tained by them in the removal. The reason is, said Mr. Justice Gould, the particular trust reposed in the defendant, to which he has concurred by his assumption, and in executing which he has miscarried by his neglect. If goods are deposited with a friend, and are stolen from him, no action will lie. But there will be a difference in that case upon the evidence how the matter appears. If they are stolen by reason of a gross neglect in the bailee, the trust will not save him from an action; otherwise, if there be no gross neglect. But, if a man takes upon him expressly to do such an act safely and securely, if the thing comes to any damage by his miscarriage, an action will lie against him. and unremu And on this point of the law it is that the cele- Remunerated brated distinction occurs between remunerated and nerated unremunerated agents; from the former of whom agents. the law implies a promise, that they will act with reasonable diligence; from the latter, only that they will not be guilty of gross negligence. Thus, where a stage-coachman received a parcel to carry gratis, and it was lost upon the road, Lord Tenterden directed the jury to consider whether there was great negligence on the coachman's part (n). And where the declaration stated that, in consideration that the plaintiff, at the defendant's request, would employ him to lay out £1400. on the purchase of an annuity, the defendant promised to perform his (n) Beauchamp v. Powley, 1 M. & Rob. 38. duty in the premises, yet did not do so, but laid it out in the purchase of an annuity on the personal security of insolvent persons, the Court arrested the judgment, on the ground that the defendant was a particular agent, and was not charged with having acted negligently or dishonestly (o). There is another equally remarkable distinction, namely, that a remunerated agent may be compelled to enter upon the performance of his trust, or at least made liable in damages if he neglect to do so; whereas an unremunerated agent cannot, although, as we have seen, he may be liable for misconduct in the performance of it. The latter part of this proposition is fully explained in the great case of Coggs v. Bernard, above quoted. The difference is, said Mr. Justice Powell, between being obliged to do the thing, and answering for things which he had taken. into his custody upon such an undertaking. An action will not lie for not doing the thing for want of a sufficient consideration, but yet, if the bailee will take the goods into his custody, he shall be answerable for them, for the taking the goods into his custody is his own act. It is also remarkably illustrated in the well-known case of Elsee v. Gatward (p), where one count of the declaration, stating that the plaintiff retained the defendant, a carpenter, to repair a house before a given day, that the defendant accepted the retainer, but did not perform the (0) Dartnall v. Howard, 4 B. & C. 345; Doorman v. Jenkins, 2 A. & E. 256. work within the time, whereby the walls of the plaintiff's house were damaged, was held to be insufficient, as not showing any consideration; but another count, stating that the plaintiff, being possessed of some old materials, retained the defendant to perform the carpenter's work on certain buildings of the plaintiff, and to use those old materials, but that the defendant, instead of using them, made use of new ones, thereby increasing the expense, was held good, as it appeared that the defendant had entered on the performance of the work. Again, if one man is compelled to do that which another man ought to have done and was compellable to do, that is a sufficient consideration to support a promise by the former to indemnify him. Such is the common case of a surety who has been compelled to pay a demand made against the principal, and who, as we know, is entitled to bring an action of assumpsit to recover an indemnity. And such is also the case of an indorser of a bill, who, on account of the acceptor's default in not paying the bill when due, is compelled by the holder to pay him the amount; the indorser may sue the acceptor to recover an indemnity (q). In like manner, if one of several joint contractors, not being partners (whose rights inter se are not at common law ever decided), has been compelled to pay, or in pursuance of his legal obligation has paid, the whole of their (g) Pownall v. Ferrand, 6 B. & C. 439. N common liability, he is entitled to recover from each of them his proportional share (r). An instructive example of the same rule is afforded by the case of Sutton v. Tatham (s), in which, a stockbroker having entered into a contract for the sale of stock, which was not fulfilled by his principal, and similar stock having been thereupon purchased at a higher price by the broker of the purchaser, the seller's broker, in obedience to a rule of the Stock Exchange, paid the difference, and also the commission of the purchaser's broker, it was held that he might recover from his principal the amount of such payments, by showing that it was compulsory upon him to make them. These examples seem sufficient to explain the nature of the species of consideration now before us (t). I might cite a multitude of other cases in which questions have arisen as to the sufficiency of the consideration; but I think that the instances I have already given are sufficient for the purpose I had in view, which was, to illustrate the general (r) Holmes v. Williamson, 6 M. & S. 158; Prior v. Hembrow, 8 M. & W. 873; Pitt v. Purssord, 8 M. & W. 538; Batard v. Hawes, 22 L. J. (Q. B.) 443; 2 E. & B. 287. (8) 10 A, & E. 27; Pawle v. Gunn, 4 Bing, N. C. 445; Bayliffe v. Butterworth, 1 Ex. 425; Bayley v. Wilkins, 7 C. B. 886; Westrop v. Solomon, 8 C. B. 345; Taylor v. Stray, 26 L. J. (C. P.) 185; 2 C. B. (N. S.) 175; 26 L. J. (C. P.) 287. S. C. in Ex. Ch. (t) Toussaint v. Martinnant, 2 T. R. 100; Fisher v. Fallowes, 5 Esp. 171; Jeffreys v. Gurr, 2 B. & Ad. 833. nature of the questions which arise on the sufficiency of a consideration to support a promise. executory There is, however, one thing more to be observed, Exccuted and and that is, the distinction between executed and considerations. executory considerations. Now, with regard to the meaning of these words, which you will continually hear used in legal arguments, it is this:-an executed consideration is one which has already taken place, an executory consideration one which is to take place,-one is past, the other future. Thus, if A. delivered goods to B. yesterday, and B. makes a promise to-day in consideration of that delivery, this promise is said to be founded upon an executed consideration, because the delivery of the goods is past and over. But, if it be agreed that A. shall deliver goods to B. to-morrow, and that B. shall, in consideration, do something for A., here is an executory consideration, because the delivery of the goods has not yet taken place. And so, whenever, at the time of making a promise, the consideration on which it is founded is past, the consideration is said to be executed; whenever the consideration is future, it is said to be executory. consideration previous Now, between executed and executory, or, in other An executed words, between past and future considerations, the must be suplaw makes this distinction, namely, that an executed ported by a consideration must be founded on a previous re- request. quest; an executory one need not, or, to speak more correctly, its very terms imply a request. For, if A. promise to remunerate B., in consideration that B. |