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speak or understand the English language 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. 664.*

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 tho 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




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 haring “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 the 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 wito 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 Iud. 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. Hawkins V. Arceo, 32 Cal. 40; Atlas M. Co. v. Johnson, 23 Mich. v. Providence R. R., 119 Mass. 596. 37; Stale v. Marshall, 8 Ala. (N. 8.) 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 larceny 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 affrıed, 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 slapMALICIOUS 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, MERCER COUNTY, NEW JERSEY, QUARTER SESSION,

270; nor in a civil suit for an assault and battery,

Longendyke v. Longendyke, 44 Barb. 367 ; even after a OCTOBER, 1880.

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

Kinley, 9 Cal. 250; People v. Vice, 21 id. 344. There chased by him, and inaliciously 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 INDICTMENT for malicious destruction of goods

damaged in this case, clearly the sewing machine, and, in my opinion, the shawls also, were not the property

of any other person within the contemplation of the 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 Penu. St. 421.

The defendant should therefore be discharged.




the claim of Warwick to the money he had deposited with them? They received it and the bills as his, entered them on their books as his, and were bound, in the absence of any attachment, to have paid the funds to him. How then were they placed in a better position by the service of the attachment? The attaching creditors stand in the place of Warwick. If they could not allege, as against Warwick, that the funds were not his, neither can they allege against the attaching creditors that they are not his, and yet turn round and pay the money to Warwick to enable him to defeat his creditor."

It is clearly against public policy to permit a bank that has received money from a depositor, credited him therewith upon its books, and thereby entered into an implied contract to honor his check, to allege that the money deposited belonged to some one else. This may be done by an attaching creditor, or by the true owner of the fund, but the bank is estopped by its owu 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.





MAY TERM, 1879.

FIRST NATIONAL BANK OF LOCK HAVEN V. Mason. T., a clerk for a firm, deposited moneys in his own name in a

bank. Hou, that the bank could not, after the firm became insolvent, set up as against T. that the moneys belonged to the firm and apply them on an indebtedness of the firm to the bank, the firm making no claim to such moneys. CTION to recover moneys deposited in a bank.

The opinion states the case. Paxson, J. The plaintiff below brought his suit against the First National Bank of Lock Haven, to recover the amount of moneys he had deposited with said bank. The defendant offered to prove that the money deposited in the name of James D. Mason, the plaintiff, was in fact the money of the firm of Thomas & Mason, of which firm the plaintiff was a clerk; that the plaintiff had admitted at the time the deposits were made that the money belonged to said firm, and was placed in his name as a matter of convenience in paying small bills; and that the said Thomas & Mason were indebted to said bank in excess of the amount standing on its books to the credit of the plaintift. 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; Sturr v. York National Bank, 5 P. F. S. 368; Arnold v. Macungie Savings Bank, 21 P. F. S. 290. These were cases, however, in which the true owner set up a claim to the fund. We have here a very different question. The bank, the depositary, sets up an adverse title to defeat the suit of its own depositor. The bank held its claim against Thomas & Mason when the plaintiff made his deposits, and they knew, or at least they allege they knew, when the deposits were made, that the money so deposited in plaintiff's name belonged to said firm; yet under these circumstances, and with this knowledge, they permitted the plaintiff to make the deposit in his own name. Having received it as the money of plaintiff, and given him credit therefor, the bank is estopped, in the absence of any potice 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 bis 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 Litchfield has an extensive territory and an irregular outline, and contains the village of Litchfield, in which the defendant dwelt and had his office at the time, and where the contract was drawn and executed. Held, that the above expression meant" within ten miles of the center of the village of Litchfield.” And held that the contract was not void in not fixing a period within which the defendant was not to practice dentistry within those limits. It seems that where such a contract is reasonable when made, subsequent circumstances, such as the covenantee's ceasing to do business, do not affect its operation. 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 coustruction 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 myself 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.

good consideration. 3d. It must be reasonable; that tion as to time is indefinite or perpetual will not of is, it should afford only a fair protection to the inter- itself avoid the contract if it is limited as to place, ests of the party in whose favor. it is made, and must and is reasonable and proper in all other respects. not be so large in its operation as to interfere with the Hitchcock v. Coker, 6 Ad. & El. 447; Bun v. Guy, 4 interests of the public.

East, 190; Chesman v. Nainby, 2 Strange, 739; S. C., 2 The motion does not disclose that it was claimed in Ld. Raym. 1456; Wilkins v. Erans, 3 Younge & Jerv. the court below that the contract was lacking in any 318; Mallen v. May, 11 Mees. & Wels. 652; Hastings v. of these elements, but only that it was too indefinite Whitley, 2 Exch. 611; Story on Sales (1st ed.), $ 493; and uncertain in its language to be enforced. The re- Pierce v. Woodward, 6 Pick. 206; Bowser v. Bliss, 7 spondent admits the making of the contract and full Blackf. 344. performance on the part of the petitioner, but con- It is said that the petitioner may cease to practice cedes that he has paid no attention to it whatever, dentistry, and that in such case the respondent ought except to keep the money paid under it. This is not not to remain under a perpetual injunction. The very creditable, to say the least, and the excuse given court in its discretion might in tbe decree have anticidoes not at all relieve him in a moral point of view. pated such a contingency and provided for it, but the He says, in effect, that inasmuch as he did not under-decree is not invalid on account of such omission, any stand, by the language which he used in the contract, more than the contract is. where the circle with its ten-mile radius would be The rule as to the contract is, that if it is reasonable drawn, he will locate within the town of Litchfield, when made, subsequent circumstances, such as the fact where he can do the other party the most injury, and of the covenantee ceasing business, so as no longer appropriate to himself the good-will of the business he to need the protection, do not affect its operation. had sold, knowing absolutely such conduct to be con- Elves v. Crofts, 10 C. B. 241. trary even to his own understauding of the contract. A new trial is uot advised. Such a position might well excuse a court of equity from giving any construction to the contract merely

WHEN DEMAND BEFORE ACTION FOR CONfor his future guidance. But he says that he stands simply on his legal rights, and he insists that the con

VERSION NOT NECESSARY. tract by the rules of law is too uncertain and indefinite, both as to territory and time, to be binding. This

CALIFORNIA SUPREME COURT, AUGUST 31, 1880. question is involved in the motion for a new trial, and calls for a decision; and with a view to prevent future

HARPENDING V. MYERS. litigation between the parties, we will discuss it briefly.

Where one in good faith purchases personal property from The counsel for the respondent ask in their brief,

one having no authority to dispose of the same, an ac“How can the court determine under this contract the tion to recover such property may be commenced by the territory from which the respondent is excluded from true owner against the purchaser without demand, and practicing dentistry by the provision, 'within a radius

the statute begins to run from the time of the purchase. of ten miles from Litchfield?' At what point is the


CTION to recover possession of personal property. radius to be taken? From the center of the town of The facts appear in the opinion. Litchfield ? Or is it to be taken from the extreme

Warren Olney, for appellant. boundaries of the town?" The construction suggested

J. C. Bates and C. L. Ackerman, for respondents. by the last interrogatory is manifestly unnatural and unreasonable. The large extent and irregularity of SHARPSTEIN, J. By the findings of fact, which are the boundary lines of the town would extend the pro- conceded to be correct, it appears that on the 5th day hibited territory much further from the respondent's of April, 1873, the plaintiff deposited with one Baux, former place of business at certain points than at at San Francisco, certain jewelry. In about one month others, without any reason for it founded ou the extent thereafter the plaintiff, beiug about to leave San Franof the good-will of the business in reference to which cisco and go to St. Louis, demanded her jewelry of it is to be presumed the limits were prescribed. And said Baux; and he, pretending that his father had the besides, the term “radius," which means “a right line key to the safe, induced her to leave without ber jewdrawn or extending from the center of a circle to its elry, promising to forward it by express to her at St. periphery," is wholly inapplicable to such a construc- Louis, so that it would reach there nearly as soon as tion. But in making such a contract the parties would she would. Iu fact, however, he had then pawned and naturally take their stand at the place where the busi-delivered a part of said jewelry to the defendants, who ness to be sold had been carried on, and would fix the were pawnbrokers, and on the 17th day of May, 1873, utmost limits of the territory at equal distance from he pawned and delivered a part of the residue of said that point in every direction, and as far at least as they jewelry to them, and on the following 9th of July he supposed the good-will might attract customers. Now, pawned and delivered the entire residue thereof to the contract is dated at “Litchfield,” where the post- them. Baux did not redeem the pledge, and on the office of that name was located, and the ten miles are 6th day of June, 1874, defeudants sold it in the manner to be computed from “ said Litchfield,” referring to provided by law. On the 24th of July, 1876, plaintiff the place where it was dated. It is also to be remarked demanded said jewelry of the defendants, or its value, that the precise point in the village of Litchfield where and said demand not being complied with, she comthe business referred to had been carried on by the meuced this action. She alleges, among other things, respondent is mentioned, namely, “in the rooms over that the defendants, on the 6th day of June, 1874, unDr. Beckwith's drug store."

lawfully converted and disposed of said jewelry, and Now, if we put ourselves in the position of the par- then alleges that on the 24th day of July, 18.6, she deties it would seem that the language which they used manded it as above stated. The judgment demanded is capable of very easy and definite application, and is for the possession of the property, or, if that cannot thus construed the contract means ten miles in every be had, for the value of it. direction from the center of the village of Litchfield. One of the allegations of the answer is that the cause

The only remaining inquiry is, whether any more of action did not arise or accrue within three years definite limitation as to time is required. The con- before the commencement of the action, and that it is tract is silent in respect to the time of its duration. barred by subdivision 3 of section 338 of the Code of But there is a well-settled distinction between a general Civil Procedure. The court rendered judgment in restriction as to place and a general restriction as to favor of the defendant, and from that judgment the time. The mere fact that the duration of the restric- plaintiff appeals to this court.

The sole question which we have to consider is erty for a special purpose sells it without right, the whether the action was commenced within three years purchaser does not thereby acquire a lawful title or after the right of action accrued. All the cases possession. In the case before us the defendant came agree in this, that a right of action accrues in favor of honestly by the horse, but he did not receive possession the owner of goods as soon as they are wrougfully of him from oue authorized to give it, and is theretaken from his possession, or wrongfully converted by for liable civiliter to the true owner for the taking as one who rightfully came iuto the possession of them. well as for the detention.'' No right of action accrued against the defendants in Stanley v. Gaylord, supra, was a case where the bailee this case until they took the plaintiff's property with- had mortgaged, as security for his own debt, the propout her consent, and according to the New York cases erty of bis bailor, and the mortgagee took possession of and decisions in some of the other States, no right of it under his mortgage, and the bailor sued the mortaction, in the absence of a demand, accrued until they gagee in trespass. sold it. So far as we are advised, neither that nor the In Galvin v. Bacon, supra, the plaintiff being the opposite doctrine has ever been expressly adopted in owner of a horse, bailed him to A for use for a limited this State. We are therefore at liberty to adopt the period, under the expectation of a purchase by the latdoctrine which we think to be the more reasonable. ter. During the time A, for a valuable consideration

The reason of the New York rule, as stated by Mr. and without notice, sold the horse to B, and he in like Justice Bronson in Barrett v. Warren, 6 Hill, 348, is manner to the defendant; and the court held that no that “a man who innocently purchases property, sup- previous demand was necessary to enable the owner to posing that he should acquire a good title, ought not be maintain replevin against the last purchaser. In Mich. subjected to an action until he has an opportunity to igau and Vermont the same doctrine prevails. restore the goods to the true owner.” In this case the In Wells v. Raylan, 1 Swan (Teun.), 501, it is distinctly reason of the rule ceases, because if the defendants had held that where the possession of property is obtained not supposed that Baux had a good title to the prop- from one who had no rigbt to transfer it, a right of acerty, a cause of action would have accrued in favor of tion by the owner against the transferee accrues as the plaintiff at the moment of their obtaining posses- soon as the latter acquires possession of it; that the sion of it, and consequently would have been barred bare taking of possession under such circumstances by the Statute of Limitations when this action was constitutes a new conversion on the part of the person commenced. It clearly was not the intention of the taking it, and that from the time of the comunission of courts which laid down or adopted that rule to place that act the statute will commence running. an imocent bona fide purchaser in a worse condition It has been held in this State that the exemption than an original wrong-doer would occupy, as it obvi- from being sued without previous demand does uot ously would when applied to a case like that now be- apply to sheriffs who seize upon execution property in fore us.

the possession of, but not belouging to, the execution Of the New York doctrine Mr. Justice Cowen, in debtor. Sedly v. Hays, 1 Cal. 160; Boulware v. CradBarrett v. Warren, supra, says: “I will not, however, dock, 30 id. 190; Wellman v. English, 38 id. 583. Nor deny that an exception in favor of the taker, where he to an execution debtor who purchases at sheriff's sale is a bona fide purchaser from the wrong-doer, has found property so seized. Sargent v. Sterm, 23 id. 359. Nor its way into the books; nor that however discordant to a purchaser for value who had notice, before he reit be with established principles, it may at least in this moved the property, sufficient to put him upon inquiry State have become too inveterate to be displaced.” as to the true ownership, even though such notice was Again, in the same opinion he says: “The result is, not received until payment of the purchase-price. that no English adjudication creates an exception in Scribner v. Martin, 11 id. 203. None of these cases favor of one who purchases from the tortious-taker of conflict with any decision made elsewhere upon the another's property." He further expresses the opinion points involved in them, so far as we are advised; and that the New York rule originated in a misconception they are not cited because of any bearing that they are of the English cases upon the subject. In this view of supposed to have upon the point now under considerathe matter he is sustained by Mr. Justice Metcalf, tion, but merely for the purpose of showing that the whose opinion was concurred in by Justices Shaw and question under consideration is an open one in this Dewey in Stanley v. Guylord, 1 Cush. 536, who, in re- State. ferring to the remarks of Mr. Justice Cowen that the It will be observed that wberever the doctrine of exrule which created an exception in favor of a bona fide emption prevails it is strictly limited to what are purchaser might have become too inveterate in New termed bona fide purchasers for value and without York to be displaced, says: “We are not embarrassed notice. by any decisions in this Commonwealth which are dis- We are unable to perceive, however, that a person cordant with established principles; and therefore we can ever be considered a bona fide purchaser of goods deem ourselves not only warranted, but bound, to de- from one who has no right to sell in a case where the cide this case according to those principles which we rule caveat emptor applies. The law imputes notice to find well stated by Weston, J., in Galvin v. Bacon, 2 him. Under that rule he is not only put upon inquiry, Fairf. 30-1, as follows: “Whoever takes the property of but he is conclusively presumed to have ascertained another without his assent, express or implied, or the true ownership of the property before purchasing without the assent of some one authorized to act in it. If he has notice in fact, no demand upon him for his behalf, takes it, in the eye of the law, tortiously. the property is necessary before commencing the acHis possession is not lawful against the true owner. tion to recover it. If he is chargeable with construct. That is unlawful which is not justified or warranted by ive notice, the result in all other cases is the same. But law; and of this character may be some acts which are as we have before stated, the operation of a rule which not attended with any moral turpitude. A party hon- exempts a bona fide purchaser from being sued until estly and fairly, and for a valuable consideration, buys after demand is made is, in all cases to which it has goods from one who has stolen them. He acquires no been applied, favorable to the bona fide purchaser, and rights under his purchase. The guilty party had no is claimed to have been devised for his protection. If rightful possession against the true owner, and he applied to this case, its operation is exactly the reverse could convey none to another. The purchaser is not of that. To hold that the statute did not commence liable to be charged criminally, because innocent of running in favor of these defendants from the time of any intentional wrong; but the owner may avail him- the delivery of the goods to them, because at that self against him of all civil remedies provided by law time they were conscious of no wrong-doing, which is for the protection of property. If the bailee of prop- they had been conscivus of would have set the statute in

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