The clarion. [volume] (Jackson, Miss.) 1883-1888, 1883-02-07
SUPREME COURT REPORTS.
October Term, 1889
REPORTED WEEKLY BY RoBr. sHorwELL

CALDWELL
vs.
HALL
Appeal from the Circuit Court Of Pamela
county, Hon. A. 4. Roane, Judge.
Hall placed in the iron safe Of Caldwell
the sum Of $35. II was contained in an
open box andto itand from 1t Hall added and
withdrew at his pleasure, 50 that at one time
he had IN the box thus deposited as much as
$IOO. This money was never mingled with
CaldwelPs, nor was any receipt given for IL,
nor any entry of 1t made on his books, His
bookkeeper, who carried the safe key, some
times used small portions OF IL in making
change, always dropping into the box tick
cts showing the amounts so withdrawn, and
always replacing them in few days His
habit in this regard was known to and ac-
guessed in both by the depositer and de
pository. Some months after the date Of
the original deposit, Caldwelps safe was
robbed without any fault or negligence on
his part. His own money was lost along
with that OF Hall and other depositors
Caldwell was not banker, but a merchant.
and the deposits belonged TO friends aud
customers, 70 whom he had not made him
self liable. The day before the robbery his
lbo0ltkeeper uHH fteUil 81 nty dollars II
Halls money which, not having been fe.
/ placed, he paid to Hall after the robbery.
This suit is brought by Hall to recover the
balance OF the sum stolen The right TO re.
cover Is rested upon the statement testified
to by Hall, but denied by Caldwell, that at
the time Of the first deposit ii was understood
and agreed between the parties that the
money was to be used by Caldwell in his
business If he SO desired, and that Il was
received on this basis. II is not claimed
that Caldwell then became the borrower OF
the money, and that the relation of creditor
and debtor then arose, but that Caldwell be.
came bailee OF the money with an agree.
ment to return 1t in specie, or to use it and
to repay it with other money at his option
and this it is insisted constituted that pecu
liar species of bailment known in the civil
law as mlttuNEn.
L. c. Standifer and Taylor & Kyle for ap.
pellant.
Stone & Cook contra.
CHALMERS, j.,
Held
l. In our system Of Jurisprudence, the
species of bailment known in the civil law
as mutuum is treated as sale rather thar
q bailment, and this seems to be its propei
aspect, since its practical effect must al
ways be to operate transfer of title wher
chattels are deposited, and to create the re
lation OF lender and borrower where money
is involved. In the one case it is sal,
with the right in the purchaser to return
the thing delivered or its equivalent in kind
though not in specie. In the other, it is
deposit Of money with the understanding
that it is to be surrendered on demand bu
with the right in the receiver to use and re
place ii if he desires. 1t follows, therefore
that at common law the idea Of bailment II
this class OF cases is lost in that OF a purchas
where the thing deposited is a chattel, an,
that Of debtor and creditor where 1t /
: money.
Schouter on Bailment, PIP. S, z, as, n
) Edwards on Bailment, PIP. 1877, 1856.
Story on Bailment, 2S3,
: 2 In order for this suit TO be successful
maintained such a state of facts must b
. shown as will warrant the idea that Cald
well when the money was deposited becam
!. at once the debtor OF the depesitor Th
n money was to be received by Caldwell as
bailee without reward, with permission how
ever TO use it in his own business If he s
desired. II he did so use IL he at once bt
cane the debtor Of the depositor.
1t Is not pretended that at the time Of In
deposit Caldwell became the debtor of tn
: depositor and the subsequent dealings b
4 tween the partes--Hall having the right
withdraw the deposit at any time withoI
= consultation with Caldwell, leaves the latte
o a bailee without him, and bound only to ej
ercise that ordinary care demanded Of pei
sons occupying that position. Reversed an
Remanded.
ITO be reported.)