clerkship in a lawyer's office; it is there, and there only, that the student can learn the practice of the law and how to apply the principles he has acquired, with prompt exactitude, to the innumerable and ever varying combinations of circumstances presented to the attention of the lawyer. But it is in the law school that he should get that method of study, that habit of mind, that insight into the great principles of the law which he is not likely to get in the office, and without which all his getting may prove, to adopt the beautiful comparison of Locke: "like fairy money which though gold in the hand from which he received it, will be but leaves and dust when it comes to use."

THE LIABILITY OF A BANK TO THE HOLDER OF A CHECK.

The New York Journal of Commerce has called in the aid of "a member of the legal profession of mature years" to demonstrate the fallacy of our statement, that the holder of a check on a bank has no legal claim against the bank until the latter has accepted the check. We should not deem the matter deserving of further notice were it not of great importance to business men that there should be no mistake about the status which the holder of a check sustains toward the bank on which it is drawn.

The legal gentleman "of mature years," says: "The question lies in such narrow compass that any man of intelligence can see what the law must be, unless the law is unreasonable, unjust and oppressive." We have nothing to do, on this question, with the law as it "must be," but with the law as it is, and that, the legal gentleman aforesaid has entirely failed to "see." His "mature years" have led him to entirely ignore the recent decisions on the question and to cite several ancient decisions, some of which unquestionably sustain his contention, but the most of which have no analogy to the matter in hand.

It becomes important, in the outset, to understand what is the relation existing between a bank and a depositor, for on that point this whole question hinges. This question was very elaborately discussed in Foley v. Hill, 2 H. L. Cas. 28, and it was unanimously held Lord Chancellor Cottingham and Lords Brougham, Campbell and Lyndhurst delivering opinions that the relation between a banker and a customer who pays money into the bank is the ordinary relation of debtor and creditor, not of agent and principal, nor of trustee and cestui que trust. The money deposited becomes the absolute property of the banker impressed with no trust, and which he may dispose of at his pleasure, subject only to his personal obligation to the depositor to pay an equivalent sum upon his demand or order. This decision has been approved and followed in the later cases. Bank of the Republic v. Millard, 10 Wall. 152; The Marine Bank v. The Fulton Bank, 2 id. 252; Thompson v. Rigg, 5 id. 663; Carr v. The National Security

Bank, 107 Mass. 45; Etna National Bank v. Fourth National Bank, 46 N. Y. 82; 7 Am. Rep. 314.

It is a settled rule of law that a creditor cannot split up his demand against the debtor and require the latter to pay it in parcels, and this rule is decisive of the present question, the banker being only an ordinary debtor to the depositor.

The case of Chapman v. White, 6 N. Y. 412, has been usually regarded by the courts as an authority for the proposition, that the ordinary holder of a check has no claim upon the bank. The "mature" gentleman of the Journal of Commerce does not so regard it, and, if his statement of the case were correct, we should not so regard it ourselves. The reporter's head-note to that case is as follows: "The Bank of Geneva having a large deposit in the Canal Bank, on which the latter paid interest, sold to the plaintiff, on the 7th of July, a draft for $500 on the Canal Bank, payable on demand to the order of its cashier, which the plaintiff sent by mail to the cashier, with instructions that it was sent to pay his (plaintiff's) note of $500, payable at that bank on the 12th of July. The draft was received by the cashier on the 8th, and was neither indorsed by him, nor accepted by the bank. On the 10th the bank failed. On the 12th the plaintiff's note was presented at the bank and payment refused. And, afterward, the draft was returned to the plaintiff, at his request, by a receiver of the assets of the bank. Held, that the plaintiff had acquired no right to be paid the amount of his draft from the assets of the bank, in preference to its general creditors." It is true that the court said, that there was nothing to show that the deposit of the Geneva Bank was held by the drawee when the draft was received; but the decision was put upon the broad ground that the drawee owed no duty to the holder. Under the circumstances of the case it was

not absolutely necessary to determine the question we are discussing, but the court did determine it. Judge Gardiner, who delivered the prevailing opinion, said: "It is immaterial whether the implied engagement upon the part of the banker is to pay the sum in gross or in parcels as it shall be required by the depositor. In either case the draft or check of the latter would not, of itself, transfer the debt or a lien upon it to a third person without the assent of the depository."

But, however wide of the mark Chapman v. White may come, there are some other cases that hit it precisely. Bank of the Republic v. Millard, 10 Wall. 152, is one of these. Mr. Justice Davis, who delivered the opinion of the court, stated the question involved, in the following terms: "The only question presented by the record which it is material to notice is this: 'Can the holder of a bank check sue the bank for refusing payment in the absence of proof that it was accepted by the bank or charged against the drawer?'" The question we are considering was, therefore, fully and unmistakably pre

sented. The court held that the holder had no such right. The following is a portion of the language of the decision: "It is very clear that he (the holder) can sue the drawer if payment is refused, but can he also, in such a state of case, sue the bank? It is conceded that the depositor can bring assumpsit for the breach of the contract to honor his check, and, if the holder has a similar right, then the anomaly is presented of a right of action upon one promise for the same thing existing in two persons at the same time. On principle there can be no foundation for an action on the part of the holder, unless there is a privity of contract between him and the bank. How can there be such a privity when the bank owes no duty and is under no obligation to the holder. The holder takes the check on the credit of the drawer in the belief that he has funds to meet it, but in no sense can the bank be said to be connected with the transaction."

In Bellamy v. Majoribanks, 7 Exch. 404, Park, B., said: "The lawful owner of a cheque is of necessity entitled to receive payment of it. He could not sue the drawee unless he had accepted the cheque, a practice not usual but legal, but he could sue the drawer on non-payment of it, if he was the holder for value." In Addison on Contracts (6th ed.), 810, under the title "Cheques on Bankers," the author says: "But the holder cannot sue the banker upon whom it has been drawn, unless the banker has accepted the cheque or promised to pay it to the holder." To the same effect are Loyd v. McCaffrey, 46 Penn. St. 410; Bullard v. Randall, 1 Gray, 605; Dana v. Third National Bank, 13 Allen, 445; Harris v. Clark, 3 N. Y. 93; Thornhill v. Hull, 2 Cl. & Fin. 28.

The question was directly raised and passed upon in Carr v. National Security Bank, 107 Mass. 45, which was an action of contract by the payee and holder against the drawee on a bank check. The drawee was a bank holding funds of the drawer and was in the habit of paying his checks, but refused to pay that of the plaintiff. The defendant demurred on the ground that the plaintiff had not set forth a cause of action. The court sustained the demurrer, and in the course of its opinion said: "A check drawn by him (the depositor) in common form, not designating any special fund out of which it is to be paid, nor corresponding to the whole amount due to him from the bankers at the time, is a mere contract between the drawer and the payee, on which, if payable to bearer, and not paid by the drawees, any holder might doubtless sue the drawer, but which passes no title, legal or equitable, to the payee or holder, in the moneys previously paid to the bankers by the drawer; and the banker's promise to the drawer to honor his checks does not render them, while still liable to account with him for the amount of any check as part of his general balance, liable to an action of contract by the holder also, unless they have made a direct promise to the latter by accepting the check when

presented or otherwise." Nothing certainly could be more explicit than this language.

We will only refer to one other decision on this side of the question. In Etna National Bank v. Fourth National Bank, 46 N. Y. 82; 7 Am. Rep. 314, the facts were that the "Florence Mills" having a balance of $694 to its credit with defendant, sent to it, on the 2d of April, by mail a check on another bank for $4,895, accompanied by a letter containing this direction: "which (the check inclosed) please credit our account and charge us our note of $5,000 due the 4th inst." The check was received and credited in account on the 3d, and on the same day, defendant paid a past due note of $5,000 of the "Florence Mills," payable at defendant's bank and charged it in account. On the 4th the note referred to in the letter, held by plaintiff, was presented and payment refused. The court of appeals held that the direction in the letter did not transfer the fund, and that plaintiff acquired no title to it and could not recover. The principle involved was identical with that involved in the cases where a bank had refused to pay a check, and the decision of the court was placed upon the same ground. The opinion is elaborate and discusses fully the question we are now considering. One extract from the judgment will indicate the view of the court on that question: "The cases all agree, that notwithstanding the agreement which bankers make with their customers, to pay their checks to the amount standing to their credit, a check-holder can take no benefit from this agreement, and that a check does not operate as a transfer or assignment of any part of the debt or create a lien at law or in equity upon the deposit."

The few cases opposed to this doctrine are deserving of but little consideration. In Fogarties

v. State Bank, 12 Rich. L. R. (South Carolina), 518, the bank was held liable to the holder of a check, but much stress was laid upon the clause in the bank's charter, that it "shall receive money on deposit and pay away the same to order free of expense." The court regarded the bank as "trustee," a notion which, as we have shown, has been entirely exploded. The opinion is not fortified by authorities and shows an entire misapprehension of the relations between the banker and his customers. The same may be said of Munn v. Burch, 25 Ill. 35, wherein the same doctrine was held, and which was followed in the Chicago Ins. Co. v. Stanford, 28 Ill. 168, the same judge, Caton, writing the opinions in both cases. Robertson v. Austin, 26 Iowa, 315, has been cited as an authority to the same effect, and while the opinion of Cole, J., who delivered the judgment, was evidently on that side, he expressly said that the case "was not a controversy between the holders of the checks and the drawers or bankers having the deposits, as to the legal right of the former to sue the latter at law, prior to acceptance; but it is a controversy between the assignee of the drawer of the checks and the holders

of them." The case is, therefore, not an authority on either side of the question.

It is hardly necessary after referring to the cases of Bank of the Republic v. Millard, and Curr v. National Security Bank, supra, to say that the allegation, that an ordinary check differs from a bill of exchange is entirely without foundation, so far as this question is concerned. It was said in Chapman v. White, supra: "As Judge Cowen remarked in Harker v. Anderson, 21 Wend. 373, there are dicta of learned judges, taking a distinction between checks and bills of exchange, but the whole current of authority is the other way," and in Etna National Bank v. Fourth National Bank, supra, it was said that "checks are but inland bills of exchange, and subject to all the rules applicable to instruments of that character, and imposed no obligation upon the drawers until accepted."

CURRENT TOPICS.

It will be remembered that Judge Blatchford of the United States circuit court recently decided, after an elaborate examination of the question, that Carl Vogt was subject to extradition under the treaty with Prussia. The government took an appeal, as it were, from that decision to the Attorney-General, and that official has "reversed the decision below." He says in his communication to the acting Secretary of State: "I have carefully read the elaborate opinion of Judge Blatchford, upholding the jurisdiction of this case transmitted in your letter, but with diffidence and regret I am compelled to dissent from his views. They do not appear to me to be sound in principle or sustained by authority." Thereupon the government has concluded not to surrender Vogt. We believe that the constitution extended the judicial power to all cases arising under treaties of the United States, and this action on the part of the Secretary and the Attorney-General has very much the appearance of a usurpation of power, and that in favor of a murderer and a robber.

The decision of Judge Blatchford refusing an appliIcation for the removal of Charles A. Dana to the District of Columbia for trial, upon an information for libel, has called attention to a curious bit of congressional legislation. The application was based upon a statute of 1789 which provides in substance that, for any crime or offense against the United States, the offender may be arrested and imprisoned where he may be found, and if such commitment shall be in a district other than that in which the offense is to be tried, the judge of the district where he is imprisoned shall order his removal to the district where the trial is to be had. The warrant for Mr. Dana's arrest was issued by the Police Court of the District of Columbia. This court was established by the act of June 17, 1870, and was given original jurisdiction over all offenses against the United States, committed in the

District of Columbia, not deemed capital, or otherwise infamous crimes. The court was to be composed of one judge who was to try all cases without a jury, but the defendant was given an appeal from his decision to the criminal court, where a new trial might be had before a jury. Judge Blatchford promptly refused, at the close of the argument, to send the defendant to Washington, on the ground that the Police Court had no jurisdiction, the defendant having a constitutional right to a trial by jury in the first instance. The jurisdiction attempted to be conferred by congress upon this local police court was simply startling. It was an attempt, unintentional no doubt, to establish a sort of imperial court which could stretch forth its hand and take for trial a citizen from any part of the country.

The supreme court of Illinois has just rendered a decision in the case of Churchill v. The Chicago and Alton Railroad, as to the right of the holder of a "stop over" ticket, to use it after the expiration of the time limited on its face. The court held that the contract of carriage was entire, that the company had no right to execute it in fragments, and the right being reciprocal, the holder of a ticket had no right to demand a fragmentary fulfillment; that the company not being bound to give "stop over" tickets, had the right, if it did give them, to annex such conditions as it saw fit, and that these conditions were binding upon the passenger. This decision is clearly reasonable and in conformity with the current of authority on the subject.

Photographs are becoming an important element in the trial of causes. In an action recently tried in Philadelphia, against an insurance company, to recover the amount of a policy, a photograph of the deceased was introduced as evidence of her apparently bodily condition at the time the insurance was effected. It was proved that the photograph was a truthful representation of her as she appeared at that time. On a motion for a new trial the court said: "We think that the photograph, thus proved and verified by witnesses who saw the original at a period approximating so nearly the date of the contract of insurance, was competent to go to the jury as evidence of her apparent bodily condition at that time. If it was competent for witnesses to portray her physical appearance to the jury by words, it is difficult to assign any good reason why the same might not be done by a picture, recognized and proved by her friends to be a truthful and correct representation of her person."

It has been much discussed in this State, in cases arising out of injuries received at railroad crossings, how many ways, one passing over, was bound to look in order to avoid contributory negligence. Some of the cases have quite insisted that he was bound to look both ways, that is, up and down the track, while

cluding in these words: "The proceedings for the partition or sale of the property in this action are defective so far as the interests of the unknown owners are concerned. Those owners were not brought before the court by the force of the publication of the summons made as to them; and no power existed under the circumstances shown by which their title could be transferred to the purchaser of the property."

This opinion expressly overrules Allen v. Allen, 11 How. 277, which since 1854 has been cited by Crary in his Special Proceedings, by the annotators of the Code, and others as the authority on this point, and as this opinion apparently states a new proposition, it is well that the profession should know of it, though what effect it may have upon many titles it would be difficult to say.

RIGHTS OF COMMON CARRIERS.

UNITED STATES CIRCUIT COURT.

BARNEY, Libelant, v. STEAMBOAT D. R. MARTIN, ETC., Claimants.

The conveyances of common carriers are not intended as a place for the transaction of the business of the passengers, and therefore a passenger who engages in the business of receiving and distributing parcels and baggage on such conveyance, against the will of the carrier, may be lawfully ejected."

This case was heard before Judge Benedict, and judgment was rendered for the libelant, from which claimants appeal.

J. M. Guiteau, for the libelant.

Thomas Young, for the claimants.

The opinion of the circuit court was delivered by Hunt, J.: On the trial before the district judge, the libelant recovered the sum of $1,000 as his damages, for ejecting him from the boat, on the morning of October 23, 1871. On an application subsequently made to him, the district judge reduced the recovery to the sum of $500. A careful perusal of all the testimony satisfies me that the libelant was pursuing his business as an express agent on board the boat; that he persisted in it against the remonstrance of the claimants, and that it was to prevent the transaction of that business by him on board the boat, that he was ejected therefrom by the claimants.

The steamboat company owning this vessel were common carriers between Huntington and New York. They were bound to transport every passenger presenting himself for transportation, who was in a fit condition to travel by such conveyance. They were bound also to carry all freight presented to them in a reasonable time before their hours of starting. The capacity of their accommodation is the only limit to their obligation. A public conveyance of this character is not, however, intended as a place for the transaction of the business of the passengers. The suitable carriage of persons or property is the only duty of the common carrier. A steamboat company or a railroad company is not bound to furnish traveling conveniences for those who wish to engage on their vehicles in the business of selling books, papers, or articles of food, or in the business of receiving and distributing parcels or baggage, nor to permit the transaction of this business in their vehicles when it interferes with their own interests. If a profit may arise from such business, the benefit of it belongs to the company, and they are entitled to the exclusive use of their cars for such purposes. This seems to be clear both upon principle and

authority. Story on Bailments, $ 591 a; Jenckes v. Coleman, 2 Sumn. 221; Burgess v. Clements, Maule & S. 306: Fell v. Knight, 8 Mees. & W. 269; Commonwealth v. Powers, 1 Am. Railway Cases, 389.

These cases show that the principles thus laid down is true as a general rule.

The case of the N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 356, shows that it is especially applicable to those seeking to do an express business on such conveyances. It is there held, in substance, that the carrier is liable to the owner for all the gouds shipped on a public conveyance by an express company, without regard to any contract to the contrary between the carrier and the express company. Although they may have no custody or control of the goods, they are liable to the owner in case of loss, if they allow them to be brought on board. It is the simplest justice that they should be permitted to protect themselves by preventing their being brought on board by those having them in charge. This rule would not exclude the transmission as freight of any goods or property, which the owners or agents should choose to place under the care and control of the carrier.

That persons other than the libelant carried a carpet bag without charge, or that such bag occasionally contained articles forwarded by a neighbor or procured for a friend, does not affect the carrier's right. The cases where this was proved to have been done, were rare and exceptional, and do not appear to have been known to the carrier, nor does it appear that any compensation was paid to the agent. They were neighborly and friendly services, such as peopie in the country are accustomed to render for each other.

But, if the services and the business had been precisely like that of the libelant, the rule would have been the same. The rights of the carrier in respect to A are not gone or impaired for the reason that he waives his rights in respect to B, especially if A be notified that the rights are insisted upon as to him. If Mr. Prime was permitted to carry a bag without charge on the defendants' boat, or to do a limited express business thereon, this gives the libelant no right to do such business, when notified by the carrier that he must refrain from it. A carrier, like all others, may bestow favor where he chooses. - Rights, not favors, are the subject of demand by all parties indiscriminately.

The incidental benefit arising from the transaction of such business as may be done on board a boat or a car belong to the carrier, and he can allow the privilege to one and exclude it from another at his pleasure. A steamboat company or a railroad company may well allow an individual to open a restaurant or a bar on their conveyance, or to do the business of boot blacking, or of peddling books and papers. This individual is under their control, subject to their regulations, and the business interferes in no respect with the orderly management of the vehicle. But, if every one that thinks fit can enter upon the performance of these duties, the control of the vehicle and the good management would soon be at end.

The cars or boats are that of the carrier, and I think exclusively is for this purpose. The sale or leasing of these rights to individuals and the exclusion of others therefrom come under the head of reasonable regulations, which the courts are bound to enforce. The right of transportation, which belongs to all who desire it, does not carry with it a right of traffic or business.