work and pains reciprocally undertaken; or (3) the use or gift of another thing in consideration of care and labour; and conversely.8. Ordinary neglect, is the omission of that care, which every man of common prudence, and capable of governing a family, takes of his own concerns.-9. Gross neglect, is the want of that care which every man of common sense, how inattentive soever, takes of his own property. See Post. II. 8.-10. Slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels.-11. A naked contract is a contract made without consideration or recompence.

"II. The Rules which may be considered as axioms flowing from natural reason, good morals, and sound policy, are these.-1. A bailee who derives no benefit from his undertaking, is responsible only for gross neglect.-2. A bailee who alone receives benefit from the bailment, is responsible for slight neglect.-3. When the bailment is beneficial to both parties, the bailee must answer for ordinary neglect.-4. A special agreement of any bailee to answer for more of less, is in general valid.-5. All bailees are answerable for actual fraud, even though the contrary be stipulated.-6. No bailee shall be charged for a loss by inevitable accident or irresistible force, except by special agreement.-7. Robbery by force is considered as irresistible; but a loss by private stealth, is presumptive evidence of ordinary neglect.-8. Gross neglect is a violation of good faith.— 9. No action lies to compel performance of a naked contract.-10. A reparation may be obtained by suit for every damage occasioned by an injury.—11. The negligence of a servant acting by his master's express or implied order, is the negligence of the master.

III. From these rules the following PROPOSITIONS are evidently deducible.-1. A depositary is responsible only for gross neglect; or in other words for a violation of good faith.-2. A depositary whose character is known to his depositor, shall not answer for mere neglect, if he take no better care of his own goods, and they also be spoiled or destroyed.-3. A mandatary to carry is responsible only for gross neglect, or a breach of good faith.-4. A mandatary to perform a work is bound to use a degree of diligence adequate to the performance of it.-5. A man cannot be compelled by action to perform his promise of engaging in a deposit or a mandate; but,6. A reparation may be obtained by suit for damage occasioned by the non-performance of a promise to become a depositary, or a mandatary.-7. A borrower for use is responsible for slight negligence.-8. A pawnee is answerable for ordinary neglect.-9. The hirer of a thing is answerable for ordinary neglect.-10. A workman for hire must answer for ordinary neglect of the goods bailed, and must apply a degree of skill equal to his undertaking.-11. A letter to hire of his care and attention, is responsible for ordinary negligence.12. A carrier for hire by land or by water is answerable for ordinary neglect.

IV. EXCEPTIONS, to the above rules and propositions.—1. A. man who spontaneously and officiously engages to keep or to carry the goods of another, though without reward, must answer for slight neglect.-2. If a man through strong persuasion and with re

luctance

luctance undertake the execution a mandate, no more can be required of him, than a fair exertion of his ability.-3. All bailees become responsible for losses by casualty or violence, after their refusal to return the things bailed; on a lawful demand.—4. A borrower and a hirer are answerable in all events, if they keep the things borrowed or hired after the stipulated time, or use them differently from their agreement.-5. A depositary and a pawnce are answerable in all events if they use the things deposited or pawned.-6. An innkeeper is chargeable for the goods of his guest within his inn, if the guests be robbed by the servants or inmates of the keeper.-7. A common carrier by land or by water, must indemnify the owner of the goods carried if he be robbed of them.

"V. It is no exception but a COROLLARY from the rules that Every bailee is responsible for a loss by accident or force, however inevitable or irresistible; if it be occasioned by that degree of negli gence for which the nature of his contract makes him generally answerable."

• The cases cited and commented on by Sir Wm. Jones, besides the above of Coggs v. Bernard, and which lead to the whole law on this subject, are 1 Str. 128, 145: 2 Stra. 1099: Allen. 93: Fitz. Detinue 59, (Bonion's case, the earliest on the subject): 8 Rep. 32: 1 Wils. 281: Burr. 2298: 1 Vent. 121, 190, 238: Carth. 485, 7: 2 Bulst. 280: 1 Ro. Ab. 2, 4, 10: 2 Ro. Ab. 567: 12 Mod. 480, 2: Raym. 220: Moor. 462, 543: Owen 141: 1 Leon. 224: 1 Cro. 219: Bro. Ab. tit. Bailment: Hob. 30: 2 Cro. 339, 667: Palm. 548: WV. Jo. 159: 4 Rep. 83 b. (Southcote's case): 1 ust. 89 a. Many of them however more peculiarly applicable to carriers.

The following cases may serve to illustrate the above principles. • A man leaves a chest locked up with another to be kept, and doth not make known to him what is therein; if the chest and goods in it are stolen, the person who received them shall not be charged for the same, for he was not trusted with them. And what is said as to stealing is to be understood of all other inevitable accidents: but it is necessary for a man that receives goods to be kept, to receive them in a special manner, viz. to be kept as his own, or at the peril of the owner. ↑ Lill. Abr. 193, 194. And vile 1 Rol. Abr. 338: 2 Show. pl. 166.

• If I deliver 100l. to A. to buy cattle, and he bestows 50% of it in cattle, and I bring an action of debt for all, I shall be barred in that action for the money bestowed and charges, &c. but for the rest I shall recover. Hob. 207.

• If one deliver his goods to another person, to deliver over to a the deliverer may countermand his power, and require the stranger; goods again; and if the baile refuse to deliver them, he may have an Co. Litt. 286.

action of account for them.

• If A. delivers goods to B. to be delivered over to C. C. hath the property, and C. hath the action against B. for B. undertakes for the safe delivery to C. and hath no property or interest but in order to that purpose. 1 Rol. Abr. 606: see 1 Bulst. 68, 69, where it is said that in case of conversion to his own use the bailee shall be answerable to both.

• But

But if the bailment were not on valuable consideration, the deli very is countermandable; and in that case, if A. the bailor bring trover, he reduces the property again in himself, for the action amounts to a countermand; but if the delivery was on a valuable consideration, then A. cannot have trover, because the property is altered; and in trover the property must be proved in the plaintiff. 1 Bulst. 68: see 1 Leon. 30.

And where a man delivers goods to another to be re-delivered to the deliverer at such a day, and before that day the bailee doth sell the goods in market overt; the bailor may at the day seize and take ́ his goods, for the property is not altered. Godb. 160.

If A. borrows a horse to ride to Dover, and he rides out of his way, and the owner of the horse meets him, he cannot take the horse from him; for A. has a special property in the horse till the journey is determined; and being in lawful possession of the horse, the owner cannot violently seize and take it away; for the continuance of all property is to be taken from the form of the original bargain, which In this case was limited till the appointed journey was finished. Yelv. 172. But the owner may have an action on the case against the bailee for exceeding the purposes of the loan; for so far it is a secret and fallacious abuse of his property; but no general action of trespass, because it is not an open and violent invasion of it. I Rol. 128.

Rep. 13 to borrowing a thing perishable, as corn, wine, or money, or

the like, a man must, from the nature of the thing, have an absolute property in them; otherwise it could not supply the uses for which it was lent; and therefore he is obliged to return something of the same sort, the same in quantity and quality with what is borrowed. Dr. & Stud. 129.

But if one lend a horse, &c. he must have the same restored. If a thing lent for use be used to any other end or purpose than that for which it was borrowed, the party may have his action on the case for it, though the thing be never the worse; and if what is borrowed be lost, although it be not by any negligence of the borrower, as if he be robbed of it; or where the thing is impaired or destroyed by his neglect, admitting that he put it to no more service than that for which borrowed, he must make it good: so where one borrows a horse, and puts him in an old rotten house ready to fall, which falls on and kills him, the borrower must answer for the horse. But if such goods borrowed perish by the act of God, (or rather, as Sir Wm. Jones says it ought more reverentially to be termed, by inevi table accident,) in the right use of them; as where the borrower puts the horse, &c. in a strong house, and it falls and kills him, or it dies by disease, or by default of the owner, the borrower shall not be charged. Inst. 89: 29 Ass. 18: 2 H. 7, 11.

If one delivers a ring to another to keep, and he breaks and converts the same to his own use; or if I deliver my sheep to another to be kept, and he suffers them to be drowned by his negligence; or if the bailee of a horse, or goods, &c. kill or spoil them, in these cases action will lie. 5 Rep. 13: 15 E. 4. 20b: 12 E. 4. 13.

If a man deliver goods to another, the bailee shall have a general action of trespass against a stranger, because he is answerable over to REV. DEC. 1797.

Hh

the

the bailor; for a man ought not to be charged with an injury to ano ther, without being able to retire to the original cause of that injury, and in amends there to do himself right. 13 Co. 69: 14 Hen. 4, 28: 25 H. 7, 14.'

We think that, under this title, the case of Elsee against Gat ward, B. R.H. 33 Geo. 3. 5 T. R. 143. should have been noticed by the editor, as connected with his subject of a naked bailment; it was there decided that, if a party voluntarily, and without a consideration, undertakes to perform work, and proceeds on the employment, he makes himself liable for any misfeazance in the course of that work: but if he undertakes and does not proceed on the work, no action will lie against him for the nonfeazance.

Under the article Bankrupt, a discussion equally useful to professional and to mercantile men, we observe that some later decisions are omitted which might with great propriety have been introduced. Of this description is the case of Smith against Payne, B. R. H. 35 Geo. 3. 6 T. R. 152. in which it was determined that where a creditor, knowing his debtor to be in distressed circumstances, and unable to pay his debt, applied to him in the first instance about two months before his bankruptcy for a security, and took part of his stock in trade for that purpose, this was not an undue preference, though the creditor did not threaten to sue him in case of a refusal. So again the case of Bradley against Clark, B. R. East. 33 Geo. 3. 5 T. R. 197. which decides that assignees, under the stat. 10 Geo. 2. c. 32. may recover money paid by a trader, after a secret act of bankruptcy, to a carrier for the carriage of goods; this statute being strictly confined by the courts to Goods sold, and Bills drawn. The following cases from Mr. H. Blackstone's Reports should also have been inserted under the same head. 1. Brandon against Pate, C. P. E. 34 Geo. 3. 2 H. Bl. 308. which determines that assignees may maintain an action of debt under the stat. 9 Ann. c. 14. for money lost at play by the bankrupt before the bankruptcy. 2. Smith against Coffin, C. P. E. 35 Geo. 3. 2 H. Bl. 444. by which it is decided that the right to bring a real action passes to the assignees by the usual words of a deed of assignment. 3. Lewis against Piercy, C. P. T. 28 Geo. 3. 1 H. Bl. 29. which determines that insuring in the lottery is not gaming within the meaning of the statute 5 Geo. t. c. 24.-Notwithstanding these objections, we consider the title in question as executed in a neat and able manner, giving a comprehensive (though a concise) view of the several topics connected with this extensive subject. In title Executor, V. 9. we find the following passage; "And therefore by this statute (namely the statute of Distributions) the mother as well as the father succeeded to all the personal effects

effects of their children who died intestate, and without wife or issue, in exclusion of the sons and daughters, the brothers and sisters, of the deceased." How could a man, dying without issue, leave sons and daughters to be excluded? The doctrine contained in the same title, VI. 1. 2. is contradicted by the case of Erving against Peters, B. R. T. 30 Geo. 3. 3 T. R. 685. and by Wentworth, p. 184; the only pleas which endanger the defendant in this particular are Ne unques Executor, and payment by, or release to, himself, as being facts within his own knowlege, and absolute bars to plaintiff's action. We are of opinion that the cases of Allen against Dundas, B, R.H. 29 Geo. 3. 3 T. R. 125. and of Farr against Newman, B. R. E. 32 Geo. 3. 4 T. R. 621. should have been cited as leading cases under the title Executor. The first of these cases lays it down that payment of money to an executor, who has obtained probate of a forged will, is a discharge to the debtor of the intestate, notwithstanding the probate be afterward declared null, and administration be granted to the intestate's next of kin; and this decision is in direct opposition to, and totally destroys, the authority of an anonymous case in Comyns's Reports, p. 152. The other case, of Farr against Newman, determined that goods of a testator in the hands of his executor could not be seized in execution of a judgment against the executor in his own right.

Under the head of Will (Estates of) as to the waiver of notice by acceptance of rent, the case of Charter against Cordwent, B. R. E. 35 Geo. 3. 6T. R. 219. deciding that, if a landlord receives rent due after the expiration of a notice to quit, it is a waiver of such notice, should have been introduced as in point. Again, under the title Wills, the case of Jones against Roe, B. R. H. 29 Geo. 3. 3 T. R. 88. by which it is decided that a possibility coupled with an interest is 'devisable, should have been mentioned.

We have been thus minute in our examination of the contents of the present volumes, as far as we could extend that examination, because we conceived that the importance of the publication demanded it. We have, indeed, thus noticed some omissions, but we have had many opportunities of observing the diligence and accuracy of the editor; and of seeing that, if something was neglected, much was performed. As an excuse also for these omissions, Mr. Tomlins may urge what has already been so powerfully and beautifully alleged on a similar occasion by Doctor Johnson:" that a writer will sometimes be hurried by eagerness to the end, and sometimes faint with weariness under a task, which Scaliger compares to the labours of the anvil and the mine; that what is obvious is