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DEPOSIT, contracts. Usually defined to be a naked bailment of goods to be
kept for the bailor, without reward, and to be returned when he shall
require it. Jones' Bailm. 36, 117; 1 Bell's Com. 257. See also Dane's Abr.
ch. 17, aft. 1, Sec. 3; Story on Bailm. c. 2, Sec. 41. Pothier defines it to
be 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. Traite du Depot. See Code Civ. tit. 11, c. 1,
art. 1915; Louisiana Code, tit. 13, c. 1, art. 2897.
2. Deposits, in the civil law, are divisible into two kinds; necessary and voluntary. A necessary deposit 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 miserabile depositum. Louis. Code 2935. A voluntary deposit is such as arises without any such calamity, from the mere consent or agreement of the parties. Dig. lib. 16, tit. 3, Sec. 2.
3. This distinction was material in the civil law, in respect to the remedy, for involuntary deposits, the action was only in simplum; in the other in duplum, or two-fold, whenever the depositary was guilty of any default. The common law has made no such distinction, and, therefore, in a necessary deposit, the remedy is limited to damages co-extensive with the wrong. Jones, Bailm. 48.
4. 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; the latter is where there are two or more depositors, having each a different and adverse interest. See Sequestration.
5. These distinctions give rise to very different considerations in point of responsibility and rights. Hitherto they do not seem to have been incorporated in the common law; though if cases should arise, the principles applicable to them would scarcely fail of receiving general approbation, at least, so far as they affect the rights and responsibilities of the parties. Cases of judicial sequestration and deposits, especially in courts of chancery and admiralty, may hereafter require the subject to be fully investigated. At present, there have been few cases in which it has been necessary to consider upon whom the loss should fall when the property has perished in the custody of the law. Story on Bailm. Sec. 41-46.
6. There is another class of deposits noticed by Pothier, and called by him irregular deposits. This arises when a party having a sum of money which he doe's not think safe in his own hands; confides it to another, who is to return him, not the same money, but a like sum when he shall demand it. Poth. Traite du Depot, ch. 3, Sec. 3. The usual deposit made by a person dealing with a bank is of this nature. The depositor, in such case, becomes merely a creditor of the depositary for the money or other thing which he binds himself to return.
7. This species of deposit is also called an improper deposit, to distinguish it from one that is regular and proper, and which latter is sometimes called a special deposit. 1 Bell's Com. 257-8. See 4 Blackf. R. 395.
8. There is a kind of deposit which may, for distinction's sake, be called a quasi deposit, which is governed, by the same general rule as common deposits. It is when a party comes lawfully to the possession of another person's property by finding. Under such circumstances, the finder seems bound to the same reasonable care of it as any voluntary depositary ex contractu. Doct. & Stu. Dial. 2, ch. 38; Story on Bailm. Sec. 85; and see Bac. Abr. Bailm. D. See further, on the subject of deposits, Louis. Code, tit. 13; Bac. Abr. Bailment; Digest, depositi vel contra; Code, lib. 4, tit. 34; Inst. lib. 3, tit. 15, Sec. 3; Nov. 73 and 78; Domat, liv. 1, tit. 7, et tom. 2, liv. 3, tit. 1, s. 5, n. 26; 1 Bouv. Inst. n. 1053, et seq.