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word, Mandatum; now, as the very effence of this contract is the gratuitous performance of it by the bailce, and as the term commission is alfo pretty generally applied to bailees, who receive bire or compenfation for their attention and trouble, I shall not fcruple to adopt the word MANDATE as appropriated in a limited fenfe to the fpecies of bailment now before us; nor will any confufion arise from the common acceptation of the word in the fenfe of a judicial command or precept, which is in truth only a fecondary and inaccurate ufage of it. The great diftinction then between one fort of mandate and a depofit is, that the former lies in fefance, and the latter, fimply in cuftody: whence, as we have already intimated, a difference often arifes between the degrees of care demanded in the one contract and in the other; for, the mandatary being confidered as having engaged himself, to ufe a degree of diligence and attention adequate to the performance of his undertaking, the omiffion of fuch diligence may be, according to the nature of the business, either ordinary, or flight, 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 feems, in reality, to be no exception in the prefent cafe from the general rule; for, fince good faith itself

obliges every man to perform his 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 foever, by which his employer may fuftain damage, nor omit any thing, however inconfiderable, 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 impoffible things, yet it may juftly require, that every man fhall know his own ftrength, before he undertakes to do an act, and that, if he delude another by false pretenfions to skill, he shall be responsible for any injury, that may be occafioned by fuch delufion. If, indeed, an unfkilful man yield to the preffing inftances of his friend, who could not otherwise have his work performed, and engage reluctantly in the bufinefs, no higher degree of diligence can be demanded of him than a fair exertion of his capacity.

It is almost needlefs to add, that a mandatary, as well as a depositary, may bind himself by a Special agreement to be anfwerable even for cafualties; but that neither the one nor the other can exempt himself by any ftipulation from responsibility for fraud, or, its equivalent, grofs neglect.

Lord Raym. 910.

A diftinction feems very early to have been made in our law between the nonfefance, and the misfefance, 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 cafe 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 nonfuit; 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 fubfequent reign, when a fimilar action was commenced against one WATKINS for not building a mill according to his undertaking, there was a long converfation between the judges and the bar, which chief justice BABINGTON at length interrupted by ordering the defendant's counfel either to plead or to demur; but ferjeant ROLF chose to plead specially, and iffue was taken on a difcharge of the agreement. Juftice MARTIN objected to the action, becaufe no tort was alledged; and he perfifted warmly in his opinion,

* Yearb. 11. Hen. IV. 33.

+Yearb. 3. Hen. VI. 36. b. 37. a. Stath. Abr. tit. Accions fur le cas, pl. 20.

which feems not wholly irreconcilable to that of his two brethren; for in the cafes, which they put, a fpecial injury was fuppofed to be occafioned by the non-performance of the contract.

Authority and reafon both convince me, that MARTIN, into whofe opinion the reporter recommends an inquiry, was wrong in his objection, if he meaned, as juftice COKAIN and the chief juftice feem to have understood him, that no fuch action would lie for nonfefance, even though Special damage had been stated. His argument was, that the action before them founded in covenant merely, and required a specialty to fupport it; but that, if the covenant had been changed into a tort, a good writ of trefpafs on the cafe might have been maintained: he gave, indeed, an example of misfefance, but did not controvert the instances, which were given by the other judges.

It was not alledged in either of the cases juft cited, that the defendant was to receive pay for the fefance of his work; but, fince both defendants were defcribed as actually in trade, it was not perhaps intended, that they were to work for nothing: I cannot however perfuade myself, that there would have been any difference, had the promifes been purely gratuitous, and had a special injury been caufed by the breach of them. Suppofe, for inftance, that Robert's corn-fields are fur

rounded by a ditch or trench, in which the water from a certain spring used to have a free course, but which has of late been obftructed by foil and rubbish; and that, Robert informing his neighbour Henry of his intention fpeedily to clear the ditch, Henry offers and undertakes immediately to remove the obftruction and repair the banks without reward, he having business of the fame kind to perform on his own grounds: if, in this case, Henry neglect to do the work undertaken," and the water, not having its na"tural course, overflow the fields of Robert and "fpoil his corn," may not Robert maintain his action on the cafe? Moft affuredly; and fo in a thousand inftances of proper bailments, that might be fuppofed; where a just reliance on the promise of the defendant prevented the plaintiff from employing another person, and was confequently the cause of the loss, which he fuftained*; for it is, as it ought to be, a general rule, that, for every damnum injuria datum, an action of fome fort, which it is the province of the pleader to advise, may be maintained; and, although the gratuitous performance of an act be a benefit conferred, yet, according to the juft maxim of PAULUS, Adjuvari nos, non decipi, beneficio oportet: but the special da

*Yearb. 19. Hen. VI. 49.
+ D. 13. 6. 17. 3.

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