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and some Circuits reckoned nearly 300 members-and thus fenced round with rules, the institution of the mess became a prime necessity. Those were the days when, in the words of a song, written and sung by a distinguished member of the Northern Circuit, as it originally existed, many of the juniors might have sung:
"All round the Circuit I goes without a guinea,
All round the Circuit for two months and a day, And if any body axes me the reason why I goes it, It's because I don't know how to earn it any other way." So numerous a body often for a fortnight in one town- could not be held together without rules for its guidance and control, and the appointment of officers whose duty it should be to execute them. These were as necessary for the guild in its perambulations as when located in its inns of court; and the Grand Court with its attorney and solicitor-general, its crier, its messengers, its Masters of the Revels and Poet Laureate, and even its bishop, had its distinct sphere of usefulness as well as its comic side. The High Jinks themselves tended to repress irregularities and malpractices, while adding to the hilarity and amusement of the members. The more serious business was of course transacted before dinner; but even in the afterdinner
quips and cranks" and uproarious mirth and chaff, a salutary hint could often be conveyed, and a warning given to one who was hovering on the brink of malpractice, and be the means of averting future unpleasantness and severe measures. These were, besides, but the reflection of the revels of the inns of court, where, as in the Middle Temple Hall, the Master of the Revels, after dinner, sang a "carol or song, and commanded other gentlemen there then present to sing with him and the company;" or when, as in Gray's Inn, after dinner "a large ring was formed round the fireplace," when the "Master of the Revels taking the Lord Chancellor by the right hand, he with his left took Mr. Justice Page, who joined to the other serjeants and benchers, danced about the coal-fire, according to the ceremony, three times, while the ancient song, accompanied with music, was sung by one Toby Aston, dressed as a barrister," in 1773.
In those days when men were accustomed to sit far into the night, it was but natural that the mighty intellects and reverend seniors, after the labors of the day, should unbend a little under the influence of old port, and seek relaxation in the flow of soul and interchange of chaff, as well as reason.
One ceases to wonder that an occupant of the Woolsack, when a member of the Oxford Circuit, should have occupied the office of crier, holding a fire-shovel in his hand as the emblem of his office; that Lord Eldon, while he was attorney-general of the Northern Circuit mess, indicted Sir Thomas Davenport at the Grand Court at York, for murdering a boy "with a certain blunt instrument of no value, called a long speech;" or that Serjeant Prime was fined by the Grand Court of his Circuit for setting a boy to sleep by his eloquence. There even seems no incongruity in the practical jokes of those days that have since become historical; the hoax upon "Jack Lee" at York, with the dummy brief, Rex v. Inhabitants of Hum Town, drawn up by Wedderburn and Davenport; or that practiced on Boswell at Lancaster, when he moved for a writ of quare adhæsit pavimento; or that a late chief baron had been crowned with a punch-bowl at York, "in the days when he went circuiting; that such men as Alderson, Tindal, Serjeant Cross and others joined in a quadrille to the tune of "Fol de rol rol," "but Alderson setting off wrong, put the rest out, and the whole was soon a scene of confusion."
Much has been written and said as to the value, for purposes of discipline, of the Circuit Grand Court, "held foribus clausis among the barristers themselves, in which toasts were given, speeches were made, and
verses were recited, not altogether fit for the vulgar ear" (Campbell's "Lives of Chief Justices"), where the privilege of unrestrained freedom of speech which prevailed was reduced to the following rule by an attorney-general of the Northern Circuit (Lycester Adolphus): "Never sacrifice your friend to your joke, but remember that man is not your friend who would stand in the way of your joke." There seems to be a general consensus of opinion as to the tendency of the amusements of the Circuit table to promote friendship and to bring the leaders of the profession in contact with the juniors, and thus produce a feeling of harmony and good will amongst the bar, which was productive of the best effects. The terms of intimacy in which the counsel who went the Circuit lived, are pointed to as one of the chief characteristics of those days; and the free interchange of opinions between seniors and juniors as giving rise to sentiments of kindness and respect, and indeed, the strictness with which the etiquette of the bar is maintained in England is alleged to be owing, in a great measure, to the institution of the Circuit Court for the trial of all breaches of professional etiquette.
The methods of procedure of such a tribunal were doubtless admirably adapted to secure the objects in view; it could pass "from grave to gay, from lively to severe," and could find the venial offender half in jest, while the graver breaches of etiquette could be visited with all the severity they deserved - even to the extent of expulsion from the mess. Thus in Lord Eldon's time, we find in the Northern Circuit fines for the following offenses: "Lancaster, Grand Night, 29th March, 1783. Jno. Scott, Esq., for having come into Lancaster the day before the Commission Day, and having taken up his abode that evening at the King's Arms in Lancaster, fined one gallon." "Carlisle, Grand Night, 14th August, 1784. Mr. J. Scott, convicted of travelling between Durham and Newcastle in company with Mr. Clayton, an attorney, fined one gallon." Lancaster, Grand Night, August. 1784. The following gentlemen were fined a bottle each for making a party to dine from the rest of the Circuit, at a different house than the Circuit house, in violation of the rules of the Circuit." "Lancaster, Spring Assizes, 1783. Mr. S. Heywood was congratulated on coming in his new carriage, and Mr. J. Scott congratulated for the like." On the other hand there have been instances in very recent times, of appropriate action being taken in the case of graver offenses, in which the offenders have, with all due formality, been either admonished or expelled from the body altogether, though happily such instances are rare.
The palmy days of Circuit life, however-when the Grand Court flourished and revelry ran high-were in the times when locomotion was difficult, when turnpike trusts were not, and roads were bad; and people and their business could afford or were obliged to wait. Then the advent af the legal army was an event in the dreamy life of an Assize town; Assize balls and other festivities abounded, and a Circuit "Bespeak" was an honor sought after by the lessee of the local theatre a every Assize town. We can still remember threading our way, with a late baron of the Exchequer (then a gay circuiteer), to the Theatre Royal, Durham, and listening to a noble army of two announcing to the villain of the play that resistance was useless, as they had surrounded the house. The glories of the festivities on an Assizo Sunday at the residence of John Jones, of Ystrad, in his time a leader of the old Carmarthen Circuit, and the dinners of "Lawyer Fawcett" to the members of the Northern Bar, in Lord Eldon's time, when there were such struggles between the claims of "consulation" and the host's old port. are enshrined in history; while the hospitality extended to the Northern Circuit by the Lord of Lowther Castle was continued down to a very recent
period (curiously enough, this having originated at a time when there was only one Assize in the year in those parts, it was given only during the summer Assizes).
But times have changed since then. As the Arab Sheik said to the author of "Eothen," "Puff! puff! there is nothing like steam;" it has displaced the stage-coach, the chaise, and even the roadster. The baggage-wagon lingered longest, but even it had to succumb a quarter of a century ago on most Circuits, though it still exists on the western, and might, until recently, have been seen at the accustomed times in the Temple ready for the reception of the baggage of the Circuit; but so little were its uses dreamed of, that it has ere now been mistaken for a prison-van. Now the leader or the junior, who, by the aid of the midnight mail and the Pullman car, can be in London today and in the remotest part of the country to-morrow, is no longer placed under circumstances favorable to the cultivation of the old Circuit life and its attendant associations. The clannish or tribal spirit has vanished, and that cosmopolitan idea - the outcome of the steam engine and other facilities for intercommunicationwhich would obliterate nationalities, has left its impress indelibly marked on this as on other institutions. The circuiteer, if a silk or leading junior-"heavy juniors" they call themselves—is no longer thrown into the society of his fellows for two months at a stretch; he does not pass a great part of every year in their company, in social intercourse with them, at the mess-table or elsewhere; but he comes down to his Circuit more like one in possession of a special retainer, who, the moment his work is done, is whisked back to London. If ever he does deign to honor the mess with his presence, it is more after the manner of a patron than of the boon companion of old.
Comparatively few men now go all round a Circuit, the majority restricting themselves to those towns where they are known; others only go at certain times of the year; while some even require special fees to go to certain towns on their own Circuit, and will only take special jury causes at others.
Even the "Cock of the Circuit," who sticks to it and goes all round, spends most of his time in the society of his papers, or if in one of the more populous towns that can boast a club, he may disport himself there, and give entertainments to his friends and admirers, and thus become, instead of a supporter, a formidable rival of the Circuit mess. For that loyalty to the Circuit mess, which used to be one of its chief characteristics, and a breach of which was invariably the subject of fine in the old days-and we have even known instances of the messengers bringing a deserter into Grand Court at York, from the judges' table-has been completely set at naught, and its rules have become very much like a royal prerogative, viz., that law in the case of a junior which is no law at all in the case of a senior, and we no longer find the leaders regularly dining at the mess and entering into its social enjoyments as of old, under the last generation of leaders, such as Stephen, Temple, James, Bliss, Quain, etc. Under such circumstances it need scarcely be matter of surprise that the mess languishes, that the attendance is but spasmodic (ranging from 50 or 60 down to 3), and that whereas not so many years ago it was no uncommon thing to see from 80 to 90 at Grand Court at York, and 130 to 140 at Liverpool; from 60 to 70 would now be a large muster, and of these threefourths would be "provincials;" so that now we have not a homogeneous body but different elements to deal with at each place, and without a sufficiently numerous body going all round to make it any one's interest to keep up the ancient traditions. In old times, when, as Lord Campbell has stated, there were not more than three or four Queen's Counsel on any Circuit, it was a matter of just pride to be like Serjeant Cockell, “The
Almighty of the North," or, The Cock of the Circuit," in the days of Law and Scarlett, when men were conscious of a power and dignity that required no bolstering-up. But now, when Q. C.'s are thick as the "leaves in Vallombrosa," and every one considers himself a "Cock," the distinction has, as an eminent legal luminary (Lord Chelmsford) observed, become "all stuff," and must be hedged round with a due amount of reserve the traditionary glories and observancies of Circuit being left to the care of the junior members, to whom they are but traditions. Thus the men who owe their rank and position to their being members of the Circuit, are- perhaps unconsciously
working out the disintegration of the institution which has raised them, and are kicking the ladder from under their feet. For it is tolerably certain that many of those who have obtained rank in the profession, owe it entirely to the fact of their being members of the Circuit and to their "sticking to it," and thus obtaining practice and reputation among a comparatively small and local body, when otherwise they might, like Viola, have
"Pined in thought;
And with a green and yellow melancholy,
In the great world of London.
IGNORANCE OF ENGLISH AS AFFECTING QUALIFICATION OF JUROR.
COLORADO SUPREME COURT, APRIL TERM, 1880.
TOWN OF TRINIDAD V. SIMPSON.
Under a statute prescribing that "all male inhabitants of the State over the age of twenty-one years who are citi zens of the United States, etc., and who have not been convicted of felony" shall be competent to sit as jurors, held, that ignorance of the English language would not disqualify one from sitting as a juror. But a wise discretion would excuse from jury duty persons ignorant of that language.
RROR to review a judgment in favor of the defendant in error. The opinion states the case. ELBERT, J. On the trial below, Juan B. Cordoba, Manual Abeyta and Casimero Romero were sumn.oned with others as jurors. Upon his voir dire each answered that he did not understand the English language. The plaintiff in error made this ground of a challenge for cause; the challenge was overruled by the court, and the persons named were impanelled and sworn and served as jurors upon the trial.
Other errors were assigned, but by stipulation of counsel the cause is submitted upon this assignment alone.
Is inability on the part of persons called as jurors, to speak the English language and to understand it when spoken, necessarily a disqualifying fact? The question is not without difficulty.
The statute declares that "all male inhabitants of the State, of the age of twenty-one years, who are citizens of the United States, or have declared their intention to become such citizens, and who have not been convicted of felony, shall be competent to serve as grand and petit jurors in all courts and judicial proceedings in the State."
These are the general statutory qualifications of a juror. One possessing them, however, is still subject to challenge. Section 161 of the Code provides, that either party may challenge peremptorily or for cause, limiting peremptory challenges to four. Section 162 enumerates seven several grounds upon which challenges for cause may be taken. It is unnecessary to advert to them further than to say, that inability to
speak or understand the English language is not enumerated as a ground of challenge.
This is not a case, however, where enumeration is to be taken as excluding disqualifying causes not enumerated; otherwise, deafness, insanity, and like physical and mental disqualifications, absolute in their character, would be unchallengeable. The maxim expressio unius est exclusio alterius is not of universal application in the construction of statutes. The legislative intention is to be taken according to the necessity of the matter, and according to that which is consonant to reason and sound discretion. Broom's Leg. Max. 664.*
In the silence of the statute, therefore, the grounds of challenge in this cause stand as at common law, to be determined by a consideration of the duties imposed upon a juror, and the qualifications thereunto requisite.
Challenges to the poll are reduced by Sir Edward Coke, under four different heads: propter honoris respectum, propter defectum, propter affectum, and propter delictum. 3 Black. Com. 361,* 362.*
If to either, the challenge in the present case must be referred to the second head; it is a defect of education, but only in a relative and limited sense. Knowledge of a language other than a person's vernacular is but an accomplishment; want of it argues nothing respecting mental culture, in fact may co-exist with the highest intellectual attainments, and the greatest aptitude for the duties of a juror. While this is the case, the inability of a juror, ignorant of the language in which the proceedings of the court are had, to discharge the duties of a juror unaided, is patent.
It is his duty to listen to the evidence, the arguments of counsel, and the instructions of the court. Ignorance of the language as a matter of fact is as conspicuously a disqualifying circumstance as though he was deaf, unless the court may aid him in the discharge of his duties through the instrumentality of an interpreter; hence, the question comes to this: May the court in such a case interpose an interpreter? If it has the power, the disqualification is removable; if not, it is complete and absolute.
It is true, there is no express authority of statute so to do, but there is a general power conferred by section 402 of the Code upon District Courts to make rules and regulations governing their practice and procedure, in reference to all matters not expressly provided for by law. Independently of statute, courts of original jurisdiction have inherent power to make and enforce rules for the transaction of their business, subject only to the condition that they do not contravene the laws of the land. Gammon v. Fritz, 79 Penn. 303.
It must be borne in mind that the territory embraced in quite a number of the counties in the southern part of the State, and among them the county in which this litigation originated, formerly belonged to the Republic of Mexico; that it was acquired by treaty by the United States, and that the inhabitants thereof were largely, if not exclusively, a Spanish-speaking people. Of this fact we take judicial notice. These people are in all respects citizens, and the association of alienage and its disabilities with ignorance of our language is to be dismissed. Under like circumstances it was provided by statute, in the State of California, that a juror should have sufficient knowledge of the language in which the proceedings of the courts were had; but certain counties, where a large portion of the population were ignorant of the English language, were excepted by the statute from the operation of this rule. It is a noticeable fact, that, both under our territorial and State governments, legislation touching the administration of the law has proceeded without any express reference to, or recognition of the fact, that in the counties mentioned, its administration would chiefly concern, as for its agencies it would be largely dependent upon, a Mexican citizenship. In the
early history of the territory it would have been perhaps impossible, in these counties, to obtain an Englishspeaking jury. Even now, the exclusive rule that is contended for, if it did not defeat the administration of the law in these counties, would devolve the burdens of jury duty upon a very limited number.
We cannot conceive that legislators have been blind to these facts, or negligent of their demands. In the absence of express legislation, we presume them to have regarded the difficulty as amply provided for, either in the provisions of section 402, cited supra, or in the inherent powers of the courts of original jurisdiction which they had established for the administration of the law. For these reasons we think it was fully within the power of the court to appoint an interpreter, under the sanction of an oath, to interpret the testimony of witnesses and the arguments of counsel. This would affect the discharge of their duties as jurors while in the jury box. Further than this we do not decide.
It does not appear that an interpreter was appointed; but it is to be presumed that the court did whatever was necessary in this behalf.
As to the discharge of their duties in the jury room the duties of consultation, decision and agreement – it does not appear but what the other jurors of the panel were Mexicans, and spoke the Spanish as well as the English language; if so, no interpreter was necessary after their retirement from the jury box.
We are told that we must presume that they were English-speaking only. Respecting the jurors in a county where the English-speaking class is so limited, and the Spanish-speaking class is so largely in excess, such a presumption would be without foundation in fact, and inadmissible. Without this presumption it does not affirmatively appear that the jurors named were disqualified for the duties of the jury room. We desire to say, however, that the power of the court to interpose an interpreter in the jury room is embarrassed by considerations not attaching to the appointment of an interpreter to act in the presence of the court, and if it exist, its exercise should be limited to cases of strictest necessity.
Much stress is laid upon the proposition that all judicial proceedings must be in the English language, and the case of Dunton v. Montoya, 1 Col. 99, is cited as authority. In that case the narr, was in the Spanish language, and the doctrine of the case must be limited to the declaration that all pleadings must be in English. The fallacy of the argument on this proposition consists in treating a general rule as though it were an exclusive rule. The declaration of the Code (§ 405) is that "every written proceeding in a court of justice in this State, or before a judicial officer, shall be in the English language.' * * This is substantially the statute of 4 Geo. 2, 626, which enacts "That both the pleadings and the record should thenceforward be framed in English." Stephen's Pleadings, appendix 24. Prior to that time the record and pleadings (after the introduction of written pleadings) had been framed in Latin, and the statute had for its object the abolition of that practice.
By statute 36 Edward III, it was enacted that "For the future all pleas should be pleaded, shown, defended, answered, debated and judged in the English tongue, but be entered and enrolled in Latin." 3 Black. Com. 318. The arms of Edward had prevailed over those of France, and the object of the statute was to banish from the English courts of justice the use of the Norman or law-French introduced after the Conquest. This appears to be the only statute on the subject prior to the fourth year of James I.
How far and with what modifications it may be said to prevail as part of our common law, need not be discussed. Undoubtedly laws are to be administered in the language of the people adopting them. The people
of this State, as of the United States, are an Englishspeaking people, and, in the silence of the statute, all judicial proceedings would be, as of course, in that language. It does not follow, however, that they would be exclusively so. This proposition must be taken subject to the practical necessities that daily arise in the administration of the law in courts of justice.
Contracts in a foreign tongue are to be dealt with, and must be translated. Non-English-speaking witnesses are put upon the stand and must "bear witness" through an interpreter. Non- English-speaking prisoners are put upon their trial, and the indictment and other proceedings of the trial are made known and manifest to them by the same instrumentality. The proposition, therefore, that all judicial proceedings must be in the English language, must be taken sub modo.
In this view, the difficulty made respecting the instructions of the court also disappears. While under the Code they must be in writing, and under section 405, in English, we do not conceive that their translation into Spanish for the use and instruction of a juror understanding that language alone, would be inhibited by the spirit of the section. The object of the provision is to secure a record in English, and this would in no wise be defeated.
The hypothetical case put by counsel, of a jury composed of persons of several different nationalities, is met by the suggestion that extremes prove nothing. Such complications are not likely to arise where ample judicial discretion exists.
We are not unmindful that there are many serious objections to the interposition of interpreters in judicial proceedings, and while we hold it within the power of the court to appoint an interpreter under the circumstances of this case, it was also within its discretion to exclude the jurors named for the cause assigned. People v. Arceo, 32 Cal. 40; Atlas M. Co. v. Johnson, 23 Mich. 37; State v. Marshall, 8 Ala. (N. S.) 302.
Such persons are not disqualified, but whenever it is practicable to secure a full panel of English-speaking jurors, a wise discretion would excuse from jury duty persons ignorant of that language.
The cases of Fisher v. Philadelphia, 4 Brewster, 375, and Lyles v. State, 41 Texas, 172, are cited against the conclusion arrived at in this opinion. The first authority we have been unable to obtain. With the reasoning of the last we are not satisfied. If our conclusion as to the power of the court to appoint an interpreter be correct, the foundation, upon which the conclusions in that case appear to rest, disappears.
The judgment of the court below is affirmed, with costs.
MALICIOUS DESTRUCTION BY HUSBAND OF WIFE'S PROPERTY.
MERCER COUNTY, NEW JERSEY, QUARTER SESSION, OCTOBER, 1880.
STATE OF NEW JERSEY V. NUGENT.
Under a statute making it a misdemeanor for any person to "maliciously cut, break, etc., any goods or chattels the property of any other person," held, that a husband maliciously breaking a family sewing machine purchased by him, and maliciously cutting his wife's apparel purchased partly with his own and partly with his wife's earnings, was not liable. The sewing machine was his own, and the wife, even if she had title to the apparel, was not any other person " within the meaning of the statute.
found guilty on a charge preferred by his wife, of having "unlawfully and maliciously, with intent to destroy or render useless," damaged and cut with a hatchet a sewing machine, bought and paid for by the defendant, which was at the time used for family sewing, and also cut two shawls, bought and paid for by defendant partly with his own and partly with his wife's earnings, which shawls, since their purchase. had been continuously worn and used by the wife as her apparel. The charge and conviction were founded on the 126th section of the Crimes Act (Rev. p. 250) as follows: "If any person shall unlawfully or maliciously cut, break, burn, destroy or damage, with intent to destroy or render useless, any goods or chattels * * the property of any other person, he shall be deemed guilty," etc.
Motion was afterward made in arrest of judgment, on the ground that admitting the property or title of the chattels or part of them to be in defendant's wife, she was not "any other person," within the meaning of the statute.
At common law the title of all chattels belonging to the wife is vested in her husband, and if it appeared at the trial that the owner of the goods stolen and stated to be such was a married woman, the prisoner was acquitted. Hughes v. Com., 17 Gratt. 565; and this rule holds now in some States. State v. Hays, 21 Ind. 288; and the husband is presumed to be the owner of all the personal property possessed by the family until the contrary appears. Topley v. Topley, 31 Penn. St. 328; Com. v. Williams, 7 Gray, 337; State v. Pitts, 12 S. C. (N. S.) 180; Pratt v. State, 35 Ohio St. 514. So it has been held that personal apparel furnished by a husband to his wife, or purchased by the wife, with the consent of her husband, with money given her by him from a fund formed by their joint earnings, remains the property of the husband, and the wife cannot maintain an action against a carrier for the loss thereof. Hawkins v. Providence R. R., 119 Mass. 596.
Although in an indictment against a third person for stealing the goods of the wife used in the household with her assent, the ownership may be laid either in her or her husband, Petre ads. State, 6 Vr. 64; yet, viewing a husband and wife under such circumstances as joint owners, a charge of larceny by one joint owner against another will not lie. State v. Kent, 22 Minn. 41; Kirksey v. Fike, 29 Ala. 206.
The Married Woman's Acts do not so far destroy the unity of husband and wife, that either can be convicted of larceny of the other's separate goods, Stevens v. State, 44 Ind. 469; Thomas v. Thomas, 51 111. 163; Overton v. State, 43 Tex. 616; Reg. v. Kenny, 25 W. R. 679; 5 Cent. L. J. 68; nor can a husband be guilty of arson in burning his wife's house, Snyder v. People, 26 Mich. 106; nor can the wife sue her husband for slander, Freethy v. Freethy, 42 Barb. 641; Tibbs v. Brown, 2 Grant's Cas. 39; nor in replevin, Hobbs v. Hobbs, 22 Alb. L. J. 135; nor in trover, Owen v. Owen, 22 Iowa, 270; nor in a civil suit for an assault and battery, Longendyke v. Longendyke, 44 Barb. 367; even after a divorce, the assault having been committed during coverture, Abbott v. Abbott, 67 Me. 304; Phillip v. Barnet, L. R., 1 Q. B. Div. 436. These cases as to larceny are all founded on the rule that a person cannot steal his own property. Com. v. Tobin, 2 Brewst. 570; Taylor v. State, 7 Tex. Ct. App. 659; People v. MacKinley, 9 Cal. 250; People v. Vice, 21 id. 344. There have been cases holding that, under the words "any person "in a statute, the owner might be included if the intent was apparent. Com. v. Tewksbury, 11 Metc. 551; State v. Hurd, 51 N. H. 176. But they do not extend to the one under consideration. The property damaged in this case, clearly the sewing machine, and, in my opinion, the shawls also, were not the property of any other person within the contemplation of the statute. It must be remembered that this, being in
animate property, can be injured only in the title. Davis v. Com., 30 Penn. St. 421.
The defendant should therefore be discharged. BANK MAY NOT DISPUTE TITLE OF ITS DEPOSITOR TO DEPOSIT.
PENNSYLVANIA SUPREME COURT, JUNE 19, 1880.
FIRST NATIONAL BANK OF LOCK HAVEN V. MASON. T., a clerk for a firm, deposited moneys in his own name in a bank. Held, that the bank could not, after the firm became insolvent, set up as against T. that the moneys belonged to the firm and apply them on an indebtedness of the firm to the bank, the firm making no claim to such moneys.
CTION to recover moneys deposited in a bank. The opinion states the case.
PAXSON, J. The plaintiff below brought his suit against the First National Bank of Lock Haven, to recover the amount of moneys he had deposited with said bank. The defendant offered to prove that the money deposited in the name of James D. Mason, the plaintiff, was in fact the money of the firm of Thomas & Mason, of which firm the plaintiff was a clerk; that the plaintiff had admitted at the time the deposits were made that the money belonged to said firm, and was placed in his name as a matter of convenience in paying small bills; and that the said Thomas & Mason were indebted to said bank in excess of the amount standing on its books to the credit of the plaintiff. The bank claimed to set off the indebtedness of Thomas & Mason against the claim of plaintiff in this suit. This evidence was rejected by the court below, and forms the subject of the first assignment of error.
Thomas & Mason made no claim to this money. The said firm having failed, the bank seeks to protect itself by setting up their title to the funds in question.
It is well settled that money deposited in a bank to the credit of A may be shown to be the property of B. It may be reached by attachment on the part of the judgment creditors of B, or its payment by the bank to A may be stopped by a proper notice on the part of B that the money belongs to him. The credit on the books of the bank is but prima facie evidence of ownership. Harrisburg Bank v. Tyler, 3 W. & S. 373; Frazier v. Erie Bank, 8 id. 18; Jackson v. Bank of United States, 10 Barr, 61; Bank of Northern Liberties v. Jones, 6 Wright, 541; Starr v. York National Bank,
the claim of Warwick to the money he had deposited with them? They received it and the bills as his, entered them on their books as his, and were bound, in the absence of any attachment, to have paid the funds to him. How then were they placed in a better position by the service of the attachment? The attaching creditors stand in the place of Warwick. If they could not allege, as against Warwick, that the funds were not his, neither can they allege against the attaching creditors that they are not his, and yet turn round and pay the money to Warwick to enable him to defeat his creditor."
It is clearly against public policy to permit a bank that has received money from a depositor, credited him therewith upon its books, and thereby entered into an implied contract to honor his check, to allege that the money deposited belonged to some one else. This may be done by an attaching creditor, or by the true owner of the fund, but the bank is estopped by its own act. A departure from this rule might lead to novel results, and embarrass commercial transactions.
We are of opinion that the evidence referred to in the first and second assignments were properly stated. Judgment affirmed.
RESTRAINT OF TRADE-AGREEMENT NOT TO FOLLOW CALLING WITHIN SPECIFED LIMITS.
CONNECTICUT SUPREME COURT OF ERRORS, MAY TERM, 1879.
Cook v. JOHNSON.*
The plaintiff, for a sufficient consideration, bought of the defendant his business as a dentist, and the latter executed a contract not to practice dentistry "within a radius of ten miles of Litchfield." The town of Litchfield has an extensive territory and an irregular outline, and contains the village of Litchfield, in which the defendant dwelt and had his office at the time, and where the contract was drawn and executed. Held, that the above expression meant "within ten miles of the center of the village of Litchfield." And held that the contract was not void in not fixing a period within which the defendant was not to practice dentistry within those limits. It seems that where such a contract is reasonable when made, subsequent circumstances, such as the covenantee's ceasing to do business, do not affect its operation.
5P. F. S. 368; Arnold v. Macungie Savings Bank, 21 PETITION for an injunction against the practice of
P. F. S. 290. These were cases, however, in which the true owner set up a claim to the fund. We have here a very different question. The bank, the depositary, sets up an adverse title to defeat the suit of its own depositor. The bank held its claim against Thomas & Mason when the plaintiff made his deposits, and they knew, or at least they allege they knew, when the deposits were made, that the money so deposited in plaintiff's name belonged to said firm; yet under these circumstances, and with this knowledge, they permitted the plaintiff to make the deposit in his own name. Having received it as the money of plaintiff, and given him credit therefor, the bank is estopped, in the absence of any notice from or claim by the real owner, from disputing plaintiff's title. Having received the money as the money of the plaintiff they are bound to pay it to him or upon his order. Such a contract is implied from the fact of the deposit. In Jackson v. Bank of U. S., supra, the funds in the bank to the credit of Warwick were attached, the bank paid the money to Warwick notwithstanding the attachment, and was held liable therefor. It was said by Mr. Justice Coulter, in delivering the opinion of the court: "The first question that occurs is this: could the bank, if the attachment had not been served, have resisted
dentistry by the respondent, brought to the Superior Court in Litchfield county, and heard before Granger, J. Decree for petitioner and motion for a new trial by the respondent. The case is fully stated in the opinion.
H. B. Graves, in support of motion.
C. B. Andrews and E. B. Kellogg, contra.
LOOMIS, J. The questions presented by the respondent's motion for a new trial depend on the validity and construction of the following contract:
“LITCHFIELD, CONN., April 2d, 1874. "I this day sell and convey to Frank F. Cook all the furniture and fixtures in the rooms over Dr. Beckwith's drug store; also my good-will; and do agree and bind myself not to practice dentistry within a radius of ten miles of said Litchfield. And for the consideration above named have this day received one hundred dollars from Frank F. Cook's hand.
"L. M. JOHNSON."
As this belongs to the class of contracts in restraint of trade, three requisites are essential to its validity. 1st. It must be partial, or restricted in its operation in respect either to time or place. 2d. It must be on some
* To appear in 47 Connecticut Reports.