4 Story on Bailm. § 74, 79; Dig. Lib. 50, tit. 17, 1. 23; Jones on Bailm. 47, 48; Bradish v. Henderson, 1 Dane, Abr. ch. 17, art. 11, § 4; Nelson v. Macintosh, 1 Stark. 238.
§ 845. The general rule is, that a depositary has no right to use the thing deposited; and if he do, and the deposit is thereby lost or injured, he is bound to make good the loss; 3 but this rule is subject to modifications. Thus, if the use would be for the benefit of the depositor, or the advantage of the deposit, his assent thereto will be presumed. So, also, whenever it would apparently be indifferent to the owner whether the thing were used or not, and there are no circumstances tending to negative the presumption of assent, the thing may be used. Thus, if a setter should be deposited, assent to the proper use of him for sporting would be fairly presumed; because it would be for the benefit of the owner that he should be kept in training. So, where a picture is deposited, it would be fairly presumed to be a matter of indifference, whether it be hung up and shown in the house, or whether it be stored away. But where the use of the deposit would be injurious thereto, the presumption is against the assent of the owner to the use thereof.1
1 Jones on Bailm. p. 38, 39; Coggs v. Bernard, 2 Ld. Raym. 909, 914, 915; Story on Bailm. § 77-79; Bonion's Case, Pasch. 8 Edw. II.; Dig. Lib. 16, tit. 3, 1. 1, § 41.
2 1 Bac. Abr. Bailment, D.; Mosgrave v. Agden, Owen, 141; Coggs v. Bernard, 2 Ld. Raym. 909; Noy, Maxims, ch. 43, p. 92; Doct. & Stud. Dial. 2, ch. 36; Story on Bailm. § 85, 86; Com. Dig. Trover, E.; Mulgrave v. Ogden, Cro. Eliz. 219; Vandrink v. Archer, 1 Leon. 222; Isaack v. Clark, 2 Bulst. 306, 312; s. c. 1 Roll. 126, 130.
3 Cod. Lib. 4, tit. 34, 1. 3; Dig. Lib. 16, tit. 3, 1. 29; Merry v. Green, 7 M. & W. 623.
§ 846. The identical thing deposited must be returned, as nearly as possible in the same condition as that in which it was received. If there be any natural increment therefrom, as if the deposit be an animal, and it bring forth young, such increment, also, must be surrendered; and if a part be lost, the remainder must be restored. So, also, if, in consequence of the perishable nature of the deposit, the depositary be compelled to sell it, he must pay to the depositor the proceeds of such sale.2 If, however, he sell it without necessity, it will be a tortious conversion of the deposit.3 And if he refuse to redeliver the deposit, upon proper demand by the depositor or rightful owner, he renders himself responsible for all losses and injuries resulting from any cause whatsoever, because he holds it wrongfully.4 A deposit must be returned to the depositor, or his authorized agent, unless he be without title thereto, in which case it must be surrendered to the rightful owner.6 Nor does it make any difference that the bailee has transferred the deposit to a third person; for whether such transference be bond fide, as to a second bailee, or malâ fide, as by sale, the real owner may recover it, wherever it is.1 If, therefore, a trustee deposit the goods of his cestui que trust, and his trust determine before the surrender of the bailment, it may be reclaimed by the cestui que trust.2
1 Story on Bailm. § 90; Pothier, Traité de Dépôt, n. 237; Jones on Bailm. 80, 81; Merry v. Green, 7 M. & W. 623.
2 Story on Bailm. § 97-99; Jones on Bailm. 40, 46; Foster v. Essex Bank, 17 Mass. 479; Stanton v. Bell, 2 Hawks, 145; 1 Dane, Abr. ch. 17, art. 1 and 2; Mytton v. Cock, 2 Str. 1099; Rooth v. Wilson, 1B.& Al. 59; 1 H. Bl. 162; Game v. Harvie, Yelv. 50; Wheatley v. Low, Cro. Jac. 668; Coggs v. Bernard, 2 Ld. Raym. 920; 2 Kent, Comm. 566, 567, 4th ed.; Dig. Lib. 16, tit. 3, 1. 1, § 23, 24.
3 Holbrook v. Wight, 24 Wend. 169; Jones on Bailm. 70-121; Dane, Abr. ch. 17, art. 14; Sargent v. Gile, 8 N. H. 325; Story on Bailm. § 122, 123.
4 Nicholson v. Chapman, 2 H. Bl. 254; Holbrook v. Wight, 24 Wend. 169; Dane, Abr. ch. 17, art. 14; Pothier, Traité de Dépôt, n. 33.
5 Story on Bailm. § 102; Bac. Abr. Bailment, A.; Wilson v. Anderton, 1 B. & Ad. 450; Ogle v. Atkinson,. 5 Taunt. 759; Taylor v. Plumer, 3 M. & S. 562; Hardman v. Willcock, 9 Bing. 382, note; King v. Richards, 6 Whart. 418; Bates v. Stanton, 1 Duer, 79. See also Cheesman v. Exall, 6 Exch. 341; 4 Eng. Law & Eq. 438; Pitt v. Albritton, 12 Ired. 77.
§ 847. Where several depositors make a joint bailment, the bailee is only bound to surrender it upon the demand of all the bailors; unless it be made by one without the privity of his co-depositors.3 Where a deposit is made to several joint depositaries, they are severally liable therefor, and are sureties, one for the other. If the persons claiming as depositors have adverse interests, founded in privity of title, as between a first bailee and the bailor, the depositary may compel them to interplead, so as to define the person to whom he is bound to redeliver the bailment. But if the right of the claimants be absolutely adverse, the bailee must defend himself as he may, for he cannot compel them to interplead.4
§ 848. If the bailor be not the rightful owner of the deposit, the depositary may deliver it to the rightful owner; and proof of such delivery will be a complete defence to an action by the bailor.6 And correlatively, the true owner is always entitled to recover from the bailee any property belonging to him.6 But a delivery by the bailee over to the bailor before he is informed of the claim of the true owner, is a good defence to such claim.1
1 Wilkinson v. King, 2 Camp. 335; Loeschman v. Machin, 2 Stark. 311; 2 Saund. 47 b, Williams and Patteson's note e; Hartop v. Hoare, 3 Atk. 44; Hurd v. West, 7 Cow. 752; 1 Roll. Abr. Detinue, C. pl. 46; Story on Bailm. § 104, 105; Isaack v. Clark, 2 Bulst. 306, 312; Bac. Abr. Bailment, D.; Gosling v. Birnie, 7 Bing. 339; Ogle v. Atkinson, 5 Taunt. 759; Wilson v. Anderton, 1 B. & Ad. 450; Whittier v. Smith, 11 Mass. 211; Learned v. Bryant, 13 Mass. 224.
2 Story on Bailm. § 109; Pothier, Traité de Dépôt, n. 50.
3 May v. Harvey, 13 East, 197; 1 Roll. Abr. Enterpleader, E.; Bro. Abr. Bailment, pl. 4; 2 Kent, Comm. 566; Story on Bailm. § 114, 116. See Brandon v. Scott, 7 El. & B. 234; Harper v. Godsell, Law R. 5 Q. B. 422 (1870).
4 Story on Bailm. § 110; 2 Kent, Comm. 567; Rich v. Aldred, 6 Mod. 216; Isaack v. Clark, 2 Bulst. 306; 2 Story, Eq. Jur. § 801-823; Cooper, Eq. PL 45-50; Viner, Abr. Enterpleader, L. M. N.; Story on Agency, § 217; 7 Dane, Abr. eh. 226, art. 9, § 4.
5 King v. Richards, 6 Whart. 418.
6 Cheesman v. Exall, 6 Exch. 341; 4 Eng. Law & Eq. 438; Bates v. Stanton, 1 Duer, 79; Pitt v. Albritton, 12 Ired. 77. See Biddle v. Bond, 6 B. & S. 225 (1865).
§ 849. If no place be specified at which the bailment is to be redelivered, it may be returned at the place where it happens to be at the time, or where it ought to be kept; and an offer to deliver it at either place, or at any reasonable place, is sufficient.2 But a demand may be made anywhere.3
§ 850. If any necessary expenses be incurred by the depositary in the preservation of the deposit, he is entitled to a reimbursement therefor, and may recover them in an action; and upon principle, it would seem that he ought to have a lien upon the deposit.4 Nor does it matter, in respect to this rule, whether he be a depositary by special agreement, or whether he be rendered so by the circumstances of the case. And if he find an article, and undertake to keep it, and in so doing incur expense, he has the same right to be reimbursed of such expense as if the article had been placed in his hands by the owner on deposit.5 So, also, if a certain reward be offered for goods which he has found, he would have a lien upon the goods for the reward.6
§ 851- Where personal property is attached upon mesne process, it is, in some of the States, a common practice to bail the goods to some friend of the debtor, called the receiptor, with an agreement on his part that they shall be forthcoming in time to respond to the judgment. The officer making such attachment has a special property in the goods, and may reclaim them at any time, and maintain the appropriate actions to enforce his right.1 The creditor, however, has no such interest.2 The officer is responsible for a redelivery of the property, upon dissolution of the attachment, or upon satisfaction of the creditor's claim in any way; and, if he deliver them to the bailee or debtor, and a loss ensue, he is liable there-. for.3 He would certainly be responsible for gross negligence, and probably, also, for ordinary negligence, because he is a bailee for a compensation.4 For all expenses incurred in keeping the property, however, he is to be reimbursed by the creditor.5
1 Nelson v. Iverson, 17 Ala. 216.
2 2 Kent, Comm. 568, 4th ed.; Scott v. Crane, 1 Conn. 255; Higgins v. Emmons, 5 Conn. 76; Mason v. Briggs, 16 Mass. 453; Slingerland v. Morse, 8 Johns. 474; Story on Bailm. § 117, 118, 261, and note; Aldrich v. Albee, 1 Greenl. 120.
3 Dunlap v. Hunting, 2 Denio, 643.
4 Nicholson v. Chapman, 2 H. Bl. 254; Story on Bailm. § 121, 121 a. But see, as to right of hen, Binstead v. Buck, 2 W. Bl. 1117.
6 Wentworth v. Day, 3 Met. 352. And see Wilson v. Guyton, 8 Gill, 213; Cummings v. Gann, 52 Penn. St. 484; Preston v. Neale, 12 Gray, 222.
1 Ladd v. North, 2 Mass. 514; Perley v. Foster, 9 Mass. 112; Whittier v. Smith, 11 Mass. 211; Barker v. Miller, 6 Johns. 195; Pierce v. Strickland, 2 Story, 292; Warren v. Leland, 9 Mass. 265; Gibbs v. Chase, 10 Mass. 125; Gates v. Gates, 15 Mass. 311; Brownell v. Manchester, 1 Pick. 232; Badlam v. Tucker, 1 Pick. 389; Story on Bailm. § 124, 125, et seq.
2 Ladd v. North, 2 Mass. 514; Blake v. Shaw, 7 Mass. 505; Badlam v. Tucker, 1 Pick. 389; Knap v. Sprague, 9 Mass. 258; Jewett v. Torrey, 11 Mass. 219; Lyman v. Lyman, 11 Mass. 317.
3 Phillips v. Bridge, 11 Mass. 242; Tyler v. Ulmer, 12 Mass. 163; Cong-don v. Cooper, 15 Mass. 10.
4 Burke v. Trevitt, 1 Mason, 96,100; Browning v. Hanford, 5 Hill, 588; Story on Bailm. § 130.
5 Sewall v. Mattoon, 9 Mass. 535; Tyler v. Ulmer, 12 Mass. 163, 168; Phelps v. Campbell, 1 Pick. 59, 61.