mage, not the affumption, is the cause of this action; and, if notice be given by the mandatary, before any damage incurred, and while another perfon may be employed, that he cannot perform the work, no procefs of law can enforce the performance of it.

A cafe in BROOK, made complete from the Year-book, to which he refers, Seems directly in point; for, by chief justice FINEUX, it had been adjudged, that, "if a man affume to build a "houfe for me by a certain day, and do not "build it, and I fuffer damage by his nonfefance, "I fhall have an action on the cafe, as well as if " he had done it amifs:" but it is poffible, that FINEUX might fuppofe a confideration, though none be mentioned*.

Actions on this contract are, indeed, very uncommon, for a reason not extremely flattering to human nature; because it is very uncommon to undertake any office of trouble without compenfation; but, whether the cafe really happened, or the reward, which has actually been ftipulated, was omitted in the declaration, the queftion, "whether a man was refponfible for damage to "certain goods occafioned by his negligence in

performing a GRATUITOUS promise," came before the court, in which lord HOLT prefided, fo lately as the fecond year of queen ANNE; and

*Bro. Abr. tit. Action fur le Cafe, 72,

a point, which the first elements of the Romant law have fo fully decided, that no court of judicature on the continent would fuffer it to be debated, was thought in ENGLAND to deferve, what it certainly received, very great confider

ation*.

The cafe was this: BERNARD had affumed without pay fafely to remove feveral cafks of brandy from one cellar, and lay them down fafely. in another, but managed them fo negligently, that one of the cafks was ftaved. After the general iffue joined, and a verdict for the plaintiff CoGGS, a motion was made in arreft of judgement on the irrelevancy of the declaration, in which it was neither alledged, that the defendant was to have any recompenfe for his pains, nor that he was a common porter: but the court were unanimoufly of opinion, that the action lay; and, as it was thought a matter of great confequence, each of the judges delivered his opinion separately.

The chief juftice, as it has before been intimated, pronounced a clear, methodical, elaborate argument; in which he diftinguished bailments into fix forts, and gave a history of the principal authorities concerning each of them.

* Ld. Raym. 909—920. 1 Salk. 26. Com. 133. Farr.

13. 131. 528.

+ P. 361.

This argument is juftly represented by my learned friend, the annotator on the First Inftitute, as

a most masterly view of the whole subject of “bailment*;” and, if my little work be confidered merely as a commentary on it, the student may perhaps think, that my time and attention have not been unusefully bestowed.

For the decifion of the principal case, it would have been fufficient, I imagine, to infist, that the point was not new, but had already been determined; that the writ in the REGISTER, called, in the strange dialect of our forefathers, De pipá vini cariandát, was not fimilar, but identical; for, had the reward been the essence of the action, it must have been inserted in the writ, and nothing would have been left for the declaration but the stating of the day, the year, and other circumstances; of which RASTELL exhibits a complete example in a writ and declaration for negligently and improvidently planting a quickfet hedge, which the defendant had promised to raife, without any confideration alledged; and iffue was joined on a traverse of the negligence

* Hargr. Co. Litt. 89. b. n. 3. The profeffion must lament the neceflary suspension of this valuable work.

+ Reg. Orig. 110. a. fee alfo 110. b. De equo infirmo fanando, and De columbari reparando.

and improvidence*. How any answer could have been given to these authorities, I am at a lofs even to conceive: but, although it is needless to prove the fame thing twice, yet other authori ties, equally unanswerable, were adduced by the court, and supported with reasons no less cogent; for nothing, faid Mr. Juftice PoWELL emphatically, is law, that is not reafon; a maxim, in theory excellent, but in practice dangerous, as many rules, true in the abftract, are falfe in the concrete; for, fince the reafon of TITIUS may, and frequently does, differ from the reason of SEPTIMIUS, no man, who is not a lawyer, would ever know how to act, and no man, who is a lawyer, would in many inftances know what to advise, unless courts were bound by authority, as firmly as the pagan deities were fuppofed to be bound by the decrees of fate.

Now the reafon affigned by the learned judge for the cafes in the Register and Year-books, which were the fame with COGGS and BERNARD, namely, "that the party's SPECIAL affumpfit and undertaking obliged him so to do "the thing, that the bailor came to no damage by his neglect," seems to intimate, that the omiffion of the words falvò et fecure would have made a difference in this cafe, as in that of a depofit; but I humbly contend, that those words are implied, * Raft. Entr. 13. b.

by the nature of a contract which lies in fefance, agreeably to the diftinction with which I began this article. As judgement, indeed, was to be given on the record merely, it was unnecessary, and might have been improper, to have extended the propofition beyond the point then before the court; but I cannot think, that the narrowness of the propofition in this inftance affects the general doctrine, which I have presumed to lay down; and, in the ftrong cafe of the fhepherd, who had a flock to keep, which he suffered through negligence to be drowned, neither a reward nor a Special undertaking are ftated*: that case, in the opinion of justice TOWNSEND, depended upon the distinction between a bargain executed and executory; but I cannot doubt the relevancy of an action in the fecond cafe, as well as the first, whenever actual damage is occafioned by the nonfefancet.

There feems little neceffity after this, to mention the case of PoWTUARY and WALTON, the reafon of which applies directly to the present fubject; and, though it may be objected that the defendant was stated as a farrier, and must be

* Yearb. 2 Hen. VII. 11.

+ Stath. Abr. tit. Accions fur le cas, pl. 11. By juftice Paston, "fi un ferrour face covenant ove moy de ferrer mon chival, "jeo die qe fil ne ferra mon chival, uncore jeo averai accion "fur mon cas, qar en fon default paraventure mon chival eft "perie."