1 Jenkins v. Bacon, 111 Mass. 373, decided that a gratuitous bailee who bought a bond at the plaintiffs request, which he was to keep for him and collect the coupons for the benefit of the plaintiffs wife, and who subsequently sent the bond to the wife without her or the plaintiffs authority, was liable for its loss without regard to the question of diligence or negligence on his part Morton, J. dissented, relying on Heugh v. London, etc. Co. L. R. 5 Ex. 51, on the ground that it was for the jury to say whether under the circumstances the bailee was negligent in undertaking to send, or in the mode of sending, the bond. - That whether a gratuitous bailee has been guilty of gross negligence is a question of fact, not of law, see Carrington v. Ficklin, 32 Gratt. 670. See also Kowing v. Manly, 49 N. Y. 192.

But although it thus appears that gratuitous bailees may be made liable ex contractu, if they have not performed their contract, it is obvious that they may also be made liable ex delicto, if they have committed a tort upon the property intrusted to them. And it is in reference to their liability ex delicto that the distinction, which has occasioned so much discussion in it at the custom-house for exportation; that the defendant did not enter it under a right denomination, but, on the contrary, made an entry of it under a wrong denomination, by means whereof, etc. If there can be any possible doubt whether this count is wholly in assumpsit, it may be observed, that it was joined with a count for goods sold and delivered, and a count on a quantum meruit. In the case of Whitehead v. Greetham, McClel. & Y. 205, in the Exchequer Chamber, the declaration stated, that whereas the plaintiff, at the special instance and request of the defendant, retained and employed the defendant to lay out a certain sum of money for the plaintiff, in the purchase of an annuity, to be well and sufficiently secured, he the said defendant undertook to use due and sufficient care to lay out the said sum of money in the purchase of an annuity, the payment whereof should be well and sufficiently secured; and the said plaintiff in fact saith, etc. Judgment having been given for the plaintiff in the King's Bench, a writ of error was brought, and the error relied on was, that no sufficient consideration appeared on the face of the declaration. The ground relied on, however, by Tindal, for the plaintiff in error, was, not that the intrusting the defendant with the money was not a sufficient consideration, but that it did not sufficiently appear from the declaration that that was the consideration of the defendant's promise. He said: "It was essential to the establishment of his case that the moving cause of the defendant's promise was the plaintiff's having intrusted him with this money to lay out, and there is nothing in the count in question to show that." Sed non allocatur, for per Best, C. J., delivering the judgment of the court: "The count has averred that the plaintiff, at the defendant's request, retained the defendant to lay out a sum of money in the purchase of an annuity, and delivered him £700 for that purpose; and that the defendant undertook, and faithfully promised the plaintiff to use due and sufficient care to advance and lay out that money in the purchase of an annuity, the payment whereof should be well and sufciently secured. Coggs v. Bernard decides, that the mere delivery of the article is abundant consideration. There the consideration was the delivery of brandy. The same consideration exists here, because money was delivered. It is said it does not appear that the delivery was the consideration of the defendant's promise. But the money was delivered by the plaintiff's hand to the defendant, which, in law, raises a responsibility in the defendant for its application; and when that fact is found by the jury, and that immediately after a promise was made by the defendant to the plaintiff, must it not be taken that the promise was in consideration of the delivery? "The case of Doorman v. Jenkins, 2 A. & E. 250, is equally in point. That was an action of assumpsit, and the declaration was very similar to those that we have already considered, and no objection taken to it. See also Shillibeer v. Glyn, 2 M. & W. 143; Rutgers v. Lucet, 2 Johns. Cas. 92; Robinson v. Threadgill, 13 Ired. L. 30. And see ante, vol. i. p. ; Eddy v. Livingston, 85 Mo. 487; Delaware Bank v. Smith, 1 Edm. Sel. Cas. 351.

It is very difficult to understand how a man can become liable ex contractu for not completing a work which he has begun, when he was under no legal obligation to begin it. But when we consider the distinction between non-feasance and misfeasance in reference to liability in tort, it becomes very intelligible. (e) The

(e) The position which we have endeavored to maintain, that the distinction between misfeasance and non-feasance has exclusive reference to liability sounding in tort, is fully supported by the case of Benden v. Manning, 2 N. H. 289. It was an action of assumpsit against a tailor for making a coat in an unskilful and improper manner, which he had contracted to make in a skilful and proper manner. The consideration for the promise laid in the declaration was a certain sum of money in that behalf paid. At the trial, the defendant objected that there was no evidence to prove the consideration so laid. The court instructed the jury that the evidence, if believed, was sufficient to prove the consideration alleged, and the jury having returned a verdict for the plaintiff, the defendant filed a bill of exceptions, and brought a writ of error. And the court having decided that there was no evidence to prove the consideration alleged, the defendant in error contended that the action might be supported on the ground of a misfeasance. But Richardson, C. J., said: "It has been contended on the part of the defendant in error that this action is brought to recover damages, not for a mere non-feasance, but for a misfeasance, and therefore it was unnecessary to allege or prove a consideration. It is very clear that no man can be liable for the mere non-performance of a promise made without consideration; of course, when an action is brought to recover damages for the non-performance of a contract, a consideration must be alleged and proved. But when one man does another an injury, by unskilfully and improperly doing what he had promised to do, an action may be maintained to recover the damage, although there was no consideration for the promise. The reason of this distinction is very obvious, but it is a distinction that cannot avail the defendant in error. His action was assumpsit, founded upon the breach of certain promises alleged to have been made upon certain considerations. The very gist of the action was the breach of a valid contract. But, if the promises were made without consideration, they were mere nuda pacta, and no action could be maintained upon them. And if the consideration alleged were not proved, the action was not supported. But if, instead of assumpsit, a special action upon the case had been brought for misfeasance, it is very clear that no consideration need have been alleged or proved. The gist of such an action would have been the misfeasance, and it would have been wholly immaterial whether the contract was a valid one or not." See also Elsee v. Gatward, 6 T. R. 143, which substantially recognizes the same distinction. - if our positions are correct, it follows, that in all cases of proper mandate, that is, where property is intrusted, the bailor may have two remedies for any injury done him by the bailee. He may have an action of assumpsit for a breach of contract on the part of the bailee; or if the conduct of the bailee amounts to an actionable tort, the bailor may waive the contract, and bring an action sounding