228 HARVARD LAW REVIEW. to give; secondly, though they conceive that the degree of care undertaken by a gratuitous bailee is prima facie only the slight- est, yet in any case it may be shown that greater care was in fact undertaken. The rule, in short, was introduced with a view of helping the jury deal with a question of fact, namely, What was the degree of care undertaken ; a worthy object, which seems not to have been attained. Powell, J., in his careful and acute opinion, did not consider the degree of care to be bestowed; but it necessarily follows from his argument that the degree of care is not proportionate to the reward. " It is objected that here is no consideration to ground the action upon. But as to this, the difference is, between being obliged to do the thing, and answering for things which he has taken into his custody upon such an undertaking. An action indeed will not lie for not doing the thing for want of a sufficient consideration; but yet if the bailee will take the goods into his custody, he shall be answerable for them; for the taking the goods into his custody is his own act. And this action is founded upon the warranty, upon which I have been contented to trust you with the goods, which without such a warranty I would not have done. And a man may warrant a thing without any con- sideration. And therefore when I have reposed a trust in you upon your undertaking, if I suffer, when I have so relied upon you, I shall have my action." The opinion of Lord Holt has been followed in the modern treatises on bailments, and the cases constantly repeat his distinc- tions between gratuitous bailments, requiring ordinary or slight care, and bailments for hire. 1 The distinction has been severely criticised, as is well known ; and it is doubtful if it is required to support the decision of many reported cases. Nominally, however, the rule is established that a gratuitous bailee or other undertaker is liable only for gross negligence ; and it has been the constant though unconscious effort of the courts so to apply this rule as to make it conform to the true principle of undertakings. And some subordinate rules have been adopted which go far toward reconciling the rule with true principle. I. A gratuitous undertaker is bound to take only such care as 1 Though in pleading, an allegation of negligence, simply, is enough: i.e., gross negligence is a matter of evidence.
