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and some Circuits reckoned nearly 300 members — and verses were recited, not altogether fit for the vulgar thus fenced round with rules, the institution of the ear" (Campbell's “Lives of Chief Justices"), where mess became a prime necessity. Those were the days the privilege of unrestrained freedom of speech which when, in the words of a song, written and sung by a prevailed was reduced to the following rule by an distinguished member of the Northern Circuit, as it attorney-general of the Northern Circuit (Lycester originally existed, many of the juniors might have Adolphus): “Never sacrifice your friend to your joke, sung:

but remember that man is not your friend who would “All round the Circuit I goes without a guinea,

stand in the way of your joke." There seems to be a All round the Circuit for two months and a day,

general consensus of opinion as to the tendency of the And if any body axes me the reason why I goes it,

amusements of the Circuit table to promote friendship It's because I don't know how to earn it any other way."

and to bring the leaders of the profession in contact So numerous a body – often for a fortnight in one with the juniors, and thus produce a feeling of hartown - could not be held together without rules for its mony and good will amongst the bar, which was proguidance and control, and the appointment of officers ductive of the best effects. The terms of intimacy in whose duty it should be to execute them. These were which the counsel who went the Circuit lived, are as necessary for the guild in its perambulations as pointed to as one of the chief characteristics of those when located in its ions of court; and the Grand Court days; and the free interchange of opinions between with its attorney and solicitor-general, its crier, its seniors and juniors as giving rise to sentiments of •messengers, its Masters of the Revels and Poet Laure- | kinduess and respect, and indeed, the strictness with ate, and even its bishop, had its distinct sphere of use- which the etiquette of the bar is maintained in Engfulness as well as its comic side. The High Jinks land is alleged to be owing, in a great measure, to the themselves tended to repress irregularities and mal- institution of the Circuit Court for the trial of all practices, while adding to the hilarity and amusement breaches of professional etiquette. of the members. The more serious business was of The methods of procedure of such a tribunal were course transacted before dinner; but even in the after- doubtless admirably adapted to secure the objects in dinner "quips and cranks" and uproarious mirth and view; it could pass “from grave to gay, from lively to chaff, a salutary hint could often be conveyed, and a severe,” and could find the venial offender half in jest, waruing given to one who was hovering on the brink while the graver breaches of etiquette could be visited of malpractice, and be the means of averting future with all the severity they deserved - even to the exunpleasantuess and severe

These were,

tent of expulsion from the mess. Thus in Lord Elbesides, but the reflection of the revels of the inns of don's time, we find in the Northern Circuit fines for court, where, as in the Middle Temple Hall, the Master the following offenses: “Lancaster, Grand Night, 29th of the Revels, after dinner, sang a “ carol or song, and March, 1783. Jno. Scott, Esq., for having come into commanded other gentlemen there then present to Lancaster the day before the Commission Day, and sing with him and the company;” or when, as in having taken up his abode that evening at the King's Gray's Imn, after dinner "a large ring was formed Arms in Lancaster, fined one gallon." “ Carlisle, round the fireplace," when the “Master of the Revels Grand Night, 14th August, 1784. Mr. J. Scott, contaking the Lord Chancellor by the right hand, be with victed of travelling between Durham and Newcastle his left took Mr. Justice Page, who joined to the other in company with Mr. Clayton, an attorney, fined one serjeants and benchers, danced about the coal-fire, gallon." . Lancaster, Grand Night, August. 1784. The according to the ceremony, three times, while the following gentlemen were fined a bottle each for makancient song, accompanied with music, was sung by ing a party to dine from the rest of the Circuit, at a one Toby Aston, dressed as a barrister," in 1773.

different house thau the Circuit house, in violation of In those days when men were accustomed to sit far the rules of the Circuit.” “Lancaster, Spring Assizes, into the night, it was but natural that the mighty in- 1783. Mr. S. Heywood was congratulated on coming tellects and reverend seniors, after the labors of the in his new carriage, and Mr. J. Scott congratulated for day, should unbend a little under the influence of old the like.” On the other hand there have been inport, and seek relaxation in the flow of soul and inter- stances in very recent times, of appropriate action change of chaff, as well as reason.

being taken in the case of graver offenses, in which Que ceases to wonder that an occupant of the Wool- the offenders have, with all due formality, been either sack, when a member of the Oxford Circuit, should admonished or expelled from the body altogether, have occupied the office of crier, holding a fire-shovel though happily such instances are rare. in his hand as the emblem of his office; that Lord El- The palmy days of Circuit life, howeverwhen the don, wbile he was attorney-general of the Northerni Grand Court flourished and revelry ran high — were Circuit mess, indicted Sir Thomas Davenport at the in the times when locomotion was difficult, when turne Grand Court at York, for murdering a boy “with a pike trusts were not, and roads were bad; and people certain blunt instrument of no value, called a long and their business could afford or were obliged to wait. speech;' or that Serjeant Prime was fined by the Then the advent af the legal army was an event in the Grand Court of his Circuit for setting a boy to sleep dreamy life of an Assize town; Assize balls and other by his eloquence. There even seems no incougruity festivities abounded, and a Circuit “ Bespeak" was an in the practical jokes of those days that have since honor sought after by the lessee of the local theatre a become bistorical; the hoax upon "Jack Lee" at York, every Assize town. We can still remember threading with the dummy brief, Rex v. Inhabitants of Hum our way, with a late baron of the Exchequer (then a Town, drawn up by Wedderburn and Davenport; or gay circuiteer), to the Theatre Royal, Durham, and that practiced on Boswell at Lancaster, when he moved listening to a noble army of two announcing to the for a writ of quare adhæsit pavimento; or that a late villain of the play that resistance was useless, as they chief baron had been crowned with a punch-bowl at had surrounded the house. The glories of the festiviYork, “in the days when he went circuiting;” and ties on an Assizo Sunday at the residence of John that such men as Alderson, Tindal, Serjeant Cross and Jones, of Ystrad, in his time a leader of the old Carothers joined in a quadrille to the tune of “Fol de rol marthen Circuit, and the dinners of “Lawyer Faw. rol," "but Alderson setting off wrong, put tho rest cett" to the members of the Northern Bar, in Lord out, and the whole was soon a scene of confusion." Eldon's time, when there were such struggles between

Much has been written and said as to the value, for the claims of “consulation" and the host's old port, purposes of discipline, of the Circuit Grand Court, are enshrined in history; while the hospitality ex* held foribus clausis among the barristers themselves, tended to the Northern Circuit by the Lord of Lowin which toasts were given, speeches were made, and ther Castle was continued down to a very reoent period (curiously enough, this having originated at a Almighty of the North," or, “The Cock of the Cirtime when there was only one Assize in tho year in cuit,” in the days of Law and Scarlett, when men those parts, it was given only during the summer were conscious of a power and dignity that required Assizes).

no bolstering-up. But now, when Q. C.'s are thick as But times have changed since then. As the Arab the “leaves in Vallombrosa," and every one considers Sheik said to the author of “Eothen," “Puff! puff! himself a “Cock,” the distinction has, as an eminent there is nothing like steam;” it has displaced the legal luminary (Lord Chelmsford) observed, become stage-coach, the chaise, and even the roadster. The "all stuff,” and must be hedged round with a due baggage-wagon lingered longest, but even it had to amount of reserve -- the traditionary glories and obsuccumb a quarter of a century ago on most Circuits, servancies of Circuit being left to the care of the junior though it still exists on the western, and might, until members, to whom they are but traditions. Thus the recently, have been seen at the accustomed times in men who owe their rank and position to their being the Temple ready for the reception of the baggage of members of the Circuit, are — perhaps unconsciously the Circuit; but so little were its uses dreamed of, that - working out the disintegration of the institution it has ere now been mistaken for a prison-van. Now which has raised them, and are kicking the ladder from the leader or the junior, who, by the aid of the mid- under their feet. For it is tolerably certain that many night mail and the Pullman car, can be iv London to- of those who have obtained rank in the profession, day and in the remotest part of the country to-morrow, owe it entirely to the fact of their being members of is no longer placed under circumstances favorable to the Circuit and to their “sticking to it," and thus the cultivation of the old Circuit life and its attendant obtaining practice and reputation among a comparaassociations. The clapnish or tribal spirit has vanished, tively small and local body, when otherwise they and that cosmopolitan idea - tho outcome of the steam might, like Viola, have engine and other facilities for intercommunication

“Pined in thought; which would obliterate nationalities, has left its im

And with a green and yellow melancholy, press indelibly marked on this as on other institutions.

Sat, like Patience on a monument, The circuiteer, if a silk or leading junior – "heavy

Smiling at grief," juniors” they call themselves ---- is no longer thrown

In the great world of London. 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

IGNORANCE OF ENGLISH AS AFFECTING mess-table or elsewhere; but he comes down to his

QUALIFICATION OF JUROR. Circuit more like one in possession of a special retainer, wbo, the moment his work is done, is whisked back to

COLORADO SUPREME COURT, APRIL TERM, 1880. London. If ever he does deign to honor tho mess with his presence, it is more after the manner of a

TOWN OF TRINIDAD V. SIMPSON. patron than of the boon companion of old.

Comparatively few men now go all round a Circuit, Under a statute prescribing that ** all male inhabitants of the majority restricting themselves to those towns the State over the age of twenty-one years who are citi* where they are known; others only go at certain times

zens of the United States, etc., and who have not been of the year; while some even require special fees to go

convicted of felony” shall be competent to sit as

jurors, held, that ignorance of the English language to certain towns on their own Circuit, and will only

would not disqualify one from sitting as a juror. But a take special jury causes at others.

wise discretion would excuse from jury duty persons Even the “Cock of the Circuit,” who sticks to it and

ignorant of that language. goes all round, spends most of his time in the society

"RROR to review a judgment in favor of the deof his papers, or if in one of the more populous towns that can boast a club, he may disport himself there,

fendant in error. The opinion states the case. and give entertainments to his friends and admirers, ELBERT, J. On the trial below, Juan B. Cordoba, and thus become, instead of a supporter, a formidable Manual Abeyta and Casimero Romero were sump.oned rival of the Circuit mess. For that loyalty to the with others as jurors. Upon his voir dire each anCircuit mess, which used to be one of its chief charac- swered that he did not understand the English lanteristics, and a breach of which was invariably the guage. The plaintiff in error made this ground of a subject of fine in the old days - and we have even challenge for cause; the challenge was overruled by known instances of tho messengers bringing a deserter the court, and the persons named were impanelled and into Grand Court at York, from the judges' table - has sworn and served as jurors upon the trial. been completely set at naught, and its rules havo be- Other errors were assigned, but by stipulation of come very much like a royal prerogative, viz., that law counsel the cause is submitted upon this assignment in the case of a junior which is no law at all in the alone. case of a senior, and we no longer find the leaders Is inability on the part of persons called as jurors, regularly dining at the mess and entering into its social to speak the English language and to understand it enjoyments as of old, under the last generation of when spoken, necessarily a disqualifying fact? The leaders, such as Stephen, Temple, James, Bliss, Quain, question is not without difficulty. ete. Under such circumstances it need scarcely be The statute declares that "all male inbabitants of matter of surprise that the mess languishes, that the the State, of the age of twenty-one years, who are attendance is but spasmodic (ranging from 50 or 60 citizens of the United States, or have declared their down to 3), and that whereas pot so many years ago it intention to become such citizens, and who have not was no uncommon thing to see from 80 to 90 at Grand been convicted of felony, shall be competent to serve Court at York, and 130 to 140 at Liverpool; from 60 to as grand and petit jurors in all courts and judicial pro70 would now be a large muster, and of these three- ceedings in the State." fourths would be “provincials; ” so that now we have These are the general statutory qualifications of a not a homogeneous body but different elements to deal juror. One possessing them, however, is still subject with at each place, and without a sufficiently numerous to challenge. Section 161 of the Code provides, that body going all round to make it any one's interest to either party may challenge peremptorily or for cause, keep up the ancient traditions. In old times, when, as limiting peremptory challenges to four. Section 162 Lord Campbell has stated, there were not more than enumerates seven several grounds upon which chalthree or four Queen's Counsel on any Circuit, it was a lenges for cause may be taken. It is unnecessary to matter of just pride to be like Serjeant Cockell, “The 1 advert to them further than to say, that inability to


speak or understand the English lavguage is not enu- early history of the territory it would have been permerated as a ground of challenge.

haps impossible, in these counties, to obtain an EnglishThis is not a case, however, where enumeration is to speaking jury. Even now, the exclusive rule that is be taken as excluding disqualifying causes not enu- contended for, if it did not defeat the administration merated; otherwise, deafness, insanity, and like phys- of the law in these counties, would devolve the burical and mental disqualifications, absolute in their dens of jury duty upon a very limited number. character, would be unchallengeable. The maxim ex- We cannot conceive that legislators have been blind pressio unius est exclusio alterius is not of universal to these facts, or negligent of their demands. In the application in the construction of statutes. The legis- absence of express legislation, we presume them to lative intention is to be taken according to the neces- have regarded the difficulty as amply provided for, sity of the matter, and according to that which is con- either in the provisions of section 402, cited supra, or sonant to reason and sound discretion. Broom's Leg. in the inherent powers of the courts of original jurisMax. 661.*

diction which they had established for the administraIn the silence of the statute, therefore, the grounds of tion of the law. For these reasons we think it was challenge in this cause stand as at common law, to be fully within the power of the court to appoint an indetermined by a consideration of the duties imposed terpreter, under the sanction of an oath, to interpret upon a juror, and the qualifications thereunto requisite. the testimony of witnesses and the arguments of

Challenges to the poll are reduced by Sir Edward counsel. This would affect the discharge of their Coke, under four different heads: propter honoris re- duties as jurors while in the jury box. Further than spectum, propter defectum, propter affectum, and propter this we do not decide. delictum. 3 Black. Com. 361,* 362.*

It does not appear that an interpreter was appointed; If to either, the challenge in the present case must but it is to be presumed that the court did whatever be referred to the second head; it is a defect of edu

was necessary in this behalf. cation, but only in a relative and limited sense. Knowl- As to the discharge of their duties in the jury room edge of a language other than a person's vernacular is the duties of consultation, decision and agreement but an accomplishment; want of it argues nothing it does not appear but what the other jurors of tho respecting mental culture, in fact may co-exist with panel were Mexicans, and spoke the Spanish as well as the highest intellectual attainments, and the greatest the English language; if so, no interpreter was necesaptitude for the duties of a juror. While this is the sary after their retirement from the jury box. case, the inability of a juror, ignorant of the language We are told that we must presume that they were in which the proceedings of the court are had, to dis- English-speaking only. Respecting the jurors in a charge the duties of a juror unaided, is patent.

county where the English-speaking class is so limited, It is his duty to listen to the evidence, the arguments and the Spanish-speaking class is so largely in excess, of counsel, and the instructions of the court. Igno- such a presumption would be without foundation in rance of the language as a matter of fact is as con- fact, and inadmissible. Without this presumption it spicuously a disqualifying circumstance as though he does not affirmatively appear that the jurors named was deaf, unless the court may aid him in the discharge were disqualified for the duties of the jury room. We of his duties through the instrumentality of an inter- desire to say, however, that the power of the court to preter; hence, the question comes to this: May the interpose an interpreter in the jury room is embarcourt in such a case interpose an interpreter? If it rassed by considerations not attaching to the appointhas the power, the disqualification is removable; if ment of an interpreter to act in the presence of the not, it is complete and absolute.

court, and if it exist, its exercise should be limited to It is true, there is no express authority of statute so cases of strictest necessity. to do, but there is a general power conferred by section Much stress is laid upon the proposition that all 402 of the Code upon District Courts to make rules and judicial proceedings must be in the English language, regulations governing their practice and procedure, in and the case of Dunton v. Montoya, 1 Col. 99, is cited reference to all matters not expressly provided for by as authority. In that case the narr, was in the Spanish law. Independently of statute, courts of original language, and the doctrine of the case must be limited jurisdiction have inherent power to make and enforce to the declaration that all pleadings must be in English. rules for the transaction of their business, subject only The fallacy of the argument on this proposition conto the condition that they do not contravene the laws sists in treating a general rule as though it were an exof the land. Gammon v. Fritz, 79 Penn. 303.

clusive rule. The declaration of the Code ($ 405) is It must be borne in mind that the territory embraced that “every written proceeding in a court of justico in quite a number of the counties in the southern part in this State, or before a judicial officer, shall be in the of the State, and among them the county in which English language.”

This is substantially the this litigation originated, formerly belonged to the Re- statute of 4 Geo. 2, 626, which enacts “That both the public of Mexico; that it was acquired by treaty by pleadings and the record should thenceforward be the United States, and that the inhabitants thereof framed in English.” Stephen's Pleadings, appendix were largely, if not exclusively, a Spanish-speaking 24. Prior to that time the record and pleadings (after people. Of this fact we take judicial notice. These the introduction of written pleadings) had been framed people are in all respects citizens, and the association in Latin, and the statute had for its object the aboliof alienage and its disabilities with ignorance of our tion of that practice. language is to be dismissed. Under like circumstances By statute 36 Edward III, it was enacted that “ For it was provided by statute, in the State of California, the future all pleas should be pleaded, shown, defended, that a juror should have sufficient knowledge of the answered, debated and judged in the English tongue, language in which the proceedings of the courts were but be entered and enrolled in Latin." 3 Black. Com. had; but certain counties, where a large portion of the 318. The arms of Edward had prevailed over those of population were ignorant of the English language, France, and the object of the statute was to banish were excepted by the statute from the operation of from the English courts of justice the use of the Northis rule. It is a noticeable fact, that, both under our man or law-French introduced after the Conquest. territorial and State governments, legislation touching This appears to be the only statute on the subject prior the administration of the law has proceeded without to the fourth year of James I. any express reference to, or recognition of the fact, How far and with what modifications it may be said that in the counties mentioned, its administration to prevail as part of our common law, need not be diswould chiefly concern, as for its agencies it would be cussed. Undoubtedly laws are to be administered in largely dependent upon, a Mexican citizenship. In the the language of the people adopting them. The people



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of this State, as of the United States, are an English- found guilty on a charge preferred by his wife, of speaking people, and, in the silence of the statute, all having "unlawfully and maliciously, with intent to judicial proceedings would be, as of course, in that destroy or render useless," damaged and cut with a language. It does not follow, however, that they hatchet a sewing machine, bought and paid for by tho would be exclusively so. This proposition must be defendant, which was at the time used for family taken subject to the practical necessities that daily sewing, and also cut two shawls, bought and paid for arise in the administration of the law in courts of by defendant partly with his own and partly with his justice.

wife's earnings, which shawls, since their purchase. Contracts in a foreign tongue are to be dealt with, had been continuously worn and used by the wife as and must be translated. Non-English-speaking wit- her apparel. The charge and conviction were founded nesses are put upon the stand and must “bear wit- on the 126th section of the Crimes Act (Rev. p. 250) as ness" through an interpreter. Non-English-speaking follows: “If any person shall unlawfully or maliciously prisoners are put upon their trial, and the indictment cut, break, burn, destroy or damage, with intent to and other proceedings of the trial are made known and destroy or render useless, any goods or chattels manifest to them by the same instrumentality. The the property of any other person, he shall be deemed proposition, therefore, that all judicial proceedings guilty,” etc. must be in the English language, must be taken sub Motion was afterward made in arrest of judgment, modo.

on the ground that admitting the property or title of In this view, the difficulty made respecting the in- the chattels or part of them to be in defendant's wife, structions of the court also disappears. While under she was not " any other person," within the meaning the Code they must be in writing, and under section of the statute. 405, in English, we do not conceive that their transla- At common law the title of all chattels belonging to tion into Spanish for the use and instruction of a juror the wife is vested in her husband, and if it appeared at understanding that language alone, would be inhibited the trial that the owner of the goods stolen and stated by the spirit of the section. The object of the pro- to be such was a married woman, the prisoner was acvision is to secure a record in English, and this would quitted. Hughes v. Com., 17 Gratt. 565; and this rule in no wise be defeated.

holds now in some States. State v. Hays, 21 Ind. 288; The hypothetical case put by counsel, of a jury com- and the husband is presumed to be the owner of all posed of persons of several different nationalities, is the personal property possessed by the family until the met by the suggestion that extremes prove nothing. contrary appears. Topley v. Topley, 31 Penn. St. 328; Such complications are not likely to arise where ample Com. v. Williams, 7 Gray, 337; Stale v. Pitts, 12 S. C. judicial discretion exists.

(N. S.) 180; Pratt v. State, 35 Ohio St. 514. So it has We are not unmindful that there are many serious been held that personal apparel furnished by a husband objections to the interposition of interpreters in judicial to his wife, or purchased by the wife, with the consent proceedings, and while we hold it within the power of of her husband, with money given her by him from a the court to appoint an interpreter under the circum- fund formed by their joint earnings, remains the propstances of this case, it was also within its discretion to erty of the husband, and the wife cannot maintain an exclude the jurors named for the cause assigned. People action against a carrier for the loss thereof. Haukins V. Arceo, 32 Cal. 40; Atlas M. Co. v. Johnson, 23 Mich. v. Providence R. R., 119 Mass. 596. 37; State v. Marshall, 8 Ala. (N. S.) 302.

Although in an indictment against a third person for Such persons are not disqualified, but whenever it is

stealing the goods of the wife used in the household practicable to secure a full panel of English-speaking with her assent, the ownership may be laid either in jurors, a wise discretion would excuse from jury duty her or her husband, Petre ads. State, 6 Vr. 64; yet, persons ignorant of that language.

viewing a husband and wife under such circumstances The cases of Fisher v. Philadelphia, 4 Brewster, 375, as joint owners, a charge of larceuy by one joint and Lyles v. State, 41 Texas, 172, are cited against the owner against another will not lie. State v. Kent, 22 conclusion arrived at in this opinion. The first author- Minn. 41; Kirksey v. Fike, 29 Ala. 206. ity we have been unable to obtain. With the reasoning The Married Woman's Acts do not so far destroy the of the last we are not satisfied. If our conclusion as to unity of husband and wife, that either can be con. the power of the court to appoint an interpreter be victed of larceny of the other's separate goods, Stevens correct, the foundation, upon which the conclusions in v. State, 44 Ind. 469; Thomas v. Thomas, 51 lll. 163; that case appear to rest, disappears.

Overton v. State, 43 Tex. 616; Reg. v. Kenny, 25 W. R. The judgment of the court below is affirmed, with 679; 5 Cent. L. J. 68; nor can a husband be guilty of costs.

arson in burning his wife's house, Snyder v. People, 26

Mich. 106; nor can the wife sue her husband for slapJALICIOUS DESTRUCTION BY HUSBAND OF der, Freethy v. Freethy, 42 Barb. 641; Tibbs v. Brown, WIFE'S PROPERTY.

2 Grani's Cas. 39; nor in replevin, Hobbs v. Hobbs, 22 Alb. L. J. 135; nor in trover, Owen v. Owen, 22 lowa,

270; nor in a civil suit for an assault and battery, MERCER COUNTY, NEW JERSEY, QUARTER SESSION, OCTOBER, 1880.

Longendyke v. Longendyke, 44 Barb. 367 ; even after a

divorce, the assault having been committed during STATE OF NEW JERSEY V. NUGENT.

coverture, Abbott v. Abbott, 67 Me. 304; Phillip v.

Barnet, L. R., 1 Q. B. Div. 436. These cases as to larUnder a statute making it a misdemeanor for any person ceny are all founded on the rule that a person cannot

to “ maliciously cut, break, etc., any goods or chattels steal his own property. Com. v. Tobin, 2 Brewst. 570; the property of any other person,held, that a husband

Taylor v. State, î Tex. Ct. App. 659; People v. Macmaliciously breaking a family sewing machine pur

Kinley, 9 Cal. 250; People v. Vice, 21 id. 314. There chased by him, and maliciously cutting his wife's ap

have been cases holding that, under the words “any parel purchased partly with his own and partly with his wife's earnings, was not liable. The sewing machine person in a statute, the owner might be included if was his own, and the wife, even if she had title to the the intent was apparent. Com. v. Tewksbury, 11 Metc. apparel, was not “any other person

" within the mean- 551; State v. Hurd, 51 N. H. 176. But they do not exing of the statute.

tend to the one under consideration. The property

damaged in this case, clearly the sewing machine, and, NDICTMENT for malicious destruction of goods

in my opinion, the shawls also, were not the property and chattels. The facts appear in the opinion.

of any other person within the contemplation of the STEWART, J. The defendant was arrested, tried and 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.




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 firin to the bank, the firm making no claim to such moneys.

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 enablo 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.

A CTION to recover moneys deposited in a bank.




MAY TERM, 1879.

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, 5 P. F. S. 368; Arnold v. Macungie Savings Bank, A 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


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 Litchfeld has an extensive territory and an irregular outline, and contains the village of Litchfeld, 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 con. tract 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. ETITION for an injunction against the practice of

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 iyself 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,

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