When the commission is gratuitous, there also the transaction is for the exclusive benefit of the bailor, and the bailee is held only for gross negligence. In deposit the safe-keeping is the principal matter; in mandate, the work to be done with or about the thing. Hence the first is said to lie in custody, the second in feasance.

The cases are not very numerous either as to deposit or mandate. Perhaps because both are gratuitous; and it is not often that persons undertake to do anything of importance for another without compensation.

The name mandatum was first used in England by Bracton, who borrowed it from the civil law; afterwards the word commission was commonly used; but in recent times this is generally applied to dealings with factors, brokers, etc., for compensation, or to the compensation itself; and Sir William Jones returned to Bracton's word, which has since been generally used.

It is an important and difficult question, what is the ground of the obligation of any party, who undertakes gratuitously to do any thing in relation to any goods. Sir William Jones says he is bound to do, and is responsible for not doing. (a) But an examination of the cases would lead to a distinction not always regarded. If one has property intrusted to him, in order that he may do something in or about or with that property, if he accepts the property and the trust, this is a contract on a consideration; and he is liable in an action ex contractu for any failure in the discharge of his obligation. But if one be requested to do something in relation to certain property, which * is not put into his possession, nor any consideration paid him, although he undertake to do what is requested, he is under no obligation;

(a) Jones on Bailm. 66. He borrows this principle from the civil law. By that law he might accept or refute a mandate; but having accepted, must perform. "Liberum est, mandatum non tuscipere. Si stuceptum non impleverit, tenetur. Quod mandatum susceperit, tenetur, etsi non gessisset." Balfe v. West, 22 E L. & E. 506; 8. 0.18 C. B. 466.

there is no contract, because no consideration. He is therefore not liable for not doing; but if he begins to do, that is, enters upon the execution of his agency (for it is that rather than a mandate at common law), and then fails to do what he undertakes to do, he is liable for malfeasance; but only in an action ex delicto, and not ex contractu. (b) l The case of Thorne v. Deas, (c) in fact, rests upon this distinction, and is therefore properly decided; but it is treated as a case of mandate, and an elaborate examination of authorities leads the learned court to the rule that no mandatary is liable, unless he, in addition to his acceptance of the property and the trust, enters upon an execution of it, and then fails therein. This rule, as applicable to the mandatary properly so called, admits much doubt, although we acknowledge that the question is encumbered with some difficulties.

It has indeed been very strenuously insisted upon in several instances, by able and learned writers, that mandates and deposits are not contracts; and that the liability of bailees of this class rests wholly upon the ground of tort. If this were to be taken as the true rule of law, it might occasion serious inconvenience. For it is doubtful whether gratuitous bailees could be made liable in tort in several cases to which it has generally been supposed that their liability extended. But we think there is no insuperable objection to considering mandates and deposits as contracts, and enforcing the obligations arising out of them by the action of assumpsit. It is obvious that the only objection to so considering them is the alleged want of a sufficient consideration. But we regard it as well settled by the authorities, that the delivery and acceptance of the goods constitute a sufficient consideration. (d) Nor do we regard it as * an unreasonable our books, between non-feasance and misfeasance becomes important. It seems sometimes to have been supposed that this distinction has reference to their liability ex contractu; that a mandatary does not incur any obligation ex contractu until he enters upon the execution of his trust, but that he does incur such obligation when he enters upon the trust, and fails to go through with it or does it badly; and that if the mere delivery of the goods imposes such obligation, it is not on the ground that such delivery with the acceptance constitutes a good consideration, but on the ground that it amounts to a part execution of the trust. This, however, we must regard as erroneous.

(b) Wilkinson v. Coverdale, 1 Esp. 74; French v. Reed, 6 Binn. 308; Seller v. Work, 1 Marsh, on Ins. 209.

(c) 4 Johns. 84. See infra, p. • 103, note (f).

(d) This was adjudged for the first time, we believe, in the King's Bench, in 44 Eliz. in the case of Riches v. Brigges, Yelv. 4; s. c. Cro. E. 883. In that case the plaintiff declared, that in consideration of having delivered to the defendant twenty quarters of wheat, the defendant doctrine upon principle. It is true that the bailee does not ordinarily derive any benefit from such a transaction; * but promised upon request to deliver the same wheat again to the plaintiff. And this was adjudged, on a motion in arrest of judgment, to be a good consideration. But the case is said to have been afterwards reversed in the Exchequer Chamber. The same point arose again in 2 Jac., in the case of Game v. Harvie, Yelv. 60, and in 6 Jac. in the case of Pickas v. Guile, Yelv. 128. In both of these cases, the Court of King's Bench followed the decision of the Exchequer Chamber, reversing Riches v. Brigges, but at the same time said that that case was erroneously reversed. Afterwards, in 21 Jac, the same point arose again in the case of Wheatley v. Low, Cro. J. 668. In this case the plaintiff declared, that whereas he was obliged to J. S. in forty pounds for the payment of twenty pounds; and the bond being forfeited, he delivered ten pounds to the defendant, to the intent he should pay it to J. S. in part of payment sine ulla mora; that in consideration thereof the defendant assumed, etc. The defendant pleaded non-assumpsit, and a verdict having been found for the plaintiff, it was moved in arrest of judgment that this was not any consideration, because it was not alleged that he delivered it to the defendant upon his request; and the acceptance of it to deliver to another sine mora could not be any benefit to the defendant to charge him with this promise, Sed non allocatur; for, since he accepted this money to deliver, and promised to deliver it, it was a good consideration to charge him. This judgment was affirmed in the Exchequer Chamber on a writ of error. This case was sanctioned to the fullest extent by Lord Holt, in Coggs v. Bernard. He there says: "There has been a question made; if I deliver goods to A, and in consideration thereof he promises to redeliver them, if an action will lie for not redelivering them; and in Yelv. 4, judgment was given that the action would lie. But that judgment was afterwards 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. 067, 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" Wheatley v. Low, has always been considered as good law from that time to this. We are not aware that any adjudged case has cast any doubt upon it, at least so far as the point in question is concerned. On the other hand, there are numerous cases in which assumpsit has been sustained on no other consideration than what existed in that case. Thus, in the case of Shiells, assignee of Goodwin v. Blackburne, 1 H. Bl. 158, the defendant, who was a general merchant in London, having received orders from his correspondent in Madeira to send thither a quantity of leather cut out for shoes and boots, employed Goodwin, the bankrupt, who was a shoemaker, to execute the order. Goodwin accordingly prepared the leather for the defendant, and at the same time prepared another parcel of the same kind of leather on his own account, which he packed in a separate case, to be sent to Madeira on a venture, requesting the recommendation of the defendant to his correspondents in the sale of it. The two cases were sent to the defendant's house, with bills of parcels; and he, to save the expense and trouble of a double entry at the custom-house, voluntarily and without any compensation, by agreement with Goodwin, made one entry of both the cases, but did it under the denomination of wrought leather, instead of dressed leather, which it ought to have been. In consequence of this mistake, both cases were seized, and this action was brought by the assignees of Goodwin, to recover the value of the leather which he had prepared on his own account The first count in the declaration stated, that the bankrupt before his bankruptcy was possessed of a quantity of leather, which he designed to export to the island of Madeira, for which purpose it was necessary that a proper entry of it should be made at the custom-house; that the defendant, in consideration that the bankrupt would permit him to enter the said leather at the custom-house, undertook to enter it under a right denomination; that the bankrupt, confiding in the undertaking of the defendant, did permit him to enter this is not necessary in order to constitute a good consideration. It is sufficient, if an injury accrues or may accrue to the bailor, or if he parts with a present right. That such is the case, it would seem that there could be no doubt. He intrusts his goods to the bailee, and thereby renders them liable to be lost or injured. He parts with his present control over them, and perhaps renders himself unable to give the trust to any one else, or to execute it himself.