DEPOSIT is a term of the civil law (depositum), which Sir W. Jones (The law of Bailments, Waits, viii. 448) defines as a bailment (or delivery of goods in trust) to be kept for the bailor without a recompense ; on a contract expressed or implied, that the trust shall be duly executed, and the goods re-delivered as soon as the time or use for which they were bailed shall have elapsed or be per formed.' The party who makes the deposit is called in the civil law deponens or depositor (bailor by Sir W. Jones) ; and he who receives the pro perty is called dey5ositarius. The law of deposit is stated in the Institutes, iii. tit. xiv. 3. (See Sandars, P. 428, or Vinnii Institutions, by Heineccius, P. 6o7.) Comp. hisiit. iv. tit. vi. 17, 23. (See San dars, pp. 429, 540, 543 ; Vinnius, pp. A deposit, in Athenian law, was called rapalca Tail(71 (Herod. vi. 86 ; Demosthenes, pro Phorm. Orator. Attic. Bekker, Oxon. vi. ro42). Comp. the Ahoy rparePtrucos of Isocrates (Or. A Bekker, Oxon. ii. The Hebrew law of Deposit is contained in Exodus xxii. 7-13, and will be found to receive consider able illustration from the above-mentioned passages, especially of the Roman law, The deposits speci fied by the lawgiver in these verses arc—money, household shy]; raiment, oxen, asses, sheep, and other cattle. Dr. Kalisch's analysis of this law is worth quoting If inanimate objects were by cunning or violence wrested from the depositary, he was not bound to make restitution to the proprietor (ver. It) ; but if animals, as oxen, asses, or sheep, were intrusted to his care, he was responsible for theft (ver. 12), but not for such accidents as the death of an animal, or its abduction by robbers, or lacera tion" by a wild beast (ver. 13). But if it is found that he had in any way intended to act fraudu lently to the proprietor, he was compelled to restore to him the twofold value of the deposit (ver. 7, 9). All these disputes were decided by the competent judge, by means of adjuration' (Kalisch, Exodus, P. The law, indeed, does not expressly mention the oath, says (ver. 9), ' He shall come before the gods [judges wri5F1], whether he has not laid hold of his neighbour's property ;' but the phrase whether not, is elsewhere so notoriously the usual formula of an oath among the Hebrews, that we can scarcely understand it otherwise than in reference to an oath, more especially as the oath is expressly mentioned in verse II ; and in most cases no other proof of his not having retained his neighbour's property could possibly be had but an oath (Michaelis, Laws of Moses, ii. 373, 374). The Septuagint and
the Vulgate actually add, eat dp,o'brat, et jurabit, to this formula of oath. t Josephus, in Antiq. iv. 8. 36, treats of this law, and makes the deposi tary go eat robs brrbc KpIrcis, before the seven judges, as was customary in his own age (Kalisch).
Rashi, expressing the general suffrage of the Rabbinical doctors, makes a distinction between the passage contained in verses 7-9, and that in cluded in verses to-13. The former passage is supposed to treat of a gratuitous depositary ; the latter is said to be descriptive of a paid guardian. Chaskuni alleges as a reason, that as in the care of inanimate deposits no trouble or expense is in volved, remuneration cannot well be claimed ; whereas in the keep of animals, expense being inevitable, compensation is necessary (Rosenmiiller in loc.) Sir W. Jones supposes that a distinction was made, in cases of theft, between stealing by day and stealing by night; and referring to Gen. xxxi. 39, says : If cattle were bailed and stolen by day, the depositary was bound to make restitu tion to the owner ; the reason seeming to be, that when cattle are delivered to be kept, the bailee is rather a mandatary than a depositary, and is conse quently obliged to use a degree of diligence ade quate to the charge : sheep, however, can hardly be stolen in the day-time without some neglect of the shepherd ; and we find that when Jacob, who was (for a long time at least) a bailee [or deposi tary] of a different sort, inasmuch as he had a reward [` the paid guardian' of Rashi], lost any of the beasts entrusted to his care, Laban made him answer for them, whether stolen by day or stolen ly night' (Law of Bailments, p. 367).