« SebelumnyaLanjutkan »
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.
ACTION 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, 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, 5 P. F. S. 368; Arnold v. Macungie Savings Bank, 21 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
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 Litchfleld 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.
good consideration. 3d. It must be reasonable; that is, it should afford only a fair protection to the interests of the party in whose favor it is made, and must not be so large in its operation as to interfere with the interests of the public.
The motion does not disclose that it was claimed in the court below that the contract was lacking in any of these elements, but only that it was too indefinite and uncertain in its language to be enforced. The respondent admits the making of the contract and full performance on the part of the petitioner, but concedes that he has paid no attention to it whatever, except to keep the money paid under it. This is not very creditable, to say the least, and the excuse given does not at all relieve him in a moral point of view. He says, in effect, that inasmuch as he did not understand, by the language which he used in the contract, where the circle with its ten-mile radius would be drawn, he will locate within the town of Litchfield, where he can do the other party the most injury, and appropriate to himself the good-will of the business he had sold, knowing absolutely such conduct to be contrary even to his own understanding of the contract. Such a position might well excuse a court of equity from giving any construction to the contract merely for his future guidance. But he says that he stands simply on his legal rights, and he insists that the contract by the rules of law is too uncertain and indefinite, both as to territory and time, to be binding. This question is involved in the motion for a new trial, and calls for a decision; and with a view to prevent future litigation between the parties, we will discuss it briefly.
The counsel for the respondent ask in their brief, "How can the court determine under this contract the territory from which the respondent is excluded from practicing dentistry by the provision, within a radius of ten miles from Litchfield?' At what point is the radius to be taken? From the center of the town of Litchfield? Or is it to be taken from the extreme boundaries of the town?" The construction suggested by the last interrogatory is manifestly unnatural and unreasonable. The large extent and irregularity of the boundary lines of the town would extend the prohibited territory much further from the respondent's former place of business at certain points than at others, without any reason for it founded on the extent of the good-will of the business in reference to which it is to be presumed the limits were prescribed. And besides, the term "radius," which means "a right line drawn or extending from the center of a circle to its periphery," is wholly inapplicable to such a construction. But in making such a contract the parties would naturally take their stand at the place where the business to be sold had been carried on, and would fix the utmost limits of the territory at equal distance from that point in every direction, and as far at least as they supposed the good-will might attract customers. Now, the contract is dated at "Litchfield," where the postoffice of that name was located, and the ten miles are to be computed from "said Litchfield," referring to the place where it was dated. It is also to be remarked that the precise point in the village of Litchfield where the business referred to had been carried on by the respondent is mentioned, namely, "in the rooms over Dr. Beckwith's drug store."
Now, if we put ourselves in the position of the parties it would seem that the language which they used is capable of very easy and definite application, and thus construed the contract means ten miles in every direction from the center of the village of Litchfield.
tion as to time is indefinite or perpetual will not of itself avoid the contract if it is limited as to place, and is reasonable and proper in all other respects. Hitchcock v. Coker, 6 Ad. & El. 447; Bun v. Guy, 4 East, 190; Chesman v. Nainby, 2 Strange, 739; S. C., 2 Ld. Raym. 1456; Wilkins v. Evans, 3 Younge & Jerv. 318; Mallen v. May, 11 Mees. & Wels. 652; Hastings v. Whitley, 2 Exch. 611; Story on Sales (1st ed.). § 493; Pierce v. Woodward, 6 Pick. 206; Bowser v. Bliss, 7 Blackf. 344.
It is said that the petitioner may cease to practice dentistry, and that in such case the respondent ought not to remain under a perpetual injunction. The court in its discretion might in the decree have anticipated such a contingency and provided for it, but the decree is not invalid on account of such omission, any more than the contract is.
The rule as to the contract is, that if it is reasonable when made, subsequent circumstances, such as the fact of the covenantee ceasing business, so as no longer to need the protection, do not affect its operation. Elves v. Crofts, 10 C. B. 241.
A new trial is not advised.
WHEN DEMAND BEFORE ACTION FOR CON-
CALIFORNIA SUPREME COURT, AUGUST 31, 1880.
HARPENDING V. MYERS.
Where one in good faith purchases personal property from
J. C. Bates and C. L. Ackerman, for respondents. SHARPSTEIN, J. By the findings of fact, which are conceded to be correct, it appears that on the 5th day of April, 1873, the plaintiff deposited with one Baux, at San Francisco, certain jewelry. In about one month thereafter the plaintiff, being about to leave San Francisco and go to St. Louis, demanded her jewelry of said Baux; and he, pretending that his father had the key to the safe, induced her to leave without her jewelry, promising to forward it by express to her at St. Louis, so that it would reach there nearly as soon as she would. In fact, however, he had then pawned and delivered a part of said jewelry to the defendants, who were pawnbrokers, and on the 17th day of May, 1873, he pawned and delivered a part of the residue of said jewelry to them, and on the following 9th of July he pawned and delivered the entire residue thereof to them. Baux did not redeem the pledge, and on the 6th day of June, 1874, defendants sold it in the manner provided by law. On the 24th of July, 1876, plaintiff demanded said jewelry of the defendants, or its value, and said demand not being complied with, she commenced this action. She alleges, among other things, that the defendants, on the 6th day of June, 1874, unlawfully converted and disposed of said jewelry, and then alleges that on the 24th day of July, 1876, she demanded it as above stated. The judgment demanded is for the possession of the property, or, if that cannot be had, for the value of it.
One of the allegations of the answer is that the cause of action did not arise or accrue within three years before the commencement of the action, and that it is barred by subdivision 3 of section 338 of the Code of Civil Procedure. The court reudered judgment in favor of the defendant, and from that judgment the
The only remaining inquiry is, whether any more definite limitation as to time is required. The contract is silent in respect to the time of its duration. But there is a well-settled distinction between a general restriction as to place and a general restriction as to time. The mere fact that the duration of the restric-plaintiff appeals to this court.
The sole question which we have to consider is whether the action was commenced within three years after the right of action accrued. All the cases agree in this, that a right of action accrues in favor of the owner of goods as soon as they are wrongfully taken from his possession, or wrongfully converted by one who rightfully came into the possession of them. No right of action accrued against the defendants in this case until they took the plaintiff's property without her consent, and according to the New York cases and decisions in some of the other States, no right of action, in the absence of a demand, accrued until they Bold it. So far as we are advised, neither that nor the opposite doctrine has ever been expressly adopted in this State. We are therefore at liberty to adopt the doctrine which we think to be the more reasonable.
The reason of the New York rule, as stated by Mr. Justice Bronson in Barrett v. Warren, 6 Hill, 348, is that "a man who innocently purchases property, supposing that he should acquire a good title, ought not be subjected to an action until he has an opportunity to restore the goods to the true owner." In this case the reason of the rule ceases, because if the defendants had not supposed that Baux had a good title to the property, a cause of action would have accrued in favor of the plaintiff at the moment of their obtaining possession of it, and consequently would have been barred by the Statute of Limitations when this action was commenced. It clearly was not the intention of the courts which laid down or adopted that rule to place an innocent bona fide purchaser in a worse condition than an original wrong-doer would occupy, as it obviously would when applied to a case like that now before us.
Of the New York doctrine Mr. Justice Cowen, in Barrett v. Warren, supra, says: "I will not, however, deny that an exception in favor of the taker, where he is a bona fide purchaser from the wrong-doer, has found its way into the books; nor that however discordant it be with established principles, it may at least in this State have become too inveterate to be displaced." Again, in the same opinion he says: "The result is, that no English adjudication creates an exception in favor of one who purchases from the tortious-taker of another's property." He further expresses the opinion that the New York rule originated in a misconception of the English cases upon the subject. In this view of the matter he is sustained by Mr. Justice Metcalf, whose opinion was concurred in by Justices Shaw and Dewey in Stanley v. Gaylord, 1 Cush. 536, who, in referring to the remarks of Mr. Justice Cowen that the rule which created an exception in favor of a bona fide purchaser might have become too inveterate in New York to be displaced, says: "We are not embarrassed by any decisions in this Commonwealth which are discordant with established principles; and therefore we deem ourselves not only warranted, but bound, to decide this case according to those principles which we find well stated by Weston, J., in Galvin v. Bacon, 2 Fairf. 30-1, as follows: Whoever takes the property of another without his assent, express or implied, or without the assent of some one authorized to act in his behalf, takes it, in the eye of the law, tortiously. His possession is not lawful against the true owner. That is unlawful which is not justified or warranted by law; and of this character may be some acts which are not attended with any moral turpitude. A party honestly and fairly, and for a valuable consideration, buys goods from one who has stolen them. He acquires no rights under his purchase. The guilty party had no rightful possession against the true owner, and he could convey none to another. The purchaser is not liable to be charged criminally, because innocent of any intentional wrong; but the owner may avail himself against him of all civil remedies provided by law for the protection of property. If the bailee of prop
Stanley v. Gaylord, supra, was a case where the bailee had mortgaged, as security for his own debt, the property of his bailor, and the mortgagee took possession of it under his mortgage, and the bailor sued the mortgagee in trespass.
In Galvin v. Bacon, supra, the plaintiff being the owner of a horse, bailed him to A for use for a limited period, under the expectation of a purchase by the latter. During the time A, for a valuable consideration and without notice, sold the horse to B, and he in like manner to the defendant; and the court held that no previous demand was necessary to enable the owner to maintain replevin against the last purchaser. In Mich. igan and Vermont the same doctrine prevails.
In Wells v. Raylan, 1 Swan (Tenn.), 501, it is distinctly held that where the possession of property is obtained from one who had no right to transfer it, a right of action by the owner against the transferee accrues as soon as the latter acquires possession of it; that the bare taking of possession under such circumstances constitutes a new conversion on the part of the person taking it, and that from the time of the commission of that act the statute will commence running.
It has been held in this State that the exemption from being sued without previous demand does not apply to sheriffs who seize upon execution property in the possession of, but not belonging to, the execution debtor. Sedly v. Hays, 1 Cal. 160; Boulware v. Craddock, 30 id. 190; Wellman v. English, 38 id. 583. Nor to an execution debtor who purchases at sheriff's sale property so seized. Sargent v. Sterm, 23 id. 359. Nor to a purchaser for value who had notice, before he removed the property, sufficient to put him upon inquiry as to the true ownership, even though such notice was not received until payment of the purchase-price. Scribner v. Martin, 11 id. 203. None of these cases conflict with any decision made elsewhere upon the points involved in them, so far as we are advised; and they are not cited because of any bearing that they are supposed to have upon the point now under consideration, but merely for the purpose of showing that the question under consideration is an open one in this State.
It will be observed that wherever the doctrine of exemption prevails it is strictly limited to what are termed bona fide purchasers for value and without notice.
We are unable to perceive, however, that a person can ever be considered a bona fide purchaser of goods from one who has no right to sell in a case where the rule caveat emptor applies. The law imputes notice to him. Under that rule he is not only put upon inquiry, but he is conclusively presumed to have ascertained the true ownership of the property before purchasing it. If he has notice in fact, no demand upon him for the property is necessary before commencing the action to recover it. If he is chargeable with constructive notice, the result in all other cases is the same. But as we have before stated, the operation of a rule which exempts a bona fide purchaser from being sued until after demand is made is, in all cases to which it has been applied, favorable to the bona fide purchaser, and is claimed to have been devised for his protection. If applied to this case, its operation is exactly the reverse of that. To hold that the statute did not commence running in favor of these defendants from the time of the delivery of the goods to them, because at that time they were conscious of no wrong-doing, which if they had been conscious of would have set the statute in