DEPOSIT. A naked bailment of goods to be kept for the depositor without reward, and to be returned when he shall require it. Jones, Bailm. 36, 117 ; 9 Mass. 470.
A bailment of goods to be kept by the bailee without reward, and• delivered accord ing to the abject or purpose of the original trust. Story, Bailm. 41.
A contract by which one of the contracting parties gives a thing to another to keep, who is to do so gratuitously and obliges himself to return it when he shall be requested.
An irregular deposit arises where one de posits money with another for safe keeping in cases where the latter is to return, not the specific money deposited, but an equal sum. A qudsi deposit arises where one comes lawfully into possession of the goods of an other by finding.
A depositary is bound to take only ordinary care of the deposit, which will of course vary with the character of the Rods to be kept, and other circumstances. See 14 Serg. & R. Penn. 275 ; 17 Mass. 479 ; 3 Mae. C. C. 132; 2 Ad. & E. 256; 1 Barnew. & Ald. 59. He has, in general, no right to use the thing de posited, Bacon, Abr. Bailment, D, unless in cases where permission has been given or may from the nature of the case be implied. Story, Bailm. 90 ; Jones, Bailm. 80, 81; 1 Bouvier, Inst. n. 1008. He is bound to re turn the deposit in individuo, and in the same state in which he received it: if it is lost, or injured, or spoiled, by his fraud or gross neg ligence, he is responsible to the extent of the loss or injury. 'Jones, Bailm. 36, 46, 120 ; 17 Mass. 479; 2 Hawks, No. C. 145; 1 Dane, Abr. c. 17, art. 1 and 2. He is also bound to restore, not only the thing deposited, but any increase or profits which may have ac crued from it: if an animal deposited bear young, the latter are to be delivered to the owner. Story, Bailor. 99.
In the case of irregular deposits, as those with a banker, the relation of the banker to his customer is that of debtor and creditor, and does not partake at all of a fiduciary character. It ceases altogether to be the
money of the depositor, and becomes the money of the banker. It is his to do what he pleases with it, and there is no trust created. 17 Wend. 94 ; 1 Meriv. 568. The legal remedy is a suit at law for debt: the balance cannot be reached by a bill in equity, as there is no trust raised. 2 Hou. L. Cas. 39 ; 1 Younge & C. Ch. 464. The banker is not liable for interest unless expressly contracted for; and the deposit is subject to the statute of limitations. 1 Phill. 401, 405 ; 2 Hou. L. Cas. 39, 40. See Sewell, Banking ; 4 Blackf. Ind. 495.
Deposits in the civil law are divisible into two kinds,—necessary and voluntary. A necessary de posit is such as arises from pressing necessity ; as, for instance, in case of a fire, a shipwreck, or other overwhelming calamity ; and thence it is called minerabile deponitum. La. Civ. Code, 2035. 'A vo luntary deposit is such as arises without any such calamity, from the mere consent or agreement of the parties. Dig. 16. 3. 2.
This distinction was material in the civil law in respect to the remedy, for io voluntary deposits the action was only in simpluin in the other in duplain, or twofold, whenever the depositary was gui.ty of any default. The common law has made no such distinction. Jones, Bailm. 48.
Deposits are again divided by the civil law into simple deposits and sequestrations : the former is when there is but one party depositor (of whatever number composed). having a common interest; tho latter is where there are two or more depositors, having cash a different and adverse interest. These distinctions do not seem to have become incorpo rated into the common law. See Story, Bailm. 41-46.