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upon which the other two brought an action, but were nonsuited on their own evidence, that there was a third bailor, whom they had not joined in the suit; for, the truth not being proved, DEMOSTHENES insisted, that his client could not legally restore the deposit, unless all three proprietors were ready to receive it; and this doctrine was good at Rome as well as at Athens, when the thing deposited was in its nature incapable of partition : it is also law, I apprehend, in Westminster-hall*.
The obligation to return a deposit faithfully was, in very early times, holden facred by the Greeks, as we learn from the story of GLAUCUS, who, on consulting the oracle, received this anfwer « that it was criminal even to barbour a
thought of with-holding deposited goods from " the owners, who claimed themt;” and a fine application of this universal law is made by an Arabian poet contemporary with JUSTINIAN, who remarks,“ that life and wealth are only
deposited with us by our creator, and, like all os otber deposits, muft in due time be restored.'
II. Employment by COMMISSION was also known to our ancient lawyers; and BRACTON, the best writer of them all, expresses it by the Roman
* D. 16. 3. 1. 36. Bro. Abr. tit. Bailment, pl. 4. + Herod. VI. 86. Juv. Sat. XIII. 199.
word, Mandatum; now, as the very essence of this contract is the gratuitous performance of it by the bailce, and as the term commission is also pretty generally applied to bailees, who receive bire or compensation for their attention and trouble, I shall not scruple to adopt the word MANDATE as appropriated in a limited sense to the species of bailment now before us; nor will any confusion arise from the common acceptation of the word in the sense of a judicial command or precept, which is in truth only a secondary and inaccurate usage of it. The great distinction then between one fort of mandate and a deposit is, that the former lies in fefance, and the latter, fimply in custody: whence, as we have already intimated, a difference often arises between the degrees of care demanded in the one contract and in the other; for, the mandatary being confidered as having engaged himself, to use a degree of diligence and attention adequate to the performance of bis undertaking, the omission of such diligence may be, according to the nature of the business, either ordinary, or Night, neglect; although a bailee of this species ought regularly to be anfwerable only for a violation of good faith. This is the common doctrine taken from the law of ULPIAN; but there seems, in reality, to be no exception in the present case from the general rule; for, since good faith itself
obliges every man to perform bis actual
engagements, it of course obliges the mandatary to exert himself in proportion to the exigence of the affair in hand, and neither to do any thing, how minute soever, by which his employer may sustain damage, nor omit any thing, however inconsiderable, which the nature of the act requires * : nor will a want of ability to perform the contract be any defence for the contracting party; for, though the law exacts no impossible things, yet it may justly require, that every man shall know his own strength, before he undertakes to do an act, and that, if he delude another by false pretensions to skill, he shall be responsible for any injury, that may be occasioned by such delusion. If, indeed, an unskilful man yield to the pressing instances of his friend, who could not otherwise have his work performed, and engage reluctantly in the business, no higher degree of diligence can be demanded of him than a fair exertion of his capacity.
It is almost needless to add, that a mandatary, as well as a depositary, may bind himself by a Special agreement to be answerable even for casualties; but that neither the one nor the other can exempt himself by any ftipulation from responsibility for fraud, or, its equivalent, gross neglet.
• Lord Raym. 910.
A distinction seems very early to have been made in our law between the nonfesance, and the misfesance, of a conductor operis, and, by equal reafon, of a mandatary; or, in other words, between a total failure of performing an executory undertaking and a culpable neglect in executing it; for, when an action on the case was brought against a carpenter, who, having undertaken to build a new house for the plaintiff within a certain time, had not built it, the court gave judgment of nonsuit; but agreed, that, if the defendant had built the house negligently and spoiled the timber, an action against him would have been maintainable*. However, in a subsequent reign, when a similar action was commenced against one WATKINS for not building a mill according to his undertaking, there was a long conversation between the judges and the bar, which chief justice BABINGTON at length interrupted by ordering the defendant's counsel either to plead or to demur; but serjeant Rolf chose to plead specially, and issue was taken on a difcharge of the agreement. f Justice MARTIN objected to the action, because no tort was alledged; and he persisted warmly in his opinion,
* Yearb. 11. Hen. IV. 33.
+ Yearb. 3. Hen. VI. 36. b. 37. a. Accions sur le cas, pl. 20.
Stath. Abr. tit.
which seems not wholly irreconcilable to that of his two brethren; for in the cases, which they put, a special injury was supposed to be occafioned by the non-performance of the contrac.
Authority and reason both convince me, that MARTIN, into whose opinion the reporter recommends an inquiry, was wrong in his objection, if he meaned, as justice COKAIN and the chief justice seem to have understood him, that no such action would lie for nonfesance, even though special damage bad been stated. His argument was, that the action before them founded in covenant' merely, and required a specialty to support it; but that, if the covenant had been changed into a tort, a good writ of trespass on the case might have been maintained: he gave, indeed, an example of misfesance, but did not controvert the instances, which were given by the other judges.
It was not alledged in either of the cases just cited, that the defendant was to receive pay for the fefance of his work; but, fince both defendants were described as actually in trade, it was not perhaps intended, that they were to work for nothing : I cannot however persuade myself, that there would have been any difference, had the promises been purely gratuitous, and had a special injury been caused by the breach of them. Suppose, for instance, that Robert's corn-fields are sur