course is so improbable as to furnish but little basis for argument.

The power of a court to protect itself and its usefulness by punishing contemners is, of course, necessary, but it is one exercised without the restraining influence of a jury, and without many of the guaranties which the Bill of Rights offers to protect the individual against unjust conviction.

May it not be fairly said that, in order to avoid possible mistake, undue preju

dice, or needless severity, the chance
of pardon should exist at least as
much in favor of a person convicted
by a judge without a jury as in favor
of one convicted in a jury trial? The
pardoning by the President of crimi-
nal contempts has been practised more
than three quarters of a century, and
no abuses during all that time de-
veloped sufficiently to invoke a test in
the Federal courts of its validity."
R. E. La G.

NEW DOMAIN OIL & GAS COMPANY, Appt.,

(202 Ky. 377, 259 S. W. 715.)

Bailment, § 27 right to consume and replace

title of bailor.

The gratuitous lending of articles of personal property to be used in connection with the drilling of a well, and consumed and replaced in kind by the bailee, passes title to the bailee, and, therefore, the lender has no title to replacements as against a vendee of the bailee. [See note on this question beginning on page 175.]

APPEAL by defendant from a judgment of the Circuit Court for Lawrence County in favor of plaintiff in an action brought to recover, under an order of claim and delivery, certain articles of personal property used in connection with drilling oil wells. Reversed.

The facts are stated in the opinion Messrs. Garred & Garred and George W. Vaughn for appellant.

Mr. Fred Vinson for appellee. Thomas, J., delivered the opinion of the court:

This is an action brought by the appellee and plaintiff below, Tom Hayes, against the appellant and defendant below, New Domain Oil & Gas Company, to specifically recover from defendant under an order of claim and delivery certain articles of personal property used in connection with drilling oil wells, and alleged in the petition to be of the value of $320. Bond was executed, and the sheriff, under the writ, took the property from the possession of the defendant and delivered it to the plaintiff. The answer denied.

of the court.

plaintiff's ownership of the property, and alleged that defendant owned it. The court, on motion of defendant, and without objection of plaintiff, transferred the cause to the equity side of the docket, and proof was taken by depositions. The case was then submitted, and the court held that the property belonged to plaintiff and rendered judgment accordingly, to reverse which defendant prosecutes this appeal.

Plaintiff did not testify in the case, and his main witness was T. N. Clark, who at the time of the transaction, hereinafter referred to, was a partner with J. B. Coghill, and they later organized and he became vice president and general

(202 Ky. 377, 859 8. W. 715.)

manager of the Table Rock Oil Company, and he was also vice president of another corporation known as Omar Oil & Gas Company.

this, that the commodatum must be specifically returned, the mutuum is to be returned in kind. In the case of a commodatum, the property in the thing remains in the lender; in a mutuum, the property passes to the borrower."

In 3 R. C. L. 74, the text, in defining the character of relationship created under similar facts, says: "Besides a sale or a bailment, the delivery of property by one person to another may create the relation known in the Roman or continental law as a 'mutuum,' or a loan for the consumption or appropriation by the one receiving, or the mutuary, to his own use of the article delivered. In such a case the mutuary is not bound to restore the specific article deposited or loaned, but has an option either to return it or another article of the same kind and quality. In our system of jurisprudence, mutuum, while it has some of the characteristics of a bailment, partakes more largely of the nature of a sale, and is so treated, since its practical effect must always be to operate as a transfer of title where chattels are deposited,, and to create the relation of lender and borrower where money is involved. In the one case it is a sale, with the right in the purchaser to return the thing delivered or its equivalent in kind, though not in specie. In the other it is a deposit of money with the understanding that it is to be surrendered on demand, but with the right in the receiver to use and replace it if he desires."

Supporting cases in the notes are Carpenter v. Griffin, 9 Paige, 310, 37 Am. Dec. 396; Chase v. Washburn, 1 Ohio St. 244, 59 Am. Dec. 623; Fosdick v. Greene, 27 Ohio St. 484, 22 Am. Rep. 328; Wright v. Paine, 62 Ala. 340, 34 Am. Rep. 24; Caldwell v. Hall, 60 Miss. 330, 45 Am. Rep. 410, 1 Am. Neg. Cas. 803.

It will be observed that the excerpt recognizes the creation of a mutuum relationship both as to tangible and intangible personal property, i. e., where the borrower has

the right under the agreement either to return the property in specie or to replace it in kind; and with reference to the two characters of properties it is said: "In the one case [tangible personal property] it is a sale, with the right in the purchaser to return the thing delivered or its equivalent in kind, though not in specie. In the other [intangible personal property] it is a deposit of money with the understanding that it is to be surrendered on demand, but with the right in the receiver to use and replace it if he desires."

And that text is immediately followed by the statement: "In either case the risk of loss by accident attaches to the depositary or mutuary, since he has the control and dominion over the property."

The only exception as to the title of the parties in such a relationship, as is pointed out on page 75 of the same volume, is the deposit of grain in warehouses, where it is commingled with other grain of like quality; and that exception is recognized from the force of necessity, it being stated on page 76 that it "is required by the commercial interests of the country." We therefore see that the resulting consequences of a mutuum transaction on the title to the property are the same whether the property involved is corporeal property, such as chattels, or whether it is incorporeal, as money or its equivalent. In the case where a chattel is involved the transaction is a sale with the right of either returning the same property or to replace it, and in which case the mutuary not only obtains the title to the property, but assumes all risk of its loss. All the authorities referred to say that to constitute either of the characters of bailments the use must be gratuitous, as was the case here; and that, in the absence of some express or implied limited period of the loan, it may be terminated at the pleasure of the lender.

In this case, as we have seen, the lending of the property by the Omar

(202 Ky. 377, 259 S. W. 715.)

Oil & Gas Company was gratuitous, and, under the agreement, it was to be returned either in specie or in kind, i. e., if the original articles borrowed should be worn out by the borrower in using them for the purposes contemplated, then the borrower would replace them with other property of a similar kind, which comes strictly within the definition of mutuum, as above defined, and in which case, as stated by Mr. Bouvier, and sanctioned by others, "the property passes to the borrower." Such consequence is in full accord with settled rules and principles relating to the passing of a title to personal property, one essential element of which is that the one to whom the title is passed should in some manner accept the delivery of it before the title vests in him. Under the proof in this case the obligation of the borrowers, Clark and Coghill, to the Omar Oil & Gas Company, was to return to it replaced property of a similar kind to that borrowed at the termination of the bailment, and there necessarily could be no passing of title of such replaced property until the lender in some manner accepted it; for until that time the replaced property might not fulfil the obligation, and its acceptance be rejected by the lender, or it might be consumed in its use, and become necessary to substitute other property, which, if not done at the time the lender terminated the arrangements and demanded return of the property, would impose an obligation on the borrower to pay to the lender the value of the borrowed property. It is therefore quite clear that the

Omar Oil & Gas Company never acquired title to any of the property involved in this ac

right to con

tion, since all of Bailment-
it was substituted sume and re-
property by the bor- bailor.
rowers, who wore

place-title of

out the original borrowed articles while using them in drilling operations.

The plaintiff, as we have seen, did not testify, but Clark stated in his evidence, in a very vague and unsatisfactory manner, that the Omar Oil & Gas Company, since the purchase of the leases by the defendant, had sold the personal property in contest to the plaintiff, and that is all the evidence upon that subject. Neither Clark, as plaintiff's witness, nor any other one for him, testified what, if anything, he gave for the property, and the alleged purchase, if any, was shown to have been made after the property was transferred and delivered to the defendant, and was at that time in its possession. We need not, however, rest this opinion on any of those facts, since it is patent that, even if there was a sale or attempted sale of the property to plaintiff by the Omar Oil & Gas Company, it transferred to him no title to it, for the all-sufficient reason that the seller itself had no title to it. That conclusion dispenses with the necessity of considering other questions raised and argued, including that of estoppel and ratification.

Wherefore the motion for the appeal is sustained, and the appeal granted, and the judgment is reversed, with directions to dismiss the petition.

ANNOTATION.

Character of contract for use of chattels with agreement for replacements.

The loan of a chattel temporarily to be used by the borrower and then returned to the lender constitutes a bailment (commodatum). Under such a transaction it is clear that title remains in the lender. Where, however, the property is of a character which

will naturally be consumed in use, or the borrower has the option to return the property in specie or kind, or pay its value, the transaction does not properly constitute a bailment; it partakes more of the characteristics of a sale, and title passes to the borrower.