2.
Deposits, in the civil law, are divisible into two kinds; necessary and
voluntary. A necessary deposit is such as arises from pressing
necessity; as, for instance, in case of a fire, a shipwreck, or other
overwhelming calamity; and thence it is called miserabile depositum.
Louis. Code 2935. A voluntary deposit is such as arises without any such
calamity, from the mere consent or agreement of the parties. Dig. lib.
16, tit. 3, §2.
3.
This distinction was material in the civil law, in respect to the
remedy, for in voluntary deposits @ the action was only in simplum; in
the other in duplum, or two-fold, whenever the depositary was guilty of
any default. The common law has made no such distinction, and,
therefore, in a necessary deposit, the remedy is limited to damages
co-extensive with the wrong. Jones, Bailm. 48.
4.
Deposits are again divided by the civil law into simple deposits, and
sequestrations; the former is when there is but one party depositor (of
whatever number composed), having a common interest; the latter is where
there are two or more depositors, having each a different and adverse
interest. See Sequestration.
5.
These distinctions give rise to very different considerations in point
of responsibility and rights. Hitherto they do not seem to have been
incorporated in the common law; though if cases should arise, the
principles applicable to them would scarcely fail of receiving general
approbation, at least, so far as they affect the rights and
responsibilities of the parties. Cases of judicial sequestration and
deposits, especially in courts of chancery and admiralty, may hereafter
require the subject to be fully investigated. At present, there have
been few cases in which it has been necessary to consider upon whom the
loss should fall when the property has perished in the custody of the
law. Story on Bailm. §41-46.
6.
There is another class of deposits noticed by Pothier, and called by
him irregular deposits. This arises when a party having a sum of money
which he doe's not think safe in his own hands; confides it to another,
who is to return him, not the same money , but a like sum when he shall
demand it. Poth. Traite du Depot, ch. 3, §3. The usual deposit made by a
person dealing with a bank is of this nature. The depositor, in such
case, becomes merely a creditor of the depositary for the money or other
thing which he binds himself to return.
7.
This species of deposit is also called an improper deposit, to
distinguish it from one that is regular and proper, and which latter is
sometimes called a special deposit. 1 Bell's Com. 257-8. See 4 Blackf.
R. 395.
8.
There is a kind of deposit which may, for distinction's sake, be called
a quasi deposit, which is governed, by the same general rule as common
deposits. It is when a party comes lawfully to the possession of another
person's property by finding. Under such circumstances, the finder
seems bound to the same reasonable care of it as any voluntary
depositary ex contractu. Doct. & Stu. Dial. 2, ch. 38; Story on
Bailm. §85; and see Bac. Abr. Bailm. D. See further, on the subject of
deposits, Louis. Code, tit. 13; Bac. Abr. Bailment; Digest, depositi vel
contra; Code, lib. 4, tit. 34; Inst. lib. 3, tit. 15, §3; Nov. 73 and
78; Domat, liv. 1, tit. 7, et tom. 2, liv. 3, tit. 1, s. 5, n. 26; 1
Bouv. Inst. n. 1053, et seq.
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; Jonees' Bailm. 8; Story on Bailm. §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. §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, §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. §90; 1 Bouv. Inst. n. 1008, et seq.
DEPOSITION,
evidence. The testimony of a witness reduced to writing, in due form of
law, taken by virtue of a commission or other authority of a competent
tribunal.
2.
Before it is taken, the witness ought to be sworn or affirmed to
declare the truth, the whole truth, and nothing but the truth. It should
properly be written by the commissioner appointed to take it, or by the
witness himself; 3 Penna. R. 41; or by one not interested in the matter
in dispute, who is properly authorized by the commissioner. 8 Watts, R.
406, 524. It ought to answer all the interrogatories, and be signed by
the witness, when he can write, and by the commissioner. When the
witness cannot write, it ought to be so stated, and he should make his
mark or cross.
3.
Depositions in criminal cases cannot be taken without the consent of
the defendant. Vide, generally, 1 Phil. Ev. 286; 1 Vern. 413, note; Ayl.
Pand. 206; 2 Supp. to Ves. jr. 309; 7 Vin. Ab. 553; 12 Vin. Ab. 107;
Dane's Ab. Index, h. t.; Com. Dig. Chancery, P 8, T 4, T 5; Com. Dig.
Testmoigne, C 4.
4.
The Act of September 24, 1789, s. 30, 1 Story's L. U. S. 64, directs
that when the testimony of any person shall be necessary in any civil
cause depending in any district, in any court of the United States, who
shall live at a greater distance from the place of trial than one
hundred miles, or is bound on a voyage to sea, or is about to go out of
the United States, or out of such district, and to a greater distance
from the place of trial than as aforesaid, before the time of trial, or
is ancient, or very infirm, the deposition of such person may be taken
de bene esse, before any justice or judge of any of the courts of the
United States, or before any chancellor, justice, or judge of a supreme
or superior court, mayor, or chief magistrate of a city, or judge of a
county court or court of common pleas of any of the United States, not
being of counsel or attorney to either of the parties, or interested in
the event of the cause; provided that a notification from the magistrate
before whom the deposition is to be taken, to the adverse party, to be
present at the taking of the same, and to put interrogatories, if he
think fit, be first made out and served ou the adverse party, or his
attorney, as either may be nearest, if either is within one hundred
miles of the place of such caption, allowing time for their attendance
after being notified, not less than at the rate of one day, Sundays
exclusive, for every twenty miles travel . And in causes of admiralty
and maritime jurisdiction, or other causes of seizure, when a libel
shall be filed, in which an adverse party is not named, and depositions
of persons, circumstanced as aforesaid, shall be taken before a claim be
put in, the like notification, as aforesaid, shall be given to the
person having the agency or possession of the property libelled at the
time of the capture or seizure of the same, if known to the libellant.
And every person deposing as aforesaid, shall be carefully examined and
cautioned, and sworn or affirmed to testify the whole truth, and shall
subscribe the testimony by him or her given, after the same shall be
reduced to writing, which shall be done only by the magistrate taking
the deposition, or by the deponent in his presence. And the deposition
so taken shall be retained by such magistrate, until he deliver the same
with his own, hand into the court for which they are taken, or shall,
together with a certificate of the reasons as aforesaid, of their being
taken, and of the notice, if any given, to the adverse party, be by him,
the said magistrate, sealed up and directed to such court, and remain
under his seal until opened in court. And any person may be compelled to
appear and depose as aforesaid, in the same manner as to appear and
testify in court. And in the trial of any cause of admiralty or maritime
jurisdiction in a district court, the decree in which may be appealed
from, if either party shall suggest to and satisfy the court, that
probably it will not be in his power to produce the witnesses, there
testifying, before the circuit court, should an appeal be had, and shall
move that their testimony shall be taken down in writing, it shall be
so done by the clerk of the court. And if an appeal be had, such
testimony may be used on the trial of the same, if it shall appear to
the satisfaction of the court, which shall try the appeal, that the
witnesses are then dead, or gone out of the United States, or to, a
greater distance than as aforesaid, from the place where the court is
sitting; or that, by reason of age, sickness, bodily infirmity, or
imprisonment, they are unable to travel or, appear at court, but not
otherwise. And unless the same shall be made to appear on the trial of
any cause, with respect to witnesses whose depositions may have been
taken therein, such depositions shall not be admitted or used in the
cause. Provided, that nothing herein shall be construed to prevent any
court of the United States from granting a dedimus potestatem, to take
depositions according to common usage, when it may be necessary to
prevent a failure or delay of justice; which power they shall severally
possess nor to extend to depositions taken in perpetuam rei memoriam,
which, if they relate to matters that may be cognizable in any court of
the United States, a circuit court, on application thereto made as a
court of equity, may, according to the usages in chancery, direct to be
taken.
5.
The Act of January 24, 1827, 3 Story's L. U. S . 2040, authorizes the
clerk of any court of the United States within which a witness resides
or where he is found, to issue a subpoena to compel the attendance of
such witness, and a neglect of the witness to attend may be punished by
the court whose clerk has issued the subpoena, as for a contempt. And
when papers are wanted by the parties litigant, the judge of the court
within which they are, may issue a subpoena duces tecum, and enforce
obedience by punishment as for a contempt. For the form and style of
depositions, see Gresl. Eq. Ev. 77.
DEPOSITION,
eccl. law. The act of depriving a clergyman, by a competent tribunal,
of his clerical orders, to punish him for some offence, and to prevent
his acting in future in his clerical character. Ayl. Par. 206.
DEPOSITOR, contracts. He who makes a deposit.
2.
He is generally entitled to receive the deposit from the depositary,
but to this rule there are exceptions; as. when the depositor at the
time of making the deposit had no title to the property deposited, and
the owner claims it from the depositary, the depositor cannot recover
it; and for this reason, that he can never be in a better situation than
the owner. 1 Barn. & Ald. 450; 5 Taunt. 759. As to the place where
the depositor is entitled to receive his deposit, see Story on Bailm.
§117-120 1 Bouv. Inst. n. 1063.
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