majority">B. F. SAFFOLD, J.,

(after stating facts as above.) In a naked deposit or simple bailment for the benefit of the bailor alone, but slight care is required of the bailee, and he is responsible only for . gross *295negligence. Slight care is that degree of care which every person of common sense, though very absent and inattentive, applies to his own affairs: — 1 Parsons on Contracts, pp. 570-71. If a mere depository mix money deposited with his own funds with the intention of restoring an equivalent, and so destroy the identity and individuality of the subject matter of the bailment, this would be a user of the money which would at once alter the nature and character of the bailment, converting it into a loan for use and consumption. In a bailment by way of mutuum, the chattel bailed becomes the absolute property of the bailee to do -what he pleases with it. — Ad. on Oont., pp. 527-43.

It is plain that to convert a simple bailment of money into a loan, an intention of user should concur with the act of the bailee, which, indeed, is shown when the act itself excludes a contrary supposition. Story says, if a trustee should mix the trust funds with his own in a common account with his banker, he would be deemed to have treated the whole as his own, and he would be liable for any loss sustained by the banker’s insolvency. But if he should deposit the money with a banker in good credit, to remit it to the proper place by a bill drawn by a person in due credit, and the banker or drawer of the bill should become bankrupt, he would not be responsible. The true rule in eases of this sort is, that where a trustee acts by other hands, either from necessity or conformably to the common usage of mankind, he is not to be made, answerable for losses. — 2 Story’s Eq. Jur. §§ 1269-70.

A bailment is treated in equity as a trust, but the reason seems to be to enable the beneficiary to recover the fund which, in law, he might not be able to do on account of want of privity in the contract. — 2 Story’s Eq. Jur. § 1041. It may be deduced, then, in view of the degree of care required of a gratuitous bailee, that if he should deposit the funds received with a person in due credit, and without any intention of restoring an equivalent, he should not be held responsible for their depreciation on account of the failure of the bank which issued them. Henry would have done his whole duty by returning the identical bills.

Note by Beporter. — At a subsequent day of the term appellee, by J. A. Minnis, Esq., applied for a rehearing, contending that the proof of a conversion or “user” of the money by Samuel Henry was fully made out. As the argument in support of the hearing is based solely upon questions of fact, it is unnecessary in the view which the court took of the facts to refer further to it. The petition was responded to as follows :

The damage sustained by the complainant is not in consequence of his action. Equity, with its expansive powers of justice, will not apply to such a case the rule governing trustees charged with grave responsibilities.

The decree against the defendant Henry is reversed, and the cause remanded. In other respects it is confirmed.

SAFFOLD, J.

The only evidence touching the deposit made with Samuel Henry is that contained in the depositions of Samuel and A. G. Henry, and the writing of B. F. Porter set out in Samuel Henry’s testimony. The writing does not indicate any greater liability of the depositary than he admits. He was not to be responsible for its application. When it was settled between Porter and Abrams what should be done with the money, Henry was to surrender it to the one entitled to receive it. We perceive no contradiction in the testimony respecting which of the Henrys received the money. Samuel was to keep it, and it mattered not whether he received it in person or by another. He mentions a circumstance which the complainant might have refuted or corroborated. A receipt was given for this money. Samuel says it was given by A. G. in his name, to whom the money was delivered by Porter. In the absence of that receipt it might have been difficult for the complainant to have established the fact of a deposit, but for' the testimony of the defendant and A. G. Henry. The tenor of that testimony is certainly not in favor of the right of the complainant to recover as for a user.

A rehearing is denied.

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