sideration, and the mis-doing of the thing, performance of which has been entered upon.

A neighbor promises to call and get a letter to be delivered in a neighboring town. He does not call, and by reason of the failure to obtain the delivery of the letter you lose an important contract. No action will lie on your behalf.

But, suppose he calls and receives the letter, the receipt of that by him is a sufficient consideration,-not necessarily of benefit to him, but of loss to you in parting with its control; so that, now, he is responsible to you for all damages sustained by you by reason of his negligence.

Of course the question here, as in other cases, is, what is negligence? If the mandatary be a professional man or a mechanic, he is bound to exercise such skill, in the performance of even a gratuitous undertaking, as one reasonably skilled in the business should possess.

But if he is neither a professional man or a mechanic, and not otherwise so situated that his occupation, employment or representations, imply any special knowledge, skill or capacity, he is, if a gratuitous bailee, responsible only for gross negligence or bad faith. As, when a farmer at the request of his neighbor undertakes to obtain a policy of insurance upon his neighbor's house. Having no skill in the business he so negligently drafts the specifications and representations upon which the policy issues that, upon loss by fire, the policy proves to be worthless. It appears that he procured insurance upon his own property similarly situated at the same time, and was guilty of making the same mistake and omission.

This would be conclusive evidence of his good faith, which is all that such a person, so situated, stipulates for, and he is not responsible in damages; but, if he had been an insurance broker, he would clearly have been liable.

Although a mandatary is not entitled to compensation for his services, he is entitled to be reimbursed such expenses and charges as he has properly and reasonably incurred in the execution of the mandate, and to be indemnified from liability upon such contracts as he has entered into with

others, and which were reasonably necessary to the proper discharge of the duties he has undertaken.

The mandatary is under an implied obligation to render, upon request, a full account of his doings, showing that his duties have been properly performed, or, if not performed or imperfectly performed, his excuses therefor. If a mandatary, whose duty consists in the carriage or delivery of articles, should purposely omit to deliver at the proper time, and to the proper person, his possession thereafter becomes wrongful, and he is responsible for all loss or damage subsequently occurring to the article, even without his fault.

SECTION 4.

Of "Accommodation," (Technically called "Commodatum"), Being a Loan for Use without Pay.

In this case, as the benefit and advantage are entirely with the borrower, he is bound to bestow uncommon care and circumspection in the use of the article, and is to return it in the same condition as when received, subject only to the deterioration, arising from its reasonable use in the business for which it was loaned. He may not apply it to any other use than that for which it was borrowed, nor permit any other person to use it, nor keep it beyond the time limited, nor detain it as a pledge or security for any debt due him from the lender.

If the article loaned be perishable, and should deteriorate by natural decay, or be lost by theft, or be injured by an accident or casualty which could not be prevented or guarded against, by diligence and circumspection, or be worn or torn in its reasonable use, without blame properly imputable to the borrower, the owner must bear the loss.

The extraordinary diligence, to which such a borrower is bound, is not necessarily satisfied with that degree of care, which he exercises over his own property. If, in the management of his own affairs, he is naturally careless and negligent, this will not excuse him for the want of diligence and

circumspection in the care of an article, the loan of which is made to him for his sole benefit.

Still, the lender cannot require a higher degree of diligence or care than the known character of the borrower would reasonably entitle him to expect. As, if one lend a powerful and spirited horse to a rider whom he knows to be inexpert, he cannot require of him the care and skill in his management, which he might reasonably expect from an experienced rider. What would be reasonable care in the one, might be negligence in the other. In this case also, what is due diligence or neglect will depend, not only upon the character of the borrower, but upon the nature of the article loaned, and the uses to which it is agreed it may be put. As, if a saddle and its housings be loaned for use on parade upon a gala day, the care it should receive from the borrower should be much higher in degree than that, which would properly be expected, in case of the loan of an ordinary saddle for the uses of a long journey. Of course, the borrower is not liable for the loss of an article from the wrongful act of a third person, which he could not foresee or prevent, nor for its destruction by fire or by inevitable casualty. But if his building burns, in which the borrowed article is kept, and he saves his own goods in preference to the borrowed article; in that case he should pay the loss, for he must bestow upon the borrowed article a degree of care at least equal to that which he bestows upon his own.

Questions of great difficulty might here arise. As, in a case where his own goods were of great value and the borrowed article comparatively of little worth. Must he here prefer the less valued borrowed article? It would seem that he should be responsible, as he ought, in no case, to bestow less care upon the borrowed article than upon his own goods; but as the question, whether there has been negligence, is always one to be decided by a jury, upon the facts in each particular case, upon proper instructions as to the law from the court, it may safely be expected that, in no case, will any practical injustice be done.

The borrower is ordinarily to return the article upon de

mand made by the lender. But suppose a case, in which a pair of horses and a carriage are loaned for a journey of five days, and in the middle of a journey, after three days only have expired, possession is demanded by the lender and he is refused but the borrower returns them at the time originally agreed, having only performed the contemplated journey, and in good condition. May the lender here maintain an action, on account of refusal, and, if so, to what damages is he entitled? May not the borrower in defence set up an implied contract, that, having borrowed the property for the entire journey, there was a contract, implied if not expressed by the lender, that he should have the use thereof till the journey should be completed?

The difficulty, if any, is with the consideration for such contract with the lender. Is there any, and, if so, what is it? The borrower contracts to exercise care and diligence in the use of the horses for the entire journey, and at the expiration of the stipulated time to return them. This contract he performs.

It may, perhaps, properly be held that the mutual promises are sufficient consideration, each for the other. And if it still be doubted whether the promise of the borrower, which brings or secures neither profit or advantage to the lender, would be a sufficient consideration, I think it may be replied, that as the borrower has entered upon the journey, the inconvenience, which would result to him from being arrested in its performance, is such consideration of loss to the promisee as, upon principles which we have heretofore explained, will constitute such sufficient consideration.

The borrower has neither general nor special property in the thing loaned; but his right of possession and temporary use will sustain him in an action of trespass against a wrongdoer, for wrong done to the article while in possession of the borrower, of such character as to diminish its value. The lender may always maintain an action for his damages.

The borrower may also have an action, whenever the injury goes to his possession, or reduces the value of the article for the temporary use to which he is entitled.

The return of the article should properly be made to the owner at the place where it belongs, as the dwelling place, farm, or place of business of the owner, although it may have been taken by the borrower at a different place. The ordinary expenses naturally attendant upon the thing loaned, as the feed of a horse or the supply of a shoe lost in the journey, are borne by the borrower; but, if the expenses are extraordinary, and arise from the inherent defect or inferiority of the thing loaned, as the breaking of some portion of a carriage, arising from imperfect and defective construction, without negligence on the part of the borrower, they should be paid by the lender, and the borrower has a lien upon the article for the reimbursement of such extraordinary expenses.

SECTION 5.

"Pledges," or Bailments as Security for the Payment of some Debt, or the Performance of some Agreement.

This is a delivery of some article of personal property to a creditor, or contractee, to be kept till the debt is paid or the contract performed. All kinds of personal property, including negotiable paper,. and claims resting upon written contract, may be delivered in pledge.

As it is an essential prerequisite of a pledge that the article should be delivered to the pledgee, it is of course necessary that it should be in actual existence and susceptible of delivery.

It is not, in all cases, necessary that the possession of the pledgee should be actual and manual. A large proportion of the capital of every country consists of shares in corporations or joint stock companies. The assignment in pledge of such shares is usually effected by delivery of the certificate of the company, stating the number of shares to which the pledgor is entitled, with a power of attorney to the pledgee, authorizing him to transfer the shares on the books of the company to himself or any third person. The actual transfer is frequently postponed, and, if the pledge is redeemed, entirely omitted; but notice of the transfer as such