ishly will not be denied. He with his strong passion and ardent love, was not able to cope with her. She, with her deceit and false professions of love, held complete mastery over him, which she did not fail to exercise to her great benefit. and his great disadvantage."

Here was a woman contriving a snare to despoil her husband, encircling him, as it were, with her smiles, wooing him with lying lips, until she swayed his stalwart frame, and he believed they were again renewing the plighted faith. He worshiped her. He saw the sunrise of a happier day. He deeded her the property to satisfy her whims and importunities. Then, like a serpent, she shrinks away. His hopes are blasted. She has slyly robbed his confidence and filched his purse. His shock is greater than that of the victim of the burglar or thief. Not alone has he been. pilfered of his property, but his heart has been stabbed. In his infatuation for his wife and implicit faith in her integrity, he has been made but a pliant, ridiculous toy in her cunning and dexterous hands. Why should not equity interfere?

34

So gifts made by the husband, while sick, to the wife, have been set aside at the suit of the executors of the husband's estate, after his death, because of the undue influence exercised by the wife over the husband in procuring the conveyance.33 And equity will specially intervene where either the husband or wife become untrue to the other and by deception obtains an unjust advantage over the other. Thus, in Stone vs. Woods, an Illinois case, it was held at the suit of the husband that a deed procured by the wrong of the wife to be made to a third person for her benefit would be set aside in equity. In that case the husband and wife lived in Galesburg. went to Bloomington to work. She wrote him that if he would put the property in her name, she would sell it for $1800, pay his debts and come to him, and they would then buy a new home. He deeded her the property, trusting her as a loyal helpmate.

He

(33) Haydock v. Haydock, 34 N. J. Eq. 570; Disch et al. v. Timm et al., (Wis.) 77 N. W. 196. (34) 85 Ill. 603.

She then conveyed the property to a man by the name of Stone, who had knowledge of the fraud. The court very promptly ordered restoration of the title and an accounting of the rents and profits. The wife had made this arrangement with her husband for the purpose of cheating him both financially and maritally.

Here was another woman of perfidious designs, debased in character, but able to convince and control her husband, on account of his confidence in her honor. She held out to him, in the desert of their financial misfortunes, the mirage of a happy home, free from the shadow of debt. By stealth and treachery she would betray him. for the sake of an unholy purpose, while, he "by the sweat of his face" struggled on in another city that she might be comforted and maintained. Little did he dream that this "shell" or imitation of a woman was laying the foundation for his financial ruin and the ultimate razing of his home! Despicable conduct-perfidy immeasurable! Words are not biting, pungent or scathing enough to properly denounce such nefarious infamy!

The case of Ditsch et al vs. Timm et al,35 while not squarely in point, is illustrative in a measure of the general ideas advocated in this article In that case the wife was a strong woman, physically and intellectually, had been divorced twice and was an "ex-saloon keeper." Her husband had children by previous marriage, who quickly took "flight" after this last adventure of their father. He became ill, and she persuaded him to deed his properties to her as her due and to avoid litigation and expense in the event of his death. She did not call in his children at the making of these conveyances, although they lived close by. At the suit of the children, after the father's death, these deeds were set aside on account of undue influence.

Fraud is infinite, and the fertility of man's mind and ingenuity so boundless, that equity cannot fix any standard tables of measurement by which to determine every case. Woman is the equal of man in a thousand ways, and there being no

(35) (Wis.) 77 N. W. 196.

"acid" test, so to speak, by which to ascertain real affection or the extent thereof, equity must take into account all of the facts and circumstances surrounding and permeating each case, in determining whether the confidential relation has been abused, in controversies between husband and wife pertaining to deeds of conveyances made to each other. It is a beautiful tribute to splendid American womanhood that the "women in the cases" heretofore commented upon are rare and vile exceptions and not the rule. But fraud, like murder. "will out," and justice does not plead in vain. The community of interest between husband and wife, the holiest union on earth, involving the most sacred and binding ties known to the human race, requires certain absolute duties and good faith on the part of both in their dealings with each other; and the wife, as well as the husband, who in furtherance of an evil motive, violates that confidence and takes advantage of that relationship to financially despoil the other, by obtaining deeds of conveyance or other transfers of property, through simulated love and false professions of affection and dishonest promises, should be required to make strict and complete accounting therefor, by speedy process, in the tribunals of justice.

Hammond, Indiana.

WALTER J. LOTZ.

GARNISHMENT-BURDEN OF PROOF.

SILSBEE STATE BANK v. FRENCH MARKET GROCERY CO.

(Supreme Court of Texas. Dec. 14, 1910.)

A garnishing creditor of a depositor depositing money in a bank to his credit, followed by the word "agent," can only reach the fund if the depositor is the true owner, but the fact that the depositor is in possession and control of the fund is prima facie evidence of his ownership, and, in the absence of anything disclosing a principal, the creditor is entitled to a judgment against the bank.

Error from Court of Civil Appeals of First Supreme Judicial District.

WILLIAMS, J. Certified questions from the Court of Civil Appeals for the First District, as follows:

"This is an appeal from a judgment of the county court against appellant in a garnishment proceeding. The facts are, briefly, as follows: The French Market Grocery Company, judgment creditor of Ray Miller, sued out a writ of garnishment on the judgment against the Silsbee State Bank, which was on October 19, 1906, duly served upon the bank. Some time prior to this date Ray Miller had deposited with said bank certain money to the credit of 'Ray Miller, Agent,' and at the time of the service of the writ of garnishment there was a balance in the bank to the credit of this deposit sufficient to pay appellees' debt. On the same day of the service of the writ, and after it had been served, this balance was paid out by the bank on the check, or checks, of 'Ray Miller, Agent.' The garnishee answered fully under oath denying any indebtedness to Ray Miller. The answer was in the usual statutory form. The French Market Grocery Company filed its contest of the garnishee's answer under oath. Upon this state of the pleadings, the only evidence offered was that of the president of the bank, in substance showing the deposit of the money to the credit of 'Ray Miller, Agent,' and the payment of it on his check, as agent, after the service of the writ of garnishment as hereinabove set out. Upon this evidence the county court rendered judgment against the garnishee, which judgment was reversed by this court, which held that the money in the bank to the credit of 'Ray Miller, Agent,' was, prima facie, the property of some undisclosed principal, and not subject to his debt, and that the burden was upon the plaintiff in the garnishment proceeding to rebut this prima facie case of evidence showing that the money was in fact the property of Ray Miller. Upon this holding we reversed the judgment and remanded the cause.

"Upon motion for rehearing' we are in doubt as to the correctness of our holding, and, as no appeal lies from our decision, we have thought it proper to certify to your honorable court the following question: Q. Were we correct in our holding?

The holding which the question asks us to review is stated to be "that the money in the bank to the credit of 'Ray Miller, Agent,' was, prima facie, the property of some undisclosed principal, and not subject to his debt, and that the burden was on the plaintiff in the garnishment proceeding to rebut this prima facie case by evidence showing that the money was in fact the property of Ray Miller." It is evident that all this rests upon the inference drawn by the court from the form in which the deposit was made and stated.

Our first impressions agreed with the opinion of the Court of Civil Appeals; but reflection and investigation have brought us to the conclusion that a negative answer should be given to the question. The authorities more nearly in point are in line with this conclusion; but their treatment of the subject has not been found entirely satisfactory to us. Proctor v. Greene, 14 R. I. 42; Randall v. Way, 111 Mass. 506; Laubach v. Leibert, 87 Pa. 62. We shall therefore state the reasons that to our minds seem controlling.

It is beyond question that a bank receiving a deposit, made as this one was, becomes bound and therefore entitled to treat the depositor as owner of the fund and to honor and pay his checks properly drawn without concerning itself with any question as to the ultimate ownership or as to the application made or to be made of the money drawn out. This doctrine has been stated with a discussion of the authorities in the following cases: National Bank v. Claxton, 97 Tex. 576, 577, 80 S. W. 604, 65 L. R. A. 820, 104 Am. St. Rep. 885; Coleman v. Bank, 94 Tex. 605, 63 S. W. 867, 86 Am. St. Rep. 871.

This is true regardless of the question whether the depositor is the owner in the fullest sense or had only the legal control. as agent, over money really belonging to others. We do not think, therefore, that it is true, as broadly as it is laid down by some writers, that a garnishing creditor of the depositor is substituted in his stead and can reach the deposit merely because the bank was bound to treat him as owner. The depositor controls the fund whether he is the true owner or not. The garnishing creditor can reach it only in case he is the true owner. Even the bank, in some transactions, deals with him as owner at its peril; for if it apply the fund to his own benefit under his authority, when it belongs to others, it is held accountable to them because the form in which such deposits are made is held sufficient to excite inquiry. The solution of the question therefore is not to be found in an analysis of the legal relation between banker and depositor, but must be reached by determining the probative force of the facts shown. That which is decisive in our judgment is that the depositor is found in the full possession and control of the money deposited. This is prima facie evidence of title unless its effect as such is destroyed by his profession that he holds as agent, with nothing more to indicate the existence of a principal. A possession really held as agent is that of a principal. To whom could this possession be attributed but to Miller? That is the only one of which the

creditor and the court knows anything, and we think it should be treated as being really his, as its mere existence indicates it to be. To hold otherwise would be to deprive a creditor of the chief evidence of the ownership of property by his debtor upon a mere declaration by the latter that it belongs to some undis. closed person who asserts no claim for himself. This view of such facts is involved in the reasoning of the case cited from Rhode Island, which is most in point, and sustains that decision as correct. That court considered circumstances not stated in this certificate and reached its conclusion from the whole case. The reasoning of Mr. Justice Agnew in the Pennsylvania case is also apposite, although the question was different and the conclusion questionable.

The answer to the question is, "No."

NOTE-Deposit by One Designating Himself "Agent", and Obligation of Bank in Garnishment.-There are not very many cases to be found bearing on the question in the principal case, and such as we find we append. The conclusion rather seems to be that the true owner, if he appears, can claim the fund, but if nothing appears to show the bank that it is not the depositor's property, the designation of agent does not prevent the bank dealing with it as such. What notice may make a bank responsible for so treating it does not appear. In Pettey v. Dunlap Hardware Co. 99 Ga. 300, 25 S. E. 697, it was decided, that money to the credit of "P. agent" could be reached by garnishment served on a bank, and though the depositor be insolvent and the creditor notifies the bank that he will contend the money belongs to the depositor individually, injunction will not lie to prevent the bank paying it over, as the latter acts at its peril, if it does so.

In this case the bank answered denying indebtedness and its answer was traversed. It was not decided upon whom was the burden of proof, but it was said the plaintiff's remedy at law was complete. This it would be howsoever the rule on this subject might be, but the syllabus decision in saying the deposit can be reached by garnishment is some intimation that the burden was on the bank, though not strong.

The case of Alexander v. Wade, 106 Mo. App. 141. 80 S. W. 19. shows, that mere ability by indirect or fraudulent methods for one to control a fund deposited in bank is not the test of its being garnishable, but the real question is to whom that fund belongs. Thus where a fund was deposited for the commercial creditors of the seller of a place of business, under an arrangement with the purchaser, the commercial creditors afterwards ratifying that arrangement were entitled to the fund against garnishment by one not a commercial creditor, though the arrangement left it to the seller to identify those creditors.

In Ferry v. Home Savings Bank, 114 Mich. 321, 72 N. W. 181. 68 Am. St. Rep. 487, it was

held, that though a fund stands in the name of a third person as agent, yet if the bank knows, that it belongs to the defendant, and yet allows it to be withdrawn by the party in whose name it stands, it is liable as garnishee.

This case does not go so far as the Georgia case, supra, as there a mere notice to the bank of what the creditor's contention would be was sufficient to put the bank upon peril of payment. Here it was only held, that its actual knowledge made it liable.

In Frank v. Kurtz, 4 Pa. Super. Ct. 233, the principle is recognized that the fund on deposit may be proved in garnishment proceedings to be the property of another, but there seems such a presumption of ownership in depositor that he will not be permitted to show, in order to defeat the application of the fund to his debt, that it is the property of a third person who disclaims any ownership thereof.

In Jones v. Bank, 44 Pa. St. 253 there was garnishment of fund in the name of "J., agent" and the bank garnishee was allowed to show by defendant the agent, that he had no personal interest in the account, nothing on the books of the bank nor the way in which it was treated, showing it was not the property of the depositor. The only question discussed in the case whether the depositor was incompetent by reason of interest, as the law then stood regarding competency of witnesses. The way, however,

was

the case stood it seemed to be assumed that the burden was on the garnishee to show the fund was not that of the depositor. This case was prior to that of Frank v. Kurtz, supra, which seems to follow the same theory.

In Proctor v. Greene, 14 R. I. 42, an answer by a bank that there was a deposit in the name of defendant "agent" and the bank knew nothing of any principal, and it appearing that no one as principal ever claimed the deposit before or after garnishment, the court held the bank liable as garnishee. The court said: "In the absence of such claim or suggestion we cannot resist the conclusion that the money is really the defendant's, and that the purpose of the word "agent" affixed to his name, was to protect the fund from garnishment. Such devices are not infrequently resorted to by debtors to keep their property from being reached by creditors."

In Des Moines Cotton Mill Co. v. Cooper, 93 Iowa 654, 61 N. W. 1084, a garnishee bank set up the defense that all of the money on deposit was money which defendant, depositing as "E. J. Cooper, agent," was collected for others, and the court rendered judgment for the garnishee on the ground, that "if Cooper had commenced an action to recover the money in his own right, and the bank had interposed the defense that the money was trust funds and had introduced evidence, which was presented in this case, Cooper would surely have been defeated in his action." This case both shows the burden was on the bank, and that it had the option to present such evidence. What sort of notice would make it its duty to interpose such a defense might be another question. The court held also that the fact that the bank had allowed the depositor to draw on the deposit with his private check was unimportant.

C.

CORAM NON JUDICE.

THE DOCTRINE OF HARMLESS ERROR. In our present campaign for reform in procedure, we shall have much to say regarding the doctrine of harmless error, as we regard it as of the most significant importance in overcoming the legitimate public protest against "technical reversals."

Statutes on this subject are of two kinds. First, those that put the burden on the court and appellee to show that the error was harmless to secure an affirmance. Second, those that put the burden on the court and appellant to show that the error was harmful in order to secure a reversal.

The Oklahoma statute is of the first kind. Section 5618, Rev. Stat., says: "On an appeal the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties."

The case of Byers v. Territory, 103 Pac. 532, construed this provision. The opinion is interesting, not for its valuable suggestion, but for the display of feeling, proving conclusively that lawyers and judges, as well as laymen, are impatient of reversals on purely technical grounds.

The court said: "It is the fixed purpose of this court to carry out the spirit of this statute; and, when a defendant has been properly charged with an offense, and fairly tried, and the evidence clearly establishes his guilt, this court will not reverse the conviction upon any technicality or exception which did not deprive the defendant of a substantial right. We cannot perform this duty without examining the entire record and going over the entire case. It is true that in the first instance the jury constitute the triers of the case; but, when a defendant by appeal brings a case to this court, and thereby invokes our judgment, we cannot act intelligently upon his appeal, and determine the application of the legal principle involved to the facts in the case, unless we carefully consider the evidence, and weigh it just as an intelligent jury should do upon the trial. If we cannot do this, then this court is a miserable and contemptible farce. The enforcement of the doctrine of harmless error in Oklahoma will greatly improve the character of our criminal trials. Lawyers will be compelled to try their cases upon their actual merits, and will cease devoting so much time in attempting to force technical errors into the record. The needless waste of much valuable time, and the expenditure of a great deal of money, will be saved, and far better results will be reached in the administration of justice, and the courts will gain the confidence and respect of the people, and acts of mob violence will cease to disgrace our state. The reversal of the just convictions of the guilty, upon purely technical questions, is the prime cause of want of confidence in the courts. This want of confidence often results in mob violence on the part of a long-suffering and outraged public. We have the highest possible authority for this statement, for we are told in the Bible that: 'Because sentence against an evil work is not executed speedily, therefore the heart of the sons of men is fully set in them to do evil.' Ecclesiastes viii, 1."