
    William M. Stephenson, vs. Samuel Hillhouse.
    Defendant, at his-own instance, undertook to arrest a party, on a bail writ; being authorized by a special deputation for that purpose. lie did so, in presence of plaintiff's agent, and af-terwards suffered the party tó escape, and neglected to retake him, though he might have done so. Held that defendant ivas liable to the same extent as the sheriff ivould have been, and was guilty of gross neglect.
    
    The facts set forth in the. plaintiff’s brief are as follow;' That the plaintiff, by his agent, issued a bail writ against one Abner M‘Dearmin: tliat, at the instance and request of the-defendant, and by the consent of the agent of the plaintiff, the writ was placed in tlie. defendant’s hands to he executed; the sheriff having conferred no him a special deputation for that purpose; that the defendant, in the presence of the agent, arrested M‘Dear min, and suffered him to escape: that M£ Dear-inin remained for several days in the neighbourhood, and tlie defendant was requested by the agent to retake him, who refused, unless the agent would accompany him.
    The presiding Judge, in his charge to the Jury, drew a distinction between the case of the sheriff, acting in a public capacity, and a private agent of the plaintiff; in which character, !it was thought the defendant had acted; holding that a less degree of responsibility attached to the latter than the former.
    The Jury found for the defendant.
    A new trial was moved for on the following grounds:
    1st. Because the defendant undertook for a reward to perform the duties of a public officer, was cloathed with all the powers of that officer and is liable to the same extent:
    2d. Because the rule laid -down by the Judge, K that a .bailee for hire is answerable for gross neglect only,” is not law, and was calculated to mislead the jury:
    3d. That the evidence of neglect was sufficient.
   The opinion of the Court was delivered by

Mr. Justice Gantt.

Jn every case, where one man undertakes to perform a duty for another, the obligation arising therefrom must necessarily be based upon the nature of the act to be done, and have reference to the special circumstances under which the party undertook to perform the act. In the case before us, had the defendant undertaken to serve this writ at the particular instance of the plaintiff’s agent, wlio could not otherwise have had the writ executed, then the degree of diligence which might legally have been demanded of him, could have been no more than a fair exertion of his capacity. But the case is far different when the undertaking is sought by the defendant himself, and with a. view to the emolument arising therefrom. In every such case, the principles of good faith, as well as law, require that the undertaker should use all the diligence and attention which might become necessary to the performance of his undertaking. In such a case, as Mr. Jones says, “ He is neither to do any thing-how minute soever by which his employer may sustain damage, nor omit any thing however inconsiderable which the nature of the act requires,” and he adds that, “ though the law exacts no impossible things,' yet it may justly require that every man shall know his own strength before he undertakes to do an act,.and that if he delude another by false pretensions to skill, he should be responsible for any injury that may be occasioned by such delusion.” Now, apply this reasoning to the defendant in this action. He had been in the habit, it seems, of transacting business of this nature, with a view to the profits which would accrue. In this case he requested of the agent that he might be employed to serve the writ, in the character of a legalized officer. The agent of the plaintiff consented, and might well conceive, under such circumstances, that every exertion would be used to shew that the confidence thus reposed was worthily bestowed. There Was no understanding between the agent and the defendant, that the former was to assist in the performance of the duty; and the defendant could not justify his refusal to. act, upon the ground contended for, viz. that the agent would not go with him. The defendant undertook in this instance to discharge the duty of a sheriff in die case .committed to him, and having violated his en-, gagement, he is responsible to his employer, in like manner and to the same extent, that a sheriff would be under similar circumstances.

On the second ground taken in the brief, I will only remark, that from the judge’s report of his charge, it would seem, that his observations to the jury were rather calculated to point out an existing discrimination in the law, between a public officer and a private agent, than to fix with precision the extent of responsibility which the latter might bring upon himself by the non-performance of his undertaking. But under the charge as «stated, it is manifest that the defendant had been guilty of that gross neglect, which, in the opinion of the judge, would make a private agent responsible in damages; and this view of the case will supercede the necessity of making any comment-on the third .ground.

I am of opinion that a new trial should be granted.

We concur.

Richardson, Johnson and Cohock.  