have appropriated from that code only a single class of principles, applicable to duties in respect to which our law was silent. We borrowed only such as we had need of, making them ours from time to time as an occasion arose, in the same manner as we have incorporated much of the civil law into our equity jurisprudence. A §77. Feasance and Non-feasance. The main distinction between a mandate and a deposit, is that the former lies in feasance, and the latter simply in custody. The duties of the depositary are not so active as those of the mandatary; they do not require so much vigilance. mandatary, like an unpaid agent, engages to use a degree of diligence and attention adequate to the performance of his undertaking; and though not bound by his original promise to enter upon the exccution of the commission, he is bound after having actually entered upon the business, to exert himself in proportion to the exigency of the matter in hand. This rule has been enforced where an agent without reward undertook to obtain an insurance on a vessel, and did the business so carelessly that the benefits derivable' from the policy were lost.1 In our law the contract of mandate is connected with a bailment or delivery of property: it was not so limited in the civil law. And there is a class of cases in which, without any delivery of goods or property, an unpaid agent is held responsible for the use of diligence in the business he undertakes; as where a man receives a demand to collect gratis ; or where a surgeon undertakes an operation without hire. The effort to collect must be made with ordinary diligence; and the operation must be performed with ordinary skill. The existence of a valid contract between the parties, founded on a consideration, is not essential to support an action for the misfeasance.5 1 Mallough v. Barber, 4 Campb., 150; Park v. Hammond, 4 Campb., 344. A right to commissions for the service may affect the question: Nellis v. De Forest, 16 Barb., 61; see the opinion by Woodworth, J., 20 John. R., 378; and Coggs v. Bernard, 2 Lord Raym., 910. 2 Hadley's Introduction to Civil Law, 207, 232. Moore v. Gholson, 34 Miss., 5 George, 372. 4 Carpenter v. Blake, 60 Barb., 488; S. C., 50 N. 40 Ill., 209; Craig v. Chambers, 17 Ohio St., 253; 138; Howard v. Grover, 23 Maine, 97. Y., 696; McNevins v. Lowe, Pippin v. Shepard, 11 Price, 400; Gladwell v. Steggall, 5 Bing, N. C., 733; 6 Exch., 767. The employment or retainer need not have been by the plaintiff. Peck v. Martin, 17 Ind., 115. A surgeon is not liable for a want of the highest degree of skill in the performance of an operation; but only for the want of ordinary skill, and for the want of ordinary care and judgment: held in respect to an alleged error in not removing more of a diseased thigh bone. Howard v. Grover, 28 Maine, 97. The law allows the practice of any system of medicine; i. e., it does not prohibit the practice of any; but it does imply an undertaking The distinction taken at an early day between non-feasance and mis. feasance by a mandatary, is founded in the principle that though a person cannot be compelled to enter gratuitously upon the business of another, yet when he once takes it upon himself by beginning the work, he becomes responsible for any damages that may arise through his negligence or want of care. A non-feasance is a failure to perform; and a misfeasance is the performance in an improper manner of some act which it was his duty, by contract or otherwise, to have done, or of some act which he had a right to do. The common law does not enforce a mere naked promise. Hence 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 liable when he attempts to do it and does it amiss. In other words, he is responsible for a misfeasance, but is not answerable for a non-feasance, even where special damages are averred. This rule was applied where one of two joint owners of a ship voluntarily undertook to get the vessel insured, but neglected to do so, and the ship was lost. He was not held liable, because he had not come under a legal obligation. Receiving property into his hands, under a promise to do some act in relation to it, creates a legal duty. Thus, a bank by receiving a note for collection, where it is to receive no direct compensation for the service, becomes bound to a faithful and diligent preformance of the undertaking.' Under the common law the engagement is not considered a gratuitous undertaking; because of the average deposits accruing to the bank on account of such collections. Under the civil law it is treated as a bailment without reward, and the mandatary is held bound by the same ob on the part of every medical practitioner that he will use an ordinary degree of care and skill in his practice, according to his avowed system. Bowman v. Woods, 1 Greene, Iowa, 441; Commonwealth v. Thompson, 6 Mass., 134; White v. Carroll, 42 N. Y., 161; Haire v. Reese, 7 Phil., Pa., 138; McNevins v. Lowe, 40 Ill., 209. The burden of proof in a suit for malpractice is on the plaintiff. Craig v. Chambers, 17 Ohio St., 258. In England and in some of the States, the law requires that medical practitioners shall be licensed; and allows only a licensed physician to recover for medical services. Biblin v. Simpson, 59 Maine, 181; Wragg v. Strickland, 36 Ga., 559; De La Rosa v. Prieto, 16 Com. B. (N. S.), 578. The same rule formerly existed in this State; Bailey v. Mogg, 4 Denio, 60. At present our law recognizes no particular school of medicine as the legal or authorized system. White v. Carroll, 42 N. Y., 161. A man who does not profess to be a physician nor to practice as such, and is merely asked his advice as a friend or neighbor, does not incur any professional responsibility. Ritchey v. West, 23 Ill., 385, cited in 40 Ill., 210. 1 Thorne v. Deas, 4 John. R., 84. Leading case; opinion by Ch. J. Kent. 2 Smedes v. Utica Bank, 20 John., 372; S. C., 3 Cowen, 662. See Edwards.. on Bills and Notes, 402, 460, 475. ligation. The duty of the mandatary, though not placed on the same ground, is enforced with equal strictness under both systems.' § 78. Rule of Diligence. A mandatary is answerable for the same degree of diligence as a depositary; he must use such care as men of common sense and common prudence, however inattentive, ordinarily také of their own affairs, of a like kind; that slight or moderate degree of care which men naturally take of their own goods. He is not liable for a loss or injury, unless it happens through his gross negligence or bad faith. Like many other principles of law, this rule must be understood with reference to the article, the nature of the trust, and the circumstances attending its execution.2 § 79. The supposed case of the diamond ring, illustrates the principle which fixes the degree of care demanded of the mandatary; for instance, if Stephen desire Philip to carry a diamond ring from Bristol to a person in London, and he put it with bank notes of his own into a letter case, out of which it is stolen at an inn, or seized by a robber on the road, Philip shall not be answerable for it; although a very careful, or perhaps a commonly prudent man would have kept it in his purse at the inn, and have concealed it somewhere in the carriage; but if he were to secrete his own notes with peculiar vigilance, and either leave the diamond in an open room, or wear it on his finger in the chase, he would be bound, in case of a loss by stealth or robbery, to restore the value of it to Stephen. In general, the fact that the party did the work on the subject of the bailment with the same care that he did the work on like goods of his own, will repel the imputation of negligence. This presumption may, without doubt, be overcome by proof of actual negligence, or of conduct, which though applied to his own goods, would be deemed negligent in a bailee without hire, of ordinary prudence. Negligence is a fact to be found from the evidence. § 80. How far the mandatary may be rendered liable for the want of proper care, even where he shows the same neglect of his own goods, is very well shown in the action of Tracy v. Wood. A undertook gratuitously to carry two parcels of doubloons for B, from New York to Boston, in a steamboat, by the way of Providence. A in the evening (the 'Durnford v. Patterson, 7 Martin, 460, 464. 2 McNabb v. Lockhart, 18 Ga., 495; Jenkins v. Mathews, 1 Sneed, Tenn., 248; Dann v. Brunner, 13 La., Ann. R., 452; Tompkius v. Saltmarsh, 14 Serg. & Rawls., 275; Tracy v. Wood, 3 Mason, 132. 3 Jones on Bailm., 63; Spooner v. Mattoon, 40 Vt., 300. 4 Lane v. Cotton, 1 Ld. Raym., 646; Kettle v. Bromsale, Willes' R., 121. 5 Rooth v. Wilson, 1 B. and Ald., 59. 6 3 Mason R., 132. Conway Bank v. Amer. Ex. Co., 8 Allen, 512. boat being to sail early in the morning,) put both bags of doubloons, one being within the other, into his valise with money of his own, and carried it on board of the steamboat and put it into a berth in an open cabin, although notice was given to him by the steward, that they would be safer in the bar-room of the boat. A went away in the evening, and returned late, and slept in another cabin, leaving his valise where he had put it. The next morning, just as the boat was leaving the wharf, he discovered, on opening his valise, that one bag was gone, and he gave an immediate alarm and ran from the cabin, leaving the valise open there with the remaining bag, his intention being to stop the boat. He was absent for a minute or two only, and, on his return, the other bag also was missing. An action being brought against him by the bailor for the loss of both bags, the question was left to the jury whether there was not gross negligence, although the bailee's own money was in the same valise. The jury were directed to consider whether the party used such diligence as a gratuitous bailee ought to use under such circumstances, and they found a verdict for the plaintiff for the first bag lost, and for the bailee for the second. Here is another illustration of the same rule, that the bailee may be liable where he keeps the property as he does his own. The defendant, a coffee-house keeper, having the custody of money without reward, lost it, and gave this account of it: that he had put it with a large sum of money of his own, into his cash box, which was kept in his tap-room; that the tap-room had a bar in it and was kept open on a Sunday, the rest of his house not being kept open on that day; and that the cash box, with his own and the plaintiff's money, had been stolen on that day. The judge left it to the jury to say whether the defendant was guilty of gross neglect; and told them that the loss of the defendant's own money did not necessarily prove reasonable care. The charge of the judge was afterwards held good, and it was decided, first, that the question of gross negligence was properly left to the jury; and second, that there was evidence on which they might find for the plaintiff.' § 81. The degree of care required of the mandatary, is materially affected by the circumstances attending the exccution of the contract, such as the kind and value of the goods bailed and their liability to injury. Lord Stowell puts this case in point: "If I send a servant with money to a banker and he carries it with proper care, he would not be answerable for the loss, though his pocket were picked by the way. But, if 1 Doorman v. Jenkins, 2 Adolph. and Ellis, 256; see Smith v. First National Bank of Westfield, 99 Mass., 605; 62 Pa. St., 47; 34 Md., 235, 247; 3 Browster, 9. instead of carrying it in a proper manner and with ordinary caution, he should carry it openly in his hand, thereby exposing valuable property so as to invite the snatch of any person he might meet in the crowded population of a large town, he would be liable; because he would be guilty of negligentia malitiosa, in doing that from which the law must infer that he intended the event which has actually taken place." 1 1 1 Rendsberg, 6 Rob., 141, 155. So, also, the captain of a vessel who carries the goods of another, though not for hire, is bound to take prudent care of them; and where he intermeddles with the chest of a seaman, who has been casually left behind, he is bound to restore it to its former state of security, particularly if the contents be valuable. Thus in Nelson v. Macintosh, 1 Starkie N. P., 188, an action of case for so negligently carrying plaintiff's box, containing doubloons, dollars and other valuables that the box and its contents were lost; plaintiff came on board the Arundel, of which the defendant was captain, at Trinidad, with the intent to work his passage home, but being casually on shore when the signal was given for sailing, was left behind. Plaintiff's box was stowed with others on the quarter deck, and soon after departure, was opened by the defendant, upon a suggestion that it might contain contraband goods. The box was fastened with a lock, and the lid was also nailed down; having ascertained the contents, the lid was replaced and nailed down again. Toward the termination of the voyage, the captain again opened the box in the presence of the passengers, and placed the contents in a canvas bag, which he deposited in his own chest in the cabin, where he usually kept his own valuables. On arrival at Gravesend, a river pilot was taken on board, and the captain and one mate left the vessel, another mate remaining on board; an excise officer was also on board, and two young men belonging to the vessel who slept in the cabin. On the next morning the captain's trunk containing the valuables was missing, and not afterwards found. The defendant introduced evidence tending to show that the property had been stolen by persons unconnected with the vessel. But Lord Ellenborough, before whom the action was tried, charged the jury that in a case like this, though a person does not carry for hire, he is bound to take proper and prudent care of that which is committed to him, and he left it to the jury to consider, 1st. Whether the captain had not, under the circumstances, by the intermeddling and removal, imposed on himself the duty of carefully guarding against all perils to which the property was exposed in consequence of the alteration. 2d. Whether he had in fact carefully guarded the property; and that if they were of the opinion that the conduct of the defendant had imposed upon him the duty of carefully guarding the goods, and that he had been guilty of negligence, they were to find for the plaintiff; and the jury rendered a verdict for the plaintiff. is evident from the above, as well as other cases, that the rule of liability is relaxed or rendered stringent so as to meet the circumstances of each particular case. The principle, indeed, remains the same in all cases, but its application is left mainly to the jury, who find from the circumstances whether there has been a loss through negligence. The mere mandatary, it is to be observed, is liable only for gross negligence; this is the general principle. Stanton v. Bell, 2 Hawks, 145; Lodowski v. McFarland, 3 Dana, 205; Tracy v. Wood, 3 Mason, 132. Gross negligence is the omission of that care which bailees without It |