to be performed or bestowed on the thing delivered; or thirdly, Locatio operis mercium vehendarum, when goods are bailed for the purpose of being carried from place to place for hire, either to a public carrier, or to a private person.

$14. The above division of bailments, and the definitions. of each sort, are borrowed from the Essay of Sir William Jones on Bailments, and from the Commentaries on the same subject of the late Mr. Justice Story. The latter sort, Lo

See Jones on Bailm. 36, and Story on Bailm. § 4, 5, 6, 7. Lord Chief Justice Holt's arrangement of bailments into six classes is as follows. 1. Depositum: A bare naked bailment of goods delivered by one man to another to keep for the use of the bailor. 2. Commodatum: When goods or chattels that are useful, are lent to a friend gratis, to be used by him. 3. Locatio rei : Where goods are lent to the bailee to be used by him for hire. 4. Vadium or Pawn. 5. Locatio operis faciendi : Where goods are delivered to be carried, or something is to be done about them, for a reward to be paid to the bailee. 6. Mandatum: A delivery of goods to somebody, who is to carry them, or do something about them gratis. Sir William Jones objects to this arrangement, because the fifth class (as he says) is no more than a branch of the third, and because a 7th might have been added, since the 5th (and he might have said the 6th also) is capable of another subdivision. But Mr. Smith, in his note to Coggs v. Bernard, has refuted this opinion: "For, there exists," he says, "between them this essential difference, viz, that in cases falling under the third class, or locatio rei, the reward is paid by the bailee to the bailor; whereas, in cases falling under the fifth class, or locatio operis faciendi, the reward is always paid by the bailor to the bailee. It is true, that in Latin both classes are described by the word locatio, which probably gave rise to Sir William Jones's opinion, that both ought to be included under the same head; but then in the third class, locatio rei, the word locatio is used to describe a mode of bailment, viz., by the hiring of the thing bailed; whereas, in the fifth class, locatio operis faciendi, the same word locatio is used, not to describe any mode of bailment, but to signify the hiring of the man's labor who is to work upon the thing bailed; for as to the thing bailed, that is not hired at all, as it is in cases falling within the third class. If, indeed, Lord Holt had been enumerating the different sorts of hirings, not of bailments, he would, no doubt, like the civilians, have classified both locatio rei, and locatio operis, under the word hiring;

catum or hiring, which is subdivided by the former writer, as above given, into three sorts, the latter writer, following the Civil Law, has subdivided into four sorts, thus: 1. The hiring of a thing for use (locatio rei). 2. The hiring of work and labor (locatio operis faciendi). 3. The hiring of care and services to be performed or bestowed on the thing delivered (locatio custodia). 4. The hiring of the carriage of goods (locatio operis merciam vehendarum) from one place to another. The three last, says the learned American Commentator, are but subdivisions of the general head of hire of labor and services.1

$ 15. But the most general and simple division of bailments, and one which includes all the above-mentioned sorts, is into three kinds. First, those in which the trust is exclusively for the benefit of the bailor. Secondly, those in which the trust is exclusively for the benefit of the bailee. Thirdly, those in which the trust is for the benefit of both parties. The first embraces deposits and mandates; the

But he was

since in one case goods are hired, and in the other labor. making out a classification, not of hirings, but of bailments; and since in cases of locatio rei there is a hiring of the thing bailed, and in cases of locatio operis no hiring of the thing bailed, it was impossible to place, with any degree of propriety, two sorts of bailments under the same class, one of which is, and the other which is not, a bailment by way of hiring. As to the objection that Lord Holt's fifth class of bailments is capable of another subdivision, there is no doubt but that it may be split, not only, as Sir William Jones suggests, into locatio operis faciendi (where work is to be done upon the goods), and locatio operis mercium vehendarum (where they are to be carried), but into as many different subdivisions as there are different modes of employing labor upon goods; and, in point of fact, the civilians, in their division of hirings, enumerated another class, viz., locatio custodia, or the hiring of care to be bestowed in guarding a thing bailed, which is omitted by Sir William Jones. For these reasons it is submitted, that Lord Holt's classification is the correct one." 1 Smith's Leading Cases, 98. And see Eng Monthly Law Mag. for April, 1839. 1 Story on Bailm. § 8.

third, pledges or The first of these

second, gratuitous loans for use; the pawns, and hiring and letting to hire. three general divisions includes the carriage of goods without hire; and the last the carriage of goods for hire, as was stated in the commencement of the present chapter. The carriage of goods without hire, will be the subject of the following chapter.

16. In the conclusion of the present chapter, it may be stated, that the following chapters will render obvious the truth of the general remark, equally applicable in our country, made by Sir William Jones, in the concluding portion of his Essay on the Law of Bailments, viz.: "All the preceding rules and propositions may be diversified to infinity by the circumstances of every particular case; on which circumstances it is on the continent, the province of a Judge appointed by the sovereign, and in England, of a jury freely chosen by the parties, finally to decide." 3

1 Story on Bailm. § 3; and see English Monthly Law Mag. for April, 1839, p. 216.

2 See Ante, § 1.

3 Jones on Bailm. 122; and see Ante, § 7, 8, 11. "There is no time," it has with truth been said, "when the law is stationary and stable; but it is kept in perpetual movement by the varying condition of the nation, and, therefore, the only way in which the spirit of the law can be seized, is to study it historically, to begin with the custom in its cradle, and to follow it through all its changes down to the existing epoch. To borrow an illustration from another science, law not being a fixed quantity, but variable according to a certain rule, it becomes necessary to ascertain what, in mathematical language, may be called its fluxions, the formula of its variation. It is history only that can furnish this calculus, which is the basis of all true and just science in law. Without this knowledge, a jurist may repeat the words, but can never penetrate the living spirit of the law.” See article in 5th vol. of American Jurist, p. 23, entitled, "Written and Unwritten Systems of Laws."

2*

CHAPTER II.

OF CARRIERS WITHOUT HIRE.

§ 17. THE law, then, imposes upon a carrier without hire, or the person who undertakes to carry goods for another gratuitously (the mandatary),1 the obligation only of slight diligence, and renders him liable only for gross negligence. It is of the essence of the contract of mandate, that it be gratuitous, for if any compensation is to be paid, it becomes then the contract for hire. Mandatum, nisi gratuitum, nullum esse; and in this particular, it matters not whether the compensation is express or implied; nor whether certain or uncertain in amount.3

4

18. The great leading case in support of the above proposition respecting the responsibility of a carrier without hire, is the case of Coggs v. Bernard. In this case the defendant undertook to remove several casks of brandy from one cellar to another, and there lay them down safely, but managed so negligently, that one of the casks was staved. After the general issue joined, and a verdict for the plaintiff, a motion was made in arrest of judgment,

1 See Ante, § 1, 13. And see respecting the general subject of Mandates, Chap. III. of Story on Bailments.

2 See Ante, § 10, 11.

3 Story on Bailm. § 153, and the authority of the Dig. and of Pothier, Pand. there cited. If there is a mere honorary payment, not as a compensation, but as a mark of respect and favor, this, by the Civil Law authorities, is still a mandate. In England, counsel are understood not to be at liberty to make any pecuniary charge for their services, for advice, and the compensation given is deemed a gratuity; and their employment, therefore, in the Civil Law, would be called a mandate. Story, ub. sup. 4 Coggs v. Bernard, 2 Ld. Raym. R. 909, and Appendix.

on the irrelevancy of the declaration, in which it was neither alleged, that the defendant was to have any recompense for his pains, nor that he was a common porter. But the Court were unanimously of opinion, that the action lay, and the elaborate judgment of Lord Chief Justice Holt, has rendered the case one of the most celebrated ever decided in Westminster Hall.

$ 19. By the argument of Lord Holt in the above case, if the agreement had been executory, as if the defendant had assumed to carry the goods in question, and had failed to do so, no action could have been sustained. It would have been like the case where a man promised another to build him a house by such a day and failed in the performance of the promise, in which case it was adjudged (11 Hen. 4, 33), that an action would not lie. But in the case in question, the defendant actually entered upon the undertaking according to his promise, and therefore was liable to an action for the deceit put upon the plaintiff who trusted him; for, although he was not bound to enter upon the trust, yet if he do enter upon it, he must take care not to miscarry, at least, by any mismanagement of his own. But should a person have run upon the defendant in the street, and thrown down the cask of brandy, or had privately pierced it, it would be otherwise, because the defendant had no reward. In short, although a party is to receive no benefit or reward, if he assumes a trust, he is under obligation to perform it.

$20. The point which the decision in Coggs v. Bernard directly involves, viz., that if a man undertake to carry goods safely, he is responsible for damage sustained by them in the carriage through his neglect, though he was not a common carrier, and was to have nothing for the carriage, is now clear law, and forms a part of a general proposition in the law of principal and agent, which may be stated, it has been laid down, in the following words: viz., The confi