3. A third exception is, when the depositary is to receive a compensation for the deposit. It then becomes a lucrative contract, and not a gratuitous deposit, and the depositary is held to ordinary care, and answerable for ordinary neglect; and the same conclusion follows, when the deposit is made for the special accommodation of the depositary. A warehouse-man, or depositary of goods for hire, being bound only for ordinary care, is not liable for loss arising from accident, when he is not in default ; and he is not in default when he exercises due and common diligence. But he is bound to see that the place in which the articles deposited with him are kept, is fit and properly secured for their reception and safety.b In the case of goods bailed to be kept for hire, *if the hire be intended as a compensation for house *566 room, and not as a reward for diligence and care, the bailee is only bound to take the same care of the goods as of his own; and if they be stolen by his servants, with. out gross negligence on his part, he is not liable. This was so ruled by Lord Kenyon, in Finucane v. Small.c

While on the examination of this contract of gratuitous bailment, and which in the civil law is termed depositum, I have been struck with the learning and sagacity of Sir William Jones. But after studying Lord Holt's mas

2908, 2909. Mr. Justice Story, in his Commentaries, 58, 59. Ibid. 153, n. 4, questions the equity of the rule of the civil law, which exacts more than ordinary diligence from a bailee, who became such by his spontaneous and officious offer. He says it is punishing a friend rather than a stranger, for an act of disinterested kindness.

• Garside v. The Proprietors of the Trent Navigation, 4 Term Rep. 581 Cailiff v. Danvers, Peak's N. P. 114. Thomas v. Day, 4 Esp. N. P. R. 262. He is not responsible, if not chargeable with negligence, though the goods be stolen or embezzled by his store-keeper or servant. Schmidt v. Blood, 9 Wendell, 268.

• Leck v. Maestaer, 1 Campb. Rep. 138. Clarke v. Earnshaw, 1 Gow's Rep. 30. See, also, to the same point, 1 Bell's Com. 458.

11 Esp. N. P. Rep. 315. If a horse be taken from a naked depositary by authority of law, as on fi. fa. against the owner, he is not responsible. Shelbury v. Scotsord, Yelv. Rep. 23. Edson v. Weston, 7 Cowen's Rep. 278

terly view of the doctrine, and especially the copious treatise of Pothier, the admiration which was excited by the perusal of the English treatise has ceased to be exclusive. Pothier's essay on that particular species of bailment is undoubtedly superior in the extent, precision and perspicuity of its details, and in the aptitude of the exam. ples by which he explains and enforces his distinctions.

The person who has only a special property in, or a mere naked possession of a personal chattel, may deposit it, and hold the bailee responsible.& But the rightful owner may follow his property into the hands of the bailee, or of a third person ; and, in a case of disputed claim upon goods in the hands of a depositary, he must, for his own indemnity, compel the claimants to interplead.b The possession of the depositary is, for many purposes, deemed in law to be the possession of the depositor, for the better security of his right, and the enlargement of his remedies. The depositary is bound to restore the deposit, upon

demand, to the bailor, from whom he received it, *567 unless another *person appears to be the right

owner. The bailee has a good defence against the bailor, if the bailor had no valid title, and the bailee on demand, delivers the goods bailed to the rightful owner.c He is to deliver it in the state in which he received it, and with the profits or increase which it has produced, and if he fails in either of these respects, he becomes responsible.d He is equally so, as we have already seen, if he has been wanting in fidelity, or in that ordinary

• Armory v. Delamirie, 1 Str. Rep. 505. Rooth v. Wilson, 1 Barnu. f Ald. 59.

• Thorp v. Burling, 11 Johns. Rep. 285. Brownell v. Manchester, I Pick. Rep. 232. Taylor v. Plummer, 3 Maule of Selw. 562. Rich v. Aldred, 6 Mod. Rep. 216.

c King v. Richards, 6 Wharton, 418.

d Pothier, Contrat de Mandat, n. 58, 59. Prét a Usage, n. 31. 33. 73, 74. Game v. Harvie, Yelv. Rep. 50. Coggs v. Barnard, 2 Lord Raym. 920. Civil Code of Louisiana, art. 2919.

care applicable to his situation, character, and circumstances, which is evidence of it. It has been made a question, whether the depositary could lawfully restore the article deposited to one out of two or more joint owners, and when the thing was incapable of partition. Sir William Jonesa refers to a case in 12 Hen. IV. 18, abridged in Bro. tit. Bailment, pl. 4, where it was held that one joint owner could not alone bring the action of detinue against the bailee; for if they were to sue separately, the court could not know to which of them to deliver the chattel. The Roman lawb states the case of a bailment of a sum of money sealed up in a box, and one of the owners comes to demand it. In that case, it is said, the depositary may open the box, and take out his proportion only, and deliver it. But if the thing deposited cannot be divided, then it is declared, that the depositary may deliver the entire article to the one that demands it, on taking security from him for that proportion of the interest in the article which does not belong to him ; and if he refuses to give the security, the depositary is to bring the article into court. This implies that it would not be safe to deliver the thing to one alone; and the rule was correctly laid down by Sir William Jones. If the persons claiming as depositors have adverse interests, the deposit is to be delivered to him who is adjudged to have the right; and it cannot be safely delivered, until the adverse interests are settled. The claim may be settled at law in the action of detinue, in which, by the process of garnishment, the rival claimant is brought into the suit. But a more convenient and extensive remedy is afforded in equity, by a bill of interpleader, which may be applied to all cases in which conflicting claimants of the same debt or duty have *interfered, and ap- *568 prized the depositary of their demand upon him for

· Essay on Bailment, 39.

Dig. 16. 3. 1. 36, 37.

their deposit.& And in the case of a joint bailment, the deposit cannot safely be restored by the bailee, unless all the proprietors are ready to receive it, or one of them demands it with the consent of the rest. The depositary has, perhaps, strictly speaking, no property, general or special, in the article deposited. He has only the naked custody or possession, and he cannot use, and much less dispose of the subject without the express or presumed permission of the depositor, and whether the case will or will not warrant the presumption of that permission will depend upon circumstances.d But his right of possession gives him a right of action, if his possession be unlawfully disturbed, or the property injured. If he sells the

a Mr. Justice Story says, that where the parties claim in absolutely adverse rights not founded in any priority of title, or any common contract, the bailee must defend himself as well as he may, for he cannot compel mere strangers to interplead. Comm. on Bailments, p. 84-86, 2d edit. This, if it be a rule in chancery, is a defect in the equity process and jorisdiction greater than I had apprehended. Interpleader is where the depositary holds as depositary merely, and the claims are made against him in that character only. The plaintiff must not be under any liabilities to either of the defendants, beyond those which arise from the title to the property in contest. Lord Cottenham, in Crawshay v. Thornton, 2 Mylne $ Craig, 1. 19, and in Hoggart v. Cotts, 1 Craig f Ph. 197.

0 May v. Harvey, 13 East's Rep. 197. The Code Napoleon says, that the depositary must not give up the thing doposited, except to the order of him who deposited it; and if he who made the deposit dies, and there be several heirs, it must be yielded up to them each according to his share and portion; and if the thing deposited cannot be divided, the heirs must agree among themselves as to the receiving it. Art. 1937. 1939. The Civil Code of Louisiana has adopted the same provisions, art. 2920. 2922; and both those codes leave the inference to be drawn, that if the thing be indivisible, it cannot safely be delivered to one of two or more claimants, without their joint agreement on consent. See, also, Story's Comm., 87– 90, as to the duty of the depositary in respect to delivery in cases of a joint bailment.

Story's Com. on Bailment, sec. 93.

d Dig. 16. 3. 29. Pothier, Traité de Dépôt, n. 34. French Code Civil, art. 1930. Code of Louisiana, art. 2911. Story's Comm. p. 67-69, 2d edition.

e Dig. 16. 3. 17. i Bell's Com. 257. Rooth v. Wilson, 1 Barn. g. Ald.

goods deposited for a particular purpose, in breach of his trust, the bona fide purchaser, without notice, is not protected against the real owner. The same reasonable care is requisite, in the case of goods coming to one's possession by finding, as in the case of a gratuitous deposit.b

II. Of mandatum. Mandate is when one undertakes, without recompense, to do some act for another in respect to the thing bailed.

59. Hartop v. Hoare, 3 Atk. Rep. 44. 1 Wils. Rep. 8. Lord Coke, in Isaac v. Clark, 2 Bulst. Rep. 311. Story's Com. 67--74. Moore v. Robinson, 2 Barnw. f Adol. 817. See infra, p. 585. The general rule is, that actual and lawful possession of personal property is sufficient to maintain trespass or trover against all persons except the lawful owner. Armory v. Delamire, 1 Str. 504. Fisher v. Cobb, 6 Vermont R. 622. Giles v. Grover, 6 Bligh. Rep. 277. Sutton v. Buck, 2 Taunton's R. 302. Creighton v. Seppings, 1 B. g. Adol. 241. Story's Com. sec. 93, 94, 2d edit. In Miller v. Adsit, 16 Wendell, 335, it was held, after a learned discussion, that replevin would lie by a receiptor of goods taken on execution against a mere wrongdoer. See, in Story on Bailments, p. 93–99, 2d edit., an instructive digest of the law in the New England states, in respect to the rights of the parties in the case of goods attached by public officers on mesne process for debts, and bailed to some third person to be forthcoming upon demand, or in time to respond to the judgment. Though the bailee has no property whatever in the goods, and but a mere naked custody, yet the better opinion would seem to be that his possession is a sufficient ground for a suit against a wrongdoer. It has been so decided in New Hampshire, in Poole v. Symonds, 2 N. H. Rep. 289, and this is the principle in the case from Wendell. Thayer v. Hutchinson, 13 Vermont Rep. 504, S. P. The bailee having a special property, recovers only the value of his special property as against the owner, but the value of the whole property as against a stranger, and the balance beyond the special property ho holds for the general owner. White v. Webb, 15 Conn. Rep. 302. • See supra, p. 325.

Doct. of Stu. Dial. 2. ch. 38. Lord Coke, in Isaac v.Clarke, 2 Bulst. Rep. 312. Story's Comm. 61–66. Mr. Justice Story, in his Comm. on Bailments, sec. 83, 2d edit., considers the case of goods or chattels placed on the land of another by unavoidable casualty or necessity as an involuntary deposit, and that the owner of the articles, in a case free from negligence or fault on his part, may enter and take them away without being chargeable in trespass. See supra, p. 339, and also, the American Jurist, for January, 1839, where the subject is learnedly examined.

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