Depositary

contracts. He with whom a deposit is confided or made. Being a bailee without reward, the depositary is bound to slight diligence only, and he is not therefore answerable except for gross neglect.

1 Dane’s Abr. ch. 17, art. 2.

But in every case good faith requires, that he should take reasonable care; and what is reasonable care, must materially depend upon ~ the nature and quality of the thing, the circumstances under which it is deposited, and sometimes upon the character and confidence, and particular dealing of the parties.

See 14 Serg. & Rawle, 275.

The degree of care and diligence is not altered by the fact, that the depositary is the joint owner of the goods with the depositor; for in such a case, if the possessor is guilty of gross negligence, he will still be responsible, in the same manner as a common depositary, having no interest in the thing.

Jones’s Bailm. 82, 83.

As to the care which a depositary is bound to use, see 2 Ld. Raym. 909, 914; 1 Ld. Raym. 655; 2 Kent’s Comm. 438; 17 Mass. R. 479, 499; 4 Burr. 2298; 14 Serg. & Rawle, 275; Jones’s Bailm. 8; Story on Bailm. § 63, 64. The depositary is bound to return the deposit tn tndividuo, and in the same state in which he received it; if it is lost, or injured, or spoiled by his fraud, or gross negligence, he 1s responsible to the extent of the loss or injury.

Jones’s Bailm. 36, 46, 120; 17 Mass. R. 479; 2 Hawk. N. Car. R. 145; 1 Dane’s Abr. ch. 17, art. 1 and 2.

He is also bound to restore, not only the thing depoan animal deposited brings young, the latter are to be delivered to the owner.

Story on Bailm. § 99.

In general it may be laid down that a depositary has no right to use the thing deposited.

Bac. Abr. Bailm. D; Jones’s Bailm. 81, 82; 1-Dane’s Abr. ch. 17, art. 11, § 2.

But this proposition must be received with many qualifications. There are certain cases, in which the use of the thing may be necessary for the due preservation of the deposit. There are others, again, where it would be mischievous; and others, again, where it would be, if not beneficial, at least indifferent. - Jones’s Bailm. 81,82; Owen’s R. 123, 124; 2 Salk. 522; 2 Kent’s Comm. 450. The best general rule on the subject is to consider, whether there may or may not be an implied consent, on the part of the owner, to the use. If the use would be for the benefit of the deposit, the assent of the owner may well-be presumed; if to his injury or perilous, it ought not to be presumed;. if the use would be indifferent, and other circumstances do not incline -either way, the use may be deemed not allowable.

Jones’s Bailm. 80, 81; Story on Bailm.: 90.: ‘: