Sir William Jones thinks the depositary held for less than gross negligence, first, where he makes a special bargain for special care, and secondly, where he spontaneously and officiously proposes to keep the goods of another. (k) But neither of these rules has been determined by adjudication.

(i) The William, 6 Rob. Adm. 316. In this case a vessel had been captured, and was afterwards lost while in the hands of the captor. The capture was justifiable, and the question was whether the captor had used such diligence as a captor is required to use in such cases. Sir W. Scott, in addressing the jury, said : " When a capture is not justifiable, the captor is answerable for every damage. But in this case the original seizure has been justified by the condemnation of part of the cargo. It is therefore to be considered as a justifiable seizure, in which all that the law requires of the captor is, that he should be held responsible for due diligence. But on questions of this kind there is one position sometimes advanced, which does not meet with my entire assent, namely, that captors are answerable only for such care as they would take of their own property. This I think is not a just criterion in such cases; for a man may, with respect to his own property, encounter risks, from views of particular advantage, or from a natural disposition of rashness, which would be entirely unjustifiable in respect to the custody of the goods of another person, which have come to his hands by an act of force. Where property is confided to the care of a particular person, by one who is, or may be supposed to be acquainted with his character, the care which he would take of his own property might, indeed, be considered as a reasonable criterion." "Certainly it might," says Mr. Justice Story, "if such character was known, and the party under the circumstances might be presumed to rely, not on the rule of law, but on the care which the party was accustomed to take of his own property, in making the deposit. But, unless he knew the habits of the bailee, or could be fairly presumed to trust to such care as the bailee might use about his own property of a like nature, there is no ground to say that he has waived his right to demand reasonable diligence. Why should not the rule of the civil law be applied to such a case? Latae culpae finis est, non intelligere id quod omnes intelligunt." Story on Bailm. § 07. See the case of Wilson v. Brett, 11 M. & W. 118.

(j) Knowles v. Atlantic & S. L. R. R Co. 38 Me. 56.

(k) Jones on Bailm. 48.

The depositary is bound to deliver the thing as it was, and with it all its increase or profit. But if the jailor was not the rightful owner, and the depositary, in good faith, delivers the thing to the rightful owner on demand from him, this constitutes a good defence against the bailor; (l) although, for his own security, he should, if possible, compel the rival claimants to interplead, (m) or should obtain security from the party to whom he delivers it.

If the property belongs to two or more bailors, and is capable of partition, he may on demand restore it by division among them. But where it is incapable of division the law seems to be deficient. The ancient action of detinue, with the process of garnishment, would have settled the claim. Kent (n) thinks equity interpleader adequate, and far better; as it certainly would be if it could be applied to the question; but this, Story (o) confines to cases of a privity between the parties, as where there was a joint bailment, or joint contract. Upon the whole we prefer Kent's opinion.

The duty of the depositary as to the place of delivery has been much questioned. But it may be considered as settled in this country, that a bailee, bound to deliver goods on demand, discharges his obligation by delivering or tendering them where they are, or at his own residence or place of business; (p) but the demand may be made on him elsewhere. (q)

It is sometimes said that a depositary has a special property * in the deposit; but this is perhaps inaccurate. (r) He has the right of possession, but not the right of property; and may therefore maintain trover, for which possession is enough; (s) but not replevin, because that action requires property in the plaintiff. (t) If he sell the property, a

(l) King v. Richards, 6 Whart. 418; Kelson v. Iverson, 17 Ala. 210; Beach v. Berdell, 2 Duer, 827.

(m) Rich v. Aldred, 6 Mod. 216.

(n) 2 Kent, Com. 667.

(o) Story on Bailin. % 112.

\p) Scott v. Crane, 1 Conn. 256; Slingerland v. Morse, 8 Johns. 474.

(q) Higgins v. Emmons, 6 Conn. 76; Dunlap v. Hunting, 2 Denio, 643.

(r) Hartop v. Hoare, 3 Atk. 44; Story on Bailm. § 08 et seq.

(s) Sutton v. Buck, 2 Taunt 802; Burton v. Hughes, 2 Bins. 178. See also Webb v. Fox, 7 T. R. 891; Giles v. Grover, 6 Bligh, 277.

(t) At least such is the law in Massachusetts. Waterman v. Robinson, 5 Mass. 803. That was an action of replevin. It appeared that the goods replevied, on the 20th of July, 1801, belonged to one Lucas, on which day a commission of bankruptcy issued against the said Lucas, and he being declared a bankrupt, by a warrant from the commissioners, their messengers seized the goods in question, caused them to be appraised and inventoried, and on the 28th day of the same July delivered them to the plaintiff, taking his obligation to redeliver them on demand. While the goods were so in the custody of the plaintiff, the defendant, as deputy-sheriff, attached them as the property of Lucas.

purchaser, although buying in good faith and without notice, acquires no title. (u) A deposit in a bank has been held to be a loan, not a bailment. (uu) One cannot be made a depositary against his will. (v)

Upon these facts the court held, that the plaintiff could not recover. Parsons, C. J., said: "Upon these facts we are to decide whether the property of the goods, so that he might lawfully replevy them, was in the plaintiff. Trover may be maintained by him who has the possession; but replevin cannot be maintained but by him who has the property, either general or special. Admitting the commission, and the proceedings under it, to be regular, what property had the plaintiff in the goods? The general property was in the commissioners until the assignment, and then in the assignee. The messenger, if any person, had the special property, and not the plaintiff, who had no interest in the goods, but merely had the care of them for safe-keeping. If his possession was violated, he might maintain trespass or trover, but he had no special property, by which he could maintain replevin; in which the question is not of possession, but of property, although possession may be prima facie evidence of property. On this ground we are of opinion that the plaintiff cannot maintain this action, he not proving that either the general or special property was in himself." So in the case of Templeman v. Case, 10 Mod. 24, it is said, that a possessory right is sufficient to maintain an action of trespass or case, though not replevin. In New York, on the other hand, it is held, that replevin will lie in favor of a depositary. See the case of Miller v. Adsit, 16 Wend. 385. And the court seem to have entertained a similar opinion in 21 H. 7, 14 b, pi. 28. That case was as follows: "In replevin. The defendant said that the property, etc., was in a stranger. The plaintiff said that the stranger delivered them to him to be redelivered, and before any redelivery the defendant took them. Marow said that he would demur upon that plea. For he said it was adjudged in a book, that if one has beasts for a term of years, or to manure his land, there he shall have replevin. And the reason is, he has a good property for the time against the lessor, and shall have an action against him if he retakes them. But where he cannot have an action against the lessor it seems that he shall not have replevin. And here there is only a delivery to redeliver to the bailor, so that he has not any property. For if one takes them out of the possession of the bailee, the bailor shall have an action of trespass, and if he recovers by this, the bailee shall never have an action for the taking. Wherefore, etc., Fineux, C. J. This is not a new case. For a case similar to this has been several times adjudged in our books; as the case of letting beasts for a term of years, and to manure land, etc. And in the case here the bailee has a property against every stranger, for he is chargeable to the bailor. And therefore it is reasonable that he should recover against any stranger who takes them out of his possession. Therefore, when the plaintiff has had conveyed to him such special property, it seems that it is good in maintenance of his action. Marow then prayed further time, and said that as he was then advised, he would demur upon that plea. Fineux, C. J. And you will not be so well advised to demur upon this plea; but we shall be as well advised to give judgment against you."