was created. If this was the general custom the legal effect of forwarding the collection and directing remittance of the proceeds would be the same as though the money had been paid to the bank for its draft, which it was at the same time required to issue. And such a transaction between a bank 618 and one of its customers has never been held to create any trust relation between such customer and the bank. Under such circumstances the title to the money passes to the bank, and its responsibility to the one who pays it to them is thereafter that of a drawer of the bill of exchange.

It follows that, under the conceded facts, the bank became the debtor of respondents, and not their trustee. This admission was stricken out in the lower court, but we see no reason why it was not material to show that a general custom existed which had a bearing on the transaction between the parties. And we think that the rights of the parties should be determined in the light of this general custom. If it was a general custom the parties are presumed to have dealt with reference thereto, and, in order to correctly interpret their intentions, the court or jury should be put in possession of the custom in the light of which they transacted their business. But the result would necessarily be the same if this paragraph of the statement of facts had been left out. The custom of banks in regard to making collections and remitting therefor is so well established, and has become so universally known, that knowledge thereof must be imputed to the courts, and they are therefore required to take judicial notice of the fact that a bank, when it makes a collection for a foreign correspondent, never, unless specially directed so to do, remits the specie collected, but instead thereof always takes the specie to its own use, and sends therefor its draft or certificate of deposit.

Among the large list of authorities which could be cited to sustain this proposition we call attention to the following: 1 Morse on Banks and Banking, sec. 248; Jockusch v. Towsey, 51 Tex. 130; Marine Bank v. Fulton Bank, 2 Wall. 252; Marine Bank v. Rushmore, 28 Ill. 463; Tinkham v. Heyworth, 31 Ill. 519.

It follows that, in our opinion, the transaction, even if 619 uninfluenced by any action of the respondents after the collection was made, would have established between them and the defendant bank the relation of creditor and debtor, and not that of cestui que trust and trustee. But, if this were not

so, the act of the respondents in receiving the draft and for warding it for collection would clearly show an intent on their part to pass the title to the specie collected to the defendant bank, and accept its responsibility as drawer of the draft of which they were the payees in lieu thereof. They accepted such draft without objection, and disposed of it in the usual course of business, and by so doing put themselves in the same relation to the bank as they would have been if they had forwarded the money, and directed it to send its draft or certificate of deposit therefor.

No funds impressed with a trust in favor of the respondents were in the hands of the bank at the time it ceased to do business; hence the funds in the hands of the receiver are not impressed with any trust in their favor.

The judgment of the superior court must be reversed, and the cause remanded with instructions to dismiss the action. DUNBAR, C. J., and SCOTT, ANDERS, and STILES, JJ., con

cur.

BANKS-COLLECTIONS-DEBTOR AND CREDITOR.-The relation between a bank transmitting paper for collection and a bank receiving and collecting such paper and mingling its proceeds with its other funds, is that of debtor and creditor merely: First Nat. Bank v. Davis, 114 N. C. 343; 41 Am. St. Rep. 795, and note. If a collection indorsed to a bank is collected by it, and it afterward makes an assignment for the benefit of creditors, the relation between it and the owner of the property is that of debtor and creditor, and he cannot impose any trust upon the proceeds in the hands of the assignee, unless there was some arrangement by which the funds were to be held separate and the identical proceeds remitted: Akin v. Jones, 93 Tenn. 353; 42 Am. St. Rep. 921, and note.

CUSTOM-WHEN PRESUMED TO HAVE ENTEred into ConTRACT.-When a custom is general, every person who makes a contract is presumed to know the custom, and it enters into the contract and binds him: Horan v. Strac han, 86 Ga. 408; 22 Am. St. Rep. 471. A custom, if known to the parties to a contract to which it relates, is obligatory, and unless excluded by the terms of the contract enters into it, and is regarded as a part of it: First Nat. Bank v. Fiske, 133 Pa. St. 241; 19 Am. St. Rep. 635, and note. Knowledge of a usage may be inferred from circumstances or implied from its notoriety: Barry v. Hannibal etc. Ry. Co., 98 Mo. 62; 14 Am. St. Rep. 610. See, also, the note to Mutual Assur. Society v. Scottish Union etc. Ina, Co., 10 Am. St. Rep. 826.

CASES

IN THE

SUPREME COURT

ОР

WISCONSIN.

KLIEFORTH V. STATE.

[88 WISCONSIN, 163.]

"NIGHT-TIME," WHAT IS.-In the absence of statutory definition, it is "night-time" so long as a man's face cannot be discerned; otherwise, without taking moonlight into consideration, it is daytime. Hence, an instruction fixing the end of night and the commencement of day at exactly one hour before sunrise is erroneous.

KLIEFORTH and another, the plaintiffs in error, were convicted of assault and battery upon one F. M. Lamb, who, on on the morning of September 1, 1893, between the hours of 4 and 5 o'clock, shot and killed a duck. Klieforth was a game warden, and, as such, arrested Lamb within a few minutes after the shot was fired. One Cummings assisted Klieforth in making the arrest. Klieforth was authorized, under the statute, to arrest any person, without a warrant, whom he found in the act of shooting ducks "in the night-time." Plaintiffs in error were therefore guilty of committing the assault and battery charged, if the shooting was done in the daytime; otherwise they were not. The case turned upon this one question of fact. The state's evidence showed that the duck was shot at 4:30 o'clock A. M., while the evidence for the defense showed that it was shot at 4:04. It was proved that the sun rose at 5:21. The court instructed the jury as stated in the opinion. Plaintiffs in error were found guilty, and sued out a writ of error.

James J. Dick and Frank M. Lawrence, for the appellants. Attorney General and J. M. Clancey, assistant attorney general, for the state.

165 WINSLOW, J. The pivotal question in the case was whether the duck was shot in the night-time or in the day. time; and the court charged the jury that if it was shot before 4:21 A. M., then it was shot in the night, and if after that time, then it was shot in the daytime. This instruction fixed the end of night and the commencement of day at a definite minute of time-just one hour before sunrise. We have been referred to no authority which sustains this definition of "night," and we think that it must be held erroneous. In the case of burglary the rule is thus stated by Blackstone (4 Blackstone's Commentaries, 224): "If there be daylight or crepusculum enough, begun or left, to discern a man's face withal, it is not burglary. But this does not extend to moonlight." This rule was approved by this court in Nicholls v. State, 68 Wis. 416; 60 Am. Rep. 870. It is substantially supported by the general current of decisions in those states where, as in Wisconsin, there is no statutory definition: 16 Am. & Eng. Ency. of Law, 707, and cases cited in note 3. We see no good reason for applying one definition to the word in "burglary" and another definition in a prosecution for violation of the game laws. It is plain that, in view of 166 the evidence, the erroneous definition given by the court might have been, and probably was, very prejudicial to the defendants' case.

By the COURT. Judgment reversed, and cause remanded for a new trial.

NIGHT-TIME is sometimes defined by the statute as the period between sunset and sunrise. At common law it was not confined to this exact period, but was extended to that period when there was not enough daylight left to discern a man's face. The fact that the features can be distinguished by reflection from the street lights on the snow or by moonlight does not affect the question of time in respect to burglary: See note to People v. Richards, 2 Am. St. Rep. 388.

STATE V. JUNEAU.

[88 WISCONSIN, 180.]

WITNESSES-COMPETENCY OF CHILD TO TESTIFY.-The competency of child above the age of four years to testify as a witness is a question addressed to the discretion of the trial court, and must be determined by an examination of the child in court. Competency, in such a case, depends upon intelligence. CRIMINAL LAW-"OPEN AND GROSS LEWDNESS"-EVIDENCE.-A person may be convicted of the offense of "open and gross lewdness," upon the testimony of a child five years and five months old, who was less than five years old when the offense was committed, if there is some corroboration of its testimony.

GROSS LEWDNESS, ACT OF, IS ‘OPEN," WHEN.-Under a statute providing for the punishment of "open and gross lewdness," an act of gross lewdness is "open" though committed in a private place, and in the pres ence of but one person. Hence, such an act is "open" if committed in the presence of a child of tender years.

JUNEAU was convicted of the statutory offense of "open and gross lewdness and lascivious behavior," alleged to have been committed in a building occupied by the defendant, no one being present at the time except the defendant and a little girl named Clara Brown, who was at that time about four years and nine months old, and who was about five years and five months old at the time of the trial. The alleged offense consisted of the indecent exposure of defendant's person to said child, and the commission of an indecent assault upon her. The conviction was had upon the child's testimony, corroborated by that of her mother, and a physician who was called to examine her a short time after the alleged assault. The following questions, considered important and doubtful by the trial judge, were certified for the decision of the supreme court: 1. "Did the circuit court err in permitting the child, Clara Brown, to testify in this case"? 2. "Can a conviction for a criminal offense be sustained upon the testimony (with some corroboration) of a child who was under the age of five years at the time the offense is alleged to have been. committed"? 3. "Is an act of gross lewdness 'open,' within the meaning of section 4579 of the Revised Statutes, when committed in a private place, and when no one is present except the defendant and the person upon whom the act is alleged to have been committed"? The report of the case to the supreme court was made under section 4721 of the Revised Statutes.