¶1The opinion of the Court was drawn up ty
¶2The plaintiff received a cow from the defendant, for which she was to pay, by the fourth of April following, sixteen dollars, or to return the cow and to pay four dollars for her use.. The question is, whether the property in the cow passed to the plaintiff, or whether it remained in the defendant, the plaintiff being merely bailee.
¶3Sir William Jones, in his treatise on bailments, 143, says, “there ih a distinction between an obligation to restore the specific things, and a power or necessity of returning others equal in .value.. In the first case, it is a regular bailment; in the second, it becomes a debt.” Story on Bailments, c. 6, <§> 439, says, “ the distinction between the obligation to restore the specific things,' and a power of returning other things equal in value, holds in cases of hiring,' as well as in cases of deposits and gratuitous loans. In the former case, that is, the obligation to restore the specific thing, it is a regular bailment; in the latter, viz. where there is a power of returning other-' things equal in value, it becomes a debt.”
¶4This doctrine is recognized in Hurd v. West, 7 Cowen, 752, and is further illustrated' in a note to that case. The cases to which this principle is usually applied are, where the article received is to'be'returned in kind;, or in the. alternative, either specifically or by an article of the* same kind, either in the same condition1 or in- a manufactured state.- In all such cases, the property passes to him, who would otherwise be merely a bailee. Seymour v. Brown, 19 Johns. 47, may seem in its application to be an exception to--this principle; but Chancellor Kent says, that this decision was'not in- conformity to the true' and settled doctrine. 2 Kent, 589. Whether the alternative is, to return specifically or in kind, or specifically or to pay a certain sum, the principle is the-same. The property in the thing delivered passes, and the remedy of the former owner rests in contract. It is the option conceded to the party receiving, which produces this-effect. He may do-what he will with the article received. If he pays, he fulfils his-contract. If he neither pays-nor returns, he-is liable to an action.-
¶5*347In Holbrook v. Armstrong, 1 Fairf. 31, where cows were delivered, to be returned at the end of two years, or their value in money, the doctrine was very fully gone into by Parris J. who delivered the opinion of the court; and it was held not to be a bailment, but a sale. The same rule was applied to a similar case in Dearborn v. Turner, 16 Maine Rep. 17. That case is not to be distinguished from the one before us.
¶6.New trial granted.