On the other hand, the use of the apparently cognate English words "deposit" and "mandate" is still more unfortunate, for these terms not only have indefinite meanings, but they also apply to legal relations which are not bailments at all. Accordingly, it is believed that the Roman terms are clearer, if it is understood that they are to be used merely to designate the two classes of bailments for the bailor's sole benefit with no attempt to give to the terms their exact and scientific meanings under the Roman law. The two classes of bailments may well be treated together, for the degree of diligence required and the other important legal consequences are the same in each case; the only substantial differences in the rights and duties of the parties being such as naturally and obviously result from the difference in the purpose of the bail ments. Depositum A depositum has already been defined as a bailment of goods for mere custody, without recompense. The bailor reaps all the benefit by having his goods kept without payment therefor. The bailee receives no benefit from the bailment; he keeps the goods purely as a gratuitous favor to the bailor. There are various other definitions of a depositum," but it is sufficient here to indicate that essentially it is the bailment relation resulting from the delivery of a thing to be kept by the bailee without reward, and, further, that there are no duties demanded of the bailee towards the thing en 8 Thus the ordinary "deposit" of money in a bank is not a bailment, while the word "mandate" signifies, in appellate proceedings, the precept or order of the higher court directing the action to be taken, or the disposition to be made of the case, by the lower court. Black's Law Dictionary, "Mandate." 4 Ante, p. 11. A deposit is defined by Sir William Jones (Jones, Bailm. § 36) as being a naked bailment of goods, to be kept for the bailor without reward, and to be returned when he shall require it; but Judge Story (Story, Bailm. § 41) suggests as a correction that it is "a bailment of goods to be kept by the bailee without reward, and delivered according to the object or purpose of the original trust." In his reason for this amendment, Judge Story embodies the fact emphasized in the definition of bailment as laid down in the first pages of this book; namely, that, on the termination of a bailment, the thing may either be returned to the bailor, or be delivered over to some third party, specified by the bailor. The definition given by Pothier (Pothier, Traité de Dépot, note 1) is that a deposit is a contract by which one of the contracting parties gives a thing to another to keep, who is to do so gratuitously, and obliges himself to return it when he shall be requested. Ulpian (Com. Dig. lib. 16, tit. 36 [1]) gives as a definition: "Depositum est quod custodiendum alicui datum est" (it is a deposit because it is given to some one to keep). See, also, Whiting v. Chicago, M. & St. P. Ry. Co., 5 Dak. 90, 37 N. W. 222; Bunnell v. Stern, 122 N. Y. 539, 25 N. E. 910, 10 L. R. A. 481, 19 Am. St. Rep. trusted to him which are not involved in merely keeping it for the bailor. In the depositum, the bailor is usually called the "depositor" and the bailee the "depositary." The most important depositaries from a legal standpoint are finders of lost goods and banks receiving special deposits. An ordinary deposit of money in a bank, though, must not be confused with this last type of bailments. Such a deposit is not a bailment, for the identical money need not be returned, but is rather in the nature of a commercial loan, and accordingly the relation which it creates is that of debtor and creditor, and not that of bailor and bailee. But where gold, bonds, stocks, or other things of value, or even money, is deposited with a bank on the understanding that the identical thing deposited is to be • Thibaud v. Thibaud's Heirs, 1 La. 493. A., as the agent of B., deposits a sum of money with C., with a request that he will keep it until B. returns home (he being absent at the time), and then pay it to him, which C. agrees to do. Held, that C. is a depositary, and not liable to be sued for the money by B. until after a request to pay it. Montgomery v. Evans, 8 Ga. 178. If a person consents that a deposit of money shall be made in his name in a bank, for the purpose of accommodating the owner, with no control over it other than to draw it out when the owner should direct, he will not be held liable for its safe-keeping. Dustin v. Hodgen, 38 Ill. 352. 7 Cory v. Little, 6 N. H. 213, 25 Am. Dec. 458; Dougherty v. Posegate, 3 Iowa, 88. The finder of property on land is a bailee thereof without reward. The owner is liable to the finder, however, for the necessary expenses of preserving the property if the owner reclaims it. Chase v. Corcoran, 106 Mass. 286. A receiptor is primarily liable as a bailee without hire. Thus, in Brown v. Cook, 9 Johns. (N. Y.) 361, a constable, having taken goods on an execution against B., delivered them to C., who gave a receipt for them, promising to deliver them to the constable on demand. The constable suffered the execution to expire without making any demand for the goods. In an action brought by the constable against C., it was held that he was a mere naked bailee, and that no action would lie against him until after a demand and refusal of the goods. If a chattel be taken from one who receipts and promises in writing to redeliver it, by another who has a paramount title, the bailee is discharged. Edson v. Weston, 7 Cow. (N. Y.) 278. See, also, Cornell v. Dakin, 38 N. Y. 253; Murgoo v. Cogswell, 1 E. D. Smith (N. Y.) 359; Parker v. Evans, 23 Mo. 67; Bobo v. Patton, 6 Heisk. (Tenn.) 172, 19 Am. Rep. 593. • Post, p. 55. • Commercial Bank of Albany v. Hughes, 17 Wend. (N. Y.) 94; Carroll v. Cone, 40 Barb. (N. Y.) 220; Phoenix Bank v. Risley, 111 U. S. 125, 4 Sup. Ct. 322, 28 L. Ed. 374. "The primary relation of a depositor in a savings bank to the corporation is that of creditor, and not that of a beneficiary of a trust. The deposit when made becomes the property of the corporation. The depositor is a creditor for the amount of the deposit, which the corporation becomes liable to pay, according to the terms of the contract under which it is made." Andrews, J., in People v. Mechanics' & Traders' Sav. Inst., 92 N. Y. 7, 9. And see Chapman v. White, 6 N. Y. 412, 417, 57 Am. Dec. 464. See, also, Vandagrift v. Masonic Home of Missouri, 242 Mo. 138, 145 S. W. 448; Reid v. Charlotte Nat. Bank, 159 N. C. 99, 74 S. E. 746. DOB.BAILM.-4 returned, this transaction is called a "special deposit," and constitutes a bailment.10 Mandatum Perhaps the most celebrated definition of a mandatum is that of Lord Holt in COGGS v. BERNARD": "A delivery of goods or chattels to somebody who is to carry them or do some act about them gratis, without any reward for such work or carriage." In other words, the mandatum is a bailment of goods for the purpose of having some more or less active services (beyond mere custody) performed about them by the bailee, who receives no recompense for these services.12 The performance of these services by the bailee is a gratuitous favor on his part, while the bailor receives, without paying therefor, the benefit of having these services performed about his goods. Depositum and Mandatum Distinguished Great stress was formerly laid on the distinction between a mandatum and a depositum, as to their respective purposes. This, according to Sir William Jones,13 was the fact that a mandatum lay 10 Foster v. President, etc., of Essex Bank, 17 Mass. 479, 9 Am. Dec. 168; First Nat. Bank of Carlisle v. Graham, 79 Pa. 106, 21 Am. Rep. 49; Scott v. National Bank of Chester Valley, 72 Pa. 471, 13 Am. Rep. 711; First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278, 19 Am. Rep. 181; Preston v. Prather, 137 U. S. 604, 11 Sup. Ct. 162, 34 L. Ed. 788; Griffith v. Zipperwick, 28 Ohio St. 388. 112 Ld. Raym. 909, Dobie Cas. Bailments and Carriers, 1. And see CONNER v. WINTON, 8 Ind. 315, 65 Am. Dec. 761, Dobie Cas. Bailments and Carriers, 54. 12 This definition is practically adopted by Sir William Jones (Jones, Bailm. 117) when he says that a mandate is a bailment of goods without reward, to be carried from place to place, or to have some act performed about them. According to Kent (Comm. 12th Ed. 568), "a mandate is when one undertakes, without recompense, to do some act for another, in respect to the thing bailed." A mandate is a contract by which one commits a lawful business to the management of another who undertakes to perform the service gratuitously. Richardson v. Futrell, 42 Miss. 525; McCauley v. Davidson, 10 Minn. 418, 421 (Gil. 335); Eddy v. Livingston, 35 Mo. 487, 492, 88 Am. Dec. 122; Bronnenburg v. Charman, 80 Ind. 475, 477. Where one carried gold dust as a favor from California to New Orleans, to be delivered to a third person, and the mandator gave the mandatary the privilege of converting the gold dust into coin, such a conferring of power did not change the relationship of bailor and bailee into that of debtor and creditor. Goodenow v. Snyder, 3 G. Greene (Iowa) 599. Delivery of a horse to a farrier, who gratuitiously offers to cure him, is bailment of the horse, and the farrier becomes a mandatary. CONNER v. WINTON, 8 Ind. 315, 65 Am. Dec. 761, Dobie Cas. Bailments and Carriers, 54. See, also, Funkhouser v. Ingles, 17 Mo. App. 232; Devalcourt v. Dillon, 12 La. Ann. 672. 18 Jones, Bailm. 53. in feasance, and a depositum merely in custody. Judge Story 14 and many others have clearly pointed out, though, that for practical purposes the importance of the distinction is almost negligible. This is true, since the mere custody of a thing involves the performance of some services, while the services demanded in a mandatum require the custody of the thing in order that they may be performed. The true distinction between them is that in the case of a depositum the principal object of the parties is the custody of the thing, and the service and labor are merely accessorial; in the case of a mandatum, the labor and service are the principal objects of the parties, and the custody of the thing is merely accessorial.15 NATURE OF THE RELATION 22. Bailments for the sole benefit of the bailor may be created (a) By contract, or (b) By operation of law. By Contract Bailments for the sole benefit of the bailor are in the great majority of cases created by express contract. The bailee usually expressly agrees either to keep the thing deposited, or to perform some active services about it, as the case may be.16 When the bailment is thus created by express contract, the ordinary rules of contracts, both as to their construction and validity, are applicable and require no further discussion here.17 By Operation of Law It has been seen that bailments may be created by operation of law, independently of any express contract between the parties.18 Such a bailment is called a quasi or constructive bailment. It is usually for the sole benefit of the bailor and is substantially in legal contemplation a depositum. If the law, however, in a particu 14 Story, Bailm. § 140. "In cases of deposit," says he, "something almost always remains to be done, besides a mere passive custody. If the deposit is perishable, labor must be performed to keep it in proper order. If it is a living animal, as a horse, suitable food and exercise must be given to it. In the next place, in mandates there is commonly custody; the possession of the thing being generally indispensable to the performance of the act intended by the parties, so that in each contract there is custody, and labor and service to be performed." 15 Story, Bailm. § 140. 16 Lethbridge v. Phillips, 2 Starkie (Eng.) 544; Foster v. President, etc., of Essex Bank, 17 Mass. 479, 9 Am. Dec. 168; Eddy v. Livingston, 35 Mo. 487, 88 Am. Dec. 122. 17 Ante, p. 16. 18 Ante, p. 23. lar bailment awards the bailee compensation, as in the case of salvage for property saved at sea, the bailment is then one for mutual benefit.19 As has been seen, however, it is a general rule that the law will not impose the liabilities of a bailee on one unless he voluntarily accepts possession of the goods. No man can be made a bailee of another's property without his express or implied consent. The finder of lost goods, for example, is under no obligation whatsoever to take them into his custody; but if he does voluntarily assume the care of them, he thereby becomes burdened with the liabilities of a depositary.20 Involuntary Deposits An exception to the general principle that the duties of a bailee are never by law thrust upon a person without his consent is found in a somewhat anomalous class of bailments, which Story aptly calls "involuntary deposits." These arise whenever the goods of one person have by an unavoidable casualty or accident been lodged upon the land of another person, as where lumber floating in a river is cast upon the land of another person by a sudden freshet and left there, or where goods are blown upon the land of another by a tempest.21 The rights and duties of the parties in this class of cases are not very well settled, as they are not of frequent occurrence. But it would seem that the owner of the land is a quasi bailee, with liabilities similar to those of a finder of lost property. He cannot, when there is no fault on the part of the owner of goods, refuse to deliver the goods to their owner and decline to permit the latter to remove them.22 But if the goods are cast upon another's land through the negligence or wrong of the owner, the owner has no right, at least without making compensation, to enter to remove them.23 Even here, though, the landowner would have no right to use the goods or otherwise dispose of them. So, also, it seems that the owner of the goods would be liable if he fails to remove his goods after due notice, even though they were cast there originally without his fault. 19 Story, Bailm. § 622; Abbott, Shipp. (5th Ed.) pt. 3, c. 10, §§ 1, 2; In re Cargo ex Schiller, 2 Rob. Div. (Eng.) 145; post, p. 103. 20 Ante, note 7. 21 Walker v. Norfolk & W. R. Co., 67 W. Va. 273, 67 S. E. 722; Anthony v. Haney, 8 Bing. (Eng.) 186; Mitten v. Faudrye, Poph. (Eng.) 161 (same case as Millen v. Hawery, Latch [Eng.] 13); Nicholson v. Chapman, 2 H. Bl. (Eng.) 254. 22 Cases in preceding note; Read v. Smith, 2 N. B. (Can.) 288. 28 Anthony v. Haney, 8 Bing. (Eng.) 186. And see Jaggard, Torts, 149. |