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 ; Bellows Falls Bank v. Bank, 40 Vt. 380.
A bailment of goods to be kept by the bailee without reward, and delivered accord ing to the object or purpose of the original trust. Story, Bailm. § 41; Richardson v. Fu trell, 42 Miss. 544.
A contract by which one of the contract ing parties gives a thing to another to keep, who is to do so gratuitously and obliges him self to return it when he shall be requested. See 3 L R. P. C. C. 101.
An irregular deposit arises where one de posits money with another for safekeeping, in cases where the latter is to return, not the specific money deposited, but an equal sum.
A quasi deposit arises where one comes lawfully into possession of the goods of an other by finding.
A depositary is bound to take only ordi nary care of the deposit, which will of course vary with the character of the goods to be kept, and other circumstances ; Edw. Bailm. 43. See Vickroy v. Skelley, 14 S. & R. (Pa.) 375; Foster v. Bank, 17 Mass. 479, 9 Am. Dec. 168; Tracy v. Wood, 3 Mas. 132, Fed. Cas. No. 14,130; 1 B. & Ald. 59. While gross negligence on the part of a gratuitous bailee Is not fraud, it is in effect the same thing ; First Nat. Bank v. Graham, 100 L. S. 699, 25 L. Ed. 750. He has, in general, no right to use the thing deposited ; Bac. 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. He is bound to return the de posit 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 negligence, he is responsible to the extent of the loss or injury ; Jones, Bailm. 36, 46, 120; Foster v. Bank, 17 Mass. 479, 9 Am. Dec. 168 ; Stanton v. Bell, 9 N. C. 145, 11 Am. Dec. 744 ; 1 Dane, Abr. c. 17, arts. 1 and 2 ; Hubbell v. Blandy,
87 Mich. 209, 49 N. W. 502, 24 Am. St. Rep. 154. He is also bound to restore, not only the thing deposited, but any increase or prof its which may have accrued from it ; if an animal deposited bear young, the latter are to be delivered to the owner; Story, Bailm. § 99.
In the case of irregular deposits, as those with a bank, the relation of the bank to its customer is that of debtor and creditor, and does not partake at all of a fiduciary char acter. It ceases altogether to be the money of the depositor, and .becomes the money of the bank. It is his to do what he pleases with it, and there Is no trust created ; Edw. Bailm. 41, 45; Commercial Bank of Albany v. Hughes, 17 Wend. (N. Y.) 94 ; 1 Mer. 568 ; Bank of Marysville v. Brewing Co., 50 Ohio St. 151, 33 N. E. 1054, 40 Am. St. Rep. OW; American Exchange Nat. Bank v. Gregg, 138 III. 596, 28 N. E. 839, 32 Am. St. Rep. 171; Collins v. State, 33 Fla. 429, 15 South. 214 ; Central Nat. Bank v. Ins. Co., 104 U. S. 64, 26 L. Ed. 693. See Jacobus v. Jacobus, 37 N. J. Eq. 18. In Law's Estate, 144 Pa. 507, 22 Atl. 831, 14 L. R. A. 103, it was held to be "a temporary dispbsition of money for safe keeping," not creating the relation of debtor and creditor ; nor it a loan ; id.; Elliott v. State Bank, 128 Ia. 275, 103 N. W. 777, 1 L. R. A. (N. S.) 1130, 111 Am. St. Rep. 198. If the jury believe from the evidence that the parties intended that a bank should not re ceive a check as cash, but only as an agent for collection, then title to the check does not vest in the bank at the time of the de posit ; Fayette Nat. Bank v. Summers, 105 Va. 689, 54 S. E. 862, 7 L. R. A. (N. S.) 694.
Where a commission merchant deposits his principal's money in his own account in bank, it cannot be applied to the payment of the former's debt to the bank ; Boyle v. Bank, 125 Wis. 498, 103 N. W. 1123, 104 N. W. 917, 1 L.