capable of governing a family, takes of his own

concerns.

9. GROSS neglect is the want of that care, which every man of common fenfe, bow inattentive foever, takes of his own property.

10. SLIGHT neglect is the omission of that diligence, which very circumspect and thoughtful perfons use in fecuring their own goods and chattels.

II. A NAKED CONTRACT is a contract made without confideration or recompenfe.

II. The rules, which may be confidered as axioms flowing from natural reason, good morals, and found policy, are thefe:

1. A bailee, who derives no benefit from his undertaking, is refponfible only for GROSS neglect.

A bailee, who alone receives benefit from the bailment, is refponfible for SLIGHT neglect.

3. When the bailment is beneficial to both parties, the bailee muft anfwer for ORDINARY neglect.

4. A SPECIAL AGREEMENT of any bailee to answer for more or less, is in general valid.

5. ALL bailees are anfwerable for actual FRAUD, even though the contrary be ftipulated. 6. No bailee fhall be charged for a lofs by

inevitable ACCIDENT or irresistible FORCE, except by Special agreement.

7. ROBBERY by force is confidered as irrefiftible; but a lofs by private STEALTH is prefumptive evidence of ordinary neglect.

8. GROSS neglect is a violation of good faith. NO ACTION lies to compel performance of a naked contract.

9.

10. A reparation may be obtained by fuit for every DAMAGE occasioned by an INJURY.

11. The negligence of a SERVANT, acting by his master's exprefs or implied order, is the negligence of the MASTER.

III. From these rules the following propofitions are evidently deducible:

1. A DEPOSITARY is refponfible only for GROSS neglect; or, in other words, for a violation of good faith.

1

2. A DEPOSITARY, whofe character is known to his depofitor, fhall 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 promife of engaging in a DEPOSIT

or a MANDATE.

6. A reparation may be obtained by fuit for DAMAGE Occasioned by the nonperformance of a promife to become a DEPOSITARY or a MAN

DATARY.

7. A BORROWER FOR USE is responsible for SLIGHT negligence.

8. A PAWNEE is anfwerable for ORDINARY neglect.

9. The HIRER of a THING is anfwerable for ORDINARY neglect.

10. A WORKMAN for HIRE muft answer for ORDINARY neglect of the goods bailed, and apply a degree of SKILL equal to his undertaking.

II. A LETTER to HIRE of his CARE and ATTENTION is refponfible for ORDINARY negligence.

12. A CARRIER for HIRE, by land or by water, is answerable for ORDINARY neglect.

IV. To these rules and propofitions there are fome exceptions:

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 ftrong perfuafion and with reluctance, undertake the execution of a

MANDATE, no more can be required of him than a fair exertion of his ability.

3. ALL bailees become responsible for loffes by CASUALTY or VIOLENCE, after their refusal to return the things bailed on a LAWFUL DE

MAND.

4. A BORROWER and a HIRER are anfwerable in ALL EVENTS, if they keep the things borrowed or hired after the ftipulated time, or ufe them differently from their agreement.

5. A DEPOSITARY and a PAWNEE are anfwerable in ALL EVENTS, if they use the things depofited or pawned.

6. An INNKEEPER is chargeable for the goods of his gueft within his inn, if the guest be robbed by the fervants or inmates of the keeper.

7. A COMMON CARRIER, by land or by water, muft 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 refponfible for a

lofs by ACCIDENT or FORCE, however inevi"table or irrefiftible, if it be occafioned by that

degree of negligence, for which the nature of "his contract makes him generally anfwera"ble ;" and I may here conclude my difcuffion of this important title in jurisprudence with a general and obvious remark; that "all the pre

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ceding rules and propofitions may be diversi"fied to infinity by the circumftances of every "particular cafe;" on which circumstances it is on the continent the province of a judge appointed by the fovereign, and in ENGLAND, to our conftant honour and happiness, of a jury freely chosen by the parties, finally to decide: thus, when a painted cartoon, pasted on canvas, had been depofited, and the bailee kept it so near a damp wall, that it peeled and was much injured, the question whether the depofitary "had been guilty of GROSS neglect,” was properly left to the jury, and, on a verdict for the plaintiff, with pretty large damages, the court refused to grant a new trial*; but it was the judge, who determined, that the defendant was by law refponfible for grofs negligence only; and, if it had been proved, that the bailee had kept his own pictures of the fame fort in the fame place and manner, and that they too had been spoiled, a new trial would, I conceive, have been granted; and fo, if no more than SLIGHT neglect had been committed, and the jury had, nevertheless, taken upon themselves to decide against law, that a bailee without reward was responsible for it.

Should the method used in this little tract be approved, I may poffibly not want inclination,

*2 Stra. 1099. Mytton and Cock.