In the case of confusion of goods the principle is equally distinct. This is clearly expressed by the court, in the case of Wilson 7. Lane (33 N. H. 466), as follows: "The question arose in this country as early as 1810 in the case of Bond v. Ward (7 Mass. 123), and it was held by Parsons and the court, that if the goods of a stranger are in the possession of a debtor, and so mixed with the debtor's goods that the officer, on due inquiry, cannot distinguish them, the owner can maintain no action against the officer until notice and demand of his goods and a refusal or delay of the officer to redeliver them. In Shumway 7. Rutter (8 Pick. 443), it was again held that, when the owner of chattels suffers them to be mixed with those of another person so that they cannot be distinguished, an officer will not be liable to an action of trespass for attaching them as the property of such other person. . . . The doctrines of these cases were fully recognized here in the case of Lewis v. Whittemore (5 N. H. 364), where it was held that it was the duty of the officer to attach the goods of the debtor, notwithstanding they were mixed with the goods of the plaintiff; and he had a right to take and hold the whole until the plaintiff identified his goods and demanded a re-delivery. The sheriff cannot be treated as a trespasser for doing what he has a right to do." Recognition of the general principle governing these cases is thus shown in the opinion in Roberts v. The Stuyvesant SafeDeposit Company: "It is no doubt true that a bailee for reward, such as the defendant was, may excuse himself for a failure to deliver the property to the bailor when called for by showing that the property was taken out of his custody under the authority of valid legal process, and that within a reasonable time he gave notice of the fact to the owner," citing Bliven . H. R. R. Co., 36 N. Y. 403; W. T. Co. v. Barber, 56 N. Y. 544; Van Winkle v. U. S. M. S. S. Co., 37 Barb. 122; Livingston v. Miller, 48 Hun, 232; Stiles v. Davis, 1 Black. 101. But the same case shows that where there has been original neglect of duty on the part of the company, in allowing goods of a depositor to be removed on invalid process, the fact that the same goods were subsequently levied upon under valid process will not so cure such neglect that it may be offered in excuse by the company. "The rule in such cases seems to be that when a bailee is sued by the owner for the conversion or negligent loss of the property bailed, it is not a defence or bar to the action to show that, after it went into the pos session of others, it was levied upon under process against the owner. . . . We do not think that the mere levy of an execution or attachment upon the property by a creditor of the owner, while it is in possession of the tortfeasor, is available as a defence or in mitigation. It must be shown that the owner had the benefit of it in such a way as to operate in law as a restoration of the property. None of the authorities that have been brought to our attention maintain the proposition that to show a levy alone is sufficient; and such a rule could not be supported in reason or justice." It is, therefore, clear that both the company and the officer are protected in all proceedings conducted regularly under valid process. The further exemption of the company itself from any liability arising under the acts of the officer, after proof of his authority, is rendered complete by a significant ruling of the court in United States v. Graff. By this the officers and representatives of the company are not allowed to be present at the time of the opening of the safe by the sheriff; whereby the sole responsibility of the latter for his own acts is of necessity recognized. As a result of this, it follows that the company may avail itself equally with him of any defences which the law provides for his protection. The plaintiff, in the case referred to, appealed from so much of an order made by the special term at Chambers as directed the exclusion of counsel and agents of each party at the time of opening the safe by the sheriff. The court in confirming the order ruled as follows: "The portion of the order from which the plaintiff has appealed was clearly right. Without it the obligation would rest upon the officer to prevent the process he was required to execute from being converted into an instrument of investigation of the debtor's private papers. Such a use of it would be an abuse requiring the punishment of the officer permitting it to be done under color of process delivered for an entirely different and lawful purpose. The order did no more than declare the duty of the officer, as the law defined it. It was a very proper exercise of the discretion of the court." Whatever the results that the court thought it desirable to avoid thereby, it is clear that, with the exclusion of the representatives of the company, particularly their exclusion in the character of unofficial witnesses merely, all connection of the company with the property, in any capacity, was regarded as at an end from that time. - IV. The Relation between Depositors having a Community of Interest in a Safe. - Where two or more individuals rent a safe together, it is customary for them to sign an agreement on the books of the company reading somewhat as follows: "We agree to hire and hold safe No. as joint tenants, the survivor or survivors to have access thereto in case of the death of either." In the case of Hackett v. Patterson (16 N. Y. Supp. 170), the court was called upon to define the nature of such a tenancy and the rights and interests of the parties in the safe. They were here regarded in the same way as co-tenants of real property, and, whether joint tenants or tenants in common, as coming within the rules governing the similar relation in the holding of real property. The plaintiffs' testator and the defendant leased a safe in the vaults of the New York Safe-Deposit Company, and, on the death of the testator, his interest in these was, with the defendant's consent, transferred to the plaintiffs on the books of the company for the period of one year. A few days before the expiration of such year, the defendant procured a renewal of the lease in his own name, to the exclusion of the plaintiffs. The receipt for rent paid by the plaintiffs stated that the safe would not be deemed to be relinquished until the keys should be returned. The plaintiffs retained the keys until some months after the expiration of the lease. It was held that the renewal, privately acquired by the defendant in his own name, inured to the benefit of the plaintiffs, his co-tenants. In rendering the opinion of the court, Bischoff, J., said: "The new lease constituted the plaintiffs and defendant Patterson joint lessees, and whether their relation thereunder was that of jointtenants or tenants in common is equally immaterial in disposing of the question presented for adjudication, since either relation involves the application of the same principles of equity jurisprudence. 'Equality is equity,' and, steadily adhering to the application of this familiar maxim, courts of equity have ever regarded the rights of joint tenants and tenants in common respecting their common estate to be reciprocal, neither being permitted during the continuance of the co-tenancy furtively to acquire and hold any advantage which would not also inure to the other's benefit, provided the latter manifests a willingness to assume his just proportion of any burdens attending its acquisition and maintenance. . . . The only adequate relief was to accord plaintiffs that access to the safe to which, as beneficiaries of the leasehold interest, they were entitled, and the exclusive jurisdiction of equity in matters of trust authorized that court to take cognizance of the action." The mutual interests and responsibilities existing in the tenants through their community of interest in the safe is not, however, extended to the property there deposited, to the end that one tenant is supposed to have knowledge of or control over the property deposited by his co-tenant; so that, where two persons held a safedeposit box in common, and one of them, without authority, abstracted therefrom, and transferred to an innocent purchaser for value, a certificate of stock belonging to the other, it was held that the certificate was not intrusted to the possession of the wrongdoer, either directly, indirectly, or impliedly; nor was he authorized to remove it from the box; and that, therefore, there could be no application of the rule that, where one of two innocent persons must suffer through the fraud of a third person, he must bear the loss who placed it in the power of the third person to commit the fraud.1 Thomas K. Cummins, Jr. 1 Bangor Elec. Light Co. v. Robinson, 52 Fed. Rep. 520. HARVARD LAW REVIEW. Published monthly, during the Academic Year, by Harvard Law Students. THE LANGDELL Number of the REVIEW is an expression of the debt owed to Professor Langdell by his colleagues; the meeting of the Harvard Law School Association this June will be an expression of the debt owed to him by the graduates of the School, and, from the presence of the distinguished orator of that occasion, of the debt owed by all law and lawyers. It may not be amiss to complete the record by saying something of the special debt owed to him by the students in the School. It is not easy for a man who has studied here even for a little while to be ignorant that the unexampled means of study which lie ready at his hand are not matters of course. It is worth each man's while to remember now in the time of his present enjoyment that all these things are owed directly or indirectly to the Dean and to his twenty-five years of hard work; his has been the moving hand, his the responsibility, and to him credit is due. This is an occasion when the present students may recognize their obligation for all these causes which have made it such a very pleasant and profitable labor to be a student in the School. The Editors of the REVIEW speak confidently for all in expressing the gratitude which the students in the School feel for all the great things which they enjoy because Dean Langdell has done his work so well. By a clerical error it was stated in the May number of the REVIEW that the celebration of the Harvard Law School Association would occur on June 28. This should have been June 25, the day before Commencement, which comes this year on June 26. THE PRESUMPTION OF INNOCENCE. - In a criminal case, recently before the United States Supreme Court, a refusal to charge that innocence is presumed till guilt is proved beyond a reasonable doubt was held erroneous, notwithstanding that the court charged fully and accurately that the burden was on the prosecution to prove guilt beyond a reasonable doubt. Coffin |