Page:Harvard Law Review Volume 5.djvu/245

229 GRATUITOUS UNDERTAKINGS. 229 he takes in his own affairs ; " for the keeping them [goods bailed] as he keeps his own is an argument of his honesty." 1 "For although that [the care bestowed in his own case] may be so slight as to amount even to carelessness in another, yet the depositor has no reason to expect a change of character in favor of his particular interest; and it is his own folly to trust one who is not able or willing to superintend with diligence his own concerns." 2 In this crude form the rule is objectionable, and is hardly law to-day. But there is a good test which is quite similar. The care taken by the defendant of his own goods an the particu- lar event is no evidence at all of the care undertaken ; but the care known to be taken by him of his own affairs prior to the undertaking is strong evidence of the care undertaken; for he would be expected to attend to the business of others no more carefully than to his own. In this form, the rule is unobjection- able, and would doubtless be followed ; and it seems to be what was really in the mind of Lord Holt and of Chief Justice Parker in the opinions I have quoted. 2. Even a gratuitous undertaker is bound to use what skill he has. 3 Any negligence in an undertaker is gross, if from the nature of his business or from his special knowledge he knew that loss might ensue; for an undertaker must do the best he can. This carries Lord Holt's dictum so far that it coincides with the true rule in all the large class of cases covered by it. Thus in Shiells v. Blackburne, 4 where the defendant gratuitously under- took to enter goods in the Custom House for the plaintiff", but did it so negligently that they were lost, Lord Loughborough, C. J., said : — " If in this case a ship-broker or a clerk in the Custom House had undertaken to enter the goods, a wrong entry would in them be gross negligence, because their situation and employment necessarily imply a competent degree of knowledge in making such entries ; but where an application, under the circumstances of the case, is made to a general merchant to make an entry at the Custom House, such a mistake as this is not to be imputed to him as gross negligence." 1 Holt, C. J., in Coggs v. Bernard. 2 Parker, C. J., in Foster v. Essex Bank, 17 Mass. 479, 499. 8 Wilson v. Brett, 11 M. & W. 113.
 * 1 H. Bl. 158.