out of his room. When Mr. Tompkins returned from New York, he was not altogether positive in his assertions that he had lost the money in deponent’s house, but he seemed to be of that opinion. He- said he had not opened his baggage from the time he left deponent’s house, till after he arrived in New York. When he left Philadelphia the second time, he did not express any dissatisfaction with deponent’s conduct or house. Deponent cannot say that Mr. Tompkins said the money was lost in Philadelphia- Deponent .does not remember that Mr. Tompkins told him his valise had been cut. lie does not remember, either, what particular article of baggage Mr. Tompkins spoke of, when he mentioned his baggage.”
    
    The defendant’s counsel then offered in evidence, the letter referred to in the preceding deposition, which was objected to by the counsel for the plaintiff, and rejected by the court. It was as follows:—
    “ New York, Dee. 11, 1822.
    
      te Mr. Upson: — Dear sir, When I take into consideration all the circumstances relative to the loss of my money, the conclusion that it was stolen at your house fixes itself irresistibly upon my mind. From the time I left the city of Washington, until I arrived at Philadelphia, my valise was not out of my possession long enough at a time for any one to have committed such a depredation, and it seems impossible it should have been done on board the boat, inasmuch as it stood near the entrance into the cabin, within eight feet of the helmsman, the whole way, on board of both boats. And in the room into which my baggage was taken here, there were two very respectable merchants from JLlbany writing in the room all the afternoon. The robbery was unquestionably committed at your house, by some person who has access to your rooms, - either some of your boarders or servants. Be so good as to watch upon them. It was taken, most likely, on Thursday evening, perhaps on Friday morning. If you receive information on the subject, be so good as to lose no time in communicating it to me at Jtthens, Penn. ' Yours, respectfully,
    
      t£Isaac Tompkins.”
    
    
      The deposition of Jibisha Jenkins, the master of a steam boat between Philadelphia and New York, was then offered in evidence by the counsel for the defendant, objected to by the plaintiff’s counsel, and rejected by the court, to whose opinion exception was again taken. This deposition was as follows:—
    
      “Jibisha Jenkins, mariner of Philadelphia, aged forty-four years and upwards, a witness produced on the part of the defendant, in the above suit named, being duly sworn, deposeth and saith; that, from the best of deponent’s recollection, about two years ago a young man came on board the steam boat Philadelphia, and went on to New York. In a very few days, perhaps the next day or the day after, the same man came on board the boat again at Philadelphia, to inquire whether deponent knew any thing about some money which he had lost. He stated, that, he had arrived in Philadelphia and pul up at Judd’s Hotel; that he had there opened his valise to change his clothes-, and that he did not open it again until he arrived in New York. He further stated, that at New Brunswick he had taken his valise into the room with him. His inquiry of this deponent was, whether the valise could possibly have been opened, on board the steam boat at dinner time. Deponent replied, that he thought it impossible that it could have been done On the passage, as a roan was always at the helm, and the baggage directly in front of him. He stated to this deponent the amount of the money lost, but deponent does not now recollect the sum. Deponent thinks he saw the valise, and the manner in which it was cut, but is not clear in his recollection. Deponent does not recollect that he stated he had lost any of his own money at the same time. Deponent recollects that the young man took a list of the passengers from the books of the boat, and thinks the paper now shown to him and marked A., is the same list.. Deponent knows that the list must have been taken from the books of the boat, but the books of the boat containing the names of the passengers are now at Trenton, and the deponent cannot refer to them. Deponent cannot recollect the name of the young man, nor can he recollect where he stated he was from. Deponent does not think that leaving a valise with the rest of the baggage would be at all unsafe aboard the boat. Deponent does not think-it would be an act of negligence or carelessness to leave baggage in the cabin, or any other part of the boat on her passage. Deponent further states, that the young man told; him he had not discovered that the money was lost,, until he had arrived at New York. Deponent thinks he stated he had been out in New York before he discovered the loss, and that he returned to Philadelphia in pursuit of the money by the first conveyance from New York. The deponent further states, that the young man expressed some anxiety upon the subject of the loss, as much so as the occasion called for.
    (Signed) “ Jibisha Jenkins.”
    
    
      The plaintiff declined a cross-examination, and reserved the right of excepting to this deposition, in whole or in part, on the trial of the cause.
    The defendant’s counsel proposed to ask D. A. Sallmarsh, on his cross-examination, what reason the defendant gave him, on his return to Athens, for not delivering the money, and what account he gave of the matter. They proposed to ask the same question of Ebenezer Bockius, a witness on the part of the defendant, and they proposed to examine Isaac Tompkins, the defendant, to prove that he had been robbed of the money committed to his care by the plaintiff, while on his way from Georgetown to Athens.
    
    
      To the evidence thus offered, the counsel for the plaintiff objected, and the court sustained the objection. A bill of-exceptions was taken to their opinion.
    In this court, errors were assigned in the admission of the testimony, stated in the several bills of exception returned with the record.
    
      Williston and Mallory, for the plaintiff in error,
    cited, 1 Phil. Ev. 218, 219. Meeker v. Jackson, 8 Yeates, 442.
    
      Conyngham, for the defendant in error.
   The opinion of the court was delivéred by

DtrNCAN, J.

A question is not made, whether the proof met the allegation of the plaintiff. The declaration states, that the bills were to be delivered to Orlando; the evidence was, that they were to be delivered to D. Alanson. I doubt very much whether the plaintiff could recover on that evidence. Giving, however, no opinion on this, but confining myself to the errors assigned,- I pro-’ ceed to inquire whether the testimony of Duna S. Upson and of Abisha Jenkins, the letter from Tompkins to Upson, and the proof of the conversation between D. Alanson and Tompkins, on his return to Athens, ought to have been received, and whether there was error in rejecting the examination of Tompkins, who was offered as a witness to prove the alleged robbery.

The plaintiff did not allege, that Tompkins purloined, embezzled, or converted the money to his own use. He admits that he lost the bank bills by carelessness, negligence, and mismanagement, and it is for negligence in the performance of this voluntary undertaking that the action is brought, and all the evidence must be considered with relation to that charge. Tompkins is charged as the bailee of Saltmarsh, on an undertaking to perform a gratuitous act, from which he was to receive no benefit, and the benefit was solely to accrue to the bailor; in which case the bailee is only liable for gross negligence, dolo proximus, a practice equal to a fraud. It is that omission of care which even the most inattentive and thoughtless men never fail to take of their own concerns. There is this marked difference, in eases where ordinary diligence is required, and where a party is only accountable for gross neglect. Ordinary neglect, is the want of that diligence which the generality of mankind use in their own concerns, and that diligence is necessarily required where the contract is reciprocally beneficial. The bailee is not bound to ordinary diligence, is not responsible for the omission of that care which every attentive and diligent person takes of his own goods, but only for the omission of that care which the most inattentive take. One who was bound to use ordinary diligence,and suffered the goods to be taken by stealth out of his custody, was held by Sir William Jones, not to have used ordinary diligence; but a contrary practice now prevails. But Tompkins was not bound to use ordinary diligence; he was not bound to lay aside all other business to take the direct road from Georgetown to Athens; he is only answerable for gross neglect; and, though the question is something .new, and not without its difficulties, my opinion is, that it was competent for Tompkins to show, that immediately on the receipt of the letter, he proceeded to Philadelphia, to New York, and to Athens, and to show how he conducted himself, what care he took of his own property, that his care was the usual and ordinary care.

Evidence is constantly accommodating itself to the state of society and the concerns of the world, and therefore must accommodate itself to the altered mode of travelling by stage coaches and steam boats, instead of on horse back or in private carriages. Tra-vellers are constantly more exposed to secret stealth in a crowded stage, or in a steam boat crowded with passengers, where the tra-veller cannot keep his eye on his own baggage. Inns in our large cities are generally filled with strangers, and, with the utmost circumspection, he is certainly more exposed to these risks. To preclude a gratuitous bailee from showing how he conducted himself, and what care he took of his own property, would be shutting out all defence. The evidence offered was of a time directly after the receipt of the letter. I am of opinion, likewise, that evidence ought to have been received of the hue and cry immediately after the discovery; his assiduous and indefatigable pursuit, and strict search, both .at the inn and the steam boat. If he had made no complaint, or no inquiry, remained with his arms folded and his mouth shut, this would have afforded strong evidence of his delinquency; and though it has been said this would have been the course of a guilty man, yet it was one which an innocent man would naturally take, and which, if he did not take, all would condemn him. Nothing would more strongly prove his neglect than this silence, this indifference, — the jury would have drawn the most unfavourable conclusions from it. The next best evidence to proof of a thing itself, is proof of those circumstances which naturally would attend it. These were, the production of the cut valise, the immediate promulgation of the theft, and pursuit of the property. It has been said, this is the party making evidence for himself. It is not, — but evidence of circumstances immediately preceding, and directly following the stealth. The direct proof would be difficult, and is not to be looked for. The circumstances that would naturally attend the whole transaction of a man placed in the situation in which the defendant stood, in such case, from necessity, is proper evidence. It is a presumption which the jury ought to weigh with candour, but with circumspection. It is more or less strong, as the conduct of the party might appear to be natural, and consistent with his innocence, or otherwise, and a mere sham. Even in criminal proceedings, the declarations of prisoners have been received to explain their conduct, as, in an indictment for larceny, that be took the goods claiming the property. The jury hear the evidence, and then judge whether these declarations were genuine claims of property, though mistaken, or made to colour a stealing. 1 Hale, Pl. Cr. 509. 1 Shower, 502. 2 Barn. 174. In trials for murder, declarations of the prisoner antecedent to the fact, are admissible to reconcile or explain his conduct. 2 Harr. & M‘Hen. 120. And, in the hottest times, in trials for high treason, the declarations of a prisonér have been admitted in evidence to explain his acts.

Had Tompkins been indicted for purloining this money, surely this conduct could be received in his exculpation; for no man would be the bearer of a letter with money, at the risk of reputation and property, if he were obliged to prove that his trunk was broken open, or his valise cut open, by witnesses who saw the act done. It would be unreasonable to look for such evidence. It could only be made out by circumstances, whether or not the bailee was guilty of gross neglect. All this is, however, to be understood of acts immediately preceding and directly following, — concurrent acts and declarations, not acts and declarations not known or commenced until after a lapse o.f time, and suspicion afloat. That nothing that a man does or says can be given in evidence to support his own cause, is a good general rule. It has, like other general rules and positions, exceptions; if it had not, it would be better to have no general rule.

The rules of evidence are founded on general interest and convenience, and must from time to time admit of modifications. To, adapt them to the actual condition of thp business of men, they must conform themselves to the exigencies of society. 9 Wheat. 332. And it is for this .reason, shop books which are the books of a plaintiff, are admitted in evidence.

The deposition of Upson, with the letter annexed, except that part of if which is contained within double brackets, oiight to have been admitted, and likewise the deposition of Misha Jenkins, ,to show the concomitant acts and declarations of Tompkins, immediately before and after the. loss; for the declaration admits the bills were lost, and it is proved that Saltmarsh said they were. lost. As all was before any claim made by Saltmarsh, it was evidence of the whole res gesta, the entire conduct, immediate declaration, and hot pursuit of the defendant It was evidence, of his baggage being secured in the usual way at a respectable inn’, and of the manner in which the baggage of passengers was stowed away in the steam boat. It was for the jury to say, whether these declarations and searches were colourable, and not honestly made; whether all this anxiety was affected and not real, to cover a fraud; for if that was the case, this would prove something more than gross negligence. They prove, if not an actual larceny, an act of baseness exceeding in moral turpitude the picking of Saltmarsh’s pocket, — charges never made against the plaintiff in error. In this point of view, the evidence was admissible; but no member-of this court ever doubted 'of the propriety of the rejection of the defendant on record as a witness. He stood as any other defendant stands, and he must make out his defence by disinterested witnesses. He could not be permitted to prove that the loss was not by his neglect, carelessness, and mismanagement. It is not like any of the cases cited by the counsel of the plaintiff in error. A party may be a witness to prove the loss of a written instrument, having first proved its existence and contents. I think the questions put to D. dilanson, on his cross-examination, should have been received, who swore that he never received the money, and that he had some conversation with Tompkins about it on his return. He was the person to whom the package was directed. He said he had some conversation with him. The circumstances in which he stood, with respect to this money; his stating'there was a conversation, entitled the defendant to have the whole of it. For the same reason, 'Bockius, who was present, ought to have been permitted to prove the conversation. It was held immediately on his return, and is to bo considered as part of the whole transaction. It is-to be observed, that-the plaintiff below gave.no evidence of any act of negligence by Tompkins; barely the delivery of the package. Í know not how even a careful and attentive man could escape, if evidence such as the plaintiff gave,.of the bare delivery of the package, was to charge him with the amount admitted to be lost.; if he, without benefit or reward, .having undertaken to do a favour for his friend, could not be discharged for the casualty, without direct evidence how it arose, by some eye witness. No prudent man ever would carry a letter on these terms. There is in all these cases, I admit, a difficulty, — suspicion will attach, — the most upright man will feel mortification; but it is inconsistent with the state in which the law has placed the voluntary depositary, who acts for the benefit of another, to cast upon him the burden of showing exactly, by witnesses, the quo modo he lost it, when the bailor admits that somehow he did lose it. The facts and circumstances are all for the consideration of the jury. To keep them from them is excluding the only light-which can be shed on the conduct of the party charged with negligence alo.ne.

Judgment reversed, and a venire facias de novo awarded.  