That the plaintiff would forbear further proceedings; an action having been brought upon this promise, the defendant pleaded that the plaintiff never had any cause of action against the defendant in respect of the subject-matter of the said action. "To that," said Tindal, C. J., in giving judgment, "the plaintiff has demurred, and, doing so, admits the statement contained in it, that he had no cause of action in the original suit, to be true. Having made that admission, it appears to me that he is estopped from saying that there was any valid consideration for the defendant's promise. It is almost contra bonos mores, and certainly against all legal principle, that when a man knows that he has no cause for it, he should still persist in prosecuting an action. Then, in order to establish a binding promise, the plaintiff must show a consideration for it, consisting of something which is either beneficial to the defendant or detrimental to the plaintiff. It cannot, however, be said that the foregoing of such an action can be regarded by a Court as beneficial to the defendant, because he *thereby saves the risk of defeat, and the extra costs which he would necessarily incur in his defence; for we must assume that the result of the action would have been in his favour, and the law would enable him to recover costs, which it regards as a compensation for all the costs the defendant sustains. Neither can the foregoing of the action be regarded as detrimental to the plaintiff, for we can only view it as saving him from the payment of those costs. The consideration, therefore, fails upon both grounds."
Again it has been decided, that, if I entrust a man to do some act for me, although I am to pay him nothing for performing it, still the mere trust which I repose in him is a consideration for a promise on his part to conduct himself faithfully in the performance of it (I). Nay, so far do the cases on this subject go, that it is settled that not only is the reposal of such trust a sufficient consideration for an express promise on the part of the person in whom it is reposed to conduct himself faithfully in the performance of it; but the law, even in the absence of an express promise, implies one that he will not be guilty of gross negligence. This was the point decided in the famous case of Coggs v. Bernard (m).
*In this case Bernard had undertaken safely and securely to take up several hogsheads of brandy from one cellar, and safely and securely to lay them down again in another; and he was held bound by that undertaking, and responsible for damage sustained by them in the removal. The reason is, said Mr. Justice Gould, the particular trust reposed in the defendant, to which he has concurred by his assumption, and in executing which he has miscarried by his neglect. If goods are deposited with a friend, and are stolen from him no action will lie. But there will be a difference in that case upon the evidence how the matter appears. If they are stolen by reason of a gross neglect in the bailee, the trust will not save him from an action; otherwise, if there be no gross neglect. But, if a man takes upon him expressly to do such an act safely and securely, if the thing comes to any damage by his miscarriage, an action will lie against him.
And on this point of the law it is that the celebrated distinction occurs between remunerated and unremuner-ated agents; from the former of whom the law implies a promise, that they will act with reasonable diligence; from the latter, only that they will not be guilty of gross negligence. Thus, where 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 coachman's part (n). And where the declaration stated that, in consideration that the plaintiff, at the defendant's request, would employ him to lay out £1400 on the purchase of an annuity, the defendant promised to perform his duty in the premises, yet did not do so, but laid it out in the purchase of an annuity on the personal security of insolvent persons, the Court arrested the judgment, on the ground that the defendant was an unremunerated agent, and was not charged with having acted negligently or dishonestly (o). There is another equally remarkable distinction, namely, that a remunerated agent may be compelled to enter upon the performance of his trust, or at least made liable in damages if he neglect to do so; whereas an unre-munerated agent cannot, although, as we have seen, he may be liable for misconduct in the performance of it. This proposition is well illustrated in the case of Elsee v. Gatward (p), where one count of the declaration, stating that the plaintiff retained the defendant, a carpenter, to repair a house before a given day, that the defendant accepted the retainer, but did not perform the work within the time, whereby the walls of *the plaintiff's house were damaged, was held to be insufficient as not showing any consideration; but another count, stating that the plaintiff, being possessed of some old materials, retained the defendant
(I) See Whitehead v. Greetham, 2 Bing. (9 E. C L.R.) 464; Shillibeer v. Glynn, 2 M. & W. 143; Bainbridge v. Firmstone, ante, p. *178.
(m) 2 Ld. Raym. 909; 1 Smith, L. C. 199 (8th ed.). See Gladwell v. Steg-gall, 5 Bing N. C. (35 E. C. L. R.) 733; Blackmore v. Bristol and Exeter Railway, 27 L. J. (Q. B.) 167; 8 E. & B. (92 E. C. L. R.) 1035.
(n) Beauchamp v. Powley, 1 M. & Rob. 38. See, as to the meaning of gross negligence, Beal v. S. Devon Rail. Co., 3 H & C. 336.
(o) Dartnall v. Howard, 4 B. & C. (10 E. C. L. R.) 345; Doorman v. Jenkins, 2A.&E. (29 E. C. L. R.) 256.
(p) 5 T. R. 143. 204 to perform the carpenter's work on certain buildings of the plaintiff, and to use those old materials, but that the defendant, instead of using them, made use of new ones, thereby increasing the expense, was held good, as it appeared that the defendant had entered on the performance of the work.