—— Part
Gratuitous Bailment.
II.
527
Sect. i. the primary object of the bailment may be, that the bailee deliver over the chattel upon demand to a third party, and not to the Deposit, actual bailor himself. This kind of bailment must always relate to a specific chattel (n). As the bailee is to receive no reward for his services, there can Not binding never be an executory contract of deposit, for the maxim Ex nudo ^^^^ executed. pacta uon oritur actio applies, and until there is actual delivery and acceptance of the subject-matter of the trust, there is no obligation on the part of the bailee to carry out his promise (o). As soon, however, as the bailee actually accepts the chattel, he becomes in some degree responsible for it whilst it remains in his possession or under his control, and is also bound, upon demand, to redeliver it to the true owner or his nominee, unless he has good excuse legally for not doing so {p).
Sub-Sect.
1075.
A
Sj^edal
2.
necessary deposit
stress of circumstances,
one which
is
such as
Kinds of
fire, flood,
Deposit. is
made under
shipwreck,
peculiar Necessary
civil riot, or deposit,
If, under such conditions, an owner of other unforeseen disaster. a chattel intrusts it to the care of a bystander or neighbour, and that person accepts it, it has been suggested that the confidence of the owner in the recipient, and the acceptance by him, constitute an obligation which can only be satisfied by a very strict measure but it is conceived that according of care on the part of the bailee to our law his duties are merely those of an ordinary depositary (g). Consequently the owner would probably recover damages only in the event of the depositary being guilty of negligence or bad faith whilst the chattel was in his custody (?').
1076. So again if a man who is mentally incapable of appreciating what he is doing, or is under a mistake as to the identity of the person with whom he is dealing, intrusts another with a chattel, the recipient becomes a bailee (s).
Deposit by mistake,
1077. Another kind of deposit is that in which a chattel, through circumstances over which neither owner nor recipient has any
Accidental
{n) Pothier, Vol. IV., Contrat
de D6p6t,
c.
1, s. 2.
Pothier, Vol. IV., Contrat de Depot, c. 1, s. 7. Goggs v. Bernard (1704), 2 Ld. Eaym. 909 Phipps v. New Glaridge's Hotel, Ltd. (1905), 22 T. L. K. 49, where the plaintiff handed over to one of the defendants' servants his dog, which could not be found when wanted, and the defendants were held liable. See also the similar decision in Ultzen v. Nicols, [1894] 1 Q. B. 92, where a diner at a restaurant handed his coat to a waiter, and it was gone when sought for. The same rule appears to apply to all kinds of bailment. If the chattels bailed are not forthcoming, the onus is in the first place upon the bailee to show circumstances negativing negligence on his part ; see note (2), p. 545, post. But he need not account for the loss or prove that he knows how it happened {Bullen v. Swan Electric Engraving Co. (1907), 23 T. L. R. 258 ; Phipps v. New Olaridge's Hotel, Ltd., supra). (o)
{q)
Jones on Bailments, 4th ed.
p.
48
Story on Bailments,
s.
83.
(r) Ibid. (s) R. V. Beeves (1859), 5 Jur. (N. s.) 716, where a man who was lying on the ground partially tipsy, permitted a person with whom he was acquainted, to take his watch out of his pocket without any effort on his part to prevent liim, upon the supposition that his acquaintance was actuated by a friendly motive, and
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