services upon a thing, and locatio operis mercium vehendarum, or the hired carriage of the thing.

(6) Mutuum was the loan of a consumable article to be consumed and returned in kind. Under the common law such a transaction constitutes a sale.

SECTION 4. THE ORIGIN OF THE COMMON LAW SYSTEM OF CLASSIFICATION OF BAILMENTS.

The origin of the common law system of classification of bailments to be found in the seventeenth century in the famous decision in the case of Coggs vs. Bernard.® As this case is the foundation upon which the whole modern law of Bailments has been built up, the report of the case is given in full in the next chapter. • 2 Ld. Raymond, 909.

Vol.V-7.

COGGS VS. BERNARD.

SECTION 5. COGGS VS. BERNARD.1

(Case is given on following pages.)

"In an action upon the case, the plaintiff declared, quo cum Bernard the defendant, the 10th of November, 13 Will., 3, &c., assumpsisset, salvo et secure elevare Anglice, to take up several hogsheads of brandy then in a certain celler in D. et salvo et secure deponere, Anglice to lay them down again in a certain other cellar in Water-lane; the said defendant and his servants and agents, tam negligenter et improvide, put them down. again into the said other cellar, quod per defectum curae ipsius the defendant, his servants and agents, one of the casks was staved, and a great quantity of brandy, viz., so many gallons of Brandy, was spilt. After not guilty pleaded, and a verdict for the plaintiff, there was a motion in arrest of judgment, for that it was not alleged in the declaration of the defendant was a common porter, nor averred that he had anything for his pains. And the case being thought to be a case of great consequence, it was this day argued seriatim by the whole court.

"Gould, J. I think this is a good declaration. The objection that has been made is, because there is not any consideration laid. But I think it is good either way; and that any man that undertakes to carry goods, is liable to an action, be he a common carrier, or whatever he is, if through his neglect they are lost, 1 2 Ld. Raymond, 909.

or come to any damage; and if a premium be laid to be given, then it is without question so. The reason of the action is, the particular trust reposed in the defendant, to which he has concurred by his assumption, and in the executing which he has miscarried by his neglect. But if a man undertakes to build a house, without anything to be had for his pains, an action will not lie for non-performance, because it is nudum pactum. So it is the 3 Hen., 6, 36. So if goods are deposited with a friend and are stolen from him, no action will lie. 29 Ass., 28. But there will be a difference in that case upon the evidence, how the matter appears; if they were stolen by reason of a base neglect in the bailee, the trust will not save him from an action; otherwise if there be no gross neglect. So is Doct. et Stud., 129, upon that difference. The same difference is, where he comes to goods by finding. Doct. et Stud., ubi supra. Ow., 141. But if a man takes upon him expressly to do such a fact safely and securely, if the thing come to any damage by his miscarriage, an action will lie against him. If it be only a general bailment, the bailee will not be chargeable, without a gross neglect. So is Keilw., 160. 2 Hen., 7, 11. 22 Ass., 41. 1 R., 10. Bro. Action, sur le case, 78. Southcote's case is a hard case indeed, to oblige all men that take goods to keep to a special acceptance, that they will keep them as safe as they would their own, which is a thing no man living that is not a lawyer could think of; and indeed it appears by the report of that case in Cro. Eliz., 815, that it was adjudged by two judges only, viz.: Gawdy and Clench. But in 1 Vent., 121, there is a breach assigned upon a bond conditioned to give a true account, that the defendant had not accounted for £30; the defendant

showed that he locked the money up in his master's warehouse, and it was stolen from thence, and that it was held to be a good account. But when a man undertakes especially to do a thing, it is not hard to charge him for his neglect, because he has the goods committed to his custody upon those terms.

"Powys, J., agreed upon the neglect.

"Powell, J. The doubt is because it is not mentioned in the declaration that the defendant had anything for his pains, nor that he was a common porter, which of itself imports a hire and that he is to be paid for his pains. So that the question is, whether an action will lie against a man for doing the office of a friend, when there is not any particular neglect shown? And I hold an action will lie as this case is. And in order to make it out, I shall first show that there are great authorities for me, and none against me; and then secondly: I shall show the reason and gist of this action; and then thirdly, I shall consider Southcote's case.

"Those authorities in the Register, 110 a. b. of the pipe of wine, and the cure of the horse, are in point; and there can be no answer given them, but that they are writs which are framed short. But a writ upon the case must mention everything that is material in the case; and nothing that is to be added to it in the count, but the time and such other circumstances. But even that objection is answered by Rast. Entr., 13, c., where there is a declaration so general. The year-books are full in this point. 43 Edw., 3, 33, a, there is no particular act shown; there, indeed, the weight is laid upon the neglect than the contract. But in 48 Edw., 3, 6, and in 19 Hen., 6, 49, there the action is held to lie upon the undertaking, and that