it; and this has been shown more fully, and with equal acuteness and learning, by Sir William Jones; and I would recommend what he says upon that case as a fine specimen of judicial criticism.

If the depositary be an intelligent, sharp, careful man in respect to his own affairs, and the thing intrusted to him be lost by a slight neglect on his part, the better opinion would seem to be, that he then is responsible. Pothier (b) says, that this has been a question with the civilians; and he is of opinion the depositary would be liable in that case; for he was bound to that same kind of diligence which he uses in his own affairs, and an omission to bestow it was a breach of fidelity. But he admits that it would not be a very suitable point for forensic discussion to examine into the character of the depositary; and that the inquiry into the comparative difference between the attention that he bestows on his own affairs, and on the interest of others, would be a little difficult. An example is stated by Pothier, (c) to test the fidelity of the depositary. His house is on fire, and he removes his own goods, and those of the bailor are burned; is he then responsible? He certainly is, if he had time to remove both. If he had not, Pothier then admits that a breach of faith cannot be imputed to him for having saved his own effects in preference to

those of another intrusted to his keeping. But if the goods * 565 intrusted to him were much * more valuable than his own, and as easily removable, then he ought to rescue the deposited goods, and to look to them for an average indemnity for the loss of his own.

There are several cases in which a naked depositary is answerable beyond the case of gross neglect. He is answerable, 1. When he makes a special acceptance to keep the goods safely. 2. When he spontaneously and officially proposes to keep the goods of another. He is responsible in such a case for ordinary neglect; for he may have prevented the owner from intrusting the goods with a person of more approved vigilance. Both those exceptions to the general rule on the subject are taken from the Digest, (a) and stated by Pothier and Sir William Jones. (b) 3. A third

(b) Contrat de Dépôt, No. 27. (b) Pothier, Contrat de Dépôt, French Code Civil, art. 1927, 1928.

(c) Ibid. No. 29. (a) Dig. 16, 3, 1, 35. Nos. 30, 31, 32. Jones on Bailment, 47, 48. The Code of Louisiana, art. 2908, 2909. Mr. Justice

exception is, when the depositary is to receive a compensation for the deposit.1 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 warehouseman, 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. (c) 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. (d) 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, without gross negligence on his part, he is not liable. This was so ruled by Lord Kenyon, in Finucane v. Small. (a)

But

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. after studying Lord Holt's masterly 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 bail

Story, in his Commentaries, §§ 81, 82, Ibid. § 215, 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.

(c) Garside v. The Proprietors of The Trent Navigation, 4 Term Rep. 581. Cailiff v. Danvers, Peake Cas. 114. Thomas v. Day, 4 Esp. (N. P.) 262. He is not responsible, if not chargeable with negligence, though the goods be stolen or embezzled by his storekeeper or servant. Schmidt v. Blood, 9 Wendell, 268.

(d) Leck v. Maestaer, 1 Campb. 138. Clarke v. Earnshaw, Gow, 30. See also te the same point, 1 Bell Com. 458.

(a) 1 Esp. N. P. 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. Scotsford, Yelv. 23. Edson v. Weston, 7 Cowen, 278.

1 A sheriff having custody of goods under process, is bound to use more than ordinary care. Moore v. Westervelt, 21 N. Y. 103.

ment is undoubtedly superior in the extent, precision, and perspicuity of its details, and in the aptitude of the examples 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. (b) 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. (c) 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 unless another *567 * 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. (a) 2 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. (b) He is equally so, as we have already seen, if he has been wanting in fidelity, or in that ordinary 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 Jones (c) refers to a case in 12 Hen. IV. 18, abridged

(b) Armory v. Delamirie, 1 Str. 505. Rooth v. Wilson, 1 Barn. & Adol. 59. (c) Thorp v. Burling, 11 Johns. 285. Brownell v. Manchester, 1 Pick. 232. Taylor v. Plumer, 3 Maule & Selw. 562. Rich v. Aldred, 6 Mod. 216. (a) King v. Richards, 6 Wharton, 418.

(b) Pothier, Contrat de Mandat, n. 58, 59. Prét a Usage, n. 31, 33, 73, 74. Game v. Harvie, Yelv. 50. Coggs v. Bernard, 2 Lord Raym. 909. Civil Code of Louisiana, art. 2919.

(c) Essay on Bailment, 52.

1 And if he deliver to the bailor in good faith, not knowing the claim of the true owner, he is not liable to the latter. Nelson v. Jonson, 17 Ala. 216.

Cheesman v. Exall, 4 Eng. L. & Eq. 438. See Bates v. Stanton, 1 Duer, 79; Pitt v. Albritton, 12 Ired. 74; Beach v. Berdell, 2 Duer, 327.

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 law (d) 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 apprised the depositary of their demand 568 upon him for their deposit. (a) 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. (b) The depositary has,

*

(d) Dig. 16, 3, 1, 36, 37.

(a) Mr. Justice Story says, that where the parties claim in absolutely adverse rights, not founded in any privity of title, or any common contract, the bailee must defend himself as well as he may, for he cannot compel mere strangers to interplead. Com. on Bailments, § 110. This, if it be a rule in chancery, is a defect in the equity process and jurisdiction 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 & Cr. 1, 19, and in Hoggart v. Cutts, 1 Cr. & Phil. 197.

(6) May v. Harvey, 13 East, 197. The Code Napoleon says, that the depositary must not give up the thing deposited, 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

perhaps, strictly speaking, no property, general or special, in the article deposited. (c) 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. (e) If he sells the goods deposited for a particular purpose, in breach of his trust, the bona fide purchaser, without notice, is not protected against the real owner. (f)1 The same reasonable care is requisite, in

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 these codes leave the inference to be drawn, that if the thing be indivisible, it cannot safely be delivered to one or two or more claimants, without their joint agreement or consent. See, also, Story's Comm. §§ 114–116, as to the duty of the depositary in respect to delivery in cases of a joint bailment.

(c) Story's Com. on Bailment, § 93.

(d) Dig. 16, 3, 29. Pothier, Traité de Dépôt, n. 34. French Code, Civil, art. 1930. Code of Louisiana, art. 2911. Story's Com. §§ 89–92.

(e) Dig. 16, 3, 17. 1 Bell's Com. 257. Rooth v. Wilson, 1 Barn. & Adol. 59. Hartop v. Hoare, 3 Atk. 44. 1 Wils. 8. Lord Coke, in Isaack v. Clark, 2 Bulst. 311. Story's Com. § 93. Moore v. Robinson, 2 Barn. & 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. Delamirie, 1 Str. 505. Fisher v. Cobb, 6 Vermont, 622. Giles v. Grover, 6 Bligh (N. S.) 277. Sutton v. Bock, 2 Taunt. 302. Oughton v. Seppings, 1 Barn. & Adol. 251. Story's Com. §§ 93, 94. 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 wrong-doer. See, in Story on Bailments, §§ 124–135, 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 wrong-doer. It has been so decided in New Hampshire, in Poole v. Symonds, 1 N. Hamp. 289, and this is the principle in the case from Wendell. Thayer v. Hutchinson, 13 Vermont, 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, he holds for the general owner. White v. Webb, 15 Conn. 302.

(f) See supra, p. 325.

1 See McMahon v. Sloan, 12 Penn. 229.