IIe need not have any real or beneficial interest in the goods; his lawful possession as a bailee and his liability on the implied contract for safe keeping, give him a right of action. The finder of a chattel acquires no right of property in it as against the rightful owner, and yet the law enables him to defend it against everybody else by an action of trover; it assumes that he has a special limited or qualified property in it, valid against all the world except the owner. The receiptor to the sheriff has no direct actual interest in the goods; he has the possession of the goods, and he has contracted to redeliver them; his possession and his liability together enable him to recover against a wrong-doer who injures or takes the property from him without right.3

It is clear then that a bailee of goods, a depositary without having any beneficial interest in the goods themselves, does have such a possessory interest in them as will enable him to defend them by an action at law. It follows that every bailee of goods must have the same right.

A naked prior possession of chattels, where nothing else appears to qualify its character, is enough to establish a right of action in the plaintiff, and put the defendant upon shewing by what title he claims to hold them. This is upon the principle that possession, until the contrary appears, is evidence of title which must prevail, until it is overcome by testimony.5

The plaintiff having a special property in the goods, may recover their full value against one who wrongfully takes them from his possession; or against one by whose negligence they are injured or lost."

§ 38. The general owner of goods, having a present right of possession, may also maintain eitner trespass or trover against a stranger for an injury or conversion of the property. The action may be brought

1 Faulkner v. Brown, 13 Wend., 63. The plaintiff was the depositary of a roll of leather, which was stolen and afterwards sold to the defendant. Moran v. Portland, 35 Maine, 55; plaintiff in this case sued as the depositary of a carpet bag. Kellogg v. Sweeney, 1 Lansing, 397; S. C. 46 N. Y., 291; the guest at an inn sued the landlord for the value of a bag of gold coin, the possession of which he held as a mere mandatary.

2 Armory v. Delamirie, 1 Stra., 505; 3 Salk., 365.

3 Miller v.

Adsit, 16 Wend., 335; Thayer v. Hutchinson, 13 Vermont, 504. 4 Rooth v. Wilson, 1 Barn. & Ald., 59; Howorth v. Tollemache, 5 Scott N.

R., 332.

Duncan v. Spear, 11 Wend., 54; Fish v. Scutt, 21 Barb., 333.

6 Alt v. Weidenberg, 6 Bosw., 176; Kissam v. Roberts, id., 154; Clark v.

Pinney, 7 Cowen, 681, note a.

7 Kellogg v. Sweeney, 46 N. Y., 291; S. C., 1 Lansing, 397.

8 Thorp v. Bueling, 11 John. R., 285.

by the bailee or by the general owner; the right to sue is indispensable to enable each to protect his particular interest; and a judgment in an action by the general owner, will bar an action by the bailee.'

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Under

§ 39. With us the form of the action is not now material. the common law practice the general owner of goods bailed without reward, as in the case of a gratuitous loan or deposit or mandate, may maintain the action of trespass against a third party for taking them, because he has the constructive possession, or the right to reduce the goods to his actual possession at any time; and he cannot maintain that action for his goods, bailed for hire on a definite term which is yet unexpired. So also the general owner of goods in the hands of a gratuitous bailee, has a present right of possession sufficient to enable him to maintain the action of trover against a stranger. In both these common law actions, the plaintiff must have a property in the goods and constructive possession, i. e., a present right of possession.*

3

These rules of procedure, though they appear on a first reading important only to insure a right choice of the action to be brought, do really show the true relation existing between the bailor and bailee. They assume that a gratuitous bailee for an indefinite time, has no right or interest in the goods which he can assert against his bailor; that he is lawfully in possession and has such a right or interest in the goods against every one else. It follows that he is not liable to an action for the goods by the owner or by the bailor, until after a demand and refusal. A borrower for an indefinite time, is not liable to an action until after a demand; unless it appears that he has delivered it to another party without authority; or misappropriated it in bad faith.

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§ 40. It is necessary to fix the date when an action may be brought against a gratuitous bailee, in order to ascertain the time when the stat

1 Greene v. Clarke, 12 N. Y., 343; N. J. Steam Nav. Co. v. The Merchants' Bank, 6 How. U. S. R., 344.

2 Orser v. Storms, 9 Cowen, 687; Ely v. Ehle, 3 N. Y., 506.

3 Putnam v. Wyley, 8 John. R., 432.

4 Gordon v. Harper, 7 Durnford & East, 9; Nichols v. Bastard, 2 Cromp. M. & Ros., 659; Bloxam v. Sanders, 4 Barn. & Cress., 941; Ferguson v. Christall, 5 Bing., 305. It does not follow that the general owner of goods, let on hire for a term, is without a remedy for an injury to his reversionary interest; he has an action on the case therefor. Mears v. London & S. Western R. Co., 11, Com. Bench N. S., 850, 854; 31 N. Y., 210.

Brown v. Cook, 9 John. R., 361; Phelps v. Bostwick, 22 Barb., 314; Beardslee v. Richardson, 11 Wend., 25; Ross v. Clark, 27 Mo., 549.

6 Gilbert v. Man. I. Manuf. Co., 11 Wend., 625.

7 Esmay v. Fanning, 9 Barb., 176.

Pratt v. Bogardus, 49 Barb., 89, 95. It has been held that a failure to return within the time limited is a conversion: Clapp v. Nelson, 12 Texas, 370.

he is not in

ute of limitations will begin to run against the action. The depositary of goods holds them in trust, subject to the owner's order; fault, and therefore, no action lies against him until, being called upon for the goods, he refuses to deliver them. The same rule applies to a deposit of money on call; the depositary is not liable to an action until a demand is made therefor and the money refused. The situation is the same as it is where a man deposits money in a bank payable to his order or on his check. A suit cannot be brought until after a refusal to pay on the usual demand; and the statute does not run until the action accrues.2

§ 41. Where money is deposited in a bank in the ordinary course of business, it does not raise a contract of bailment. The transaction amounts to a loan without interest, and creates the relation of debtor and creditor; the bank receives the money and undertakes to repay the same on demand at all events. The fund is mingled with other moneys and becomes an absolute debt due from the bank, for which it is liable even though the money be lost without any fault on its part. It is called a deposit; but this word is now used to describe the formal act of delivery to the bank, and does not declare the nature and effect of the transaction. A deposit in a savings bank has the same effect as an ordinary deposit in other banks. The depositor transfers his money, and takes back a promise of repayment with interest from the bank, a chose in action.1

There is nothing in its nature to prevent a bailment of money. If a parcel of bank bills or a bag of coin be deposited with a bank or with any other person, on a promise to redeliver the specific bills or coin, the transaction creates a bailment; the title does not pass.5 It may be, it is often difficult to trace money, either in bills or coin; being identified, the title will be protected the same as the title to goods." It is property which may be levied upon by a sheriff, or delivered on a contract

1 Ball v. Liney, 48 N. Y., 6; Winkley v. Faye, 33 N. H., 171.

2 Payne v. Gardiner, 29 N. Y., 146; S. C. 39 Barb., 634; Downes v. The Phoenix Bank of Charlestown, 6 Hill, 297.

3 Commercial Bank of Albany v. Hughes, 17 Wend., 94, 100; Carroll v. Cone, 40 Barb., 220; Dykers v. The Leather Manuf. Bank, 11 Paige's Ch., 612; Marsh v. Oneida Central Bank, 34 Barb., 299.

Lund v. The Seamen's Bank, 37 Barb., 129; Chapman v. White, 6 N. Y.' 412, 417; Warhus v. Bowery Savings Bank, 21 N. Y., 543.

Graves v. Dudley, 20 N. Y., 76, 80; 37 N. Y., 99, 103; Draycott v. Piot, Croke's Eliz., 818, 841.

6 Tradesman's Bank v. Merritt, 1 Paige, 302; Mechanics' Bank v. Levy, 3 Paige, 606; McBride v. The Farmers' Bank, 26 N. Y., 450, 456.

of bailment. The deposit of money on interest or for use, is not a bailment; it is intended to pass the title; it creates a debt. It is however in the nature of a deposit, payable when called for; so payable by the terms and substance of the contract. On this account a deposit is distinguished from a loan of money; the statute of limitations begins to run against a suit on a note, payable on demand, from its date, no actual demand being necessary." In the case of a deposit, the statute runs from the time when a suit may be brought against the depositary, namely, from the time of the demand and refusal.

§ 42. Where the depositary converts the goods, the owner's action for the conversion accrues at once, and the statute begins to run from that time; a subsequent demand and refusal will not create a new starting point; or what is the same thing, in effect, a new cause of action. A refusal to deliver on demand, made after a sale or other disposition of the goods, does not show a conversion of the property; the refusal is evidence of a conversion, and sometimes equivalent to the act itself. At all events, the depositary is entitled to fair play and a reasonable opportunity to ascertain the claimant's right of property." An unqualified refusal or an attempt to set up title in a third party, is a conversion; as where the bailee gives a receipt to a third party for the goods and agrees to hold them to his order. But a wrongful act is not to be presumed, even in favor of a long continued possession.

A conversion may be waived by the owner of the goods, so as to preclude him from bringing an action therefor; but the wrong-doer does not relieve himself from liability by an offer to restore or replace the goods, after an act of conversion."

1 McBride v. The Farmers' Bank of Salem, 28 Barb., 476; Thatcher v. Bank of State of N. Y., 5 Sand., 121.

2 The Kingston Bank v. Gay, 19 Barb., 459; Adams v. Orange Co. Bank, 17 Werd., 513, 515; Lund v. The Seamen's Bank for Savings, 37 Barb., 129.

3 Howland v. Edmonds, 24 N. Y., 307; Wheeler v. Warner, 47 N. Y., 519; see Merritt v. Todd, 23 N. Y., 28; and Herrick v. Woolverton, 41 N. Y., 581, 591, 596. 4 Granger v. George, 5 Barn. & Cress., 149; Kelsey v. Griswold, 6 Barb., 436; Bruce v. Tilson, 25 N. Y., 194.

Carroll v. Mix, 51 Barb., 212; Ball v. Liney, 48 N. Y., 6; McEntee v. N. Y. 8. Co., 45 N. Y., 34.

6 Rogers v. Weir, 34 N. Y., 463.

7 Holbrook v. Wight, 24 Wend., 169. Stewart v. Drake, 46 N. Y., 449.

454;

9 Livermore v. Northrup, 44 N. Y., 107; Anthony v. Comstock, 1 R. I., Wood v. Fales, 24 Penn. St., 246; Brewster v. Silliman, 38 N. Y., 423. New York City v. Lent, 51 Barb., 19; property peculiar; an autograph letter of Geo. Washington.

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§ 43. Rule of Liability. A gratuitous bailee is bound to take reasonable care of the goods entrusted to him; the same or as much care as he takes of his own property of a like kind; such care as the circumstances and the nature of the property naturally call for. The same rule applies to the depositary and to the mandatary; the depositary receives the goods to keep gratuitously, until the owner requires them; and the mandatary receives them to carry and deliver or to perform some act in relation to them, without recompense; in each case the bailee assumes an office of friendship and good will, and is bound merely to use a slight degree of diligence. In other words, he is only liable for a loss or injury to the goods resulting from his gross negligence; or which is the same thing, from his omission to use slight diligence. For in the legal sense, a failure to use slight diligence or that care which every man of common sense however inattentive takes of his own goods, is considered gross negligence; these terms being used interchangeably as practically equivalent to each other.

Under the rule as it is usually stated, the depositary of goods, receiving them gratuitously, without any agreement to keep them safely or take any special care of them, is not responsible for their injury or loss unless it happens through his gross neglect or fraud.3

§ 44. It is manifest that the care required must be such as the circumstances and the nature of the property demand; that is to say, in applying the general rule, respect must be had to the situation of the parties and to the particular kind or character of the property which is the subject of the bailment. One who receives a picture, a cartoon for example, is bound to have a care that it be not placed in an exposed situation, as against a damp wall; and one who receives money on deposit must use a degree of diligence and attention adequate to the performance of the trust. A delivery of money to invest without compensation, would fall within the definition of a naked bailment, and it would cer

4

1 Coggs v. Bernard, 2 Ld. Raym., 909; Foster v. The Essex Bank, 17 Mass., 479.

2 Tompkins v. Saltmarsh, 14 Serg. & Rawle, 275; Dougherty v. Posegate, 3 Clarke, Iowa, 83; Jones on Bailm., 112.

3 McKay v. Hamlin, 40 Miss., 472; Gulladge v. Howard, 23 Ark., 61; Spooner v. Mattoon, 40 Vt., 300; Persch v. Quiggle, 57 Penn. St., 247; Johnson v. Reynolds, 3 Kansas, 257; Hills v. Daniels, 15 La. An., 280; Newhall v. Paige, 10 Gray, 366; Dougherty v. Posegate, 3 Clarke, Iowa, 88; Conwoll v. Smith, 8 Ind., 530; Edson v. Weston, 7 Cowen, 278.

4 Mytton v. Cock, 2 Str., 1099.

Jenkins v. Matlow, 1 Sneed (Tenn.), 248; and Tracy v. Wood, 1 Mason,