under such circumstances in the protection of their own

property.

1740

In the Mayer case, supra, it was said that: "Although one who hires a box in the vaults of a safety deposit company may keep the key himself, yet the company without any special 'contract to that effect, will be held to at least ordinary care in keeping the deposit. The duty of exercising such care arises from the nature of the business which the safety deposit company carries on. The obligation to discharge such duty is implied from the relation between the parties."

The Cussen case, supra, said where there was question of money having been abstracted from a box in a safety vault, that the company "was required to use that degree of care in the protection of this property from thieves without and thieves within, and it was required to use that same degree of care in the selection of its employes and in the supervision of their conduct after they were employed."

And it was held in a Texas case,"1 that in view of provisions in the use by the depositor of his own key and the necessity of patrons to register and be identified when applying to enter the vault, the loss by plaintiff of his key in no way amounted to contributory negligence making it possible for the finder to abstract money from plaintiff's box.

It is thus seen, that all arrangements so far as access to a deposit in a safety vault of a company are concerned seem not to affect the question of possession of

40. Safe Deposit Co. v. Pollock (1878), 85 Pa. St. 391, 27 Am. Rep. 660; Mayer v. Brensinger (1899), 180 Ill. 110, 54 N. E. 159, 72 Am. St. Rep. 196; Cussen v. So. Cal. Sav. Bank (1901), 133 Cal. 534, 65 Pac. 1099, 85 Am. St. Rep. 221.

41. Guaranty Trust Co. v. Diltz (1906), 42 Tex. Civ. App. 26, 91 S. W. 596.

a depositary for hire. These are merely for convenience and possibly amount to additional guaranty by the depository that the deposit shall remain intact. Of course, it must be conceded, that, if a depositor's negligence contributed materially to loss of a deposit, this might exonerate the depositary, but, if his carelessness is specifically offset by provisions in an agreement for deposit so as to render it harmless, the case as to liability might remain as before any act of carelessness.

§ 97. Possession by Safety Deposit Company so far as Attachment is concerned. A bank in which defendant in a suit had rented a box in a safety deposit vault was garnisheed and it answered that it did not have effects of defendant under its control, unless they were in the box and it recited the facts about it having one key and the defendant another and the necessity of the two acting in co-operation in order to open and get at the contents of the box. The court held that the company did have control, in the sense of the statute, over the box, because: "At any time on the request of the defendant the garnishee could put it within the power of the defendant to remove the contents of the box, and the defendant could not remove the contents. without the consent and active co-operation of the garnishee. As against the defendant then the garnishee had control of the box." It was then noted that the contents could be ascertained by causing the defendant to be examined as a witness, and the court might even require an inspection of the contents. The effect of this is merely that seizure may be made by garnishment and the remedy perfected by supplementary proceedings.

42

The question was gone into very much more fully

42. Trowbridge v. Spinning (1900), 23 Wash. 48, 62 Pac. 125, 54 L. R. A. 204, 83 Am. St. Rep. 806.

in a case decided by the Rhode Island Supreme Court.** After considering cases where sealed packages were held, or not, attachable, according to the terms of statute, the court said: "If these boxes are in possession of the garnishee, as we find them to be, then the condition of the contents thereof, with regard to their possession by the garnishee, does not differ from that of the contents of sealed parcels. * * * In the case of these boxes a slightly complicated method has been adopted for securing their contents against access; but the method is immaterial. The position of the contents * does not differ from that of the contents of a box or trunk locked and placed by its owner for safe-keeping in the vault of the garnishee, which box or trunk might be opened directly by the use of one key retained by the owner of the box. If the receptacle is in the hands or possession of the garnishee, as those words are used in our statute, then the contents of such receptacle, though the owner has attempted to bar access to them, are also in the garnishee's hands or possession. It is perceived that the Rhode Island statute is not as narrow as that of California, which says "under his control."

The Tillinghast case refers to two prior cases** holding the other way, and speaks of them as being the basis of statements made accordingly by a number of text writers. Among cases ruling like the Tillinghast case is a late case from Illinois, and also a case by

45

43. Tillinghast v. Johnson (1912), 34 R. I. 136, 82 Atl. 788, 41 L. R. A. (N. S.) 764.

44. Gregg v. Hudson (1871), 8 Phila. (Penn.) 91; Bottom v. Clarke (1851), 7 Cush. 487.

45. National Safe Deposit Co. v. Stead (1911), 250 Ill. 584, 95 N. E. 973, 23 Ann. Cas. 430.

District of Columbia Supreme Court." This latter case, speaking of a box in a safety vault, said: “A mere device to guard from intrusion the defendant's property in the vault of a trust company neither divests the defendant of his property, nor releases the company from its charge of defendant's property. There is no magic in two keys, a master key and a customer's key, to put property belonging to a defendant in an attachment beyond the reach of creditors and the process of the courts."

The Federal Supreme Court," affirming the case sub nom National Safe Deposit Co. v. Stead, supra, applied the several cases above cited to a statute requiring a safe deposit company to refuse to deliver to legal representatives of a decedent any securities belonging to such decedent without giving notice to the state's attorney general and treasurer, so that they might examine 'them before delivery, the safe deposit company being required to retain a sufficiency of such securities to pay inheritance tax.

The court thought that the statute in speaking of possession used an ambiguous word which well might cover such control as the deposit company exercised over securities placed in the boxes in its vaults, without it being at all necessary to say whether there was a strict bailment or what was the nature of the bailment, if there were such.

§ 98. Joint Renting and Access. Where a safe or safe deposit box or compartment is rented by more than one it is usually taken jointly with access to either.

46. Washington L. & T. Co. v. Susquehanna Coal Co. (1905), 26 App. D. C. 149.

47. National Safe Dep. Co. v. Illinois (1914), 232 U. S. 58, 58 L. Ed. 504.

In speaking of such an arrangement, a United States District Court said:

"The condition of things was like that of two persons, lawyers or brokers, occupying the same office, with a common safe or vault, to which each has access, and in which each is accustomed to deposit his papers or securities."48

In a New York case such depositors were held to be joint lessees, but whether this relation was that of joint tenants or tenants in common was immaterial to the issue.

49

Such depositors are, of course, exposed to loss by the acts of each other,50 and powerless in such instances to recover from the depositary.

A constructive trust exists between the depositors, so that one cannot renew the lease to the exclusion of the other or others. Thus in an action" by the executors of a deceased joint lessee against the safe-deposit company and the other lessee, who had renewed the lease of the box in his own name, it was held that equitable relief would be granted compelling access.

The court said: "The remedy at law by an action. for ejectment was inadequate, since the legal title of the defendant would effectually bar the recovery of possession against him by that means. Proceedings to recover the securities and papers deposited in the safe, or an action to recover the value thereof, could only

48. Bangor Electric Light & Power Co. v. Robinson (1892), 52 Fed. 520, 522.

49. Hacket et al. v. Patterson et al. (1891), 16 N. Y. Supp. 170.

50. Bangor Electric Light & Power Co. v. Robinson (1892), 52 Fed. 520, wherein indorsed certificates of stock belonging to one joint depositor were stolen from a safe deposit box by another, who sold them to an innocent purchaser. Recovery was allowed against the innocent holder.

51. Hackett et al. v. Patterson et al (1891), 16 N. Y. Supp. 170.