the contract between the parties; and the law implies a promise by the bailee to perform such orders (p).

1st. Depositum, being a naked bailment, without reward, of goods to be kept by the bailee.

Such bailee is only liable for gross neglect (q). But his duty is of a more serious nature, and he is responsible for ordinary neglect, if he spontaneously and officiously propose to keep the goods ("); or when he changes the description of his character, by taking the charge of the goods in consequence of any reward or lucrative contract (s). In such cases, however, the bailee is only bound to take the same care of the goods, as he would of his own; and therefore, if, notwithstanding such care, they be stolen by his servants, he is not liable (t). But the fact of the bailee having lost his own goods is not conclusive of his having taken reasonable care of those bailed to him (u).

Where the bailee alone receives benefit from the deposit, he is liable for slight negligence (x).

2dly. Mandatum, or Commission, where the mandatory undertakes, without recompence, to do some act about the thing bailed, or simply to carry it.

Here, as the bailor derives an advantage from the gratuitous exertions of the bailee, the latter is not liable; unless gross negligence be proved against him (y). A stage coachman is not liable for the loss of a parcel he was to carry without reward, unless he be guilty of great or extraordinary carelessness in regard to the goods (z).

Where a party gratuitously undertakes the performance of a certain work for another, no action lies for omitting to do it, the engagement being nudum pactum; but if the party undertaking

(p) Streeter v. Horlock, 7 Moore,

287.

(9) Jones on Bailm. 45, 46; Coggs v. Bernard, 2 Lord Raym. 913; Finucane v. Small, 1 Esp. R. 315; Mytton v. Cock, Stra. 1099. As to the duty of excise officers in regard to goods seized, after the penalty has been paid, it is for the owner to demand the restoration, &c.; Hutchins v. Morris, 6 B. & C. 464.

(r) Jones on Bailm. 48, 54; see Nelson v. Mackintosh, 1 Stark. R. 237; Doorman v. Jenkins, 2 Ad. & E. 256; 4 Nev. & Man. 173.

(s) Jones on Bailm. 49. See, as to innkeepers and warehousemen, post, 476.

(t) Finucane v. Small, 1 Esp. R. 315; Coggs v. Bernard, Lord Raym. 914, 915.

(u) Doorman v. Jenkins, 2 Ad. & E. 256; 4 Nev. & Man. 173. (r) Jones on Bailm. 50.

(y) Id. 120, 123; Shiells v. Blackburne, 1II. Bla. 162; Mytton v. Cock, 2 Stra. 1099. An executor, who for security paid money into the hands of a third person, who had been the testator's banker, and who failed, was held not liable for the loss; Rowth v. Howell, 3 Ves. 565. Liability of master of ship carrying gratuitously; Nelson v. Mackintosh, 1 Stark. R. 237.

(z) Beauchamp v. Powley, 1 M. & Rob. 38.

enter upon or commence the work, he is at least liable if he injure the promisce by his gross neglect, or wrongful act; and if his situation or profession be such as to imply skill, an omission of that skill is imputable to him as gross negligence.

A count in a declaration stating that the plaintiff retained the defendant, who was a carpenter, to repair a house before a given day (not stating for reward); that the defendant accepted the retainer; but did not perform the work within the time, per quod the walls of the plaintiff's house were damaged, cannot be supported. But a 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 those, made use of new ones, thereby increasing the expense, is sustainable, although it be not alleged that the defendant was to be paid for his labour (a).

A., a general merchant, undertakes voluntarily, and without reward, to enter a parcel of goods of B., together with a parcel of his own of the same sort, at the custom-house, for exportation, but makes the entry under a wrong denomination, whereby both parcels are seized. A. having bonâ fide taken the same care of the goods of B. as of his own, not having received any reward, and not being of a profession or employment which necessarily implied skill in what he had undertaken, is not liable for the loss occasioned to B. (b). And Lord Loughborough observed, "if in this case, a ship-broker, or a clerk in the custom-house, had undertaken to enter the goods, a wrong entry would in them be gross negliglence, because their situation and employment necessarily imply a competent degree of knowledge in making such entries; but when an application, under the circumstances of this case, is made to a general merchant to make an entry at the custom-house, such a mistake as this is not to be imputed to him as gross negligence." And Mr. Justice Heath remarked, "if a man apply to a surgeon, to attend him in a disorder for a reward, and the surgeon treat him improperly (c), there is a

(a) Elsee v. Gatward, 5 T. R. 143; see Max v. Roberts, 12 East, 59; Whitehead v. Greetham, 2 Bing. 464, 468; 10 Moore, 183, S. C.; ante, 40, 41.

(b) Shiells v. Blackburne, 1 H. Bla. 158. But it should seem that it was a question for the jury, whether A.

was guilty of gross negligence; Doorman v. Jenkins, 2 Ad. & E. 260; 4 Nev. & Man. 173.

(c) See Hancke v. Hooper, 7 C. & P. 81; Lamphier v. Phipos, 8 Car. & P. 479; Gladwell v. Steggall, 5 Bing. N. C. 733; 8 Scott, 60, S. C.; post, as to the liability of medical men.

gross negligence, and the surgeon is liable to an action; the surgeon would also be liable for such negligence, if he undertook gratis to attend a sick person, because his situation implies skill in surgery; but if the patient apply to a man of a different employment or occupation, for his gratuitous assistance, who either does not exert all his skill, or administers improper remedies to the best of his ability, such person is not liable."

And, although there be no consideration for the undertaking of one party to procure an insurance for another, yet where a party voluntarily undertakes to do it, and proceeds to carry his undertaking into effect, by getting a policy underwritten, but does it so negligently, or unskilfully, that the other can derive no benefit from it, he is liable to an action for such gross default (d).

The only duty that is imposed upon a party who, without reward, undertakes to lay out the plaintiff's money in purchase of an annuity, the defendant not acting in a professional character, is, a duty to act faithfully and honestly, and not to be guilty of any gross or corrupt neglect in the dischage of that which he undertakes to do (e).

3dly. Commodatum, or loan for use, when goods are bailed, without pay, to be used for a certain time by the bailee.

In this case, if a bailor does not participate in any benefit derived by the bailee from the use of the goods bailed, the latter must take the utmost care of them, and is liable for slight neglect (ƒ), and he must not, on any account, deviate from the conditions of the loan; therefore the loan of a horse to the defendant to ride was held not to warrant him in allowing his servants to do so (g); but if there be a reciprocal advantage, the bailee is liable only for ordinary neglect; and is responsible only for gross carelessness, if the goods be lent for the sole benefit of the lender (h).

4thly. Pignori acceptum, being a bailment of goods by a debtor to his creditor in pledge, or as a security for debt (i). In this case the pawnee is answerable for ordinary neglect (k).

(d) Wilkinson v. Coverdale, 1 Esp.

R. 75.

(e) Dartnall v. Howard, 4 B. & C. 345, 350.

(f) Jones on Bailm. 65, 72; Coggs v. Bernard, Lord Raym. 915.

(g) Bringloe v. Morris, 1 Mod. 210,

213.

(h) Jones, 72; post, 479.

(i) See generally as to the right of bailee, and how affected by giving up possession, Reeves v. Capper, 5 New Cases, 130; 6 Scott, 877.

(k) Jones, 75, 76; Coggs v. Bernard, Lord Raym. 917; Rex v. Cording, 1 Nev. & M. 35.

Therefore the pawnee shall not be discharged, if the pawn be simply stolen from him; unless he can show that he used due care to protect it from such depredations; but he shall be excused if forcibly robbed thereof (1). And it seems a pawnbroker is not responsible if the goods pawned be destroyed by fire without his negligence or default (m).

If the creditor tender the debt to the pawnee, and he refuse to deliver up the pledge, it seems he is liable though it be subsequently lost, or even forcibly taken from him (n).

A pawnee has, it seems, a right to sell the pawn after the pawner has made default in payment of the debt for which the pawn is given (0), though the giving a lien does not convey any right to sell (p). But he cannot use the goods pawned with him; although the law would probably imply the consent of the pawner to the pawnee to use the article pledged, where it could not be the worse for usage (q).

The statute 39 & 40 Geo. III. c. 99, regulates the business, rights, duties, and liabilities of pawnbrokers (r). It has been held, that a pawnbroker is bound, even after the expiration of the year, to return the pledge on tender of principal and interest, if the article remain in his hands unsold, although he was entitled to sell the same (s).

5thly. Locatum, or hiring; and herein, 1, Locatio operis faciendi, when work, &c., is to be performed on the goods delivered.

No more than ordinary care is required of a bailee, with whom, for pecuniary or other reward, goods are bailed, that work, &c., may be performed thereon, or with respect thereto (t).

(1) Jones on Bailm. 76; Anon. Salk. 522; Coggs v. Bernard, Lord Raym.

917.

(m) Rex v. Cording, 1 N. & M. 35. (n) Jones on Bailm. 29, 79; Ratcliff v. Davis, Yelv. 179; Bul. N. P. 72.

(0) Pothonier v. Dawson, Holt, 385; Tucker v. Wilson, 1 P. Wms. 261; Lockwood v. Ewer, 9 Mod. 278; 3 Atk. 303; 1 Smith's Leading Cases, 100. Pawn by factor, &c., 6 Geo. 4, c. 94; ante, 222, 223.

(p) And if a person having simply a lien, sell, it is a conversion; Clark v. Gilbert, 2 Bing. N. C. 358; 2 Scott, 520, S. C.

(2) Jones on Bailm. 80; Coggs v.

Bernard, 2 Lord Raym. 916, 917;
Mores v. Conham, Owen, 123.

(r) Unless all the formalities required by the act to precede the loan are observed, the contract is void, and the pawnbroker acquires no lien on the goods; Fergusson v. Norman, 5 Bing. N. C. 76; 6 Scott, 794, S. C. Decision on the 14th section; Rex v. Cording, 1 N. & M. 35. Usury by; Tregoning v. Attenborough, 7 Bing. 97; 4 Moo. & P. 722. Interest how caleulated, Regina v. Goodburn, 8 Ad. &

E. 508.

(s) Walter v. Smith, 5 B. & Ald. 439; 1 D. & R. 1, S. C.

(t) Jones on Bailm. 86, 91, 92; Finucane v. Small, 1 Esp. R. 315.

But a workman for hire is bound to exert himself, in order to protect the thing bailed from any unexpected danger to which it may be exposed (u). And in Clarke v. Earnshaw (x), where A. intrusted B., who was a chronometer maker, with a chronometer, to be repaired, and B. suffered his servant to sleep in the shop in which it was deposited, B. was held liable to A. for its value; B.'s servant having stolen it, and B. at the time hving deposited his own watches in a more secure place.

The common law duty of a bailee, with whom cattle are left to be fed and taken care of for reward, is merely to take ordinary care of them; not "to take care of them and re-deliver them to the bailor (y)." If he leave the gates of his fields open, and the cattle stray out and are stolen, he must make good the loss (z).

If an attorney, who has the money of his client in his hands, (such money being the produce of an estate, and out of which the attorney was to pay certain charges, and place the residue in the public funds,) pay the money to the credit of his own private account at his bankers, and the latter fail, the attorney is liable to his client for the account, although he acted bonâ fide, and had a large sum of his own with the same banker. Abbott, C. J., observed, "I have no doubt of the defendant's liability. There are three modes which a person circumstanced as the defendant was may adopt: first, he may keep the money in his own house; as to the consequences of robbery by force in such a case, I express no opinion, but we are all aware of the consequences of a private theft; secondly, he may pay the money into his bankers in his own name, to be placed to his own credit; thirdly, he may pay it in his own name, and at the same time open a separate account which would specify the particular account on which the money was paid." The latter is the correct course (a).

A domestic servant would seem, generally speaking, to be liable only in cases of gross neglect (b).

To charge an innkeeper on the custom or common law of the realm for the loss of the goods of travellers, who are his guests,