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CHAPTER XXV.

GRATUITOUS BAILMENTS.

SECTION I.-Deposit or simple bailment without reward.—Nature of a deposit-Deposits how made ---Implied engagements and liabilities of a depositary-Restoration of the deposit-Liabilities of shareholders-Interpleader act-Liabilities resulting from the taking possession of goods by finding -Implied engagements and liabilities of the depositar.

SECTION II.-Mandate or gratuitous commission.-Nature and requisites of a mandate-Liabilities and implied engagements of the mandatary-Bailments of chattels to be carried gratuitously-Bailments of chattels to be mended or repaired gratuitously-Bailment of money for investment-Bailments of living animals to be fed and taken care of-Bailments of perishable commodities to be watched and tended-Liabilities of the mandator.

SECTION III.-Commodatum and mutuum or gratuitous loan.-Liabilities of the borrower-Of the care and vigilance to be exercised for the safety and preservation of a thing borrowed by way of commodatum-Restoration thereof-Repayment of things borrowed by way of mutuum-Countermand of the loan.

SECTION I.

OF A DEPOSIT OR SIMPLE BAILMENT WITHOUT REWARD.

A DEPOSIT or SIMPLE BAILMENT, styled by the Roman lawyers DEPOSITUM, may be defined to be a delivery or bailment of goods in trust to be kept for the bailor and redelivered on demand. (a) It is of the very essence of a deposit that it be gratuitous, for if anything is to be paid for the care and custody of the article, it immediately becomes a contract for the letting and hiring of labour and services and care to be employed upon the chattel, and belongs to the class LOCATIO OPERIS ET CUSTODIÆ. (Ante, 754, 772.)

(a) Dig. lib. 16, tit. 3, 1, § 45, § 46. Ante, 769, 770, as to bailments in general.

In the Roman law the term depositum is applied to the delivery of realty to be kept for the owner as well as to a delivery of personalty. Thus when a man during his absence from home committed his house, and all that was in it, to the keeping of a friend, this was called a deposit by the civilians. In the absence of an express contract between the parties, the nature of the bailment must be determined by the nature of the thing bailed, and upon what is required to be done for its preservation and safe keeping. When passive custody in some secure place of deposit alone is required, as in the case of most bailments of inanimate chattels, the bailment is a naked deposit or simple bailment, whilst if work and labour, services and skill are necessarily required for its preservation, as in the case of bailments of living animals or perishable chattels, then the bailment becomes, as presently mentioned, a MANDATE.

DEPOSITS how made.—In order to create and constitute a deposit, the subject matter of the bailment must be either actually or constructively delivered to the bailee, or it must be in his possession or under his control at the time he undertakes the charge of it. A mere promise to take charge of a thing which has never either actually or constructively come into the possession of the promisor, cannot of course constitute a DEPOSIT. But a delivery to the servant of the promisor, or to a person whom he has appointed to receive the chattel, and who has assented to hold it on his behalf, or any acts on the part of the promisor manifesting a clear intention to take charge of a thing which is not capable of manual delivery, but which has been placed at the disposal and under the control of the promisor, will constitute the latter a depositary in contemplation of law.(6) Thus, in the Roman law, if a man went from home leaving the keys of his house with his neighbour, the bailee of the keys was considered to be the depositary of the house. If a creditor holding a pledge receives payment of the debt, but continues to hold the pledge, he becomes a depositary of the latter for his quondam debtor. So if a tradesman sells any specific chattel, but neglects to deliver it, he becomes the depositary of the purchaser. But a man cannot be made a depositary without his knowledge and consent; he cannot have the possession of another man's property with its accompanying duties and responsibilities forced upon him against his will. Thus, if a tradesman anxious to sell his wares and merchandize sends them to my house without any previous communication with me, and without having obtained my previous consent, and they are taken in by my servant, and in my absence, or without my knowledge, I

(b) See ante, p. 55 to 67, as to actual and constructive delivery.

do not by reason thereof become the depositary of the goods, and clothe myself with the care of them. (c) A servant left in charge of my house has authority to receive for me whatever I have directed to be sent home, or to be delivered into my possession, but not things that may be left by mistake, or without my sanction or authority. If a man brings goods to a house without the warrant of the master, under circumstances naturally leading to the conclusion that they have been ordered to be left by the latter, this is a fraud upon the servant who takes them in, and the acceptance of them under such circumstances does not impose either upon the servant or the master the duties and responsibilities of a depositary.

In the Roman law there are various kinds of deposits giving rise to a greater or less degree of liability according to the circumstances under which the deposit was made, or the events which might subsequently arise. Thus, if the deposit was made under pressing necessity, such as a fire, a shipwreck, or some overwhelming calamity, it was called "miserabile depositum," and if the depositary was guilty of any default or neglect of duty he was bound to make compensation to the depositor to the extent of double the value of the article, or twice the damage or loss actually sustained. But if the deposit was a voluntary deposit made for the mere convenience of the depositor, and not under the pressure of misfortune, the depositary was only liable to the extent of the actual damage.

IMPLIED ENGAGEMENTS and LIABILITIES of the DEPOSITARY.

A depositary is in general bound to take the same amount of care of things intrusted him to keep that he has ordinarily taken of his own property. He will be liable to make compensation to the owner if the goods are damaged and lost by reason of gross negligence in the keeping of them, but he is not responsible for common neglect or ordinary casualties. Any wilful abuse of the thing deposited, or such an amount of neglect or want of care as appears to be incompatible with ordinary good faith between man and man will amount to gross negligence. (d) Thus, if a man takes charge of money and leaves it upon a shelf in an open drawer, in a place of public resort, when he might have placed it under

(c) Lethbridge v. Phillips, 2 Stark, 544.

(d) Holt, C.J., Coggs v. Bernard, 2 Raym. 909. Lane v. Cotton, 1 ib. 655. Gibbon v. Paynton, 4 Burr. 2,300, Nisi tamen ad suum mo

dum curam in deposito præstat fraude non caret. Nec enim salvà fide, minorem iis quam suis rebus diligentiam præstabit. Dig. lib. 16, tit. 3, 32.

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lock and key, this is a want of care inconsistent with good faith, and amounts consequently to gross negligence. (e)

The amount of care to be exercised in the selection of a safe place of deposit for a particular chattel is usually regulated by the degree of danger of loss. A man might leave a ton of coals or a load of hay un guarded and unwatched on a public wharf without any imputation of gross negligence or of any neglect at all, but if he were to do the same with a cargo of silks or wines, he would be pronounced guilty of gross neglect. The nature and value of the article is a necessary ingredient in the consideration of every question of negligence. A man would not be expected to take the same care of a box of ninepins as of a box of diamonds ;of a bag of marbles as of a bag of sovereigns; or the same care of a common sign board as of a rare painting; what might be care and diligence in the keeping of the one thing would be gross negligence in the cus tody of the other.

If a package or a box, sealed or locked, be deposited, and the depositary is not made acquainted with the contents, he is bound only to take that care of the article which its general appearance seems to require; and in case it should be lost or destroyed through gross neglect, he will only be liable to the extent of the apparent value of the article without reference to the contents, but if he is made acquainted with the contents if he is told that the box contains gold or jewels, glass or china, of great value, he is then bound to exercise a degree of care proportioned to the proper keeping of such articles, and if he then exposes the box in unsafe places, or subjects it to rough or improper treatment, and the contents are damaged or destroyed, he must make compensation to the owner to the full extent of the injury sustained. (ƒ)

The degree of care which the depositary is bound to take in the selec tion of a safe place of deposit is (as previously mentioned) that degree of care which he has been in the habit of extending to his own property. In reference to this rule it has been thought that if the depositary loses his own goods at the same time that he loses the deposit, he shall not be answerable, as he has taken as much care of the latter as of his own property. The question of liability, however, is not to be determined by

(e) Doorman v. Jenkins 2 Ad. & E. 256; 4 N. & M. 173. Domat. L. 1, tit. 7, s. 3, 4. Dig. lib. 50. tit. 16, 223. Jones v. Lewis, 2 Ves. sen. 240.

(f) Bonion's case Pasch. 8 Edw. 2. Mayn. Year Book, 275. Fitz. Abr. Detinue 59. Ersk. Inst. B. 3. tit. 1, § 27, p. 490; 1 Stark. 239;

Donat. dep. 1. 17. Si cista signata deposita sit, utrum cista tantum petatur; an et species comprehendendæ sint et ait Trebatius cistam repeten dam, non singularum rerum depositi agendum. Quod si res ostensa sunt; et sic deposite adici endæ sunt et species vestis. Dig. lib. 16, lex 1, $ 41.

what the depositary may have done in the particular instance, but by his general habits and character, and mode of life, and the degree of care he has ordinarily bestowed upon his own property. If he has been guilty of gross neglect, he cannot excuse himself from liability by showing that he lost his own goods at the same time that he lost his neighbour's.(g) Thus, where a coffee-house keeper took charge of a sum of money, and put it with a larger sum of money of his own into his cash-box, which he left in the public tap-room of his coffee-house, from whence it was stolen, it was held that the circumstance of his having lost his own money, together with the deposit, would not exculpate him from the charge of gross negligence.(h)

The law, however, expects the depositor to exercise a reasonable amount of vigilance in the protection of his own interests, and if he will blindly and without making any previous inquiry go and deposit goods in the hands of a person of weak intellect, or a child, or a minor, without experience, or a notoriously idle and careless, or drunken fellow, he cannot expect the same care from them, as from a prudent and cautious housekeeper; and if the goods are injured or lost by the gross negligence of such depositaries, he must bear the consequence of his own rashness and folly, and put up with the loss. Having himself been guilty of gross negligence in the first instance by intrusting property to a person of whom he knew nothing, and into whose previous habits and character he did not trouble himself to inquire, he has no ground either in foro conscientiæ or in point of law to charge the bailee with the loss. Having invited the disaster himself he must bear the brunt of it.(i) So if after the deposit the depositary becomes of unsound mind, or falls into drunken or disorderly habits, and the depositor is near at hand, and has full knowledge thereof, but makes no attempt to protect himself by withdrawing the deposit, and a loss afterwards occurs, the law will not help him to obtain redress. But if after having trusted his property to the care of a person of character and reputation, he were to depart to a distance and deprive himself of the power or opportunity of retaking it, the depositary would continue respon

(g)"There are some expressions in Lord Holt's judgment from which a superficial reader might infer that his lordship thought a depositary would always be secure provided he kept the goods deposited with as much care as his own, but on looking attentively at the whole context it appears that his lordship considered the bailee's keeping goods deposited as he kept his own as an argument against the supposition that gross negligence had been committed rather than as any sub

stantial ground of discharge." 1 Smith's leading cases, 99.

(h) Doorman v. Jenkins, 2 Ad. & E. 258; 4 N. & M. 170, s. c. Nelson v. Mackintosh, post.

(i) Quia qui negligenti amico rem custodiendam tradit sibi ipsi et propriæ fatuitati hoc debet imputare. Brac. Lib. 3, 99. b.; Inst. lib. 3 tit. 15, § 3. Dig. lib. 16, tit. 3, 32. Holt, C. J, Coggs v. Bernard, 2 Raym. 914, 915.

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