receive it, or one of them demands it with the consent of the rest.a

II. Of mandatum.

Mandate is when one undertakes, without recompense, to do some act for another in respect to the thing bailed. If the mandatary undertakes to carry the article from one place to another, he is responsible only for gross neglect, or a breach of good faith. But if he undertakes to perform some work relating to it, he is then bound to use a degree of diligence and attention suitable to the undertaking, and adequate to the performance of it. In some eases he is answerable for slight neglect, and in others he is-only bound to act with good faith.

A distinction exists between nonfeasance and misfeasance, that is, between a total omission to do an act which one gratuitously promises to do, and a culpable negligence in the execution of it. It is conceded in the English, as well as by the Roman law, that if a party makes a gratuitous engagement, and actually enters upon the execution of the business, and does it amiss, through the want of due care, by which damage ensues to the other party, an action will lie for this misfeasance. But Sir William Jones contends,

a May v. Harvey, 13 East, 197. The Code Napoleon says, that the depositary must not give up the thing deposited, except to the order of him who deposited it; and if he who made the deposit dies, and there be several heirs, it must be yielded up to them each according to his share and portion; and if the thing deposited cannot be divided, the heirs must agree among themselves as to the receiving it. Art 1937. 1939. The Civil Code of Louisiana has adopted the same provisions; art. 2920. 2922., and both those codes leave the inference to be drawn, that if the thing be indivisible, it cannot safely be delivered to one of two or more claimants, without their joint agreement or consent.

b Wood's Inst. of the Civil Law, 242. Jones on Bailment, 40. 93. Shiells v. Blackburne, 1 H. Blacks. 158.

that by the English law, as well as by the Roman law, an action will lie for damage occasioned by the non-performance of a promise to become a mandatary, though the promise be purely gratuitous. There is no doubt that this is the doctrine of the civil law; but it was shown by the Supreme Court of this state, in Thorne v. Deas,a that Sir William Jones had mistaken some of the ancient English cases on this point, and that the uniform current of the decisions from the time of Henry VII. to this day, led to the conclusion, that a mandatary, or one who undertakes to do an act for another without reward, is not answerable for omitting to do the act, and is only responsible when he attempts to do it, and does it amiss. In other words, he is responsible for a misfeasance, but not for a monstersance even though special damages be averred.

In the great case of Coggs v. Bernard, the defendant undertook gratis to carry several hogsheads of brandy from one cellar, and deposit them in another, and he did it so negligently and improvidently, that one of the casks was staved, and the brandy lost. The K. B. held, that the defendant was answerable for the damage on the ground of his neglect and carelessness, though he was not a common carrier, and though he was to have nothing for his trouble. If the mischief had happened by any person who had met the cart in the street, the bailee would not have been chargeable, but the neglect or want of or dinary care in that case was a breach of trust; and a breach of trust undertaken voluntarily is a good ground of action. Lord Holt admitted, that if the agreement had been executory, or to carry the brandy at a future time, the defendant would not have been bound to carry ; but in the case before him the defendant had actually entered upon the execution of the trust, and

having done so, he was bound to use a degree of diligence and attention adequate to the performance of his undertaking.

The case of Elsee v. Gatwarda is a decision of the K. B. to the same point. It was decided upon the doctrine of Coggs v. Bernard, and of the ancient authorities referred to by the court in that case. The court recognised the justness of the distinction, that if a party undertakes to perform a work, and proceeds to the employment, he makes himself liable for any misfeasance in the course of that work. But if he undertakes without consideration, and does not proceed on the work, no action will lie against him for the nonfeasance, unless it be in special cases, as in the case of a common carrier, porter, ferryman, farrier or inn-keeper, who are bound, from their situations in life, to perform the work tendered to them, or the employment assumed by them.

A similar decision to that in the K. B., was made in the C. B. in Shiells v. Blackburne. A general merchant undertook, voluntarily, and without reward, to enter a parcel of goods for another, together with a parcel of his own of the same sort, at the custom house, for exportation; but he made an entry under a wrong denomination, whereby both parcels were seized. It was held, that he was not liable for the loss, inasmuch as he took the same care of the goods of his friend as of his own, and had not any reward for his undertaking, and he was not of a profession or employment that necessarily implied skill in what he undertook. The defendant in that case acted with good faith, and that was all that could be required. The case would have been different, if a ship broker, or a clerk in the custom house, had undertaken to enter the goods, because their situation and employment would necessarily imply a competent degree of

a 5 Term Rep. 143.

b1 H. Blacks. 158.

knowledge in making such entries. So, if a surgeon should undertake gratis to attend a wounded person, and should treat him improperly, he would be liable for improper treatment, because his profession implied skill in surgery. It was held to be an act of negligence sufficient to render a gratuitous bailee responsible, for him to have turned a horse, after dark, into a dangerous pasture to which he was unaccustomed, and by which means the loss of the horse ensued."

If a mandatary undertakes specially to do the work, he may, like a depositary, be answerable for casualties. So, if he spontaneously and officiously offers to do the act, he may be responsible beyond the case of gross negligence, and be held to answer for slight neglect. There is reason to believe, that this head of mandatum, in the Essay on Bailment, was not examined with perfect accuracy, when the distinguished author undertook to prove from the English law, what he certainly failed to show, that an action lay for the nonfeasance in promising to do a thing gratuitously, and omitting altogether to do it. The civil law did undoubtedly contain such a principle; and Pothier, in his elaborate treatise on the contract of mandatum,c adopts the powerful reasoning and very sound maxims of the civil law on the subject of the responsibility of the mandatary. But the English law, as has been abundantly shown from the cases already referred to, never carried the liability of the mandatary to the same extent.

III. Of commodatum.

This is a bailment, or loan of an article for a certain time,

a Booth v. Wilson, 1 Barn. & Ald. 59.

b Jones on Bailment, 41. 48. 94.

• Traité du Contrat de Mandat.

d See Dig. 17. tit. 1. and Ins. 3 tit. 27. and Code, 4 tit. 35. on the Contract of Mandalum.

to be used by the borrower without paying for it. Such a borrower is responsible for slight negligence. This loan for use is to be distinguished from a loan for consumption, or the mutuum of the Roman law. The latter was the loan of corn, wine, oil, and other things that might be valued by weight or measure, and the property was transferred. The value only was to be returned in equal quantity, and the borrower was to bear the loss of them, even if destroyed by inevitable accident. In the case of the commodum, or loan for use, as a horse, carriage, or book, the same identical article or thing is to be returned; and as it is a loan without pay or reward, the borrower is liable for slight neglect. The Roman and the English law coincide in respect to the conclusions on this head. The borrower canother than the very

not apply the thing borrowed to any purpose for which it was borrowed, nor keep it beyond the time limited, nor detain it as a pledge for any demand he may ohert wise have against the bailor. If the article perish, or be lost by accident, without any blame or neglect imputable to the borrower, the owner must abide the loss. The owner cannot require greater care on the part of the borrower, that he had a right to presume the bor rower was capable of bestowing. If a spirited horse be lent to a raw youth, and the owner knew him to be such, the circumspection of an experienced rider cannot be required, and what would be neglect in the one, would not be so in the other.b

Pothier, who has given to the public an excellent treatise on this loan, says, that the borrower is bound to bestow upon the preservation of the thing borrowed, not merely ordinary, but the greatest care, and that he is responsible not merely for slight, but for the slightest neglect. The reason is that this is a loan made gratuitously for the sole benent

a Noy's Maxims, ch. 43. p. 91. b Jones on Bailment, p. 49, 50.

Jones on Bailment, p. 49, 50.
Pothier, Traité du Pret a Usage, No.