§ 835. A deposit is a bailment of a thing for custody, without compensation.1 Depositum est quod custodiendum alicui datum est. A deposit differs from the mutuum of the civil law, in that, in the former case, the identical thing is to be returned, and, in the latter, some equivalent only of the same kind, nature, or quality.2 A deposit of money with a banking corporation is generally only a mutuum, for the bank is to restore, not the same money, but an equivalent sum; though there may be a special deposit, where the specific money is to be restored.8 In the case of a general deposit of money, the money becomes the banker's, and the banker the depositor's debtor;4 but a special deposit remains the property of the depositor, and the depositary has nothing but the mere possession and custody.5

§ 836. A deposit may be made by and between any persons competent to contract, but it can only be made in respect to personal or movable property. Debts, choses in action, and other instruments and evidences of debt, may also be made the subject of this bailment.1 It is by no means necessary for the depositor to have a legal right or title to the deposit. If he have possession thereof, it will be sufficient; and he may, in such case, recover against every one but the rightful owner.2 If his possession be tortious, the rightful owner may repossess himself of the deposit, wherever it be. If, therefore, a person receive an article upon deposit, which belongs rightfully to himself; or which, subsequently, during the time that it remains in his hands, becomes his property, he may appropriate it, unless an injury is thereby done to the rights of a third person.3

1 Story on Bailm. § 41; Jones on Bailm. 36,117; 1 Bell, Comm. p. 257; 1 Dane, Abr. ch. 17, art. 1, § 3; 2 Kent, Comm. 560, 4th ed.; Ersk. Ins. B. 3, tit. 1, § 26; Pothier, Traité de Dépôt, n. 1; Moreau & Carlton's Partidas, 5, tit. 3, 1. 1.

2 Just. Inst. Lib. 3, tit. 15; Dig. Lib. 44, tit. 9, 1. 1, § 2; Dig. Lib. 12, tit. 1, 1. 2, § 2; Pothier, Pand. Lib. 12, tit. 1, n. 9, 10; 1 Bell, Comm. § 197, 257, 258, 5th ed.; Story on Bailm. § 47. See South Australian Ina. Co. v. Randell, 6 Moore, P. C. (n. s.) 341.

3 See Henry v. Porter, 46 Ala. 294 (1871).

4 Foley v. Hill, 2 H. L. Cas. 28. Similar principles prevail as to the delivery of grain in grain elevators. See South Australian Ins. Co. v. Randell, Law R. 3 P. C. 101; 8. c. 6 Moore, P. C. (n. s.) 341 (1869); also an interesting article, 6 Am. Law Rev. p. 450.

5 See Williams v. Landry, 18 La. An. 208.

§ 837. A delivery of the deposit must be made, either to the depositary, or to some person having authority to receive it for him. Thus, a delivery to an agent is sufficient to bind his principal, if within the scope of his authority, or with the approbation of the principal; and not otherwise.

§ 838. The essential characteristics of a strict deposit are, that it be gratuitous and voluntary, and have for its object the keeping of the thing, and that the specific thing is to be returned. In the first place, it must be gratuitous; for, if compensation be given, it is a bailment of hiring (locatio custodial), and not a deposit. But if no compensation be given for the keeping, the bailment may be a deposit, although rent be paid for the room in which it is placed. The question is, whether the bailee receives a recompense for his care and attention in keeping the article, and not whether he is indemnified for the space which it occupies.

1 Story on Bailm. 51; Arnold v. Jefferson, 1 Ld. Raym. 275; 1 Roll. Abr. 5, K. 3; 1 Bell, Coram. § 199, 4th ed.; jb. p. 258, 5th ed.

2 Armory v. Delamirie, 1 Str. 505; Rooth v. Wilson, 1 B. & Al. 59; Com. Dig. Action on the Case, Trover, B. D.; 2 Saund. 47, and note by Williams; 2 Kent, Comm. 566, 567, 4th ed.; Learned v. Bryant, 13 Mass. 224; Pothier, Traité de Dépôt, n. 51.

3 Hartop v. Hoare, 3 Atk. 44; Taylor v. Plumer, 3 M. & S. 562; 2 Story, Eq. Jur. § 1257 to 1260; Mills v. Graham, 1 Bos. & Pul. N. R. 140; Story on Bailm. § 52, 53, 58; Dig. Lib. 16, tit. 3, 1. 15; Pothier, Traité de Dépôt, n. 4.

§ 839. So, also, the bailment must ordinarily be voluntarily assumed by the bailee. No person can be forced to become a depositary against his will, except in cases of extraordinary peril or danger, where he is made a bailee from the exigencies of the case, - as in case of fire and shipwreck; or where the bailment is made by accident, - as if lumber floating in a river should drift upon his land, or fruit overhanging his wall should drop upon his land.1 His consent will be inferred from circumstances, and need not be expressly given. Thus, if a creditor hold a pledge, after payment of the debt for which it was given, he holds it as a deposit.2 So, also, a person may assume the liabilities of a depositary by taking charge of property which he finds; he is not, however, bound to assume any custody of it; but if he do, he becomes a depositary, and is liable for any loss resulting from gross or wilful negligence.3 But where a person becomes a depositary by implication, as by finding, and he assumes necessary labor or expense in preserving it, he is entitled to a remuneration therefor.4 Thus, if a horse be found, and the finder be put to trouble and expense in discovering the owner, or feeding the horse, he would be entitled to a recompense therefor, which constitutes an exception allowed on peculiar grounds.

§ 840. Again, the specific thing deposited must be restored, for if it be surrendered for use and consumption, and the contract contemplate the return only of its equivalent, the transaction becomes a different species of bailment, and is a commodatum, or loan for use and consumption, involving different duties and responsibilities.5 Thus, if money be deposited with a banker with the understanding that the identical coins or notes are to be returned, he is a depositary; but if it be understood that he is to be at liberty to use it, and only to restore an equivalent value in other coins or notes, he is not a simple depositary, but a borrower.1