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Page:Harvard Law Review Volume 2.djvu/265

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moment it is deposited it becomes the property of the banker, the latter becoming indebted to the depositor in the same amount.

It will be seen, therefore, that in respect to the question under consideration, money differs from land or goods in at least three particulars : first, a receiver of money frequently becomes a debtor instead of a bailee, though the object for which he is made receiver is safe custody merely, as in the case of a banker ; secondly, a re- ceiver of money, not being a banker, may be, and commonly is, accountable for the money received, though he receive it for safe custody merely, because, though not a debtor, yet he is not bound to preserve the identity of the money received ; thirdly, a receiver of money, if accountable at all, is always accountable for the cor- ptiSy since it is impossible that a receiver of money should be bound to return the identical money received, and yet be bound to account for profits made by employing the money.

One who receives money for which he is accountable may always deposit it with a banker, and in that respect he is like one who receives money for which he becomes a debtor ; but, unlike the latter, he must never mix the money for which he is account- able with his own money ; and, therefore, he must always deposit the former to a separate account.

The measure of accountability in case of money received for safe custody merely is the amount of money received. The receiver is not accountable for profits, for he has no authority to employ the money.^ Of course he is not bound to pay interest, i,e., out of his own pocket ; for an obligation to pay interest would imply that he is a debtor. The measure of accountability in case of money received for the purpose of employing it for the benefit of the plaintiff is the amount of money received, and also the length of time that the defendant has had it.

Fourthly, in order that one may be accountable for property, he must have received it into his possession and under his control ; it is not sufficient that he merely have the custody of it as the servant of the owner.^ Nor does this distinction depend at all

^ In account as receiver, where he is not to merchandise, he is not to account for proht; aHter^ if the receipt was to merchandise for then he hath a warrant to gain or lose. I Rol. Abr., Accompt (O), pi 14, 15.

  • Account ** does not lie where a man has only a bare custody as a shepherd.'* Com.

Dig., Accompt (D). ** In account against a bailiff, it is a good plea that be was servant to the plaintiff to drive his plough, and had his cattle for the drawing of his plough, absque hoc that he was his bailiff in other manner, because he is not accountable for this occupation." i Rol Abr., Accompt (L), pi. 5.