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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 obstructed by foil and rubbish; and that, Robert informing his neighbour Henry of his intention speedily to clear the ditch, Henry offers and undertakes immediately to remove the obstruction and repair the banks without reward, he having business of the same 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

spoil his corn,” may not Robert maintain his action on the case? Most assuredly; and so in a thousand instances of proper bailments, that might be supposed; where a just reliance on the promise of the defendant prevented the plaintiff from employing another person, and was consequently the cause of the loss, which he sustained* ; for it is, as it ought to be, a general rule, that, for every damnum injuriâ datum, an action of some sort, 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 just maxim of Paulus, Adjuvari nos, non decipi, beneficio oportett: but the special da

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

mage, not the assumption, is the cause of this action; and, if notice be given by the mandatary, before any damage incurred, and while another person may be employed, that he cannot perform the work, no process of law can enforce the

performance of it.

A case 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 assume to build a “ house for me by a certain day, and do not " build it, and I fuffer damage by his nonfe farve, “ I shall have an action on the case, as well as if “ he had done 'it amiss :" but it is possible, that FINeux might suppose a consideration, 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 compensation; but, whether the case really happened, or the reward, which has actually been stipulated, was omitted in the declaration, the question, “ whether a man was responsible for damage to “ certain goods occasioned by his negligence in

performing a GRATUITOus promise,” came before the court, in which lord Holt presided, so lately as the second year

of

queen ANNE; and

* Bro. Abr. tit. Action sur le Cafe, 72, VOL. VI.

сс

a point, which the first elements of the Roman law have so fully decided, that no court of judicature on the continent would suffer it to be debated, was thought in ENGLAND to deserve, what it certainly received, very great consideration*

The case was this: BERNARD had assumed without pay safely to remove several casks of brandy from one cellar, and lay them down safely. in another, but managed them fo negligently, that one of the casks "was staved. After the general issue joined, and a verdiet for the plaintiff Coggs, a motion was made in arrest of judgement on the irrelevancy of the declaration, in which it was neither alledged, 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, as it was thought a matter of great consequence, each of the judges delivered his opinion separately.

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

1

1 Salk. 26. Com. 133. Farr.

! * Ld. Raym. 909–920.
13. 131. 528.

+ P. 361.

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This argument is justly represented by my learned friend, the annotator on the First Institute, as

a most masterly view of the whole subject of “ bailment* ;” and, if my

little work be considered merely as a commentary on it, the student may perhaps think, that my time and attention have not been unusefully bestowed.

For the decision of the principal case, it would have been sufficient, I imagine, to insist, 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 cariandá-t, was not similar, 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 quickset bedge, which the defendant had promised to raise, without any consideration alledged; and ifsue was joined on a traverse of the negligence

*

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

+ Reg. Orig. 110. a. see also 110. b. De equo infirmo fa. nando, 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 same thing twice, yet other authorities, equally unanswerable, were adduced by the court, and supported with reasons no less cogent; for nothing, faid Mr. Justice Powell emphatically, is law, that is not reason; a maxim, in theory excellent, but in practice dangerous, as many rules, true in the abstract, are false in the concrete; for, since 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 instances know what to advise, unless courts were bound by authority, as firmly as the pagan deities were supposed to be bound by the decrees of fate.

Now the reason assigned by the learned judge for the cases in the Register and Year-books, which were the same with COGGS and BERNARD, namely, “that the party's SPECIAL af

fumpfit and undertaking obliged him fo to do " the thing, that the bailor came to no damage by his neglect,” seems to intimate, that the omission of the words salvò et secure would have made a difference in this case, as in that of a deposit; but I humbly contend, that those words are implied,

* Raft. Entr. 13. b.

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