not be invoked by parties, it may be proper in conclusion to refer to the mode by which the commands of the writ are enforced. This is by an attachment for the contempt of the court from which the writ issues. The practice is the same as in other cases of contempt. People v. Pearson, 3 Ill. 270. But the practice in such cases is frequently, ir not generally, the subject of statutory regulation in the various States.

CHAPTER XCIII.

MANDATE.

TITLE I.

OF MANDATES IN GENERAL.

ARTICLE I.

WHAT A MANDATE IS, AND THE RIGHTS AND DUTIES OF THE PARTIES. Section 1. Definition. A mandate is when one undertakes, without recompense, to do some act for another in respect to the thing bailed. 2 Kent's Com. 568. See, also, Eddy v. Livingston, 35 Mo. 487. Or, as defined by Story, it is a bailment of personal property, in regard to which the bailee engages to do some act without reward. Story on Bailm., § 137. In the case of a deposit, the principal object of the parties is the custody of the thing, and the service and labor are merely occasional; in the case of a mandate, the labor and services are the principal objects of the parties, and the thing is merely accessorial. Id., § 140. The person employing is the mandator and the person employed is the mandatary. And a familiar illustration of a mandate is, the undertaking by a party to receive money and deliver it to another without reward. McNabb v. Lockhart, 18 Ga. 495; Skelley v. Kahn, 17 Ill. 170.

§ 2. Nature of the contract. A mandate may be made either by express or implied assent. Thus, if money is bailed to a man upon the faith of a promise made by him to take and deliver it to a banker, or to invest it in the public funds, or to lay it out in the purchase of lands, this is an express mandate. If a person takes charge of living animals, or perishable chattels, for whose preservation and safe-keeping a certain amount of work and labor, skill and attention is necessarily requisite, and which such person, by accepting the trust, impliedly undertakes to furnish, this is an implied mandate. But so long as there has been no actual bailment by the delivery and acceptance of the chattel, there is no binding contract of mandate, either express or implied. 1 Wait's VOL. IV.-49.

Law & Pr. 314. It is not, however, necessary, in every case, in order to charge a mandatary with an article lost, that the delivery should have been made to him individually, or to one expressly or specifically authorized to receive for him; but an agency to receive may be implied in the same manner as such agency may be implied in relation to articles which were to be carried for hire. Lloyd v. Barden, 3 Strobh. (S. C.) 343.

§ 3. Duties of mandatary. The general principle of the civil law is that, although a bailee is at liberty to reject a mandate, yet, if he chooses to accept it, he is bound to perform it according to his engagement; and if he fails so to do, he will be liable for all damages sustained by the mandator by his neglect, in like manner as he would be liable for any misfeasance. Story on Bailm., § 164. This was likewise considered by Sir WILLIAM JONES to be the rule of the English law. See Jones on Bailm. 53, 120. But it may now be regarded as well settled that, by the common law, a mandatary, or one who undertakes to do an act for another, without reward, is not answerable for omitting to do the act, and is only responsible when he attempts to do it, and does it amiss. In other words, he is responsible for a misfeasance, but not for a nonfeasance, even though special damages are averred. Coggs v. Bernard, 2 Ld. Raym. 909; Elsee v. Gatward, 5 Term R. 143; Thorne v. Deas, 4 Johns. 84; Balfe v. West, 13 C. B. 466; S. C., 22 Eng. Law & Eq. 506; M'Gee v. Bast, 6 J. J. Marsh. (Ky.) 455; Ainsworth v. Backus, 5 Hun (N. Y.), 414. The common law leaves him to act or not to act as he may think fit; he may, therefore, refuse to accept the chattel when it is tendered to him, and no action can be maintained against him for so doing. But if he takes it and carries it away, he then acts, he has commenced the work, and he is responsible for any subsequent misfeasance. Id.; Whitehead v. Greetham, 2 Bing. 464; Shillibeer v. Glyn, 2 Mees. & W. 143. Thus, where a sum of money was bailed to a party upon the faith of an undertaking made by him to cause the sum to be paid to the bailor or his order at a distant place, it was held that the bailment of the money was a sufficient consideration for the undertaking, and that the mandatary was responsible for the nonfulfillment of his engagement. Id. See, also, Jenkins v. Motlow, 1 Sneed, 248; Bland v. Womack, 2 Murph. 373. So, where certain iron boilers were delivered to a man upon the faith of an undertaking made by him to weigh them gratuitously and return them to the bailor in as perfect and complete a condition as they were in at the time of making the bailment and the promise, and the mandatary took the boilers to pieces in order to weigh them, but refused to put them together again, it was held that he was responsible for his

breach of contract, and that he must make good the damage which had been sustained by the mandator. Bainbridge v. Firmstone, 8 Ad. & El. 743. So, where the defendant undertook, voluntarily and without consideration, to get a policy of insurance renewed on account of the plaintiff, but did it so negligently that no benefit was derived from it, the action against him was allowed to proceed. Wilkinson v. Coverdale, 1 Esp. 75. See, also, Ferguson v. Porter, 3 Fla. 27, 38; French v. Reed, 6 Binn. (Penn.) 308; Ainsworth v. Backus, 5 Hun (N. Y.), 414. As it regards the mere custody of the thing bailed, the mandatary stands in the position and is clothed only with the ordinary liabilities of a naked depositary. Beardslee v. Richardson, 11 Wend. 25. And see Vol. 2, tit. Deposit. He is bound only to slight diligence and is responsible only for gross neglect. One who has undertaken gratuitously to convey money or goods from one place to another, and has entered upon the trust by accepting possession of the money or the goods, is bound to exercise the same care and diligence in the execution of the task that a person of ordinary care and prudence might be expected to exercise in the conveyance of his own property. If, by negligence and mismanagement in the accomplishment of his undertaking, the money or the goods are lost or stolen, injured or spoiled, he will be responsible for the loss. Colyar v. Taylor, 1 Coldw. (Tenn.) 372; Tracy v. Wood, 3 Mas. (C. C.) 132; Lampley v. Scott, 24 Miss. 528; Rey v. Toney, 24 Mo. 600; Sodowsky v. M'Farland, 3 Dana (Ky.), 205; First Nat. Bk. of Carlisle v. Graham, 79 Penn. St. 106; S. C., 21 Am. Rep. 49. But he will not be held responsible for the loss of the money or goods if he is forcibly robbed without any default on his part. Walker v. British Guarantee Association, 18 Ad. & Ell. (N. S.) 277.

If a chattel is bailed to a workman or artificer in some particular art, craft, or profession, upon the faith of an undertaking by the bailee to mend, repair, or improve it gratuitously for the benefit of the mandator, the mandatary must complete the work within a reasonable period, and must be especially mindful that the article is not injured in his hands during the performance of his work, through a want of that knowledge and skill which every workman and artificer in that particular art or craft is bound to possess. The situation and profession of the artisan in such a case naturally imply that he is possessed of competent skill, and he is responsible for injuries resulting from his neglect to use it, whether he is or is not to be paid for his labor and pains. The foundation of this increased liability is the increased confidence reposed in him, which induced the mandator to trust him with the chattel when he would not have trusted it to an unskillful person. See Shiells v. Blackburne, 1 H. Bl. 158; Percy v. Millaudon, 20 Mart.

(La.) 75; Tompkins v. Saltmarsh, 14 Serg. & R. 275; 1 Wait's Law & Pr. 316. But if a person, known to be unskilled in the particular work or employment he gratuitously undertakes, does the work, at the solicitation of a friend, with such ability as he possesses, he stands excused, although it is unskillfully done; for it is the mandator's own folly to trust him, and the party engages for no more than a reasonable exertion of his capacity. Id.

If the subject-matter of the bailment consists of living animals, the mandatary is bound to furnish them with suitable food and nourishment, and generally to provide them with all such things as are essential to the preservation of their health, and his neglect so to do will amount to a positive fraud and breach of trust. Harter v. Blanchard, 64 Barb. 617. So, if he negligently permits them to stray away, and they are lost, he is responsible for the loss. See Rey v. Toney, 24 Mo. 600. And it has been held to be an act of negligence, sufficient to fender a gratuitous bailee responsible, for him to have turned a horse after dark into a dangerous pasture to which he was unaccustomed, and by which means the loss of the horse ensued. Rooth v. Wilson, 1 B. & Ald. 59; 2 Kent's Com. 572. So, if, while the horse is in the bailee's custody, his leg becomes broken, and the bailor resides at a distance, the bailee is bound in the exercise of ordinary care, to provide for the animal's keeping, care and cure, as he would if the animal were his own, and he would be guilty of gross neglect, were he to omit making such provision. Harter v. Blanchard, 64 Barb. 617.

What is, and what is not gross negligence, amounting to a breach of trust, is often a mixed question of law and fact, but more generally a pure question of fact, to be determined by a jury. See 1 Wait's Law & Pr. 317; Kirtland v. Montgomery, 1 Swan (Tenn.), 452; Doorman v. Jenkins, 2 Ad. & El. 256; S. C., 4 Nev. & M. 170. In an action against a mandatary for the loss of property bailed to him, his concomitant acts and declarations, immediately before and after the loss, are admissible in evidence to disprove his negligenee. But it is otherwise of his own testimony. Tompkins v. Saltmarsh, 14 Serg. & R. 275. And the general rule, that a mandatary is responsible for gross negligence only, is applied solely to cases where he is in the actual performance of some act or duty intrusted to him in regard to the property. If he violates his trust by a misuser of the property, or does any other act inconsistent with his contract, or in fraud of it, he will clearly be liable for all losses and injuries resulting therefrom. Story on Bailm., § 188. And see Catlin v. Bell, 4 Camp. 183; Ulmer v. Ulmer, 2 Nott & McC. (S. C.) 489.