1Ulpianus, On the Edict, Book XXX. A deposit is what is given to another for safe-keeping. It is derived from the word ponere, to place, and the preposition de adds to the meaning of the term, and indicates that everything which pertains to the safe-keeping of the article in question is entrusted to the good faith of the party. 1The Prætor says: “Where property has been deposited, I will grant an action for simple damages, for any other cause than a tumult, a fire, the ruin of a building, or a shipwreck. I will grant one for double damages against the depositary in those cases which are mentioned above. I will grant one for simple damages against the heir of him who is alleged to have been guilty of bad faith with reference to the property deposited, and I will grant an action for double damages where the heir himself has been guilty of fraud.” 2The Prætor, very properly placed by themselves those cases of deposit which result from necessity occasioned by accidental circumstances, and which do not depend upon the will of the party making the same. 3A person is understood to have made a deposit on account of a tumult, or of a fire, or for other causes, when he has no other reason to make it than the imminent danger arising from the above mentioned catastrophes. 4This distinction of causes is reasonable, since when anyone relies upon the faith of the depositary, and the deposit is not returned, he should be content with an action for the mere recovery of the property, or its value. When, however, he makes a deposit through necessity, the crime of perfidy increases in its seriousness, and the public welfare demands retribution, for it is injurious to violate a trust in cases of this kind. 5The accessories to property which is deposited are not included; as, for instance, where a slave who is clothed is deposited this does not apply to his garments, nor is a halter deposited with a horse, for the horse alone is deposited. 6If it is agreed upon that the party shall be responsible for negligence with reference to the deposit, the agreement is valid, for the law of contracts depends upon the agreement. 7It will not be held that damage resulting from fraud shall not be made good, even if this should be agreed upon; for a contract of this kind is contrary to good faith and good morals, and therefore should not be observed. 8Where clothing given to the keeper of a bath to be taken care of is lost, if he received no compensation for the care of it, I am of the opinion that he will be liable for the deposit only where he has been guilty of bad faith; but if he received compensation, an action can be brought against him on the ground of hiring. 9Ad Dig. 16,3,1,9ROHGE, Bd. 10 (1874), S. 235: Ausübung des Retentionsrechts an Waaren, die in Erwartung des Abschlusses eines Kaufs übersandt sind.Where anyone compels a slave, who has been entrusted to him for safe-keeping, to work in a mill, and he receives any remuneration for guarding him, I think that an action on hiring will lie against the miller. If, however, I myself received pay for the slave whom the miller took into the mill, suit can be brought against me for leasing him. Where the labor of the slave was set off against the compensation for his custody, a certain kind of leasing and hiring arises, but because no money is paid, an action will be granted on the terms of the contract. If, however, the party furnished the slave nothing else but food, and no agreement was made with reference to his labor, an action on deposit will lie. 10In leasing and hiring, and in matters in which an action should be granted on the terms of the contract, the parties who received the slave will be responsible for fraud and negligence; but, if they only furnished him with food, they will merely be responsible for fraud, since, (as Pomponius says), we must follow what was prescribed or agreed upon, provided we know what it is; and if anything was prescribed, the parties who received the slave will only be responsible for any fraud which is involved in the deposit. 11Ad Dig. 16,3,1,11Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 313, Note 3.If I request you to take some article of mine to Titius, in order that he may take care of it; Pomponius asks by what action I can institute proceedings against you? He thinks that I would be entitled to an action on mandate against you, but to one on deposit against the party who received the property; if, however, he received it in your name, you and he will be liable to me in an action on mandate, and he will be liable to you in an action on deposit, and this right of action you can assign to me when I sue you on mandate. 12Ad Dig. 16,3,1,12ROHGE, Bd. 10 (1874), S. 235: Ausübung des Retentionsrechts an Waaren, die in Erwartung des Abschlusses eines Kaufs übersandt sind.Where I have given you any property on condition that you will take care of it if Titius should not be willing to receive it, and he does not receive it; it should be considered whether merely an action on deposit, or also one on mandate will lie. Pomponius is in doubt on this point, but I think that an action on mandate will lie, because the mandate is of greater scope with reference to the condition of safe custody. 13Ad Dig. 16,3,1,13ROHGE, Bd. 10 (1874), S. 235: Ausübung des Retentionsrechts an Waaren, die in Erwartung des Abschlusses eines Kaufs übersandt sind.Pomponius also asks if I direct you to keep safely some property received from another in my name, and you should do this, will you be liable to an action on mandate, or to one on deposit? He rather holds that there should be an action on mandate, because this is the first contract. 14Ad Dig. 16,3,1,14ROHGE, Bd. 10 (1874), S. 402: Haftung aus Rath und Empfehlung nur wegen Dolus nicht auch wegen culpa.Pomponius also asks, where you are willing for me to make a deposit with you, and you direct it to be made with your freedman, whether I can proceed against you by an action on deposit? He says if I had deposited the property in your name, that is to say, with the understanding that you are to take charge of it, I will have an action against you on deposit, but if you persuade me that I should rather make a deposit with the freedman, no action will lie against you, since the action on deposit must be brought against him; or will you be liable on mandate because I was transacting my own affairs? But if you directed me to make the deposit with the freedman at your risk, I do not see why an action on mandate will not lie. Labeo says that it is evident that if you have given security, the surety will, by all means be liable, not only if the party who received the deposit was guilty of fraud, but even if he is not, the property is still in his hands; for what if he, with whom the deposit was made, should become insane, or a ward, or should die without leaving an heir, a possessor of, or a successor to his estate? He will, therefore, be liable to make good what is customary in an action on deposit. 15The question arises whether an action on deposit can be granted against a ward with whom a deposit has been made without the authority of his guardian? It must be held that he can bring an action on the ground of fraud, if the deposit was made with him when he was old enough to be guilty of the offence, for an action will be granted against him for the amount by which he would have been pecuniarily benefited if he had not been guilty of fraud. 16Where the property deposited is returned in a deteriorated condition, an action on deposit can be granted, just as if it had not been returned at all; for when property is returned in a worse condition than it was in the first place, it can be said that it has not been returned at all on account of fraud. 17If my slave has made a deposit, I will, nevertheless, be entitled to an action on deposit. 18If I make a deposit with a slave, and bring suit against him after he has been manumitted, Marcellus says that the action will not lie; although we are accustomed to hold that anyone should be liable for fraud committed even in servitude, because both crimes and damages follow the person of the guilty, and therefore, in this instance recourse must be had to other actions which can be brought. 19This action will lie in favor of the possessor of property and other possessors, as well as in favor of him to whom restitution of an estate is granted under the Trebellian Decree of the Senate. 20Not only is fraud previously committed involved in an action on deposit, but also that which may be committed subsequently, that is to say, after issue has been joined. 21Hence, Neratius states that if property which has been deposited is lost without fraudulent contrivance, and is recovered after issue has been joined, the defendant will nevertheless, properly be required to make restitution, and that he should not be released from liability unless he does so. Neratius also says that even though the action on deposit may have been brought against you at a time when you did not have power to make restitution, as, for instance, when the warehouses were closed; still, if you had power to make restitution before judgment was rendered against you, you should be condemned unless you do so, because the property is in your hands; for inquiry should then be made whether you acted in bad faith since you did not have the property. 22It is stated by Julianus in the Thirteenth Book of the Digest, that anyone who deposits property can immediately bring an action on deposit, since he who received it is guilty of an act of bad faith because he does not return it when demanded. Marcellus, however, stated that he who does not return it to the person who claims it, cannot always be held to have acted fraudulently; for what if the property was in the province, or in a warehouse which could not be opened at the time judgment was rendered, or the condition upon which the deposit depended had not been fulfilled? 23There is no doubt that this action is a bona fide one. 24And, for this reason, the crops, all accessories, and the yield of flocks should be embraced in this action, lest only the bare article itself should be included. 25If you sold the property which was deposited, and you subsequently purchased it on account of the deposit, even if it should afterwards be destroyed without bad faith on your part, you will be liable for the deposit, because you once acted fraudulently when you sold the property. 26In an action on deposit also, a judicial oath is taken with reference to the value of the property. 27It seems to be perfectly just that I should be granted this action, not only if my slave, but if one who is serving me as a slave in good faith, deposited the property, if he deposited it as belonging to me. 28In like manner, I can bring this action if I have an usufruct in a slave, and what he deposited was part of his peculium, which belonged to me or was my property. 29Moreover, if a slave belonging to an estate makes a deposit, the heir, who afterwards enters upon the estate, can bring the action. 30Where a slave makes a deposit, whether he lives or dies, the master can properly bring this action; if, however, the slave is manumitted he cannot bring it. But if the slave should be alienated, he who owned him at the time when the deposit was made will still have a right of action, for the beginning of the contract must be taken into account. 31Where a slave belonging to two parties makes a deposit, each of his masters can bring an action on deposit for his share. 32If you restore property to Titius which has been deposited with you by a slave of whom you thought Titius to be the master, when he was not; you will not be liable to an action on deposit, so Celsus says, because there is no fraud on your part; but the master of the slave can bring an action against Titius to whom the property was delivered. If he produces the property, it can be recovered by an action, but if he used it up when he knew it belonged to someone else, judgment will be rendered against him, because he acted fraudulently to avoid remaining in possession. 33The following question is very appropriately asked by Julianus. If a servant deposited money with me in order for me to pay it to his master for his freedom, and I paid the money, will I be liable to an action on deposit? He states in the Thirteenth Book of the Digest that if I pay money in this manner which was, as it were, deposited with me for this purpose, and I notify you of the fact, you will not be entitled to an action on deposit, because you, knowing the fact, received the money, and therefore I have not been guilty of fraud; but if I pay the money, as if it was mine, for the purpose of obtaining the freedom of the slave, I will be liable. This opinion appears to me to be correct; for, in this instance, not only did the depositary not restore the property without bad faith, but he did not restore it at all, for it is one thing to restore it, and another to pay it out as if it was one’s own. 34Where money has been deposited with you with the understanding that you can use it, if you think best, you will be liable to an action on deposit before you make use of it. 35It frequently happens that property or money which is deposited, is left at the risk of the party to whom it is entrusted, for example, where the parties have especially agreed to this. Julianus states, however, that if anyone has offered himself as a depositary, he assures the risk of the deposit, so that he must be responsible not only for fraud, but also for negligence and safe-keeping, but not for accidents. 36Where money is deposited in a bag which is sealed, and one of the heirs of the person who made the deposit appears and claims it; it should be considered in what way the depositary must satisfy him. The money ought to be taken out of the bag either in the presence of the Prætor, or in that of respectable persons, and the claimant paid in proportion to his share of the estate. If, however, the depositary breaks the seal, this will not be done contrary to the intention of the deposit, since it took place by the authority of the Prætor, or in the presence of respectable persons. So far as to what remains in his hands is concerned, if he wishes to retain it after new seals have been placed upon it either by the Prætor or by the parties in whose presence the other seals were broken he can do so; or if he refuses to retain it, it may be deposited in a temple. Where, however, the property is such that it cannot be divided, the depositary should deliver it all to the claimant, after he has given proper security that he will be responsible for all above his share; but where security is not furnished, the depositary should place the property in a temple, and be released from liability to any action. 37Ad Dig. 16,3,1,37ROHGE, Bd. 10 (1874), S. 431: Deposition wegen Ungewißheit des Berechtigten.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 347, Note 3.Another example is given by Julianus in the Thirteenth Book of the Digest. He says that if the depositor dies, and two persons appear disputing with each other, each one asserting that he is the sole heir, the property should be delivered to him who is ready to defend it against the other claimant, that is to say, he who has received the deposit. If, however, neither will accept this responsibility, he says that it is most convenient that he should not be compelled by the Prætor to undertake the defence. Therefore, it is necessary for the property to be deposited in some temple until the right to the estate is judicially decided. 38Where anyone, in the presence of several persons reads a will which has been deposited with him, Labeo says that an action on deposit can properly be brought against him on account of the will; but I am of the opinion that an action for injury can also be brought, if the contents of the will were read in the presence of those parties with the intention that the secret provisions made by the testator should bedivulged. 39If a depredator or a thief makes a deposit, Marcellus states in the Sixth Book of the Digest that either of them will lawfully be entitled to an action on deposit; for it is to his interest to have it, because he may be held liable. 40Where anyone demands a deposit of gold or silver should the article only be designated or should the weight also be included? The better opinion is that both should be included; as, for instance, the dish, or cup, or bowl should be mentioned, and the material and weight should be added. Where, however, the article is purple which has not been used, or wool, the weight should in like manner be added; except where uncertainty exists as to the amount of the weight, and recourse is had to an oath. 41Where a chest which has been sealed is deposited, but the chest alone is claimed, should its contents be included? Trebatius says that the chest can be claimed, and that an action should not be brought for the individual articles of the deposit; but if the property is first exhibited and then deposited, the description of the clothing must be added. Labeo, however, says that the party who deposited the chest is held to have also deposited the separate articles contained therein, and therefore we must bring suit for the property. Then what if the party who received the deposit was ignorant that the property was there? It does not make much difference, since he received the deposit; and I think that an action can be brought for the property forming the deposit, even though the chest was sealed when placed in the hands of the depositary. 42It is established that a son under paternal control is liable for a deposit, because he is liable to other actions; but suit can also be brought against his father, but only with reference to the son’s peculium. The same rule applies to a slave, for he can be sued along with his master. It is evident, as Julianus stated and as it appears to us, that if suit is brought on account of persons who are under the control of anyone, the case may be tried; so that if any deceit or fraud has been committed by him under whose authority they are, or by the parties with whom the contract was made, their bad faith may become apparent. 43Where property is deposited with two persons, an action can be brought against either of them, nor will one of them be released if suit is brought against the other, for they are discharged from liability not by the choice of the depositor but by payment. Hence, if both are guilty of fraud, and one of them pays the amount of the claim, the other cannot be sued; just as in the case of two guardians. Where, however, one of them can either not pay anything, or an amount less than the claim, recourse can be had to the other. The same rule applies where one of them was not guilty of fraud, and therefore was discharged, for, in this instance, recourse can be had to the other. 44Where, however, two parties made a deposit, and both of them bring suit, if, indeed, they made the deposit with the understanding that one could remove all of it, he can bring an action for the entire amount; but if the understanding was that only the share in which each of them was interested could be removed by him, then it must be said that judgment should be rendered against a depositary for the share of each. 45If I make a deposit with you with the understanding that it shall be returned after your death, I can bring an action on deposit against you, and against your heir, for I can change my mind, and claim the deposit before your death. 46Hence, if I make a deposit with you to be returned after my death, both I and my heir can bring an action on deposit, if I have changed my mind. 47For the reason that only bad faith is involved in this proceeding, the question arose whether, if the heir sold the property deposited with the testator or lent to him for use, he being ignorant that the said property had been deposited or lent, will he be liable. For the reason that he did not act in bad faith, he will not be liable for the property. Will he, nevertheless, be liable at least for the price of it which came into his hands? The better opinion is that he will be liable, for he was guilty of bad faith in not giving up what came into his hands.

2Paulus, On the Edict, Book XXXI. But what if he had not yet collected the purchase-money, or had sold the property for a smaller sum than he should have done? He must only assign his rights of action.

3Ulpianus, On the Edict, Book XXXI. It is clear that, if he could buy the property back, and return it, and does not wish to do so, he is not free from negligence; just as if he was unwilling to return it if it had been bought back or had come into his possession in any other way, alleging as an excuse that he sold it once while ignorant of the facts.

4Paulus, On Plautius, Book V. Even if the person is not the heir, but thinks that he is, and sells the property, the profit he has obtained must be wrested from him in the same way.

5Ulpianus, On the Edict, Book XXX. The counter action of deposit is granted in favor of the party with whom the deposit is alleged to have been made, and in this action it is not necessary for an oath to be taken as to the amount; for proceedings are instituted, not on account of broken faith, but in order that the party who received the deposit may be indemnified. 1An action on deposit can be brought against a sequestrator, if, however, an agreement is made with the latter that he should produce the property deposited, at a certain place, and he does not do so, it is clear that he will be liable. But, if the agreement had reference to several places, it is in his discretion at which of them he will produce it, but where no agreement was made, he must be notified to produce the property before the Prætor. 2If the sequestrator wishes to relinquish his office, what course must be taken? Pomponius says that he must appear before the Prætor and having with his consent notified the parties who selected him, he must return the property to the one who appeared. I do not think, however, that this is always correct, for he frequently should not be allowed to relinquish an office which he has once undertaken, which would be contrary to the understanding with which the deposit was made, unless a very just cause arises; and when it is permitted, the property should be very rarely restored to the party who appears, but it ought to be deposited in some temple in accordance with the decision of a court.

6Paulus, On the Edict, Book II. A deposit is properly made with a sequestrator which is delivered in its entirety by several persons, to be kept safely and returned under a certain condition.

7Ulpianus, On the Edict, Book XXX. Where a slave is deposited with a sequestrator in order that he may be put to the torture, and because of his being chained or confined in an uncomfortable place, he, induced by pity, released him; I am of the opinion that this act very nearly resembles fraud, for, as he knew the purpose for which the slave was destined, he displayed his compassion at an improper time, since he should rather not have undertaken such a task than to have been guilty of deceit. 1The action on deposit is granted for the whole amount against an heir on account of the bad faith of the deceased, for even though we are not usually liable for the fraudulent act of a deceased person, except with reference to that portion of the estate which comes into our hands; still, in this instance, the bad faith descends from a contract which gives rise to an action to recover the property, and therefore a single heir will be liable for the entire amount, but where there are several heirs, each one will be liable for his share. 2Ad Dig. 16,3,7,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 271, Note 20.Whenever bankers become bankrupt, the accounts of the depositors must, in the first place, be considered; that is to say, those of such as have money on deposit which they have not placed at interest with the said bankers, or left with them to make use of. Therefore, if the property of the bankers is sold, the depositors will be entitled to their money before the privileged creditors; but this will only be done where the parties have not afterwards received interest, as they will be considered to have renounced their deposits. 3The question also arises whether the order in which the parties made their deposits shall be considered, or whether all the deposits together shall be taken into account. And it has been established that they were all on the same footing, for this has been settled by an Imperial Rescript.

8Papinianus, Questions, Book IX. The depositary can exercise his privilege, not only with reference to the remainder of the deposit which may be found among the assets of the banker, but also with reference to all other property of the banker who has been guilty of fraud; and this rule has been adopted on the ground of public utility. It is evident that the expenses necessarily incurred are always preferred claims, for, after they have been deducted, it is customary to make an appraisement of the property.

9Paulus, On the Edict, Book VII. Where, in the action on deposit, suit is brought against one of several heirs on account of an act of the deceased, I must sue him for his share of the estate; but if, on account of an offence which he has committed, I do not sue him for a share, this is reasonable, because the measure of damages has reference to the act of bad faith which the heir himself committed.

10Julianus, On Minicius, Book II. The action on deposit does not lie against co-heirs who are not guilty of fraud.

11Ulpianus, On Sabinus, Book XLI. Where a slave makes a deposit, the party with whom it is made is authorized by good faith, and most justly, to return the property to the slave; for it is not consistent with good faith to refuse to deliver what anyone has received, but it should be returned to him from whom he obtained it, and this should be done in such a way as to restore it without any bad faith, that is to say, that there may not be even a suspicion of negligence. Sabinus further explains this, by adding that there should be no cause for the depositary to think that the master was unwilling for the property to be returned to the slave; and this is correct, unless he was influenced by some good reason to suspect the slave, but it is sufficient if he displayed good faith. If, however, the slave had previously been guilty of theft, and the party with whom the deposit was made was ignorant of the fact, or believed that the master was not unwilling for the delivery of the property, he will be released from liability, for good faith is always required. Not only will the depositary be released by returning the property to the slave if the latter remained in servitude, but also if he was manumitted or alienated, provided he did so for good and sufficient reasons; for instance, if he returned it not knowing that the slave had been manumitted or alienated. Pomponius states that the same rule should be observed in the case of all debtors.

12Pomponius, On Sabinus, Book XXII. Where a deposit was made in Asia to be returned at Rome, it is held that the intention was that this should be at the expense of the party who made the deposit, and not at that of him with whom it was. placed. 1A deposit should be returned to the place in which it is found, without any fraudulent act of the party with whom the property was deposited. It, indeed, makes no difference where the deposit was made. The same principles apply generally to all bona fide actions. It must be said, however, that if the plaintiff wishes the property to be transported to Rome at his expense and risk, he should be heard; for this is also done in the action for production. 2An action on deposit can properly be brought against a sequestrator, and it is also granted against his heir. 3Ad Dig. 16,3,12,3Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 124, Note 9.Just as where property which must be delivered in compliance with the terms of a stipulation or a will, is destroyed after issue has been joined; so, also, a deposit from the day on which it was made will be at the risk of the party in whose hands it was placed, if, at the time issue was joined, the defendant could have restored it, but did not do so.

13Paulus, On Sabinus, Book XXXI. Where a person refuses to return property, not to the owner of the same but to someone who demands it, and whom he does not think to be the genuine agent or heir of the person who made the deposit, he is not guilty of bad faith. However, if he should afterwards learn that the claimant had authority, an action can be brought against him, since he now begins to be guilty of bad faith, if he refuses to return the property. 1A personal action for recovery will also lie on account of property deposited, but not before fraud has been committed; for no one is liable to a personal action for recovery merely because he has received the deposit, but only when he has been guilty of fraud.

14Gaius, On the Provincial Edict, Book IX. Where there are several heirs of the party who made the deposit it is held that if the majority of them appear the property should be returned to those who are present. The majority should be understood to mean, not the larger number of persons, but the greater amount of the shares of the estate, and proper security must be furnished. 1Ad Dig. 16,3,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 124, Note 9.Whether proceedings are instituted against him with whom the property was deposited or against his heir, and the property naturally perished before a decision is rendered, for instance, if a slave whose ownership was in dispute should die; Sabinus and Cassius say that the party against whom the action was brought ought to be discharged, because it is only just that the natural loss of the property should be borne by the plaintiff, since it would have perished even if it had been returned to him.

15Julianus, Digest, Book III. He who allows his own property to be deposited with him or requests permission to use it, is not liable to an action on deposit or on one of loan for use, just as in the case of a party who rents his own property, or asks to hold it by sufferance, for he is not liable in either instance.

16Africanus, Questions, Book VII. If he with whom you deposit property makes a deposit of the same with another, and the latter is guilty of fraud; he with whom you deposited the property will be liable for the bad faith of him with whom it was subsequently deposited, to the extent that he must assign his rights of action to him.

17Florentinus, Institutes, Book VII. It is lawful for several persons, just as it is for one, to make a deposit; nevertheless, only several persons can make one with a sequestrator, for this is done when property is in dispute, and therefore, in this instance, each one is held to have made the deposit in its entirety. The case is otherwise where several joint-owners deposit property held in common. 1Ad Dig. 16,3,17,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 154, Note 9.Ownership of the article deposited remains with the depositor, as well as possession, unless it is deposited with a sequestrator; for then the latter has possession; for in making the deposit it is the intention that neither shall have possession during the time that it is so held.

18Neratius, Parchments, Book II. In case a deposit is made on account of a tumult, a fire, the destruction of a house, or a shipwreck, the action brought against the heir on account of the fraud of the deceased is for his share of the estate, and for simple damages, and it also must be brought within a year; but where it is brought against the heir himself it is granted for the entire amount, for double damages, and without reference to time.

19Ulpianus, On the Edict, Book XVII. Julianus and Marcellus are of the opinion that a son under paternal control can properly bring an action on deposit.

20Paulus, On the Edict, Book XVIII. If you, without having been guilty of fraud, have lost property which has been deposited with you, you will not be liable to an action on deposit, nor should you give security to return the property if you should again obtain possession of it. If, however, it should come into your hands a second time, you will be liable to an action on deposit.

21The Same, On the Edict, Book LX. Where property has been deposited with a son under paternal control, and he still retains it after having been emancipated, the father cannot be sued on the peculium within a year, but the son can be. 1Trebatius goes still farther, for he thinks that if the deposit was made with the slave, and he, having been manumitted, retains the property, an action should be granted against him, and not against his master; although an action is not granted against a manumitted person in other cases.

22Marcellus, Digest, Book V. Where two heirs fraudulently interfere with property which has been deposited with the deceased, they will, in some instances, only be liable for a portion of the same, for if they divide ten thousand aurei which were deposited with the deceased, and misappropriate five thousand of them, and both are solvent, they will each be liable for half, because the plaintiff has no further interest. But where they have melted a plate or permitted this to be done by someone else, or have committed any other kind of fraud, they can be sued for the entire amount, just as if they themselves had been charged with the safekeeping of the property; for it is certain that each one of them is guilty of fraud, and unless they were liable for the whole amount, restoration of the property could not take place. Nor does it appear absurd for one to think that unless restitution of the entire property is made, he against whom suit has been brought cannot be released but must have judgment rendered against him, if the property was not restored in proportion of the share of the estate to which he was heir.

23Modestinus, Differences, Book II. Where anyone is sued in an action on deposit, he can properly institute proceedings before the same judge on account of food which has been furnished a slave.

24Ad Dig. 16,3,24ROHGE, Bd. 7 (1873), S. 117: Verwandtschaft des depositum irregulare mit dem Darlehnsvertrage.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 379, Note 1.Papinianus, Questions, Book IX. Lucius Titius to Sempronius Greeting: “I notify you by this letter written by my own hand, that the hundred pieces of money which you loaned to me this day, and which have been counted by the slave Stichus, your agent, are in my hands, and that I will pay them to you on demand, when and where you desire me to do so.” The question arises whether any increase by way of interest is to be considered? I answered that an action on deposit will lie, for what is the loaning of anything for use but the depositing of it? This is true, if the intention was that the very same coins should be returned, for if it was understood that only the amount should be paid, the agreement exceeds the limits of the deposit. If, in the case which has been stated, an action on deposit will not lie, since it was only agreed to pay the same sum, and not the identical coins, it is not easy to determine whether an account of the interest should be taken. It has, in fact, been established that, in bona fide actions, it is the duty of the judge to decide that, with reference to interest, only such can be paid as the stipulation provides for. But is contrary to good faith and the nature of a deposit, that interest should be claimed before the party who granted the favor by receiving the money, is in default in returning it. If, however, the agreement was that interest should be paid from the beginning, the condition of the contract shall be observed.

25The Same, Opinions, Book III. Where a father received the presents given to his daughter, who was her own mistress, on the day of her betrothal, or afterwards, his heir can properly be sued in an action on deposit to compel him to produce the property. 1Anyone who converts to his own use money which had been deposited with him, but not sealed up, with the understanding that he should return the same amount, and should have judgment rendered against him, in an action on deposit, for the interest from the time when he was in default.

26Paulus, Opinions, Book IV. Publia Mævia, when about to depart to visit her husband, entrusted to Gaia Seia a closed box containing clothing and written documents, and addressed her as follows: “If I come back safe and sound you will return this to me, but if anything should happen to me, give it to my son whom I had by my first husband.” The woman having died intestate, I wish to know to whom the property which she had entrusted to the other should be delivered, to her son, or to her husband? Paulus answered, to her son. 1Lucius Titius made the following statement: “I have received, and have in my hands as a deposit the sum of ten thousand denarii of silver, and I promise and bind myself to return all the said amount, as agreed upon between us; and, in accordance with the contract entered into, I will pay you every month four oboli for each pound by way of interest, until payment of the entire sum has been made.” I ask whether interest can be demanded? Paulus answers that the contract to which reference has been made exceeds the limit of a deposit of money, and therefore, in accordance with the agreement, interest can be claimed in an action on deposit. 2Titus, to the members of the family of Sempronius, Greeting: “I have received from you the weight of about ten pieces of gold, two discs, and a sealed sack, on which you owe me ten pieces, which you have deposited with Titius, and you also owe ten to Trophimas; and you also owe ten on an account of your father, and something more besides.” I ask whether any obligation arises from a written paper of this kind, and especially anything which has reference to this money? The answer was that, in fact, no obligation seems to have arisen from the letter which was the object of the inquiry, but that it could only serve to prove that a deposit of property was made. The judge must determine whether the party, who bound himself for ten pieces of gold in the same letter, can prove what he wrote.

27The Same, Opinions, Book VII. Lucius Titius had a daughter named Seia under his control, he gave her in marriage to a slave named Pamphilus, who did not belong to him, and he gave the latter the dowry, taking an acknowledgment from him that it was only left in his hands by way of deposit; and then, the master of the slave not having been notified of said deposit, the father died, and soon afterwards Pamphilus, the slave, also. I ask, by means of what action can Seia recover the money, as she was the heir of her father? Paulus answered that, since the dowry was not actually constituted, the money could be recovered by an action De peculio on the ground of a deposit.

28Scævola, Opinions, Book I. Quintus Cæcilius Candidus wrote a letter to Paccius Rogatianus in the following terms: “Cæcilius Candidus to his friend Paccius Rogatianus, Greeting. I notify you by this letter that I have received and entered in my account-book the receipts of the twenty-five pieces of money which you have remitted to me, and at the first opportunity I will take care that this money shall not be idle, that is to say, that you will receive interest thereon.” The question arose whether interest can also be collected on account of this letter. I answered that interest will be due in a bona fide action, if the party collected it, or used the money for his own purposes.

29Paulus, Sentences, Book II. If I make a deposit of silver in a bag or sealed, and the person with whom I deposited the same makes use of it without my consent, I will be entitled to an action on deposit, as well as one for theft against him. 1Ad Dig. 16,3,29,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 379, Noten 2, 6.If he with whom the deposit was made uses it with my permission, he will be compelled to pay me interest on this account, just as in other bona fide actions.

30Neratius, Opinions, Book I. If your surety has judgment rendered against him for damages on account of property deposited with you, the said property becomes yours.

31Tryphoninus, Disputations, Book IX. Good faith, which is required in contracts, demands the greatest degree of equity; but should we estimate that equity with reference to the Law of Nations, or in accordance with civil and prætorian precepts? For instance, a party accused of a capital crime deposited a hundred aurei with you, he was banished, and his property confiscated. Should the deposit of this money be returned to him, or be placed in the Public Treasury? If we only have in view the Law of Nature and of Nations, it should be returned to him who gave it; but if the Civil Law and the provisions of legal enactments are considered, it must be turned over to the Public Treasury, for he who has deserved ill of the people should be oppressed by poverty, in order to serve as an example to others for the prevention of crime. 1Another point comes up here for examination, that is, whether we should hold that good faith ought to be limited to the parties who have contracted with one another, without paying any attention to other persons who are interested in the matter under consideration. For example, a thief deposited with Seius, who was not aware of his criminality, some plunder which he had taken from me, should Seius restore the property to the thief, or to me? If we only consider the giver and the receiver, good faith requires that he who gave the property in charge of another should receive it; but if we look at the equity of the matter which is due to all the persons concerned in this transaction, that should be returned to me of which I have been deprived by a most wicked act. I believe that to be justice which gives to every one his own, in such a way that any person who has a better claim may not be deprived of it. Therefore, if I do not appear to claim the property, it must, nevertheless, be returned to him who deposited it, even though he did so after having wrongfully obtained it. Marcellus states the same thing with reference to a depredator and a thief. Where, however, the thief, not being aware who was the father or master of the son or the slave from whom he took the property, deposits it with either of them, they being ignorant of the facts, this does not constitute a deposit according to the Law of Nations; because the character of a deposit is such that a man’s own property must be given as that of another, for safe keeping, to some person who is not its owner. If a thief deposits with me my own property, which he took without my knowledge, I being ignorant of his crime, it is rightly held that no deposit is made; for it is not in accordance with good faith for an owner to be compelled to surrender his own property to a thief. But where, in a case of this kind, property placed on deposit is given up by its owner who was not aware of the facts, a personal action for the recovery of something that was not due will lie.

32Ad Dig. 16,3,32BOHGE, Bd. 2 (1871), S. 293: Ungiltigkeit des im voraus erklärten Verzichts auf Schadensersatz aus grobem Verschulden. Pactum ne dolus praestetur.ROHGE, Bd. 4 (1872), S. 81: Ungiltigkeit des im voraus erklärten Verzichts auf Schadensersatz aus grobem Verschulden. Pactum ne dolus praestetur.Celsus, Digest, Book XI. While a statement of Nerva that gross negligence is fraudulent, is not accepted by Proculus, it seems to me to be perfectly true. For, even if anyone is not as diligent as human nature requires, still, he will not be free from fraud if he does not display that solicitude with respect to a deposit which is customary with him; for good faith will not be maintained if he shows less diligence with reference to said deposit than he exhibits concerning his own property.

33Labeo, Last Epitomes of Javolenus, Book VI. Your slave deposited, in sequestration, a certain sum of money with Attius at the house of Mævius, on condition that it should be delivered to you if you proved that it was yours, but if you did not, that it should be delivered to Attius. I stated that suit could be brought for an unascertained amount against him with whom the money was deposited, that is, for its production, and having been produced, an action could be brought for its recovery, because your slave, in making the deposit, could not prejudice your rights.

34The Same, Probabilities, Book II. You can bring an action on deposit against anyone who refuses to return your deposit on any other terms than that you pay him money, even though he may be willing to return it, on this condition, without delay and uninjured.