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Bailment.

542 Sect.

4.

Gratuitous Quasibailment.

must always owing

to their

money or fungibles, i.e., chattels which, being consumed in the using, cannot be restored in

consist of

specie.

The liability only arises out of an actual delivery of such chattels by one person to another, and the repayment of the obligation in chattels answering to the generic description of those advanced will always satisfy it. Thus if one man owe another twenty bushels of wheat, and by a mistake as to the amount of his indebtedness, pay to his creditor thirty bushels in satisfaction of the supposed liability, the recipient is a bailee to his quondam debtor of the ten bushels so overpaid, and, as such, is bound to account to him for the surplus. And a similar liability arises if a man discharge a debt twice over, or pay the debt of another under a mistaken assumption in point of the general rule in such cases being that fact as to his liability (y) where money is paid to another under a mistake of fact, an action As, however, the original cause of will lie to recover it back(^). the obligation is the mistake of the payer, the recipient is, as a rule, bound only to repay to him the actual amount overpaid, without

interest

A

(a).

demand, moreover,

Sub-Sect, Intermixture by agreement,

By

fraud.

By

accident.

a condition precedent to an action

is

3.

(6).

Intermixture of Chattels.

1105. Where the chattels of two persons are intermixed by consent or agreement (c), so that the several portions can be no longer distinguished, the proprietors have an interest in common in proportion to their respective shares {d). But if one man wilfully intermixes his chattels with those of another without the approbation or knowledge of the latter, the law, to guard against fraud, refuses to allow him any interest in the result of the intermixture and gives the whole to the latter (e). Where, however, a bailee, by accident or inadvertence, mixes the chattels confided to him by the bailor with his own, or where the accidental intermixture results from the act of God or of an unknown third party (/), the mixture, if it is composed of substances similar in kind and quality, belongs to the bailor and bailee as tenants in common, in proportion as each contributed to the

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134, and see Gox v. (y) Pothier, Contrat de Pret de Consoraption, ss. 132 Prentice (1815), 3 M. & S. 344 Newall v. Tomlison (1871), L. K. 6 C. P. 405 Milnes v. Duncan (1827), 6 B. & C. 671. (z) Kelly V. Solari (1841), 9 M. & W. 54, per Parke, B., at p. 58. (a) Pothier, Contrat de Pret de Consomption, s. 138. (h) Kelly v. Solaris supra.





(c)

Justin. Inst., lib. 2,

(d) 2 Bl.

tit. 1, s.

28.

Com. 405.

2 Bl. Com., v. IFhite (1808), 15 Ves. 432, per Lord Eldon, at p. 440 Golwill v. Reeves (1811), 2 Camp. 575, per Lord Ellenborough, at p. 576: " If a man puts corn into bag, in which there is before some corn, the whole is mine, because it is impossible to distinguish what was mine from what was his ; but it is impossible that articles of furniture can be blended together so as to create the same difficulty." (e)

supra

Lupton





my

(/) Smurthivaite v. Hannay, [1894] A. C. 494, per Lord Russell of Killowen, 3 C. P. approving Spence v. Union Marine Insurance Co. (1868), L. See also Mackeldey's Modern Civil Law (special part), book 1, s. 270. 427. C.J., at p. 505,

R