carried into effect equitably and in good faith; and the numerous trusts accompanying the delivery and possession of personal property, modified as they are by the circumstances of each case, and guarded by well defined principles of law, evidently require a high degree of care in their enforcement. On the principle that no man can be wiser than the law, it is evident that only legal reasoning can be of service in its elucidation. The appeal must be constantly made to the reported decisions of the courts, which the great master of English jurisprudence has so happily termed the witnesses of the law. From a fair canvass of these witnesses we shall derive the elements and principles which make up the main body of our laws of bailments.1

In the infancy of our common law system, judicial decisions rested solely on the oral testimony of suitors or witan, who bore witness to the judgments which they or their predecessors had pronounced. They remembered and recorded them. In progress of time their judgments were committed to writing as records of court, and to give them greater publicity, they were at length put forth periodically in the shape of reports. Warren's Law Studies, 404. See 31 N. Y., 290, with reference to the construction of a statute.

CHAPTER II.

DEPOSITS: CONTRACTS INVOLVING THE CUSTODY OF PERSONAL PROPERTY.

§ 10. A delivery of goods to be kept and returned without recompense, creates a bailment; it is called a deposit; the distinguishing feature of the contract is that the keeping be gratuitous. Allowing for a certain difference in the circumstances, the engagement of the depositary is the same in substance as that of the mandatary who receives money or goods under a commission; each of them acts gratuitously. He receives no compensation for his services.1

How then can the parties make or the law imply a valid contract? The law does not imply a promise from a mere moral obligation; nor will it enforce a naked promise, such as a promise without consideration to become a mandatary or a depositary. But when a person actually enters upon the trust and receives the property into his custody, the confidence reposed in him and his undertaking will raise a sufficient consideration. After that he is bound to perform his engagement and execute the trust. It has been strongly urged that an undertaking of this nature cannot be considered a contract; though it is admitted, that it imposes an obligation to act fairly and with reasonable diligence." But the criticism is rather one of form than of substance. The party accepting the trust voluntarily comes under an obligation, and there can be no impropriety of speech in calling such an undertaking a contract."

It is a contract so far as it goes. It does not bind the depositary to continue in the custody of the goods for an unlimited time; for he may

1 2 Kent's Com., 560; Code of Louisiana, art. 2900.

2 Edwards v. Davis, 16 John., 281; Thorne v. Deas, 4 John., 84; Ehle v. Judson, 24 Wend., 97.

3 Rutgers v. Lucet, 2 John. Cas., 92.

Elsee v. Gatwood, 5 Term. R., 143.

16 Amer. Jurist, 234–275.

6 Wells v. N. Y. C. R. R. Co., 24 N. Y., 181.

tender them to the owner, giving him a reasonable opportunity to remove them, and thus terminate his responsibility.'

The contract of bailment is very often implied by law from the circumstances attending the delivery of the goods. The usual definition assumes that there is a contract, either expressed or implied, in every bailment; and it is clear that the bailee is held bound to the performance of his duties on the theory of contract. There are cases, however, in which it is at least doubtful whether the bailor assumes any legal obligation; e. g., where he loans a chattel gratuitously for an indefinite length of time. His delivery of the property furnishes a valuable consideration for the borrower's promise to use and keep it with the greatest care; but it does not bind the lender. So where a person finds a chattel and takes it into his custody, he assumes the duty of preserving it; but does the law imply a contract between him and the owner? It will probably when the owner comes and receives his property, and thus accepts the benefit of the finder's services.2

Where one person receives and uses valuable property of another for a length of time, with the owner's consent, the law presumes a contract of hiring and not a gratuitous loan of the use. And the rule is not different where the goods are used by the bailee under the belief that he has acquired the title to them by purchase. A gratuity of considerable value is not to be presumed; it is to be proved.3 There being no special agreement, the nature of the property, the relation of the parties to each other and the circumstances, will ordinarily decide the question of fact, whether the goods were delivered and used under a contract of hire, or under a gratuitous bailment.

§ 11. It is to be remembered that only chattels personal or things movable, which are capable of being delivered, can properly be made the subject of a bailment by deposit. These include everything that can be put in motion, and transferred from place to place; all that great class of property which is termed personal estate because it is supposed to follow the person. Securities of every kind, promissory notes and bills of exchange, and bonds and mortgages may become the subject of a

1 Roulston v. McClelland, 2 E. D. Smith, 60.

2 Sheldon v. Sherman, 42 N. Y., 484, and cases there cited.

3 Rider v. Union India Rubber Co., 5 Bosw., 85; S. C., 28 N. Y., 379. See Davis v. Gorton, 16 N. Y., 255; see also Cullen v. Lord, 39 Iowa, 302.

4 Because personal property is supposed to follow the person, wills and other dispositions of it must be made according to the law of the testator's domicil at the time of his death; Parsons v. Lyman, 20 N. Y., 103, 112; Moultrie v. Hunt, 23 N. Y., 394. Money may be the subject of the contract; Dustan v. Hodgen, 38 Ill., 352.

deposit; and so may also title deeds or any chose in action. But in the usual course of business these securities are not often made the subject of this kind of bailment; and even where they are deposited, the depositary has generally but a slight control over them. Frequently he has the bare custody of the paper, while the owner retains the legal title to it. E. g., if John Doe, having a draft or note payable to himself or order, delivers it to another person to keep, without indorsing it, the depositary will have simply the custody of the paper.2 So where he delivers without transferring a bond and mortgage, the depositary will not have control of the title. It follows that the effect of the deposit, as well as the duties incumbent upon the depositary, must depend upon the nature and condition of the security; in other words, upon the extent to which he is entrusted with the property or charged with its preservation. Should the holder of an indorsed note deliver it to a friend to obtain the money on it when it becomes due, it is doubtless his duty to have it duly protested in case it is not paid at maturity."

5

§ 12. Where money is paid into court or placed in the hands of an officer under an order of the court, the title to the money is not changed, and the duties of the depositary are not created, nor are they precisely defined as in ordinary cases by contract. The depositary voluntarily accepts the office held by him, and he receives the money in the due course of his official duty; he does not act gratuitously; he is therefore a bailee for hire, and not a mere depositary. His responsibility for the money is at least equal to (and it may be greater than) that of a bailee for a reward."

1 Rutgers v. Lucet, 2 John. Cases, 93. An agent receiving a bill of exchange from another, to be credited to his principal in other transactions, or to be returned, is liable for the amount of the bill where the means of paying it passes through his hands.

2 There can be no question on this point; even in the case of a pledge, the paper should be indorsed in order to transfer it; Nelson v. Wellington, 5 Bosw., 178, 187.

3 The security may be assigned by parol, but a delivery is not a transfer of the title; Hooker v. Eagle Bank of R., 30 N. Y., 83, 87.

4 It is the duty of a bailee holding the note as collateral security to have it duly protested. Foot v. Brown, 2 McLean, 369; Chitty on Bills, 365; Edwards on Bills and Notes, 494, 495.

5 Under the 73d rule of our Supreme Court, the surplus moneys arising on a foreclosure sale must be paid over to the treasurer of the county, to await the further order of the Court. See Parsons v. Travis, 5 Duer, 650.

6 Muzzy v. Shattuck, 1 Denio, 233; Supervisors of Albany v. Dorr, 25 Wend., 440; S. C., 7 Hill, 583; U. States v. Prescott, 3 How. U. S. R., 578; Aurentz v. Porter, 56 Penn. St., 115; 38 Ill., 89.

When a deposit is made by agreement between parties engaged in litigating the title, the depositary without compensation incurs the usual liability. His contract is that which he makes it in express terms, or that which the law will imply in the absence of an express agreement. He is an agent of both parties pending the litigation; on the termination of the suit, he holds for the owner in the same fiduciary capacity as an ordinary bailee; bound to pay over the money or give some reasonable account of it.3

PARTIES.

2 2

§ 13. All persons except those who are disabled by law, are capable of contracting. Married women, infants, and persons of unsound or deficient mind, are incapable of binding themselves by contract. Let us consider these exceptions separately, since they stand each upon a distinct ground of reason or public policy.

1. Under the common law, except so far as it is modified by statute, the legal existence of the wife is merged in that of her husband, and they become one person in law; the wife no longer capable of binding herself personally by contract or by covenant. The rule is counted droll and harsh in these modern days; and it is certainly yielding to a new theory, under which the doctrine of merger in a marriage is repudiated. The old word coverture must therefore be gradually dismissed. At the same time it is but just to remember that the rule had its affirmative, as well as its negative side. The wife's disability was also her shield.*

2. Under our recent statutes a married woman may now carry on any trade or business on her sole and separate account; she may sell and convey her separate real and personal property or any part of it, and invest the proceeds in her own name; and she may bind herself by any contract or covenant of title in reference to her separate real estate, with the same effect as if she were unmarried. Applying the same rule of interpretation to the language of the last statute which has been applied to the acts of 1848 and 1849, and it will be found that the law of this State has almost, but not quite, removed the married woman's disability to contract." She can bind herself by any contract made in the course of her trade or business." She may purchase real estate on

1 La Farge v. Morgan, 11 Martin, 462, 522.

2 Burhans v. Casey, 4 Sand. S. C. R., 707.

3 Parry v. Roberts, 3 Adol. & Ellis, 118; S. C. 30 Eng. C. L., 75.

4 Wilson v. Burr, 25 Wend., 386; Jackson v. Vanderheyden, 17 John., 167. Chap. 90 of Laws of 1860, as amended by Chap. 172 of the Laws of 1862; 41 Barb., 208.

6 White v. McNett, 33 N. Y., 371.

7 Owen v. Cawley, 36 N. Y., 600; Schmitt v. Costa, 3 Abb. Pr., N. 8., 188.