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goods deposited for a particular purpose, in breach of his trust, the bona fide purchaser, without notice, is not protected against the real owner. The same reasonable care is requisite, in the case of goods coming to one's possession by finding, as in the case of a gratuitous deposit.b

II. Of mandatum.

Mandate is when one undertakes, without recompense, to do some act for another in respect to the thing bailed.

59. Hartop v. Hoare, 3 Atk. Rep. 44. 1 Wils. Rep. 8. Lord Coke, in Isaac v. Clark, 2 Bulst. Rep. 311. Story's Com. 67--74. Moore v. Robinson, 2 Barnw. o Adol. 817. See infra, p. 585. The general rule is, that actual and lawful possession of personal property is sufficient to maintain trespass or trover against all persons except the lawful owner. Armory v. Delamire, 1 Str. 504. Fisher v. Cobb, 6 Vermont R. 622. Giles v. Grover, 6 Bligh. Rep. 277. Sutton v. Buck, 2 Taunton's R. 302. Creighton v. Seppings, 1 B. f Adol. 241. Story's Com. sec. 93, 94, 2d edit. In Miller v. Adsit, 16 Wendell, 335, it was held, after a learned discussion, that replevin would lie by a receiptor of goods taken on execution against a mere wrongdoer. See, in Story on Bailments, p. 93-99, 2d edit., an instructive digest of the law in the New-England states, in respect to the rights of the parties in the case of goods attached by public officers on mesne process for debts, and bailed to some third person to be forthcoming upon demand, or in time to respond to the judgment. Though the bailee has no property whatever in the goods, and but a mere naked custody, yet the better opinion would seem to be that his possession is a sufficient ground for a suit against a wrongdoer. It has been so decided in New Hampshire, in Poole v. Symonds, 2 N. H. Rep. 289, and this is the principle in the case from Wendell. Thayer v. Hutchinson, 13 Vermont Rep. 504, S. P. The bailee having a special property, recovers only the value of his special property as against the owner, but the value of the whole property as against a stranger, and the balance beyond the special property he holds for the general owner. White v. Webb, 15 Conn. Rep. 302.

• See supra, p. 325.

b Doct. f Stu. Dial. 2. ch. 38. Lord Coke, in Isaac v. Clarke, 2 Bulst. Rep. 312. Story's Comm. 61–66. Mr. Justice Story, in his Comm. on Bailments, sec. 83, 2d edit., considers the case of goods or chattels placed on the land of another by unavoidable casualty or necessity as an involuntary deposit, and that the owner of the articles, in a case free from negligence or fault on his part, may enter and take them away without being chargeable in trespass. See supra, p. 339, and also, the American Jurist, for January, 1839, where the subject is learnedly examined.

In the case of a deposite says Mr. Justice Story, the principle object of the parties is the custody of the thing, and the service and labor accompanying the deposit are

merely accessorial. In the case of a mandate, the *569 labour and *service are the principal objects of the

parties, and the thing is merely accessorial. 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 gratuitously some work relating to it, then, in that

case, Sir William Jones maintains that the mandatary is bound to use a degree of diligence and attention suitable to the undertaking, and adequate to the performance of it. The doctrine declared in Shiells v. Blackburnec is, that the mandatary's responsibility is not greater in the latter case than in the former, unless his employment implies competent skill. Mr. Justice Storyd considers that Sir William Jones has expressed himself inaccurately on this point ; and he discusses the merits of the distinction with great force and accurate research. It is admitted by Sir William Jones, that a bailee of this species ought regularly to be answerable only for a violation of good faith ; but if he does undertake a business which requires a degree of diligence and attention for its performance, that diligence ought to be required of him, unless he assumed the task at the pressing solicitation of the party interested, and without any pretensions to competency.

· Story's Comm. 103.

Jones on Bailments, 40, 93. In Wilson v. Brett, 11 Mee. & W. 113, it was declared that a gratuitous bailee, when his profession or situation is such, as to imply the possession of competent skill, is liable for neglect to use it. 61H Blacks. Rep. 158.

Story's Com. 125. 138.

See the opinion of Judge Porter, of Louisiana, referred to in a subsequent page, under this head, in favour of the distinction made by Sir William Jones.

A distinction exists between nonfeasance and misfeasance, that is, between a total omission to 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 in 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 mis- 570* feasance. But Sir William Jones contends 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 merely gratuitous. There is no doubt that is the doctrine of the civil law; but it was shown by the supreme court of New York, 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 anact 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 nonfeasance, 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

* 4 Johns. Rep. 84. Elsee v. Gatward, 5 Term Rep. 143, S. P.

have been chargeable; but the neglect or want of ordinary 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 it; but in

the case before him, the defendant had actually *571 entered upon the execution of the trust, and *hav

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

The case of Elsee v. Gatwardb 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 recognized 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 innkeeper, who are bound from their situations in life, to perform the work tendered to them, or the employment assumed by them.

A bailee, who acts gratuitously, in a case in which neither his situation nor employment necessarily implied any particular knowledge or professional skill is held to

• Receiving a letter to deliver, or money to pay, or a note by a bank to collect, and by negligence omitting to perform the trust, the mandatary, though acting gratuitously, becomes responsible for damages resulting from his negligence. The delivery and receipt of the letter, money or note, creates a sufficient consideration to support the contract, and is a part execution of it. Durnford v. Patterson, 7 Martin's Louis. Rep. 460. Shillabeer v. Glyn, 2 Mees. f. Wels. 145. Story on Bailments, p. 121-123, 2d edit.

65 Term Rep. 143.

be responsible only for bad faith or gross negligence.a Thus where a general merchant undertook, voluntarily, and without reward, and upon request 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, and 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.b 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 know- *572 ledge 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. If, however, the business to be transacted presupposes the exercise of a particular kind of knowledge and a person accepts the office of mandatary, totally ignorant of the subject, then it has been said that he cannot excuse himself on the ground that he discharged his trust with fidelity and care. A lawyer, who would undertake to perform the duties of a physician; a physician, who would become an agent to carry on a suit at law; a bricklayer, who would propose to repair a ship, or a landsman to navigate a vessel, are cited as examples to illustrate the distinction. But if the agent has the qualifications necessary for the discharge of the ordinary duties of the trust imposed, it is sufficient to exempt him

• Doorman v. Jenkins, 2 Adol. If Ellis, 256. Beardslee v. Richardson, 11 Wendell, 25. Story on Bailment, sec. 174, 2d edit.

Sheills v. Blackburne, 1 H. Blacks. Rep. 158.

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