appointed by the sovereign, and in England, of a jury freely chosen by the parties, finally to decide." 1

"There is no time,"

1 Jones on Bailm. 122; and see Ante, § 7, 8, 11. 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."

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,) the obligation only of slight diligence, and renders him liable only for gross negligence.2 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

§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

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. their 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. In a case where the defendant received hops from the plaintiff for the purpose of being carried for hire, and kept them for the plaintiff in a warehouse for thirteen months, and for that time he had warehouses which before had belonged to another, but had not made any charge to the plaintiff for warehousing; it was held, that he was not a gratuitous bailee. White v. Humphrey, 12 Jur. 417, Q. B.

4 Coggs v. Bernard, 2 Ld. Raym. R. 909, and Appendix.

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, 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.'

1 In an article in the American Jurist for January, 1837, (vol. 16, p. 253 to 285,) written by the late Mr. J. B. Wallace, of the Philadelphia Bar, it is ably contended, that, in mandate and in deposit, there is no contract at all, expressed or implied; his argument being, that every contract presupposes a sufficient consideration in point of law, to sustain it, and that, in

§ 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

the classes of bailment just mentioned, there is no sufficient consideration moving to the bailee, as the bailee acts gratuitously. "It is seen," says he, "that, in pursuance of a most useful practical principle, no action lies against the mandatary for nonfeasance (there being in legal contemplation no contract to do); and it is farther seen, that if the mandatary does undertake or begin the execution of his trust, and does it so negligently as to injure the thing bailed, an action does lie against him for this misfeasance. But this right of action is not by virtue of his contract, for no contract exists after he begins to do, more than before. It rests on the broad principles of general justice; it is founded on the tort; it arises not ex contractu, nor even quasi ex contractu, but ex delicto. It would lie equally, if the injury were done to the thing bailed, while in the hands of the mandatary, even before he begins to execute the trust; though generally this cannot practically be, as the injury usually occurs in the execution." This simple explanation, says Mr. W., removes all difficulty, and shows, that the form of action is not assumpsit but case; and he is of opinion, that, in this view of the matter, "there is no inconsistency, that no principle is violated, and that every thing is congruous." Mr. Justice Story, in reply to the acute reasoning of Mr. W. says: "It seems to me very clear, both upon principle and authority, that in every case of deposit and of mandate, there is such a contract, founded on a sufficient consideration, and capable of being so enforced (that is at law,) whenever the bailment has been executed by a delivery of the thing to the bailee. In the case of a deposit, no one can doubt that there is an engagement or promise to re-deliver the thing to the bailor. The latter parts with his possession of it upon the faith of the due fulfilment of that engagement or promise; and it cannot make any difference in relation to the legal validity of that engagement or promise, whether the bailee has expressly promised to re-deliver it to the bailor, or whether it is inferred from implication from the acts and intentions of the parties. In each case the consideration is precisely the same. What is the consideration? It is on the part of the bailor yielding up his present possession, custody, and care of the thing to the bailee, upon the faith of his engagement or promise to re-deliver it. It is true, the bailee may derive no benefit from the deposit. But that is not the only source of legal considerations. A detriment or parting with a present right, or delaying the present use of a right on the part of the promisee, is a sufficient consideration to support a contract by the promisor, although the promisor derives no benefit whatever from it." See note to p. 4, § 2, of 4th ed. of Story on Bailm. The authorities cited by

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

the learned author, besides the opinion of Lord Holt in Coggs v. Bernard, in support of the proposition, that where a gratuitous undertaking to deliver a thing at the request of the owner, is entered upon, it becomes a valid and obligatory contract upon the bailee to perform the duty of redelivery, expressly or impliedly resulting from his engagement, are Comyns's Dig. Act on the Case, Assumpsit, B.; Williamson v. Clements, 1 Taunt. R. 523; Lengridge v. Dorville, 5 B. & Ald. R. 117; Wheatly v. Law, Cro. Jac. 668; S. C. Palmer, R. 281. This last case was a mandate of money, not goods, and it was finally established, that there was a sufficient consideration to support the action; and the judgment was affirmed in error. There are also referred to the more modern cases of Whitehed v. Greetham, 1 McLell. & Younge, R. 205; S. C. 2 Bing. R. 264; Doorman v. Jenkins, 2 Adol. & Ell. R. 256; Shillibeer v. Glyn, 2 M. & Welsb. R. 143. Sir James Mansfield, in Mills v. Graham, 4 Bos.

& Pull. R. 140, 145, says: "A bailment of goods to be re-delivered, imports an agreement to re-deliver. All special bailments import a contract to re-deliver, when the purpose for which the goods were deposited is answered. See also Smedes v. Bank of Utica, 20 Johns. (N. Y.) R. 377; S. C. in Error, 3 Cow. (N. Y.) R. 662; Bank of Utica v. McKinster, 11 Wend. (N. Y.) R. 473; Todd v. Figley, 7 Watts (Penn.) R. 542. The distinction between engaging to do an act gratuitously and then omitting to do it, and an unfaithful performance of the engagement after its execution is entered upon, or, in other words, the difference between nonfeasance and misfeasance in gratuitous bailees, is as very learnedly discussed at the bar and by Ch. J. Kent in Thorne v. Deas, 4 Johns. (N. Y.) R. 84 to 102. Sir William Jones considers (Essay on Bailm.) that an action will bar the non-performance of a promise to become a mandatary, though the promise be merely gratuitous; but all the leading cases show, that by the Common Law, a person who undertakes to do an act for another, without reward, is not answerable for omitting to do the act; and that he 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 nonfeasance, even though special damages are averred. Those," says Kent, C. J. in Thorne v. Deas, ub. sup. "who are conversant with the doctrine of mandatum in the Civil Law, and have perceived the equity which supports it, and the good faith which it enforces, may, perhaps, feel a portion of regret that Sir William Jones was not successful in his attempt to ingraft this doctrine, in all its extent, into the English law."