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Bouvier's Law Dictionary, Revised 6th Edition (1856)

DEPOSITARY, contracts. He with whom a deposit is confided or made.
2. It is, the essence of the contract of deposits that it should be
gratuitous on the part 'of the depositary. 9 M. R. 470. 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. c. 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' Bailm. 82, 83. As to the
care which. a depositary is bound to use, see 2 Ld. Raym. 900, 914; 1 Ld.
Raym. 655; 2 Kent's Com. 438; 17 Mass. R. 479, 499; 4 Burr.. 2298; 14 Serg.
& Rawle, 275; Jones' Bailm. 8; Story on Bailm. Sec. 63, 64.
3. The depositary is bound to return the deposit in individuo, 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 is responsible to the extent
of the loss or injury. Jones' Bailm. 36, 46, 120; 17 Mass. R. 479; 2 Hawk.
N. Car. R. 145; 1 Dane's Abr. c. 17, art. 1 and 2. He is also bound to
restore, not only the thing deposited, but any increase or profits which may
have accrued from it; if an animal deposited bear young, the latter are to
be delivered to the owner. Story on Bailm. Sec. 99.
4. In general it may be laid down that a depositary has no, right to
use the thing deposited. Bac. Abr. Bailm. D; Jones' Bailm. 81, 82; 1 Dane's
Abr. c. 17, art. 11, Sec. 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' Bailm. 81, 82; Owen's R.
123, 124; 2 Salk. 522; 2 Kent's Com. 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' Bailm. 80, 81; Story on Bailm. Sec. 90; 1 Bouv. Inst.
n. 1008, et seq.

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