#### John Dacy *versus*The New-York Chemical Manufacturing Company.

The wife of the' plaintiff being entrusted by him with, certain -sums of money, and directed to deposit them in some bank for safe keeping, opened an account with defendants in her own name, and deposited the" ihoney in their bank: The defendants were not aware at the time of the deposits, nor until the money had been entirely withdrawn from .the bank, that the deposite^ was a married woman, and they therefore gave her a bank book in the ordinary form, and prescribed the mode in which her checks should be made, as she was illiterate and could not write.

Uniter this arrangement 'the wife drew out of the bank,'upon checks in her own name, at various times, the -.entire sums deposited, —and her husband then discovering that his money was gone, brought an action of *assumpsit*against the bank, to recover the amount' of the deposits. Held, that he was not entitled to recover. That, the wife, being the agent of the husband to make the deposits, might fairly be presumed to have had authority to withdraw them; but if this were otherwise, as the bank had no notice of the agent’s coverture, atid as the husband had enabled his wife, by entrusting her with the money, to do the wrong,—that the loss accruing from her breach of trust should fall upon him, rather than upon the bank. ■

Assumpsit, to recover of the defendants the sum of 481 dollars, deposited in .the Chemical Bank, under the following circumstances. The plaintiff was an illiterate man, tyho kept a grocery, and his wife was in the habit of attending the shop during his absence. Neither of them could read or write; but, in the course of their business, having accumulated a quantity of specie, the plaintifftold his wife to deposit it in some bank. She, there- ■ upon, went to the defendants’ bank in company with á person by the name of. Hoy, (who was understood, at the bank, to be her son) and desired to open an account with them." "A book was accordingly given her, in which her deposits were credited, and as the defendants did not know that she was a married woman, the account was opened in the name of “ Mary Dacy,” and she was directed^by the cashier to place her mark upon her checks always in the presence of Hoy, her son, as a witness, and that upon their being presented,- signed by'him. as a witness, they would be "duly honored.

*551Under this arrangement, the wife, on her first visit, deposited the sum of *390*dollars, and at two subsequent periods 90 more ; and the bank book which she took away, was afterwards seen in the possession of the plaintiffs. At subsequent periods, the wife (but whether with or without the knowledge and assent of her husband, did not distinctly appear) drew seven checks upon the bank in her own name, which were duly paid, and thus withdrew the entire sums deposited ; but the defendants had no notice of the depositor's coverture until after the transaction was closed. Afterwards the plaintiff took the bank book to a friend for examination, telling him at the same time, that he had heard that his money had been withdrawn from the bank, and as the book confirmed the statement, the plaintiff thereupon brought this action.

The Chief Justice, before whom the cause was tried, charged the jury, that the questions as to the form of the action, and the right of the defendants to pay the husband’s money upon the wife’s checks, were questions of law; and that they were only to determine whether Mary Dacy was authorized to do what she had done, as the agent of her husband, and whether he had in any way ratified her acts.

The jury returned a verdict in favor of the defendants, and *Mr. J.*Lynch, for the plaintiff,

now moved for a new trial. He had formerly objected to the production and proof of the checks upon which the defendants had paid out the money, until the authority of the wife to make them was first established; but his objection was overruled. The counsel for the defendants, on their part, had contended at the trial that the form of the action was misconceived,—that it should have been trover, if the defendants were liable at all, and not assumpsit. This objection was also overruled.

For the plaintiff it was now contended, I. That the checks should not have been received in evidence until the authority of the wife to withdraw the money had first been proved. [1 *Phil. Ev.*79.] That there was no contradictory evidence in the case, and that the question whether the facts proved amounted to an authority was a pure question of law. *[13 J. R.*350.]

*552II. That the deposit of the money in the name of the wife was unauthorized ; but if authorized, it was a deposit for the husband, and could not be drawn out except by his authority. [2 *Caine’s R.*337-8.]

Mr. *Seely, contra,*for the defendants, contended,

I. That the verdict was fully supported by the evidence, and that no assumpsit could be implied from the facts.

II. That no action could be maintained by the plaintiff) as the money was withdrawn by the wife before any notice of her coverture was received by the defendants. [1 *Term*R. 20. 1 *Ld. Ray.*538. 224. *Cumberback*470.]

Oakley, J.

It appears from the evidence in this case, that the wife of the plaintiff" was entrusted by him with certain moneys, and directed to deposit them in some bank. She accordingly *opened an*account in her own name with the defendants, and made deposits from time to time. She gave directions at the bank as to the manner in which the money standing to her credit was to be drawn out on her checks, and various checks were accordingly drawn by her for the whole amount. The defendants had no knowledge that she was a married woman until after they had paid all the checks and closed her account. The husband now attempts to recover, on the ground that the payment to the wife was unauthorized.

The Judge submitted the fact to the jury, whether the wife was authorized as the agent of her husband to do what she had done, or whether he had subsequently ratified her acts. The jury found a verdict for the defendants, and I think rightly.

The plaintiff" entrusted the wife with the money for the purpose of depositing it. He knew that she was in the habit of making deposits, and though he might not have known that she had opened an account in her own name, as he was unable to read the entries made in her bank book, it is fairly to be presumed that *he*must have known that *she*was also in *the*habit of drawing checks for the money deposited. She was entrusted *553with the bank book, and the husband never made any inquiry as to the state of the account in the bank, and the jury were well justified in drawing the inference, that he must have known the true state of the case.

But if the jury were incorrect in finding the fact of an authority by the husband, on the evidence in the case, it is still clear that the plaintiff has no right to recover. If the wife abused the trust reposed in her by the husband, the defendants ought not to suffer by her fraudulent act, in depositing the money in her own name. By entrusting her with the money he enabled her to commit the fraud, and the loss, if he has sustained any, must fall upon him. In the absence of any circumstance to charge the bank with notice that she was a married woman, they had a right to open an account with her as a *feme sole,*and to pay the checks drawn upon the deposits made by herself.

*Motion for a new trial denied.*

[James Lynch, *Att’y for the plff.*W. *A.*Seely, *Att’y for the defts.]*