that judgment was afterward reversed; and, according to that reversal, there was judgment afterwards entered for the defendant in the like case. Yelv., 128. But those cases were grumbled at; and the reversal of that judgment in Yelv., 4, was said by the judges to be a bad resolution; and the contrary to that reversal was afterwards most solemnly adjudged in 2 Cro., 667., Tr., 21, Jac., 1, in the King's bench, and that judgment affirmed upon a writ of error. And yet there is no benefit to the defendant, nor no consideration in that case, but the having the money in his possession, and being trusted with it, and yet that was held to be a good consideration. And so a bare being trusted with another man's goods must be taken to be a sufficient consideration, if the bailee once enter upon the trust, and take the goods into his possession. The declaration in the case of Mors vs. Slew, was drawn by the greatest drawer in England in that time; and in that declaration, as it was always in such cases, it was thought most prudent to put in, that a reward was to be paid for the carriage. And so it has been usual to put it in the writ, where the suit is by original. I have said thus much in this case because it is of great consequence that the law should be settled in this point; but I do not know whether I may have settled it, or may not rather have unsettled it. But however that happen, I have stirred these points, which wiser heads in time may settle. And judgment was given for the plaintiff."

SECTION 6. COMMENT ON DECISION IN COGGS VS. BERNARD.

The following comments on the case of Coggs vs. Bernard are selected from the note to this case to Smith's Leading Cases:

The case of Coggs vs. Bernard, is one of the most celebrated ever decided in Westminster Hall, and justly so, since the elaborate judgment of Lord Holt contains the first well-ordered exposition of the English law of bailments. The point which the decision directly involves, viz., that if a man undertake to carry goods safely, he is responsible for damage sustained by them in the carriage through his neglect, though he was not a common carrier and was to have nothing for the carriage, is now clear law, and forms part of a general proposition in the law of principal and agent, which may be stated in the following words, viz.: The confidence induced by undertaking any service for another is a sufficient legal consideration to create a duty in the performance of it. And this proposition includes cases stronger than that reported in the text. For there Bernard had undertaken to lay the goods down safely, whereby he introduced a special term into his contract; for it will be seen from the judgments, particularly Lord Holt's, that notwithstanding what was said by Lord Coke in Southcote's case, there is a difference between the effect of a gratuitous undertaking to keep or carry goods, and a gratuitous undertaking to keep or carry them safely. But, under the rule just laid down, a gratuitous and voluntary agent who has given no special undertaking, though the degree of his responsibility is greatly inferior to that of a hired agent, is yet bound not to be guilty of gross negligence. This proposition is affirmed by several recent cases. In Wilkinson vs. Coverdale, 1 Esp., 74, it was alleged that the defendant had undertaken gratuitously to get a fire-policy renewed for the plaintiff, but had, in doing so, neglected certain formalities, the omission of which rendered the policy inoperative.

Upon its being doubted at Nisi Prius whether an action would lie under these circumstances, Erskine cited a MS. note of Mr. J. Buller in Wallace vs. Telfair, wherein that judge had ruled, under similar circumstances, that though there was no consideration for one party's undertaking to procure an insurance for another, yet, where a party voluntarily undertook to do it, and proceeded to carry his undertaking into effect by getting a policy underwritten, but did it so negligently or unskilfully that the party could derive no benefit from it, in that case he should be liable to an action; in which distinction Lord Kenyon acquiesced. So in Beauchamp vs. Powley, 1 M. & Rob., 38, where the defendant, a stage-coachman, received a parcel to carry gratis, and it was lost upon the road, Lord Tenterden directed the jury to consider whether there was great negligence on the part of the defendant, and the jury thinking that there was, found a verdict against him. So, too, in Doorman vs. Jenkins, 2 Adol. & Ell., 256, in assumpsit against the defendant, as bailee of money entrusted to him to keep without reward, it was proved that he had given the following account of its loss, viz.: that he was a coffee-house keeper, and had placed the money in his cash-box in the tap room, which had a bar in it, and was open on Sunday, though the other parts of his house were not, and out of which the cash-box was stolen upon a Sunday. The Lord Chief Justice told the jury that it did not follow, from the defendant's having lost his own money at the same time as the plaintiff's, that he had taken such care of the plaintiff's money as a reasonable man would ordinarily take of his own; and he added, that the fact afforded no answer to the action, if they believed that the loss occurred from gross

negligence. The jury having found a verdict for the plaintiff, the court refused to set it aside.

It is clear, from the above decisions, that a gratuitous bailee or other agent is chargeable when he has been guilty of gross negligence; and it is equally clear, both from the words of the judges in several of the above cited cases, and also from express decisions, that for no other kind of negligence will he be liable, except in the single case which shall by and by be specified. In Doorman vs. Jenkins, Patteson, J., says: "It is agreed on all hands that the defendant is not liable, unless he has been guilty of gross negligence." "The counsel,' says Taunton, J., "properly admitted, that as this bailment was for the benefit of the bailor, and no remuneration was given to the bailee, the action could not be maintainable except in the case of gross negligence." In Shields vs. Blackburne, 1 H. Bl., 158, the defendant having received orders from his correspondent in Madeira to send a quantity of cut leather thither, employed Goodwin to execute the order. Goodwin accordingly prepared it, and sent it, along with a case of leather of the same description belonging to himself, to the defendant, who, to save the expense of two entries, voluntarily and without compensation, by agreement with Goodwin, made one entry of both cases, but entered them by mistake as wrought leather, instead of dressed leather, in consequence of which mistake the cases were both seized; and an action having been brought by the assignees of Goodwin, who had become bankrupt, against the defendant, to recover compensation for the loss, the general issue was pleaded, and there was a verdict for the plaintiff, which the court set aside, and granted a new trial, upon the ground that

the defendant was not guilty either of gross negligence or fraud. This case was much remarked upon in Doorman vs. Jenkins, which it resembled in the circumstances that the bailee in each case lost property of his own along with that which had been entrusted to him. "The case of Shields vs. Blackburne," says Taunton, J., "created at first some degree of doubt in our minds. It was said that the court in that case treated the question as a matter of law, and set aside the verdict, because the thing charged, viz., the false description of the leather in the entry, did not amount to gross negligence, and therefore the jury had mistaken the law. I do not view the case in that light. The jury there found that in fact the defendant had been guilty of negligence, but the court thought they had drawn a wrong conclusion as to that fact." In Dartnall vs. Howard, 4 B. & C., 345, the declaration stated, that in consideration that the plaintiff, at the request of the defendants, would employ them to lay out 1,400£ in purchasing an annuity, the defendants promised to perform and fulfill their duty in the premises, and that they did not perform and fulfill their duty, but, on the contrary, laid out the money in the purchase of an annuity on the personal security of H. M. Goold and Lord Athenry, who were both in insolvent circumstances. The court, after verdict, arrested the judgment upon the ground that the defendants appeared to be gratuitous agents, and it was not averred that they had acted either with negligence or dishonesty. See, also, Bourne vs. Diggles, 2 Chitt., 311; and Moore vs. Mogue, Cowp., 480.

From the two classes of cases just enumerated, it is plain that an unpaid agent is liable for gross negligence, and equally plain that he is liable for nothing